[Cite as In re Herrin, 2015-Ohio-5374.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: HERRIN                                         C.A. No.       27714



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   2001 GA 178


                                 DECISION AND JOURNAL ENTRY

Dated: December 23, 2015



        HENSAL, Presiding Judge.

        {¶1}     Rebecca Shepard appeals a judgment of the Summit County Probate Court,

finding that she is not the child or next of kin of James Herrin and, therefore, has no further

standing in Mr. Herrin’s guardianship proceedings.        For the following reasons, this Court

reverses.

                                                 I.

        {¶2}     In 2001, the probate court appointed a guardian for Mr. Herrin. Ms. Shepard

grew up believing that she is Mr. Herrin’s daughter. She, therefore, kept apprised of his care,

and, over the years, had a number of disputes with his guardians. In September 2014, Mr.

Herrin’s guardian moved for an order for genetic testing, noting that a genetic test is required for

an adult child and father to seek a declaration of parenthood under Revised Code Sections

2105.25 and 2105.26. The probate court granted the motion.
                                                 2


       {¶3}    Mr. Herrin and Ms. Shepard submitted to genetic testing. The results indicated

that there is a 0.0% probability that Ms. Shepard is Mr. Herrin’s biological child. A magistrate

subsequently found that Mr. Herrin is not Ms. Shepard’s father, that she is not his next of kin,

and that she had no further standing in the guardianship proceedings.

       {¶4}    Ms. Shepard objected to the magistrate’s decision, arguing that there were

irregularities in how Mr. Herrin’s DNA sample was collected. She later supplemented her

objections, arguing that the magistrate did not have authority under Section 2105.25 to declare

that she is not Mr. Herrin’s child and that it is not in her best interest for the court to admit the

genetic test results. The probate court, however, overruled her objections. It found that the test

results were valid and concluded that, under Chapter 3111, it was “statutorily required to enter

judgment that [Mr.] Herrin is not the biological father of [Ms.] Shepard.” Ms. Shepard has

appealed, assigning two errors.1

                                   ASSIGNMENT OF ERROR I

       THE PROBATE COURT ERRED BY WRONGFULLY ACCEPTING R.C.
       2105.25 FROM APPELLEE’S MOTION TO MAKE ITS DECISION. R.C.
       2105.25 HAS NO APPLICATION TO THE MATTER AT HAND.

       {¶5}    Ms. Shepard argues that the probate court improperly used Section 2105.25 to

determine a parentage issue. She contends that the section allows a father and child who have a

genetic test demonstrating their relationship to seek an order “declaring the man to be the adult

child’s father.” R.C. 2105.25(B). It does not provide a mechanism under which a father can

disprove his paternity. The probate court, however, did not cite Section 2105.25 as the basis for

its decision. Instead, it concluded that it was required to issue its parentage decision under


       1
        Mr. Herrin passed away on May 7, 2015. Although the guardianship has ended, we
conclude that this appeal is not moot because of the preclusive effect the probate court’s decision
may have with respect to Mr. Herrin’s estate.
                                                3


Section “3111.0[9](D).” We, therefore, conclude that the probate court did not improperly use

Section 2105.25 to determine a parentage question. Ms. Shepard’s first assignment of error is

overruled.

                                 ASSIGNMENT OF ERROR II

       THE PROBATE COURT ERRED BY WRONGFULLY USING SECTION R.C.
       3111 TO REACH A DECISION IN THIS CASE AND APPELLANT HAD NO
       NOTICE THAT SAID STATUTE WOULD BE USED.

       {¶6}     Ms. Shepard also argues that the probate court incorrectly relied on several

statutes in Chapter 3111 when it determined that Mr. Herrin is not her biological father and that

she had no further standing in the guardianship proceedings. She argues that she had no notice

that Chapter 3111 was at issue. She also notes that, to the extent that the court relied on Section

3111.04, Section 3111.05 provides that “[a]n action to determine the existence or nonexistence

of the father and child relationship may not be brought later than five years after the child

reaches the age of eighteen.”

       {¶7}     We agree with Ms. Shepard. Section 3111.04(A)(1) provides that “an action to

determine the * * * nonexistence of [a] father and child relationship may be brought by the child

or * * * the alleged father’s personal representative.” Accordingly, either Ms. Shepard or Mr.

Herrin’s guardian had standing to file an action under the section. Section 3111.05, however,

provides that such actions cannot be “brought later than five years after the child reaches the age

of eighteen.”    Although the record does not contain Ms. Shepard’s birthdate, the original

application for appointment of guardian, which was filed in 2001, indicated that she was not a

minor at that time. Consequently, an action filed pursuant to Section 3111.04 in 2014 would,

necessarily, have been time barred.
                                                 4


       {¶8}    The probate court noted that Section 3111.03(B) provides that a presumption of

paternity can be rebutted by the results of genetic testing. Such evidence, however, must be

presented in a proper action under Section 3111.04. See In re Gilbraith, 32 Ohio St.3d 127, 130

(1987) (explaining that Section 3111.03 “catalogues a series of presumptions that apply to the

existence of the relationship drawn into question” by an action under Section 3111.04.); Hulett v.

Hulett, 45 Ohio St.3d 288 (1989), paragraph two of the syllabus (holding that Sections 3111.03

and 3111.04 “are in pari materia and must be construed together.”); Garrison v. Smith, 55 Ohio

App.3d 14, 15-16 (6th Dist.1988) (concluding that woman could not establish herself as an heir

under presumptions in Section 3111.03 because she did not bring a parentage action in the time

allowed under Section 3111.05). In this case, because any action under Section 3111.04 was

time-barred, we conclude that the probate court incorrectly held that Ms. Shepard is not Mr.

Herrin’s daughter under Chapter 3111.

       {¶9}    Mr. Herrin’s guardian argues that Ms. Shepard waived her argument regarding

Chapter 3111 because she did not raise the issue in her objections to the magistrate’s decision.

Civil Rule 53(D)(3)(b)(iv) provides that “[e]xcept for a claim of plain error, a party shall not

assign as error on appeal the court’s adoption of any factual finding or legal conclusion [of the

magistrate], * * * unless the party has objected to that finding or conclusion * * *.” In this case,

the magistrate made its decision under Section 2105.25. Because the probate court rendered its

decision under a different statute, which was not addressed by the parties or referenced by the

magistrate, Rule 53(D)(3)(b)(iv) is inapplicable. Ms. Shepard’s assignment of error is sustained.
                                                 5


                                                III.

       {¶10} The probate court incorrectly declared that Ms. Shepard is not Mr. Herrin’s

biological daughter under Chapter 3111. The judgment of the Summit County Probate Court is

reversed.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



CARR, J.
WHITMORE, J.
CONCUR.
                                         6


APPEARANCES:

ROBERT W. HIGHAM, Attorney at Law, for Appellant.

JAMES L. WAGNER, Attorney at Law, for Appellee.

E. LARRY DAVISON, Attorney at Law, for Appellee.
