[Cite as In re J.M., 2011-Ohio-4276.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                   JUDGES:
IN THE MATTER OF:                                  Hon. W. Scott Gwin, P. J.
                                                   Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
        J.M.
                                                   Case No. 11 CA 21

        DEPENDENT CHILD                            OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No. 2009-
                                               0237


JUDGMENT:                                      Reversed and Remanded



DATE OF JUDGMENT ENTRY:                        August 25, 2011



APPEARANCES:

For Appellee LCJFS                              For Appellant Erica Smith

KENNETH W. OSWALT                               PAUL D. HARMON
PROSECUTING ATTORNEY                            964-A North 21st Street
RACHEL OKTAVEC HUSTON                           Newark, Ohio 43055
ASSISTANT PROSECUTOR
20 South Second Street                         For Amicus Curiae
Fourth Floor
Newark, Ohio 43055                             W. SCOTT HAYES
                                               195 East Broad Street, P. O. Box 958
                                               Pataskala, Ohio 43062
Licking County, Case No. 11 CA 21                                                         2

Wise, J.

       {¶1}   Appellant Erica Smith appeals the decision of the Court of Common Pleas,

Licking County, denying her motion to vacate a prior grant of permanent custody of her

son. The relevant facts leading to this appeal are as follows.

       {¶2}   Appellant Smith is the biological mother of J.M., born in 2009. Eric Mohler

is the child’s biological father. On April 13, 2009, Appellee Licking County Department of

Job and Family Services (“LCDJFS”) filed a complaint for temporary custody of J.M.,

alleging the child to be abused and/or dependent. A hearing before a magistrate was

held on June 15, 2009. The magistrate issued a decision on June 16, 2009, finding J.M.

to be a dependent child and granting temporary custody to LCDJFS. The trial court

thereafter approved and adopted the decision.

       {¶3}   On December 15, 2009, LCDJFS filed a motion for permanent custody.

Hearings before a magistrate were held on April 13 and 14, 2010. By decision filed May

7, 2010, the magistrate recommended terminating the parents' parental rights and

granting permanent custody of the child to the agency. Mohler, the biological father,

filed objections under Civ.R. 53. By judgment entry filed August 5, 2010, the trial court

denied the objections and approved and adopted the magistrate's decision of

permanent custody. In said judgment entry, the trial court found, inter alia, that appellant

is dealing with drug abuse and mental health issues.

       {¶4}   Mohler thereupon filed a direct appeal to this Court, although appellant did

not. We affirmed the grant of permanent custody on December 7, 2010. See In re J.M.,

Licking App.No. 10-CA-97, 2010-Ohio-6075.
Licking County, Case No. 11 CA 21                                                     3


      {¶5}   On February 10, 2011, appellant filed a motion to vacate the permanent

custody judgment entry of August 5, 2010. In said motion appellant alleged that she had

not been properly served with or notified of the magistrate’s decision of May 7, 2010 or

of the right to appeal same.

      {¶6}   On February 11, 2011, the trial court issued a judgment entry denying the

motion to vacate.

      {¶7}   On February 23, 2011, appellant filed a notice of appeal. She herein

raises the following two Assignments of Error:

      {¶8}   “I.    JUDGE ROBERT HOOVER WAS DISQUALIFIED BY THE CHIEF

JUSTICE OF THE OHIO SUPREME COURT FROM HEARING CASES IN WHICH

ATTORNEY PAUL D. HARMON REPRESENTS A PARTY AND THEREFORE HE IS

DISQUALIFIED FROM RULING ON THE MOTION OF ERICA SMITH.

      {¶9}   “II.   SERVICE OF THE MAGISTRATE’S DECISION PERMANENTLY

TERMINATING THE BIOLOGICAL MOTHER’S PARENTAL RIGHTS WAS NOT MADE

IN COMPLIANCE WITH THE CIVIL RULES, AND, THEREFORE, A DETERMINATION

ON THE MERITS OF HER MOTION MUST BE MADE BY VISITING JUDGE.”

                                           I.

      {¶10} In her First Assignment of Error, appellant contends reversible error

occurred where the trial court (Judge Robert H. Hoover) ruled on appellant’s motion

despite a prior Ohio Supreme Court disqualification of the judge from any cases in

which appellant’s counsel represents a party. We agree.

      {¶11} Generally, if a common pleas litigant wishes to raise a challenge to a trial

judge's involvement in a given case, he or she must utilize the procedure set forth in
Licking County, Case No. 11 CA 21                                                        4


R.C. 2701.03, which gives the Chief Justice of the Supreme Court of Ohio exclusive

jurisdiction to determine such a claim. See In re Baby Boy Eddy (Dec. 6, 1999), Fairfield

App. No. 99 CA 22, 2000 WL 1410. At the same time, however, an appellate court

cannot ignore a binding ruling or precedent from the Ohio Supreme Court. See Plumb v.

River City Erectors, Inc. (2000), 136 Ohio App.3d 684, 688. Under the unusual

circumstances of the case sub judice, it is incumbent that we address appellant’s claim,

as the late Chief Justice Thomas J. Moyer decided the Judge Hoover/Attorney Harmon

disqualification issue in a 2006 decision. See In re Disqualification of Hoover, 113 Ohio

St.3d 1233, 863 N.E.2d 634, 2006-Ohio-7234. In that decision, the late Chief Justice

Moyer held: “For the reasons stated above, the affidavit of disqualification is granted for

the case listed in the caption above and for all other cases in which attorney Harmon

represents a party or is himself a party. ***.” Id. at ¶15 (emphasis added).

          {¶12} Appellee LCDJFS responds that because permanent custody of J.M. has

already been granted, Appellant Smith has ceased to be a “party” to the juvenile court

action pursuant to the specific language of R.C. 2151.414(F); therefore, appellee

maintains, Attorney Harmon’s representation on her behalf does not invoke In re

Disqualification of Hoover. However, by filing a motion to vacate for alleged want of

service or notice of the magistrate’s decision recommending permanent custody to the

agency, appellant is collaterally challenging the validity of such permanent custody, and

if she is successful in vacating the decision, it appears her status as a party would be

reestablished. As such, we find LCDJFS’s responsive reading of “party” in In re

Disqualification of Hoover to be overly technical and incongruent with the spirit of that

ruling.
Licking County, Case No. 11 CA 21                                                     5


      {¶13} Appellant’s argument is well-taken, and the matter will be remanded for a

de novo review of the February 11, 2011 motion to vacate by a different judge.

      {¶14} Appellant’s First Assignment of Error is sustained.

                                          II.

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

in denying her motion to vacate based on the service requirements of the Ohio Rules of

Civil Procedure.

      {¶16} Based on our holding in regard to the First Assignment of Error, we find

appellant’s present argument to be moot or premature.

      {¶17} We therefore decline to address appellant’s Second Assignment of Error.

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

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

remanded.


By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.



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                                                                  JUDGES
JWW/d 0808
Licking County, Case No. 11 CA 21                                               6


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




IN THE MATTER OF:                          :
                                           :
      J.M.                                 :         JUDGMENT ENTRY
                                           :
      DEPENDENT CHILD                      :         Case No. 11 CA 21




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

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

reversed and remanded for further proceedings consistent with this opinion.

      Costs assessed to Appellee LCDJFS.




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                                                               JUDGES
