[Cite as In re A.L.A., 2016-Ohio-5887.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


IN THE MATTER OF:                               :       OPINION

A.L.A., DEPENDENT CHILD                         :
                                                        CASE NO. 2016-T-0022
                                                :



Civil Appeal from the Trumbull County Court of Common Pleas, Juvenile Division,
Case No. 2007 JS 00478.

Judgment: Affirmed.


David M. Lynch, 333 Babbitt Road, Suite 333, Euclid, OH 44123 (For Appellant, Daniel
Mate, III).

Susan Porter Collins, Trumbull County Children Services Board, 2282 Reeves Road,
N.E., Warren, OH 44483 (For Appellee, Trumbull County Children Services Board).



DIANE V. GRENDELL, J.

        {¶1}     Appellant, Daniel Mate, appeals the denial of his Motion to Vacate by the

Trumbull County Court of Common Pleas, Division of Domestic Relations, Juvenile

Department. The issue before this court is whether a motion to vacate based on lack of

notice may be denied without hearing when it is filed over three years after the judgment

sought to be vacated and after the child has been adopted. For the following reasons,

we affirm the decision of the court below.
       {¶2}   On January 31, 2011, the Trumbull County Children Services Board filed a

Complaint alleging A.L.A., d.o.b. 01/19/2011, to be a dependent child.       A.L.A. was

adjudicated dependent on February 16, 2011.

       {¶3}   On September 24, 2012, Trumbull Children Services filed a Motion

[Permanent Custody].

       {¶4}   On October 22 and 29, 2012, the matter was heard by a magistrate of the

juvenile court.

       {¶5}   On November 2, 2012, a Magistrate’s Decision was issued granting

Trumbull Children Services’ Motion and declaring Mate’s parental rights “permanently

and forever severed and terminated.”

       {¶6}   On December 5, 2012, the juvenile court approved the Magistrate’s

Decision.

       {¶7}   On January 5, 2016, the juvenile court issued a Judgment Entry,

discharging A.L.A.’s guardian ad litem and canceling its annual case review upon the

finding that “a Final Order of Adoption has been granted for this child through the

Probate Court of Mahoning County, Ohio.”

       {¶8}   On January 28, 2016, Mate filed a Motion to Vacate Order, seeking to

vacate the order terminating his parental rights on the grounds that he “was not served

or given an opportunity to be heard when his parental rights were terminated.”         In

support of the Motion, Mate’s Affidavit was attached. Mate stated, in relevant part, that

he “was not served with the papers in this case and * * * was not notified of [his]

opportunity to be heard.”




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      {¶9}   On February 9, 2016, the juvenile court denied the Motion to Vacate,

finding “that notice and summons of the permanent custody trial of October 2012 was

given to Mr. Mate.” The Judgment Order stated, in relevant part, that Mate and his

appointed counsel were present at a May 30, 2012 dispositional hearing:

             On the same date * * *, the Decision that was issued informed the
             parents that the permanent custody trial was set for October 22 &
             29, 2012, for two full days of trial. Both parents signed for a copy
             of the Decision, and the trial dates are on the same page that
             they signed. * * *

             The Decision was typed into a final order for review by the Judge,
             and a copy of that May 2012 Order was mailed to both parents at
             their current addresses, and did not come back by the Post Office.

             As required by the Ohio Revised Code, summons and service was
             completed by the agency motion to terminate parental rights. Both
             parents were served with the Motion for Permanent Custody as
             follows:
             On Daniel Mate II, personally served on September 25, 2012 * * *.

             From the [December 5, 2012] Decision and Order approving the
             Decision of October 2012:
             At the permanent custody trial, the court appointed counsel for Mr.
             Mate appeared. Mr. Mate did not attend. The testimony presented
             was that Mr. Mate visited his son regularly up until May 2012, had a
             domestic dispute with his new wife, they separated and he began to
             reuse illegal drugs. While staying in Youngstown, he was reporting
             to the caseworker that he had left the state for Florida. At the last
             contact in September 2012 with the caseworker, he informed the
             caseworker that he was no longer interested in custody.
             Termination of parental rights was granted.

      {¶10} On March 11, 2016, Mate filed a Notice of Appeal. On appeal, Mate

raises the following assignment of error:

      {¶11} “[1.] It is reversible error to omit an Evidentiary Hearing on a Motion to

Vacate Permanent Revocation of Parental Rights when service of the Revocation

Hearing Notice has been challenged by a biological parent.”




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       {¶12} Civil Rule 60(B) provides as follows:

              On motion and upon such terms as are just, the court may relieve a
              party or his legal representative from a final judgment, order or
              proceeding for the following reasons: (1) mistake, inadvertence,
              surprise or excusable neglect; (2) newly discovered evidence which
              by due diligence could not have been discovered in time to move
              for a new trial under Rule 59(B); (3) fraud (whether heretofore
              denominated intrinsic or extrinsic), misrepresentation or other
              misconduct of an adverse party; (4) the judgment has been
              satisfied, released or discharged, or a prior judgment upon which it
              is based has been reversed or otherwise vacated, or it is no longer
              equitable that the judgment should have prospective application; or
              (5) any other reason justifying relief from the judgment. The motion
              shall be made within a reasonable time, and for reasons (1), (2)
              and (3) not more than one year after the judgment, order or
              proceeding was entered or taken.

       {¶13} “To prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party 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, and, where

the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the

judgment, order or proceeding was entered or taken.” GTE Automatic Elec., Inc. v.

ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the

syllabus.

       {¶14} The requirements for relief from judgment are “conjunctive,” and “the test

is not fulfilled if any one of the requirements is not met.” Strack v. Pelton, 70 Ohio St.3d

172, 174, 637 N.E.2d 914 (1994).

       {¶15} “If the movant files a motion for relief from judgment and it contains

allegations of operative facts which would warrant relief under Civil Rule 60(B), the trial

court should grant a hearing to take evidence and verify these facts before it rules on




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the motion.” Coulson v. Coulson, 5 Ohio St.3d 12, 16, 448 N.E.2d 809 (1983), citing

Adomeit v. Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974).

“Conversely, an evidentiary hearing is not required where the motion and attached

evidentiary material do not contain allegations of operative facts which would warrant

relief under Civ.R. 60(B).” State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 666

N.E.2d 1134 (1996).

       {¶16} “A motion for relief from judgment under Civ.R. 60(B) is addressed to the

sound discretion of the trial court, and that court’s ruling will not be disturbed on appeal

absent a showing of abuse of discretion.” Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514

N.E.2d 1122 (1987).

       {¶17} Mate’s argument on appeal is that the juvenile court erred by denying his

Motion to Vacate without holding an evidentiary hearing: “It was incumbent upon the

Trial Court to at least give the Appellant the opportunity to call the process server as [a]

witness so that the court could determine whether or not the service had actually been

obtained legally, authentically, or if at all.” Appellant’s brief at 5. We disagree.

       {¶18} Mate’s Motion to Vacate was facially deficient with respect to the third

requirement for relief, i.e., “the motion is made within a reasonable time, and, where the

grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the

judgment, order or proceeding was entered or taken.”1 Mate’s Motion was filed over

three years after the judgment was entered and provided no explanation as to the delay

or justification as to why the delay might be deemed reasonable. Thus, the juvenile

court was well within its discretion to deny it. 1st Fid. Loan Servicing, LLC v. Bellina,


1. Although it is immaterial to the merits of the appeal, we note that Mate’s Motion to Vacate did not
specify on which of the grounds for relief under Civil Rule 60(B) it was made.


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11th Dist. Lake No. 2014-L-092, 2015-Ohio-2199, ¶ 18-19 (the issue of timeliness was

“dispositive” of the appeal where the appellants gave “[n]o credible reason * * * for this

delay [of almost nine months] in filing for relief from judgment”); Shell v. Cryer, 11th Dist.

Lake No. 2001-L-083, 2002 Ohio App. LEXIS 860, 7 (Mar. 1, 2002) (motion for relief

was properly denied without hearing where “appellant did not offer any operative facts

or evidential material * * * to demonstrate that her motion was timely”).

       {¶19} More importantly, as the lower court noted in its Entry on the Motion to

Vacate, the adoption of the child in December 2015, terminated its jurisdiction.

Pursuant to R.C. 2151.353(F)(1), the juvenile court retains jurisdiction over a child

placed in the permanent custody of a children’s services agency, “until * * * the child is

adopted and a final decree of adoption is issued.” In a case similar to the present one,

In re Phillips, 12th Dist. Butler No. CA2003-03-062, 2003-Ohio-5107, a parent whose

parental rights had been terminated later filed a Civ.R. 60(B) motion.          The Twelfth

District held that the lower court lacked jurisdiction and was required to dismiss the

motion, since “a final decree of adoption ha[d] been filed, and jurisdiction over the child,

the adoption proceeding and related matters consequently rests with the probate

division.” Id. at ¶ 10; also In re M.V.V., 10th Dist. Franklin No. 11AP-229, 2011-Ohio-

4481, ¶ 7. Given that A.L.A. was adopted before Mate filed his Motion to Vacate, the

court lacked jurisdiction to rule on the Motion and did not err in failing to hold an

evidentiary hearing.

       {¶20} Mate cites In re Hayes, 79 Ohio St.3d 46, 679 N.E.2d 680 (1997), in

support of his position, emphasizing the importance of complying with procedural

requirements and noting that termination of parental rights is “the family law equivalent




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of the death penalty.” Id. at 48. Hayes does not, however, stand for the proposition that

a parent can return to court years after a termination of his rights to raise a procedural

matter, especially when the child has already been adopted.           As this court has

recognized on many occasions, it is important to have finality in custody determinations

to protect the best interest of the child. See In re J.S., 11th Dist. Lake No. 2011-L-162,

2012-Ohio-4461, ¶ 27. This is especially pertinent in cases involving termination of

parental rights in which children most need permanency.

      {¶21} The sole assignment of error is without merit.

      {¶22} For the foregoing reasons, the Judgment Order, denying Mate’s Motion to

Vacate, is affirmed. Costs to be taxed against the appellant.



CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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