In re S.R.

[Cite as In re S.R., 2015-Ohio-3328.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

IN RE: S.R. C.A. No. 27519

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE No. DN 12-03-146

DECISION AND JOURNAL ENTRY

Dated: August 19, 2015

HENSAL, Presiding Judge.

{¶1} Appellant, Rodney R. (“Father”), appeals from an order of the Summit County

Court of Common Pleas, Juvenile Division, that denied his motion to dismiss the complaint,

which was based on the trial court’s alleged failure to comply with the time constraints of

Revised Code Section 2151.35(B)(1) and Juvenile Rule 34(A). This Court dismisses the appeal

for lack of a final, appealable order.

I.

{¶2} Father is the natural father of S.R., who was born January 23, 2004, in California,

where Father continued to reside. S.R. later moved with her mother to Summit County, Ohio.

On March 4, 2012, S.R. was removed from her mother’s home and, the next day, Summit

County Children Services Board (“CSB”) filed a complaint, alleging that S.R. was a neglected

and dependent child. Father was identified on the complaint as the only man alleged to be S.R.’s

father and was served with the complaint and subsequent trial court notices at the same

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California address throughout the trial court proceedings. Nonetheless, Father was not included

in the case plan, and the record included no explanation for the agency’s failure to include him.

{¶3} Father communicated with CSB via telephone several times during this case, but

he did not attend any of the proceedings before the trial court, nor was he represented by counsel.

During the trial court proceedings, CSB did not disclose to the court that it had received

communications from Father and, in fact, suggested to the court that it did not know how to

reach Father.

{¶4} S.R. was adjudicated a dependent child and placed in the temporary custody of

CSB. CSB later moved for permanent custody of S.R. The mother appeared at the hearing and

voluntarily relinquished her parental rights. Father was again not present, but the agency

presented evidence from which the trial court later concluded that S.R. had been in the temporary

custody of CSB for more than 12 or the prior 22 months and that permanent custody was in her

best interest.

{¶5} After the final judgment, the trial court appointed counsel to represent Father on

appeal. Father raised two assignments of error, and, after this Court’s initial review of the

record, it asked the parties to address a supplemental issue: whether the trial court committed

plain error by terminating Father’s rights despite CSB’s failure to include him in any case

planning or reunification efforts. This Court found merit in that supplemental issue, under the

specific facts of this case, and reversed and remanded the permanent custody judgment on that

basis. In re S.R., 9th Dist. Summit No. 27209, 2014-Ohio-2749, ¶ 34.

{¶6} On remand, Father moved to dismiss the complaint. Father asserted that, because

this Court had held that the trial court had erred in adopting case plans that failed to include

Father, the trial court was required to hold a new dispositional hearing and adopt a new, legally

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sufficient case plan. Father pointed to the language of Revised Code Section 2151.35(B)(1) and

Juvenile Rule 34(A), which require that the initial dispositional hearing be held within 90 days of

the filing of the complaint. Because a new dispositional hearing could not be held within the 90-

day time period, as the complaint had been filed more than two years earlier, Father argued that

the trial court was required to dismiss the complaint.

{¶7} The trial court denied Father’s motion to dismiss the complaint, reasoning that

this Court’s mandate on remand did not nullify the trial court’s initial dispositional hearing,

which was held within the time constraints set forth in the Revised Code and the Juvenile Rules.

Father appeals and raises one assignment of error.

II.

{¶8} During the pendency of this appeal, this Court ordered the parties to brief the

issue of its jurisdiction to hear the appeal. Father filed a brief that argued in support of

jurisdiction, and CSB argued that the appeal should be dismissed for lack of a final, appealable

order. The matter proceeded through briefing on the merits, but this Court first must address

whether it has jurisdiction to hear this appeal.

{¶9} Article IV, Section 3(B)(2) of the Ohio Constitution limits this Court's appellate

jurisdiction to the review of final judgments of lower courts. “Generally, whether an order is

final and appealable is determined by the effect the order has on the pending action, rather than

the name attached to the order or its general nature.” In re T.G., 12th Dist. Butler No. 2008-01-

026, 2008-Ohio-4165, ¶ 14.

{¶10} Under Revised Code Section 2505.02(B)(2), an order is final and appealable if it

“affects a substantial right made in a special proceeding.” This dependency action is governed

by a statutory scheme set forth in Revised Code Chapter 2151 that was not recognized by

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common law. In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, ¶ 43. Consequently, it is not

disputed that Father appeals from an order that was made in a special proceeding.

{¶11} The pivotal question here is whether the order appealed by Father “affects a

substantial right.” Section 2505.02(A)(1) defines “substantial right” as “a right that the United

States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure

entitles a person to enforce or protect.” Moreover, an order does not “affect[] a substantial right”

under Section 2505.02(B)(2) unless it is one that, “‘if not immediately appealable, would

foreclose appropriate relief in the future.’” Southside Community Dev. Corp. v. Levin, 116 Ohio

St.3d 1209, 2007-Ohio-6665, ¶ 7, quoting Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63

(1993).

{¶12} A party’s inability to seek “appropriate relief in the future” has been equated with

having “virtually no opportunity for an appellate court to provide relief on appeal after final

judgment from an order that allegedly prejudiced a legally protected right.” State v. Chalender,

99 Ohio App.3d 4, 7 (2d Dist.1994). A substantial right is not affected merely because the

parties must wait until the final disposition to seek review of interlocutory issues in a

dependency and neglect case. See In re Adams, 2007-Ohio-4840, at ¶ 44.

{¶13} In abuse, neglect, and dependency cases, the Ohio Supreme Court has identified

one order that is appealable prior to the final placement of the child: the juvenile court’s

adjudication that a child is abused, neglected and/or “‘dependent’, as defined in R.C. Chapter

2151 followed by a disposition awarding temporary custody to a children services agency[.]” In

re Murray, 52 Ohio St.3d 155 (1990), syllabus. The Court reasoned in Murray that the parents

would not have an adequate opportunity to appeal the adjudication through a later appeal because

the initial adjudication of the child would not be re-litigated; the ultimate disposition of the child

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may not result in a permanent removal from the home; and the initial “temporary” removal of the

child could last as long as two years. See Adams at ¶ 38-39.

{¶14} Moreover, the Ohio Supreme Court later held that the adjudication and initial

temporary custody disposition cannot be challenged through a timely appeal from the final

dispositional order. In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 18. Therefore, if parents

had no right to an immediate appeal from the adjudication and initial disposition of the child,

they would have no opportunity to seek appellate review.

{¶15} Although Father’s brief in support of jurisdiction argues otherwise, in In re Z.H.,

9th Dist. Summit No. 26844, 2013-Ohio-3904, this Court did not recognize a right to appeal

from an order issued after the adjudication and initial disposition, but merely extended the

rationale of Murray and Adams to the unique facts of the case. In Z.H., this Court found that it

had jurisdiction to address the father’s collateral attack of the adjudication and initial disposition

of his child because he had not been served with notice of the proceedings until long after the

time to appeal that order had lapsed. Consequently, the father was deprived of his right to

participate in the trial court proceedings or to appeal from the adjudication and initial disposition

of his child. Id. at ¶ 21. In that specific situation, because the father might have otherwise been

foreclosed from seeking appellate review of the adjudication and initial disposition of his child,

this Court had jurisdiction to hear the appeal from the trial court’s denial of his motion to vacate

the judgment. See id. at ¶ 11.

{¶16} Father does not attempt to appeal from an order that bears any of the same indicia

of finality. Notably, unlike the father in Z.H., Father was not previously and will not be

foreclosed from seeking appropriate relief through an appeal after the conclusion of the trial

court proceedings. He was given timely notice of all of the trial court proceedings, but did not

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personally appear for any of the hearings. He could have, but did not, file a timely appeal from

the adjudication and initial disposition of S.R.

{¶17} Although Father makes other arguments on appeal, his written motion to dismiss

the complaint, and the trial court’s order denying it, were solely based on Revised Code Section

2151.35(B)(1) and Juvenile Rule 34(A). Both the statute and rule provide that, after the trial

court adjudicates a child as abused, neglected, or dependent, it “shall not issue a dispositional

order” until after it holds a separate dispositional hearing, which “shall not be held more than

ninety days after the date on which the complaint in the case was filed.” If the trial court fails to

comply with this 90-day time limitation, the statute and the rule further provide that “the court,

on * * * the motion of any party * * *, shall dismiss the complaint without prejudice.”

{¶18} To begin with, this Court must emphasize that a juvenile court’s denial of a

motion to dismiss a dependency complaint for failure to comply with the 90-day time

requirement will typically accompany the initial dispositional order for the child and, therefore,

be subject to immediate appellate review. It is apparent from the plain language of Revised

Code Section 2151.35(B)(1) and Juvenile Rule 34(A) that the 90-day time limit of applies to the

initial dispositional order in the case.

{¶19} Moreover, the 90-day time constraint is a procedural mechanism that reflects a

“legislative intent to expedite hearings in child-custody cases[.]” In re Brown, 96 Ohio App.3d

306, 310 (2d Dist.1994). The trial court’s denial of Father’s motion to dismiss the complaint on

this procedural basis was akin to the denial of a motion to dismiss a criminal complaint for the

trial court’s failure to comply with the time limits of the speedy trial statutes. See R.C. 2945.71-

2945.73. The purpose of dismissing a criminal complaint for speedy trial violations similarly

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reflects a policy that balances the needs of the accused and the public to ensure a prompt

resolution of the proceedings. See United States v. Ewell, 383 U.S. 116, 120 (1966).

{¶20} Although the requirements and policy behind the time constraints in the juvenile

and criminal proceedings are similar, the sanction for an untimely dispositional hearing in a

dependency case is purely procedural, as the dismissal is without prejudice and allows the

agency to file a new complaint. See R.C. 2151.35(B)(1); Juv.R. 34(A). A speedy trial violation

has far more significant implications on the rights of a criminal defendant, as such a violation

requires dismissal of the complaint with prejudice, barring new charges against the defendant

based on the same conduct. See R.C. 2945.72(D).

{¶21} Nevertheless, Ohio does not recognize the denial of a motion to dismiss a

complaint on speedy trial grounds as a final, appealable order. See, e.g., State v. Orr, 8th Dist.

Cuyahoga No. 100931, 2014-Ohio-4814, ¶ 15; State v. Serednesky, 7th Dist. Mahoning No. 99

CA 77, 1999 WL 1124763 (Nov. 22, 1999); State v. Hare, 10th Dist. Franklin No. 88AP-683,

1989 WL 73901 (July 6, 1989); Middletown v. Jackson, 8 Ohio App.3d 431, 431-432 (12th

Dist.1983). Instead, it is subject to appellate review after the proceedings conclude, if the

defendant is convicted and sentenced. See State v. Siler, 57 Ohio St.2d 1 (1979).

{¶22} Although the finality analysis in criminal proceedings is under Revised Code

Section 2505.02(B)(1), rather than Section 2505.02(B)(2), the speedy trial cases illustrate that

appellate review is not foreclosed by requiring the defendant to wait until after the final

judgment. Consequently, Father has failed to demonstrate that the trial court’s denial of his

motion to dismiss the complaint is a final, appealable order.

{¶23} Father has failed to demonstrate that he would be foreclosed from seeking

appellate review of the trial court’s order denying his motion to dismiss after the final disposition

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in this case. Consequently, this Court must dismiss the appeal for lack of a final, appealable,

order.

Appeal dismissed.

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.

JENNIFER HENSAL

FOR THE COURT

WHITMORE, J.

MOORE, J.

CONCUR.

APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant

Prosecuting Attorney, for Appellee.

TONY PAXTON, Attorney at Law, for Appellee.

LINDA BENNETT, Guardian ad Litem.