In re E.S.

[Cite as In re E.S., 2020-Ohio-4843.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: E.S. : Hon. William B. Hoffman,P. J.
: Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
:
:
: Case No. 20 CA 00008
:
:
: NUNC PRO TUNC O P I N I O N
CHARACTER OF PROCEEDING: Civil appeal from the Perry County Court of
Common Pleas, Juvenile Division, Case
No. T.C. 2018 F 201
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 7, 2020
APPEARANCES:
For – Appellee For - Appellant
JESSICA MONGOLD ANGELA MILLER
MONGOLD LAW OFFICES 258 Starkling Lane, S.
123 South Broad Street, #206 Jupiter, FL 33458
Lancaster, OH 43130
Gwin, J.,
{¶1} Appellant-father, R.S. [“Father”] appeals the March 6, 2020 Judgment Entry
of the Perry County Court of Common Pleas, Juvenile Division, which terminated his
parental rights with respect to his minor child and granted permanent custody of the child
to appellee, Perry County Children Services [“PCCS”].
Facts and Procedural History
{¶2} E.S., born July 19, 2017, is the biological son of Father. PCCS removed the
minor child from his home on August 23, 2018. PCCS filed a Motion for Ex Parte Order
for Emergency Shelter on August 24, 2018. At the full hearing on the Motion for Ex Parte
Order for Emergency Shelter held August 24, 2018, the Court found the removal was
necessary and proper and granted temporary custody of the minor child to PCCS. Father
did not appear at the hearing on the Motion for Ex Parte Order. Father was incarcerated
from June 3, 2018 through sometime in September 2018. T. at 43-44; 48. The trial court
entered a “Denial” on Father’s behalf and scheduled a trial date for September 19, 2019.
[Docket Entry No. 3].
{¶3} Father failed to appear on September 19, 2018. The trial court again
entered a denial of the allegations and scheduled an adjudicatory hearing date for
October 31, 2018. [Docket Entry No. 5]. On December 11, 2018, the trial court filed a
“Notice of Hearing” that scheduled the adjudicatory hearing for January 9, 2019. [Docket
Entry No. 7].
{¶4} At the January 9, 2019 hearing, the trial court entered an admission to
neglect on behalf of both parents when they failed to appear. T. at 4; Docket Entry No.
8. The trial court found E.S. to be a neglected child and continued the temporary order
of custody with PCCS.
{¶5} On August 21, 2019, the trial court conducted an annual review hearing.
At that hearing, the court again found that it was in the best interest of E.S. to continue
temporary custody with PCCS.
{¶6} On November 6, 2019, PCCS filed a motion for appointment of a Guardian
Ad Litem (GAL) and a motion for permanent custody (M.P.C.). The motion alleged that
permanent custody was in the best interest of the child and that at least one of the five
circumstances in R.C. 2151.414(B)(1) existed. On December 31, 2019, the trial court sua
sponte appointed counsel to represent Father. [Docket Entry Nos. 19 & 20].
{¶7} The trial on the M.P.C. was originally scheduled for January 29, 2020.
Father appeared with his court-appointed counsel on the trial date and obtained a
continuance. The trial on the M.P.C. was rescheduled for February 26, 2020. The matter
proceeded to trial on February 26, 2020. Only Father appeared with counsel at the trial.1
Father was transported from the STAR program for the trial. T. at 4-5.
{¶8} Caseworker Pam Hartley testified the child was removed from the home
because he was found wandering in the street on two occasions. Additionally, when
children services arrived at the home they found a lack of food, bed bugs, roaches, and
five dogs living at the property. At the home were maternal grandparents, Father and
Mother, and two other sons of the grandfather. T. at 11. Drug usage by Father was an
additional concern. T. at 10; 15.
1Another child, B.K. was also mentioned in the case but is not the child of Father. Both mother
and maternal grandparents chose not to contest permanent custody.
{¶9} Father signed the case plan on November 20, 2018. On that date, Father
indicated he wanted to work with Perry County Children Services. T. at 12. The case
plan identified concerns with the parents' drug usage, housing, and lack of supervision.
{¶10} Pam Hartley testified that Father did not comply with any component of his
case plan. Father was removed from the case plan on February 26, 2019 due to his
noncompliance. Father has not had any contact with the minor child since August 23,
2018.
{¶11} Pam Hartley testified that she attempted contact with Father at his
residence on November 5, 2018, December 10, 2018, January 28, 2019, January 29,
2019, February 25, 2019, February 26, 2019, February 28, 2019, March 25, 2019, and
April 19, 2019. On one occasion, Ms. Hartley was informed that Father was incarcerated.
T. at 13.
{¶12} Father testified that he was incarcerated during much of the time and that a
temporary protection order was in place preventing him from having contact with the
Mother or the home. Father testified that in 2019 he was incarcerated for eight of the
twelve months. T. at 38. He testified that if any mail was sent to the home it was never
forwarded to him. Father testified that he sent letters to PCCS. On one occasion, two
PCCS employees visited him at the jail “to get him to sign papers” but they would not
discuss the case plan. T. at 53. Father has never spoken to the GAL appointed to his
case. T. at 64.
{¶13} Father testified that he completed drug and alcohol assessment through
Hopewell and the STAR program and he submitted to random drug screens. However,
nothing was forwarded to PCCS. Father claimed that he completed a mental health
assessment and had certificates showing completion of some parenting classes. He
testified that he was currently participating in parenting classes, Alcoholics Anonymous,
Narcotics Anonymous and that he had obtained a kitchen job through the STAR program.
{¶14} Finally, caseworker Hartley was called by PCCS as a rebuttal witness.
Hartley stated that she had never received a letter from Father and did not believe anyone
else with the agency had either.
{¶15} At the conclusion of the trial, both parties waived closing arguments and the
court took the matter under advisement. On March 6, 2020, the court issued its decision
granting PCCS permanent custody of E.S.
Assignments of Error
{¶16} Father raises two Assignments of Error,
{¶17} “I. APPELLANT WAS DENIED DUE PROCESS WHEN THE TRIAL
COURT FAILED TO PROPERLY SERVE HIM WITH A COPY OF THE ADJUDICATORY
AND DISPOSITIONAL ORDER ISSUED ON JANUARY 9, 2019.
{¶18} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND
COMMITTED PLAIN ERROR IN FAILING TO FOLLOW R.C. 215135(B), R.C. 2151.352,
AND JUV. R. 29(D).”
I.
{¶19} In his First Assignment of Error, Father argues that because the trial court
failed to serve him with copies of the adjudicatory and dispositional orders issued in his
case in accordance with Civ R 58(B), the 30-day period for filing an appeal raising errors
in the adjudicatory and/or dispositional phases has never commenced.
Standard of Appellate Review.
{¶20} Father’s argument centers on an issue of law, not the discretion of the trial
court. “‘When a court’s judgment is based on an erroneous interpretation of the law, an
abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville Grace
Brethren Church, 163 Ohio App. 3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6; Huntsman
v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶
50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St. 3d 181, 2009-Ohio-2496, 909 N.E.2d
1237, ¶ 13.” State v. Fugate, 117 Ohio St. 3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶6.
Because the assignment of error involves the interpretation of Civil Rules of Procedure
and Appellate Rules of Procedure, which are questions of law, we review the trial court’s
decision de novo. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St. 3d 181, 2009-Ohio-2496,
909 N.E.2d 1237, ¶ 13; Accord, State v. Pariag, 137 Ohio St. 3d 81, 2013-Ohio-4010, 998
N.E.2d 401, ¶ 9; Hurt v. Liberty Township, Delaware County, OH, 5th Dist. Delaware No.
17 CAI 05 0031, 2017-Ohio-7820, ¶ 31.
Issue for appeal: Whether the trial court properly endorsed upon the judgment
entry the required “direction to the clerk to serve upon all the parties * * * notice of the
judgment and its date of entry upon the journal” pursuant to Civ.R. 58(B), and/or whether
the juvenile court’s docket contains an indication that Father was ever served with notice.
{¶21} Civ.R. 58(B) provides,
When the court signs a judgment, the court shall endorse thereon a
direction to the clerk to serve upon all parties * * * notice of the judgment
and its date of entry upon the journal. Within three days of entering the
judgment upon the journal, the clerk shall serve the parties in a manner
prescribed by Civ.R. 5(B) and note the service in the appearance docket. *
* * The failure of the clerk to serve notice does not affect the validity of the
judgment or the running of the time for appeal except as provided in App.R.
4(A).
{¶22} App.R. 4, provides,
(A) Time for Appeal.
(1) Appeal From Order That Is Final Upon Its Entry. Subject to the
provisions of App.R. 4(A)(3), a party who wishes to appeal from an order
that is final upon its entry shall file the notice of appeal required by App.R.
3 within 30 days of that entry.
***
(3) Delay of Clerk’s Service in Civil Case. In a civil case, if the clerk
has not completed service of the order within the three-day period
prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R. 4(A)(1)
and 4(A)(2) begin to run on the date when the clerk actually completes
service.
{¶23} The Ohio Supreme Court has held,
For civil cases, App.R. 4(A) requires the notice of appeal to be filed
within thirty days of “the later of entry of the judgment or order appealed or,
in a civil case, service of the notice of judgment and its entry if service is not
made on the party within the three day period in [Civ.R.] 58(B).” App.R.
4(A) thus contains a tolling provision that applies in civil matters when a
judgment has not been properly served on a party according to Civ.R. 58(B).
Civ.R. 58(B) requires the court to endorse on its judgment “a direction to the
clerk to serve upon all parties * * * notice of the judgment and its date of
entry upon the journal.” The clerk must then serve the parties within three
days of entering judgment upon the journal. “The thirty-day time limit for
filing the notice of appeal does not begin to run until the later of (1) entry of
the judgment or order appealed if the notice mandated by Civ.R. 58(B) is
served within three days of the entry of the judgment; or (2) service of the
notice of judgment and its date of entry if service is not made on the party
within the three-day period in Civ.R. 58(B).” Whitehall ex rel. Fennessy v.
Bambi Motel, Inc. (1998), 131 Ohio App. 3d 734, 741, 723 N.E.2d 633, 638.
In re: Anderson, 92 Ohio St. 3d 63, 70-71, 2001-Ohio-131, 748 N.E.2d 67. The Supreme
Court in Atkinson v. Grumman Ohio Corp. 37 Ohio St. 3d 80, 523 N.E.2d 851(1988)
specified that service should be by the clerk of courts; and it subsequently determined
that actual knowledge by counsel of the judgment entry in the absence of reasonable
notice from the clerk of courts was insufficient to begin the time running for appeal.
Clermont County Transportation Improvement District v. Gator Milford, 141 Ohio St. 3d
542, 2015-ohio-241, 26 N.E.3d 806, syllabus. Accord, State ex rel. Sautter, 117 Ohio
St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, ¶16; Steel v. Lewellen, 5th Dist. Fairfield
Nos. 95 CA 53, 95 CA 54, 1996 WL 362915(May 16, 1996).
{¶24} In the case at bar, the trial court never endorsed upon the adjudicatory and
dispositional judgment entries that required “direction to the clerk to serve upon all the
parties * * * notice of the judgment and its date of entry upon the journal” pursuant to
Civ.R. 58(B). Moreover, the juvenile court’s docket contains no indication that Father was
ever served with notice. Therefore, the time for filing a notice of appeal never began to
run because the trial court failed to comply with Civ.R. 58(B). Therefore, Father’s appeal
in this case was timely filed under App.R. 4(A). In re: Anderson, 92 Ohio St. 3d 63, 71,
2001-Ohio-131, 748 N.E.2d 67.
{¶25} PCCS concedes, “The Court did not endorse upon the judgment entered
January 19, 2019 a "direction to the clerk to serve upon all parties not in default for failure
to appear notice of the judgment and its date of entry upon the journal" as mandated by
Civ.R. 58(B). Further, there is no indication in the appearance docket that the clerk served
the parents with notice of the judgment as Civ.R. 58(B) requires...Appellee agrees that
Appellant can raise the issues identified in his second assignment of error.” Appellee’s
Response to Merit Brief of Appellant, filed Jul 20, 2020 at 9.
{¶26} Father’s First Assignment of Error is sustained.
II.
{¶27} In his Second Assignment of Error, Father maintains that 1). The trial court
violated Juv.R. 29 when it entered an “admission” on Father’s behalf that the child was
neglected; 2). The dispositional; hearing was not held within ninety days of the filing of
the complaint in violation of R.C. 2151.35(B), and 3). Father was not timely appointed
counsel. Because we find Father’s second issue dispositive we shall only address that
issue.
Standard of Appellate Review.
{¶28} Father’s argument centers on an issue of law, not the discretion of the trial
court. In other words, Father contends that whether the ninety day requirement for
holding a dispositional hearing contained in R.C. 2151.35(B) is mandatory is a question
of law. “‘When a court’s judgment is based on an erroneous interpretation of the law, an
abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville Grace
Brethren Church, 163 Ohio App. 3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6; Huntsman
v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶
50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St. 3d 181, 2009-Ohio-2496, 909 N.E.2d
1237, ¶ 13.” State v. Fugate, 117 Ohio St. 3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶6.
Because the assignment of error involves the interpretation of a statute, which is a
question of law, we review the trial court’s decision de novo. Med. Mut. of Ohio v.
Schlotterer, 122 Ohio St. 3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13; Accord, State
v. Pariag, 137 Ohio St. 3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9; Hurt v. Liberty
Township, Delaware County, OH, 5th Dist. Delaware No. 17 CAI 05 0031, 2017-Ohio-
7820, ¶ 31.
Issue for Appeal: Whether the court on its own motion was required to dismiss
the complaint because the dispositional hearing was not held within ninety days of the
filing of the complaint as required by R.C. 2151.35(B)(1).
{¶29} R.C. 2151.35 provides, in relevant part,
(B)(1) 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 court may hold the dispositional hearing for an adjudicated
abused, neglected, or dependent child immediately after the adjudicatory
hearing if all parties were served prior to the adjudicatory hearing with all
documents required for the dispositional hearing. The dispositional hearing
may not be held more than thirty days after the adjudicatory hearing is held.
The court, upon the request of any party or the guardian ad litem of the
child, may continue a dispositional hearing for a reasonable time not to
exceed the time limits set forth in this division to enable a party to obtain or
consult counsel. 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.
{¶30} Juv.R. 34 contains essentially the same language. In re K.M., Oh. Sup. Ct.
Case Nos. 2018-1331, 2018-1375, 2018-1376, 2018-1377, 2018-1379, 2018-1380, and
2018-1381, 2020-Ohio-995(Mar 19, 2020), ¶17.[Hereinafter referred to as In re: K.M.].
{¶31} In In re: K.M. the Ohio Supreme Court held,
We 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. And our holding
applies with equal force to Juv.R. 34(A), which contains language
essentially identical to that in R.C. 2151.35(B)(1).
2020-Ohio-995, ¶31. The Court further rejected any notion of implied waiver by a party
who fails to cooperate,
To avoid this result, the Fifth District concluded that both mothers
implicitly waived their right to a 90-day disposition. In In re K.M., the court
of appeals suggested that R.H.’s failure to cooperate with children services’
investigation required a delay in the proceedings for the juvenile court to
obtain more information. In In re D.T. and the other five related cases, after
the magistrate denied B.S.’s motions to dismiss, B.S. requested that the
magistrate set the dispositional hearing for a future date, and the court of
appeals construed that request as a waiver. The statutory language is
explicit, however, in requiring dismissal after the expiration of the 90-day
period. In the face of such language, there can be no implicit waiver of the
90-day limit.
2020-Ohio-995, ¶26 (emphasis added). Finally, the Supreme Court rejected any
argument that dismissal would create a hazardous situation for the children or leave the
children in limbo as the process starts anew,
Finally, the court of appeals in its opinions and children services in
its briefs point to the adverse consequences that would result from
construing the 90-day deadline in R.C. 2151.35(B)(1) as mandatory. The
Fifth District opined that the dismissal of cases before their final disposition
would require either that children be returned to a potentially risky home
situation or that a new complaint be filed to begin the process all over again.
We acknowledge these valid concerns. But the dismissal rule here
reflects the General Assembly’s weighing of a countervailing interest—the
fundamental right of a parent to raise one’s own children. It is not
uncommon that children and parents are left in legal limbo for months and
even years while waiting for juvenile courts to process their cases. Davis
at 528, 705 N.E.2d 1219 (Moyer, C.J., dissenting). In In re K.M., the
magistrate did not hold a dispositional hearing until 107 days after the filing
of the complaints even though R.H.’s attorney expressly stated at the end
of the adjudicatory hearing that R.H. was ready to proceed directly to the
dispositional hearing to avoid delay. In In re D.T. and the cases involving
his siblings, the juvenile-court magistrate did not begin to conduct the
dispositional hearing until 187 days after the filing of the complaints, and the
court did not enter the final dispositions until 339 days after the filing of the
complaints.
To alleviate such delays, the General Assembly crafted a solution
that balances the rights of parents with the interests of protecting children—
it provided for dismissal of a complaint without prejudice, which allows an
agency to refile a new complaint that very same day and marshal its
evidence if it still has concerns about a child’s welfare. We acknowledge
the burden that a mandatory 90-day deadline in R.C. 2151.35(B)(1) may
impose on the already-strained dockets of the juvenile courts. But
regardless of the policy concerns raised by dismissal of the complaint, our
duty is to apply the statute as written.
2020-Ohio-995, ¶ 28-30.
{¶32} In the case at bar, the complaint was filed August 24, 2018. The
dispositional hearing was held on January 9, 2019. Thus, the dispositional hearing
commenced 138 days after the complaint was filed.
{¶33} Because we have found this issue to be dispositive, we find the remaining
issues raised in Father’s Second Assignment of Error to be moot.
{¶34} Father’s Second Assignment of Error is sustained.
{¶35} We therefore reverse the judgment of the trial court terminating Appellant-
Father R.S.’s parental rights with respect to his minor child E.S. and remand this case to
the juvenile court to enter an order of dismissal of the complaint against the Appellant-
Father R.S. without prejudice. Because Mother did not appeal from the trial court’s
decision, our decision does not alter the termination of Mother’s parental rights with
respect to the minor child E.S.
By Gwin, J.,
Hoffman, P.J., and
Delaney, J., concur