[Cite as Gowdy v. Cuyahoga Cty. Dept. of Children & Family Servs., 2011-Ohio-2156.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 95956



                                  JUANITA GOWDY
                                                          PLAINTIFF-APPELLANT

                                                    vs.

           CUYAHOGA COUNTY DEPARTMENT
          OF CHILDREN AND FAMILY SERVICES
                                                          DEFENDANT-APPELLEE




                                         JUDGMENT:
                                          AFFIRMED


                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CV-707419


        BEFORE: Celebrezze, J., Blackmon, P.J., and E. Gallagher, J.
     RELEASED AND JOURNALIZED:             May 5, 2011

FOR APPELLANT

Juanita Gowdy
1857 Rosalind Avenue
East Cleveland, Ohio 44112


ATTORNEYS FOR APPELLEES

William D. Mason
Cuyahoga County Prosecutor
BY: Steven W. Ritz
Assistant Prosecuting Attorney
3955 Euclid Avenue
Room 305E
Cleveland, Ohio 44115


ALSO LISTED:

James Gowdy
c/o 1857 Rosalind Avenue
East Cleveland, Ohio 44112




FRANK D. CELEBREZZE, JR., J.:

     {¶ 1} Appellant, Juanita Gowdy, appeals the November 13, 2010 trial

court judgment granting the motion for judgment on the pleadings filed by

appellee, Cuyahoga County Department of Children and Family Services

(“CCDCFS”). We affirm.

     {¶ 2} Appellant was a state licenced Type-B day care provider through

the Cuyahoga County Department of Employment and Family Services
(“EFS”). After appellant became a licensed day care provider, the licensing

rules changed, and EFS was mandated to conduct a review of child welfare

records pursuant to O.A.C. 5101:2-14-06(C)(1).                  The statutorily mandated

review showed that appellant had been previously accused of child neglect on

five separate occasions. Specifically, the CCDCFS database indicated that

the reports of prior neglect brought against appellant were “substantiated” on

two separate occasions and “indicated” on three separate occasions.1 As a

result of the findings, EFS revoked appellant’s Type-B day care license on

May 8, 2007. Appellant did not appeal to the common pleas court from the

2007 decision to revoke her day care license.

        {¶ 3} Subsequently, in 2009 appellant reapplied for day care license

certification; however, the application for certification was denied by EFS.

On April 7, 2009, a county appeal review hearing was held to assess the

merits of appellant’s renewed application.                     On April 20, 2009, the

administrative review officers upheld the denial of appellant’s reapplication

for a day care license pursuant to O.A.C. 5101:2-14-02(A)(4), which states

that “[t]he EFS shall deny an application if it determines that, within the last

five years, the applicant was certified as a limited or professional provider

and that his or her certificate was revoked in Ohio or in another state * * *.”



          The reports of neglect were “substantiated” on October 4, 1990 and again on January 30,
        1


1997.   Additionally, reports of neglect were “indicated” on November 27, 1995, July 18, 1996, and
In upholding the denial of appellant’s day care license, the hearing officials

determined that appellant was not eligible to reapply for a day care license

until five years after her revocation date, which would not occur until May 8,

2012.

        {¶ 4} On May 19, 2009, appellant appealed the April 20, 2009 EFS

decision to the common pleas court in Gowdy v. Cuy. Cty. Dept. of Emp. &

Family Serv. (2009), Cuyahoga C.P. No. CV-09-693196.           The appeal was

dismissed by the trial court for being “premature as a matter of law.” The

court explicitly stated that appellant was not eligible to reapply for day care

certification until May 8, 2012. Appellant did not appeal this decision.

        {¶ 5} On October 21, 2009, appellant commenced an action requesting

declaratory    judgment   and   other   equitable   relief   against   CCDCFS.

Specifically, appellant demanded a declaratory judgment that “no neglect has

ever been substantiated or indicated within the legal system, and that such

allegations are incorrect, and equitable relief by means of an order requiring

CCDCFS and all other parties containing this false information, to correct

their records accordingly, and to delete such mention from any reports, and

for such other relief deemed just and equitable.”

        {¶ 6} On June 15, 2010, CCDCFS filed a motion for judgment on the

pleadings; appellant did not oppose the filing. The court granted the motion


May 8, 1998.
on October 30, 2010 and stated: “Defendant Cuyahoga County Department

of Children and Family Services’ Motion for Judgment on the Pleadings, filed

06/15/2010, is unopposed and granted.          The court lacks subject matter

jurisdiction to consider plaintiff’s claim for declaratory relief.” This appeal

followed the dismissal of appellant’s complaint for declaratory judgment.

      {¶ 7} Appellant raises four issues in her brief for our review:

      {¶ 8} “1.    Did [EFS] err in its judgment in upholding the May 8, 2007

revocation of [appellant’s] certification as a Type-B child care provider?

      {¶ 9} “2.    Did [EFS] err in failing to properly investigate accusations of

child abuse and negligence [sic] in [appellant’s] home?

      {¶ 10} “3.    Did [EFS] willingly uphold erroneous evidence against

[appellant] because of their failure to properly investigate accusations

brought against [her] which led to the May 8, 2007 revocation of [her]

certification as a Type-B child care provider?

      {¶ 11} “4. Did the [CCDCFS] knowingly and with malicious intent,

misconstrue and present false evidence against [appellant], which led to the

May 8, 2007 revocation of [her] certification as a Type- B child care provider?”

      {¶ 12} Based on appellant’s listed issues, it appears that appellant, filing

this appeal pro se, is attempting to retroactively appeal the 2007 revocation of

her day care license by EFS. However, EFS is not a party to the underlying

complaint for declaratory judgment, and this court may not review issues
raised in appellant’s brief that go beyond the complaint filed against

CCDCFS.     The underlying complaint sought declaratory judgment against

CCDCFS based on its investigatory findings of “substantiated” and

“indicated” neglect against appellant, and the trial court dismissed the action

for lack of subject matter jurisdiction. Accordingly, we will only review the

ruling of the trial court and determine whether it erred in dismissing

appellant’s motion for declaratory judgment for lack of subject matter

jurisdiction.

                                Law and Analysis

                              Declaratory Judgment

      {¶ 13} Civ.R. 12(B)(1) permits dismissal where the trial court lacks

jurisdiction over the subject matter of the litigation. A “court has subject

matter jurisdiction over a case if the court has the statutory or constitutional

power to adjudicate that case.”     Garrett v. Columbus, Franklin App. No.

10AP-77, 2010-Ohio-3895, ¶13, citing Pratts v. Hurley, 102 Ohio St.3d 81,

2004-Ohio-1980, 806 N.E.2d 992, ¶11.          The standard of review for a

dismissal pursuant to Civ.R. 12(B)(1) is whether any cause of action

cognizable by the forum has been raised in the complaint. Milhoan v. E. Loc.

School Dist. Bd. of Edn., 157 Ohio App.3d 716, 2004-Ohio-3243, 813 N.E.2d

692, ¶10; State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77, 80, 537

N.E.2d 641. We review an appeal of a dismissal for lack of subject matter
jurisdiction under Civ.R. 12(B)(1) de novo. Boutros v. Noffsinger, Cuyahoga

App. No. 91446, 2009-Ohio-740, ¶12.

      {¶ 14} Appellant requested relief as follows:     “Plaintiff demands a

Declaratory Judgment that no ‘neglect’ has ever been ‘substantiated’ or

‘indicated’ within the legal system, that such allegations are incorrect, and

equitable relief by means of an order requiring Defendant to correct its

records accordingly, and to delete all such mentions from any reports, and for

such other relief as is just and equitable.”    A declaratory judgment is a

judgment in a civil case that declares the rights, status, or other legal

relations of a party in a dispute. R.C. 2721.02(A).

      {¶ 15} Appellant’s motion for declaratory judgment is merely an appeal

of CCDCFS’s findings of “substantiated” and “indicated” neglect. Concerned

Citizens of Spring Valley v. Spring Valley Twp. Bd. of Zoning Appeals, Greene

App. No. 01 CA 0059, 2002-Ohio-540 (“The action authorized by R.C. 2506.01

is in the nature of an action for declaratory judgment.”). Appellant’s right to

appeal the investigatory findings of CCDCFS in the county common pleas

court is governed by R.C. 2506.01, which states that “* * * every final order,

adjudication, or decision of any officer, tribunal, authority, board, bureau,

commission, department, or other division of any political subdivision of the

state may be reviewed by the common pleas court of the county in which the

principal office of the political subdivision is located as provided in Chapter
2505. of the Revised Code. * * *.” R.C. 2506.01. As used in this chapter,

“final order, adjudication, or decision” means an “order, adjudication, or

decision that determines rights, duties, privileges, benefits, or legal

relationships of a person.” Id.

      {¶ 16} In Ferren v. Cuyahoga Cty. Dept. of Children & Family Servs.,

Cuyahoga App. No. 92294, 2009-Ohio-2359, the county department of

children and family services sent a letter to appellant that stated that an

“indicated” report of sexual abuse of a child had been filed against him.

Thereafter, appellant filed a notice of administrative appeal with the common

pleas court pursuant to R.C. 2506.01. In particular, appellant challenged the

merits of CCDCFS’s dispositional finding of “indicated” abuse. In response,

CCDCFS filed a motion to dismiss for lack of subject matter jurisdiction.

The motion was unopposed and granted by the trial court. On appeal, this

court recognized that CCDCFS’s finding of “indicated” abuse, in and of itself,

did not determine appellant’s rights, privileges, benefits, or other legal

relationships.   Therefore, the court lacked subject matter jurisdiction to

address his appeal. Id.

      {¶ 17} The Ohio Supreme Court has held that “‘the party appealing

must have a “present” and “substantial” interest in the subject matter of the

litigation and must be “aggrieved or prejudiced” by the decision.’”     In re

Petition for Incorporation of the Village of Holiday City, 70 Ohio St.3d 365,
371, 1994-Ohio-405, 639 N.E.2d 42, quoting Ohio Contract Carriers Assn. v.

Pub. Util. Comm. (1942), 140 Ohio St. 160, 161, 42 N.E.2d 758. “Such an

interest must affect a substantial right and it must be ‘immediate and

pecuniary, and not a remote consequence of the judgment; a future,

contingent or speculative interest is not sufficient.’” Village of Holiday City,

supra, at 371, quoting Ohio Contract Carriers, supra, at 161.

      {¶ 18} Appellant failed to establish a present and identifiable intrusion

on her rights as a result of the registry information. As stated in Ferren, this

court has held that “a listing on a confidential registry is not an injury in

itself.” Ferren, citing Battles v. Anne Arundel Cty. Bd. of Edn. (D.Md.1995),

904 F.Supp. 471, 477. Despite appellant’s argument to the contrary, we find

that the 2007 revocation of her day care license does not constitute a present

intrusion on her rights. On May 19, 2009, the common pleas court held that

appellant is not eligible to reapply for child care licensure until May 8, 2012.

As such, appellant has no right to a child care license until that date.

      {¶ 19} We note that appellant had the opportunity in 2007 to appeal

EFS’s initial revocation of her Type-B day care license in the common pleas

court pursuant to R.C. 2506.01.      However, appellant waived her right to

appeal in that action, and she cannot use the motion for declaratory judgment

as an attempt to retroactively appeal the 2007 revocation of her license. Had

appellant appealed the revocation of her license by EFS at that time, the
common pleas court would have had jurisdiction to review the issue, and she

could have challenged the revocation on the basis that the findings of neglect

were unsupported by reliable, probative, and substantial evidence.

      {¶ 20} Accordingly, the trial court did not have subject matter

jurisdiction to review the investigatory findings of CCDCFS and properly

granted CCDCFS’s motion on the pleadings.

      Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
