IN THE MATTERS OF: Z.S., C.S., and E.S.
Case No. 20-CA-00002, 20-CA-00003, and 20-CA-00004
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 19, 2021
[Cite as In re Z.S., 2021-Ohio-118.]
JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Juvenile Division, Case Nos. 2018-C-175, 2018-C-176, and 2018-C-177 JUDGMENT: Reversed and Remanded
For Plaintiff-Appellee
JESSICA MONGOLD
Perry County Children Services
Post Office Box 502
Lancaster, Ohio 43130
For Defendants-Appellants
STEVEN KINGSOLVER &
TINA KINGSOLVER, pro se
11244 Ridenour Road
Thornville, Ohio 43076
{¶1} Steven Kingsolver and Tina Kingsolver appeal the decision of the Perry County Common Pleas Court, Juvenile Division granting legal custody of C.S., Z.S. and E.S to Sharon Walker and Mark Howland. Appellee is Perry County Children‘s Services.
{¶2} Appellants’ statement of the facts and statement of the case are both difficult to understand, lack reference to the record and include comments that are more editorial than expository. While we recognize that appellants are acting pro se, pro se litigants are presumed to have knowledge of the law and correct legal procedures so that they remain subject to the same rules and procedures to which represented litigants are bound. Carskadon v. Avakian, 5th Dist. No. 11 CAG020018, 2011-Ohio-4423, ¶ 33 quoting Kilroy v. B.H.Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996). They are not given greater rights than represented parties, and must bear the consequences of their mistakes. Id.
{¶3} Appellants have not provided a transcript of the hearings before the trial court or a statement of the evidence under
STATEMENT OF THE CASE
{¶5} On July 25, 2018, Appellee filed a complaint in the trial court seeking temporary custody of five children, including C.S., Z.S. and E.S. An ex parte order was issued on July 25, 2018 and later, on that same date, a shelter care hearing was conducted with Tina Kingsolver in attendance. She denied the allegations of dependency and she and Steven Kingsolver filed a motion requesting appointment of counsel. That motion was granted on August 1, 2018 and the adjudication of the complaint was scheduled for August 29, 2018.
{¶6} On August 23, 2018, Tina Kingsolver filed a motion requesting the appointment of guardian ad litem. On September 5, 2018 the trial court addressed this motion and stated “[t]he parties agree to an in-camera interview, shall occur by Judge Cooperrider.(sic) The in-camera interview shall occur on October 3rd,(sic) 2018 at 11:30 a.m.”
{¶8} On October 3, 2018 appellants appeared before the court, with counsel, for the adjudicatory hearing on the complaint. The trial court entered an order finding the children dependent and scheduling the dispositional hearing for December 19, 2018. Because we have no transcript of the hearing or statement of evidence, we must conclude that the hearing was conducted in accordance with applicable law. Knapp, supra.
{¶9} On October 26, 2018 the Kingsolvers submitted a written document to the court requesting that they be permitted to withdraw their plea admitting the dependency of the children. On November 2, 2018 the Kingsolvers filed a notice of appeal of the judgment entry of October 3, 2018 finding the children dependent. On November 6, 2018 counsel for appellant, Tina Kingsolver, filed a motion for leave to withdraw as counsel and that motion was granted the same day.
{¶10} On November 28, 2018 the trial court issued an order that stated as follows:
This matter will come before the court on December 19, 2018 at 10:00 a.m. for an Adjudicatory Hearing.
The court hereby accepts the parties(sic) letter requesting their admission in open court with counsel present, be accepted.1 The appeal filed by the Tina Kingsolver and Stephen Kingsolver was DISMISSED effective November 26, 2018.
{¶12} On December 12, 2018 the trial court entered the following order:
The court hereby,(sic) cancels the Adjudicatory Hearing scheduled for December 19, 2018 at 10:00 a.m. The court was advised the parents Tina and Stephen Kingsolver desired to withdraw their admission. The court had converted the dispositional hearing to an adjudicatory hearing to benefit the parents. However the parties now wish to continue with their appeal. The court will therefore, wait for the decision of the Fifth District Court of Appeals.
The adjudicatory hearing on December 19, 2018 at 10:00 a.m., is therefore, CANCELLED.
{¶13} Except for the filing of a case plan and a semi-annual review, no further proceedings took place in the trial court until after the journalization of our decision in In the Matter of: Z.S., supra.
{¶14} This court issued its decision in In the Matter of: Z.S., supra on July 12, 2019 dismissing the appeal for lack of a final appealable order based upon the lack of a
{¶15} On July 30, 2019 the trial court issued an order scheduling a pretrial for August 28, 2019 and, pursuant to the request of Appellee, an annual review was scheduled for the same day. The hearing occurred as evidenced by an order issued by the trial court. The order is a preprinted form with a number of alternatives listed and spaces before each to indicate which alternative has been selected to include in the judgment. The following terms in the order of August 28, 2019 were preceded by an “x“:
✗ There being no objection, the court proceeded with Disposition.
X The Court asked caseworker from PCCS for recommendation from Agency.
X It is ordered that *** Temporary Custody of the child *** should continue with PCCS until further order of the Court.
X Visitation to cont‘d as arranged by PCCS
X All parties Ordered to comply with PCCS and Case Plan
X (Reviewed)/Finalized Child‘s Permanency Plan: Temp Custody to cont‘d w/ PCCS
✗ This is a Final Appealable ORDER
X Other: Best interests and reasonable efforts taken by agency, but Court finds it in child‘s best interests that Temporary Custody to cont‘d with PCCS until further order of the Court.
{¶17} Appellant, Steven Kingsolver filed a timely notice of appeal.
{¶18} Kingsolver has included several assignments of error that are difficult, if not impossible to interpret. We recognize that Kingsolver is acting pro se and that he may have been challenged by the complexities of the law. However, as we noted above, the Supreme Court of Ohio has “repeatedly declared that ‘pro se litigants * * * must follow the same procedures as litigants represented by counsel.‘” State ex rel. Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376, ¶ 5. ” ‘It is well established that pro se litigants are presumed to have knowledge of the law and legal procedures and that they are held to the same standard as litigants who are represented by counsel.’ ” State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept. of Job & Family Serv., 145 Ohio St.3d 651, 654, 763 N.E.2d 1238.
ANALYSIS
{¶19} One assignment we can confidently distill from Kingsolver‘s brief is the contention that the trial court failed to conduct a dispositional hearing within ninety days of the filing of the complaint as required by
{¶20} The Supreme Court of Ohio considered “whether
{¶21} In the matter before us, a complaint was filed on July 25, 2018 creating a deadline for disposition of October 23, 2018. The trial court scheduled the dispositional hearing for December 19, 2018, long after the expiration of the ninety day deadline, and did complete not conduct a dispositional hearing until August 28, 2019. The fact that appellants filed a motion to withdraw their admission to the adjudicatory phase of the proceeding does not serve to extend the ninety day time limit as the language of the statute and the rule as well the Supreme Court‘s holding in In re K.M. provide no flexibility.
{¶22} The Supreme Court of Ohio also explained that a mandatory deadline “‘must be considered a limitation upon the power of the officer.’ Davis at 522, 705 N.E.2d 1219, quoting State ex rel. Smith v. Barnell, 109 Ohio St. 246, 255, 142 N.E. 611 (1924).” In re K.M. supra at ¶ 20. Consequently, after the expiration of the ninety day deadline on October 23, 2018, the trial court had no authority to issue further orders except to journalize the dismissal of the case.
{¶23} We have previously noted that “dismissal of cases before their final disposition would require either that ***children be returned to a potentially risky home situation or that a new complaint be filed to begin the process all over again” and the Supreme Court of Ohio has acknowledged “the burden that a mandatory 90-day deadline in
By: Baldwin, J.
Delaney, J. concur
Hoffman, P.J. dissents
{¶25} I respectfully dissent from the majority opinion.
{¶26} The lynchpin of the majority opinion is its reliance on In re K.M., 159 Ohio St.3d 544 (2020).2
{¶27} I find In re K.M. significantly procedurally distinguishable.
{¶28} In In re K.M., the appellant mother made a motion to dismiss prior to the start of the dispositional hearing for failure of the trial court to hold it in a timely manner as required by
{¶29} The Ohio Supreme Court unanimously found the statutory deadline in
Ohio law mandates that a juvenile court dismiss a neglect, abuse, or dependency case on the motion of any party if the court does not complete disposition within ninety days of the date of filing of the complaint. (In re K.M., supra, at ¶ 16, emphasis added).
{¶30} In affirming this proposition of law, the Ohio Supreme Court quoted
The dispositional hearing shall not be held more than ninety days after the date of which the complaint in the case was filed.
If the dispositional hearing is not held within the period of time required by this division, the court on its own motion or the motion of any party or the guardian ad litem of the child, shall dismiss the complaint without prejudice. (Emphasis added).
{¶31} The Ohio Supreme Court found the statutory deadline to be mandatory when “the nature of the act to be performed or the phraseology of the statute in such that the designations of time must be considered a limitation upon the power of the officer.” Id., citing In re Davis, 84 Ohio St.3d 520, 522. The Ohio Supreme Court then contrasted In re Z.R., 144 Ohio St.3d 380, 2015-Ohio-3306, noting
{¶32} The Ohio Supreme Court went on to hold there can be no implicit waiver of the 90-day limit as the statutory language is explicit in requiring dismissal after the expiration of the 90-day period. In re K.M., supra at ¶ 23.
{¶33} Based upon the explicit language of
{¶34} There is no record Appellants herein made a motion to dismiss before the trial court issued its final entry on August 28, 2019. Nor did Appellants file a direct appeal from said final entry. Had there been, I would readily agree with the majority In re K.M. would mandate dismissal of the complaint without prejudice. However, this case does not present a situation of a lack of subject matter jurisdiction, nor does it present the improper exercise of jurisdiction as occurred in In re K.M..
{¶35} In the absence of a motion to dismiss pursuant to