IN RE: L.B. L.B. A.F.
C.A. No. 26034
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
March 7, 2012
2012-Ohio-905
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS CASE Nоs. DN 11 01 0010, DN 11 01 0011, DN 11 01 0012
BELFANCE, Judge.
{¶1} Lasha Franklin appeals the judgment of the juvenile court adjudicating her children dependent. For the reasons set forth below, we vacate the judgment.
I.
{¶2} Ms. Franklin is the mother of L.B., A.F. and L.B. After Ms. Franklin brought her son A.F. to the hospital for a head injury, the Summit County Children Services Board (“CSB“) began proceedings to have her three children adjudicated dependent. At the hearing, Ms. Franklin argued that the trial court lacked jurisdiction because she and A.F.‘s father had not been properly served and that her children should be returned to her care. The magistrаte rejected her arguments and found the children to be dependent.
{¶3} The juvenile court adopted the magistrate‘s decision, but Ms. Franklin timely filed objections, arguing that the magistrate incorrectly found the children to be dependent and
{¶4} Ms. Frаnklin has appealed, raising two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE JUVENILE COURT COMMITTED REVERSIBLE ERROR BY PROCEEDING TO THE ADJUDICATORY HEARING WHEN ALL THE PARTIES HAD NOT BEEN PROPERLY SERVED UNDER
ASSIGNMENT OF ERROR II
THE JUVENILE COURT COMMITTED REVERSIBLE ERROR WHEN IT FOUND BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILDREN WERE DEPENDENT CHILDREN UNDER
{¶5} Ms. Franklin concedes that service for her youngest child was proper. However, she argues that the trial court lacked jurisdiction to find her eldest child and A.F. dependent because neither she nor their father was properly served. Because we agree that the record is insufficient to estаblish a presumption that Ms. Franklin was served for the two children, we do not reach the question of whether Ms. Franklin has standing to challenge the service of the children‘s father or whethеr service was perfected on the father.
{¶6} We review a challenge to a court‘s jurisdiction de novo. Eisel v. Austin, 9th Dist. No. 09CA009653, 2010-Ohio-3458, ¶ 9.
Service of summons, notices, and subpoеnas * * * shall be made by delivering a copy to the person summoned, notified, or subpoenaed, or by leaving a copy at the person‘s usual place of residence. If the juvenile judge is satisfied that such service is impracticable, the juvenile judge may order service by registered or certified mail. If the person to be served is without the state but thе person can be found or the person‘s address is known, or the person‘s whereabouts or address can with reasonable diligence be ascertained, service of thе summons may be made by delivering a copy to the person personally or mailing a copy to the person by registered or certified mail.
Whenever it appears by аffidavit that after reasonable effort the person to be served with summons cannot be found or the person‘s post-office address ascertained, whether the person is within or without a state, the clerk shall publish such summons once in a newspaper of general circulation throughout the county. The summons shall state the substance and the time and place of the hearing, which shall be held at least one week later than the date of the publication. A copy of the summons and the complaint, indictment, or informatiоn shall be sent by registered or certified mail to the last known address of the person summoned unless it is shown by affidavit that a reasonable effort has been made, without success, to оbtain such address.
{¶7} “The right of a parent to the custody of his or her child is one of the oldest fundamental liberty interests recognized by American courts.” In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65-66 (2000). “[D]eprivation of custody, even temporarily, infringes on a parent‘s fundamental interest in the custody of his or her child * * *.” In re M.D., 10th Dist. No. 07AP-954, 2008-Ohio-4259, ¶ 10; see also In re Murray, 52 Ohio St.3d 155, 157 (1990) (concluding that “parental custody of a child is an important legal right protected by law * * *“). Fоr this reason, due process concerns are of paramount importance with respect to parental custody matters.
{¶8} This Court has previously noted the importаnce of the manner of service being reflected in the record. In re S.S., 9th Dist. No. 10CA0010, 2010-Ohio-6374, ¶ 19. If a process server is used, the server must endorse the fact of accomplished or failed serviсe. Id. Furthermore, “whether service is accomplished by personal service, residence service, certified mail, registered mail, or express mail, the rule requires the clerk to make an appropriate entry on
{¶9} Each child in this case was assigned an individuаl case number, but it appears that the children‘s files were consolidated for the purposes of the court proceedings. Thus, the record on appeal is a singlе file with three separate dockets. However, it appears that, in this instance, the consolidated file created deficiencies with respect to recording whether service was accomplished as to each child.
{¶10} The clerk of courts did not note that service on Ms. Franklin had been accomplished or failed on any of the dockets. Thus, there was a failure to comply with
{¶11} Ms. Franklin concedes that service was accomplished with regard to her youngest child. She argues that the summons on file in thе youngest child‘s case fails to sufficiently establish that the process server served her regarding A.F. and her eldest child. It is unknown when the document was altered, and the handwritten additions arе not initialed or marked in any
{¶12} Based uрon the record in this case, we cannot conclude that CSB was entitled to the presumption that service had been completed regarding the eldest child and A.F. See In re S.S., 2010-Ohio-6374, at ¶ 45. Aсcordingly, the trial court lacked the authority to proceed on the adjudication of those children. See id. at ¶ 51-52. Although service was accomplished as to the youngest child, we nonetheless find it appropriate to vacate the judgment in its entirety. The focus of the dependency allegations was upon the events pertaining to A.F. and there was very little mention of the youngest child in the record. Given that the trial court did not have authority to proceed to hear evidence relative to A.F. and the eldest child, and the factual allegations surrounding A.F. are inextricably entwined with and form the basis for seeking an adjudication of dependency as to all of the children, we conclude that thе judgment as to the youngest child cannot stand since it would essentially render immaterial our determination that the trial court lacked authority to proceed.
{¶13} Ms. Franklin‘s first assignment of еrror is sustained.
III.
{¶14} Ms. Franklin‘s first assignment of error is sustained and the adjudication of dependency is vacated. We do not reach the merits of her second assignment of error.
Judgment vacated.
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.
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.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J. CONCURS
DICKINSON, J. CONCURRING IN PART, AND DISSENTING IN PART.
{¶15} I agree that the Juvenile Court never obtained jurisdiction over Ms. Franklin in regard to her two older children. It did, however, hаve jurisdiction over her in regard to her youngest child. Accordingly, I dissent from the majority‘s decision to vacate the trial court‘s judgment in regard to that child without reviewing the merits of Ms. Franklin‘s second assignment of error.
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.