In re I.J.
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Dan M. Weiss, for appellant.
Jill E. Wolff, for appellee.
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JENSEN, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, Juvenile Division, adopting the decision of a magistrate to terminate the parental rights of I.J., Sr. (“father“) and appellant J.C. (“mother“), and awarding permanent custody of I.J., Jr., to Lucas County Children Services Board (“LCCS“). For the reasons that follow, we affirm the decision of the trial court.
{¶ 3} On January 12, 2012, LCCS filed a Motion for Permanent Custody of I.J., Jr. The motion cited LCCS‘s concerns: “substance abuse for both parents, housing for both parents, parenting for both parents, anger management for father, criminal concerns for father, and mental health concerns for mother.” A hearing was scheduled. Mother was served with a copy of the summons and motion. There is no evidence in the record that father was served with a copy of the motion or notified of the date and time of the hearing.
{¶ 4} The permanent custody hearing was held before a magistrate on April 6, 2012. Counsel for both parents were present when the case was called. Father did not appear. Mother appeared 20 minutes late. Father‘s counsel stated that despite making several attempts, he had not had any contact with father since November 2010. The court granted father‘s counsel‘s motion to withdraw. Counsel for mother did not object. Three witnesses were presented on behalf of LCCS: the case worker, the social worker, and the guardian ad litem. Mother testified on her own behalf. At the conclusion of the hearing
{¶ 5} The magistrate‘s written decision was filed and journalized June 1, 2012. Mother filed objections timely. She supplemented her objections with leave of court. LCCS filed a brief in opposition to mother‘s objections. After reviewing the objections, records, transcript and brief, the court denied mother‘s objections and affirmed and adopted the decision of the magistrate.
{¶ 6} Mother appealed. She advances one assignment of error for our review.
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY TERMINATING [MOTHER]‘S PARENTAL RIGHTS WHEN SERVICE HAD NOT BEEN PROPERLY MADE ON [FATHER] IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTUION AND ARTICLE 1 SECTION 10 OF THE OHIO STATE CONSTITUTION, INHERENTLY PREJUDICING APPELLANT AND MAKING THE PERMANENT CUSTODY DECISION VOID.
{¶ 7} Before addressing the merits of mother‘s argument, we recognize that “parents have a constitutionally protected fundamental interest in the care, custody, and
{¶ 8} “When a permanent custody motion is filed and a permanent custody hearing is scheduled, notice is to be given as set forth in
Upon filing of a motion * * * for permanent custody of a child, the court shall schedule a hearing and give notice of the filing of the motion and of the hearing, in accordance with
section 2151.29 of the Revised Code , to all parties to the action and to the child‘s guardian ad litem.
In turn,
{¶ 9} In the present case, the record is void of any indication that the clerk served or attempted service of the motion and hearing upon father. “Generally, appeals are
{¶ 10} Here, appellant cites In re Call, 8th Dist. No. 78376, 2001 WL 370526 (Apr. 12, 2001), for the proposition that the court‘s failure to serve father is inherently prejudicial to her interests. Appellant further argues that the lack of service renders the lower court‘s ruling void for lack of jurisdiction. We do not agree.
{¶ 11} Previously, we issued a decision directly on point. In In re Ciara B., 6th Dist. No. L-97-1264, 1998 WL 355869 (July 2, 1998), we held that a judgment entered by a juvenile court against the appellant mother was not rendered void due to the alleged lack of service on the non-party father. Id. We further held that in the absence of a showing of prejudice to her case, the appellant mother could not raise the claimed lack of service on the putative father as error on appeal. Id. The Third, Fourth and Ninth District Courts of Appeal agree. See In re Cook, 3d Dist. No. 5-98-16, 1998 WL 719524 (Oct. 8, 1998) (mother does not have standing to raise issue of father‘s service on appeal); In re Kincaid, 4th Dist. No. 00CA3, 2000 WL 1683456 (Oct. 27, 2000) (appellant mother had no standing to raise the issue of the trial court‘s personal jurisdiction over the father when there is no evidence that her defense was prejudiced by the absence of the father from the
{¶ 12} Here, appellant must demonstrate the trial court‘s failure to perfect timely service upon father resulted in actual prejudice to her. In re A.M., 9th Dist. No. 26141, 2012-Ohio-1024, ¶ 18. Appellant has offered no evidence that the trial court would have awarded custody to father had he appeared and defended against the motion for permanent custody. Accordingly, we conclude that mother lacks standing to assert error in regard to service upon father. Appellant‘s sole assignment of error is found not well-taken.
{¶ 13} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
James D. Jensen, J.
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.