In re G.T.

2022 Ohio 654

Opinion

[Cite as In re G.T., 2022-Ohio-654.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: G.T. : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2021 CA 0066 : : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Juvenile Division, Case No. 19-DEP-0028

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 7, 2022

APPEARANCES:

For Appellee RCCSB For Appellant-Mother

CHRISTOPHER W. ZUERCHER DARIN AVERY Richland County Children’s Services Attorney for Mother 731 Scholl Road 105 Sturges Avenue Mansfield, OH 44907 Mansfield, OH 44903 Richland County, Case No. 2021 CA 0066 2

Gwin, P.J.

{¶1} Appellant appeals the July 23, 2021 judgment entry of the Richland County

Court of Common Pleas, Juvenile Court, overruling Mother’s objections, adopting the

magistrate’s decision, and denying Mother’s motion to dismiss.

Facts & Procedural History

{¶2} M.G. is the Mother (“Mother”) of G.T., who was born on February 20, 2018.

S.T. is the father (“Father”) of G.T.

{¶3} On January 29, 2019, appellee Richland County Children’s Services Board

(“RCCSB”) filed a complaint alleging G.T. was a dependent and abused child. On the

same day, RCCSB also filed a motion for temporary custody, requesting the court place

G.T. in the temporary custody of his maternal grandparents with an order of protective

supervision to RCCSB. The trial court granted the motion on February 6, 2019. On

February 8, 2019, the trial court appointed attorney Jeanne Pitzer (“Pitzer”) as the

guardian ad litem for G.T.

{¶4} The trial court held a second adjudicatory hearing on March 5, 2019, and

set a final pre-trial conference for March 19, 2019. Counsel for Mother requested a

continuance of the March 19th date. The hearing was rescheduled to April 2, 2019. At

the hearing on April 2, 2019, the parties were unable to reach an agreement. Thus, the

parties requested a full evidentiary hearing as to whether G.T. was a dependent and/or

abused child. The judgment entry issued after the April 2nd hearing states, “[Father], with

representation of counsel and under oath, and [Mother], through counsel, each has

waived the timeliness requirements for dispositional hearing of R.C. 2151.35(B) * * * their Richland County, Case No. 2021 CA 0066 3

counsel has assured the Court that he would forthwith supply the Court with written

waivers executed by each said parent.”

{¶5} On April 16, 2019, both Mother and Father each executed a written

document entitled “Time Waiver (Ohio Juvenile Rule 34(A) & O.R.C. 2151.35(B)(1))” that

was filed with the trial court on April 17, 2019. The waiver provides as follows:

I have been advised and understand that pursuant to Ohio Juvenile

Rule 34(A) and O.R.C. 2151.35(B)(1) the adjudication and disposition of

this case must occur, if at all, within ninety (90) days of the filing of the

complaint; and that if case adjudication and disposition does not occur

within the specified ninety (90) day period of time, this case is subject to

being dismissed with the right of the State to refile the case.

Have been so advised, I hereby acknowledge that I understand my

right to have this case adjudicated and disposed of within the specified

ninety (90) day period of time. Having been so advised and acknowledging

my understanding herein, I hereby expressly and voluntarily waive (give up)

my right to have this case adjudicated and disposed of within the specified

ninety (90) day period of time, and consent to case adjudication and/or

disposition occurring beyond ninety (90) days of the filing of the case

Complaint.

{¶6} Counsel for Mother and Father signed each of the waivers and expressly

acknowledged, “that prior to the above signing I have informed my client of the time

requirements specified under Ohio Juvenile Rule 34(A) and O.R.C. 2151.35(B)(1). I Richland County, Case No. 2021 CA 0066 4

represent to the Court that it is counsel’s professional opinion that my client entered into

this case adjudication and disposition time waiver, knowingly and voluntarily.”

{¶7} Mother failed to appear for a May 7, 2019 hearing. At the hearing, RCCSB

orally withdrew the abuse allegations. Father appeared at the hearing, waived his trial

rights, and agreed G.T. was a dependent child. Mother’s counsel did not object on her

behalf. The trial court found by clear and convincing evidence that, based upon the

agreement of Father, lack of objection by Mother’s counsel, and the recommendation of

RCCSB, G.T. is a dependent child pursuant to R.C. 2151.04(C). Father additionally

agreed that it was in the best interest of G.T. to be placed in the temporary custody of

G.T.’s maternal grandparents. The trial court stated, “based on the agreement of Father,

the testimony of Father to Mother’s medical condition, lack of objection by Mother’s

counsel, and the recommendation of Children’s Services, this Court finds by a

preponderance of the evidence that it serves the child’s best interests to be placed in the

temporary custody of maternal grandfather * * * and to grant an order of protective

supervision to children services.”

{¶8} The magistrate issued a decision on May 20, 2019, finding G.T. is a

dependent child; placing G.T. in the temporary custody of Maternal Grandfather; and

granting an order of protective supervision to RCCSB. The trial court entered a judgment

entry on June 6, 2019, approving and adopting the magistrate’s May 20th decision.

{¶9} The trial court held a review hearing on August 2, 2019. Mother did not

appear at the hearing. The trial court continued the temporary placement with maternal

grandparents and continued the order of protective supervision to RCCSB. The trial court

held another review hearing on September 20, 2019. Mother did not appear at the Richland County, Case No. 2021 CA 0066 5

hearing. The court continued temporary custody to maternal grandparents and the order

of protective supervision to RCCSB.

{¶10} On January 13, 2020, RCCSB filed a motion for disposition, requesting

temporary custody to the maternal grandparents be terminated, the order of protective

supervision be terminated, and that temporary custody be granted to RCCSB.

{¶11} On January 28, 2020, B.T., the child’s paternal grandmother, filed a motion

to intervene and motion to modify disposition so that she could be named the legal

custodian of G.T. Father filed a motion for legal custody on February 10, 2020.

{¶12} The magistrate held a hearing on February 28, 2020. Mother and Father

did not appear for the hearing. The magistrate denied B.T.’s motion to intervene. B.T.

filed objections to the magistrate’s order. B.T. filed a second motion for disposition on

March 12, 2020, requesting she be named the legal custodian of G.T. The trial court

denied both of B.T.’s motions on June 3, 2020. B.T. filed another motion for legal custody

on October 30, 2020. The trial court denied the motion.

{¶13} Mother filed a motion for disposition and legal custody on March 3, 2020.

Mother and Father filed numerous motions regarding visitation. On July 21, 2020, Pitzer

was appointed as attorney for G.T. G.T. was then appointed a separate guardian ad

litem.

{¶14} The magistrate held a hearing on September 24, September 25, and

November 6 of 2020 on the following motions: motion of RCCSB requesting temporary

custody to maternal grandparents be terminated, the order of protective supervision be

terminated, and temporary custody be granted to RCCSB; Father’s motion for legal

custody for himself and/or his mother B.T.; Mother’s motion for disposition asking the child Richland County, Case No. 2021 CA 0066 6

be returned to her custody; and multiple motions and proposed case plan amendments

with regards to visitation.

{¶15} The magistrate issued a judgment entry on December 7, 2020, finding, by

a preponderance of the evidence, that custody to Mother, custody to Father, and custody

to B.T. was not in G.T.’s best interests. Rather, it was in the best interest of G.T. that

temporary custody be granted to RCCSB. The magistrate thus denied Mother and

Father’s motions for custody, and granted temporary custody to RCCSB.

{¶16} Mother filed objections to the magistrate’s decision on December 18, 2020.

The trial court issued a judgment entry on July 23, 2021, overruling Mother’s objections,

and adopting the December 7, 2020 magistrate’s decision.

{¶17} Mother and Father filed a joint motion to dismiss on March 3, 2021, for the

failure to conduct a dispositional hearing within 90 days of the filing of the complaint.

Mother and Father noted that RCCSB filed its complaint on January 29 2019, but did not

hold a dispositional hearing until May 7, 2019, eight days after the April 29, 2019 deadline,

and did not issue a judgment entry on the disposition until June 6, 2019. While Pitzer, as

counsel for G.T., initially signed the motion, she subsequently withdrew her endorsement

of the motion to dismiss in a written “motion to withdraw support.” Father and Mother

each filed a memorandum in support of the motion to dismiss on April 9, 2021. RCCSB

filed a memorandum in opposition to the motion to dismiss on April 30, 2021.

{¶18} The magistrate issued a decision on May 24, 2021 denying the motions to

dismiss. The magistrate found: (1) the waivers both Mother and Father executed were

effective; (2) the parents are barred from asserting their motion to dismiss by the doctrine Richland County, Case No. 2021 CA 0066 7

of laches and fundamental fairness; and (3) any delay in the dispositional hearing was

due to the acts of the parents and/or their counsel.

{¶19} Mother filed objections to the magistrate’s decision on June 7, 2021.

{¶20} The trial court issued a judgment entry on July 23, 2021, overruling Mother’s

objections and adopting the magistrate’s decision. The trial court distinguished the Ohio

Supreme Court’s decision of In re K.M., noting that the Ohio Supreme Court did not

address whether dismissal of a dependency, neglect, or abuse complaint is automatically

required when there is no direct appeal of the original case disposition. The trial court

also distinguished the two previous cases issued by this Court, finding that neither case

considered an explicit waiver of the ninety-day period or the issue of res judicata.

{¶21} The trial court found that any error in failing to dismiss was an error in the

court’s exercise of jurisdiction, rendering the June 6th judgment entry voidable, not void,

and thus it cannot be challenged via a collateral attack. The trial court found Mother failed

to preserve her objection by failing to directly appeal the June 6, 2019 judgment entry,

and is now precluded by the doctrine of res judicata from challenging any error related to

the ninety-day dismissal rule. Further, that Mother had no standing to object to the

absence of a waiver executed on behalf of G.T. because a party cannot appeal an alleged

violation of another party’s rights. Third, the trial court found that the dismissal provision

of R.C. 2151.35(B)(1) does not divest a juvenile court of post-dispositional continuing

jurisdiction under R.C. 2151.353(F)(1), because the two code sections must be read in

pari materia. Finally, the trial court stated the motion to dismiss should be overruled

because Mother executed an express written waiver of the ninety-day dismissal rule. Richland County, Case No. 2021 CA 0066 8

{¶22} Mother appeals the July 23, 2021 judgment entry of the Richland County

Court of Common Pleas, Juvenile Division, and assigns the following as error:

{¶23} “I. THE COURT ERRED IN DECLINING TO DISMISS THE CASE

WITHOUT PREJUDICE.”

{¶24} Mother asserts the trial court committed error in failing to dismiss the case,

as it failed to hold the dispositional hearing within ninety-days of the filing of the complaint.

{¶25} According to the version of R.C. 2151.35(B)(1) in effect at the time of the

proceedings,

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 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.

{¶26} RCCSB filed the complaint regarding G.T. on January 29, 2019. The

dispositional hearing in this case was not held until May 7, 2019, eight days after the time

limit contained in the version of R.C. 2151.35(B)(1) in place at the time of the proceedings

(on April 12, 2021, legislation became effective that allows the trial court, under certain

circumstances, an additional 45 days beyond the 90-day limit). Richland County, Case No. 2021 CA 0066 9

{¶27} We find Mother’s argument not well-taken for two reasons: explicit waiver

and res judicata.

Explicit Waiver

{¶28} Mother first contends that the ninety-day dismissal rule cannot be explicitly

waived. She cites the Ohio Supreme Court’s decision of In re K.M., 159 Ohio St.3d 544,

2020-Ohio-995, 152 N.E.3d 245, in support of her argument. While the Ohio Supreme

Court held that the 90-day time limit is mandatory, the Court also held, “in the face of such

language, there can be no implicit waiver of the 90-day limit.” Id. The Supreme Court did

not limit explicit waivers. During the oral argument in the K.M. case, several of the justices

discussed and proposed the use of written waivers by parents of the 90-day limit.

{¶29} While this Court has followed the holding by the Supreme Court and

dismissed complaints without prejudice where a parent has not explicitly waived the 90-

day time limit, we have not addressed the issue of whether explicit waivers of the limit

contained in R.C. 2151.35(B) are permitted. In the Matters of Z.S., C.S., and E.S., 5th

Dist. Perry Nos. 20-CA-00002, 20-CA-00003 and 20-CA-00004, 2021-Ohio-118

(dismissing case beyond the 90-day deadline when no explicit wavier). The other

appellate court districts in Ohio who have addressed the issue of whether explicit waivers

of the 90-day limit contained in R.C. 2151.35(B) are permitted have held that explicit

waivers are permitted. In the Matter of K.M. and A.M., 4th Dist. Highland No. 20CA4,

20CA6, 2020-Ohio-4476; In the Matter of L.S., 4th Dist. Ross No. 20CA3719, 2020-Ohio-

5561; In re D.G., 1st Dist. Hamilton No. C-200359, C-200371, 2021-Ohio-429.

{¶30} The parents who expressly waived the 90-day limit in In the Matter of K.M.

and A.M. and In the Matter of L.S. appealed the Fourth District’s determination that Richland County, Case No. 2021 CA 0066 10

express waivers of the 90-day deadline are permitted. They specifically argued and

asked the Ohio Supreme Court to accept the proposition of law that express waivers of

the 90-day dispositional deadline contained in R.C. 2151.35(B) are not permitted. The

Ohio Supreme Court twice declined jurisdiction of the express waiver issue, once in 2020,

and once in 2021. In re K.M., 160 Ohio St.3d 1509, 2020-Ohio-6835, 159 N.E.3d 1164;

In the Matter of L.S., 162 Ohio St.3d 1439, 2021-Ohio-1399, 166 N.E.3d 1262.

{¶31} Accordingly, we conclude that express waivers are permitted. An express

waiver is defined as a “voluntary and intentional waiver.” Black’s Law Dictionary (11th

ed. 2019). In the instant case, the parents explicitly, voluntarily, and intentionally waived

the 90-day statutory safeguard to which the Supreme Court refers to in In re K.M. They

each signed a waiver that explicitly stated what rights they were waiving, and explained,

in detail, the time limitations contained in R.C. 2151.35(B). Additionally, counsel for each

parent signed each waiver and expressly acknowledged that he informed Mother and

Father of the time requirements contained in Juvenile Rule 34(A) and R.C. 2151.35(B).

Counsel stated in the document that it was his “professional opinion that my client entered

into this case adjudication and disposition time waiver, knowingly and voluntarily.” Mother

and Father clearly and specifically chose to extend the date of the dispositional hearing.

Thus, the trial court did not commit error in overruling the motion to dismiss based upon

explicit waiver.

{¶32} Mother also contends the waiver of Mother and Father are not sufficient in

this case because the First District stated that “when all parties explicitly agree to waive

the 90-day deadline the Ohio Supreme Court ruling does not mandate dismissal with

prejudice.” In re D.G., 1st Dist. Hamilton No. C-200359, C-200371, 2021-Ohio-429. Richland County, Case No. 2021 CA 0066 11

Mother states that, pursuant to Juvenile Rule 2(Y), the GAL and the child are “parties” to

the case and, without a waiver from the GAL and the child, not all the parties have waived.

{¶33} We disagree with Mother. First, there is no discussion of the implicit or

explicit waiver of any party other than the parents in any of the cases Mother cites,

including the Ohio Supreme Court case of In re K.M.

{¶34} Further, “it is well-established that an appeal lies only on behalf of a party

aggrieved by the final order appealed from.” Ohio Contract Carriers Assn., Inc. v.

P.U.C.O., 140 Ohio St. 160, 42 N.E.2d 758 (1942). One party can neither object or appeal

by raising arguments on behalf of another person’s rights. See Moore v. City of

Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977; In re Mourey, 4th Dist.

Athens No. 02CA48, 2003-Ohio-1870 (“a party cannot appeal an alleged violation of

another party’s rights”); In the Matter of K.C., 7th Dist. Monroe No. 15 MO 0016, 2016-

Ohio-3229; C.R. v. K.R., 12th Dist. Fayette No. CA2019-02-002, 2019-Ohio-3621.

{¶35} Mother cannot raise issues on behalf of an allegedly aggrieved third-party,

particularly when that party could have appealed the issue to protect his or her own

interest. In re T.W., 1st Dist. Hamilton No. C-130080, 2013-Ohio-1754. In this case, G.T.

had an attorney appointed for him. This same attorney was the GAL, appointed to protect

the child’s interest, at the time the dispositional hearing was held outside the 90-day time

limit. Thus, she could have appealed the issue if she determined it was in the child’s best

interest or to protect his rights. The GAL/attorney for the child did not appeal, and, at the

trial court level, specifically and in writing, withdrew her support of the motion to dismiss

for the failure to hold the dispositional hearing within the 90-day deadline. Richland County, Case No. 2021 CA 0066 12

{¶36} Mother lacked standing to raise arguments or claims on behalf of the child

or the GAL, as they are non-appealing parties. See In re T.W., 1st Dist. Hamilton No. C-

130080, 2013-Ohio-1754. Thus, we overrule the portion of her assignment of error

pertaining to any alleged errors with regard to the child or the GAL because they are not

parties to this appeal. Additionally, as discussed below, Mother’s argument as to the lack

of a waiver by other parties is barred by the doctrine of res judicata.

Res Judicata

{¶37} We further find the trial court did not commit error in denying Mother’s

motion to dismiss because her arguments are barred by the doctrine of res judicata.

{¶38} In the Supreme Court case of In re K.M., the mother made her motion to

dismiss prior to the start of the dispositional hearing. 159 Ohio St.3d 544, 2020-Ohio-

995, 152 N.E.3d 245. There was a timely motion to dismiss and the issue was presented

on direct appeal. Id. This case is distinguishable because Mother did not file her motion

to dismiss until twenty-one months after the June 2019 judgment entry was issued, and

she did not file a direct appeal of the June 2019 judgment entry.

{¶39} Mother contends res judicata is inapplicable to this case because the

dispositional judgment entry was not voidable, but was void for subject-matter jurisdiction,

appealable at any time. We disagree.

{¶40} The Ohio Supreme Court held that the statute limits the juvenile court’s

authority, not eliminates it. In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d

245. The Supreme Court did not hold the trial court lacked authority or subject matter

jurisdiction. Id. A void judgment is one “entered by a court lacking subject matter

jurisdiction.” State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. Richland County, Case No. 2021 CA 0066 13

“When a case is within a court’s subject-matter jurisdiction and the parties are properly

before the court, any error in the exercise of its jurisdiction renders the court’s judgment

voidable, not void.” Id. “In general, a voidable judgment may be set aside only if

successfully challenged on direct appeal.” Id. If an entry is voidable, res judicata applies.

Id.

{¶41} R.C. 2151.23(A)(1) provides that the juvenile court “has exclusive original

jurisdiction * * * [c]oncerning any child who on or about the date specified in the complaint

* * * is alleged * * * to be an * * * abused, neglected, or dependent child.” The Ohio

Supreme Court did not hold that the 90-day deadline contained in R.C. 2151.35(B) is

jurisdictional. In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245.

Accordingly, any error the juvenile court made in proceeding on the dependency

complaint after the 90-day deadline passed in this case renders its resulting decisions

voidable, not void. In the Matter of L.S., 4th Dist. Ross No. 20CA3719, 2020-Ohio-5516.

{¶42} “Res judicata bars relitigation of a matter that was raised or could have been

raised on direct appeal when a final, appealable order was issued in accordance with the

law at the time.” State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989. “An

adjudication by a juvenile court that a child is * * * dependent as defined in R.C. Chapter

2151, followed by an order of disposition under R.C. 2151.353(A) constitutes a ‘final order’

within the meaning of R.C. 2505.02.” In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169

(1990).

{¶43} In this case, the juvenile court adjudicated G.T. a dependent child, and the

court issued a R.C. 2151.353(A) dispositional order on June 6, 2019. Mother could have

argued that the trial court violated R.C. 2151.35(B)(1) in a direct appeal from the court’s Richland County, Case No. 2021 CA 0066 14

June 6, 2019 dispositional order, but she did not timely appeal the dispositional order.

Thus, res judicata bars her from raising the issue in this appeal.

{¶44} Mother cites this Court’s previous cases of In the Matters of Z.S., C.S., and

E.S., 5th Dist. Perry Nos. 20-CA-00002, 20-CA-00003, and 20-CA-00004, 2021-Ohio-118

and In the Matter of E.S., 5th Dist. Perry No. 20CA3719, 2020-Ohio-4843, in support of

her argument. However, there was no argument in either case regarding res judicata and

we did not determine whether the entries were void or voidable. Additionally, the facts in

this case are distinguishable from the previous cases, as those cases dealt specifically

with implicit waivers, not explicit waivers.

{¶45} The Ohio Supreme Court recently accepted a proposition of law as to

whether res judicata bars a parent’s argument on appeal from a permanent custody

determination that the juvenile court failed to abide by the 90-day timeframe set forth in

R.C. 2151.35(B)(1) where the parent failed to appeal the underlying dependency

disposition. In re K.K. 164 Ohio St.3d 1440, 2021-Ohio-3233, 173 N.E.3d 1229.

{¶46} However, K.K. is factually distinguishable from the instant case, as in the

K.K. case, neither of the parents explicitly waived the 90-day deadline. In this case, both

parents signed wavier forms indicating express and explicit waiver of the statutory

requirement. Further, explicit waiver is a separate and independent basis from res

judicata for the trial court to deny the motion to dismiss in this case. Richland County, Case No. 2021 CA 0066 15

{¶47} Based on the foregoing, Mother’s assignment of error is overruled.

{¶48} The July 23, 2021 judgment entry of the Richland County Court of Common

Pleas, Juvenile Division, is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur