In re Z.H.
DECISION AND JOURNAL ENTRY
{1} Appellant, Norman J. (“Father“), appeals from a decision of the Summit County Court of Common Pleas, Juvenile Division. This Court reverses and remands for further proceedings in accordance with this opinion.
I.
{2} On July 28, 2011, Z.H. was born to September H. (“Mother“). No father was listed on the child‘s birth certificate. Less than three weеks later, on August 17, 2011, while Mother was in a Walmart store with her child and two male companions, police took custody of Z.H. under the authority of
{3} The police contacted Summit County Children Services Board (“CSB“), and the agency filed a complaint alleging abuse, neglect, and dependency in juvenile court the next day. Mother initially stated that she preferred not to reveal the father, but she eventually and reluctantly named “Aaron Taylor” as the biological father. Sеrvice of notice that a complaint had been filed and that an adjudicatory hearing was set for September 30, 2011 was attempted on both “Aaron Taylor” and John Doe by posting. See
{4} On the date scheduled for adjudication, one Aaron Taylor appeared, but all parties agreed that he was the wrong Aaron Taylor and he was dismissed from the proceedings. The adjudicatory hearing was continued until November 10, 2011, in an effort to perfect service on the correct individual. No one claiming to be the father of Z.H. appeared at the continued adjudication either. That heаring proceeded nonetheless and resulted in an ostensible finding that the child was abused and dependent, and the matter then continued directly to disposition in which the court placed the child in the temporary custody of the agency.
{5} Two months later, another “Aaron Taylor” was located in a local prison and genetic testing was ordered by the juvenile court. When testing established that this Aaron Taylor was also not the biological father of Z.H., he, too, was removed as a party.
{6} Because the child‘s father had not been located and Mother was making no
{7} In the interim, the trial court granted permanent custody to the agency. In ensuing actions, genetic testing of Norman J. was ordered, he was determined to be the child‘s biological father, and the permanent custody decision was stayed. At the next status hearing, the trial judge vacated the permanent custody order and appointed counsel for Father. CSB reported that paternal relativеs had been located and were found to be an appropriate placement for the child. Father was added to the case plan. Within days, Father moved to dismiss the case under
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING FATHER‘S MOTION TO DISMISS THE COMPLAINT FOR FAILING TO PERFECT SERVICE.
{8} Father asserts that the trial court erred in denying his motion to dismiss or to vacate the case on the grounds that the original service of process wаs defective and that, therefore, the trial court never obtained personal jurisdiction over him.
{9} Before addressing the merits of Father‘s first assignment of error, however, this Court must consider whether the denial of his motion is a final appealable order.
{10} In addition, the trial court‘s ordеr must affect a substantial right in order to be immediately appealable under
{12} In his first assignment of error, Father asserts that the trial court lacked personаl jurisdiction to proceed because of defective service. Inter alia, he claims that the inclusion of only the child‘s initials in the posted notice failed to provide realistic notice and failed to meet the standards of due process. For that reason, he contends that the trial court proceedings were rendered void. CSB, on the other hand, contends that the use of the child‘s initials was sufficient in that it is consistent with the practice of providing some degree of privacy to children in cases involving abuse, neglect, and dependency. As this case presents a challenge tо the trial court‘s jurisdiction, it presents a question of law and will be reviewed by this Court de novo. Lorain Cty. Treasurer v. Schultz, 9th Dist. Lorain No. 08CA009487, 2009-Ohio-1828, ¶ 10.
{13} It has long been the rule in Ohio that a parent is entitled to notice of adjudicatory proceedings regarding their children. See In re Corey, 145 Ohio St. 413, 417 (1945). This is so because such complaints may lead to adversarial proceedings that can deprive parents of all rights in their children. See In re Ware, 8th Dist. Cuyahoga No. 40983, 1980 WL 130733, *2 (July 17, 1980), citing In re Miller, 61 Ohio St.2d 184, 190 (1980). In recognition of the constitutional protection afforded to parents’ fundamental interest in the care, custody, and management of their children, these requirements have been incorporated into the statutes and rules governing juvenile adjudications and dispositions as a matter of due process of law. In re Grant, 10th Dist. Franklin No. 00AP-431, 2001 WL 102254, *4 (Feb. 8, 2001), citing Santosky v. Kramer, 455 U.S. 745 (1982).
{14} Due process requires both notice and an opportunity to be heard. In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 13. Parents are parties to custody proceedings and must, therefore, be served.
{15} In this case, service was attempted by posting. Neither party disputes the means of service, and we, therefore, do not address the appropriateness of posting as the means of service here either. Instead, the parties address the adequacy of the notice. Accordingly, the focus of our inquiry is the fact that the notice included only the initials of the child, Z.H., and his date of birth by way of identification of the newborn child to the apparently unsuspecting father. Father contends that this information alone is insufficient to give reasonable notice and asserts that, under
{16} Ohio courts have generally found that the Rules of Superintendence do not, absent specific mandate, create substantive rights in individuals or procedural law. See, e.g., In re K.G., 9th Dist. Wayne No. 10C0016, 2010-Ohio-4399, ¶ 11. Further, the Rules of Superintendence “do not have the same legal standing” as the rules of practice and procedure, which must be presented to the legislature and have the effect of law. See State v. Smith, 47 Ohio App.2d 317, 328 (8th Dist.1976) (Krenzler, C.J., concurring). Additionally, there is no evidence in the record that CSB attempted to invoke and follow the procedures of
{17} The worthy goal of seeking some degree of privacy for children in abuse, neglect, and dеpendency proceedings by using initials in published decisions and press releases, the captions of filed documents, or “case documents” is recognized through
{19} This Court first determines that the use of the child‘s initials does not comport with the requirements of
{20} In this case, even the full name of the child would not have provided the desired notice to the father since the child‘s last name was taken from his maternal grandfather and is different from that of Mother. The inclusion of Mother‘s full name, however, is more likely to be recognized and to provide notice of the proceedings. The failure to include the name of Mother in this case is significant and represents a failure to provide “notice, reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action.” It is the name most likely to provide notice to the father. In fact, when the CSB caseworker visited Father in jail, she used Mother‘s name to inquire whether he might be the father of the child. Fathеr recognized her name and, upon that basis, became involved in the case.
{21} This Court concludes that the use of the initials of a child along with the failure to include Mother‘s name was insufficient to provide due process notice of pending litigation regarding the custody of that child to an unsuspecting Father. Father‘s first assignment of error is sustained.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PROCEEDING TO THE DISPOSITIONAL HEARING IMMEDIATELY AFTER THE ADJUDICATORY HEARING WITHOUT HAVING ALL PARTIES PROPERLY SERVED WITH ALL THE DOCUMENTS REQUIRED FOR THE DISPOSITIONAL HEARING AND WITHOUT OBTAINING THE CONSENT OF ALL PARTIES.
{22} Having found merit in the first assignment of error, the second assignment of error is rendered moot.
{23} Father‘s first assignment of error is sustained. We decline to address the second assignment of error as it has been rendered moot. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is rеversed and the cause is remanded for further proceedings in accordance with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
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 thе mandate, pursuant to
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.
Costs taxed to Appellee.
MOORE, P. J.
HENSAL, J.
CONCUR.
DONNA J. CARR
FOR THE COURT
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.