In re G.T. , 2022 Ohio 654 ( 2022 )

[Cite as In re G.T., 2022-Ohio-654.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: G.T. : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 2021 CA 0066
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Juvenile Division, Case
No. 19-DEP-0028
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 7, 2022
APPEARANCES:
For Appellee RCCSB For Appellant-Mother
CHRISTOPHER W. ZUERCHER DARIN AVERY
Richland County Children’s Services Attorney for Mother
731 Scholl Road 105 Sturges Avenue
Mansfield, OH 44907 Mansfield, OH 44903
Richland County, Case No. 2021 CA 0066 2
Gwin, P.J.
{¶1} Appellant appeals the July 23, 2021 judgment entry of the Richland County
Court of Common Pleas, Juvenile Court, overruling Mother’s objections, adopting the
magistrate’s decision, and denying Mother’s motion to dismiss.
Facts & Procedural History
{¶2} M.G. is the Mother (“Mother”) of G.T., who was born on February 20, 2018.
S.T. is the father (“Father”) of G.T.
{¶3} On January 29, 2019, appellee Richland County Children’s Services Board
(“RCCSB”) filed a complaint alleging G.T. was a dependent and abused child. On the
same day, RCCSB also filed a motion for temporary custody, requesting the court place
G.T. in the temporary custody of his maternal grandparents with an order of protective
supervision to RCCSB. The trial court granted the motion on February 6, 2019. On
February 8, 2019, the trial court appointed attorney Jeanne Pitzer (“Pitzer”) as the
guardian ad litem for G.T.
{¶4} The trial court held a second adjudicatory hearing on March 5, 2019, and
set a final pre-trial conference for March 19, 2019. Counsel for Mother requested a
continuance of the March 19th date. The hearing was rescheduled to April 2, 2019. At
the hearing on April 2, 2019, the parties were unable to reach an agreement. Thus, the
parties requested a full evidentiary hearing as to whether G.T. was a dependent and/or
abused child. The judgment entry issued after the April 2nd hearing states, “[Father], with
representation of counsel and under oath, and [Mother], through counsel, each has
waived the timeliness requirements for dispositional hearing of R.C. 2151.35(B) * * * their
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counsel has assured the Court that he would forthwith supply the Court with written
waivers executed by each said parent.”
{¶5} On April 16, 2019, both Mother and Father each executed a written
document entitled “Time Waiver (Ohio Juvenile Rule 34(A) & O.R.C. 2151.35(B)(1))” that
was filed with the trial court on April 17, 2019. The waiver provides as follows:
I have been advised and understand that pursuant to Ohio Juvenile
Rule 34(A) and O.R.C. 2151.35(B)(1) the adjudication and disposition of
this case must occur, if at all, within ninety (90) days of the filing of the
complaint; and that if case adjudication and disposition does not occur
within the specified ninety (90) day period of time, this case is subject to
being dismissed with the right of the State to refile the case.
Have been so advised, I hereby acknowledge that I understand my
right to have this case adjudicated and disposed of within the specified
ninety (90) day period of time. Having been so advised and acknowledging
my understanding herein, I hereby expressly and voluntarily waive (give up)
my right to have this case adjudicated and disposed of within the specified
ninety (90) day period of time, and consent to case adjudication and/or
disposition occurring beyond ninety (90) days of the filing of the case
Complaint.
{¶6} Counsel for Mother and Father signed each of the waivers and expressly
acknowledged, “that prior to the above signing I have informed my client of the time
requirements specified under Ohio Juvenile Rule 34(A) and O.R.C. 2151.35(B)(1). I
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represent to the Court that it is counsel’s professional opinion that my client entered into
this case adjudication and disposition time waiver, knowingly and voluntarily.”
{¶7} Mother failed to appear for a May 7, 2019 hearing. At the hearing, RCCSB
orally withdrew the abuse allegations. Father appeared at the hearing, waived his trial
rights, and agreed G.T. was a dependent child. Mother’s counsel did not object on her
behalf. The trial court found by clear and convincing evidence that, based upon the
agreement of Father, lack of objection by Mother’s counsel, and the recommendation of
RCCSB, G.T. is a dependent child pursuant to R.C. 2151.04(C). Father additionally
agreed that it was in the best interest of G.T. to be placed in the temporary custody of
G.T.’s maternal grandparents. The trial court stated, “based on the agreement of Father,
the testimony of Father to Mother’s medical condition, lack of objection by Mother’s
counsel, and the recommendation of Children’s Services, this Court finds by a
preponderance of the evidence that it serves the child’s best interests to be placed in the
temporary custody of maternal grandfather * * * and to grant an order of protective
supervision to children services.”
{¶8} The magistrate issued a decision on May 20, 2019, finding G.T. is a
dependent child; placing G.T. in the temporary custody of Maternal Grandfather; and
granting an order of protective supervision to RCCSB. The trial court entered a judgment
entry on June 6, 2019, approving and adopting the magistrate’s May 20th decision.
{¶9} The trial court held a review hearing on August 2, 2019. Mother did not
appear at the hearing. The trial court continued the temporary placement with maternal
grandparents and continued the order of protective supervision to RCCSB. The trial court
held another review hearing on September 20, 2019. Mother did not appear at the
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hearing. The court continued temporary custody to maternal grandparents and the order
of protective supervision to RCCSB.
{¶10} On January 13, 2020, RCCSB filed a motion for disposition, requesting
temporary custody to the maternal grandparents be terminated, the order of protective
supervision be terminated, and that temporary custody be granted to RCCSB.
{¶11} On January 28, 2020, B.T., the child’s paternal grandmother, filed a motion
to intervene and motion to modify disposition so that she could be named the legal
custodian of G.T. Father filed a motion for legal custody on February 10, 2020.
{¶12} The magistrate held a hearing on February 28, 2020. Mother and Father
did not appear for the hearing. The magistrate denied B.T.’s motion to intervene. B.T.
filed objections to the magistrate’s order. B.T. filed a second motion for disposition on
March 12, 2020, requesting she be named the legal custodian of G.T. The trial court
denied both of B.T.’s motions on June 3, 2020. B.T. filed another motion for legal custody
on October 30, 2020. The trial court denied the motion.
{¶13} Mother filed a motion for disposition and legal custody on March 3, 2020.
Mother and Father filed numerous motions regarding visitation. On July 21, 2020, Pitzer
was appointed as attorney for G.T. G.T. was then appointed a separate guardian ad
litem.
{¶14} The magistrate held a hearing on September 24, September 25, and
November 6 of 2020 on the following motions: motion of RCCSB requesting temporary
custody to maternal grandparents be terminated, the order of protective supervision be
terminated, and temporary custody be granted to RCCSB; Father’s motion for legal
custody for himself and/or his mother B.T.; Mother’s motion for disposition asking the child
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be returned to her custody; and multiple motions and proposed case plan amendments
with regards to visitation.
{¶15} The magistrate issued a judgment entry on December 7, 2020, finding, by
a preponderance of the evidence, that custody to Mother, custody to Father, and custody
to B.T. was not in G.T.’s best interests. Rather, it was in the best interest of G.T. that
temporary custody be granted to RCCSB. The magistrate thus denied Mother and
Father’s motions for custody, and granted temporary custody to RCCSB.
{¶16} Mother filed objections to the magistrate’s decision on December 18, 2020.
The trial court issued a judgment entry on July 23, 2021, overruling Mother’s objections,
and adopting the December 7, 2020 magistrate’s decision.
{¶17} Mother and Father filed a joint motion to dismiss on March 3, 2021, for the
failure to conduct a dispositional hearing within 90 days of the filing of the complaint.
Mother and Father noted that RCCSB filed its complaint on January 29 2019, but did not
hold a dispositional hearing until May 7, 2019, eight days after the April 29, 2019 deadline,
and did not issue a judgment entry on the disposition until June 6, 2019. While Pitzer, as
counsel for G.T., initially signed the motion, she subsequently withdrew her endorsement
of the motion to dismiss in a written “motion to withdraw support.” Father and Mother
each filed a memorandum in support of the motion to dismiss on April 9, 2021. RCCSB
filed a memorandum in opposition to the motion to dismiss on April 30, 2021.
{¶18} The magistrate issued a decision on May 24, 2021 denying the motions to
dismiss. The magistrate found: (1) the waivers both Mother and Father executed were
effective; (2) the parents are barred from asserting their motion to dismiss by the doctrine
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of laches and fundamental fairness; and (3) any delay in the dispositional hearing was
due to the acts of the parents and/or their counsel.
{¶19} Mother filed objections to the magistrate’s decision on June 7, 2021.
{¶20} The trial court issued a judgment entry on July 23, 2021, overruling Mother’s
objections and adopting the magistrate’s decision. The trial court distinguished the Ohio
Supreme Court’s decision of In re K.M., noting that the Ohio Supreme Court did not
address whether dismissal of a dependency, neglect, or abuse complaint is automatically
required when there is no direct appeal of the original case disposition. The trial court
also distinguished the two previous cases issued by this Court, finding that neither case
considered an explicit waiver of the ninety-day period or the issue of res judicata.
{¶21} The trial court found that any error in failing to dismiss was an error in the
court’s exercise of jurisdiction, rendering the June 6th judgment entry voidable, not void,
and thus it cannot be challenged via a collateral attack. The trial court found Mother failed
to preserve her objection by failing to directly appeal the June 6, 2019 judgment entry,
and is now precluded by the doctrine of res judicata from challenging any error related to
the ninety-day dismissal rule. Further, that Mother had no standing to object to the
absence of a waiver executed on behalf of G.T. because a party cannot appeal an alleged
violation of another party’s rights. Third, the trial court found that the dismissal provision
of R.C. 2151.35(B)(1) does not divest a juvenile court of post-dispositional continuing
jurisdiction under R.C. 2151.353(F)(1), because the two code sections must be read in
pari materia. Finally, the trial court stated the motion to dismiss should be overruled
because Mother executed an express written waiver of the ninety-day dismissal rule.
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{¶22} Mother appeals the July 23, 2021 judgment entry of the Richland County
Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶23} “I. THE COURT ERRED IN DECLINING TO DISMISS THE CASE
WITHOUT PREJUDICE.”
{¶24} Mother asserts the trial court committed error in failing to dismiss the case,
as it failed to hold the dispositional hearing within ninety-days of the filing of the complaint.
{¶25} According to the version of R.C. 2151.35(B)(1) in effect at the time of the
proceedings,
If the court at an adjudicatory hearing determines that a child is an
abused, neglected, or dependent child, the court shall not issue a
dispositional order until after the court holds a separate dispositional
hearing. * * * The dispositional hearing shall not be held more than ninety
days after the date on which the complaint in the case was filed.
If the dispositional hearing is not held within the period of time
required by this division, the court, on its own motion, or the motion of any
party or the guardian ad litem of the child, shall dismiss the complaint
without prejudice.
{¶26} RCCSB filed the complaint regarding G.T. on January 29, 2019. The
dispositional hearing in this case was not held until May 7, 2019, eight days after the time
limit contained in the version of R.C. 2151.35(B)(1) in place at the time of the proceedings
(on April 12, 2021, legislation became effective that allows the trial court, under certain
circumstances, an additional 45 days beyond the 90-day limit).
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{¶27} We find Mother’s argument not well-taken for two reasons: explicit waiver
and res judicata.
Explicit Waiver
{¶28} Mother first contends that the ninety-day dismissal rule cannot be explicitly
waived. She cites the Ohio Supreme Court’s decision of In re K.M., 159 Ohio St.3d 544,
2020-Ohio-995, 152 N.E.3d 245, in support of her argument. While the Ohio Supreme
Court held that the 90-day time limit is mandatory, the Court also held, “in the face of such
language, there can be no implicit waiver of the 90-day limit.” Id. The Supreme Court did
not limit explicit waivers. During the oral argument in the K.M. case, several of the justices
discussed and proposed the use of written waivers by parents of the 90-day limit.
{¶29} While this Court has followed the holding by the Supreme Court and
dismissed complaints without prejudice where a parent has not explicitly waived the 90-
day time limit, we have not addressed the issue of whether explicit waivers of the limit
contained in R.C. 2151.35(B) are permitted. In the Matters of Z.S., C.S., and E.S., 5th
Dist. Perry Nos. 20-CA-00002, 20-CA-00003 and 20-CA-00004, 2021-Ohio-118(dismissing case beyond the 90-day deadline when no explicit wavier). The other
appellate court districts in Ohio who have addressed the issue of whether explicit waivers
of the 90-day limit contained in R.C. 2151.35(B) are permitted have held that explicit
waivers are permitted. In the Matter of K.M. and A.M., 4th Dist. Highland No. 20CA4,
20CA6, 2020-Ohio-4476; In the Matter of L.S., 4th Dist. Ross No. 20CA3719, 2020-Ohio-
5561; In re D.G., 1st Dist. Hamilton No. C-200359, C-200371, 2021-Ohio-429.
{¶30} The parents who expressly waived the 90-day limit in In the Matter of K.M.
and A.M. and In the Matter of L.S. appealed the Fourth District’s determination that
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express waivers of the 90-day deadline are permitted. They specifically argued and
asked the Ohio Supreme Court to accept the proposition of law that express waivers of
the 90-day dispositional deadline contained in R.C. 2151.35(B) are not permitted. The
Ohio Supreme Court twice declined jurisdiction of the express waiver issue, once in 2020,
and once in 2021. In re K.M., 160 Ohio St.3d 1509, 2020-Ohio-6835, 159 N.E.3d 1164;
In the Matter of L.S., 162 Ohio St.3d 1439, 2021-Ohio-1399, 166 N.E.3d 1262.
{¶31} Accordingly, we conclude that express waivers are permitted. An express
waiver is defined as a “voluntary and intentional waiver.” Black’s Law Dictionary (11th
ed. 2019). In the instant case, the parents explicitly, voluntarily, and intentionally waived
the 90-day statutory safeguard to which the Supreme Court refers to in In re K.M. They
each signed a waiver that explicitly stated what rights they were waiving, and explained,
in detail, the time limitations contained in R.C. 2151.35(B). Additionally, counsel for each
parent signed each waiver and expressly acknowledged that he informed Mother and
Father of the time requirements contained in Juvenile Rule 34(A) and R.C. 2151.35(B).
Counsel stated in the document that it was his “professional opinion that my client entered
into this case adjudication and disposition time waiver, knowingly and voluntarily.” Mother
and Father clearly and specifically chose to extend the date of the dispositional hearing.
Thus, the trial court did not commit error in overruling the motion to dismiss based upon
explicit waiver.
{¶32} Mother also contends the waiver of Mother and Father are not sufficient in
this case because the First District stated that “when all parties explicitly agree to waive
the 90-day deadline the Ohio Supreme Court ruling does not mandate dismissal with
prejudice.” In re D.G., 1st Dist. Hamilton No. C-200359, C-200371, 2021-Ohio-429.
Richland County, Case No. 2021 CA 0066 11
Mother states that, pursuant to Juvenile Rule 2(Y), the GAL and the child are “parties” to
the case and, without a waiver from the GAL and the child, not all the parties have waived.
{¶33} We disagree with Mother. First, there is no discussion of the implicit or
explicit waiver of any party other than the parents in any of the cases Mother cites,
including the Ohio Supreme Court case of In re K.M.
{¶34} Further, “it is well-established that an appeal lies only on behalf of a party
aggrieved by the final order appealed from.” Ohio Contract Carriers Assn., Inc. v.
P.U.C.O., 140 Ohio St. 160, 42 N.E.2d 758 (1942). One party can neither object or appeal
by raising arguments on behalf of another person’s rights. See Moore v. City of
Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977; In re Mourey, 4th Dist.
Athens No. 02CA48, 2003-Ohio-1870 (“a party cannot appeal an alleged violation of
another party’s rights”); In the Matter of K.C., 7th Dist. Monroe No. 15 MO 0016, 2016-
Ohio-3229; C.R. v. K.R., 12th Dist. Fayette No. CA2019-02-002, 2019-Ohio-3621.
{¶35} Mother cannot raise issues on behalf of an allegedly aggrieved third-party,
particularly when that party could have appealed the issue to protect his or her own
interest. In re T.W., 1st Dist. Hamilton No. C-130080, 2013-Ohio-1754. In this case, G.T.
had an attorney appointed for him. This same attorney was the GAL, appointed to protect
the child’s interest, at the time the dispositional hearing was held outside the 90-day time
limit. Thus, she could have appealed the issue if she determined it was in the child’s best
interest or to protect his rights. The GAL/attorney for the child did not appeal, and, at the
trial court level, specifically and in writing, withdrew her support of the motion to dismiss
for the failure to hold the dispositional hearing within the 90-day deadline.
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{¶36} Mother lacked standing to raise arguments or claims on behalf of the child
or the GAL, as they are non-appealing parties. See In re T.W., 1st Dist. Hamilton No. C-
130080, 2013-Ohio-1754. Thus, we overrule the portion of her assignment of error
pertaining to any alleged errors with regard to the child or the GAL because they are not
parties to this appeal. Additionally, as discussed below, Mother’s argument as to the lack
of a waiver by other parties is barred by the doctrine of res judicata.
Res Judicata
{¶37} We further find the trial court did not commit error in denying Mother’s
motion to dismiss because her arguments are barred by the doctrine of res judicata.
{¶38} In the Supreme Court case of In re K.M., the mother made her motion to
dismiss prior to the start of the dispositional hearing. 159 Ohio St.3d 544, 2020-Ohio-
995, 152 N.E.3d 245. There was a timely motion to dismiss and the issue was presented
on direct appeal. Id. This case is distinguishable because Mother did not file her motion
to dismiss until twenty-one months after the June 2019 judgment entry was issued, and
she did not file a direct appeal of the June 2019 judgment entry.
{¶39} Mother contends res judicata is inapplicable to this case because the
dispositional judgment entry was not voidable, but was void for subject-matter jurisdiction,
appealable at any time. We disagree.
{¶40} The Ohio Supreme Court held that the statute limits the juvenile court’s
authority, not eliminates it. In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d
245. The Supreme Court did not hold the trial court lacked authority or subject matter
jurisdiction. Id. A void judgment is one “entered by a court lacking subject matter
jurisdiction.” State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248.
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“When a case is within a court’s subject-matter jurisdiction and the parties are properly
before the court, any error in the exercise of its jurisdiction renders the court’s judgment
voidable, not void.” Id. “In general, a voidable judgment may be set aside only if
successfully challenged on direct appeal.” Id. If an entry is voidable, res judicata applies.
Id.{¶41} R.C. 2151.23(A)(1) provides that the juvenile court “has exclusive original
jurisdiction * * * [c]oncerning any child who on or about the date specified in the complaint
* * * is alleged * * * to be an * * * abused, neglected, or dependent child.” The Ohio
Supreme Court did not hold that the 90-day deadline contained in R.C. 2151.35(B) is
jurisdictional. In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245.
Accordingly, any error the juvenile court made in proceeding on the dependency
complaint after the 90-day deadline passed in this case renders its resulting decisions
voidable, not void. In the Matter of L.S., 4th Dist. Ross No. 20CA3719, 2020-Ohio-5516.
{¶42} “Res judicata bars relitigation of a matter that was raised or could have been
raised on direct appeal when a final, appealable order was issued in accordance with the
law at the time.” State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989. “An
adjudication by a juvenile court that a child is * * * dependent as defined in R.C. Chapter
2151, followed by an order of disposition under R.C. 2151.353(A) constitutes a ‘final order’
within the meaning of R.C. 2505.02.” In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169(1990).
{¶43} In this case, the juvenile court adjudicated G.T. a dependent child, and the
court issued a R.C. 2151.353(A) dispositional order on June 6, 2019. Mother could have
argued that the trial court violated R.C. 2151.35(B)(1) in a direct appeal from the court’s
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June 6, 2019 dispositional order, but she did not timely appeal the dispositional order.
Thus, res judicata bars her from raising the issue in this appeal.
{¶44} Mother cites this Court’s previous cases of In the Matters of Z.S., C.S., and
E.S., 5th Dist. Perry Nos. 20-CA-00002, 20-CA-00003, and 20-CA-00004, 2021-Ohio-118and In the Matter of E.S., 5th Dist. Perry No. 20CA3719, 2020-Ohio-4843, in support of
her argument. However, there was no argument in either case regarding res judicata and
we did not determine whether the entries were void or voidable. Additionally, the facts in
this case are distinguishable from the previous cases, as those cases dealt specifically
with implicit waivers, not explicit waivers.
{¶45} The Ohio Supreme Court recently accepted a proposition of law as to
whether res judicata bars a parent’s argument on appeal from a permanent custody
determination that the juvenile court failed to abide by the 90-day timeframe set forth in
R.C. 2151.35(B)(1) where the parent failed to appeal the underlying dependency
disposition. In re K.K. 164 Ohio St.3d 1440, 2021-Ohio-3233, 173 N.E.3d 1229.
{¶46} However, K.K. is factually distinguishable from the instant case, as in the
K.K. case, neither of the parents explicitly waived the 90-day deadline. In this case, both
parents signed wavier forms indicating express and explicit waiver of the statutory
requirement. Further, explicit waiver is a separate and independent basis from res
judicata for the trial court to deny the motion to dismiss in this case.
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{¶47} Based on the foregoing, Mother’s assignment of error is overruled.
{¶48} The July 23, 2021 judgment entry of the Richland County Court of Common
Pleas, Juvenile Division, is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur