COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71354, 71355, and 71356 IN THE MATTER OF : ROBERT LITTLEJOHN, et al. : [Appeal by Antoinette Holton, : Mother] : Appellant : : -vs- : JOURNAL ENTRY : AND CUYAHOGA COUNTY DEPARTMENT OF : OPINION CHILDREN AND FAMILY SERVICES : : Appellee : DATE OF ANNOUNCEMENT OF DECISION MAY 7, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT JUVENILE COURT DIVISION CASE NOS. 9690362, 9690363, AND 9691102. JUDGMENT: REVERSE AND REMAND DATE OF JOURNALIZATION: APPEARANCES: For Appellant: SARA E. JONES (#0064326) 3955 Euclid Avenue Cleveland, OH 44115 For Appellee: JAMES A. DRAPER, Esq. Cuyahoga County Public Defender BY: KATHLEEN W. WOOD, Esq. (#0066811) Assistant Public Defender 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, OH 44113 SPELLACY, J.: Appellant Antoinette Marie Holton ( appellant ) appeals from the judgment of the trial court granting permanent custody of -2- appellant's children Robert, Breyanna, and Joseph Littlejohn to the Cuyahoga County Department of Children and Family Services ( CCDCFS ). Appellant assigns the following errors for review: I. WHEN THE JUVENILE COURT FAILED TO HOLD A DISPOSITIONAL HEARING AS REQUIRED BY THE OHIO REVISED CODE, OHIO CASE LAW AND THE JUVENILE RULES, AND FAILED TO CONSIDER KEY ISSUES AFFECTING THE CHILDRENS' BEST INTERESTS, IT DENIED MS. ANTOINETTE HOLTON THE FUNDAMENTAL RIGHT TO PARENT HER CHILDREN AND THE DUE PROCESS RIGHT TO PRESENT EVIDENCE CRITICAL TO HER FAMILY'S WELL-BEING. II. MS. ANTOINETTE HOLTON WAS DEPRIVED OF HER FUNDAMENTAL RIGHT TO RAISE HER CHILDREN, WITHOUT DUE PROCESS OF LAW, BY A CONCLUSORY COURT RULING WHICH FAILED TO STATE PARTICULAR FINDINGS OF FACTS AND WHICH STATED BROAD CONCLUSIONS NOT SUPPORTED IN THE RECORD. III. THE JUVENILE COURT'S RULING EXCEEDED THE BOUNDS OF ITS STATUTORY AUTHORITY AND WAS THUS REVERSIBLE ERROR. Finding the first assignment of error to have merit, the judgment of the trial court is reversed and remanded. I. This appeal involves appellant's three youngest children. Those children are Robert - born February 23, 1993, Breyanna - born June 22, 1994, and Joseph - born March 16, 1996. Appellant does not have custody of her three oldest children. CCDCFS removed four of appellant's children from her home on April 7, 1995, after learning that Robert had been burned. The children were placed in foster care. CCDCFS was granted emergency custody of the children. CCDCFS filed a complaint and motion for pre-adjudicatory and -3- temporary custody and eventual permanent custody. The motion for temporary custody was granted. Upon his birth, CCDCFS received emergency custody of Joseph. CCDCFS filed two additional complaints seeking permanent custody of the children. A dependency hearing was held on May 22, 1996. The children, Robert, Breyanna, and Joseph, were adjudged dependent. The trial court's journal entry states that the matter was heard and submitted and continued to a later date for disposition. On August 27, 1996, the trial court granted CCDCFS's motion for permanent custody. Appellant has a long history of involvement with CCDCFS going back to her childhood. She never completed a case plan to the satisfaction of CCDCFS and usually did not complete any course of counseling and services. The only service appellant had any long- term involvement with was the National Institute for Responsible Fatherhood. CCDCFS ended its association with the National Institute for Responsible Fatherhood after appellant began a course of counseling with that association due to a lack of progress made by participants in the program. Appellant's social workers considered her to be untruthful and found it difficult to work with appellant. Her attitude was uncooperative. Appellant has a history of unstable housing, tending to move from place to place. She has lived in shelters and with various friends and relatives. The children often were left in protective daycare or at Providence House for lengthy periods of time during appellant's various pregnancies. Appellant and the children were discharged from the protective daycare program due to erratic attendance. The -4- supportive services offered to appellant and not completed did not seem to have an effect on appellant's patterns of poor parenting, poor judgment, and leaving the children at risk. Appellant failed to complete all of the elements of a case plan. CCDCFS moved for emergency custody after Robert received two burns with an iron. Appellant told her social worker that an older child burned Robert. Later, she maintained that her cousin burned Robert. Appellant did not seek medical attention for Robert, initially claiming she was unaware the child had been burned or later that she knew of the extent of the injury. The social worker removed the children from the home upon learning of the incident and took Robert for medical care. Appellant eventually pled guilty to two counts of child endangerment. The youngest child, Joseph, was born while appellant was incarcerated. Appellant never saw the children while she was in jail which was from September of 1995 to May of 1996. Appellant stated she did not want the children to see her in jail. While appellant was incarcerated, CCDCFS filed a complaint for permanent custody. Appellant had one visit with her five children the day after her release from prison. Appellant arrived an hour late due to car problems. The visit lasted for another hour. Various relatives of appellant's attended the session and appellant spent some of the time speaking with them. Appellant underwent psychological evaluations in 1991 and 1995. Each session was with the same doctor and lasted for one hour. The psychologist found no changes in appellant in the four -5- years between the evaluations. The psychologist's opinion of appellant was that she was unable to acknowledge the difficulties and responsibilities with regard to taking care of the children and lacked empathy. She did not seem concerned about Robert's well- being after he was burned. The psychologist did not feel the children would be safe in appellant's care. Appellant made various untruthful representations concerning her health to the psychologist. She seemed to be concerned about nonexistent illnesses of the children to the extent the psychologist thought appellant might be suffering from Munchausen by proxy syndrome. The psychologist admitted she did not know if appellant had made any progress in regard to her parenting skills in the nearly one year interim between the last session and the hearing. However, the psychologist did state that appellant's lack of empathy would not be alleviated by parenting classes. Appellant averred she had changed while incarcerated. Appellant took various classes while in jail and was to start parenting classes soon after the hearing. Appellant stated at the hearing that jail caused her to have more respect and honor for her children. II. In her first assignment of error, appellant contends the trial court committed reversible error by failing to hold a dispositional hearing. Appellant argues that R.C. 2151.35(B)(1) mandates that a juvenile court hold separate adjudicatory and dispositional hearings. Appellant submits that a juvenile court may not combine -6- the two hearings but must hold separate hearings. R.C. 2151.35(B)(1) states in pertinent part: If the court at an adjudicatory hearing determines that a child is an abused, neglected, or dependent child, the court shall not issue a dispositional order until after the court holds a separate dispositional hearing. The court may hold the dispositional hearing for an adjudicated abused, neglected, or dependent child immediately after the adjudicatory hearing if all parties were served prior to the adjudicatory hearing with all documents required for the dispositional hearing. The court in In re Baby Girl Baxter (1985), 17 Ohio St.3d 229, held: In proceedings where parental rights are subject to termination, both the Juvenile Rules and the Revised Code prescribe that such proceedings be bifurcated into separate adjudicatory and dispositional hearings. Id. at paragraph one of the syllabus. Bifurcation is required where permanent custody is sought at the initial disposition. In re Brofford (1992), 83 Ohio App.3d 869. A dispositional hearing is to be held only if the trial court first determines that the child is a neglected, abused, or dependent child. In re Riddle (1997), 79 Ohio St.3d 259. It is then that the trial court has the authority to make a disposition pursuant to R.C. 2151.353. See Elmer v. Lucas Cty. Children Serv. Bd. (1987), 36 Ohio App.3d 241. In the instant case, the trial court held the adjudicatory hearing and then marked the matter heard and submitted. The dispositional order was made in August but no further hearing was held. There is nothing in the record indicating that any of the parties agreed to submit the matter without holding a separate -7- hearing. The transcript reflects that the focus of the May 22, 1996, hearing was on the issue of permanent custody not on whether the children were dependent. However, it is not clear if the parties understood there would be no further hearings on the matter to indicate a clear waiver of this point. The statute places a mandatory duty upon the trial court to hold a separate dispositional hearing after the children are adjudicated neglected, dependent, or abused. In re Baxter held that bifurcated proceedings are required. Because the trial court failed to follow the proper proceedings, the case is remanded for a separate dispositional hearing. Although this matter is being remanded for a dispositional hearing, this court finds no error with the trial court's finding that the children are dependent. There is ample evidence in the record to support this finding as well as the award of permanent custody. However, under the revised code and prevailing case law, it is clear that the trial court did err by not bifurcating the hearings. This duty is mandatory and cannot be waived under the circumstances which are before this court. Appellant's first assignment of error is well-taken. III. Because of the resolution of the first assignment of error, appellant's second and third assignments of error are moot. Judgment reversed and remanded. -8- It is ordered that appellee recover of appellant its 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 Juvenile Court 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. DIANE KARPINSKI, P.J. and MICHAEL J. CORRIGAN, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .