In re K.M.

2022 Ohio 4169

Opinion

[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 - -

MS. [A.H.]: - - before I gave birth - - or before I, like - - after I gave

birth, but before Children Services.

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.

{¶ 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

{¶ 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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