[Cite as In re S.R., 2015-Ohio-3328.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: S.R. C.A. No. 27519
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 12-03-146
DECISION AND JOURNAL ENTRY
Dated: August 19, 2015
HENSAL, Presiding Judge.
{¶1} Appellant, Rodney R. (“Father”), appeals from an order of the Summit County
Court of Common Pleas, Juvenile Division, that denied his motion to dismiss the complaint,
which was based on the trial court’s alleged failure to comply with the time constraints of
Revised Code Section 2151.35(B)(1) and Juvenile Rule 34(A). This Court dismisses the appeal
for lack of a final, appealable order.
I.
{¶2} Father is the natural father of S.R., who was born January 23, 2004, in California,
where Father continued to reside. S.R. later moved with her mother to Summit County, Ohio.
On March 4, 2012, S.R. was removed from her mother’s home and, the next day, Summit
County Children Services Board (“CSB”) filed a complaint, alleging that S.R. was a neglected
and dependent child. Father was identified on the complaint as the only man alleged to be S.R.’s
father and was served with the complaint and subsequent trial court notices at the same 2
California address throughout the trial court proceedings. Nonetheless, Father was not included
in the case plan, and the record included no explanation for the agency’s failure to include him.
{¶3} Father communicated with CSB via telephone several times during this case, but
he did not attend any of the proceedings before the trial court, nor was he represented by counsel.
During the trial court proceedings, CSB did not disclose to the court that it had received
communications from Father and, in fact, suggested to the court that it did not know how to
reach Father.
{¶4} S.R. was adjudicated a dependent child and placed in the temporary custody of
CSB. CSB later moved for permanent custody of S.R. The mother appeared at the hearing and
voluntarily relinquished her parental rights. Father was again not present, but the agency
presented evidence from which the trial court later concluded that S.R. had been in the temporary
custody of CSB for more than 12 or the prior 22 months and that permanent custody was in her
best interest.
{¶5} After the final judgment, the trial court appointed counsel to represent Father on
appeal. Father raised two assignments of error, and, after this Court’s initial review of the
record, it asked the parties to address a supplemental issue: whether the trial court committed
plain error by terminating Father’s rights despite CSB’s failure to include him in any case
planning or reunification efforts. This Court found merit in that supplemental issue, under the
specific facts of this case, and reversed and remanded the permanent custody judgment on that
basis. In re S.R., 9th Dist. Summit No. 27209, 2014-Ohio-2749, ¶ 34.
{¶6} On remand, Father moved to dismiss the complaint. Father asserted that, because
this Court had held that the trial court had erred in adopting case plans that failed to include
Father, the trial court was required to hold a new dispositional hearing and adopt a new, legally 3
sufficient case plan. Father pointed to the language of Revised Code Section 2151.35(B)(1) and
Juvenile Rule 34(A), which require that the initial dispositional hearing be held within 90 days of
the filing of the complaint. Because a new dispositional hearing could not be held within the 90-
day time period, as the complaint had been filed more than two years earlier, Father argued that
the trial court was required to dismiss the complaint.
{¶7} The trial court denied Father’s motion to dismiss the complaint, reasoning that
this Court’s mandate on remand did not nullify the trial court’s initial dispositional hearing,
which was held within the time constraints set forth in the Revised Code and the Juvenile Rules.
Father appeals and raises one assignment of error.
II.
{¶8} During the pendency of this appeal, this Court ordered the parties to brief the
issue of its jurisdiction to hear the appeal. Father filed a brief that argued in support of
jurisdiction, and CSB argued that the appeal should be dismissed for lack of a final, appealable
order. The matter proceeded through briefing on the merits, but this Court first must address
whether it has jurisdiction to hear this appeal.
{¶9} Article IV, Section 3(B)(2) of the Ohio Constitution limits this Court's appellate
jurisdiction to the review of final judgments of lower courts. “Generally, whether an order is
final and appealable is determined by the effect the order has on the pending action, rather than
the name attached to the order or its general nature.” In re T.G., 12th Dist. Butler No. 2008-01-
026, 2008-Ohio-4165, ¶ 14.
{¶10} Under Revised Code Section 2505.02(B)(2), an order is final and appealable if it
“affects a substantial right made in a special proceeding.” This dependency action is governed
by a statutory scheme set forth in Revised Code Chapter 2151 that was not recognized by 4
common law. In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, ¶ 43. Consequently, it is not
disputed that Father appeals from an order that was made in a special proceeding.
{¶11} The pivotal question here is whether the order appealed by Father “affects a
substantial right.” Section 2505.02(A)(1) defines “substantial right” as “a right that the United
States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure
entitles a person to enforce or protect.” Moreover, an order does not “affect[] a substantial right”
under Section 2505.02(B)(2) unless it is one that, “‘if not immediately appealable, would
foreclose appropriate relief in the future.’” Southside Community Dev. Corp. v. Levin, 116 Ohio
St.3d 1209, 2007-Ohio-6665, ¶ 7, quoting Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63
(1993).
{¶12} A party’s inability to seek “appropriate relief in the future” has been equated with
having “virtually no opportunity for an appellate court to provide relief on appeal after final
judgment from an order that allegedly prejudiced a legally protected right.” State v. Chalender,
99 Ohio App.3d 4, 7 (2d Dist.1994). A substantial right is not affected merely because the
parties must wait until the final disposition to seek review of interlocutory issues in a
dependency and neglect case. See In re Adams, 2007-Ohio-4840, at ¶ 44.
{¶13} In abuse, neglect, and dependency cases, the Ohio Supreme Court has identified
one order that is appealable prior to the final placement of the child: the juvenile court’s
adjudication that a child is abused, neglected and/or “‘dependent’, as defined in R.C. Chapter
2151 followed by a disposition awarding temporary custody to a children services agency[.]” In
re Murray, 52 Ohio St.3d 155 (1990), syllabus. The Court reasoned in Murray that the parents
would not have an adequate opportunity to appeal the adjudication through a later appeal because
the initial adjudication of the child would not be re-litigated; the ultimate disposition of the child 5
may not result in a permanent removal from the home; and the initial “temporary” removal of the
child could last as long as two years. See Adams at ¶ 38-39.
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[Cite as In re S.R., 2015-Ohio-3328.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: S.R. C.A. No. 27519
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 12-03-146
DECISION AND JOURNAL ENTRY
Dated: August 19, 2015
HENSAL, Presiding Judge.
{¶1} Appellant, Rodney R. (“Father”), appeals from an order of the Summit County
Court of Common Pleas, Juvenile Division, that denied his motion to dismiss the complaint,
which was based on the trial court’s alleged failure to comply with the time constraints of
Revised Code Section 2151.35(B)(1) and Juvenile Rule 34(A). This Court dismisses the appeal
for lack of a final, appealable order.
I.
{¶2} Father is the natural father of S.R., who was born January 23, 2004, in California,
where Father continued to reside. S.R. later moved with her mother to Summit County, Ohio.
On March 4, 2012, S.R. was removed from her mother’s home and, the next day, Summit
County Children Services Board (“CSB”) filed a complaint, alleging that S.R. was a neglected
and dependent child. Father was identified on the complaint as the only man alleged to be S.R.’s
father and was served with the complaint and subsequent trial court notices at the same 2
California address throughout the trial court proceedings. Nonetheless, Father was not included
in the case plan, and the record included no explanation for the agency’s failure to include him.
{¶3} Father communicated with CSB via telephone several times during this case, but
he did not attend any of the proceedings before the trial court, nor was he represented by counsel.
During the trial court proceedings, CSB did not disclose to the court that it had received
communications from Father and, in fact, suggested to the court that it did not know how to
reach Father.
{¶4} S.R. was adjudicated a dependent child and placed in the temporary custody of
CSB. CSB later moved for permanent custody of S.R. The mother appeared at the hearing and
voluntarily relinquished her parental rights. Father was again not present, but the agency
presented evidence from which the trial court later concluded that S.R. had been in the temporary
custody of CSB for more than 12 or the prior 22 months and that permanent custody was in her
best interest.
{¶5} After the final judgment, the trial court appointed counsel to represent Father on
appeal. Father raised two assignments of error, and, after this Court’s initial review of the
record, it asked the parties to address a supplemental issue: whether the trial court committed
plain error by terminating Father’s rights despite CSB’s failure to include him in any case
planning or reunification efforts. This Court found merit in that supplemental issue, under the
specific facts of this case, and reversed and remanded the permanent custody judgment on that
basis. In re S.R., 9th Dist. Summit No. 27209, 2014-Ohio-2749, ¶ 34.
{¶6} On remand, Father moved to dismiss the complaint. Father asserted that, because
this Court had held that the trial court had erred in adopting case plans that failed to include
Father, the trial court was required to hold a new dispositional hearing and adopt a new, legally 3
sufficient case plan. Father pointed to the language of Revised Code Section 2151.35(B)(1) and
Juvenile Rule 34(A), which require that the initial dispositional hearing be held within 90 days of
the filing of the complaint. Because a new dispositional hearing could not be held within the 90-
day time period, as the complaint had been filed more than two years earlier, Father argued that
the trial court was required to dismiss the complaint.
{¶7} The trial court denied Father’s motion to dismiss the complaint, reasoning that
this Court’s mandate on remand did not nullify the trial court’s initial dispositional hearing,
which was held within the time constraints set forth in the Revised Code and the Juvenile Rules.
Father appeals and raises one assignment of error.
II.
{¶8} During the pendency of this appeal, this Court ordered the parties to brief the
issue of its jurisdiction to hear the appeal. Father filed a brief that argued in support of
jurisdiction, and CSB argued that the appeal should be dismissed for lack of a final, appealable
order. The matter proceeded through briefing on the merits, but this Court first must address
whether it has jurisdiction to hear this appeal.
{¶9} Article IV, Section 3(B)(2) of the Ohio Constitution limits this Court's appellate
jurisdiction to the review of final judgments of lower courts. “Generally, whether an order is
final and appealable is determined by the effect the order has on the pending action, rather than
the name attached to the order or its general nature.” In re T.G., 12th Dist. Butler No. 2008-01-
026, 2008-Ohio-4165, ¶ 14.
{¶10} Under Revised Code Section 2505.02(B)(2), an order is final and appealable if it
“affects a substantial right made in a special proceeding.” This dependency action is governed
by a statutory scheme set forth in Revised Code Chapter 2151 that was not recognized by 4
common law. In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, ¶ 43. Consequently, it is not
disputed that Father appeals from an order that was made in a special proceeding.
{¶11} The pivotal question here is whether the order appealed by Father “affects a
substantial right.” Section 2505.02(A)(1) defines “substantial right” as “a right that the United
States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure
entitles a person to enforce or protect.” Moreover, an order does not “affect[] a substantial right”
under Section 2505.02(B)(2) unless it is one that, “‘if not immediately appealable, would
foreclose appropriate relief in the future.’” Southside Community Dev. Corp. v. Levin, 116 Ohio
St.3d 1209, 2007-Ohio-6665, ¶ 7, quoting Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63
(1993).
{¶12} A party’s inability to seek “appropriate relief in the future” has been equated with
having “virtually no opportunity for an appellate court to provide relief on appeal after final
judgment from an order that allegedly prejudiced a legally protected right.” State v. Chalender,
99 Ohio App.3d 4, 7 (2d Dist.1994). A substantial right is not affected merely because the
parties must wait until the final disposition to seek review of interlocutory issues in a
dependency and neglect case. See In re Adams, 2007-Ohio-4840, at ¶ 44.
{¶13} In abuse, neglect, and dependency cases, the Ohio Supreme Court has identified
one order that is appealable prior to the final placement of the child: the juvenile court’s
adjudication that a child is abused, neglected and/or “‘dependent’, as defined in R.C. Chapter
2151 followed by a disposition awarding temporary custody to a children services agency[.]” In
re Murray, 52 Ohio St.3d 155 (1990), syllabus. The Court reasoned in Murray that the parents
would not have an adequate opportunity to appeal the adjudication through a later appeal because
the initial adjudication of the child would not be re-litigated; the ultimate disposition of the child 5
may not result in a permanent removal from the home; and the initial “temporary” removal of the
child could last as long as two years. See Adams at ¶ 38-39.
{¶14} Moreover, the Ohio Supreme Court later held that the adjudication and initial
temporary custody disposition cannot be challenged through a timely appeal from the final
dispositional order. In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 18. Therefore, if parents
had no right to an immediate appeal from the adjudication and initial disposition of the child,
they would have no opportunity to seek appellate review.
{¶15} Although Father’s brief in support of jurisdiction argues otherwise, in In re Z.H.,
9th Dist. Summit No. 26844, 2013-Ohio-3904, this Court did not recognize a right to appeal
from an order issued after the adjudication and initial disposition, but merely extended the
rationale of Murray and Adams to the unique facts of the case. In Z.H., this Court found that it
had jurisdiction to address the father’s collateral attack of the adjudication and initial disposition
of his child because he had not been served with notice of the proceedings until long after the
time to appeal that order had lapsed. Consequently, the father was deprived of his right to
participate in the trial court proceedings or to appeal from the adjudication and initial disposition
of his child. Id. at ¶ 21. In that specific situation, because the father might have otherwise been
foreclosed from seeking appellate review of the adjudication and initial disposition of his child,
this Court had jurisdiction to hear the appeal from the trial court’s denial of his motion to vacate
the judgment. See id. at ¶ 11.
{¶16} Father does not attempt to appeal from an order that bears any of the same indicia
of finality. Notably, unlike the father in Z.H., Father was not previously and will not be
foreclosed from seeking appropriate relief through an appeal after the conclusion of the trial
court proceedings. He was given timely notice of all of the trial court proceedings, but did not 6
personally appear for any of the hearings. He could have, but did not, file a timely appeal from
the adjudication and initial disposition of S.R.
{¶17} Although Father makes other arguments on appeal, his written motion to dismiss
the complaint, and the trial court’s order denying it, were solely based on Revised Code Section
2151.35(B)(1) and Juvenile Rule 34(A). Both the statute and rule provide that, after the trial
court adjudicates a child as abused, neglected, or dependent, it “shall not issue a dispositional
order” until after it holds a separate dispositional hearing, which “shall not be held more than
ninety days after the date on which the complaint in the case was filed.” If the trial court fails to
comply with this 90-day time limitation, the statute and the rule further provide that “the court,
on * * * the motion of any party * * *, shall dismiss the complaint without prejudice.”
{¶18} To begin with, this Court must emphasize that a juvenile court’s denial of a
motion to dismiss a dependency complaint for failure to comply with the 90-day time
requirement will typically accompany the initial dispositional order for the child and, therefore,
be subject to immediate appellate review. It is apparent from the plain language of Revised
Code Section 2151.35(B)(1) and Juvenile Rule 34(A) that the 90-day time limit of applies to the
initial dispositional order in the case.
{¶19} Moreover, the 90-day time constraint is a procedural mechanism that reflects a
“legislative intent to expedite hearings in child-custody cases[.]” In re Brown, 96 Ohio App.3d
306, 310 (2d Dist.1994). The trial court’s denial of Father’s motion to dismiss the complaint on
this procedural basis was akin to the denial of a motion to dismiss a criminal complaint for the
trial court’s failure to comply with the time limits of the speedy trial statutes. See R.C. 2945.71-
2945.73. The purpose of dismissing a criminal complaint for speedy trial violations similarly 7
reflects a policy that balances the needs of the accused and the public to ensure a prompt
resolution of the proceedings. See United States v. Ewell, 383 U.S. 116, 120 (1966).
{¶20} Although the requirements and policy behind the time constraints in the juvenile
and criminal proceedings are similar, the sanction for an untimely dispositional hearing in a
dependency case is purely procedural, as the dismissal is without prejudice and allows the
agency to file a new complaint. See R.C. 2151.35(B)(1); Juv.R. 34(A). A speedy trial violation
has far more significant implications on the rights of a criminal defendant, as such a violation
requires dismissal of the complaint with prejudice, barring new charges against the defendant
based on the same conduct. See R.C. 2945.72(D).
{¶21} Nevertheless, Ohio does not recognize the denial of a motion to dismiss a
complaint on speedy trial grounds as a final, appealable order. See, e.g., State v. Orr, 8th Dist.
Cuyahoga No. 100931, 2014-Ohio-4814, ¶ 15; State v. Serednesky, 7th Dist. Mahoning No. 99
CA 77, 1999 WL 1124763 (Nov. 22, 1999); State v. Hare, 10th Dist. Franklin No. 88AP-683,
1989 WL 73901 (July 6, 1989); Middletown v. Jackson, 8 Ohio App.3d 431, 431-432 (12th
Dist.1983). Instead, it is subject to appellate review after the proceedings conclude, if the
defendant is convicted and sentenced. See State v. Siler, 57 Ohio St.2d 1 (1979).
{¶22} Although the finality analysis in criminal proceedings is under Revised Code
Section 2505.02(B)(1), rather than Section 2505.02(B)(2), the speedy trial cases illustrate that
appellate review is not foreclosed by requiring the defendant to wait until after the final
judgment. Consequently, Father has failed to demonstrate that the trial court’s denial of his
motion to dismiss the complaint is a final, appealable order.
{¶23} Father has failed to demonstrate that he would be foreclosed from seeking
appellate review of the trial court’s order denying his motion to dismiss after the final disposition 8
in this case. Consequently, this Court must dismiss the appeal for lack of a final, appealable,
order.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL FOR THE COURT
WHITMORE, J. MOORE, J. CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
TONY PAXTON, Attorney at Law, for Appellee.
LINDA BENNETT, Guardian ad Litem.