[Cite as In re J.W., 2013-Ohio-4368.]


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

IN RE: J.W.                                           C.A. No.       26874
       J.W.
       J.W.

                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE Nos. DN 10-02-0092
                                                                 DN 10-02-0093
                                                                 DN 10-02-0094

                                 DECISION AND JOURNAL ENTRY

Dated: October 2, 2013



        HENSAL, Judge.

        {¶1}     Appellant, April W. (“Mother”), appeals from a judgment of the Summit County

Court of Common Pleas, Juvenile Division, that denied her motion to vacate the November 2011

judgment that terminated her parental rights. This Court affirms.

                                                 I.

        {¶2}     Mother is the natural mother of three minor children, each with the initials J.W.,

who now range in age from 10 to 14 years old. Pursuant to dependency and neglect complaints

filed by Summit County Children Services Board (“CSB”) on February 22, 2010, the children

were removed from Mother’s custody. The trial court later adjudicated them neglected and

dependent children, based on Mother’s stipulation that she had serious, untreated psychiatric

problems and had not been providing for the basic needs of her children. CSB’s history with this

family dates back to 2005, when the children were removed from Mother’s custody for more
                                               2


than two years for similar problems stemming from her untreated mental illness. Although the

children were eventually returned to Mother’s custody, CSB reopened a voluntary case with the

family approximately one year later. The agency later filed dependency and neglect complaints

to open an involuntary case because Mother was not working on the voluntary case plan. Mother

had also committed a felony theft offense, for which she was incarcerated during part of the case

planning period.

         {¶3}   CSB ultimately moved for permanent custody of all three children and the matter

proceeded to a hearing on that motion. On November 30, 2011, the trial found that the children

had been in the temporary custody of CSB for more than 12 of the prior 22 months and that

permanent custody was in their best interests and, consequently, terminated Mother’s parental

rights. See R.C. 2151.414(B)(1). Mother did not appeal from that judgment.

         {¶4}   On February 26, 2013, Mother moved to vacate the permanent custody decision

under Civ.R. 60(B)(4) and/or (5). She alleged that she was entitled to relief from the November

2011 permanent custody judgment because the children had not been adopted by the foster

parents, as had been anticipated at the time of the permanent custody decision, and Mother had

since achieved stability in her life through ongoing counseling. The trial court denied Mother’s

motion without a hearing, reasoning that she had failed to allege sufficient operative facts to

demonstrate grounds for relief under Civ.R. 60(B). Mother appeals and raises one assignment of

error.

                                               II.

                                 ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED WHEN IT DENIED WITHOUT [A] HEARING
         [MOTHER’S] TIMELY MOTION FOR RELIEF FROM JUDGMENT
         BECAUSE SHE HAD STANDING TO BRING THE MOTION AND SHE
         PRESENTED FACTS ESTABLISHING A CHANGE OF CIRCUMSTANCES
                                                  3


       FOR HER CHILDREN AND HERSELF WHICH DEMONSTRATED THAT IT
       WAS NO LONGER EQUITABLE THAT THE TERMINATION OF
       PARENTAL RIGHTS SHOULD HAVE PROSPECTIVE APPLICATION OR
       THAT THE TERMINATION WAS IN THE BEST INTERESTS OF THE
       CHILDREN.

       {¶5}    Mother argues that the trial court erred in failing to grant her motion to vacate the

2011 permanent custody judgment. We begin by emphasizing that Mother sought to vacate the

judgment pursuant to Civ.R. 60(B), not to “modify or terminate” the permanent custody

disposition under the court’s continuing jurisdiction. See R.C. 2151.353(E)(2) (authorizing the

trial court to modify the disposition of permanent custody upon motion by CSB or another party

other than the “parent whose parental rights with respect to the child[ren] have been

terminated[.]”). Nevertheless, because the court’s ongoing jurisdiction tends to confuse the

issues before us, an explanation of its scope is in order.

                            Juvenile Court’s Continuing Jurisdiction

       {¶6}    In cases involving disputes over the custody of children, because the state’s

interest in overseeing the best interest of the children does not end when the court designates a

custodian for the child, the trial court’s jurisdiction continues.      Post-judgment, continuing

jurisdiction exists in other types of juvenile and domestic relations court cases. See, e.g., R.C.

3109.04(E) and Civ.R. 75(J). The sole focus here, however, is on the limited scope of the

juvenile court’s continuing jurisdiction after it terminates parental rights and places the children

in the permanent custody of a children services agency.

       {¶7}    After the juvenile court issues a permanent custody order under R.C. 2151.414, it

retains continuing jurisdiction over the children until they reach the age of majority or are

adopted. R.C. 2151.353(E)(1); R.C. 2151.417(B). It is important to emphasize, however, that

the trial court’s jurisdiction continues only over the children, not their natural parents. Following
                                                  4


the permanent custody decision, the parents “cease to be parties to the action.”                R.C.

2151.414(F). Upon the entry of the permanent custody judgment, Mother lost any right to be

involved in the ongoing, post-judgment proceedings.           Although Mother lost her right to

participate in the proceedings, however, the trial court also lost all authority over her, as she was

no longer subject to its jurisdiction.

        {¶8}    The trial court’s post-judgment jurisdiction continued solely over the children and

the agency to monitor the well-being of the children, the suitability of their placements, and the

agency’s efforts to facilitate their adoption. The trial court is required to review those issues at

least every 12 months until the children are adopted or the court terminates the custody

arrangement. R.C. 2151.417(C); R.C. 2151.417(H) (review hearings may be delegated to a

referee or citizens review board, subject to review by the trial court).

        {¶9}    At the review hearings, all who have retained their ongoing status as parties are

summoned to appear and are given the opportunity to testify and present evidence.               R.C.

2151.417(F). The focus of each hearing is on the best interests of the children, including their

safety, the appropriateness of continuing their current placement(s), and whether changes should

be made to their permanency plan. R.C. 2151.417(A). Following each hearing, the trial court is

further required to “determine what actions are required by the custodial agency and of any other

organizations or persons in order to facilitate an adoption of the child and make any appropriate

orders with respect to the custody arrangement or conditions of the child[.]”                   R.C.

2151.417(G)(4). Moreover, “at any time,” upon its own motion or the motion of one who

remains a party to the post-judgment proceeding, the court may modify or terminate the

permanent custody order, if it determines that such a change of disposition is in the best interests

of the children. R.C. 2151.419(B); R.C. 2151.353(E)(2); R.C. 2151.42(A).
                                                 5


       {¶10} In other words, the juvenile court’s continuing jurisdiction in this case pertains

solely to the children’s well-being, custody, and the plan for finding them a permanent home.

The ongoing proceedings are separate and distinct from the pre-judgment proceedings involving

Mother, because she has been divested of “all parental rights” and CSB has assumed the legal

status of the children’s parent figure until another parent assumes that role.             See R.C.

2151.011(B)(32).

                             Mother’s Standing under Civ.R. 60(B)

       {¶11} Mother was no longer a party in the ongoing, post-judgment proceedings in

juvenile court, and lacked standing to participate in the proceedings pertaining to the post-

judgment placement and well-being of her children. Based on her lack of standing in the

ongoing proceedings, CSB argues that she also lacked standing to seek relief from the judgment

pursuant to Civ.R. 60(B). Although it is true that Mother lacked standing to participate in the

post-judgment proceedings in the juvenile court, she did not attempt to seek redress under the

trial court’s ongoing jurisdiction over the children. Instead, she moved to collaterally attack the

final judgment pursuant to Civ.R. 60(B).

       {¶12} The relief provided by Civ.R. 60(B) is not confined to cases in which the trial

court retains jurisdiction after final judgment, nor does it require that the movant be a party to an

ongoing action in the court. It applies in all types of civil cases and authorizes a trial court to

“relieve a party or his legal representative from a final judgment[.]” By its explicit terms, Civ.R.

60(B) provides for relief from “final” judgments, meaning those that have fully determined the

rights and obligations of the parties to the action. See Hensley v. Henry, 61 Ohio St.2d 277, 279

(1980). In most civil cases, the trial court loses jurisdiction over the parties and their dispute

upon entry of final judgment, except to enforce the judgment. A trial court typically has no
                                                  6


authority to change the terms of a final judgment, except as provided in the Ohio Civil Rules.

See Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 380 (1981).

       {¶13} Because Civ.R. 60(B) requires that movants seek relief within a “reasonable time”

and within one year under certain grounds, it anticipates that parties will seek relief long after the

matter is over and the court has lost jurisdiction over the parties. Even if the trial court had

closed or dismissed the case, thereby terminating its jurisdiction and the ongoing status of the

parties, a movant has standing to seek relief under Civ.R. 60(B) if that person was a party to the

final judgment. See, e.g., Svoboda v. City of Brunswick, 6 Ohio St.3d 348, 349-350 (1983) (party

whose complaint had been dismissed by the trial court no longer had any ongoing status as a

party to that action but was entitled to seek and obtain Civ.R. 60(B) relief). The only reasonable

construction of the term “party” in Civ.R. 60(B) is that it refers to anyone who is a party to the

final judgment that he or she seeks to vacate.

       {¶14} Although this Court has not previously addressed this issue directly, it has

repeatedly recognized that a parent whose rights have been terminated has standing to challenge

the permanent custody judgment pursuant to Civ.R. 60(B). See, e.g., In re S.P., 9th Dist. Lorain

No. 02CA008129, 2003-Ohio-96, ¶ 7; In re J.J., 9th Dist. Summit, No. 21842, 2004-Ohio-4059.

Other appellate courts have reached the same implicit conclusion by addressing the merits of

parents’ appeals from the denials of their motions to vacate permanent custody judgments. See,

e.g., In re M.H., 8th Dist. Cuyahoga No. 85308, 2005-Ohio-2854; In re Williams, 10th Dist.

Franklin No. 03AP-1007, 2004-Ohio-678; In re Shell, 5th Dist. Fairfield No. 12-CA-92, 1992

WL 307869 (Oct. 2, 1992); In re Reisinger, 3d Dist. Hardin Nos. 6-92-6 and 6-92-07, 1992 WL

369623 (Dec. 14, 1992).
                                                7


       {¶15} Although R.C. 2151.414(F) provides that parents “cease to be parties” after the

permanent custody decision, “[l]ogically, this provision can only be meant to operate

prospectively, excluding the parents from future proceedings relating to the child, such as review

hearings.”   In re Phillips, 12th Dist. Butler No. CA 2003-03-062, 2003-Ohio-5107, ¶ 8.

Moreover, because R.C. 2151.414(F) further provides that it is “not intended to eliminate or

restrict any right of the parents to appeal the granting of permanent custody of their child to a

movant pursuant to this section[,]” the parents similarly retain their rights to “challeng[e] the

validity of the judgment rendered in the proceeding to which [she] was a party.” Id.

       {¶16} By the explicit terms of Juv.R. 2(Y) and the complaints filed in the trial court,

Mother was a party to the three dependency and neglect cases involving her children. The trial

court’s November 2011 final judgment explicitly terminated her parental rights to each child.

Because Mother was a party to that judgment, she necessarily had standing to seek relief from

judgment pursuant to Civ.R. 60(B).

                                      Civ.R. 60(B) Merits

       {¶17} Next, we turn to the merits of Mother’s argument that the trial court erred in

denying her Civ.R. 60(B) motion without a hearing. The trial court was not required to hold an

evidentiary hearing on the motion, however, unless Mother alleged “operative facts which would

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

(1996); OneWest Bank, FSB v. Stoner, 2d Dist. Clark No. 2011 CA 13, 2011-Ohio-4672, ¶ 36. A

trial court’s authority to vacate a prior valid judgment pursuant to Civ.R. 60(B) is limited to the

grounds set forth in the rule. In re Appointment of Witherell, 9th Dist. Lorain No. 01CA007936,

2002-Ohio-2328, ¶ 9. The rule’s purpose in strictly limiting the situations under which a trial

court has authority to vacate a prior judgment is to “‘strike a proper balance between the
                                                   8


conflicting principles that litigation must be brought to an end and justice should be done.’” In

re Whitman, 81 Ohio St.3d 239, 242 (1998), quoting Colley v. Bazell, 64 Ohio St.2d 243, 248

(1980) and 11 Wright & Miller, Federal Practice and Procedure, Section 2851, 140 (1973).

       {¶18} To prevail on a Civ.R. 60(B) motion for relief from judgment, Mother was

required to demonstrate that: (1) she had a meritorious defense or claim to present if relief was

granted; (2) she was entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through

(5); and (3) the motion was made within a reasonable time. GTE Automatic Elec., Inc. v. ARC

Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. “[T]he test is not

fulfilled if any one of the requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 174

(1994). Because Mother failed to allege operative facts that she had a ground for relief under

Civ.R. 60(B), we will confine our review accordingly.

       {¶19} Civ.R. 60(B) authorized the trial court to vacate its prior judgment only if Mother

demonstrated one of the following grounds:

       (1) mistake, inadvertence, surprise or excusable neglect;

       (2) newly discovered evidence * * * ;

       (3) fraud * * * or other misconduct of an adverse party;

       (4) the judgment has been satisfied, released or discharged * * * or it is no longer
       equitable that the judgment should have prospective application; or

       (5) any other reason justifying relief[.]

       {¶20} Mother alleged that she had grounds for relief under Civ.R. 60(B)(4) and/or (5).

Although this Court generally reviews the denial of a motion under Civ.R. 60(B) for an abuse of

discretion, we first must determine whether the facts alleged by Mother fall within the language

of subsections (4) and/or (5). We construe the meaning of that language as a matter of law. See
                                               9


Kalamazoo River Study Group v. Rockwell Intern. Corp., 355 F.3d 574, 583-84 (6th Cir.2004);

Sliwinski v. Village at St. Edward, 9th Dist. Summit No. 24967, 2010-Ohio-3006, ¶ 11.

                                       Civ.R. 60(B)(4)

       {¶21} Mother first asserts that she stated grounds under the last phrase of Civ.R.

60(B)(4), which provides for relief from a judgment if “it is no longer equitable that the

judgment should have prospective application.” Civ.R. 60(B)(4). The Ohio Supreme Court has

construed this language to apply to a situation in which changed circumstances make continued

enforcement of the judgment inequitable. See, e.g., Crouser v. Crouser, 39 Ohio St.3d 177, 180

(1988), citing Wurzelbacher v. Kroeger, 40 Ohio St.2d 90, 92 (1974).

       {¶22} Mother alleged that, because the children had not been adopted and she has

stabilized her mental health through ongoing counseling, the judgment was no longer equitable

in light of those changed circumstances. Civ.R. 60(B)(4) authorized the trial court to grant

equitable relief based on changed circumstances, however, only if the judgment is one that has

“prospective application.” Although Civ.R. 60(B) does not define “prospective application” and

the Ohio Supreme Court has not focused in depth on that language, it has explicitly recognized

that “prospective application” means that the judgment remains executory and requires

“continued enforcement” by the trial court.    See, e.g., Crouser at 180 (judgment required

“continued enforcement” by the trial court because it ordered the appellant to pay his former

wife alimony for life).

       {¶23} Although this Court found no Ohio case law that has directly explained the

meaning of the term “prospective application” in Civ.R. 60(B)(4), its federal counterpart has

been interpreted extensively. Fed.R.Civ.P. 60(b)(5) similarly provides for a judgment to be

vacated if “applying it prospectively is no longer equitable.” Consequently, when the Ohio
                                               10


Supreme Court first interpreted the “no longer equitable” language of Civ.R. 60(B)(4), it looked

to federal case law for guidance. See Wurzelbacher, 40 Ohio St.2d at 90 (recognizing that the

federal rule contains identical language). This Court likewise found guidance in federal case law

to determine whether the judgment at issue has “prospective application.”

       {¶24} A judgment that has prospective or continued application is one that is “forward-

looking,” such as a long-term injunction or consent decree, both of which “envision the

regulation of future conduct.”    Comfort v. Lynn School Committee, 560 F.3d 22, 28 (1st

Cir.2009). Such judgments remain “executory [and/or] leave open for future adjudication any

issues regarding the rights of the parties.” Id.     As one federal district court summarized,

“[p]rospective application * * * means that the judgment a party seeks to render ineffective: 1)

compels a party to perform; 2) orders a party not to perform a future act; or 3) mandates court

supervision of continuing interaction between the parties.” Villescas v. Abraham, 285 F.Supp.2d

1248, 1253 (D.Colo.2003), citing Twelve John Does v. District of Columbia, 841 F.2d 1133

(D.C.Cir.1988).

       {¶25} Permanent custody, by definition, fully divested Mother “of all parental rights,

privileges, and obligations, including all residual rights and obligations.” R.C. 2151.011(B)(32).

Through the November 2011 permanent custody judgment, the trial court had fully determined

Mother’s parental rights and she was not required to perform any ongoing or future actions, nor

was she ordered to abstain from any conduct. The judgment did not require any continued

enforcement against Mother. Although the trial court retained continuing jurisdiction over the

children, it no longer had authority over Mother, as she had ceased to be a party subject to its

jurisdiction. R.C. 2151.353(E)(1); R.C. 2151.414(F).
                                                 11


       {¶26} Mother further suggests that the 2011 permanent custody judgment had

prospective application because she and the children continue to be bound by its terms, but that

preclusive effect on the parties is something that is common to all judgments. “‘Virtually every

court order causes at least some reverberations into the future, and has, in that literal sense, some

prospective effect[.] That a court’s action has continuing consequences, however, does not

necessarily mean that it has prospective application for the purposes of [Federal] Rule 60(b)(5).’”

Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir.1995), quoting Twelve John Does, 841 F.2d at

1138. “If this were enough to satisfy [the] threshold requirement, then the Rule’s requirement of

‘prospective application’ would be meaningless.” Coltec Industries, Inc. v. Hobgood, 280 F.3d

262, 272 (3d Cir.2002).

       {¶27} Because the trial court’s permanent custody judgment left nothing unsettled

between the parties or open to future adjudication or enforcement, it had no “prospective

application.” Consequently, Mother did not raise a ground for relief under Civ.R. 60(B)(4).

                                          Civ.R. 60(B)(5)

       {¶28} Alternatively, Mother argues that she set forth grounds to vacate the permanent

custody judgment under Civ.R. 60(B)(5), which authorized the trial court to vacate the judgment

for “any other reason justifying relief.” Mother’s argument that she is entitled to relief under

Civ.R. 60(B)(5) is virtually identical to her argument under Civ.R. 60(B)(4). Without citing any

legal authority, she argues that, because the subsequent circumstances of the parties have not

evolved as the trial court may have anticipated, she is entitled to relief under Civ.R. 60(B)(5).

       {¶29} Although the language of this so-called catch-all provision is broad, and reflects

“the inherent power of a court to relieve a person from the unjust operation of a judgment,” the

Ohio Supreme Court has held that the grounds for invoking relief under this provision must be
                                                 12


“substantial.” Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983), paragraphs one and two

of the syllabus. Relief under Civ.R. 60(B)(5) should only be granted in an “extraordinary and

unusual case[.]” Adomeit v. Baltimore, 39 Ohio App.2d 97, 105 (8th Dist.1974).

       {¶30} For example, the Ohio Supreme Court has held that “fraud upon the court” falls

within the realm of Civ.R. 60(B)(5). Coulson v. Coulson, 5 Ohio St.3d 12 (1983), paragraph one

of the syllabus. Similarly, “[a] judge’s participation in a case which gives rise to the appearance

of impropriety and possible bias could constitute grounds for relief under Civ.R. 60(B)(5).”

Volodkevich v. Volodkevich, 35 Ohio St.3d 152, 154, (1988). Relief pursuant to this provision

may also be granted for court errors and omissions, which are “distinct” from mere errors in

judgment that can be remedied through a timely appeal.       See In re S.J., 9th Dist. Summit No.

23199, 2006-Ohio-6381, ¶ 23. Each of these examples involved unusual circumstances that were

not disclosed to all parties at the time of judgment, and which inherently affected the accuracy

and reliability of the trial court’s judgment.

       {¶31} Mother has not demonstrated that such extraordinary or unusual facts exist in this

case. Although the circumstances of the parties have changed in a way that may not have been

expected at the time of judgment, those changes have no bearing on the legal soundness of the

trial court’s original decision made under the facts at that time. Facts and circumstances of the

children and the parents will often change in ways that are not specifically anticipated at the time

of permanent custody decision. The purpose of Civ.R. 60(B) is to limit the trial court’s authority

to vacate judgments, not to open all judgments to collateral attack based on changed

circumstances of the parties.

       {¶32} In an analogous situation, Mother would state no ground for relief under Civ.R.

60(B) if there had been a subsequent change in the controlling case law. The Ohio Supreme
                                                13


Court has held that Civ.R. 60(B)(5) does not authorize relief from a judgment simply because the

controlling case law was later overruled or declared erroneous in an unrelated proceeding. Doe

v. Trumbull Cty. Children Services Bd., 28 Ohio St.3d 128 (1986), paragraph one of the syllabus.

Balancing concerns for justice against the need for finality in judgments, the Court emphasized

that “[s]uch a result would undermine the stability of final judgments and, in effect, render their

enforceability conditional upon there being ‘no change in the law.’” Id. at 131, quoting Parks v.

U.S. Life & Credit Corp., 677 F.2d 838, 841 (11th Cir.1982).                 Moreover, unlike other

circumstances that Ohio courts have recognized as justifying relief under Civ.R. 60(B)(5), a

change in controlling case law would not undermine the legitimacy of the trial court’s judgment

at the time it was entered.

       {¶33} Because Mother failed to set forth operative facts that she had grounds for relief

from the permanent custody judgment under either Civ.R. 60(B)(4) or (5), the trial court did not

err in denying her motion without a hearing. Mother’s assignment of error is overruled.

                                                III.

       {¶34} Mother’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas, Juvenile Division, is affirmed.

                                                                                 Judgment affirmed.




       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.
                                                  14


       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 Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



WHITMORE, J.
CONCURS.

BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶35} I agree that Mother’s assignment of error should be overruled. Mother has

suggested that the trial court prematurely ruled on the matter because it issued a decision prior to

the submission of Mother’s reply brief. Mother has not fully developed this argument nor

explained how this constitutes prejudicial error. In addition, I agree that the trial court did not err

in concluding that Mother failed to demonstrate her entitlement to relief under Civ.R. 60(B)(4) or

60(B)(5). With respect to Civ.R. 60(B)(4), I believe the majority has adopted too narrow an

interpretation of the “prospective application” language contained in the rule. However, I agree

that under the circumstances of this case, Mother did not demonstrate entitlement to relief under

Civ.R.60(B)(4).
                                        15


APPEARANCES:

WILLIAM T. WHITAKER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
