IN RE: B.G.S. [ZACHARY SUMMERS - APPELLANT]
from Marion County Common Pleas Court Juvenile Division Trial
Court No. 2016 AB 00086
H. Lowther for Appellant
J. Kahle for Appellee
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
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). 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). 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).
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
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). 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).
Summers filed his notice of appeal on August 25, 2017. (Doc.
No. 51).He brings one assignment of error for our
[Trial] Court Erred To The Prejudice Of Appellant By
Dismissing Appellant's Motion For Relief From
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
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, ¶
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, ¶ 15. Because of the importance