In re L.B. ( 2022 )

[Cite as In re L.B., 2022-Ohio-3122.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: L.B. C.A. Nos. 30239
L.B. 30240
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN-19-10-802
DN-21-02-104
DECISION AND JOURNAL ENTRY
Dated: September 7, 2022
HENSAL, Presiding Judge.
{¶1} Appellant, Summit County Children Services Board (“CSB”) appeals from two
judgments of the Summit County Court of Common Pleas, Juvenile Division, that dismissed the
dependency cases involving two minor children of M.B. (“Mother”) because the complaints had
not been properly served on the unknown fathers. Because Mother lacked standing to raise the
issue of improper service on the fathers, this Court reverses and remands.
I.
{¶2} Mother is the biological mother of two children with the initials L.B. The older
child was born November 8, 2017, and the younger child was born on February 8, 2021. Paternity
of the two children was not established during the trial court proceedings.
{¶3} During September 2019, Mother contacted CSB to assist her in meeting her then-
only child’s basic needs. While the caseworker worked with Mother the following week, Mother
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displayed symptoms of unstable mental health and expressed suicidal ideations. The child was
removed from Mother’s custody pursuant to Rule 6 of the Ohio Rules of Juvenile Procedure,
Mother was involuntarily hospitalized for psychiatric treatment, and CSB filed a dependency
complaint. The child was later adjudicated a dependent child and placed in the temporary custody
of CSB.
{¶4} Approximately one year later, the younger L.B. was removed from Mother’s
custody shortly after birth. That child was also adjudicated a dependent child and placed in the
temporary custody of CSB. During the trial court proceedings involving both children, Mother
continued to struggle with unstable mental health and resulting criminal charges. After being
incarcerated on charges of felonious assault in Cuyahoga County, Mother was again involuntarily
hospitalized for psychiatric treatment. CSB eventually moved for permanent custody of both
children.
{¶5} While the permanent custody motions were pending, Mother raised the issue of
whether the children’s juvenile cases should be dismissed because the complaints had not been
properly served on the unknown fathers. Mother relied on this Court’s then-recent decision in In
re C.H., 9th Dist. No. Summit 29995, 2021-Ohio-3992, which reversed a permanent custody
judgment because improper service of the complaint on the appellant-mother had deprived her of
due process because she had not been provided reasonable reunification efforts.
{¶6} CSB filed a brief in opposition to Mother’s argument for dismissal of the cases,
arguing that Mother had been properly served and lacked standing to raise the issue of improper
service on behalf of the fathers because she had not argued or demonstrated that she suffered any
prejudice from the service defect. Following a consideration of the issue, without addressing
Mother’s standing, the trial court dismissed both cases because service of the complaint and
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summons on the unknown fathers had not complied with the Ohio Rules of Civil Procedure. CSB
appeals from the dismissal of each child’s case and raises one assignment of error.
{¶7} While the separate appeals were pending, this Court consolidated them and ordered
the parties to brief the issue of whether CSB had appealed from a final, appealable order. After
reviewing the parties’ responses, this Court provisionally determined that CSB had appealed from
a final, appealable order.
{¶8} Mother argued that CSB’s rights were not affected by the dismissal because the
agency could (and apparently did) file new dependency complaints. Filing new complaints would
not adequately protect the rights and obligations of the agency to protect the children, however.
At the time the trial court dismissed the dependency cases, the older child’s case had been pending
for more than two years and CSB was prepared to go forward on its motions for permanent custody
of both children. In newly filed cases, the agency could not simply pick up where it left off but
would have to start all over with proving the dependency of each child, and the children could
potentially spend another year or two in temporary placements. For similar reasons, several other
appellate districts have already determined that the juvenile court’s dismissal of an agency’s abuse,
neglect, and/or dependency complaint on procedural grounds constituted a final, appealable order
because the dismissal affected the agency’s substantial rights under Revised Code Section
2505.02(B)(1) and/or (2). See, e.g., In re Z.B., 8th Dist. Cuyahoga Nos. 110500 and 110510, 2021-
Ohio-3208; In re S. Children, 1st Dist. Hamilton No. C-170617, 2018-Ohio-5010; In re W.W.,
11th Dist. Lake No. 2009-L-162, 2010-Ohio-5305.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DISMISSED CASES CONCERNING
BOTH CHILDREN, DESPITE SERVICE ON THEIR ABSENT FATHERS
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BEING MADE ACCORDING TO THE RULES OF CIVIL PROCEDURE,
RULES OF JUVENILE PROCEDURE, AND THE TRIAL COURT’S LOCAL
RULES, MANDATING REVERSAL.
{¶9} CSB argues that the trial court erred in dismissing the two dependency cases due to
defective service on the unknown fathers. Although CSB raises alternative arguments on appeal,
this Court will focus on its argument that Mother lacked standing to request dismissal of the case
on behalf of the unknown fathers.
{¶10} The trial court and Mother focused the arguments and resolution of this issue solely
on this Court’s decision in In re C.H., 2021-Ohio-3992, but the facts of In re C.H. and Mother’s
challenge in this case are markedly different. To begin with, although the alleged service defect
in this case also involved a failure to comply with the requirements of Civil Rule 4.4(A)(2) for
service on a party by posting and mailing to the party’s last known address, the last known
addresses were not known in this case. Moreover, unlike the appellant-mother in In re C.H.,
Mother was not a party directly affected by any service defect. See In re C.H. at ¶ 28-31. Mother
does not dispute that she was properly served with the complaint. She raised this issue on behalf
of the unknown fathers.
{¶11} Although Mother asserts that a defect in service on the fathers deprived the trial
court of subject matter jurisdiction, she is mistaken. “It is undisputed that all Ohio juvenile courts
have subject-matter jurisdiction over dependency cases. [Section] 2151.23(A)(1) provides that a
juvenile court has “exclusive original jurisdiction * * * [c]oncerning any child who on or about
the date specified in the complaint * * * is * * * alleged * * * to be a * * * dependent child.” In
re Z.R., 144 Ohio St.3d 380, 2015-Ohio-3306, ¶ 16.
{¶12} The reason the trial court dismissed the complaints in these cases involved personal
jurisdiction, not subject matter jurisdiction. “The juvenile court acquires personal jurisdiction over
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a party in a custody proceeding once the party has been duly served with summons and provided
notice of the proceedings.” In re H.T., 9th Dist. Summit No. 24087, 2008-Ohio-3436, ¶ 9. Mother
does not dispute that the trial court had personal jurisdiction over her because she was properly
served with the complaint and summons in each trial court case. She had the opportunity to
participate in the adjudications, dispositions, and subsequent proceedings involving her children.
At no time prior to the pendency of the permanent custody motions did Mother raise the issue of
defective service upon the unknown fathers, nor did she argue or demonstrate that she suffered
any prejudice as a result.
{¶13} Shortly after the trial court dismissed these two cases, this Court addressed the same
argument in In re X.H., 9th Dist. Summit Nos. 30115 and 30116, 2022-Ohio-779. As this Court
explained when it rejected the argument raised by the mother who was properly served:
This Court has previously considered a parent’s appeal from an award of permanent
custody where the agency had not perfected service of the permanent custody
motion upon the other parent. In re A.M., 9th Dist. Summit No. 26141, 2012-Ohio-
1024. In that case, despite recognizing that unperfected service implicates a lack
of personal jurisdiction which is waived when not properly preserved by objection,
we acknowledged that “[a] reviewing court has discretion to ignore a waiver [of
personal jurisdiction] in appropriate cases[.]” Id. at ¶ 13, 16. Addressing the
parent’s challenge to the lack of service upon the other parent, this Court held that
the appealing parent must “demonstrate that she was ‘actually prejudiced’ by the
[lack of service on the other parent] before she may assert [the alleged error] on her
own behalf; otherwise she lacks standing to raise the issue.” Id. at ¶ 18, quoting In
re Jordan, 9th Dist. Summit Nos. 20773 and 20786, 2002 WL 121211 (Jan. 30,
2002). Moreover, an “argument [that] is entirely speculative * * * does not
demonstrate actual prejudice[.]” In re A.M. at ¶ 21.
Id. at ¶ 9.
{¶14} The parties have not argued, nor does the record reveal, any reason to distinguish
this case from In re X.H. Mother was properly served with the complaint and summons, had the
opportunity to participate in reunification services throughout these cases, but did not timely raise
an issue about defective service upon the fathers. Because Mother did not argue or demonstrate
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that she was prejudiced by any defect in service on the fathers, the trial court should have denied
her request to dismiss the cases involving L.B. and L.B. and permitted the parties to proceed to a
hearing on the permanent custody motions. CSB’s assignment of error is sustained for this reason.
III.
{¶15} CSB’s assignment of error is sustained on this issue of Mother’s lack of standing.
The judgment of the Summit County Court of Common Pleas, Juvenile Division, is reversed and
remanded for proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
JENNIFER HENSAL
FOR THE COURT
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CALLAHAN, J.
SUTTON, J.
CONCUR.
APPEARANCES:
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE CORGAN, Assistant
Prosecuting Attorney, for Appellant.
WESLEY C. BUCHANAN, Attorney at Law, for Appellee.
JOSEPH KERNAN, Guardian ad Litem.
AVIVA WILCHER, Guardian ad Litem.