[Cite as In re P.T.,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: Hon. Sheila G. Farmer, P. J. IN THE MATTER OF: Hon. John W. Wise, J. Hon. Julie A. Edwards, J.

P.T. Case No. 2011 CA 00200

OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2011 JCV 00772

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 19, 2012

APPEARANCES:

For Appellant For Appellee

THOMAS A. MCCORMACK DAVID TRUEX SUPERIOR BUILDING SUITE 1915 PRO SE 815 Superior Avenue East 231 Plum Street North Cleveland, Ohio 44114 East Canton, Ohio 44730 Stark County, Case No. 2011 CA 00200 2

Wise, J.

{¶1} Appellant Dawn Truex appeals the decision of the Stark County Court of

Common Pleas, Juvenile Division, which dismissed her complaint alleging dependency

and neglect regarding her minor daughter, P.T. Appellee David Truex is the child’s

father and her present residential parent and custodian. The relevant facts leading to

this appeal are as follows.

{¶2} Appellant Dawn Truex and Appellee David Truex are the divorced parents

of the child P.T., who was born in July 2002.

{¶3} On June 3, 2011, Appellant Dawn Truex, with the assistance of counsel,

filed a complaint in the Stark County Court of Common Pleas, Juvenile Division,

captioned as an “Attested Complaint in Neglect and Dependency.” The complaint

stated, inter alia, that P.T. had been residing with Appellee David Truex as per court

orders and a shared parenting plan from 2007 in the Stark County Domestic Relations

Court. The complaint also alleged that P.T. was described as appearing emaciated and

emotionally withdrawn at her last doctor visit in March 2011. The Stark County

Department of Job and Family Services (“SCDJFS”) was not named as a party on said

complaint.

{¶4} On June 7, 2011, prior to any scheduled court hearings or appearances, a

magistrate reviewed the file via a “non-oral hearing” and determined that the complaint

should be dismissed. The magistrate noted that the parties had been involved in a

number of post-decree motions in the Domestic Relations Court, and that said court

had the appropriate jurisdiction for issues involving P.T. The magistrate added: “If the

parties have concerns regarding dependency/neglect/abuse, they may make Stark County, Case No. 2011 CA 00200 3

appropriate referrals to the Department of Jobs [sic] and Family Services.” See

Magistrate’s Decision, filed June 8, 2011.

{¶5} On June 22, 2011, appellant filed an objection to the decision of the

magistrate, pursuant to Civ.R. 53. A hearing on the objection was scheduled for July 6,

2011. However, on that date, the trial court, via a visiting judge, determined that

appellee had not been properly notified of the objection hearing. The objection was

reset for a new hearing on August 15, 2011.

{¶6} On August 10, 2011, five days before the rescheduled objection hearing,

appellant, via counsel, filed a motion to continue. The motion stated in pertinent part

that appellant’s counsel had never received a copy of the judgment entry resetting the

objection hearing for August 15, 2011, and that counsel had “a previous commitment to

a client meeting on that date, which he cannot change on short notice.”

{¶7} Nonetheless, on August 15, 2011, the trial court, via a second visiting

judge, issued a judgment entry stating that nobody had appeared on that date and that

the objection was accordingly dismissed.

{¶8} On September 14, 2011, appellant filed a notice of appeal. She herein

raises the following two Assignments of Error:

{¶9} “I. THE TRIAL COURT ERRED WHEN IT DISMISSED PLAINTIFF/

APPELLANT'S ATTESTED COMPLAINT IN DEPENDENCY AND NEGLECT.

{¶10} “II. THE STARK COUNTY JUVENILE COURT ABUSED ITS

DISCRETION AND ERRED AS A MATTER OF LAW WHEN IT DISMISSED THE

ATTESTED COMPLAINT IN DEPENDENCY AND NEGLECT BASED ON A FAILURE

TO APPEAR, WHEN THE COURT HAD PROVIDED PLAINTIFF/APPELLANT NO Stark County, Case No. 2011 CA 00200 4

NOTICE OF HEARING UNTIL COUNSEL INQUIRED A FEW DAYS BEFORE THE

SCHEDULED HEARING; WHEN THE COURT HAD LED PLAINTIFF/APPELLANT'S

COUNSEL TO BELIEVE THAT A CONTINUANCE WOULD BE GRANTED; AND

WHEN IT FAILED TO HEAR THE MOTION TO CONTINUE BEFORE DISMISSING

THE OBJECTIONS FOR FAILURE TO APPEAR.

I.

{¶11} In her First Assignment of Error, appellant contends the juvenile court

erred in dismissing her private-party action alleging dependency and neglect. We

agree.

{¶12} R.C. 2151.27(A)(1) states in pertinent part as follows: “Subject to division

(A)(2) of this section, any person having knowledge of a child who appears to have

violated section 2151.87 of the Revised Code or to be a juvenile traffic offender or to

be an unruly, abused, neglected, or dependent child may file a sworn complaint with

respect to that child in the juvenile court of the county in which the child has a

residence or legal settlement or in which the violation, unruliness, abuse, neglect, or

dependency allegedly occurred. ***.” (Emphasis added). See, also, Juv.R. 10(A).

{¶13} Thus, “a public or private party can initiate an action pursuant to R.C.

2151.27 to have a court determine whether a child is neglected.” In re Shepherd,

Highland App.No. 00CA12,

. Furthermore, because R.C.

2151.23(A)(1) grants the juvenile court exclusive jurisdiction over alleged delinquent,

unruly, abused, neglected, or dependent children, “[t]he jurisdiction of the juvenile court

is not proscribed in any degree by the fact that a domestic relations court elsewhere in Stark County, Case No. 2011 CA 00200 5

the state has continuing jurisdiction over the child pursuant to a divorce decree.” In the

Matter of Jackson, Huron App.No. H-78-6,

.

{¶14} We therefore hold the trial court’s decision to sua sponte dismiss

appellant’s complaint alleging neglect and dependency regarding P.T. was erroneous

as a matter of law. Appellant’s First Assignment of Error is sustained.1

II.

{¶15} In her Second Assignment of Error, appellant contends the trial court

abused its discretion in dismissing her objection to the decision of the magistrate for

want of appearance. We agree.

{¶16} The grant or denial of a continuance is a matter entrusted to the broad,

sound discretion of the trial court. Polaris Ventures IV, Ltd. v. Silverman, Delaware

App.No. 2005 CAE 11 0080, 2006–Ohio–4138, ¶ 14, citing State v. Unger (1981),

,

. In order to find an abuse of discretion, we must find

the trial court's decision was unreasonable, arbitrary or unconscionable and not merely

an error of law or judgment. Blakemore v. Blakemore (1983),

,

.

{¶17} In determining whether a trial court abused its discretion in denying a

motion for a continuance, an appellate court should consider the following factors: (1)

the length of the delay requested; (2) whether other continuances have been requested

and received; (3) the inconveniences to witnesses, opposing counsel and the court; (4)

1 This holding would not be applicable in the realm of permanent custody actions, as “permanent custody” is defined in R.C. 2151.011(B)(32) to mean a legal status that “vests in a public children services agency or a private child placing agency, all parental rights, duties, and obligations, including the right to consent to adoption, and divests the natural parents or adoptive parents of all parental rights, privileges, and obligations, including all residual rights and obligations.” (Emphasis added.) Stark County, Case No. 2011 CA 00200 6

whether there is a legitimate reason for the continuance; (5) whether the defendant

contributed to the circumstances giving rise to the need for the continuance; and other

relevant factors, depending on the unique facts of each case.

; State v. Holmes (1987),

,

.

{¶18} In the case sub judice, the record indicates that appellant and her counsel

duly appeared before the court for the first objection hearing on July 6, 2011, at which

time the matter was continued for purposes of perfecting notice of the proceeding upon

appellee. At the rescheduled hearing on August 15, 2011, the trial court dismissed the

objection without any reference to the existence of appellant’s pending motion to

continue the hearing, which was based on a reasonable assertion of a counsel’s

schedule conflict. We also must note that appellee herein has not filed a brief opposing

this appeal. App.R. 18(C) states in pertinent part: “If an appellee fails to file his brief

within the time provided by this rule, or within the time as extended, the appellee will

not be heard at oral argument * * * and in determining the appeal, the court may accept

the appellant's statement of the facts and issues as correct and reverse the judgment if

appellant's brief reasonably appears to sustain such action.”

{¶19} Accordingly, we find an abuse of discretion under these circumstances in

the denial of the motion to continue, and we therefore reverse and remand the issue of

appellant’s Civ.R. 53 objection to the trial court for a new hearing.2

{¶20} Appellant's Second Assignment of Error is sustained.

2 In so holding, we give no weight to appellant’s claim that the trial court led her counsel to believe a continuance would be granted, as we find this to be based on documentation dehors the record. Stark County, Case No. 2011 CA 00200 7

{¶21} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby reversed and

remanded.

By: Wise, J.

Farmer, P. J., and

Edwards, J., concur.

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JUDGES JWW/d 0229 Stark County, Case No. 2011 CA 00200 8

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGMENT ENTRY : : P.T. : Case No. 2011 CA 00200

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is

reversed and remanded for further proceedings consistent with this opinion.

Costs assessed to appellee.

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JUDGES