IN THE MATTER OF: P.T.
Case No. 2011 CA 00200
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 19, 2012
[Cite as In re P.T., 2012-Ohio-1287.]
Hon. Sheila G. Farmer, P. J., Hon. John W. Wise, J., Hon. Julie A. Edwards, J.
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 19, 2012
APPEARANCES:
For Appellant
THOMAS A. MCCORMACK
SUPERIOR BUILDING SUITE 1915
815 Superior Avenue East
Cleveland, Ohio 44114
For Appellee
DAVID TRUEX
PRO SE
231 Plum Street North
East Canton, Ohio 44730
{¶1} Appellant Dawn Truex appeals the decision of the Stark County Court of Common Pleas, Juvenile Division, which dismissed her complaint alleging dependency and neglect regarding her minor daughter, P.T. Appellee David Truex is the child‘s father and her present residential parent and custodian. The relevant facts leading to this appeal are as follows.
{¶2} Appellant Dawn Truex and Appellee David Truex are the divorced parents of the child P.T., who was born in July 2002.
{¶3} On June 3, 2011, Appellant Dawn Truex, with the assistance of counsel, filed a complaint in the Stark County Court of Common Pleas, Juvenile Division, captioned as an “Attested Complaint in Neglect and Dependency.” The complaint stated, inter alia, that P.T. had been residing with Appellee David Truex as per court orders and a shared parenting plan from 2007 in the Stark County Domestic Relations Court. The complaint also alleged that P.T. was described as appearing emaciated and emotionally withdrawn at her last doctor visit in March 2011. The Stark County Department of Job and Family Services (“SCDJFS“) was not named as a party on said complaint.
{¶4} On June 7, 2011, prior to any scheduled court hearings or appearances, a magistrate reviewed the file via a “non-oral hearing” and determined that the complaint should be dismissed. The magistrate noted that the parties had been involved in a number of post-decree motions in the Domestic Relations Court, and that said court had the appropriate jurisdiction for issues involving P.T. The magistrate added: “If the parties have concerns regarding dependency/neglect/abuse, they may make
{¶5} On June 22, 2011, appellant filed an objection to the decision of the magistrate, pursuant to
{¶6} On August 10, 2011, five days before the rescheduled objection hearing, appellant, via counsel, filed a motion to continue. The motion stated in pertinent part that appellant‘s counsel had never received a copy of the judgment entry resetting the objection hearing for August 15, 2011, and that counsel had “a previous commitment to a client meeting on that date, which he cannot change on short notice.”
{¶7} Nonetheless, on August 15, 2011, the trial court, via a second visiting judge, issued a judgment entry stating that nobody had appeared on that date and that the objection was accordingly dismissed.
{¶8} On September 14, 2011, appellant filed a notice of appeal. She herein raises the following two Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED WHEN IT DISMISSED PLAINTIFF/APPELLANT‘S ATTESTED COMPLAINT IN DEPENDENCY AND NEGLECT.
{¶10} “II. THE STARK COUNTY JUVENILE COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW WHEN IT DISMISSED THE ATTESTED COMPLAINT IN DEPENDENCY AND NEGLECT BASED ON A FAILURE TO APPEAR, WHEN THE COURT HAD PROVIDED PLAINTIFF/APPELLANT NO
I.
{¶11} In her First Assignment of Error, appellant contends the juvenile court erred in dismissing her private-party action alleging dependency and neglect. We agree.
{¶12}
{¶13} Thus, “a public or private party can initiate an action pursuant to
{¶14} We therefore hold the trial court‘s decision to sua sponte dismiss appellant‘s complaint alleging neglect and dependency regarding P.T. was erroneous as a matter of law. Appellant‘s First Assignment of Error is sustained.1
II.
{¶15} In her Second Assignment of Error, appellant contends the trial court abused its discretion in dismissing her objection to the decision of the magistrate for want of appearance. We agree.
{¶16} The grant or denial of a continuance is a matter entrusted to the broad, sound discretion of the trial court. Polaris Ventures IV, Ltd. v. Silverman, Delaware App.No. 2005 CAE 11 0080, 2006-Ohio-4138, ¶ 14, citing State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d 1078. In order to find an abuse of discretion, we must find the trial court‘s decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶17} In determining whether a trial court abused its discretion in denying a motion for a continuance, an appellate court should consider the following factors: (1) the length of the delay requested; (2) whether other continuances have been requested and received; (3) the inconveniences to witnesses, opposing counsel and the court; (4)
{¶18} In the case sub judice, the record indicates that appellant and her counsel duly appeared before the court for the first objection hearing on July 6, 2011, at which time the matter was continued for purposes of perfecting notice of the proceeding upon appellee. At the rescheduled hearing on August 15, 2011, the trial court dismissed the objection without any reference to the existence of appellant‘s pending motion to continue the hearing, which was based on a reasonable assertion of a counsel‘s schedule conflict. We also must note that appellee herein has not filed a brief opposing this appeal.
{¶19} Accordingly, we find an abuse of discretion under these circumstances in the denial of the motion to continue, and we therefore reverse and remand the issue of appellant‘s
{¶20} Appellant‘s Second Assignment of Error is sustained.
By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
JUDGES
JWW/d 0229
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: P.T.
JUDGMENT ENTRY
Case No. 2011 CA 00200
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.
Costs assessed to appellee.
JUDGES