[Cite as In re A.P., 2015-Ohio-206.]


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

IN RE: A.P.                                           C.A. No.      13CA0083-M



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
                                                      CASE No.   2010 06 DE 0023

                                  DECISION AND JOURNAL ENTRY

Dated: January 26, 2015



        BELFANCE, Presiding Judge.

        {¶1}     Appellant, the guardian ad litem for the minor child, appeals from a judgment of

the Medina County Court of Common Pleas, Juvenile Division, that denied his motion to vacate

the trial court’s legal custody judgment insofar as it terminated the residual parental rights and

responsibilities of the child’s natural father, Jeffrey M. (“Father”). For the reasons that follow,

this Court reverses and remands.

                                                 I.

        {¶2}     A.P., born December 28, 2008, was removed from the custody of her mother in a

prior dependency case and was placed in the legal custody of her maternal grandmother. In June

2010, the trial court removed A.P. from the grandmother’s custody after Medina County Job and

Family Services (“MCJFS”) filed this dependency case. The grandmother later moved for A.P.

to be returned to her legal custody, but the trial court denied the motion and removed the
                                                 2


grandmother from the case plan. Eventually, MCJFS moved for, and was granted, permanent

custody of A.P.

       {¶3}    Prior to the 2012 permanent custody hearing, Father appeared before the court

and purported to voluntarily surrender his parental rights to MCJFS. According to the trial

court’s March 2012 judgment, it accepted Father’s voluntarily surrender pursuant to R.C.

5103.15(B)(1), which authorizes written agreements to surrender parental rights to children

services agencies, if approved by the juvenile court.

       {¶4}    The grandmother appealed and this Court reversed the permanent custody

judgment because the trial court had erred in removing the grandmother from the case plan and

denying her the opportunity to be reunified with A.P. See In re A.P., 9th Dist. Medina No.

12CA0022-M, 2012-Ohio-3873, ¶ 1. On remand, by agreement of the parties, A.P. was placed

in the grandmother’s legal custody, with the mother retaining residual parental rights. The

parties and the trial court eventually agreed that Father’s March 8, 2012 surrender of his parental

rights remained effective.     Although Father did not participate in the proceedings, he was

appointed counsel to represent him on this issue and did not raise any argument on the record for

or against the ongoing termination of his parental rights and responsibilities. On January 15,

2013, the trial court journalized the ongoing termination of Father’s parental rights and dismissed

him as a party to this case.

       {¶5}    A few weeks later, the attorney then serving as A.P.’s guardian ad litem withdrew

and the trial court appointed a different attorney to serve as the guardian ad litem. After the new

guardian ad litem reviewed the record in this case, he filed a series of motions to challenge the

trial court’s order of March 8, 2012, which accepted Father’s surrender of his parental rights

under R.C. 5103.15(B)(1), and its order of January 15, 2013, which journalized the ongoing
                                                3


termination of Father’s parental rights and responsibilities. Specifically, as a representative of

the child’s best interest, he questioned the trial court’s authority to relieve Father of his legal

responsibility to pay child support when neither MCJFS nor A.P.’s grandmother had assumed

that obligation. On June 25, 2014, the guardian filed a motion to vacate the trial court’s

judgment, insofar as it held that Father’s surrender of his parental rights survived this Court’s

reversal of the 2012 permanent custody decision and the trial court’s judgment on remand that

placed A.P. in the legal custody of her grandmother.

       {¶6}    The trial court overruled the motions filed by the guardian ad litem, reasoning

that: (1) he lacked standing to move to vacate the judgments entered on March 8, 2012 and

January 15, 2013; (2) his motions were barred by the doctrines of res judicata and collateral

estoppel; and (3) the motions failed on their merits The trial court reasoned that Father had

permanently surrendered his parental rights pursuant to R.C. 5103.15(B)(1), and that the

termination of his rights had not been affected by this Court’s reversal of the 2012 judgment or

the trial court’s proceedings on remand.

       {¶7}    The guardian ad litem appeals and raises four assignments of error, which will be

rearranged for ease of review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN FINDING THAT THE GUARDIAN AD
       LITEM LACKED STANDING TO MOVE TO VACATE THE COURT’S
       JUDGMENTS OF MARCH 8, 2012 AND JANUARY 15, 2013.

       {¶8}    The guardian ad litem’s first assignment of error is that the trial court erred in

concluding that the guardian ad litem lacked standing to move to vacate the trial court’s

judgment under Civ.R. 60(B). We agree.
                                                     4


       {¶9}    The term “[g]uardian ad litem” refers to an individual who is appointed to protect

the interests of the child and assist the trial court in its determination of a child’s best interest.

Juv.R. 2(O); Sup.R. 48(B)(1). The record reveals that A.P. was represented by a guardian ad

litem in the trial court proceedings prior to the 2012 permanent custody hearing and during the

proceedings on remand, including when the trial court placed A.P. in the grandmother’s legal

custody and continued the termination of Father’s parental rights and responsibilities.

       {¶10} Juv.R. 2(Y) explicitly defines a “[p]arty” to a juvenile court proceeding to include

the child’s guardian ad litem. Although the trial court later appointed a different individual to

serve in that fiduciary capacity, the record is clear that a guardian ad litem had been a party

throughout these proceedings as a representative of A.P.’s best interest, which he was seeking to

protect by asking the trial court to reinstate Father’s parental responsibility to pay child support.

       {¶11} By its explicit terms, Civ.R. 60(B) authorizes any “party” to the trial court

proceedings to seek relief from judgment. See Civ.R. 60(B); In re J.W., 9th Dist. Summit No.

26874, 2013-Ohio-4368, ¶ 13 (holding that “a movant has standing to seek relief under Civ.R.

60(B) if that person was a party to the final judgment.”). Because the trial court erred in

concluding that the guardian ad litem lacked standing to seek relief from judgment under Civ.R.

60(B), the first assignment of error is sustained.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN FINDING THAT THE GUARDIAN AD
       LITEM’S MOTIONS OF MAY 14, 2013, JUNE 11, 2013, AND JUNE 25, 2013
       ARE BARRED BY RES JUDICATA AND COLLATERAL ESTOPPEL.

       {¶12} In its judgment denying the motion for relief from judgment, the trial court also

concluded that the guardian ad litem’s motions were barred by the doctrines of res judicata and

collateral estoppel. Although it quoted case law from another appellate district, the court did not
                                                 5


explain how either doctrine applied to the facts of this case. The guardian ad litem argues that

the trial court erred in concluding that his attempts to vacate or correct the trial court’s

termination of Father’s parental rights and responsibilities were barred by the doctrine of res

judicata or collateral estoppel.

       {¶13} The Supreme Court has emphasized that “Civ.R. 60(B) exists to resolve injustices

that are so great that they demand a departure from the strict constraints of res judicata.” Bank of

Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 15. It is a rule of equity that, under

certain circumstances, provides for relief from a judgment, regardless of its finality. Id.

       {¶14} The Supreme Court has further held that the doctrine of res judicata should not be

strictly applied in cases involving child custody and visitation in the domestic relations context.

Kelm v. Kelm, 92 Ohio St.3d 223, 227 (2001). Because the trial court maintains jurisdiction to

revisit these types of judgments, they are “never absolutely final.” Id. The courts “sacrifice

finality and some of [their] limited judicial resources in order to secure a higher value - the best

interests of the children.” Id.

       {¶15} The Kelm reasoning is fully applicable in this juvenile case. In this case, Father’s

purported surrender of custody occurred in the context of the permanent custody litigation

resulting in a judgment that was reversed by this Court. A.P. was then permanently placed in her

grandmother’s legal custody, during which time the trial court will retain jurisdiction over issues

of custody, visitation and support until the child reaches the age of 18. Without Father’s

participation after the reversal and remand of the permanent custody judgment, on January 15,

2013, the trial court entered an order surrendering Father’s parental rights.          Under these

circumstances, the trial court erred in concluding that the motions of the guardian ad litem were
                                                 6


barred by the doctrines of res judicata and/or collateral estoppel. The second assignment of error

is sustained.1

                                 ASSIGNMENT OF ERROR IV

        THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
        OVERRULING THE GUARDIAN AD LITEM’S MOTION FOR RELIEF
        FROM FINAL JUDGMENT OF JUNE 25, 2013.

        {¶16} The guardian ad litem’s fourth assignment of error is that the trial court erred in

denying the Civ.R. 60(B) motion on its merits. To prevail on a Civ.R. 60(B) motion to vacate

judgment, a movant must demonstrate: (1) a meritorious defense or claim to present if relief is

granted; (2) that he is entitled to relief under one of the grounds stated in Civ.R. 60(B); and (3)

that the motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC Industries,

Inc., 47 Ohio St.2d 146, 150 (1976). The determination of whether relief should be granted is

within the sound discretion of the trial court. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987).

        {¶17} The trial court denied the motion to vacate its judgment, reasoning that the

guardian ad litem had failed to demonstrate that he had a meritorious claim or defense if relief

from the judgment was granted. The guardian ad litem moved to vacate the trial court’s January

2013 judgment insofar as it held that Father’s 2012 voluntary relinquishment of his parental

rights and responsibilities survived this Court’s reversal of the 2012 permanent custody judgment

and the trial court’s subsequent placement of A.P. in the legal custody of her grandmother.


1
  We recognize that the guardian ad litem filed several motions in an attempt to vacate Father’s
permanent surrender of custody. Although the Ohio Supreme Court has held that res judicata
precludes the filing of successive Civ.R. 60(B) motions based upon facts and grounds that were
or could have been raised in a prior Civ.R. 60(B) motion, it has not applied the doctrine to an
initial attempt to collaterally attack a judgment under Civ.R. 60(B). See, e.g, Harris v. Anderson,
109 Ohio St.3d 101, 2006-Ohio-1934, ¶ 8. Our focus in this matter is upon the trial court’s
erroneous conclusion that the guardian ad litem could not seek Civ. R. 60(B) relief under any
circumstances due to the doctrines of res judicata and collateral estoppel.
                                                7


       {¶18} The trial court reasoned that Father had surrendered his parental rights in 2012

pursuant to R.C. 5103.15(B)(1), which provides an avenue by which a child’s parents may agree,

with court approval, to surrender their child to the permanent custody of a certified public or

private agency. An agreement executed pursuant to R.C. 5103.15(B)(1) and approved by the

juvenile court constitutes a binding contract, which “cannot be revoked by the parents or legal

guardian absent the consent of the [children services agency].” In re Miller, 61 Ohio St.2d 184,

189 (1980). Consequently, because the trial court had purported to authorize the 2012 voluntary

surrender of Father’s parental rights pursuant to R.C. 5103.15(B)(1), and MCJFS had not agreed

to revoke that surrender after the reversal of the permanent custody judgment, the trial court

concluded that Father’s parental rights and responsibilities remained terminated.

       {¶19} We agree with the guardian ad litem that the trial court’s legal reasoning was

flawed. To begin with, the trial court erred in concluding that Father surrendered his parental

rights pursuant to R.C. 5103.15(B)(1). The Ohio Supreme Court has repeatedly emphasized that

R.C. 5103.15 has no application to cases in which the child has been adjudicated neglected or

dependent and is under the jurisdiction of the juvenile court. See, e.g., In re Miller, at 189-190;

Kozak v. Lutheran Children's Aid Soc., 164 Ohio St. 335, 340-341 (1955).

       {¶20} By the explicit terms of R.C. 5103.15(B)(1), an agreement to voluntarily place a

child in the permanent custody of a children services agency may only be executed by parents

“having custody of a child[.]” See also Adoption Link, Inc. v. Suver, 112 Ohio St.3d 166, 2006-

Ohio-6528, ¶ 9 (explaining that R.C. 5103.15 “manifestly condition[s] any such permanent-

surrender agreement on the parents * * * having custody of the child.”). At the time Father

purported to surrender his parental rights to then three-year-old A.P., she was in the temporary
                                                 8


custody of MCJFS. Because Father did not have custody of A.P. at the time he attempted to

surrender his parental rights, he could not execute his surrender under R.C. 5103.15(B)(1).

       {¶21} Moreover, because A.P. had two parents, any surrender under R.C. 5103.15(B)(1)

would have also required that A.P.’s mother agree to surrender her parental rights to the agency,

but she did not. R.C. 2151.011(B)(33) defines a “[p]ermanent surrender” under R.C. 5103.15 as

a voluntary agreement by which both parents surrender their parental rights to the agency. A

surrender by only one parent under R.C. 5103.15(B)(1) is authorized only “if a child has only

one parent[.]” R.C. 2151.011(B)(33).

       {¶22} In substance, Father’s attempted voluntary surrender of his parental rights was not

executed pursuant to R.C. 5103.15, but was instead consent to the ultimate 2012 permanent

custody judgment. See In re Isreal Y., 6th Dist. Lucas No. L-07-1030, 2007-Ohio-3685, ¶ 6-7.

Because Father had already lost temporary custody of A.P. to MCJFS and was faced with a

contested hearing on the permanent custody motion, he waived his parental rights and agreed

that permanent custody to MCJF was in A.P.’s best interest. At that time, Father relinquished all

of his parental rights, which were then transferred to MCJFS.          See R.C. 2151.011(B)(32)

(permanent custody vests in the agency “all parental rights, duties, and obligations[.]”)

(Emphasis added.).

       {¶23} Aside from its misapplication of R.C. 5103.15, the trial court erred by refusing to

recognize that Father’s residual parental rights and responsibilities were necessarily reinstated

after this Court’s reversal of the 2012 permanent custody judgment. On remand, MCJFS no

longer held permanent custody of A.P., nor did it hold the parents’ residual rights and

responsibilities. Ultimately, the trial court placed A.P. in the legal custody of her grandmother, a

dispositional placement that left intact both parents’ residual parental rights, privileges, and
                                                 9


responsibilities. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, paragraph one of the syllabus.

The grandmother did not assume Father’s child support obligation because, by definition, legal

custody vests in the custodian the right to physically care for the child, including the rights and

responsibilities of meeting her basic daily needs for food, shelter, education, medical care, and

supervision, “all subject to any residual parental rights, privileges, and responsibilities[,]” which

explicitly include “the responsibility for [paying child] support.” R.C. 2151.011(B)(21) and

(48).

        {¶24} As A.P.’s biological parent, Father still had a legal obligation to financially

support A.P., because no one had adopted her or otherwise assumed that legal responsibility. See

R.C. 3103.031; Treadway v. Ballew, 9th Dist. Summit No. 18984, 1998 WL 696888, *4 (Oct. 7,

1998). A biological father does not have the right to walk away from that legal obligation simply

because he does not want to be a parent. See Bryant v. Hacker, 116 Ohio App.3d 860, 865 (1st

Dist.1996). Consequently, this Court must conclude that the guardian ad litem presented a

meritorious claim that Father’s residual parental rights and responsibilities should have been

reinstated during the trial court proceedings on remand.

        {¶25} Although the trial court did not address the remaining requirements for prevailing

on a Civ.R. 60(B) motion to vacate, the record reflects that they were satisfied. See GTE

Automatic Elec., Inc., 47 Ohio St.2d at 150. There can be little dispute that the guardian ad litem

filed the motion within a reasonable time because he filed it shortly after he was appointed to

replace the child’s former guardian ad litem.

        {¶26} Based on this Court’s conclusion that the guardian ad litem demonstrated that he

had a meritorious claim that Father’s residual parental rights and responsibilities should have

been reinstated, he stated grounds under Civ.R. 60(B)(5), “a catch-all provision reflecting the
                                                 10


inherent power of a court to relieve a person from the unjust operation of a judgment[]” when the

grounds for invoking it are “substantial.” Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St. 3d 64, 66

(1983). In juvenile custody cases, the best interest of the child is to be a “paramount” concern.

In re A.B., 110 Ohio St.3d 230, 2006-Ohio-4359, ¶ 32. A.P., who had no ability to choose her

guardian ad litem or assert her own best interest in the trial court proceedings, was originally

represented by a guardian ad litem who failed to protect her from the trial court’s legal error in

terminating Father’s residual parental rights and responsibilities.

       {¶27} Shortly after his appointment, the new the guardian ad litem persuasively argued

that the trial court’s error in dismissing Father as a party to this action involved unusual and/or

extraordinary operative facts. Because the trial court’s error, if left uncorrected, would deprive

A.P. of her right to a potential relationship with Father and her right to receive child support

from him until she reaches the age of 18 in approximately 12 years, the guardian ad litem stated

substantial grounds to relieve A.P. from the unjust operation of the judgment. See Adomeit v.

Baltimore, 39 Ohio App.2d 97, 105 (8th Dist.1974).

       {¶28} Consequently, this Court concludes that the trial court abused its discretion in

denying the motion of the guardian ad litem to vacate the trial court’s 2013 judgment insofar as it

failed to reinstate the residual parental rights and responsibilities of Father.       The fourth

assignment of error is sustained and the judgment is reversed and remanded on that basis.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR IN
       OVERRULING THE GUARDIAN AD LITEM’S MOTIONS OF MAY 14, 2013
       AND JUNE 11, 2013.

       {¶29} The third assignment of error is that the trial court erred in overruling the prior

motions filed by the guardian ad litem to correct the trial court’s legal error in terminating
                                                11


Father’s parental rights. Because this assignment of error has been rendered moot by this

Court’s disposition of the fourth assignment of error, it will not be addressed. See App.R.

12(A)(1)(c).

                                                III.

       {¶30} The first, second, and fourth assignments of error are sustained.         The third

assignment of error was not addressed. The judgment of the Medina County Court of Common

Pleas, Juvenile Division, is reversed and remanded for proceedings consistent with this opinion.

                                                                               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 Medina, 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.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
                                           12




WHITMORE, J.
MOORE, J.
CONCUR.


APPEARANCES:

DEREK CEK, Guardian ad Litem, Attorney at Law, for Appellant.

DANIEL GIGIANO, Attorney at Law, for Appellee.

RICHARD BARBERA, Attorney at Law, for Appellee.

JENNIFER MOORE, Attorney at Law, for Appellee.

EUGENE ELIAS, Attorney at Law, for Appellee.

ANDREW PARKER, Attorney at Law, for Appellee.

KEN and DONNA P., pro se, Appellee.
