In re S.H.

2018 Ohio 5007

• Court: Ohio Court of Appeals
• Decided: December 12, 2018
• Docket: 18-CA-34
• Status: Published

Opinion

[Cite as In re S.H., 2018-Ohio-5007.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTERS OF S.H. AND T.H. : JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. : : : Case No. 18-CA-34 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Probate Division, Case Nos. C2011-0018 and C2011-0019

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 12, 2018

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

WILLIAM PAUL BRINGMAN CAROLYN CARNES Bringman Legal Co., L.P.A. Assistant Prosecuting Attorney 7100 N. High St., Suite 101 Licking County Worthington, Ohio 43085-2316 20 South Second Street, 4th Fl. Newark, Ohio 43055 Licking County, Case No. 18-CA-34 2

Baldwin, J.

{¶1} William Bringman appeals the April 13, 2018 judgment entry of the trial court

denying his second motion for relief from judgment. The State of Ohio is appellee.

STATEMENT OF FACTS AND THE CASE

{¶2} Appellant was appointed to serve as guardian ad litem for the dependent

children named in the caption of this case. On February 10, 2017 the trial court, sua

sponte, removed the appellant as guardian ad litem “because he has not fulfilled the

continuing educational requirements required under the rules of superintendence.”

(Judgment Entry, February 10, 2017, Docket 116). Appellant did not file an appeal from

this order.

{¶3} Appellant filed a motion for relief from judgment on February 21, 2017,

attached to it a copy of a certificate of participation in a seminar purportedly sponsored

by the Supreme Court of Ohio. Appellant explained that he had completed the continuing

education requirements but inadvertently did not attach a copy of the certificate to his

annual report. He cites Section 2.1 of the Code of Judicial Conduct suggesting it obligates

the trial court to compel him to appear at a hearing prior to removing him as guardian ad

litem. The trial court denied the motion on February 22, 2017. Appellant did not appeal

from this order.

{¶4} Appellant presented a second motion for relief from judgment in April 2017.

The trial court refused to accept the filing and appellant filed a petition for a writ of

mandamus and procedendo in this court to compel the trial court to accept the motion

and conduct a hearing. (State of Ohio ex rel William Paul Bringman vs. Robert Hoover,

Judge, 5th Dist. Licking No. 2017CA0052). On February 5, 2018, the trial court issued an Licking County, Case No. 18-CA-34 3

order granting appellant the opportunity to be heard on the motion for relief. We dismissed

appellant’s petition as being moot.

{¶5} The trial court’s entry of February 5, 2018 offered appellant the opportunity

to participate in an oral hearing on all the issues raised contingent upon his submitting a

request for hearing. Appellant filed his request for hearing on February 12, 2018 and a

hearing was conducted on April 12, 2018. In the intervening weeks appellant filed a

motion requesting that the trial court judge recuse himself from hearing. The motion was

denied based upon the fact that the Supreme Court of Ohio rendered a decision

dismissing appellants’ affidavit of disqualification filed against the judge. Appellant also

filed complaints with the Disciplinary Council of the Supreme Court of Ohio regarding the

judge’s actions. Both complaints were rejected.

{¶6} At the April 12, 2018 hearing, Appellant repeated his assertion that he made

a mistake in 2017 by failing to document his compliance with Rule 48 of the Rules of

Superintendence regarding continuing education requirements. The trial court denied

appellants’ second motion for relief from judgment finding that the relief requested was

not supported by the facts or the law.

{¶7} Appellant filed a notice of appeal from the April 13, 2018 entry and listed

seven assignments of error:

{¶8} “I. THE TRIAL COURT ERRED IN REMOVING APPELLANT AS

GUARDIAN AD LITEM FOR THE CHILDREN FOR FAILURE TO MEET THE

EDUCATIONAL REQUIREMENTS TO MAINTAIN SAID STATUS.” Licking County, Case No. 18-CA-34 4

{¶9} “II. THE TRIAL COURT ERRED IN DENYING THE MOTIONS OF

APPELLANT FOR RELIEF FROM JUDGMENT THAT APPELLANT BE REMOVED AS

GUARDIAN AD LITEM.”

{¶10} “III. THE TRIAL COURT ERRED IN ENGAGING COUNSEL TO

REPRESENT HIM IN THE EFFORT OF APPELLANT TO HAVE APPELLANT

REINSTATED AS GUARDIAN AD LITEM FOR THE MINOR CHILDREN HEREIN.”

{¶11} “IV. THE TRIAL COURT ERRED IN APPOINTING A SUCCESSOR

GUARDIAN AD LITEM AFTER APPELLANT FILED HIS MOTIONS FOR RELIEF FROM

JUDGMENT.”

{¶12} V. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

CERTIFY AND TRANSMIT APPELLANT'S MOTIONS FOR RELIEF FROM JUDGMENT

TO THIS COURT FOR PURPOSES OF THIS APPEAL.”

{¶13} “VI. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE COURT

EXHIBITS THAT WERE NEITHER OFFERED INTO EVIDENCE OR TESTIFIED ABOUT

IN THE COURSE OF THE HEARING ON THE MOTIONS FOR RELIEF FROM

JUDGMENT CONDUCTED BY THE TRIAL COURT.”

{¶14} “VII. THE TRIAL COURT ERRED IN ORDERING TRANSMITTED TO THE

COURT OF APPEALS ALL DOCKET ENTRIES OF THE TRIAL COURT FILED

THEREIN AFTER THE NOTICE OF APPEAL WAS FILED HEREIN OTHER THAN THE

OMITTED MOTION FOR RELIEF FROM JUDGMENT FILED BY APPELLANT AND THE

TRIAL COURT'S ENTRY WITH RESPECT THERETO.”

{¶15} Preliminarily, we note that one of the dependent children, S. H., is no longer

in the custody of the state effective May 25, 2018. Consequently, with regard to that child, Licking County, Case No. 18-CA-34 5

appellant’s appeal is moot and hereby dismissed. We also note that the other child

became 18 years of age on November 6, 2018 and likely will be emancipated at the next

annual review.

ANALYSIS

{¶16} Appellant claims he is appealing from the April 13, 2018 order of the trial

court, but his brief reveals he is appealing the trial court’s order of February 10, 2017

removing him as guardian ad litem. His first assignment of error makes his intent clear

when he cites the removal as error and the conclusion of his brief confirms his goal by

asking that the order of removal be vacated. The February 10, 2018 order removing

appellant as guardian ad litem was a final appealable order. “A person who is removed

as a guardian has a recourse in the appellate courts.” In re Guardianship of Thomas, 10th

Dist. Franklin No. 16AP-292, 2016-Ohio-7793, ¶ 12. A right to appeal has been

recognized when the guardian’s reputation for discretion, capacity, sound judgment, or

even honesty, may be involved. Ensign v. Faxon (1916), 224 Mass. 145, 112 N.E. 948

cited with approval in In re Guardianship of Love, 19 Ohio St.2d 111, 114, 249 N.E.2d

794, 796 (1969).

{¶17} Appellant was obligated to appeal the decision of the trial court within thirty

days, but instead filed a motion for relief from judgment (App.R. 4) and the time for appeal

has expired. “A Civ.R. 60(B) motion for relief from judgment cannot be used as a

substitute for a timely appeal or as a means to extend the time for perfecting an appeal

from the original judgment.” Key v. Mitchell, 81 Ohio St.3d 89, 1998-Ohio-643, 689 N.E.2d

548 (1998). We find that this appeal was untimely filed with regard to the central issue,

the removal of appellant as guardian. Even if we were to use February 22, 2017, the date Licking County, Case No. 18-CA-34 6

of the first entry denying the motion to vacate, as the date of the final appealable order,

the notice of appeal would be delinquent. Appellant’s second motion to vacate the

judgement entries of February 10, 2017 and February 22, 2017 removing him as guardian

and denying his first motion for relief from judgment likewise does not serve to extend the

time for appeal.

{¶18} Appellant’s first assignment of error is denied and, because the remaining

assignments of error are inextricably involved with the first assignment of error, we find

that the remaining assignments are moot.

{¶19} The decision of the Licking County Court of Common Pleas, Probate

Division is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.