In re E.S. , 2021 Ohio 3797 ( 2021 )

[Cite as In re E.S., 2021-Ohio-3797.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: E.S. : JUDGES:
: Hon. Craig R. Baldwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
:
:
: Case No. 2021-CA-00011
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2021 C 018
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 25, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
STEVEN KINGSOLVER & JESSICA L. MONGOLD
TINA KINGSOLVER Post Office Box 502
11244 Ridenour Road Lancaster, OH 43130
Thornville, OH 43076
Perry County, Case No. 2021-CA-00011 2
Wise, Earle, J.
{¶ 1} Former legal custodians Steven Kingsolver and Tina Kingsolver appeal the
May 24, 2021 judgment of the Perry County Court of Common Pleas Juvenile Division
granting legal custody of E.S to his paternal grandmother S.W. Plaintiff-Appellee is Perry
County Children's Services (PCCS).
FACTS AND PROCEDURAL HISTORY
{¶ 2} This matter comes before this court following reversal and remand in In the
Matters of: Z.S, C.S, and E.S., 5th Dist. Perry Nos. 20-CA-00002, 20-CA-00003, 20-CA-
00004, 2021-Ohio-118, a matter involving legal custody of three minor children. In that
case we found the 90-day deadline set forth in R.C. 2151.35(B)(1) within which to conduct
a dispositional hearing had been exceeded and remanded the matter to the trial court
with instructions to enter an order of dismissal of the complaint without prejudice.1
{¶ 3} Appellants statement of facts and statement of the case are nebulous,
contain no references to the record, and appear editorial. Moreover, Appellants have
failed to provide a transcript of the proceedings upon remand. From the available record
including the judgment entry appealed from, we discern the following events took place
following our remand to the trial court.
{¶ 4} Two children had aged out by the time this matter was remanded to the trial
court on January 19, 2021. On January 26, 2021 PCCPS obtained ex parte emergency
custody of the remaining minor child, E.S. A new complaint was filed the following day
and an ex parte review hearing was held. Neither of the Appellants attended. The trial
1
Hon. William B. Hoffman dissenting.
Perry County, Case No. 2021-CA-00011 3
court found the ex parte order necessary and proper, maintained E.S. in the temporary
custody of PCCPS, and entered a denial of the complaint on behalf of Appellants.
{¶ 5} A trial was held on March 3, 2021. Appellants attended. The court heard
testimony from two PCCPS case workers, a court services worker who testified regarding
the Appellant's drug testing and level of compliance with drug and alcohol counseling,
and E.S.'s paternal grandmother S.W. Appellants cross-examined all except S.W. They
presented no testimony or evidence of their own.
{¶ 6} At the conclusion of the trial, the trial court found E.S. to be a dependent
child based on the drug activity of Appellants and their refusal to properly complete a case
plan. The trial court therefore found an award of legal custody of E.S. to S.W. was within
the best interests of E.S.
{¶ 7} Appellants timely appealed. They raise one assignment of error for our
consideration as follows:
I
{¶ 1} "THE TRIAL COURT ERRED BY RULING AGAINST THE MANIFEST
WEIGHT OF EVIDENCE AFTER HEARING TESTIMONY THAT ELIMINATED THE
EVIDENCE THAT WAS USED TO BEGIN THE CASE"
{¶ 2} Appellants appear to advance a manifest weight argument, an analysis that
cannot be undertaken without a complete record.
{¶ 3} While we understand Appellants filed this appeal pro se, "like members of
the bar, pro se litigants are required to comply with rules of practice and procedure."
Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9.
Appellants have failed to provide this court with a transcript of the proceedings below.
Perry County, Case No. 2021-CA-00011 4
Pursuant to App.R. 9(B), it is the appellant's duty to file the transcript or any parts of the
transcript that are necessary for evaluating the trial court's decision. Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). "This is necessarily so
because an appellant bears the burden of showing error by reference to matters in the
record." Id. at 199, citing State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d 1355 (1978).
Without the filing of a transcript (or a statement of the evidence or proceedings under
App.R. 9(C) or an agreed statement under App.R. 9(D)), this court has nothing to pass
upon and must presume the validity of the trial court's proceedings and affirm. Id. This
means that "we must presume that the trial court acted with regularity and did not abuse
its discretion." Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564(1988).
{¶ 4} Although "an appellate court will ordinarily indulge a pro se litigant where
there is some semblance of compliance with the appellate rules," Oyler v. Oyler, 5th Dist.
Stark App. No. 2014CA00015, 2014-Ohio-3468, ¶¶ 18-19, we find the Appellants
noncompliance with the appellate rules is significant and their brief lacks any cogent
argument. "[F]airness and justice are best served when a court disposes of a case on the
merits," however, we find this brief reflects a substantial disregard for the court rules which
cannot be cured. DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 193, 431 N.E.2d 644(1982).
{¶ 5} The Appellants sole assignment of error is therefore overruled.
Perry County, Case No. 2021-CA-00011 5
{¶ 6} The judgment of the Perry County Court of Common Pleas Juvenile Division
is affirmed.
By Wise, Earle, J.
Baldwin, P.J. and
Delaney, J. concur.
EEW/rw