[Cite as In re R.H, 2022-Ohio-3961.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

CRAWFORD COUNTY

IN RE:

 R.H., CASE NO. 3-22-18

NEGLECTED CHILD.

O P I N I O N

[CARL H. - APPELLANT]

[NICOLE H. - APPELLANT]

IN RE:

 H.S., CASE NO. 3-22-19

ABUSED AND/OR NEGLECTED CHILD.

O P I N I O N

[NICOLE H. - APPELLANT]

IN RE:

 C.S., CASE NO. 3-22-20

ABUSED AND/OR NEGLECTED CHILD.

O P I N I O N

[NICOLE H. - APPELLANT]
Case No. 3-22-18, 19 and 20

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Appeals from Crawford County Common Pleas Court

Juvenile Division

Trial Court Nos. C 2215113, C 2215114 and C 2215115

Judgments Reversed and Causes Remanded

Date of Decision: November 7, 2022

APPEARANCES:

Adam Charles Stone for Appellants

Michael J. Wiener for Appellee

SHAW, J.

{¶1} Nicole H. and Carl H. (collectively “appellants”) bring this appeal from 

the April 18, 2022 judgment of the Crawford County Common Pleas Court, Juvenile 

Division, awarding legal custody of their child R.H. to Rhonda R. Nicole also 

appeals the award of legal custody of her two other children, H.S. and C.S., to Chris 

and Abbie L. 
Case No. 3-22-18, 19 and 20

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Background

{¶2} Nicole H. is the mother of three children: H.S., born in August of 2010, 

C.S., born in June of 2008, and R.H., born in June of 2016. Michael S. is the father 

of H.S. and C.S., and Carl H. is the father of R.H.

{¶3} On September 22, 2021, complaints were filed alleging that H.S and 

C.S. were abused and neglected children pursuant to R.C. 2151.031(D), and R.C.

2151.03(A)(2), respectively. That same date a complaint was filed alleging that R.H. 

was a neglected child pursuant to R.C. 2151.03(A)(2). Following the filing of the 

complaints, a GAL was appointed for the children and Nicole was appointed 

counsel.

{¶4} On October 18, 2021, the matter proceeded to an adjudication hearing 

for all three children.1 Nicole and Carl were present for the hearing but Michael, the 

father of H.S. and C.S., failed to appear despite receiving notice. The trial court’s 

judgment entry reflects that Nicole admitted that H.S. and C.S. were abused and 

neglected as alleged, and that Nicole and Carl both admitted that R.H. was neglected 

as alleged. Based on Nicole and Carl’s admissions and their stipulation that the 

evidence was sufficient to support the allegations, H.S. and C.S. were determined 

to be abused and neglected children and R.H. was determined to be a neglected 

child. 

1 No transcript of this hearing was provided. 
Case No. 3-22-18, 19 and 20

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{¶5} The trial court’s judgment entry indicated that all parties consented to 

proceed to the dispositional hearing immediately after the adjudication hearing.

Regarding the disposition, the trial court determined that it would not be in the 

children’s best interests to have them returned to their prior home with Nicole and 

Carl at that time. H.S. and C.S. were then placed in the temporary custody of 

Christopher and Abbie L., a kinship placement. R.H. was placed in the temporary 

custody of Rhonda R., a relative placement. The children’s services agency retained 

protective supervision over the children. The cases were set for a review hearing on 

January 4, 2022.

{¶6} According to a journal entry filed on January 4, 2022, a “review” 

hearing was held on that same date as previously scheduled. The entry indicated that 

all parties agreed to “maintain the status quo.” The next “review hearing” was 

scheduled for April 12, 2022, at 9 a.m.

{¶7} On March 10, 2022, Nicole’s appointed counsel filed a motion to 

withdraw. Within a week, that motion was granted. Nicole was appointed a new 

attorney on March 16, 2022.

{¶8} Also on March 16, 2022, “Notice[s] of Hearing” were filed indicating 

that a hearing would be held on the children’s cases on April 12, 2022 “for purposes 

of Review.” (Emphasis added.)
Case No. 3-22-18, 19 and 20

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{¶9} On March 28, 2022, the agency filed a “Semiannual Administrative 

Review” in each child’s case. The documents indicated that the permanency goal 

for all three children was to return the children to their parents. The documents 

stated that the permanency goal did not need to be modified and that the estimated 

date to achieve the goal was September 17, 2022. In the documents the agency

ultimately recommended that the children stay with their temporary custodians 

while the parents were given more time to complete their case plan goals.

{¶10} On April 11, 2022, a new attorney filed a notice of appearance on 

behalf of Nicole.

{¶11} On April 12, 2022, the cases proceeded to a “review hearing” as 

scheduled. What follows is a transcript of what occurred at the “review hearing.”

THE COURT: * * * This matter came on for review at 9:00, it is 

now 10:05. Attorney Brown had filed a notice of appearance 

yesterday, but she has not shown, nor has her client shown. We’ve 

been waiting an hour and five minutes. The Court’s aware now 

that Miss Brown, for some reason, is in a three day jury trial, 

which I think she would have known about that yesterday when 

she filed her notice of appearance.

Let’s put on – we’re reviewing this case right now. What’s 

going on?

MR. WEINER: Your Honor, I just ask to give a brief update as 

to the status of the case for the Court –

BRITTANY BOWIN: So the parents have failed to allow me in 

the house since December of 2021, therefore I have not been able 

to monitor the home conditions. However, when I do show up to 

make my visits, the outside of the home is still deplorable with 
Case No. 3-22-18, 19 and 20

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trash all throughout the yard. There’s still a trailer on the 

property, so it’s not known if the family’s living in the house or 

the trailer. When the case opened, they were living in the trailer. 

At the time I believe the home was unlivable.

Parents have completed parenting classes, but they have 

failed to show the knowledge they’ve learned in the parenting 

classes. Carl – he is attending DV counseling, but he did get a 

letter about two months ago for potential discharge for noncompliance, him not showing up to his appointments. He’s not 

consistent to the appointments. And Nicole is attending DV 

counseling hopefully.

THE COURT: Okay. So also, I’m in possession – the Court wants 

to take note that I’m in possession of an opinion written by Dr. 

David Tennenbaum, dated January 28, 2022, which sort of 

reiterates what you were saying, and the propensity of the parents 

to comply with the case plan. Or the lack of their failure to comply 

with the case plan.2

Mr. Flegm, what’s your thoughts?

MR. FLEGM: I’m aware and agreed with all of what the 

caseworker, Brittany, has said. I also have spoken to all three of 

the boys, but particularly the older two, who are the step children 

of * * * Carl. And they have expressed repeatedly, as they again 

did today, that they were in fear of Carl, [and] did not wish to go 

back home. * * *

But there’s a pattern of physical and psychological abuse by 

Carl of the two older boys. * * * I think it’s – their wellbeing and 

best interest is not to be returned to the parents[.]

THE COURT: How are the boys doing in their present home 

situation?

BRITTANY BOWIN: They’re doing really well. [R.H.] has 

started displaying some behaviors in school, centralized [sic] 

2 The report is not in the record.
Case No. 3-22-18, 19 and 20

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behaviors. Rhonda is working with him on those behaviors. And 

working to get him back into counseling. [H.S.] and [C.S.] are 

doing really well. They’re attending counseling. * * * They’re 

currently in sports and doing really well in school.

THE COURT: So Rhonda R[.] has [R.H.]?

BRITTANY BOWIN: Yes.

THE COURT: And he’s doing well?

BRITTANY BOWIN: Yes.

THE COURT: And it’s a stable home? And does [Rhonda] want 

that legal and close?

BRITTANY BOWIN: Yes.

THE COURT: Are they here?

BRITTANY BOWIN: Yes.

THE COURT: Have they been advised of the – of – and they’ve 

read the document we have presented them?

BRITTANY BOWIN: We have talked about legal custody during 

the last two home visits * * * with both caregivers.

THE COURT: What about * * * [H.S.] and [C.S.]? They’re with 

Chris and Abbie L[.]?

* * *

And they’re doing well as well?

BRITTANY BOWIN: Yes.

MR. FLEGM: Yes, they are.
Case No. 3-22-18, 19 and 20

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THE COURT: And has Chris and Abbie L[.] expressed a desire 

to have custody of those boys?

BRITTANY BOWIN: Yes.

THE COURT: And I guess, has Rhonda expressed a desire to 

have custody of [R.H.]?

BRITTANY BOWIN: Yes.

THE COURT: And have they been explained that if they’d get 

legal custody, it’s intended to be a permanent situation, even 

though it’s not permanent, because anybody can come back and 

review it?

BRITTANY BOWIN: Yes.

MR. WEINER: Are they here?

MR. FLEGM: They’re across the hall.

THE COURT: Why don’t we get ‘em in.

* * *

THE COURT: Okay. * * * I understand that these complaints 

have been filed September 21st, 2021. So this has been a year and 

a half.3

* * * [Temporary custodians enter the courtroom and the trial court 

addresses them] * * *

THE COURT: Okay. The reason I brought you in here, is 

because the Guardian has recommended that maybe we should 

consider legal and close. And I think the – is that what your 

thinking would be in the best interest of the children as well, 

Michael?

3 This is inaccurate.
Case No. 3-22-18, 19 and 20

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MR. WEINER: Yes, Your Honor.

THE COURT: Okay. Are you in the position to have legal 

custody of these children?

[TEMPORARY CUSTODIANS]: Yes.

THE COURT: Do you want that?

[TEMPORARY CUSTODIANS]: Yes.

THE COURT: Do you understand it’s intended to be – if I do 

that – it’s intended to be a permanent situation?

[TEMPORARY CUSTODIANS]: Yes.

THE COURT: I mean, nothing’s gonna be permanent, because 

the rights of the parents still are in play. They can come back 

down the road and ask for a review, based on a change of 

circumstances or whatever. 

But this Court finds that this case has been going on since 

September 21st of 2000 – September 22nd, 2021, and I see no 

improvement, or no ability to even consider returning these 

children to the parents given the statements made by counsel and 

the witnesses here.

There is a document that I want you to read, and if you want 

to have these children, sign. You’re basically assuming 

responsibility for the care, custody, and control of the children 

involved respectively. And you’re telling me that’s what you 

want?

[TEMPORARY CUSTODIANS]: Yes.

* * * [Temporary custodians sign the paperwork] * * *

THE COURT: * * * While [they are signing], Mr. Flegm, I want 

you to reiterate what you told the Court off the record concerning 

* * * where the agency wanted to go out to the home? * * *
Case No. 3-22-18, 19 and 20

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And I think you said that the parents refused to allow it to 

happen?

MR. FLEGM: I don’t know how many weeks ago it was, fairly 

recent – three weeks ago. We had a family team meeting, and at 

that meeting, Mr. Motter had been released, a new attorney had

been appointed by this Court. They refused to accept that new 

attorney. They were gonna get their own counsel. I never received 

anything, nobody ever received anything. The Court just got 

notice of appearance just yesterday.

But at the hearing, because the caseworker had been unable 

to get into the house for many, many months to check the status 

of it, I said: Okay, we’re at this FTM, we’re all here right now, 

let’s go out after this hearing. We’ll drive out, and we can inspect 

the house.

Carl H[.] just, point blank, in not so many words, said no. 

I’m going to consult – you can’t get in until I consult with an 

attorney. Absolutely not.

THE COURT: Okay. So what I’m hearing then is the Ohio Job 

and Family Services has been denied access for how many 

months?

MR. FLEGM: December.

THE COURT: December. And wanted to go in three weeks ago, 

and they were denied access again?

MR. FLEGM: Right.

THE COURT: And you as well, as Guardian?

MR. FLEGM: That’s correct.

THE COURT: Okay. Has the agreements been signed by 

everybody?

BRITTANY BOWIN: Yes.
Case No. 3-22-18, 19 and 20

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THE COURT: Okay. The record’s gonna reflect that Rhonda 

R[.] has, in fact, signed a statement of understanding for legal 

custody as well as * * * Abbie and Chris L[.] have also signed the 

statement of understanding for legal custody.

The Court, on its own motion, is going to grant legal custody 

to both sets of foster – or custodians, and close this file down. And 

then if you wish to have child support, we can refer it to the Ohio 

Job and Family Services, the CSEA, later on for child support. * 

* * 

* * *

And I find it’s in the best interest to grant legal custody to the 

respective custodians as we discussed in these matters and to close 

this case.

So Michael, will you please prepare a Court order.

MR. WEINER: I’ll prepare the entry, Your Honor.

(April 12, 2022, Tr., 3- 13).

{¶12} On April 18, 2022, the trial court filed its final judgment entry 

awarding legal custody of the children to their temporary custodians. The entry 

began by summarizing the issues with Nicole’s attorney and by noting the fact that 

Nicole and Carl were not present for what was originally styled as a review hearing.

{¶13} The entry then stated that the GAL “testified” that C.S. and H.S. were 

afraid of Carl and that the children did not want to go home. The entry stated that 

the GAL also “testified” that Nicole and Carl were not cooperative in this case. In 
Case No. 3-22-18, 19 and 20

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addition, the entry stated that the GAL “testified” that he thought it was in the best 

interest of the children for legal custody to be awarded to the foster parents.

{¶14} The entry summarized the agency caseworker’s statements at the 

hearing, but it incorrectly stated that the caseworker, too, “testified.” Further, the 

entry stated that both sets of temporary custodians “testified” that the children were 

doing well in their homes and that the custodians wanted to have the children 

permanently.

{¶15} After reciting this “testimony,” the entry indicated that the trial court 

was acting within its vested authority pursuant to R.C. 2151.417 to modify 

disposition at any time. The trial court then granted legal custody of the children to 

their respective temporary custodians, finding that it was in the children’s best 

interests.

{¶16} However, after reaching its conclusion, the trial court noted that 

Nicole’s attorney had filed a motion to continue in C.S.’s case (but not in the other 

children’s cases), albeit belatedly. The trial court stated that even if the motion had 

been timely filed and filed in all of the children’s cases, the trial court would not

have found good cause for a continuance.

{¶17} Nevertheless, the trial court stated that 

the court may reconsider the award of legal custody to the foster 

parents if within 14 days from the date of this entry Attorney 

Brown requests an evidentiary hearing and attends the said 

hearing to present evidence to this Court that would demonstrate 
Case No. 3-22-18, 19 and 20

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that any facts found herein are incorrect. At said hearing the 

court would also accept evidence regarding custody and the best 

interest of the children.

(Doc. Nos. 21, 20, and 21 in their respective files).

{¶18} On April 20, 2022, two days after the trial court’s entry was filed, 

appellants filed a “Motion for Reconsideration or, in the Alternative, Motion to 

Vacate Judgment Entry of Disposition.” The motion argued that the parents were 

denied procedural due process when the trial court sua sponte converted a mere 

“review hearing” into a legal custody hearing.

{¶19} On April 21, 2022, the trial court overruled the motion, determining 

that R.C. 2151.417 provided the court with inherent authority to modify disposition 

of the children at any time, even on its own motion. Further, the trial court reasoned 

that the parents had notice of the review hearing, thus they had notice that a hearing 

was proceeding.

{¶20} Subsequently Nicole and Carl filed the instant appeals, challenging the 

trial court’s awards of legal custody of the children to their formerly temporary 

custodians, asserting the following assignment of error for our review.

Assignment of Error

The trial court violated R.C. 2151.353(E)(2) [sic], as well as 

Appellant’s Fifth and Sixth Amendment Rights to the United 

States Constitution, made applicable to the States through the 

Fourteenth Amendment and Section 16, Article I of the Ohio 

Constitution by proceeding upon an oral motion for Legal 

Custody made by the Court, and not a party to the proceedings, 
Case No. 3-22-18, 19 and 20

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at a scheduled Review Hearing without Appellants being 

provided proper notice and an opportunity to respond.

{¶21} In their assignment of error, appellants contend that the trial court 

erred by awarding legal custody of the children at a “review hearing” without proper 

notice and an opportunity to be heard. For multiple reasons, we agree.

{¶22} First and foremost, we emphasize that no motion was filed with the 

trial court requesting that legal custody of the children be granted to their temporary 

custodians pursuant to R.C. 2151.353(A)(3) or Juvenile Rule 34. Both the statute 

and the rule require a motion to be filed for legal custody to be granted. Revised 

Code 2151.353(A)(3) reads as follows:

(A) If a child is adjudicated an abused, neglected, or dependent 

child, the court may make any of the following orders of 

disposition:

* * *

(3) Award legal custody of the child to either parent or to any 

other person who, prior to the dispositional hearing, files a motion 

requesting legal custody of the child or is identified as a proposed 

legal custodian in a complaint or motion filed prior to the 

dispositional hearing by any party to the proceedings. A person 

identified in a complaint or motion filed by a party to the 

proceedings as a proposed legal custodian shall be awarded legal 

custody of the child only if the person identified signs a statement 

of understanding for legal custody[.]

Similarly, Juv.R. 34(D)(3) reads: “If a child is adjudicated an abused, neglected, or 

dependent child, the court may * * * [a]ward legal custody of the child to either 
Case No. 3-22-18, 19 and 20

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parent or to any other person who, prior to the dispositional hearing, files a motion 

requesting legal custody[.]”

{¶23} Ohio Appellate Courts have held that “it is well settled that a nonparent 

who seeks legal custody of a child must file a motion for legal custody pursuant to 

R.C. 2151.353(A)(3).” (Emphasis added.) In re K.F., 12th Dist. Clermont No.

CA2020-10-061, 2021-Ohio-1183, ¶ 74, citing In re L.R.T., 12th Dist. Butler Nos. 

CA2005-03-071 and CA2005-04-082, 2006-Ohio-207, ¶ 17 (stating that “[b]ecause 

appellee failed to file a motion requesting legal custody of L.R.T. at least seven days 

before the dispositional hearing, the trial court erred as a matter of law in awarding 

legal custody to her,” and noting that compliance with procedural requirements of 

R.C. 2151.353 and Juv.R. 34 “is mandatory”). The statute and the rule are clear in 

requiring a motion, and in the absence of one, it was erroneous for the trial court to 

award legal custody of the children to their temporary custodians.

{¶24} Notably, the trial court attempted to circumvent the controlling statute 

and the juvenile rule by contending that it had inherent authority to review and 

change its prior orders pursuant to R.C. 2151.417(A) and (B), which read as follows:

(A) Any court that issues a dispositional order pursuant 

to section 2151.353, 2151.414, or 2151.415 of the Revised 

Code may review at any time the child’s placement or custody 

arrangement, the case plan prepared for the child pursuant 

to section 2151.412 of the Revised Code, the actions of the public 

children services agency or private child placing agency in 

implementing that case plan, the child’s permanency plan if the 

child’s permanency plan has been approved, and any other 
Case No. 3-22-18, 19 and 20

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aspects of the child’s placement or custody arrangement. In 

conducting the review, the court shall determine the 

appropriateness of any agency actions, the safety and 

appropriateness of continuing the child’s placement or custody 

arrangement, and whether any changes should be made with 

respect to the child’s permanency plan or placement or custody 

arrangement or with respect to the actions of the agency under 

the child’s placement or custody arrangement. Based upon the 

evidence presented at a hearing held after notice to all parties and 

the guardian ad litem of the child, the court may require the 

agency, the parents, guardian, or custodian of the child, and the 

physical custodians of the child to take any reasonable action that 

the court determines is necessary and in the best interest of the 

child or to discontinue any action that it determines is not in the 

best interest of the child.

(B) If a court issues a dispositional order pursuant to section 

2151.353, 2151.414, or 2151.415 of the Revised Code, the court 

has continuing jurisdiction over the child as set forth in division 

(F)(1) of section 2151.353 of the Revised Code. The court may 

amend a dispositional order in accordance with division (F)(2) of 

section 2151.353 of the Revised Code at any time upon its own 

motion or upon the motion of any interested party. The court shall 

comply with section 2151.42 of the Revised Code in amending any 

dispositional order pursuant to this division.

{¶25} Contrary to the trial court’s analysis of R.C. 2151.417, and the 

appellee’s argument supporting the same, a plain reading of the statute establishes

that any changes have to be “based upon the evidence presented at a hearing after 

notice to all parties[.]” Importantly, the parties here were never notified of a legal 

custody hearing and there was no actual evidence4 presented. The “review hearing”

4 There was no sworn testimony presented at the hearing whatsoever. The legislature has mandated that 

“[b]efore testifying, a witness shall be sworn to testify the truth, the whole truth, and nothing but the truth.” 

R.C. 2317.30. The oath or affirmation is a prerequisite to the testimony of a witness and a trial court errs by 
Case No. 3-22-18, 19 and 20

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that was scheduled began with the government merely wanting to “give a brief 

update as to the status of the case for the Court” before the trial court sua sponte

turned the matter into a legal custody hearing. The hearing that the appellants were 

on notice for is entirely different than one where fundamental parental rights are at 

issue.5

{¶26} Regardless, completely notwithstanding the prior point, the trial 

court’s contention that R.C. 2151.417 gives it inherent authority to award legal 

custody on its own motion, without notifying the parents that a legal custody hearing 

is proceeding, and without taking any actual testimony, directly conflicts with the 

specific stated requirements of R.C. 2151.353 and Juv.R. 34 cited above. “It is a 

well settled rule of statutory construction that where a statute couched in general 

terms conflicts with a specific statute on the same subject, the latter must control.” 

Humphrys v. Winous Co., 165 Ohio St. 45, 48, State v. Taylor, 113 Ohio St.3d 297, 

2007-Ohio-1950, ¶ 12. Thus we do not agree that R.C. 2151.417 controls here when 

R.C. 2151.353 had not been complied with.

relying on unsworn testimony in reaching its decision. Allstate Ins. Co. v. Rule, 64 Ohio St.2d 67, 69-70

(1980).

5 Although “due process” lacks a precise definition, courts have long held that due process requires both 

notice and an opportunity to be heard. In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 12, 

citing Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4 S.Ct. 663 (1884); Caldwell v. Carthage, 49 

Ohio St. 334, 348 (1892). “An elementary and fundamental requirement of due process in any proceeding 

which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise 

interested parties of the pendency of the action and afford them an opportunity to present their 

objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652 (1950). 
Case No. 3-22-18, 19 and 20

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{¶27} We are mindful of the fact that the parents may have shown little 

cooperation and that the trial court was attempting to do what it felt was in the 

children’s best interests. Nevertheless, statutory procedures providing due process 

must be followed before legal custody can be properly granted to the temporary 

custodians. For all of these reasons we find that the trial court erred. Therefore, 

appellants’ assignment of error is sustained.

Conclusion

{¶28} For the foregoing reasons, the appellants’ assignment of error is 

sustained and the judgments of the Crawford County Common Pleas Court, Juvenile 

Division, are reversed. These causes are remanded for further proceedings.

Judgments Reversed and

Causes Remanded

MILLER and WILLAMOWSKI, J.J., concur.

/jlr