'Can we go home now?': expediting adoption and termination of parental rights appeals in Ohio state courts.

• Author: Wawrose, Susan C.

1. INTRODUCTION

   Two years ago, the Ohio Supreme Court amended its rules and those of Ohio's intermediate appellate courts in order to fast-track appeals of cases involving termination of parental rights ("TPR") and adoption of minor children. (1) Three of Ohio's twelve appellate districts already had local rules to expedite or accelerate these types of appeals, (2) but in some districts, the amended rules established procedures that were entirely new.

   The major impetus behind the court's amendments to the rules was to move children out of foster care and into permanent adoptive homes more quickly. (3) Further, by amending the rules of the intermediate appellate courts, the court attempted to impose a greater consistency in the progress of these types of appeals across the state. (4)

   Both sets of amendments expressly abbreviate the time allowed to complete various stages of the appeals process. (5) If the deadlines established by the rules were met, both courts would achieve the goal of accelerating the resolution of TPR and adoption cases. (6) The amendment to the intermediate appellate court rules also prescribes a more consistent process across the twelve appellate districts. But, substantial differences in the progression of TPR and adoption cases from one appellate district to another persist because courts implement the amendments with their own internal operating procedures and practices.

   This Article analyzes the mechanisms for expediting TPR and adoption appeals in Ohio. Part II discusses the background and the rationale for promulgating the amendments to the rules. Part III describes the amendments to Ohio's Rules of Appellate Procedure and the Rules of Practice of the Supreme Court of Ohio. This section also evaluates the success of the amendments in meeting the declared goals of speed and consistency. Part IV concludes that Ohio's bold decision to promulgate amendments that detail the progression of expedited appeals (7) should be followed by state-wide efforts to define and measure their success, for the amendments can best serve dependent children if their ramifications are carefully evaluated and considered.

2. BACKGROUND AND RATIONALE FOR EXPEDITING ADOPTION AND TPR APPEALS

   Moving children without undue delay from foster care into safe, permanent families--whether through reunification with the child's biological family or through termination of the birth family's parental rights and adoption--has been a focus of child welfare policy and legislation since at least the 1980s. (8) The resulting federal and state efforts to accomplish an appropriately swift resolution to child abuse, neglect, and dependency cases have come in many different forms. A patchwork of federal and state legislation, court rules, and internal operating procedures function together to set agency and court deadlines for evaluating and reporting on cases, filing briefs, scheduling oral arguments, and completing judicial decisions in TPR and adoption appeals. (9) Moreover, as in any statutory or regulatory scheme, new policies, goals, ideas, and needs regularly lead the courts and legislators to change and adjust the existing patchwork.

   1. Changes in Federal and Ohio Legislation

      The recent changes to Ohio's court rules follow on the heels of landmark federal legislation, the Adoption and Safe Families Act ("AFSA" or "federal Act") (10) and Ohio's complementary state legislation aimed at reducing the time abused, neglected, or dependent children spend in foster care. (11)

      In 1997, Congress enacted AFSA in order to reduce the number of children in foster care by doubling the number of adoptions, measured annually, by 2002. (12) To achieve this increase in adoptions, AFSA accelerated key procedural requirements at the trial court level. Among other things, AFSA requires the first permanency hearing to be held twelve months from the time a child first enters foster care, rather than the previous duration of eighteen months. (13) Further, it requires, with some exceptions, the child welfare agency to move to terminate the parental rights of parents whose children have spent fifteen of the last twenty-two months in foster care. (14) In some circumstances, AFSA allows the agency to plan simultaneously for reunification and adoption (15) or to forego entirely attempts at reunification with the birth parents. (16) AFSA also encourages state agencies to move cases to conclusion by offering them incentive payments for successful adoptions (17) and technical assistance with the adoption process. (18)

      In 1999, Ohio also amended its adoption laws. (19) These amendments require Ohio courts to consider "the best interest of the child" when deciding whether to return abused, neglected or dependent children to their parents, (20) making the "child's health and safety" the "paramount concern." (21)

      The Ohio legislation set deadlines resembling AFSA's provisions, requiring, again with some exceptions, children's services agencies to move for permanent custody (22) after a child has spent twelve out of the past twenty-two months in the temporary custody of a public or private children's service agency. (23) The Ohio act also set out a clear method for determining the date on which a child enters the temporary custody of the agency. (24)

   2. The Gap Left by AFSA and the Ohio Legislation

      Criticism of AFSA and the corresponding change in Ohio law has come from many fronts. Some critics express concern that AFSA pushes too aggressively and successfully for adoption over family reunification, to the particular detriment of low-income and minority families, and directs insufficient financial and other resources to bringing birth families back together. (25) Overly burdened child welfare agencies and trial courts required to implement the new provisions without additional support systems argue that increased funding is needed to assist with reduction of case backlog and with the implementation of computerized tracking systems, training, model courts, and other programs. (26)

      However, some of the most vocal criticism in Ohio was not that the legislation accomplished too much change, but that it accomplished too little. (27) Both the federal and Ohio AFSA alter the pace of a case at the trial court level, but leave unchanged the progress of a case after it leaves the trial court. Neither the federal nor the Ohio act addresses the delays that can--and do--occur after a judgment is entered in the trial court, and a notice of appeal is filed. So, despite the new legislation, even cases that progressed through the trial court in twelve months could still linger for years on appeal. (28)

3. THE AMENDMENTS TO OHIO'S APPELLATE AND SUPREME COURT RULES OF PRACTICE: AN EFFORT TO REDUCE DELAY IN THE APPELLATE PROCESS

   To reduce the delay that remained inherent in the appellate process even after the new laws were enacted, Ohio amended both the Rules of Practice of the Supreme Court and the Rules of Appellate Procedure in 2000. (29) By doing so, Ohio joined the thirty-seven other states that expedite TPR appeals and the nineteen that expedite adoption appeals. (30) The amendments to the practice rules, along with the internal operating procedures that implement them, and, in three of Ohio's appellate districts, the local rules on expedition, compose the core of Ohio's approach to reducing the potentially lengthy appeals process.

   1. Expediting Appeals in Ohio's Intermediate Appellate Courts

      Appeals of TPR and adoption proceedings to one of the state's twelve intermediate appellate courts are governed by the Ohio Rules of Appellate Procedure and the local rules of each appellate district. (31) Ohio Rule of Appellate Procedure 11.2(C) is the recent amendment to the appellate rules that expedites adoption and TPR appeals. (32)

      The number of all Rule 11.2(C) appeals filed each year varies widely among the appellate districts, from a reported low of about ten per year in the districts serving the cities of Cincinnati and Dayton to a high of sixty-five in the Fifth Appellate District in east-central Ohio, with a mean average of about ten to twenty cases per year in eight of the twelve districts. (33) Since all of Ohio's appeals courts have several hundred new cases filed each year, (34) Rule 11.2(C) appeals are but a small percentage of the appellate caseload overall.

      1. Initiating the Appeal: Filing the Notice of Appeal and Transmitting the Record

         In Ohio appellate courts, preparation and transmission of the trial court record can follow one of three tracks. (35) In an ordinary appeal, the appellate rules require the record to be prepared and transmitted by the thai court clerk to the appellate court clerk within forty days. (36) If the appeal is "accelerated" (different from expedited), the trial court must transmit the record within twenty days. (37)

         TPR and adoption appeals fall into the third category: expedited appeals. (38) In this type of expedited appeal, the court reporter is asked simply to "give[ ] priority" to preparation of the record. (39) Although relatively imprecise, this instruction seems to reflect the supreme court's conviction that adoption and TPR appeals should progress at least as quickly as ordinary appeals and, possibly, as fast as accelerated appeals. Yet, most of the district courts report that completion of transcripts in these appeals takes from forty to sixty days, longer than the time allotted for either the ordinary or the accelerated track. (40)

         This non-compliant result illustrates how an appeal can begin to stall in its early stages. It also highlights the difficulty that can accompany the use of language that is open to some degree of interpretation--such as the requirement that preparation of the record should be "given priority." Here, even a reasonable...