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In re A.G.

Court of Appeals of Ohio, Ninth District, Summit

December 20, 2017

IN RE: A.G.

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 16 08 0730

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

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

          JOSEPH M. KERNAN, Guardian at Litem.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER, Presiding Judge.

         {¶1} Appellant-Mother appeals the judgment of the Summit County Court of Common Pleas, Juvenile Division, that adjudicated her child A.G. a dependent child. This Court reverses and remands.

         I.

         {¶2} Mother is the biological mother of A.G. (d.o.b. 8/16/06). Paternity was established; but Father, who is incarcerated, is not a party to this appeal. A.G. was diagnosed with Type 1 diabetes when she was five or six years old. When the child was ten years old, Summit County Children Services Board ("CSB") received a call alleging that AG's diabetes was not being well managed and that the child had recently been hospitalized. After attempting to work with the resistant Mother for almost two months to appropriately manage the child's diabetes, the agency filed a complaint alleging A.G. to be a neglected and dependent child. At the same time, the juvenile court granted CSB an interim order of protective supervision.

         {¶3} The matter proceeded to adjudication before the magistrate, who repeatedly chastised the parties for failing to present relevant evidence. After CSB rested its case, Mother moved to dismiss the complaint pursuant to Civ.R. 41(B)(2), arguing that the agency had failed to prove the allegations of neglect and dependency by clear and convincing evidence. The assistant prosecutor argued that the agency had presented sufficient evidence to establish neglect and dependency. CSB did not, however, argue that Civ.R. 42(B)(2) was an inappropriate procedural mechanism by which Mother could seek dismissal of the complaint. The magistrate granted Mother's oral motion and dismissed the agency's complaint in toto.

         {¶4} CSB filed objections to the magistrate's decision, arguing solely that the agency had presented sufficient clear and convincing evidence to prove that A.G. was neglected and dependent. Mother filed a brief in opposition. The juvenile court overruled CSB's objections in part as they related to the allegation of neglect, and dismissed that allegation as unproven. However, it sustained the agency's objections in part and found that CSB had proved by clear and convincing evidence that A.G. was a dependent child. The juvenile court then ordered that "[t]his matter shall be remanded to the Magistrate for further action consistent with the orders herein." The juvenile court did not address the applicability of Civ.R. 41(B)(2) in juvenile proceedings.

         {¶5} Mother immediately filed a notice of appeal to challenge the juvenile court's order adjudicating A.G. a dependent child. While the appeal was pending, CSB moved for an order terminating protective supervision, as the child sadly had died. Four days later, and without a hearing, the magistrate issued an order terminating the agency's order of protective supervision, and noting that she would issue a full decision "under separate entry."[1] Mother immediately filed (1) a motion to set aside the magistrate's order, and (2) a motion to vacate the dependency finding and terminate the case based in part on the trial court's failure to allow Mother to present a defense to the allegations in the complaint, as permitted by Civ.R. 41(B)(2). The juvenile court dismissed Mother's motions for lack of jurisdiction, because her appeal was still pending.

         {¶6} This Court dismissed Mother's first appeal, and Mother thereafter filed renewed motions in the juvenile court to set aside the magistrate's dispositional order and to vacate the finding of dependency. CSB filed a brief in opposition, again failing to argue that Mother improperly invoked Civ.R. 41(B)(2) when moving to dismiss the agency's complaint. The juvenile court issued a judgment in which it denied Mother's motion to set aside the magistrate's order terminating protective supervision. In addition, the juvenile court denied Mother's motion to vacate the dependency adjudication. In rejecting Mother's due process argument that the court denied her the opportunity to present a defense to the allegations in the complaint, the juvenile court reasoned:

[Mother] had appointed counsel and a right to present her defense, but opted to move for dismissal after the State's case was presented. She cannot now claim that she was prejudiced by her own choice and seek relief from the Court on that basis.

         {¶7} It then ordered that A.G. was a dependent child, that the interim order of protective supervision was terminated, and that the case be docketed closed. Mother filed a timely ...


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