[Cite as In re G.M., 2025-Ohio-1362.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: G.M. : JUDGES: : Hon. William B. Hoffman, P.J. : Hon. Andrew J. King, J. : Hon. Robert G. Montgomery, J. : : : Case No. 2025 AP 01 0003 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 24JN00291
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 17, 2025
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ROBERT BARGA TUSCARAWAS COUNTY JOB & LANE DAILY FAMILY SERVICES 320 Main Street ANDREW R. FLOOR Zanesville, OH 43701 389 16th Street SW New Philadelphia, OH 44663
Guardian ad Litem
NICHOLAS DOUGHTY 401 Tuscarawas Street Suite 201 Canton, OH 44702
Guardian – Mother
MARK PERLAKY Counsel for ONI 120 N. Broadway Street New Philadelphia, OH 44663 King, J.
{¶ 1} Appellant, Maternal Grandmother M.M. (Grandmother), appeals the
December 12, 2024 judgment of the Tuscarawas County Court of Common Pleas
Juvenile Division which dismissed Grandmother's motion for legal custody of G.M. as
untimely filed pursuant to Juv.R. 22 (E) and excused Grandmother and her attorneys from
the December 9, 2024 disposition hearing. Plaintiff-Appellee is the Tuscarawas County
Department of Job and Family Services (TCJFS).
FACTS AND PROCEDURAL HISTORY
{¶ 2} This matter began with competing Applications for Appointment of Guardian
for S.M., who is G.M.'s mother. Grandmother and the Ohio Network for Innovation (ONI)
each filed applications for the guardianship of the person only of S.M. S.M. is incompetent
due to developmental disabilities. On September 10, 2024, the trial court appointed ONI
as the guardian of the person only of S.M., and placed G.M. in the temporary custody of
TCJFS by emergency ex parte order. On September 12, 2024, G.M. was placed in the
temporary custody of TCJFS.
{¶ 3} On September 26, 2024, Grandmother filed a Motion to Intervene in the
custody matter. Grandmother argued she had acted in loco parentis for G.M. since his
birth and prior to his removal from the home. She further stated she planned to file a
motion for legal custody of G.M. TCJFS filed a memorandum contra. A hearing was held
on the matter on November 5, 2024. Tuscarawas County Common Pleas Juvenile
Division Judge Wilgus found Grandmother had not acted in loco parentis and denied the
motion to intervene. Grandmother did not appeal the judgment. {¶ 4} An adjudicatory hearing was held on November 13, 2024. The magistrate
found G.M. was a dependent child, and TCJFS had made reasonable case plan efforts
and reasonable efforts to identify and engage appropriate and willing kinship placements.
The matter was set for a disposition hearing on December 9, 2024.
{¶ 5} On November 20, 2024, Grandmother filed an objection to and a motion to
set aside the November 6, 2024 judgment denying her motion to intervene and a second
motion to intervene. TCJFS filed a memorandum contra and a motion to dismiss. The trial
court set the matter for hearing on December 3, 2024. On December 3, 2024, counsel for
Grandmother moved to dismiss the objection and motion to set aside. The trial court
dismissed both motions with prejudice.
{¶ 6} Also on December 3, 2024, Grandmother filed a motion for legal custody of
G.M. The trial court set the matter for hearing on December 9, 2024, the same day as the
previously scheduled dispositional hearing.
{¶ 7} On December 9, 2024, the magistrate dismissed Grandmother's motion for
legal custody and excused Grandmother and her attorneys from the hearing. The
magistrate found the motion was untimely filed pursuant to Juv.R. 22(E), which requires
all prehearing motions to be filed at least seven days prior to the hearing. Grandmother
did not object to the magistrate's ruling. On December 12, 2024, the magistrate issued
dispositional orders which included maintaining G.M. in the temporary custody of the
TCJFS.
{¶ 8} Grandmother filed an appeal and the matter is now before this court for
consideration. She raises three assignments of error as follow: I
{¶ 9} "THE TRIAL COURT PLAINLY ERRED WHEN IT APPLIED OHIO RULES
OF JUVENILE PROCEDURE 22(E) INSTEAD OF OHIO RULES OF JUVENILE
PROCEDURE 34(D)(3) TO THE TIMELINESS OF APPELLANT'S MOTION FOR
CUSTODY IN THE UNDERLYING CASE."
II
{¶ 10} "THE TRIAL COURT PLAINLY ERRED WHEN IT APPLIED OHIO RULES
OF JUVENILE PROCEDURE 22(E) INSTEAD OF OHIO REVISED CODE SECTION
2151.33(A)(3) TO THE TIMELINESS OF APPELLANT'S MOTION FOR CUSTODY IN
THE UNDERLYING CASE."
III
{¶ 11} "THE TRIAL COURT PLAINLY ERRED WHEN IT DISMISSED
APPELLANT'S MOTION FOR CUSTODY AS UNTIMELY FILED, AND PROCEEDED
WITHOUT HER."
Failure to Object
{¶ 12} As an initial matter, we note Grandmother failed to object to the magistrate's
decision to dismiss her motion for legal custody based on untimely filing. Grandmother
has therefore forfeited all but plain error.
{¶ 13} The application of a plain error review is limited to ". . . extremely rare
situations in which the plain-error doctrine must be invoked in order to prevent a manifest
miscarriage of justice, since the result reached by the trial court is patently" contrary to
law. Reichert v. Ingersoll, 18 Ohio St.3d 220, 223-24 (1985). "[T]he doctrine is sharply
limited to the extremely rare case involving exceptional circumstances where the error, left unobjected to at the trial court, rises to the level of challenging the legitimacy of the
underlying judicial process itself." Goldfuss v. Davidson, 1997-Ohio-401, syllabus.
{¶ 14} Grandmother's assignments of error will therefore be reviewed for plain
error.
I, II, III
{¶ 15} Because they are interrelated, we discuss Grandmother's assignments of
error together. In her first assignment of error, Grandmother argues the magistrate plainly
erred in applying the time constraints contained in Juv.R. 22(E) to her motion for legal
custody. She argues instead, that Juv.R. 34(D) is the applicable rule. In her second
assignment of error, Grandmother argues the magistrate plainly erred by applying Juv.R.
22(E) instead of Juv.R. 34(D), codified as Ohio Revised Code section 2151.353 to the
timeliness of her motion for legal custody. Grandmother's third assignment of error argues
the magistrate plainly erred by dismissing her motion for legal custody as untimely and
proceeding without her.
Analysis
{¶ 16} Juv.R. 19 requires that "[a]n application to the court for an order shall be by
motion."
{¶ 17} Juv.R. 22 governs the timing of motions. The rule states in relevant part:
(D) Prehearing Motions. Any defense, objection or request which is capable of
determination without hearing on the allegations of the complaint may be raised
before the adjudicatory hearing by motion.
*** (E) Motion Time. Except for motions filed under division (D)(5) of this rule, all
prehearing motions shall be filed by the later of:
(1) seven days prior to the hearing, or
(2) ten days after the appearance of counsel.
{¶ 18} Emphasis added.
{¶ 19} Grandmother argues Juv.R. 22 is inapplicable because her motion for legal
custody was not "capable of determination without hearing" pursuant to Juv.R. 22(D).
Instead, Grandmother argues Juv.R. 34(D) is applicable to motions for legal custody.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re G.M., 2025-Ohio-1362.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: G.M. : JUDGES: : Hon. William B. Hoffman, P.J. : Hon. Andrew J. King, J. : Hon. Robert G. Montgomery, J. : : : Case No. 2025 AP 01 0003 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 24JN00291
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 17, 2025
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ROBERT BARGA TUSCARAWAS COUNTY JOB & LANE DAILY FAMILY SERVICES 320 Main Street ANDREW R. FLOOR Zanesville, OH 43701 389 16th Street SW New Philadelphia, OH 44663
Guardian ad Litem
NICHOLAS DOUGHTY 401 Tuscarawas Street Suite 201 Canton, OH 44702
Guardian – Mother
MARK PERLAKY Counsel for ONI 120 N. Broadway Street New Philadelphia, OH 44663 King, J.
{¶ 1} Appellant, Maternal Grandmother M.M. (Grandmother), appeals the
December 12, 2024 judgment of the Tuscarawas County Court of Common Pleas
Juvenile Division which dismissed Grandmother's motion for legal custody of G.M. as
untimely filed pursuant to Juv.R. 22 (E) and excused Grandmother and her attorneys from
the December 9, 2024 disposition hearing. Plaintiff-Appellee is the Tuscarawas County
Department of Job and Family Services (TCJFS).
FACTS AND PROCEDURAL HISTORY
{¶ 2} This matter began with competing Applications for Appointment of Guardian
for S.M., who is G.M.'s mother. Grandmother and the Ohio Network for Innovation (ONI)
each filed applications for the guardianship of the person only of S.M. S.M. is incompetent
due to developmental disabilities. On September 10, 2024, the trial court appointed ONI
as the guardian of the person only of S.M., and placed G.M. in the temporary custody of
TCJFS by emergency ex parte order. On September 12, 2024, G.M. was placed in the
temporary custody of TCJFS.
{¶ 3} On September 26, 2024, Grandmother filed a Motion to Intervene in the
custody matter. Grandmother argued she had acted in loco parentis for G.M. since his
birth and prior to his removal from the home. She further stated she planned to file a
motion for legal custody of G.M. TCJFS filed a memorandum contra. A hearing was held
on the matter on November 5, 2024. Tuscarawas County Common Pleas Juvenile
Division Judge Wilgus found Grandmother had not acted in loco parentis and denied the
motion to intervene. Grandmother did not appeal the judgment. {¶ 4} An adjudicatory hearing was held on November 13, 2024. The magistrate
found G.M. was a dependent child, and TCJFS had made reasonable case plan efforts
and reasonable efforts to identify and engage appropriate and willing kinship placements.
The matter was set for a disposition hearing on December 9, 2024.
{¶ 5} On November 20, 2024, Grandmother filed an objection to and a motion to
set aside the November 6, 2024 judgment denying her motion to intervene and a second
motion to intervene. TCJFS filed a memorandum contra and a motion to dismiss. The trial
court set the matter for hearing on December 3, 2024. On December 3, 2024, counsel for
Grandmother moved to dismiss the objection and motion to set aside. The trial court
dismissed both motions with prejudice.
{¶ 6} Also on December 3, 2024, Grandmother filed a motion for legal custody of
G.M. The trial court set the matter for hearing on December 9, 2024, the same day as the
previously scheduled dispositional hearing.
{¶ 7} On December 9, 2024, the magistrate dismissed Grandmother's motion for
legal custody and excused Grandmother and her attorneys from the hearing. The
magistrate found the motion was untimely filed pursuant to Juv.R. 22(E), which requires
all prehearing motions to be filed at least seven days prior to the hearing. Grandmother
did not object to the magistrate's ruling. On December 12, 2024, the magistrate issued
dispositional orders which included maintaining G.M. in the temporary custody of the
TCJFS.
{¶ 8} Grandmother filed an appeal and the matter is now before this court for
consideration. She raises three assignments of error as follow: I
{¶ 9} "THE TRIAL COURT PLAINLY ERRED WHEN IT APPLIED OHIO RULES
OF JUVENILE PROCEDURE 22(E) INSTEAD OF OHIO RULES OF JUVENILE
PROCEDURE 34(D)(3) TO THE TIMELINESS OF APPELLANT'S MOTION FOR
CUSTODY IN THE UNDERLYING CASE."
II
{¶ 10} "THE TRIAL COURT PLAINLY ERRED WHEN IT APPLIED OHIO RULES
OF JUVENILE PROCEDURE 22(E) INSTEAD OF OHIO REVISED CODE SECTION
2151.33(A)(3) TO THE TIMELINESS OF APPELLANT'S MOTION FOR CUSTODY IN
THE UNDERLYING CASE."
III
{¶ 11} "THE TRIAL COURT PLAINLY ERRED WHEN IT DISMISSED
APPELLANT'S MOTION FOR CUSTODY AS UNTIMELY FILED, AND PROCEEDED
WITHOUT HER."
Failure to Object
{¶ 12} As an initial matter, we note Grandmother failed to object to the magistrate's
decision to dismiss her motion for legal custody based on untimely filing. Grandmother
has therefore forfeited all but plain error.
{¶ 13} The application of a plain error review is limited to ". . . extremely rare
situations in which the plain-error doctrine must be invoked in order to prevent a manifest
miscarriage of justice, since the result reached by the trial court is patently" contrary to
law. Reichert v. Ingersoll, 18 Ohio St.3d 220, 223-24 (1985). "[T]he doctrine is sharply
limited to the extremely rare case involving exceptional circumstances where the error, left unobjected to at the trial court, rises to the level of challenging the legitimacy of the
underlying judicial process itself." Goldfuss v. Davidson, 1997-Ohio-401, syllabus.
{¶ 14} Grandmother's assignments of error will therefore be reviewed for plain
error.
I, II, III
{¶ 15} Because they are interrelated, we discuss Grandmother's assignments of
error together. In her first assignment of error, Grandmother argues the magistrate plainly
erred in applying the time constraints contained in Juv.R. 22(E) to her motion for legal
custody. She argues instead, that Juv.R. 34(D) is the applicable rule. In her second
assignment of error, Grandmother argues the magistrate plainly erred by applying Juv.R.
22(E) instead of Juv.R. 34(D), codified as Ohio Revised Code section 2151.353 to the
timeliness of her motion for legal custody. Grandmother's third assignment of error argues
the magistrate plainly erred by dismissing her motion for legal custody as untimely and
proceeding without her.
Analysis
{¶ 16} Juv.R. 19 requires that "[a]n application to the court for an order shall be by
motion."
{¶ 17} Juv.R. 22 governs the timing of motions. The rule states in relevant part:
(D) Prehearing Motions. Any defense, objection or request which is capable of
determination without hearing on the allegations of the complaint may be raised
before the adjudicatory hearing by motion.
*** (E) Motion Time. Except for motions filed under division (D)(5) of this rule, all
prehearing motions shall be filed by the later of:
(1) seven days prior to the hearing, or
(2) ten days after the appearance of counsel.
{¶ 18} Emphasis added.
{¶ 19} Grandmother argues Juv.R. 22 is inapplicable because her motion for legal
custody was not "capable of determination without hearing" pursuant to Juv.R. 22(D).
Instead, Grandmother argues Juv.R. 34(D) is applicable to motions for legal custody.
That rule addresses dispositional orders and states in relevant part:
(D) Dispositional Orders. If a child is adjudicated an abused,
neglected, or dependent child, the court may make any of the
following orders of disposition:
(1) Place the child in protective supervision;
(2) Commit the child to the temporary custody of a public or private
agency, either parent, a relative residing within or outside the state,
or a probation officer for placement in a certified foster home or
approved foster care;
(3) Award legal custody of the child to either parent or to any other
person who, prior to the dispositional hearing, files a motion
requesting legal custody; . . . {¶ 20} Emphasis added.
{¶ 21} Grandmother also argues the magistrate plainly erred by applying Juv.R.
22(E) rather than R.C. 2151.353(A)(2) to the timeliness of her motion. That section mirrors
Juv.R. 34(D), stating in relevant part, "[i]f a child is adjudicated an abused, neglected, or
dependent child, the court may . . . [a]ward legal custody of the child to either parent or
to any person who, prior to the dispositional hearing, files a motion requesting legal
custody of the child."
{¶ 22} Grandmother understands Juv.R. 34(D)(3) and R.C. 2151.353(A)(3) as
meaning a motion for legal custody may be filed at any time before the dispositional
hearing. We disagree. As the Twelfth District has noted:
R.C. 2151.353(A)(3)'s requirement that the motion for legal custody
be filed prior to the dispositional hearing should be read in
conjunction with Juv.R.19, which requires that "an application to the
court for an order shall be by motion." Juv.R. 22(E) further requires
that "all prehearing motions shall be filed by the earlier of: (1) seven
days prior to the hearing, or (2) ten days after the appearance of
counsel." Beyond the importance of formal notice, a filing prior to the
dispositional hearing demonstrates a commitment by the party
requesting custody to the responsibilities involved in the care and
custody of a young child. Last minute, "hallway pressure" is
eliminated by the requirement of filing in advance. {¶ 23} In re C.P. 2011-Ohio-4563 ¶ 23 (12th Dist.), emphasis added; accord In re
L.R.T, 2006-Ohio-207, ¶ 13, (12th Dist.); In re C.T. 2005-Ohio-887, ¶ 18-22 (8th Dist.)
("Compliance with the statutory mandates in R.C. 2151, et seq. and the rules of juvenile
procedure is mandatory.")
{¶ 24} Our reading of Juv.R. 34(D) and R.C. 2151.353(A)(3) is that each applies
only to what a trial court may do at a dispositional hearing after having determined at an
adjudicatory hearing that a child is dependent, neglected, or abused, and to whom the
trial court may award legal custody. Juv.R. 22(E) applies to the timing requirements of
motions made before a dispositional hearing. It is undisputed that Grandmother failed to
timely file a motion for legal custody of G.M., and further failed to object to the magistrate's
decision dismissing her untimely motion and excluding her from the dispositional hearing.
We find a timely motion for legal custody pursuant to Juv.R. 22(E) must precede the
dispositional hearing. Accordingly, we find no error, plain or otherwise. Grandmother's
three assignments of error are overruled. {¶ 25} The judgment of the Tuscarawas County Court of Common Pleas. Juvenile
Division, is affirmed.
By: King, J.
Hoffman, P.J. and
Montgomery, J. concur.