In re A.G.
2017 Ohio 9133
| Ohio Ct. App. | 2017Background
- Child A.G., born 8/16/06, diagnosed with Type 1 diabetes; concerns arose at age 10 about poor diabetes management and recent hospitalization.
- Summit County Children Services Board (CSB) filed a complaint alleging A.G. was neglected and dependent; juvenile court granted interim protective supervision.
- After CSB rested, Mother moved orally for dismissal under Civ.R. 41(B)(2); the magistrate granted the motion and dismissed the complaint.
- CSB objected; the juvenile court overruled the neglect allegation but sustained CSB’s objection as to dependency, adjudicating A.G. dependent and remanding to the magistrate.
- Mother appealed; while the appeal was pending the magistrate (without a hearing) terminated protective supervision and later issued dispositional entries; Mother moved to vacate and argued she was denied the opportunity to present a defense under Civ.R. 41(B)(2) and due process.
- The Court of Appeals reversed, holding the juvenile court erred as a matter of law and violated Mother’s due process rights by failing to allow her to present a defense after her Civ.R. 41(B)(2) motion was denied on review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mother was entitled to present a defense after her Civ.R. 41(B)(2) motion was granted by the magistrate but later denied by the juvenile court on objection and the court adjudicated the child dependent | Mother: Civ.R. 41(B)(2) preserves her right to present a defense if the dismissal is denied; she did not waive that right and was deprived of due process when not allowed to present evidence | CSB: (argued later on appeal) Civ.R. 41(B)(2) was not the appropriate procedural vehicle (not raised before the magistrate on objection); juvenile court found Mother voluntarily chose to move for dismissal and thus cannot claim prejudice | Court: Sustained Mother’s assignment of error — under Civ.R. 41(B)(2) she did not waive the right to present a defense and due process required an opportunity to be heard; reversal and remand for further proceedings |
Key Cases Cited
- State ex rel. Rothal v. Smith, 151 Ohio App.3d 289 (2002) (appellate review standard for Civ.R. 41(B)(2) dismissal)
- Johnson v. Tansky Sawmill Toyota, Inc., 95 Ohio App.3d 164 (1994) (same)
- Arnott v. Arnott, 132 Ohio St.3d 401 (2012) (de novo review requires independent review without deference)
- In re Thompkins, 115 Ohio St.3d 409 (2007) (parents entitled to due process: notice and opportunity to be heard)