[Cite as In re X.M., 2023-Ohio-3956.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: X.M. C.A. No. 30699
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 21 04 0257
DECISION AND JOURNAL ENTRY
Dated: November 1, 2023
HENSAL, Presiding Judge.
{¶1} Appellant X.M. appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that vacated its prior order dismissing X.M.’s case. This Court reverses
and remands.
I.
{¶2} Mother gave birth to X.M. (alternatively, “Child”) on April 6, 2016. Genetic testing
excluded the two men identified by Mother as alleged fathers for the child. X.M.’s paternity has
never been determined.
{¶3} In April 2021, Summit County Children Services Board (“CSB” or “the agency”)
filed a complaint alleging that X.M. and his two siblings were abused, neglected, and dependent
children. Because X.M.’s father was unknown, CSB instructed the clerk of court to serve “John
Doe,” Child’s alleged father, with summons and the complaint. Although John Doe’s residence
was unknown, the agency instructed the clerk to serve him by posting and certificate of mailing. 2
After adjudicatory and dispositional hearings, the juvenile court found that X.M. was abused,
neglected, and dependent as alleged in the complaint; and placed him in the agency’s temporary
custody.
{¶4} Subsequently, this Court issued our opinion in In re C.H., 9th Dist. Summit No.
29995, 2021-Ohio-3992, wherein we held that the agency has not effectuated proper service of a
complaint on a parent by posting and mailing pursuant to Civil Rule 4.4(A)(2), where it has not
included the parent’s last known address in its affidavit accompanying its instructions to the clerk
for service. Id. at ¶29. Thereafter, X.M. filed a motion to dismiss his case based on the agency’s
failure to perfect service on John Doe.
{¶5} Mother filed a motion to dismiss the complaints regarding all three children, raising
both substantive and procedural grounds. Based on concerns that the three siblings were in
imminent danger in their respective foster care placements, the maternal grandmother
(“Grandmother”) filed a motion for emergency temporary custody of the children. The magistrate
scheduled a shelter care hearing two days later to address Grandmother’s motion.
{¶6} In addition to Mother, a father of one of the siblings, their attorneys, X.M.’s
attorney, and the guardian ad litem, the assistant prosecutor and two representatives from CSB
attended the shelter care hearing. Grandmother presented two witnesses who were also subject to
cross-examination. After the guardian ad litem rendered his opinion, the magistrate informed the
parties that he found no probable cause to remove the children from agency custody or place them
in the emergency temporary custody of Grandmother.
{¶7} Prior to adjourning the shelter care hearing, the magistrate noted that Mother and
X.M. each had pending motions to dismiss. Counsel for X.M. told the magistrate that he was not
requesting an evidentiary hearing on his motion and that he would agree to the magistrate’s ruling 3
on the written motion. Child’s attorney further had no objection to allowing CSB to file a brief in
opposition. The magistrate then inquired of the assistant prosecutor:
Magistrate: [A]re you okay as it’s submitted or would you - - or does anybody need - - or do you need a response time - -
Assistant Prosecutor: No, Your Honor. We’re fine. Thank you.
Magistrate: - - with just having me rule on it?
Assistant Prosecutor: Yes.
The magistrate asked the remaining attorneys if they would agree to the court’s ruling on the two
pending motions to dismiss “without any further argument[.]” All parties agreed to forego a
hearing on the motions and allow the magistrate to rule on the issues as briefed.
{¶8} On February 9, 2022, the magistrate issued a decision granting X.M.’s motion to
dismiss based on CSB’s failure to perfect service on John Doe. The magistrate denied all other
motions as moot and closed Child’s case. The juvenile court adopted the magistrate’s decision the
same day. The decision contained the notice pursuant to Rule 40 of the Juvenile Rules that any
party could file an objection within 14 days. Both the magistrate’s decision and juvenile court’s
judgment were copied on the assistant prosecutor and CSB Legal Department. The court further
issued a notice to the parties, including the assistant prosecutor and CSB Legal Department, of the
February 9 judgment. CSB did not file an objection to the magistrate’s decision dismissing X.M.’s
case.
{¶9} On March 11, 2022, CSB filed a motion to vacate the juvenile court’s dismissal of
X.M.’s case. The agency argued that it had no reason to know that the case had been dismissed
and that, in fact, it believed that no one was aware of the dismissal. The agency’s motion made
no reference to Rule 60(B). Two hours and 31 minutes later, the magistrate issued an order
vacating the February 9 dismissal. At the same time, the juvenile court also issued a judgment 4
vacating the earlier dismissal order. The judge’s judgment contained language pursuant to Rule
40 of the Juvenile Rules of Procedure, indicating that it construed the magistrate’s order as a
magistrate’s decision and thereby notifying the parties of their right to file objections within 14
days. On March 21, 2022, X.M. filed a motion to set aside the magistrate’s order and, alternatively,
an objection to the magistrate’s decision as so construed by the juvenile court. Both the motion
and objection were timely challenges to the magistrate’s vacation of the dismissal of Child’s case.
CSB filed a brief in opposition to X.M.’s objection.
{¶10} While Child’s objection was pending, the agency moved for permanent custody. It
further filed two notices of genetic test reports, both of which excluded men alleged to be X.M.’s
biological father. CSB withdrew its motion for permanent custody and refiled it. Various parties
filed other sundry motions.
{¶11} On August 31, 2022, a visiting judge held a hearing on all pending motions except
the agency’s request for permanent custody. The juvenile court addressed Child’s objection to the
magistrate’s decision vacating the earlier dismissal and reinstating Child’s case to the active
docket. Although X.M.’s counsel informed the court that the parties had fully briefed the issue,
the visiting judge ordered them to submit closing arguments and additional briefs within 14 days.
Child timely complied. When the agency failed to file a supplemental brief, the juvenile court
extended the time in which CSB could do so. The agency filed its brief in opposition to Child’s
objection, although it contained some arguments not relevant to the procedural history of X.M.’s
{¶12} Five months later, after the juvenile court had not yet ruled on Child’s objection to
the decision that reactivated his case, X.M. refiled his motion to dismiss based on CSB’s failure to
have properly served John Doe with the complaint. Eight days later, the visiting judge issued a 5
judgment, apologizing for the delay. Although attributing the objection to the guardian ad litem,
the juvenile court substantively addressed Child’s objection. In addition, “inasmuch as it is similar,
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[Cite as In re X.M., 2023-Ohio-3956.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: X.M. C.A. No. 30699
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 21 04 0257
DECISION AND JOURNAL ENTRY
Dated: November 1, 2023
HENSAL, Presiding Judge.
{¶1} Appellant X.M. appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that vacated its prior order dismissing X.M.’s case. This Court reverses
and remands.
I.
{¶2} Mother gave birth to X.M. (alternatively, “Child”) on April 6, 2016. Genetic testing
excluded the two men identified by Mother as alleged fathers for the child. X.M.’s paternity has
never been determined.
{¶3} In April 2021, Summit County Children Services Board (“CSB” or “the agency”)
filed a complaint alleging that X.M. and his two siblings were abused, neglected, and dependent
children. Because X.M.’s father was unknown, CSB instructed the clerk of court to serve “John
Doe,” Child’s alleged father, with summons and the complaint. Although John Doe’s residence
was unknown, the agency instructed the clerk to serve him by posting and certificate of mailing. 2
After adjudicatory and dispositional hearings, the juvenile court found that X.M. was abused,
neglected, and dependent as alleged in the complaint; and placed him in the agency’s temporary
custody.
{¶4} Subsequently, this Court issued our opinion in In re C.H., 9th Dist. Summit No.
29995, 2021-Ohio-3992, wherein we held that the agency has not effectuated proper service of a
complaint on a parent by posting and mailing pursuant to Civil Rule 4.4(A)(2), where it has not
included the parent’s last known address in its affidavit accompanying its instructions to the clerk
for service. Id. at ¶29. Thereafter, X.M. filed a motion to dismiss his case based on the agency’s
failure to perfect service on John Doe.
{¶5} Mother filed a motion to dismiss the complaints regarding all three children, raising
both substantive and procedural grounds. Based on concerns that the three siblings were in
imminent danger in their respective foster care placements, the maternal grandmother
(“Grandmother”) filed a motion for emergency temporary custody of the children. The magistrate
scheduled a shelter care hearing two days later to address Grandmother’s motion.
{¶6} In addition to Mother, a father of one of the siblings, their attorneys, X.M.’s
attorney, and the guardian ad litem, the assistant prosecutor and two representatives from CSB
attended the shelter care hearing. Grandmother presented two witnesses who were also subject to
cross-examination. After the guardian ad litem rendered his opinion, the magistrate informed the
parties that he found no probable cause to remove the children from agency custody or place them
in the emergency temporary custody of Grandmother.
{¶7} Prior to adjourning the shelter care hearing, the magistrate noted that Mother and
X.M. each had pending motions to dismiss. Counsel for X.M. told the magistrate that he was not
requesting an evidentiary hearing on his motion and that he would agree to the magistrate’s ruling 3
on the written motion. Child’s attorney further had no objection to allowing CSB to file a brief in
opposition. The magistrate then inquired of the assistant prosecutor:
Magistrate: [A]re you okay as it’s submitted or would you - - or does anybody need - - or do you need a response time - -
Assistant Prosecutor: No, Your Honor. We’re fine. Thank you.
Magistrate: - - with just having me rule on it?
Assistant Prosecutor: Yes.
The magistrate asked the remaining attorneys if they would agree to the court’s ruling on the two
pending motions to dismiss “without any further argument[.]” All parties agreed to forego a
hearing on the motions and allow the magistrate to rule on the issues as briefed.
{¶8} On February 9, 2022, the magistrate issued a decision granting X.M.’s motion to
dismiss based on CSB’s failure to perfect service on John Doe. The magistrate denied all other
motions as moot and closed Child’s case. The juvenile court adopted the magistrate’s decision the
same day. The decision contained the notice pursuant to Rule 40 of the Juvenile Rules that any
party could file an objection within 14 days. Both the magistrate’s decision and juvenile court’s
judgment were copied on the assistant prosecutor and CSB Legal Department. The court further
issued a notice to the parties, including the assistant prosecutor and CSB Legal Department, of the
February 9 judgment. CSB did not file an objection to the magistrate’s decision dismissing X.M.’s
case.
{¶9} On March 11, 2022, CSB filed a motion to vacate the juvenile court’s dismissal of
X.M.’s case. The agency argued that it had no reason to know that the case had been dismissed
and that, in fact, it believed that no one was aware of the dismissal. The agency’s motion made
no reference to Rule 60(B). Two hours and 31 minutes later, the magistrate issued an order
vacating the February 9 dismissal. At the same time, the juvenile court also issued a judgment 4
vacating the earlier dismissal order. The judge’s judgment contained language pursuant to Rule
40 of the Juvenile Rules of Procedure, indicating that it construed the magistrate’s order as a
magistrate’s decision and thereby notifying the parties of their right to file objections within 14
days. On March 21, 2022, X.M. filed a motion to set aside the magistrate’s order and, alternatively,
an objection to the magistrate’s decision as so construed by the juvenile court. Both the motion
and objection were timely challenges to the magistrate’s vacation of the dismissal of Child’s case.
CSB filed a brief in opposition to X.M.’s objection.
{¶10} While Child’s objection was pending, the agency moved for permanent custody. It
further filed two notices of genetic test reports, both of which excluded men alleged to be X.M.’s
biological father. CSB withdrew its motion for permanent custody and refiled it. Various parties
filed other sundry motions.
{¶11} On August 31, 2022, a visiting judge held a hearing on all pending motions except
the agency’s request for permanent custody. The juvenile court addressed Child’s objection to the
magistrate’s decision vacating the earlier dismissal and reinstating Child’s case to the active
docket. Although X.M.’s counsel informed the court that the parties had fully briefed the issue,
the visiting judge ordered them to submit closing arguments and additional briefs within 14 days.
Child timely complied. When the agency failed to file a supplemental brief, the juvenile court
extended the time in which CSB could do so. The agency filed its brief in opposition to Child’s
objection, although it contained some arguments not relevant to the procedural history of X.M.’s
{¶12} Five months later, after the juvenile court had not yet ruled on Child’s objection to
the decision that reactivated his case, X.M. refiled his motion to dismiss based on CSB’s failure to
have properly served John Doe with the complaint. Eight days later, the visiting judge issued a 5
judgment, apologizing for the delay. Although attributing the objection to the guardian ad litem,
the juvenile court substantively addressed Child’s objection. In addition, “inasmuch as it is similar,
if not identical, to issues raised in prior motions challenging jurisdiction[,]” the trial court also
ruled on X.M.’s recently refiled motion to dismiss. Without analysis, the juvenile court overruled
Child’s objection to the earlier vacation of the dismissal and reinstatement of his case, as well as
his alternative motion to set aside; and denied X.M.’s renewed motion to dismiss.
{¶13} X.M. timely appealed. He raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING [CSB’S] MOTION TO VACATE ITS PRIOR ORDER WHICH HAD PREVIOUSLY DISMISSED AND CLOSED THIS CASE.
{¶14} X.M. argues that the juvenile court erred by granting CSB’s motion to vacate the
court’s prior dismissal of Child’s case and by reactivating his case. This Court agrees.
{¶15} As an initial matter, this Court addresses CSB’s argument that we must dismiss
Child’s appeal for lack of a final, appealable order. Specifically, the agency argues that both the
order dismissing X.M.’s case and the order vacating and reactivating Child’s case do not constitute
final orders. We previously resolved this issue, holding that both a dismissal of a
dependency/neglect/abuse case and the vacation of that dismissal are final, appealable orders. In
re E.H., 9th Dist. Summit Nos. 30487 and 30488, 2023-Ohio-2470, ¶ 20-21. Accordingly, this
Court possesses the jurisdiction to address the merits of Child’s appeal.
{¶16} Child presents multiple, well-developed grounds in his assignment of error in
support of his argument that the juvenile court erred by granting CSB’s motion to vacate the court’s
prior dismissal of X.M.’s case. For example, he argues in part that CSB failed to preserve its 6
challenge to the dismissal by failing to file objections to the magistrate’s decision dismissing
Child’s case, that the agency’s motion to vacate was ineffective pursuant to Rule 60(B) of the Ohio
Civil Rules, and that the juvenile court’s granting CSB’s motion without notice or hearing deprived
X.M. of due process.
{¶17} In this case, however, the trial court offered no reasoning or grounds for granting
CSB’s motion to vacate its judgment dismissing the agency’s complaint regarding Child. Neither
did it justify its rush to ruling before any other parties had received notice of the motion. Moreover,
CSB did not assert in its motion under what authority the trial court might properly vacate the prior
dismissal. The agency bore the burden of demonstrating that the juvenile court retained
jurisdiction to grant the motion to vacate a final judgment. It failed to do so, and the trial court
also declined to justify its ruling. Accordingly, under the unique procedural posture of this case,
we reverse the trial court’s judgment. X.M.’s assignment of error is sustained.
III.
{¶18} X.M.’s sole assignment of error is sustained. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is reversed and the cause remanded for further
proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 7
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 Appellee-Children Services Board.
JENNIFER HENSAL FOR THE COURT
CARR, J. STEVENSON, J. CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting Attorney, for Appellee.
STEPHEN GRACHANIN, Attorney at Law, for Appellee.
BENJAMIN AYERS, Guardian ad Litem.