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In re B.G.S.

Court of Appeals of Ohio, Third District, Marion

December 26, 2017

IN RE: B.G.S. [ZACHARY SUMMERS - APPELLANT]

         Appeal from Marion County Common Pleas Court Juvenile Division Trial Court No. 2016 AB 00086

          David H. Lowther for Appellant

          Justin J. Kahle for Appellee

          OPINION

          PRESTON, P.J.

         {¶1} Appellant Zachary Summers ("Summers") appeals the July 20, 2017 judgment entry of the Marion County Family Court denying his Motion for Relief From Judgment and his Motion to Provide Documents. For the reasons that follow, we reverse.

         {¶2} B.G.S. was born in July of 2016 to Elizabeth Sappington ("Sappington") and Summers. The birth of B.G.S. was unknown to Summers until after the case was disposed of. On August 2, 2016, the Marion County Children Services Board ("the Agency") filed "Motion For Ex Parte/Emergency Orders With Notice Of Hearing" asking that the trial court grant the Agency temporary emergency custody of B.G.S., and the trial court granted the motion. (Doc Nos. 1, 2).[1] On August 2, the Agency filed a complaint alleging that B.G.S. was a dependent child under R.C. 2151.04 (Doc. No. 3).[2] After a shelter care hearing on August 2, 2016, the trial court granted the Agency pre-dispositional interim custody on August 5, 2016. (Doc. No. 5). After an adjudication on September 16, 2016, the magistrate found B.G.S. to be a dependent child on October 20, 2016. (Doc. No. 19). That same day, the trial court adopted the magistrate's decision as its order. (Doc. No. 20).

         {¶3} On November 23, 2016, the Agency filed a motion for permanent custody of B.G.S. (Doc. No. 28). After a hearing on November 29, 2016 at which Sappington executed a permanent voluntary surrender of her parental rights, the trial court granted permanent custody of B.G.S. to the Agency on December 13, 2016. (Doc. No. 32). The Agency attempted to serve Summers by posting in order to inform him of both the dependency hearing and the permanent custody hearing. The postings included initials to identify the child and did not include Sappington's name.

         {¶4} On January 31, 2017, Summers filed "Motion to Provide Documents, " as well as a Motion For Relief From Judgment under Civ.R. 60(B) asking that the trial court vacate its judgment entry granting permanent custody to the Agency. (Doc. Nos. 37, 38). In his Motion For Relief From Judgment, Summers alleges that he was not aware of the birth of B.G.S. and was not properly served with notice of the permanent custody hearing. On February 28, the Agency filed a response to Summers's Motion For Relief From Judgment. (Doc. No. 42).[3] On April 28, 2017, Summers filed an additional brief in which he argues that he is entitled to relief under Civ.R. 60(B) because the Agency did not perfect service upon him and because Sappington committed fraud. (Doc. No. 48). The trial court denied Summers's motions on July 20, 2017. (Doc. No. 49).

         {¶5} Summers filed his notice of appeal on August 25, 2017. (Doc. No. 51).[4]He brings one assignment of error for our review.

         Assignment of Error

         The [Trial] Court Erred To The Prejudice Of Appellant By Dismissing Appellant's Motion For Relief From Judgment.

         {¶6} In his sole assignment of error, Summers argues that the trial court erred by denying his motion under Civ.R. 60(B). Specifically, Summers argues that the trial court erred in denying his motion because Summers was the victim of fraud. Summers further argues that the trial court was without jurisdiction to hear the case because Summers did not receive adequate notice of the dependency proceeding or the permanent custody hearing.

         {¶7} In order to prevail on a motion for relief from judgment under Civ.R. 60(B), a movant must show that (1) he has a meritorious defense if relief is granted; (2) he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time. In re Schuette, 12th Dist. No. CA2002-11-042, 2003-Ohio-2371, ¶ 11, citing GTE Automatic Elec, Inc. v. ARC Industries, 47 Ohio St.2d 146 (1976). A trial court exercises broad discretion in ruling on a motion under Civ.R. 60(B), and a reviewing court will not reverse the trial court's decision absent an abuse of that discretion. Id. Where a movant files a motion to vacate a judgment under Civ.R. 60(B) and specifically challenges the court's personal jurisdiction over him on the basis that he was not provided notice, reviewing courts treat the motion as a common-law motion to vacate, and such a motion need not meet the standards applicable to a Civ.R. 60(B) motion. In re R.P., 9th Dist. Summit No. 26271, 2012-Ohio-4799, ¶ 19. Issues related to a court's jurisdiction are reviewed de novo. In re Z.H., 9th Dist. Summit No. 26844, 2013-Ohio-3904, ¶ 12.

         {¶8} The right to raise one's child is a basic and essential right. In re Murray,52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois,405 U.S. 645, 651, 92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923). "Parents have a 'fundamental liberty interest' in the care, custody, and management of the child." Id., quoting Santosky v. Kramer,455 U.S. 745, 753, 102 S.Ct. 1388 (1982). Where a complaint for dependency has been filed, parents are entitled to notice, whether actual or constructive, of the dependency proceeding. In re Billingsley, 3d Dist. Putnam Nos. 12-02-07 and 12-02-08, 2003-Ohio-344, ¶ 9. Failure of notice renders any determination in relation to such a proceeding void. Id. In order to be proper, service of process must be made in some manner reasonably calculated to apprise interested parties of the action and give them an opportunity to respond. In re J.K.M., 2d Dist. Montgomery No. 27183, 2016-Ohio-7799, ΒΆ 15. Because of the importance ...


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