COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68001 : ACCELERATED DOCKET HENRY PORTZER : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION CUYAHOGA COUNTY DEPARTMENT OF : HUMAN SERVICES : : Defendant-Appellee : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 8, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 265,204 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellant: CHRISTOPHER J. MALLIN Attorney at Law Post Office Box 46565 Bedford, Ohio 44146 For defendant-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor BRYAN ADAMSON, Assistant JEFFREY I. SHERWIN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated 1 calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the Cuyahoga County Court of Common Pleas, and the briefs of 2 appellants. Plaintiffs-appellants, Henry Portzer and his minor children Jackie Portzer, Kelly Portzer and Henry Portzer (hereinafter "the Portzers"), appeal from the judgment of the Cuyahoga County Court of Common Pleas which granted the motion for summary judgment filed by defendants-appellees the Cuyahoga County Department of Human Services ("CCDHS") and Diane Morrison and Sally Charney, employees of CCDHS (hereinafter collectively referred to as "appellees"). The Portzers' complaint sought punitive and compensatory damages for injuries allegedly sustained as a result of the children's temporary removal from their home by CCDHS. The Portzers' complaint asserted claims for malicious prosecution, 1 The purpose of an accelerated appeal is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). 2 Appellees' brief was stricken for failure to comply with Loc. App.R. 25(5)(A). Consequently, we must rely on appellees' motion for summary judgment and their brief in response to appellants' motion for summary judgment to supply their argument on appeal. - 3 - false arrest, wrongful detention and intentional infliction of 3 emotional distress. The record on appeal contains only portions of the juvenile court proceedings. As best as we are able to determine, the facts giving rise to the Portzers' complaint are as follows: On January 22, 1993, CCDHS received a telephone call from Jackie and Kelly's school informing it that the two children had missed an excessive number of days at school. Three days later, on January 25, 1993, CCDHS received a second telephone call concerning the Portzer children, this time from a neighbor with whom the children had been staying. In response to this telephone call, CCDHS sent a social worker to the Portzer residence on January 26, 1993 to investigate. The social worker found the Portzer residence in a state of disarray and found that there was no food in the refrigerator. The social worker also met with the referent neighbor. The neighbor told the social worker that Mrs. Portzer was incarcerated on January 23, 1993 and that the children had been staying with her since that time. After further investigation, the social worker learned that the Portzers were going to be evicted from their residence for non- payment of rent. On Thursday, January 28, 1993, the social worker received another telephone call from the referent neighbor, who told her that she could no longer care for the children. The next day, 3 The appellees' answer failed to raise the affirmative defense of qualified immunity pursuant to R.C. 2151.421(G)(1). - 4 - the social worker went back to the neighbor's home, where she learned from Jackie Portzer that Mr. Portzer frequently left the children by themselves. Kelly Portzer told the social worker that their father had problems with drugs and that there were no relatives available to care for them. Before the social worker took the children into custody, the referent contacted Mr. Portzer, who was at work, and informed him that CCDHS was taking the children into temporary emergency custody. Mr. Portzer did not object. The children were then placed in two different foster homes in the Youngstown, Ohio area. On February 8, 1993, some ten days after the Portzer children had been taken into custody, CCDHS filed a complaint for temporary custody in the Cuyahoga County Juvenile Court alleging that the children were neglected and seeking temporary custody of the children. The same day, the court held a hearing on CCDHS's motion for pre-adjudicatory temporary custody, after which the court denied the motion. In its March 1, 1993 order, the court ordered CCDHS to immediately release the Portzer children to the custody of their father. The court continued the matter for full adjudication on the complaint until March 30, 1993 and directed CCDHS to further investigate. At the March 30, 1993 adjudicatory hearing, the court found the complaint of CCDHS to be supported by clear and convincing evidence. The court ordered the children to be placed in the - 5 - legal custody of their father but ordered CCDHS to provide protective supervision. I. On June 2, 1994, the Portzers filed a motion for summary judgment. In their brief in support of the motion, the Portzers argued that CCDHS was without authority to take the children into custody on January 29, 1993 and further unlawfully detained the children until February 8, 1993 without bringing them before the juvenile court. The Portzers supported their motion with the following: (1) CCDHS's answers to their requests for admissions of fact wherein CCDHS admitted that it did not file any action for the custody of the Portzer children in the juvenile court before February 8, 1993 and Diane Morrison admitted that the children were not in any immediate danger at the time she took them into custody on January 29, 1993; and (2) the affidavit of Henry Portzer. On July 22, 1994, appellees filed a brief in opposition to the Portzers' motion for summary judgment, a motion to dismiss and a cross-motion for summary judgment. Appellees argued that they were entitled to summary judgment because, as a matter of law, there was no genuine issue of material fact that their conduct was anything but proper. Attached to appellees' brief were the social worker's report, the affidavit of the social worker, a portion of the social worker's testimony at the pre-adjudicatory temporary - 6 - custody hearing on February 8, 1993, the complaint for neglect, a copy of the court's order denying pre-adjudicatory temporary custody and continuing the matter for full adjudication until March 30, 1993, and a copy of the court's order of March 30, 1993 finding the complaint for neglect to be supported by clear and convincing evidence. On September 7, 1994, the trial court issued an order denying the summary judgment motion of the Portzers. On September 9, 1994, the trial court sustained the motion for summary judgment filed by appellees, without opinion. It is from this judgment that the Portzers appeal, raising the following two related assignments of error for this court's review: I. THE TRIAL COURT ERRED IN DENYING PLAINTIFFS['] MOTION FOR SUMMARY JUDGMENT, ENTERED SEPTEMBER 7, 1994, AT VOL[.] 1772, PAGE 761. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ENTERED SEPTEMBER 9, 1994, AT VOL. 1773, PAGE 404. In resolving the issues raised from a grant of summary judgment, we review the record to determine whether there are genuine issues of material fact requiring a trial. The standard for reviewing the granting of a summary judgment based upon Civ.R. 56 is aptly set forth in Shaw v. Pollock & Co. (1992), 82 Ohio App.3d 656, 656-659, as follows: Summary judgment is proper if the trial court determines that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from - 7 - the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party *** Once summary judgment is requested, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient *** The issue to be tried must also be genuine, allowing reasonable minds to return a verdict for the nonmoving party *** See, also, Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, 111 (adopting Fed.Civ.R. 56 summary judgment standard set forth in Celotex Corp. v. Catrett (1986), 477 U.S. 317). II. Malicious Prosecution In their motion for summary judgment, appellees contended that the Portzers could not, as a matter of law, support a cause of action for malicious prosecution since the adjudicatory proceedings did not terminate in their favor. As a general rule, to establish a malicious prosecution cause of action, the plaintiff must show a malicious institution of prior proceedings against the plaintiff by defendant, lack of probable cause for the filing of the prior proceedings, termination of the prior proceedings in the plaintiff's favor and seizure of the plaintiff's person or property during the course - 8 - of the prior proceedings. Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135, 139. (Emphasis added.) A review of these elements as applied to the facts of this case reveals that the Portzers failed to sustain their burden to produce evidence sufficient to withstand appellees' motion for summary judgment. Wing v. Anchor Media, Ltd. of Texas, supra. The Portzers' complaint and their motion for summary judgment premise their malicious prosecution claim on the court's February 8, 1993 denial of CCDHS's motion for pre-adjudicatory temporary custody. This argument, however, is flawed in that the court's ruling on the motion for pre-adjudicatory temporary custody did not terminate the proceedings. Juv.R. 2(F) defines "court proceeding" as "*** all action taken by a court from the earlier of (1) the time a complaint is filed and (2) the time a person first appears before an officer of a juvenile court until the court relinquishes jurisdiction over such child." The evidence presented to the trial court clearly established that the complaint for neglect was continued for full adjudication until March 30, 1993, at which time the court found the complaint to be supported by clear and convincing evidence. Moreover, in the March 30, 1993 order, the court continued the matter for future review. Under these circumstances, the Portzers provided insufficient evidence to support the elements of a successful cause of action for malicious prosecution. Therefore, the trial - 9 - court did not err in granting appellees' motion for summary judgment as to this claim. III. Wrongful Detention/False Imprisonment In order to support a cause of action for wrongful imprisonment, a plaintiff must establish that the defendant "*** confined [him] intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short." Adamson v. May Co. (1982), 8 Ohio App.3d 266, 267 (cites omitted). 4 The Portzers assert that R.C. 2151.31(D) requires that any 4 R.C. 2151.31(D) provides: Upon receipt of notice from a person that the person intends to take an alleged abused, neglected, or dependent child into custody pursuant to division (A)(3) of this section, a juvenile judge or a designated referee may grant by telephone an ex parte emergency order authorizing the taking of the child into custody if there is probable cause to believe that any of the conditions set forth in divisions (A)(3)(a) to (c) of this section are present. The judge or referee shall journalize any ex parte emergency order issued pursuant to this division. If an order is issued pursuant to this division and the child is taken into custody pursuant to the order, a sworn complaint shall be filed with respect to the child before the end of the next business day after the day on which the child is taken into custody and a hearing shall be held pursuant to division (E) of this section and the Juvenile Rules. A juvenile judge or referee shall not grant an emergency order by telephone pursuant (continued...) - 10 - emergency taking of a child into custody under R.C. 2151.31(A)(3) must first be authorized by a juvenile judge or designated 5 referee, which may be done ex parte, and that R.C. 2151.31(E) requires that such taking must be reviewed by the court for probable cause within seventy-two hours. It is undisputed that CCDHS never sought nor obtained an ex parte order from the juvenile court before taking the children into custody and that the children were not brought before the court until February 8, 1993, ten days after they were taken into custody by CCDHS. Consequently, the Portzers assert that the 4 (...continued) to this division until after he determines that reasonable efforts have been made to notify the parents, guardian, or custodian of the child that the child may be placed into shelter care and of the reasons for placing the child into shelter care, except that, if the requirement for notification would jeopardize the physical or emotional safety of the child or result in the child being removed from the court's jurisdiction, the judge or referee may issue the order for taking the child into custody and placing the child into shelter care prior to giving notice to the parents, guardian, or custodian of the child. (Emphasis added.) 5 R.C. 2151.31(E) provides, in pertinent part, as follows: If a judge or referee pursuant to division (D) of this section issues an ex parte emergency order for taking a child into custody, the court shall hold a hearing to determine whether there is probable cause for the emergency order. The hearing shall be held before the end of the next business day after the day on which the emergency order is issued, except that it shall not be held later than seventy- two hours after the emergency order is issued. *** - 11 - appellees' confinement of the children for ten days without any authority is tantamount to a wrongful detention. The Portzers' reliance on R.C. 2151.31(D) and (E) is misplaced. R.C. 2151.31(D) and, concomitantly, subdivision (E) would apply only if CCDHS had sought an ex parte order, but, as indicated by the use of the word "may" in subdivision (D) ("*** a juvenile judge may grant by telephone an ex parte emergency order ***"), there is no requirement that CCDHS seek such an ex parte order. Rather, in the absence of an ex parte order, R.C. 2151.31(A)(2) provides that the "person taking a child into custody shall, with all reasonable speed *** [b]ring the child to the court *** and promptly give notice thereof, together with a statement of the reason for taking the child into custody, to a parent *** and to the court." (Emphasis added.) Inasmuch as CCDHS was not required to seek an ex parte order from the juvenile court before taking the children into custody, we find that the trial judge correctly determined that the Portzers were not entitled to judgment as matter of law on their claim for wrongful detention. Moreover, as the record fails to reveal questions of material fact regarding the authority of CCDHS under R.C.2151.31 and R.C. 2151.311, we find that the trial judge correctly determined that appellees were entitled to summary judgment, as a matter of law, on the Portzers' claim for wrongful detention. - 12 - IV. False arrest The appellees correctly argue that the Portzers could not, as a matter of law, support a cause of action for false arrest since the taking of a child into custody pursuant to R.C. 2151.31 is not an arrest, except for purposes of determining its validity under the Ohio or federal constitutions. R.C. 2151.31(B)(1); Cf., In re L (1963), 25 O.O.2d 369 (the law of arrest does not apply to the taking into custody of minors). Therefore, the trial court did not err in granting appellees' motion for summary judgment as to the Portzers' claim for false arrest. For all of the foregoing reasons, the Portzers' assignments of error are overruled and the judgment of the trial court is affirmed. - 13 - This cause is affirmed. It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DONALD C. NUGENT, PRES. JUDGE JOSEPH J. NAHRA, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .