The Honorable William C. Hayes
AGO 2018-16
No. 2018-016
Ohio Attorney General Opinion
Ohio Attorney General
July 2, 2018
The
Honorable William C. Hayes
Licking
County Prosecuting Attorney
20
South Second Street
Newark,
Ohio 43055
SYLLABUS:
When an
abused, neglected, or dependent child has been committed to
the temporary or permanent custody of a public children
services agency and placed by the public children services
agency in a private residential facility in another state,
and the other state is a member of the Interstate Compact on
the Placement of Children, the costs of educating the child
shall be paid by the school district determined by the court
pursuant to R.C. 2151.362(A). The court shall determine which
school district shall bear the cost of education by applying
R.C. 3313.64(C)(1) or (C)(2). (1965 Op. Att’y Gen. No.
65-16, overruled, as a result of legislative enactment.)
Dear
Prosecutor Hayes:
You
have requested an opinion whether education costs, for a
child who is in the custody of a public children services
agency and placed in a private residential facility in a
state other than Ohio, may be paid by the board of education
of the child’s home school district or another public
entity in Ohio. You have explained that the public children
services agency in Licking County has legal custody of a
child.
[1] The child suffers from severe
behavioral problems and there is no suitable placement
available for him in Ohio. Accordingly, the agency has placed
him in a private residential facility in Virginia. The
residential facility provides education to its residents
through another private entity. You wish to know whether the
board of education of the child’s home school district
in Ohio is responsible for paying the tuition costs related
to the education he receives during his placement in the
residential facility in Virginia.
[2]
Vesting
Custody of a Child in a Public Children Services
Agency
Before
addressing your question, it is helpful to understand the
ways in which a child may be committed to the custody of a
public children services agency. For the purpose of R.C.
Chapter 2151, “legal custody” is:
a legal status that vests in the custodian the right to have
physical care and control of the child and to determine where
and with whom the child shall live, and the right and duty to
protect, train, and discipline the child and to provide the
child with food, shelter, education, and medical care, all
subject to any residual parental rights, privileges, and
responsibilities. [3]
R.C.
2151.011(B)(21) (footnote added). Generally, when a court
awards legal custody of a child as a disposition under R.C.
2151.353, legal custody of the child is vested in a person,
rather than in a public children services agency.
See R.C. 2151.353(A)(3) (juvenile court may make an
order of disposition that “[a]ward[s] 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”); R.C. 2151.412(H)(4)-(5). An award of
legal custody is intended to be permanent and may not be
modified or terminated
unless [the court] finds, based on facts that have arisen
since the order was issued or that were unknown to the court
at the time, that a change has occurred in the circumstances
of the child or the person who was granted legal custody, and
that modification or termination of the order is necessary to
serve the best interest of the child.
R.C. 2151.42(B).
In
contrast, a child may be committed to the temporary or
permanent custody of a public children services agency as a
disposition ordered by a court following the adjudication of
the child as an abused, neglected, dependent, unruly, or
delinquent child. R.C. 2151.353(A)(2)(a) (commitment of an
abused, neglected, or dependent child to the temporary
custody of a public children services agency); R.C.
2151.353(A)(4) (commitment of an abused, neglected, or
dependent child to the permanent custody of a public children
services agency); R.C. 2151.354(A)(1) (disposition of an
unruly child may include any disposition authorized by R.C.
2151.353); R.C. 2152.19(A)(1) (disposition of a delinquent
child may include any disposition authorized by R.C.
2151.353). Alternatively, a public children services agency
may obtain temporary custody of a child if the agency and the
parents, legal guardian, or other person having custody of a
child, agree to place the child in the temporary custody of
the agency for up to thirty days, without an order from a
juvenile court. R.C. 5103.15(A)(1).
[4] A final way in which
custody of a child may be vested in a public children
services agency is if the agency and the parents, legal
guardian, or other person having custody of a child enter
into an agreement surrendering the child into the permanent
custody of the agency. R.C. 5103.15(B). It is our
understanding that you are concerned about a child who has
been committed to the temporary custody of a public children
services agency as an adjudicated abused, neglected, or
dependent child.
The
term “temporary custody” denotes “legal
custody of a child who is removed from the child’s
home, which custody may be terminated at any time at the
discretion of the court, or if the legal custody is granted
in an agreement for temporary custody, by the person who
executed the agreement.” R.C. 2151.011(B)(55).
“Permanent custody” is used to describe “a
legal status that vests in a public children services agency
or a private child placing agency, all parental rights,
duties, and obligations, including the right to consent to
adoption, and divests the natural parents or adoptive parents
of all parental rights, privileges, and obligations,
including all residual rights and obligations.” R.C.
2151.011(B)(31). Once a child is committed to the permanent
custody of a public children services agency, parental rights
are terminated and steps may be taken for the child to be
adopted. See R.C. 2151.417(G)(4).
Custody
of a child is distinguishable from a child’s placement.
“[T]he placement of a child involves the making of a
living arrangement for that child and does not require a
change in the legal custody of the child.” 1995 Op.
Att’y Gen. No. 95-032, at 2-168 n.6; see
generally R.C. 2151.011(B)(36)
(“‘[p]lacement for adoption’ means the
arrangement by a public children services agency or a private
child placing agency with a person for the care and adoption
by that person of a child of whom the agency has permanent
custody”); R.C. 2151.011(B)(37)
(“‘[p]lacement in foster care’ means the
arrangement by a public children services agency or a private
child placing agency for the out-of-home care of a child of
whom the agency has temporary custody or permanent
custody”); R.C. 5103.23, article II(D) (for the purpose
of the Interstate Compact on the Placement of Children,
“‘[p]lacement’ means the arrangement for
the care of a child in a family free or boarding home, or in
a child-caring agency or institution but does not include any
institution caring for the mentally ill, mentally defective,
or epileptic, or any institution primarily educational in
character, and any hospital or other medical
facility”). A child’s placement refers to where a
child lives, while custody refers to a legal status held by a
person or entity. When a juvenile court commits a child to
the temporary or permanent custody of a public children
services agency, the court has determined the child’s
custody, leaving determinations as to the child’s
placement to the public children services agency. In re
V.B., 12th Dist. No. CA2014-05-008, 2014-Ohio-5492, 2014
Ohio App. LEXIS 5324, at ¶ 13 (when a child is committed
to the temporary custody of a public children services
agency, the agency determines the child’s placement and
the juvenile court may not order the agency to place the
child in a particular institution); In re J.D., 172
Ohio App.3d 288, 2007-Ohio-3279, 874 N.E.2d 858, at ¶ 18
(Franklin County) (same as previous parenthetical); see
also In re S.M., 12th Dist. No. CA2009-02-008,
2009-Ohio-4677, 2009 Ohio App. LEXIS 3968, at ¶ 15-16
(if after custody is vested in a public children services
agency, the agency’s placement of a child is
challenged, the juvenile court may review the child’s
placement pursuant to R.C. 2151.417).
Placement
in a Facility Outside Ohio
A
public children services agency shall “[p]rovide such
care as the public children services...
