In re K.M. ( 2022 )

[Cite as In re K.M., 2022-Ohio-4169.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF K.M. : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
: Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
:
:
: Case Nos. 22CA006
: 22CA007
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
22N003
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 22, 2022
APPEARANCES:
For Appellant-Mother For Appellee-Agency
JACQUELYN M. DOSSI ROBERT K. HENDRIX
343 South Crownhill Road 164 East Jackson Street
P.O. Box 149 Millersburg, OH 44654
Orrville, OH 44667
Holmes County, Case Nos. 22CA006 & 22CA007 2
Wise, Earle, P.J.
{¶ 1} Appellant-Mother, A.H., appeals the May 2, and 23, 2022 judgment entries
of the Court of Common Pleas of Holmes County, Ohio, Juvenile Division, dismissing the
complaint filed by Appellee-Agency, Holmes County Department of Job and Family
Services, and deeming several motions moot.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 10, 2022, appellee filed a complaint for temporary or permanent
custody of K.M. born in December 2021, claiming the child to be dependent. Mother of
the child is appellant herein; presumed legal father is appellant's husband, L.C., and
putative father is R.M. Appellee had been granted emergency temporary custody of the
child on January 7, 2022. Pursuant to the complaint, the child was born during a home
delivery. Issues arose with the umbilical cord so the baby was transferred to the hospital
by EMS. Appellant purportedly did not want the child and gave the child to B.M. to adopt.
B.M. worked at the hospital.
{¶ 3} Approximately twenty days following the birth, B.M. contacted R.M. and
informed him he was the father of the child.1 Upon receiving this information, R.M. filed
a private custody action on the issues of parentage, custody, and visitation on or about
December 22, 2021 (Case No. 21C131).
{¶ 4} On January 10, 2022, B.M. filed a motion to intervene in the agency's case.
{¶ 5} A hearing was held on January 10, 2022. By judgment entry filed January
14, 2022, the trial court continued appellee's temporary custody, and added appellant's
1B.M. and R.M. are not related and have different last names.
Holmes County, Case Nos. 22CA006 & 22CA007 3
husband, L.C., and R.M.'s parents as parties to the case. The trial court also closed
R.M.'s private custody action "to avoid confusion of two cases involving the same issues."
{¶ 6} By notice to the court filed January 18, 2022, the trial court was informed
the probability of R.M. being the child's father was 99.99%.
{¶ 7} On January 24, 2022, R.M. filed a motion to establish a father-child
relationship and motion for name change. He also filed a motion for temporary custody
or placement. In a memorandum filed January 27, 2022, appellee stated it had placed
the child in R.M.'s home on January 25, 2022, and did not object to R.M.'s motion for
custody.
{¶ 8} By judgment entry filed February 2, 2022, the trial court denied B.M.'s
motion to intervene, finding no evidence of adoption proceedings plus her failure to
comply with Civ.R. 24(C) and Civ.R. 5.
{¶ 9} On February 16, 2022, appellant filed a motion to dismiss the action and to
seal and destroy all records relating to her and the child as she wished to remain
anonymous pursuant to Ohio's Safe Haven laws. By judgment entry filed February 16,
2022, the trial court denied the motion, finding appellant failed to explain the actions she
took pursuant to the Safe Haven laws.
{¶ 10} On March 1, 2022, appellant filed an amended motion to dismiss the action
and to seal and destroy all records relating to her and the child, explaining the actions
she took. A hearing on the motion was set for June 28, 2022.
{¶ 11} On March 8, 2022, appellant filed a motion to recuse the trial judge.
Appellant asserted the trial judge has shown prejudice against her because the judge
permitted R.M.'s parents to become parties in the case before parentage was established,
Holmes County, Case Nos. 22CA006 & 22CA007 4
prevented her from cross-examining a witness during a hearing, and violated her rights
under the Safe Haven laws.
{¶ 12} On March 16, 2022, the trial court filed a judgment entry noting the
complication in holding the dispositional hearing before the applicable time deadline. The
trial court stated it was open to suggestions from counsel to address this concern.
{¶ 13} On March 21, 2022, appellee filed a motion to dismiss without prejudice,
seeking the establishment of a father-child relationship between R.M. and the child and
granting custody of the child to R.M., which could be done in the private custody case
filed by R.M. However, as noted above, the private custody case was closed in January
2022.
{¶ 14} By judgment entry filed March 21, 2022, the trial court denied appellant's
motion for recusal.
{¶ 15} On May 2, 2022, the trial court filed a judgment entry noting several facts:
1) the child has yet to be adjudicated a dependent child; 2) the whereabouts of the
presumed legal father, L.C., is unknown; 3) a father-child relationship between R.M. and
the child has yet to be established; 4) appellant's violation of her rights under the Safe
Haven laws and her motion to dismiss the action have yet to be heard; and 5) the child
does not have a birth certificate. The trial court noted "the opportunity to resolve the
issues within proceeding is trumped by the impending time deadline." The trial court then
granted appellee's motion to dismiss the action without prejudice, and ordered that
appellee's complaint would be dismissed on May 23, 2022, unless otherwise ordered by
the court, and the pending motions would be deemed moot. The trial court extended the
dispositional hearing deadline by forty-five days to May 24, 2022.
Holmes County, Case Nos. 22CA006 & 22CA007 5
{¶ 16} By judgment entry filed May 23, 2022, the trial court dismissed appellee's
complaint, as well as all the pending motions, as moot. The trial court declared the case
closed.
{¶ 17} Appellant filed separate appeals on the trial court's May 2, and 23, 2022
judgment entries, and this matter is now before this court for consideration. The
assignments of error are as follows:
I
{¶ 18} "THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT FILED
BY HCCS WITHOUT COMPLYING WITH THE REQUIREMENTS AND PROCEDURES
SET FORTH IN R.C. 2151.3[5]16, ET AL., OHIO'S SAFE HAVEN LAWS."
II
{¶ 19} "THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT FILED
BY HCCS WITHOUT CONDUCTING A HEARING AS TO [A.H.]'S FEBRUARY 16, 2022
MOTION TO DISMISS, SEAL AND DESTROY AS WELL AS THE MARCH 1, 2022
AMENDED MOTION TO DISMISS, SEAL AND DESTROY."
III
{¶ 20} "THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT FILED
BY HCCS, EFFECTIVELY RETURNING THE CHILD TO THE CUSTODY OF [A.H.]
WHO INDICATED HER DESIRE TO ABANDON AND RELINQUISH THE CHILD
PURSUANT TO R.C. 2151.3[5]16, ET SEQ., CONTRARY TO THE BEST INTEREST OF
THE CHILD AND OHIO PUBLIC POLICY."
IV
Holmes County, Case Nos. 22CA006 & 22CA007 6
{¶ 21} "THE TRIAL COURT ERRED IN GRANTING THE AGENCY'S MARCH 21,
2022 [MOTION] TO DISMISS WITHOUT HEARING AND CONTRARY TO THE BEST
INTERESTS OF THE CHILD."
V
{¶ 22} "THE TRIAL COURT ERRED IN FAILING TO DISPOSE OF THE
PROCEEDINGS WITHIN STATUTORY DEADLINES FOR DISPOSITION WITHOUT
JUST CAUSE."
VI
{¶ 23} "THE TRIAL COURT ERRED IN RETURNING THE CHILD TO THE LEGAL
CUSTODY OF APPELLANT MOTHER CONTRARY TO THE CHILD'S BEST INTEREST
AND PUBLIC POLICY."
VII
{¶ 24} "THE COURT ERRED IN FAILING TO CONDUCT A HEARING AND IN
FAILING TO GRANT THE MOTION FOR RECUSAL OF THE TRIAL COURT JUDGE
DUE TO BIAS AND CONFLICT OF INTEREST WITHOUT CONDUCTING A HEARING
ON THE MOTION."
I, II, III
{¶ 25} In her appellate brief, appellant argues these three assignments or error
collectively.
{¶ 26} In her first assignment of error, appellant claims the trial court erred in
dismissing the complaint without complying with the requirements set forth in the Safe
Haven laws, R.C. 2151.3516 et seq.
Holmes County, Case Nos. 22CA006 & 22CA007 7
{¶ 27} In her second assignment of error, appellant claims the trial court erred in
dismissing the complaint without conducting a hearing on her amended motion to dismiss
the action and to seal and destroy all records relating to her and the child because of her
actions to invoke the Safe Haven laws.
{¶ 28} In her third assignment of error, appellant claims the trial court erred in
dismissing the complaint, effectively returning the child to her after she indicated her
desire to invoke the Safe Haven laws, contrary to the best interest of the child.
{¶ 29} In her arguments, appellant cites the Safe Haven laws and the facts
surrounding the child's birth. Appellant argues after birthing the child at home, she
surrendered the child to EMS, and "informed the EMS personnel she did not desire to
keep the child and did not wish to have further contact with the child." Appellant's Brief
at 10. Appellant argues she invoked the Safe Haven laws at her first opportunity, via her
February 16, 2022 motion to dismiss the action and to seal and destroy all records relating
to her and the child and her March 1, 2022 amended motion to dismiss the action and to
seal and destroy all records relating to her and the child. However, her first opportunity
was when she appeared for the January 10, 2022 hearing following the ex parte order
granting temporary custody to appellee. During the hearing, appellant indicated she
wanted a court-appointed attorney for the case. T. at 15. The following exchange
occurred between the trial court and appellant (T. at 17-19):
THE COURT: Yeah. Ms. [A.H.], the normal procedure here when a
child is removed is that the parent is allowed supervised contact at the
Agency. You would go to the Agency offices, visit your son, be in the
Holmes County, Case Nos. 22CA006 & 22CA007 8
presence of Children Services workers. That's available to you. I guess,
the question this morning is do you want to exercise that, or not?
MS. [A.H.]: Yeah, I - - the way I understand it is, I turned over
temporary guardianship and my rights away to this child. I surrogated this
child with the consent of my husband, and I gave up my rights, which does
not make me a party to this case. Under the Fourteenth Amendment - -
THE COURT: Okay. No, ma'am. I asked you a simple question.
Let's not get into all those legal issues today. That's not the - - you're going
to have an attorney. Talk with your attorney about those issues, okay.
Today is not the time for a Constitutional argument or other arguments. Do
you want to have contact with your child?
MS. [A.H.]: I was not aware that that was an option. Like I said, I
surrogated him.
THE COURT: Well, I'm asking you again, do you want to have
contact with the child that was born to you?
MS. [A.H.]: Sure.
THE COURT: Okay. What you will need to do then, is talk with Ms.
Henry after the hearing and get that arranged. We're usually looking at two
hours every week, whether it's one-hour visits two - - two visits, or one two-
hour visit. That's up to you. I will tell you that it's - - given your ambivalence
about your relationship to this child, I get that, but you are his biological
mother at this point. There's no doubt about that. So it's certainly in [K.M.]'s
Holmes County, Case Nos. 22CA006 & 22CA007 9
best interest, until some final decision is made about his disposition or
where he ends up, for you to have contact with him. Does that make sense?
MS. [A.H.]: I did have contact with him before Children Services got
involved, Your Honor. I had seen him - -
THE COURT: Okay.
MS. [A.H.]: - - after giving birth.
THE COURT: Yeah. Again, I'm talking about going forward from
today.
MS. [A.H.]: Yeah. I'm just saying that, like, I did have contact with
him - -
THE COURT: Okay.
MS. [A.H.]: - - before I gave birth - - or before I, like - - after I gave
birth, but before Children Services.
THE COURT: Okay.
MS. [A.H.]: So it's not that I refused to have contact with him.
{¶ 30} Appellant agreed to submit to a drug test after the hearing. T. at 31. At no
time during the hearing did appellant invoke Safe Haven laws. Appellant appeared at the
hearing, argued surrogacy, and agreed to wanting court-appointed counsel and visitation
time. Her actions during the hearing belied a mother who wanted to remain anonymous
and implement the Safe Haven laws. In the January 10, 2022 complaint at 2, reported
concerns "include a suspicion of attempts to circumvent the legal system and that [A.H.],
who has lost custody of and is not allowed to be around her other children, could assert
Holmes County, Case Nos. 22CA006 & 22CA007 10
her rights over [K.M.] and take him from [B.M.]'s home, as there is no legal documentation
of an adoption and the child remains without a birth certificate."
{¶ 31} In her reply brief, appellant asserts following the hearing, "[u]pon
determination the child was delivered in accordance with R.C. 2151.3516, the Court
should then have adjudicated the child a deserted child, entering its findings in the record
of the case." Based on appellant's statements made during the hearing, the trial court
did not have any reason to know the child was "delivered in accordance with R.C.
2151.3516" and did not have any reason to adjudicate the child a deserted child. The
child was not deserted as appellant was actively participating in the case and expressed
an interest in having visitation with the child.
{¶ 32} Also in her reply brief, appellant argues following her motions to dismiss
invoking the Safe Haven laws, the trial court should have scheduled a hearing pursuant
to R.C. 2151.3521. The trial court did schedule a hearing on the issue, unfortunately, the
scheduled date was beyond the time deadline. In a judgment entry filed March 16, 2022,
the trial court stated, "Court staff have diligently attempted to schedule that hearing for
the earliest available date and time. However, the earliest such date and time that works
for Counsel and the Court is June 28, 2022." The trial court then set the hearing on
appellant's motion for said date, noting it was beyond the ninety-day time limit plus the
forty-five-day extension provided for in R.C. 2151.35(B)(1). The trial court stated it was
open to suggestions from counsel to address the time deadline complication, but no one
responded with suggestions.
{¶ 33} Instead, on March 21, 2002, appellee filed a motion to dismiss the complaint
without prejudice, seeking the establishment of a father-child relationship between R.M.
Holmes County, Case Nos. 22CA006 & 22CA007 11
and the child and granting custody of the child to R.M. Appellant did not respond to the
motion. In a judgment entry filed May 2, 2022, the trial court outlined several unresolved
issues as cited above in ¶ 15, and noted "the opportunity to resolve the issues within
proceeding is trumped by the impending time deadline." The trial court then granted
appellee's motion to dismiss the action without prejudice, and ordered that appellee's
complaint would be dismissed on May 23, 2022, unless otherwise ordered by the court,
and the pending motions would be deemed moot. The pending motions were appellant's
amended motion to dismiss the action and to seal and destroy all records relating to her
and the child, R.M.'s motion to establish father-child relationship, motion for name
change, and motion for temporary custody or placement, and a contempt motion filed by
appellant. The trial court extended the dispositional hearing deadline to May 24, 2022.
No one objected or submitted any additional filings to the trial court. By judgment entry
filed May 23, 2022, the trial court dismissed appellee's complaint, as well as all the
pending motions, as moot, and declared the case closed.
{¶ 34} In its appellate brief at 4, appellee argues the trial court "had no option but
to dismiss the case below on the date that it so dismissed" because of the language in
R.C. 2151.35(B)(1) which states the following in pertinent part:
The dispositional hearing shall not be held more than ninety days
after the date on which the complaint in the case was filed except that, for
good cause shown, the court, on its own motion or on the motion of any
party or the child's guardian ad litem, may continue the dispositional hearing
for a reasonable period of time beyond the ninety-day deadline. This
Holmes County, Case Nos. 22CA006 & 22CA007 12
extension beyond the ninety-day deadline shall not exceed forty-five days
and shall not be available for any case in which the complaint was
dismissed and subsequently refiled.
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.
{¶ 35} The dispositional hearing was not held within time, even with the forty-five-
day extension. As held by the Supreme Court of Ohio in In re K.M., 159 Ohio St.3d 544,
2020-Ohio-995, 152 N.E.3d 544, ¶ 31, "[w]e hold that R.C. 2151.35(B)(1) imposes a
mandatory deadline requiring a juvenile court to dismiss a case without prejudice if the
court fails to conduct a dispositional hearing within 90 days of the filing of a complaint
alleging that a child is abused, neglected or dependent."2
{¶ 36} Given the language of R.C. 2151.35(B)(1) and the holding of K.M., we agree
the trial court had no option but to dismiss the case without prejudice.
{¶ 37} Assignments of Error I, II, and III are denied.
IV, V, VI
{¶ 38} In her fourth assignment of error, appellant claims the trial court erred in
dismissing the complaint without hearing and contrary to the child's best interest.
2The statute reviewed in the K.M. case did not provide for a forty-five-day extension. The
statute was amended effective April 12, 2021, to include the forty-five-day extension.
Holmes County, Case Nos. 22CA006 & 22CA007 13
{¶ 39} In her fifth assignment of error, appellant claims the trial court erred in failing
to dispose of the proceedings within the statutory deadlines without cause.
{¶ 40} In her sixth assignment of error, appellant claims the trial court erred in
returning the child to her legal custody.
{¶ 41} Pursuant to our finding the trial court had no option but to dismiss the case,
we find these assignments of error to be moot.
VII
{¶ 42} In her seventh assignment of error, appellant claims the trial court erred in
denying her motion for recusal without conducting a hearing.
{¶ 43} On March 8, 2022, appellant filed a motion to recuse the trial judge.
Appellant asserted the trial judge has shown prejudice against her because the judge
permitted R.M.'s parents to become parties in the case before parentage was established,
prevented her from cross-examining a witness during a hearing, and violated her rights
under the Safe Haven laws.
{¶ 44} R.C. 2701.03 governs disqualification of a judge for prejudice. Subsection
(A) states the following:
If a judge of the court of common pleas allegedly is interested in a
proceeding pending before the court, allegedly is related to or has a bias or
prejudice for or against a party to a proceeding pending before the court or
a party's counsel, or allegedly otherwise is disqualified to preside in a
proceeding pending before the court, any party to the proceeding or the
Holmes County, Case Nos. 22CA006 & 22CA007 14
party's counsel may file an affidavit of disqualification with the clerk of the
supreme court in accordance with division (B) of this section.
{¶ 45} There is no evidence in the record of appellant filing the requisite affidavit
with the clerk of the supreme court. As held by the Supreme Court of Ohio in State ex
rel. Hough v. Saffold, 131 Ohio St.3d 54, 2012-Ohio-28, 960 N.E.2d 451, ¶ 2:
Hough is not entitled to a final, appealable order on the judge's denial
of his motion to recuse herself, because a court of appeals lacks jurisdiction
to review these decisions. See Beer v. Griffith (1978), 54 Ohio St.2d 440,
441-442, 8 O.O.3d 438, 377 N.E.2d 775 ("Since only the Chief Justice or
[the chief's] designee may hear disqualification matters, the Court of
Appeals was without authority to pass upon disqualification or to void the
judgment of the trial court upon that basis"); Goddard v. Children's Hosp.
Med. Ctr. (2000), 141 Ohio App.3d 467, 473, 751 N.E.2d 1062; State v.
Ramos (1993), 88 Ohio App.3d 394, 398, 623 N.E.2d 1336.
{¶ 46} Pursuant to the Supreme Court of Ohio, this court lacks jurisdiction to
consider this issue.
Holmes County, Case Nos. 22CA006 & 22CA007 15
{¶ 47} Assignment of Error VII is denied.
{¶ 48} The judgment of the Court of Common Pleas of Holmes County, Ohio,
Juvenile Division, is hereby affirmed.
By Wise, Earle, P.J.
Gwin, J. and
Delaney, J. concur.
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