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

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: 

 J.M. 

DEPENDENT CHILD 

 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 11 CA 21 

O P I N I O N 

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