In re E.S.

2021 Ohio 3797

Opinion

[Cite as In re E.S., 2021-Ohio-3797.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: E.S. : JUDGES: : Hon. Craig R. Baldwin, P.J. : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. : : : Case No. 2021-CA-00011 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2021 C 018

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 25, 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 Thornville, OH 43076 Perry County, Case No. 2021-CA-00011 2

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 E.S to his paternal grandmother S.W. 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: Z.S, C.S, and E.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} Two children had aged out by the time this matter was remanded to the trial

court on January 19, 2021. On January 26, 2021 PCCPS obtained ex parte emergency

custody of the remaining minor child, E.S. A new complaint was filed the following day

and an ex parte review hearing was held. Neither of the Appellants attended. The trial

1 Hon. William B. Hoffman dissenting. Perry County, Case No. 2021-CA-00011 3

court found the ex parte order necessary and proper, maintained E.S. in the temporary

custody of PCCPS, 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 PCCPS case workers, a court services worker who testified regarding

the Appellant's drug testing and level of compliance with drug and alcohol counseling,

and E.S.'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 E.S. to be a dependent

child 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 E.S. to S.W. was within

the best interests of E.S.

{¶ 7} Appellants timely appealed. They raise one assignment of error for our

consideration as follows:

I

{¶ 1} "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"

{¶ 2} Appellants appear to advance a manifest weight argument, an analysis that

cannot be undertaken without a complete record.

{¶ 3} 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 No. 2021-CA-00011 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).

{¶ 4} 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).

{¶ 5} The Appellants sole assignment of error is therefore overruled. Perry County, Case No. 2021-CA-00011 5

{¶ 6} 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