In the Matter of: D.H.
Case No. 10CA2
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
RELEASED 01/25/11
[Cite as In re D.H., 2011-Ohio-601.]
Harsha, P.J.
Robert W. Bright, STORY LAW OFFICE, Pomeroy, Ohio, for appellant R.L.T.
Jeff Adkins, GALLIA COUNTY PROSECUTOR, and Pat Story, GALLIA COUNTY ASSISTANT PROSECUTOR, Gallipolis, Ohio, for appellee Gallia County Children‘s Services.
Harsha, P.J.
{¶1} R.L.T. (“Mother“) appeals the judgment of the Gallia County Court of Common Pleas, Juvenile Division, entered on remand from this Court, on a dependency complaint regarding her child D.H. In her first appeal, Mother argued that the juvenile court erred when it dismissed the complaint without making certain findings. Under the erroneous assumption that D.H. had been adjudicated a dependent child, we concluded that the juvenile court could not dismiss the complaint unless it first found that the problems that led Gallia County Children‘s Services (“GCCS“) to file the complaint had been resolved or sufficiently mitigated by a certain date.1 We remanded the matter and instructed the juvenile court that “[i]f these problems had been resolved or mitigated, the * * * court should journalize its findings in that regard and order the release of D.H. to [Mother].” In re D.H., Gallia App. No. 09CA11, 2009-Ohio-6009, at ¶55. If the court found that the problems were not resolved or sufficiently mitigated, we instructed the
{¶2} Now Mother contends that the juvenile court failed to properly follow our instructions. On remand, the court found that the problems that led GCCS to file the complaint had been resolved or sufficiently mitigated, but then it merely noted that D.H. “should have been returned” to Mother and purported to transfer “pending” issues to the Monroe County Juvenile Court (which has also been exercising jurisdiction over the child). However, the juvenile court should have dismissed the dependency complaint. Then Mother would have regained custody of D.H. by operation of law for purposes of the Gallia County proceedings. Thus, we reverse the juvenile court‘s judgment and remand so that the court can properly dismiss the case.
{¶3} Mother also claims that the juvenile court erred when it “de facto” denied her various post-remand motions for custody. She essentially contends that the court erred because it did not issue an order that explicitly ordered D.H. returned to her custody. However, as we already explained, when the court issues a proper dismissal entry on our second remand, Mother will regain custody of D.H. by operation of law.
{¶4} Next, Mother contends that the juvenile court erred when it “de facto” denied a
{¶5} Finally, Mother complains that the court erred when it “de facto” denied a motion for reconsideration of and relief from the juvenile court‘s judgment entered on remand. Again, assuming the propriety of Mother‘s reliance on the Civil Rules in this instance, the “motion for reconsideration” is a nullity under those rules. Moreover, the juvenile court did not rule on the
I. Facts
{¶6} Mother gave birth to D.H. on February 1, 2007. The next day, GCCS filed a dependency complaint in the Gallia County Court of Common Pleas, Juvenile Division, and the juvenile court granted GCCS an ex parte emergency temporary custody order. At the next hearing on February 5, 2007, the court continued emergency temporary custody with GCCS. Then the court set the matter for an adjudication hearing on March 12, 2007.
{¶7} On that date, the juvenile court issued an entry titled “DISPOSITIONAL HEARING.” The court checked a box on this form entry indicating that GCCS retained temporary custody of D.H. However, the record provides no indication that an adjudication hearing occurred before the court issued this entry and contains no entry in which the court actually adjudicated D.H. as a dependent child. On April 10, 2007, the court issued an entry that terminated GCCS‘s custody and placed D.H. in the “[l]egal [c]ustody” of his paternal grandparents, K.H. and G.H. Then on February 20, 2009, the juvenile court dismissed the dependency complaint on the motion of Mother and the
{¶8} Mother appealed the Gallia County Juvenile Court‘s dismissal and its rulings in various post-dismissal proceedings. We overruled most of her assignments of error, but sustained her second and fourth assignments of error, which involved the following issues:
In her second assignment of error, R.L.T. argues that the court erred in its February 20, 2009, journal entry of dismissal by failing to include a statement of the court‘s determination that the “original problems that led to the filing of the complaint were resolved or sufficiently mitigated” by R.L.T. and by failing to order D.H.‘s return to her. In a motion premised on
Civ. R. 60(A) , R.L.T. asked the court to correct its journal entry to insert that language, but the court denied this request. * * * In denying the request for that language, the juvenile court characterized similar language appearing in In [r]e Young Children * * *, 76 Ohio St.3d 632, 1996-Ohio-45, 669 N.E.2d 1140, as “extraneous” and unnecessary. In her fourth assignment of error, R.L.T. argues that this language is not “extraneous” and thus must be included in the dismissal.
In re D.H., supra, at ¶28.
{¶9} In analyzing these arguments, we assumed that the juvenile court had in fact adjudicated D.H. as a dependent child prior to the dismissal. We also treated the February 2, 2007 ex parte emergency temporary custody order as a post-adjudication temporary custody order under
{¶10} We further explained that once a juvenile court adjudicates a child as an abused, neglected, or dependent child,
Accordingly, we reverse the dismissal of this case and remand to the trial court for further proceedings to determine whether the problems that led to the filing of the * * * complaint had been resolved or sufficiently mitigated as of [the date] when the extended temporary custody order would have otherwise terminated. If these problems had been resolved or mitigated, the court should terminate the temporary custody order and release the child to his mother. If they had not, the court has discretion to make a further dispositional order pursuant to
R.C. 2151.415 and our holding above.
In re D.H. at ¶30, quoting In re Young Children at 639.
{¶11} Based on these authorities and our assumption that D.H. had been adjudicated a dependent child, we concluded that the juvenile court could not enter a simple dismissal in D.H.‘s case. We held that “the juvenile court erred when it dismissed this case without journalizing an express determination concerning whether the issues that led to the filing of the dependency complaint were resolved or sufficiently mitigated * * *.” In re D.H. at ¶44. We remanded the matter for the juvenile court to “determine whether the problems that led to the filing of the February 2, 2007, complaint had been resolved or sufficiently mitigated as of February 2, 2008, when the temporary custody order would have otherwise terminated.” In re D.H. at ¶55. We instructed the court that “[i]f these problems had been resolved or mitigated, the juvenile court should journalize its findings in that regard and order the release of D.H. to R.L.T. If that is not the case, the court should make an appropriate statutory disposition[,]” i.e. a R.C.
{¶12} After a hearing, the juvenile court issued the following judgment on February 5, 2010:
- This Court finds that problems that led to the necessity of a temporary custody order had been resolved or sufficiently mitigated as of February 2nd, 2008;
- The Court, having made the finding that those problems had been resolved or sufficiently mitigated finds hereby Orders [sic] that D.H. should have been returned to the mother;
- However, in a March 20[th], 2009, hearing in the Monroe County Juvenile Court * * * the mother and father agreed that the Monroe County Juvenile Court had jurisdiction (see attached entry). The mother and father also agreed at that hearing that D.H. should be in the legal custody of the grandparents * * *;
- This Court has communicated with the Monroe County Juvenile Court and believe[s] that it is [a] more convenient forum to litigate all the custodial and visitation issues of D.H.;
- This Court transfers all custodial issues and visitation issues pending in the Gallia County Juvenile Court to the Monroe County Juvenile Court for further disposition based on that court being the more convenient forum and the fact all parties previously agreed to jurisdiction there.
{¶13} Mother appealed from this judgment before the juvenile court explicitly ruled on various post-remand motions the parties filed, including Mother‘s: 1.) motions for custody; 2.)
II. Assignments of Error
{¶14} Mother assigns the following errors for our review:
- The Juvenile Court erred in not complying with the Court of Appeals’ order and In re Young by refusing to return the minor child to his Mother after the Juvenile Court properly found that the problems which led to the filing of the Complaint had been resolved or sufficiently mitigated.
The Juvenile Court erred in de facto denying the NATURAL MOTHER [R.L.T.‘S] MOTION FOR CUSTODY and the related NATURAL MOTHER [R.L.T.‘S] AMENDED MOTION TO RESCIND, TERMINATE OR MODIFY THE PRIOR DISPOSITIONAL ORDER AND MOTION FOR LEGAL CUSTODY. - The Juvenile Court erred in de facto denying the NATURAL MOTHER [R.L.T.‘S] MOTION FOR RELIEF FROM JUDGMENT UNDER CIVIL RULE 60(A) AND 60(B)(5) RE: MARCH 12, 2007 DISPOSITIONAL ORDER AND MOTION TO RESCIND AND/OR TERMINATE PRIOR DISPOSITIONAL ORDER DATED MARCH 12, 2007.
- The Juvenile Court erred in de facto denying the NATURAL MOTHER [R.L.T.‘S] MOTION IN LIMINE TO EXCLUDE CERTAIN EVIDENCE AND DISCUSSION OF RELEVANT AND ADMISSIBLE EVIDENCE IN THIS CASE.
- The Juvenile Court erred in de facto denying the NATURAL MOTHER [R.L.T.‘S] MOTION FOR CUSTODY.
- The Juvenile Court erred in de facto denying the NATURAL MOTHER [R.L.T.‘S] MOTION FOR RELIEF FROM JUDGMENT UNDER CIVIL RULE 60(A) AND 60(B)(5) RE: APRIL 10, 2007 ENTRY.
- The Juvenile Court erred in de facto denying the NATURAL MOTHER [R.L.T.‘S] MOTION TO RECONSIDER AND MOTION FOR RELIEF FROM JUDGMENT UNDER CIVIL RULE 60(B)(5).
Mother has withdrawn her third, fourth, and fifth assignments of error, so we will not address them.
III. Error in First Appeal
{¶15} Before we address the merits of this appeal, we must address an error in our decision on Mother‘s first appeal. In reviewing this case for a second time, we realized that the juvenile court never adjudicated D.H. as a dependent child. Thus, there appears to be no reason why the juvenile court could not enter a simple dismissal of the dependency complaint on February 20, 2009, particularly when both GCCS and
{¶16} We notified the parties of this error and explained that we questioned the juvenile court‘s jurisdiction to follow our remand instructions and our own jurisdiction to consider the merits of the present appeal, e.g. if the court had concluded on remand that the problems that led GCCS to file the complaint had not been resolved or sufficiently mitigated, would the court have jurisdiction to enter a
{¶17} And although we recognize our error in deciding Mother‘s first appeal, we lack jurisdiction to alter our prior decision. None of the parties timely filed an
IV. Release of D.H. to Mother
{¶18} In her first assignment of error, Mother contends that the juvenile court failed to properly follow our remand instructions. After a hearing, the court found that the problems that led GCCS to file the dependency complaint had been resolved or sufficiently mitigated. But instead of dismissing the case, the Court noted that D.H. “should have been returned to [Mother]” and then transferred “all custodial issues and visitation issues” pending before it to the Monroe County Juvenile Court.
{¶19} Mother complains that the court should have ordered D.H.‘s return to her. Mother also complains that the court erred when it found that she consented to jurisdiction in Monroe County and found that Monroe County was a “more convenient forum to litigate all the custodial and visitation issues of D.H.” We agree that the juvenile court erred in its judgment entered on remand, but for different reasons than
{¶20} Once the court concluded that the problems that led GCCS to file the complaint had been resolved or sufficiently mitigated, the court should have simply dismissed the dependency action, as it originally intended to do in February 2009. And although we acknowledge that our remand instructions might be read to imply otherwise, once the juvenile court properly dismissed the complaint, it did not have to issue an explicit order to return D.H. to Mother‘s custody. See In re D.H., supra, at ¶¶44, 55. Mother would have been entitled to custody of D.H. for purposes of the Gallia County case by operation of law. Moreover, had the court properly dismissed the complaint, there would be no pending “custodial issues and visitation issues” for the court to transfer to the Monroe County Juvenile Court.
{¶21} Accordingly, we sustain Mother‘s first assignment of error. We reverse the juvenile court‘s February 5, 2010 judgment and remand with instructions for the court to dismiss the dependency action. And although the juvenile court need not explicitly order D.H.‘s return to Mother in the dismissal entry, we encourage the court to include this language in the entry for the sake of clarity.
{¶22} However, we must stress that this decision will not have the impact Mother anticipates. From her arguments, it is apparent that Mother believes that if she obtains a favorable judgment in this case, that judgment will automatically supersede any orders the Monroe County Juvenile Court has issued regarding D.H. Even though Mother is clearly entitled to custody of D.H. for purposes of these Gallia County proceedings, that does not change the fact that the Monroe County Juvenile Court is presently exercising jurisdiction over the child and has apparently issued orders that impact her custody
V. Post-Remand Motions for Custody
{¶23} In her second assignment of error, Mother argues that the juvenile court erred when it “de facto” denied her post-remand “Motion for Custody” and “Amended Motion to Rescind, Terminate or Modify the Prior Dispositional Order and Motion for Legal Custody.” Mother makes little effort to expound on this assignment of error aside from a statement that she “will primarily depend upon the arguments within this appeal and those motions rather than rehashing the entire argument here.” (Appellant‘s Br. 15.) However, the Rules of Appellate Procedure do not allow parties to incorporate by reference into their briefs arguments from other sources. Thomas v. Vesper, Ashland App. No. 02 COA 20, 2003-Ohio-1856, at ¶31. “Pursuant to
{¶24} It is not clear from the record whether the juvenile court thought that it ruled on these motions when it issued the February 5, 2010 judgment entry or whether it considered these motions to be part of the pending “custodial issues and visitation issues” it purported to transfer to the Monroe County Juvenile Court. In any event, the real crux of Mother‘s second assignment of error is that the juvenile court erred because it did not issue an order that explicitly returned D.H. to her custody. In deciding Mother‘s first assignment of error, we already concluded that once the court dismisses
VI. Motion for Relief from April 10, 2007 Judgment
{¶25} In her sixth assignment of error, Mother contends that the juvenile court erred when it “de facto” denied her post-remand “Motion for Relief from Judgment Under Civil Rule 60(A) and 60(B)(5) Re: April 10, 2007 Entry.” In this motion, Mother argued that the juvenile court erred when it awarded the grandparents “legal custody” of D.H. in the April 2007 entry. Mother argues that the juvenile court made a clerical mistake subject to correction under
{¶26} Under
{¶27} Under
{¶28} In her seventh assignment of error, Mother argues that the juvenile court erred when it “de facto” denied her “Motion to Reconsider and Motion for Relief from Judgment Under Civil Rule 60(B)(5).” This motion dealt with the court‘s judgment entered on remand from this court, i.e. the February 5, 2010 judgment entry. We again assume without deciding that Mother appropriately relies on the Civil Rules in this instance. See
{¶29} Mother makes little effort to expound on this assignment of error and vaguely refers us to other arguments in her appellate brief. Regardless, the Civil Rules do not provide for motions for reconsideration of final judgments, so Mother‘s motion for reconsideration is a nullity. Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378, 379-380, 423 N.E.2d 1105. Moreover, the juvenile court lost jurisdiction to consider the
VIII. Conclusion
{¶30} We overrule Mother‘s second, sixth, and seventh assignments of error. Mother withdrew her third, fourth, and fifth assignments of error, so we need not address them. We sustain Mother‘s first assignment of error and remand this matter to the trial court with instructions to dismiss the dependency complaint.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court, Juvenile Division to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
William H. Harsha, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.