{¶ 1} On February 27, 2004, Franklin County Children Services (“FCCS”) filed a complaint 1 alleging that L.W., 2 the minor daughter of appellant, Alan W., 3 was a neglected and dependent child as defined by R.C. 2151.03(A)(2) and (6) 4 and 2151.04(C), 5 respectively. FCCS’s claims stemmed from appellant’s alleged failure to properly attend to L.W.’s extensive medical needs. 6 The public defender’s office was appointed as L.W.’s guardian ad litem. Separate counsel was appointed to represent appellant. Shortly after being appointed, appellant’s counsel withdrew from the case at appellant’s request.
{¶ 2} Over several days, the trial court, through a magistrate, conducted a hearing to consider the neglect and dependency allegations, at which appellant appeared pro se. On June 17, 2004, the magistrate filed a decision finding by clear and convincing evidence that L.W. was a neglected and dependent child. The magistrate made L.W. a ward of the court and committed her to the temporary custody of FCCS. That same day, the trial court approved and adopted the magistrate’s decision as its own.
{¶ 3} On June 25, 2004, appellant, pro se, filed objections to the magistrate’s decision. On July 30, 2004, the magistrate supplemented the June 17, 2004 decision with findings of fact and conclusions of law. The trial court immediately approved and adopted the magistrate’s decision as its own, including the findings of fact and conclusions of law contained therein.
{¶ 4} On August 4, 2004, the trial court appointed new counsel to represent
{¶ 5} Subsequently, the trial court, on October 15, 2004, held a brief hearing on appellant’s motion for a continuance of the objections hearing. Both the guardian ad litem and appellee state of Ohio opposed the continuance. Noting L.W.’s death and the recent appointment of counsel, the court granted the continuance to allow appellant’s counsel time to prepare amended objections to the magistrate’s July 30, 2004 decision. The court granted the state’s oral motion to set a date certain of November 26, 2004 for the filing of amended objections.
{¶ 6} On November 26, 2004, appellant, through counsel, filed amended objections to the magistrate’s decision, 8 alleging that the magistrate had erred in denying appellant’s request for court-appointed counsel at the adjudicatory hearing; failing to afford appellant latitude for appearing pro se at the adjudicatory hearing; denying appellant opportunities to secure testimony and request discovery; refusing consideration of appellant’s various dispositional motions; quashing certain subpoenas issued by appellant; prohibiting appellant from cross-examining his own witness; and finding L.W. to be a neglected and dependent child. Appellant alleged that proper legal representation and discovery rulings would have enabled him to refute or mitigate many of the unfavorable factual findings made by the magistrate. Appellant also asserted that the case had been tainted by ongoing “unlawful prejudicial behavior out of court,” including the court’s acceptance of “false information” regarding L.W.’s medical condition and the breach of healthcare confidentiality laws by L.W.’s healthcare providers.
{¶ 7} On December 13, 2004, the trial court held a nonevidentiary hearing on the amended objections. The guardian ad litem contended that appellant’s objections were rendered moot by L.W.’s death. In response, appellant argued that by operation of Juv.R. 40(E)(4)(c) (which permitted the trial court to adopt the magistrate’s decision and enter judgment without waiting for timely objections), a finding of mootness would deprive him of his due process right to have his objections heard.
{¶ 9} Appellant filed a timely notice of appeal from the trial court’s March 2, 2005 judgment. Prior to the filing of appellant’s brief, appellee guardian ad litem filed a motion to dismiss on grounds that L.W.’s death rendered the appeal moot. Appellant’s memorandum contra argued that the motion to dismiss was premature, as he had yet to file his brief. Thereafter, appellant filed his merit brief, setting forth the following four assignments of error:
I. The court erred in finding the objections to the magistrate’s decision moot.
II. The court erred in entering a conditional entry of neglect and dependency while objections to the magistrate’s decision were pending.
III. The court erred in ruling that the amended objections to the magistrate’s decision were not timely filed, as the court itself set the deadline for that filing.
IV. The court erred in accepting jurisdiction over a matter which had previously been dismissed and refiled four times.
{¶ 10} Both the state and guardian ad litem have opposed appellant’s assignments of error. By journal entry filed August 16, 2005, this court resolved to consider the motion to dismiss along with the merits of the appeal. For the reasons that follow, we dismiss the appeal as moot.
{¶ 11} As a general matter, courts will not resolve issues that are moot.
In re Brown,
Franklin App. No. 03AP-1205,
{¶ 12} There are exceptions to the mootness doctrine that permit a trial court to hear an otherwise moot case.
Robinson v. Indus. Comm.,
Franklin App. No. 04AP-1010,
{¶ 13} However, there are limitations to the exceptions. The exception for a case that is capable of repetition yet evades review applies only in exceptional circumstances, when both (1) the challenged action is too short in duration to be fully litigated before its cessation or expiration and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.
Robinson,
{¶ 14} Appellant first contends, relying on R.C. 2311.21, that L.W.’s death did not render the matter moot. Appellant suggests that R.C. 2311.21 operates to except this matter from the doctrine of mootness. The guardian ad litem argues that, rather than excepting the matter from the mootness doctrine, R.C. 2311.21 operates to extinguish it as a matter of law.
{¶ 15} R.C. 2311.21 provides that “[u]nless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a judge of a county court for misconduct in office, which shall abate by the death of either party.” “In the realm of litigation, the term ‘abatement’ denotes the ‘destruction of a cause of action.’ ”
Taylor v. Taylor
(July 15, 1992), Hamilton App. No. C-910126,
{¶ 16} Pursuant to R.C. 2311.21, at the death of either party, an action is merely suspended, assuming both that the cause of action survives and that the action is not one of those enumerated in the statute. If the cause of action survives and is not extinguished by the death of a party to the action, a proper party may be substituted in the place of the deceased party, and the action may then proceed. Assuming, without deciding, that L.W. was a “party” to the instant action for purposes of R.C. 2311.21, L.W.’s death clearly extinguished the instant action. The state’s primary focus in a dependency action is on the child’s condition and environment.
In re Darst
(1963),
{¶ 17} Appellant also argues that the dispute at issue may be heard because the issues are capable of repetition, yet evade review. Appellant concedes that the issue of physical custody is moot; however, he asserts that a finding of mootness without consideration of his objections leaves him without remedy to correct the record. Appellant posits two potential adverse consequences arising from these circumstances: (1) if his surviving child becomes the subject of juvenile court proceedings in the future, L.W.’s adjudication could be used as evidence against him, and (2) potential remedies to which he may be entitled in civil actions against entities and persons involved with L.W.’s medical care could be impaired by L.W.’s adjudication.
{¶ 18} Appellant’s concerns are insufficient to fall within the “capable of repetition yet evading review” exception to the mootness doctrine. Both of the scenarios appellant describes are entirely speculative. There is no indication that appellant will ever be subject to a neglect or dependency action with regard to his
{¶ 19} Appellant also claims that his case may be heard because debatable constitutional questions raised in his objections remain unresolved. Appellant does not specify which of his objections raise constitutional questions. Our review reveals only one potential constitutional issue — that appellant was denied the right to appointed counsel at the adjudicatory hearing. As noted previously, action on an unresolved constitutional question is ordinarily taken only by the highest court of the state rather than an intermediate appellate court, whose decision does not have binding effect over the entire state.
Brown,
{¶ 20} Our determination that the appeal is moot is bolstered by the decisions of other Ohio appellate courts. In
In re Maria M.,
Wood App. No. WD-03-092,
{¶ 21} In
In re Gerken
(Nov. 9, 1990), Wood App. No. WD-90-9,
{¶ 23} As in the foregoing cases, L.W.’s death rendered the issues raised in appellant’s objections moot. Accordingly, appellee guardian ad litem’s motion to dismiss the appeal is hereby granted. The appeal is dismissed.
Appeal dismissed.
Notes
. A complaint containing neglect and dependency allegations was filed in February 2003. Due to the complexity of the medical and legal issues involved in the case, the complaint was dismissed and refiled several times prior to the February 2004 filing.
. To protect anonymity, this opinion designates both the first and last name of the minor child and the last name of the parent by initials only.
. L.W.'s mother signed a waiver of service and made no appearance in the case.
. R.C. 2151.03 defines a "neglected child” as one "[w]ho lacks adequate parental care because of the faults or habits of the child’s parents, guardian, or custodian,” R.C. 2151.03(A)(2), or "[w]ho, because of the omission of the child's parents, guardian, or custodian, suffers physical or mental injury that harms or threatens to harm the child’s health or welfare.” R.C. 2151.03(A)(6).
. R.C. 2151.04(C) defines a "dependent child” as one "[w]hose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child’s guardianship.”
. L.W., born September 6, 1989, suffered from cerebral palsy, seizure disorder, degenerative brain disorder, and Retts syndrome.
. ("Unfortunately, it has come to the Court’s attention that [L.W.], the minor previously adjudicated to be a neglected and dependent child, sadly passed away in August of 2004.”)
. In his amended objections, appellant requested that the court limit its consideration to statements made in the magistrate's findings of fact and conclusions of law "filed on June 17, 2004.” The findings of fact and conclusions of law to which appellant referred were actually filed on July 30, 2004.