In re Z.S. , 2021 Ohio 4079 ( 2021 )

[Cite as In re Z.S., 2021-Ohio-4079.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Z.S. : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
C.S. :
:
: Case Nos. 2021-CA-00009
: 2021-CA-00010
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case Nos. 2021 C 019,
2021 C 020
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 16, 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
Perry County, Case Nos. 2021-CA-00009, 2021-CA-00010 2
Thornville, OH 43076
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 Z.S and C.S to their father D.S. 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: E.S., Z.S. and C.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} On January 26, 2021 PCCS obtained ex parte emergency custody of Z.S
and C.S. A new complaint was filed the following day and an ex parte review hearing was
held. Neither of the Appellants attended. The trial court found the ex parte order
1
Hon. William B. Hoffman dissenting.
Perry County, Case Nos. 2021-CA-00009, 2021-CA-00010 3
necessary and proper, maintained Z.S. and C.S. in the temporary custody of PCCS, 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 PCCS case workers, a court services worker who testified regarding
the Appellants drug testing and level of compliance with drug and alcohol counseling, and
the children'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 Z.S and C.S to be
dependent 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 Z.S. and C.S to
their father D.S. was within the best interests of both children.
{¶ 7} Appellants timely appealed. They raise one assignment of error for our
consideration as follows:
I
{¶ 8} "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"
{¶ 9} Appellants appear to advance a manifest weight argument, an analysis
which cannot be undertaken without a complete record.
{¶ 10} 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 Nos. 2021-CA-00009, 2021-CA-00010 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).
{¶ 11} 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).
{¶ 12} The Appellants sole assignment of error is therefore overruled.
Perry County, Case Nos. 2021-CA-00009, 2021-CA-00010 5
{¶ 13} 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