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In re Z.H.

Court of Appeals of Ohio, Ninth District

September 11, 2013

IN RE: Z.H.

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 11-8-556

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

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

DONNA J. CARR, Judge.

(¶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 weeks 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 Juv.R. 6. The basis for the removal was that police suspected Mother and her two male companions of purchasing drug-making supplies.

(¶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. Service 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 Juv.R. 16(A).

(¶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 hearing 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 efforts on her case plan whatsoever, CSB moved for permanent custody of the child on July 10, 2012. The matter proceeded to a hearing in the absence of either parent. Two days after the permanent custody hearing, Mother named Norman J. as the biological father of the child and stated that he was in jail. The CSB caseworker visited Norman J. in jail and reported that he conceded, upon hearing Mother's name, that he could be the father and would like to pursue custody if he is determined to be the child's biological father.

(¶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 relatives 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 Civ.R. 60(B)(5) or a common law motion to vacate on the grounds of defective service and a resultant lack of personal jurisdiction. CSB opposed and the trial court denied Father's motion. Father appeals from that judgment and assigns two errors for review.

II.

ASSIGNMENT OF ERROR I


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