In re S.H. , 2018 Ohio 5007 ( 2018 )

[Cite as In re S.H., 2018-Ohio-5007.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTERS OF S.H. AND T.H. : JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 18-CA-34
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Probate
Division, Case Nos. C2011-0018 and
C2011-0019
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 12, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
WILLIAM PAUL BRINGMAN CAROLYN CARNES
Bringman Legal Co., L.P.A. Assistant Prosecuting Attorney
7100 N. High St., Suite 101 Licking County
Worthington, Ohio 43085-2316 20 South Second Street, 4th Fl.
Newark, Ohio 43055
Licking County, Case No. 18-CA-34 2
Baldwin, J.
{¶1} William Bringman appeals the April 13, 2018 judgment entry of the trial court
denying his second motion for relief from judgment. The State of Ohio is appellee.
STATEMENT OF FACTS AND THE CASE
{¶2} Appellant was appointed to serve as guardian ad litem for the dependent
children named in the caption of this case. On February 10, 2017 the trial court, sua
sponte, removed the appellant as guardian ad litem “because he has not fulfilled the
continuing educational requirements required under the rules of superintendence.”
(Judgment Entry, February 10, 2017, Docket 116). Appellant did not file an appeal from
this order.
{¶3} Appellant filed a motion for relief from judgment on February 21, 2017,
attached to it a copy of a certificate of participation in a seminar purportedly sponsored
by the Supreme Court of Ohio. Appellant explained that he had completed the continuing
education requirements but inadvertently did not attach a copy of the certificate to his
annual report. He cites Section 2.1 of the Code of Judicial Conduct suggesting it obligates
the trial court to compel him to appear at a hearing prior to removing him as guardian ad
litem. The trial court denied the motion on February 22, 2017. Appellant did not appeal
from this order.
{¶4} Appellant presented a second motion for relief from judgment in April 2017.
The trial court refused to accept the filing and appellant filed a petition for a writ of
mandamus and procedendo in this court to compel the trial court to accept the motion
and conduct a hearing. (State of Ohio ex rel William Paul Bringman vs. Robert Hoover,
Judge, 5th Dist. Licking No. 2017CA0052). On February 5, 2018, the trial court issued an
Licking County, Case No. 18-CA-34 3
order granting appellant the opportunity to be heard on the motion for relief. We dismissed
appellant’s petition as being moot.
{¶5} The trial court’s entry of February 5, 2018 offered appellant the opportunity
to participate in an oral hearing on all the issues raised contingent upon his submitting a
request for hearing. Appellant filed his request for hearing on February 12, 2018 and a
hearing was conducted on April 12, 2018. In the intervening weeks appellant filed a
motion requesting that the trial court judge recuse himself from hearing. The motion was
denied based upon the fact that the Supreme Court of Ohio rendered a decision
dismissing appellants’ affidavit of disqualification filed against the judge. Appellant also
filed complaints with the Disciplinary Council of the Supreme Court of Ohio regarding the
judge’s actions. Both complaints were rejected.
{¶6} At the April 12, 2018 hearing, Appellant repeated his assertion that he made
a mistake in 2017 by failing to document his compliance with Rule 48 of the Rules of
Superintendence regarding continuing education requirements. The trial court denied
appellants’ second motion for relief from judgment finding that the relief requested was
not supported by the facts or the law.
{¶7} Appellant filed a notice of appeal from the April 13, 2018 entry and listed
seven assignments of error:
{¶8} “I. THE TRIAL COURT ERRED IN REMOVING APPELLANT AS
GUARDIAN AD LITEM FOR THE CHILDREN FOR FAILURE TO MEET THE
EDUCATIONAL REQUIREMENTS TO MAINTAIN SAID STATUS.”
Licking County, Case No. 18-CA-34 4
{¶9} “II. THE TRIAL COURT ERRED IN DENYING THE MOTIONS OF
APPELLANT FOR RELIEF FROM JUDGMENT THAT APPELLANT BE REMOVED AS
GUARDIAN AD LITEM.”
{¶10} “III. THE TRIAL COURT ERRED IN ENGAGING COUNSEL TO
REPRESENT HIM IN THE EFFORT OF APPELLANT TO HAVE APPELLANT
REINSTATED AS GUARDIAN AD LITEM FOR THE MINOR CHILDREN HEREIN.”
{¶11} “IV. THE TRIAL COURT ERRED IN APPOINTING A SUCCESSOR
GUARDIAN AD LITEM AFTER APPELLANT FILED HIS MOTIONS FOR RELIEF FROM
JUDGMENT.”
{¶12} V. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
CERTIFY AND TRANSMIT APPELLANT'S MOTIONS FOR RELIEF FROM JUDGMENT
TO THIS COURT FOR PURPOSES OF THIS APPEAL.”
{¶13} “VI. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE COURT
EXHIBITS THAT WERE NEITHER OFFERED INTO EVIDENCE OR TESTIFIED ABOUT
IN THE COURSE OF THE HEARING ON THE MOTIONS FOR RELIEF FROM
JUDGMENT CONDUCTED BY THE TRIAL COURT.”
{¶14} “VII. THE TRIAL COURT ERRED IN ORDERING TRANSMITTED TO THE
COURT OF APPEALS ALL DOCKET ENTRIES OF THE TRIAL COURT FILED
THEREIN AFTER THE NOTICE OF APPEAL WAS FILED HEREIN OTHER THAN THE
OMITTED MOTION FOR RELIEF FROM JUDGMENT FILED BY APPELLANT AND THE
TRIAL COURT'S ENTRY WITH RESPECT THERETO.”
{¶15} Preliminarily, we note that one of the dependent children, S. H., is no longer
in the custody of the state effective May 25, 2018. Consequently, with regard to that child,
Licking County, Case No. 18-CA-34 5
appellant’s appeal is moot and hereby dismissed. We also note that the other child
became 18 years of age on November 6, 2018 and likely will be emancipated at the next
annual review.
ANALYSIS
{¶16} Appellant claims he is appealing from the April 13, 2018 order of the trial
court, but his brief reveals he is appealing the trial court’s order of February 10, 2017
removing him as guardian ad litem. His first assignment of error makes his intent clear
when he cites the removal as error and the conclusion of his brief confirms his goal by
asking that the order of removal be vacated. The February 10, 2018 order removing
appellant as guardian ad litem was a final appealable order. “A person who is removed
as a guardian has a recourse in the appellate courts.” In re Guardianship of Thomas, 10th
Dist. Franklin No. 16AP-292, 2016-Ohio-7793, ¶ 12. A right to appeal has been
recognized when the guardian’s reputation for discretion, capacity, sound judgment, or
even honesty, may be involved. Ensign v. Faxon (1916), 224 Mass. 145, 112 N.E. 948
cited with approval in In re Guardianship of Love, 19 Ohio St. 2d 111, 114, 249 N.E.2d
794, 796 (1969).
{¶17} Appellant was obligated to appeal the decision of the trial court within thirty
days, but instead filed a motion for relief from judgment (App.R. 4) and the time for appeal
has expired. “A Civ.R. 60(B) motion for relief from judgment cannot be used as a
substitute for a timely appeal or as a means to extend the time for perfecting an appeal
from the original judgment.” Key v. Mitchell, 81 Ohio St. 3d 89, 1998-Ohio-643, 689 N.E.2d
548 (1998). We find that this appeal was untimely filed with regard to the central issue,
the removal of appellant as guardian. Even if we were to use February 22, 2017, the date
Licking County, Case No. 18-CA-34 6
of the first entry denying the motion to vacate, as the date of the final appealable order,
the notice of appeal would be delinquent. Appellant’s second motion to vacate the
judgement entries of February 10, 2017 and February 22, 2017 removing him as guardian
and denying his first motion for relief from judgment likewise does not serve to extend the
time for appeal.
{¶18} Appellant’s first assignment of error is denied and, because the remaining
assignments of error are inextricably involved with the first assignment of error, we find
that the remaining assignments are moot.
{¶19} The decision of the Licking County Court of Common Pleas, Probate
Division is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Hoffman, J. concur.