Foster child battle goes to Ohio Supreme Court

By Craig Kelly -

COLUMBUS — With two separate court orders from two separate counties concerning a 21-month-old girl in the foster care system, the fate of this child is now in the hands of the Ohio Supreme Court.

For nearly 20 months, Brian and Kelly Anderson, of Celina, had served as foster parents for the girl, referred to as M.S. in a writ of prohibition filed in the Supreme Court Tuesday by Allen County Children Services. That agency gained temporary custody of the child after concerns arose of illegal drug use by the birth mother, according to the writ.

The Andersons, having bonded with the child, filed a petition in to adopt M.S. in Mercer County Probate Court with the birth mother’s consent. However, on March 16, Children Services removed M.S. from the Andersons’ home, placing her with a maternal aunt in Indiana. On March 31, Judge Mary Pat Zitter issued an adoptive placement order calling on M.S. to be returned, but Allen County Juvenile Court issued a separate order a day later denying that motion. Currently, the child still resides in Indiana.

“This case presents the Court with the question of the potentially conflicting roles of the foster parent in dependency, neglect and abuse proceedings,” Judge Glenn Derryberry wrote in his decision. “In child protection proceedings, the foster parents are the agents of the child protective services agency with which they contract. A foster parent has no individual standing in the proceeding.”

In the complaint’s memorandum, which was available for public view on the Supreme Court’s website until being sealed Thursday afternoon, Children Services cited previous Supreme Court rulings supporting the agency retaining custody and placement rights.

In a 2000 case, the Court ruled that “once a court of competent jurisdiction has begun the process of deciding the long-term fate of a child, all other courts are to refrain from exercising jurisdiction over that matter,” according to the memorandum. A 2006 ruling supported this, saying, “When an issue concerning parenting of a minor is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child.”

However, Anderson pointed to the Ohio Revised Code to support his position that the birth mother had every right to determine where M.S. would be placed.

“Ohio Revised Code 3107.06 lists who is required to consent to an adoption,” he said. “One of the ones listed is the birth mother. If you look in 3107.07, it says whose consent is not necessary for adoption, and it lists any ‘guardian, custodian or other party who has temporary custody of the child.’”

Anderson also pointed to a 1996 Appellate Court ruling noting that “the probate court may exercise its jurisdiction in adoption proceedings while juvenile court has continuing jurisdiction over custody.”

Despite all the legal posturing, Anderson said, there is a human cost to this.

“In the middle of this, there’s a little girl,” he said. “In the end, I pray she can be returned to us, because I feel this is the right thing to do.”

By Craig Kelly

Reach Craig Kelly at 567-242-0390 or on Twitter @Lima_CKelly.

Reach Craig Kelly at 567-242-0390 or on Twitter @Lima_CKelly.

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