[Cite as In re H.S. , 2017-Ohio-457.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

IN THE MATTER OF: : H.S. and T.S., : Case No. 16CA3569 16CA3570 : Adjudicated Dependent DECISION AND JUDGMENT ENTRY Children. :

APPEARANCES: Matthew P. Brady, Chillicothe, Ohio, for Appellant. Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jennifer L. Ater, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.

CIVIL APPEAL FROM COMMON PLEAS COURT, JUVENILE DIVISION DATE JOURNALIZED: 2-3-17 ABELE, J. {¶ 1} This is a consolidated appeal from two Ross County Common Pleas Court, Juvenile Division, judgments that granted S outh Central Ohio Jobs and Family Services, Children’s Division (SCOJFS), a ppellee herein, permanent cust ody of twelve-year-old H.S. 1 and fourteen-year-old T.S. S.R., the children’s biol ogical mother and appella nt herein, raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT DETERMINING AND CONSIDERING THE WISHES OF THE MINOR CHILDREN AS PART OF ITS DECISION.”

1 H.S. turned 13 in September 2016, after the trial court’s permanent custody decision.ROSS, 16CA3569 & 16CA3570 2

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT VIOLATED THE DUE PROCESS RIGHTS OF THE MINOR CHILDREN BY NOT ASCERTAINING THEIR WISHES OR ASSIGNING THEM SEPARATE COUNSEL FROM THE GUARDIAN AD LITEM.” {¶ 2} On September 24, 2013, appellee sought and received temporary emergency custody of H.S. and T.S. On that same day, appellee filed dependency co mplaints and requested temporary custody. In its attached statement of facts, appellee alle ged that on September 23, 2013, a Chillicothe police officer requested appe llee to respond to the residence where the

children resided with their father. The offi cer informed the case worker that the police department had received mu ltiple reports of drug ac tivity at the father’s re sidence. The officer additionally explained to the case worker that the previous night, a “loud disturbance” occurred in the father's residence back yard, which involved “‘known’ drug dealers” who possessed firearms. The father admitted to the officer that the father had been “smoking crack the past 2 weeks” and allowed “known drug dealers to stay at and vis it the home.” The case worker asserted that (1) the children were present durin g drug use and when drug dealers were in the home, (2) the children have missed five days of school thus far, and (3) on the date she responded to the home, the children were home from school because the father overslept. {¶ 3} The case worker explained that the father informed her that he did not have any

relatives who could care for the children and that appellant, their mother, is homeless. He further indicated that appellant of ten stays at a friend’s house that “h as been raided within the last 9 months.” The children reported that appellant “uses drugs, and they have stayed with her at the Chillicothe Inn before and seen razor blades in the bathroom.” The court subsequentlyROSS, 16CA3569 & 16CA3570 3

continued the children in a ppellee’s temporary custody pe nding further hearings. {¶ 4} On February 12, 2014, the magistrate ente red “order[s]” that adjudicated the children dependent and that or dered them to remain in appellee’s temporary custody. 2 The trial court did not, however, adopt the ma gistrate’s “order[s]” that ad judicated the children dependent and did not enter separate judgments that adjudicated the children dependent until September

2016. {¶ 5} On March 7, 2014, appellant f iled motions that requested the court to place the children in her care. She alleged that she “has been in full compliance” with the case plan. Appellant later wit hdrew her motions. {¶ 6} On April 1, 2014, the magistrate entered di spositional decisions that continued the

2 Recently, we learned the magistrate has issued “orders” that ar e, in reality, decisions that require court approval. We thus remind the court and the magistrate that a magistrate may issue an “order” without court approval when the order is “necessary to regulate the proceedings” and when the order is “not dispositive of a claim or defense.” Juv.R. 40(D)(2)(a)(i). When the magistrate is sues a ruling regarding a dispositive claim or defense (such as an abuse, negl ect, dependency, or delinquency adjudication), then the magistr ate must issue a “decision” that requires court approval to become effective. Juv.R. 40(D)(4)(a); see generally In re C.T. , 9

th Dist. Medina No. 14CA0007-M, 2014-Ohio-4267. Moreover, the co urt must enter its own separate and inde pendent judgment. Juv.R. 40(D)(4)(a). While we understand the time constraints an d the overwhelming case loads in juvenile cases, the judge retains ultimate oversigh t over the case. As the court explained in Huntington Natl. Bank v. Greer , 3rd Dist. Union No. 14-15-01, 2015-O hio-3403, 2015 WL 5005095, ¶11:

Every member of the judicial system must understand and act accordingly with their position in the system. This includes magistrates. “To presume a higher authorit y, or even to convey an appearance of more authority, than that which is authorized by law and the Civil Rules causes participants in the legal system to question the role of the trial judge.” Roychoudhury [v. Roychoudhury , 3rd Dist. Union No. 14-1419, 2015-Ohio-2213, ¶28 (Rogers, P.J., concurring). “The final responsibility lies with the tria l judge, and no conduct should be permitted which allows anyone to question that role.” Id., citing Vian v. Vian, 3d Dist. Mercer No. 10–13–05, 2013–Ohio–4560, ¶54 (Rogers, J., concurring).ROSS, 16CA3569 & 16CA3570 4 children in appellee’s temporary custody. On that same date, the trial court judge signed entries that repeated the magistrate’s decision and states, in part: “It is the finding of the Magistrate [sic] that said child was previously adjudicated to be a dependent child. The Magistrate [sic] further finds that permitting the child to remain in his own home is contrary to the welfare and best interests of the child and that reasonable efforts were made to prevent or eliminate the need for removal of the child from his home, and therefore orders that the child be committed to the temporary custody of [appellee].”

{¶ 7} On August 29, 2014, appellee filed a motion th at requested the court to continue the children in its temporary custody for six m onths. To support its motion, appellee attached a

letter from the children’s case worker that stated th at the father “has failed to address any of the agency or this court [sic] concerns.” The case worker explained that the father “often tested positive for myriad of substances, including ‘crack’ cocaine and various opiates.” The case

worker noted that the father visited with the child ren, “but not [on] a consistent basis.” The case worker asserted that although appellee prev iously “whole-heartedl y supported [appellant’s] efforts for reunification,” appe llant now “has been absent from this agency and has not maintain[ed] consistent visitation with her children.” The case worker noted that appellant previously had demonstrated sobr iety, but “it is rumored that she has relapse[d] and possibly overdose[d] at one time.” The case worker stated that appellee presently is working to substantiate the recent allegati ons involving appellant. He i ndicated, however, that appellant “remains homeless, and absent from her childre n, this worker, and this agency.” The case worker stated that due to the parents’ lack of progress, appellee inte nded to seek permanent custody of the children.ROSS, 16CA3569 & 16CA3570 5 {¶ 8} On November 25, 2014, the magistrate issu ed a decision that noted on September 23, 2014 he held a combined review hearing and h earing to consider appellee’s motion to extend temporary custody. 3 The magistrate found that the child ren are “doing well” in appellee’s temporary custody and that it is in the children’s best interests to continue in appellee’s temporary custody. The magistrate therefore ex tended the temporary custody order for no more

than six months. {¶ 9} On March 10, 2015, appellee filed a second motion to extend temporary custody and attached an updated letter from the case worker. In the letter, the cas e worker stated that appellant “has moved to the Greenfield area, enrolled into substance abuse counseling in Hillsboro, currently prescribed Suboxone as an anta gonist therapy, and is employed.” The case worker explained that in February 2015, appella nt admitted that “she had relapsed and had battled thoughts of suicide.” The case worker rela ted his belief that the parents “have exhausted their more than appropriate time table and have demonstrated their inability to maintain sobriety, follow recommended case services, and thus, follo w their court approved case plan.” The case worker indicated that appellee would be seeking permanent custody of the children. On March 23, 2015, the trial court exte nded the temporary custody order for six months. {¶ 10} On April 9, 2015, the magistrate entere d a decision noting that on March 23, 2015 he held a combined review hearing and hearing to consider appellee’s motion to extend temporary custody. 4 The magistrate again found that the children are “doing well” in appellee’s

3 The record does not contain a transcript of the September 23, 2014 hearing.

4 The record does not contain a transc ript of the March 23, 2015 hearing.ROSS, 16CA3569 & 16CA3570 6 temporary custody and continue d the temporary custody order. 5 {¶ 11} On September 18, 2015, appellee filed a thir d motion to extend temporary custody and attached an updated letter from the case worker. In the letter, the case wo rker stated that (1) the “parents continue not to engage or complete services,” (2) the fathe r’s last known address is in Sandusky, Ohio, and (3) the mother is incar cerated and charged with second-degree felony

felonious assault. The case worker related his belief that the parents “have demonstrated their inability to maintain sobriety, follow recommended case services, and thus, follow their court approved case plan.” The case worker stated that the agency would seek permanent custody of

the children. {¶ 12} On September 21, 2015, the trial court exte nded the temporary custody order for

an additional six months. 6 On that same date, appellee filed motions that requested permanent custody of the children. Appellee alleged that (1) the children have been in its temporary custody for more than twelve of the past twen ty-two consecutive months; (2) the children cannot

and should not be reunified with either parent within a reas onable time; and (3) placing the

5 We observe that the trial court, on March 23, 2015 , had entered orders that extended temporary custody.

6 R.C. 2151.415(D)(4) prohibits a court from granting “an agency more than two extensions of temporary custody” and from ordering “an existing temporary custody orde r to continue beyond two years after the date on which the complaint was filed or t he child was first placed into shelter care, whichever date is earlier, rega rdless of whether any extensions have been previously ordered pu rsuant to division (D) of this section.” On March 30, 2016, following the permanent custody decisions, the magistrate entered decisions indicating that it had conducted a review hearing on September 21, 2015. The magistrate’s decisions extended the temporary custody orders for an additional six months and set the matter for a hearing to be held on September 19, 2016 . We note, however, that on September 21, 2015 the trial cour t already had extended the temporary custody orders. Thus, the magistrate’s decisions on the same issue several months later are of no e ffect. Furthermore, the magistrate need not order temporary custody to co ntinue for an additional six months when the magistrate had d etermined that permanent custody is in the children’s best interests.ROSS, 16CA3569 & 16CA3570 7 children in appellee’s permanent custody is in their best interests. To support its motion, appellee attached the case worker’s affidavit. The case worker averred that the children have been in appellee’s temporary custody since September 22, 2013. 7 The case worker alleged that

the father: "has failed to maintain stable housing for more than three months, he has lived in multiple residences within the past two years and has failed to keep the agency informed of the changes in address; has fa iled to consistently drug screen and has failed to present consistently with negative drug screens when he does screen; has failed to participate in recommended services including drug and alcohol counseling; has failed to c onsistently visit with th e child; and has failed to complete the case plan." {¶ 13} The case worker stated that appellant “has failed to consistently visit with the child, has failed to maintain stab le housing, has continued to abus e illegal substances and she is currently incarcerated at the Ross County Jail.” Th e case worker further asse rted that the parents

have not remedied the conditions that led to the children’s rem oval and that the children cannot

and should not be returned to either parent. He also opine d that placing the children in appellee’s permanent custody is in their best interest. {¶ 14} On January 6, 2016, the guardian ad litem filed a recommendation that the court place the children in appellee’s permanent custody. {¶ 15} On January 14, 2016, the magistrate held a hearing to consider appellee’s permanent custody motions. Appellee presented tw o witnesses, both of w hom testified that the parents failed to comply with the case plan requirements. Greg Parks testified that the father

was referred PRISM Behavioral H ealth Care, but did not follow th rough with a treatment plan.

7 Appellee’s motions allege that the children have been in its temporary custody since September 24, 2013 (the typeface reads, “September 22,” but someone wrote “4“ over the second “2,” so that it reads “24.”ROSS, 16CA3569 & 16CA3570 8 {¶ 16} SOCJFS case worker Terry Hale testified that the case plan required the father to maintain housing for at least three months, to s eek drug and alcohol c ounseling, to maintain sobriety, and to maintain regular contact with children and children services. Hale stated that the father did not comply with the case plan requirements. {¶ 17} Hale explained that for a four-mont h period during late 2014 and early 2015, appellant was doing “incredibly well,” but she relapsed in Febr uary 2015. Hale testified that appellant was evicted from her apartment that ch ildren services helped her obtain and had been living with her boyfriend in a motel, until she was arrested in July or August. Hale stated that appellant remains incarcerated. {¶ 18} Hale testified that the children have been in appellee’s custody since September 24, 2013, and that they are in an adoptable placement. Hale stated that appellee did not find any

suitable relatives who could care for the children. Hale indicated that the father had not

remedied the conditions that led to the childre n’s removal, and that he did not believe the

children could be reunified with e ither appellant or their father. {¶ 19} At the end of the hearing, the magistrate requested that the parties submit written arguments. In its written argument, appellee asserted that the children had been in its temporary custody for more than twelve out of the past tw enty-two months and that placing the children in its permanent custody would be in their best interests. Appellee’s written argument, like the evidence that it presented at the permanent cust ody hearing, focused pr imarily upon the parents’ lack of progress on the case plan over the two-year period. {¶ 20} In her written argument, appellant agreed that the children have been in appellee’s temporary custody for more than twelve out of the past twenty-two months. She asserted,ROSS, 16CA3569 & 16CA3570 9 however, that clear and convincing evidence does not support a finding that placing the children in appellee’s permanent custody is in their best interests. Appellant argued that she “has

maintained consistent contact with the childre n.” She recognized that although she had not completed the case plan, she claims that the evidence shows that she made progress. She admitted that she is incarcerated with an uncertain release date. Appellant further agreed that she “had housing issues in the past,” but “she did have substantial peri ods of time during which

she maintained a stable household.” {¶ 21} The guardian ad litem's written statement related his belief that placing the children in appellee’s permanent custody was the only option. The guardian ad litem thus opined that placing the children in appellee’s permanent custody woul d be in their best interests. {¶ 22} On March 21, 2016, the magistrate issued decisions concerning appellee’s permanent custody motions. The magistrate f ound that the children have been in appellee’s custody since September 2013 and thus determined that the children have been in appellee’s temporary custody “for twelve or more months of a consecutive twenty-two month period.” The magistrate additionally f ound that the father (1) “continues to have an untreated drug addiction,” (2) “failed to complete drug c ounseling services as directed,” (3) “continues to test positive for illegal drugs,” and (4) has “not ma intained stable housing” that is suitable for the children. The magistrate found that a ppellant (1) continues “to suffer fro m untreated drug addiction,” (2) “refused to comply with drug addiction counse ling services,” (3) “was convicted of Felony

Abduction while these matters were pending,” (4) “is currently incarcerated in CBCF,” and (5) “failed to maintain suitable housing for the childre n.” The magistrate further found that (1) the children need a stable, permanent placement, (2) neither parent can provide the children with aROSS, 16CA3569 & 16CA3570 10 legally secure permanent placement, and (3) the children are adoptable. The magistrate also observed that the children’s guardian ad lite m recommended that the children be placed in appellee’s permanent custody. The magistrate thus concluded: “Based on the totality of the circumstances the Magistrate fi nds by clear and convincing evid ence that Permanent Custody is

in the best interest of the children.” Although the magistrate found that permanent custody is in the children’s best interests, the magistrate’s decisions did not specifically order that the children be placed in appellee’s permanent custody. {¶ 23} On the same date as the magistrate’s decisions, the trial court issued journal entries regarding appellee’s permanent custody motions. The court first noted that it “consider[ed]” the magistrate’s decision, then included findings and the conclusion that “Permanent Custody is in the best interest of the children.” Like the magistrate’s decisions, the trial court’s decisions did not specifically order that the children be placed in appellee’s permanent custody. {¶ 24} On August 12, 2016, the magistrate file d “nunc pro tunc” decisions that essentially repeated his Marc h 21, 2016 decisions, but added the following: “Accordingly, it is hereby recommended that the child shall be placed in the permanent custody of [appellee] and that [the parents’] parental righ ts shall be permanently terminated and severed.” On that same date, the trial court also entere d identical “nunc pro tunc” journa l entries. The court also (1) added language to indicate that it “approved and adopted” the magi strate’s decisions, (2) added language similar to the magistrate’s: “Accordingly, it is hereby Ordered that the child shall be placed in the permanent custody of [appellee] and that the [parents’] rights shall be permanently

terminated and severed.”ROSS, 16CA3569 & 16CA3570 11

{¶ 25} On September 12, 2016, appellant filed notices of appeal from the court’s August 12, 2016 nunc pro tunc entries. On September 22, 2016, after appe llant filed her notices of appeal, the trial court entered decisions that indicated that the court “consider[ed]” the magistrate’s decisions regarding the February 14, 2014 adjudicatory hearing and that adjudicated the children dependent. On that same date, th e magistrate and the trial court each entered additional “nunc pro tunc” decisions that gran ted appellee permanent custody of the children.

A FINAL, APPEALABLE ORDERS {¶ 26} Before we consider appellant ’s assignments of error, we first must address some procedural matters to ascertain whether we have jurisdiction to hear the appeal. Courts of appeals have jurisdiction to “affirm , modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district.” Section 3(B)(2), Article IV, Ohio Constitution. “As a result, ‘[i]t is well-establishe d that an order [or judgment] must be final before it can be reviewed by an a ppellate court. If an order [or judgment] is not final, then an appellate cour t has no jurisdiction.’” Gehm v. Timberline Post & Frame , 112 Ohio St.3d 514, 2007–Ohio–607, 861 N.E.2d 519, ¶14, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. , 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). “An order is a fi nal, appealable order only if it meets the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B).” Lycan v. Cleveland , 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶21, citing Gehm at ¶15. In the event that the parties involved in the appeal do not raise this jurisdictional issue, then the appellate court must sua sponte raise it. Chef Italiano Corp. v. Kent State Univ. , 44 Ohio St.3d 86, 541 N.E.2d 64ROSS, 16CA3569 & 16CA3570 12 (1989), syllabus; Whitaker-Merrell v. Geupel Co. , 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972). R.C. 2505.02(B) defines the characteristics of a final order and states in relevant part: An order is a final order that may be re viewed, affirmed, modi fied, or reversed, with or without retrial, when it is one of the following: * * * * (2) An order that affects a substantial ri ght made in a special proceeding or upon a summary application in an action after judgment[.] * * * * {¶ 27} “Actions in juvenile court that are brought pursuant to statute to temporarily or permanently terminate parental ri ghts are special proceedings, as such actions were not known at

common law.” In re Adams , 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, ¶43, citing In re Murray, 52 Ohio St.3d 155, 161, 556 N.E.2d 1169 (1990) (Douglas, J., concurring in syllabus and judgment). Additiona lly, “it is manifest that parental custody of a child is an important legal right protected by law and, thus, co mes within the purview of a ‘substantial right’ for purposes of applying R.C. 2505.02.” In re Murray , 52 Ohio St.3d at 157. Therefore, an order that deprives a parent of custody is a final order under R.C. 2505.02(B)(2). {¶ 28} “Generally, an appeal of a judgment or final order must be filed within 30 days from the entry of the judgment or order.” In re H.F., 120 Ohio St.3d 499, 2008–Ohio–6810, 900 N.E.2d 607, ¶10; see App.R. 4(A). This rule is jurisd ictional, and absent exceptions not applicable here, we cannot consider any appeal filed outside of this thirty-day time period. State v. Blankenship, 4th Dist. Ross No. 13CA3364, 2013–Ohio–5261, ¶4; accord Robirds v. Stidham , 4th Dist. Scioto No. 16CA3749, 2016-Ohio-5081, 2016 WL 3981020, ¶9; In re W.P.P. , 4th Dist. Washington No. 15CA34, 2016-Ohio-345, 2016 WL 527077, ¶9.ROSS, 16CA3569 & 16CA3570 13 {¶ 29} In the case at bar, the trial court entered three sets of decisions concerning appellee’s permanent custody motions . Appellant filed noticed of a ppeal within thirty days of the court’s second set of decisions, i.e., the Au gust 2016 nunc pro tunc decisions. To determine whether appellant timely appealed, we must examine the trial court’s decisions to ascertain at what point the trial cour t entered final orders. {¶ 30} The first decisions (March 2016) determin ed that permanent custody is in the

children’s best interests. The decisions did not, however, expressly grant appellee permanent custody or otherwise order that the children be placed in appellee’s permanent custody. Additionally, as of March 2016, th e trial court had not adopted the magistrate’s February 2014 dependency adjudication and entere d its own independent and separate judgment that adjudicated the children dependent. {¶ 31} In August 2016, the trial cour t entered “nunc pro tunc” d ecisions that essentially repeated the March 2016 decisions, but the court added language that expressly indicated it “adopted” the magistrate’s decision. The court al so added a statement of the relief granted: “Accordingly, it is hereby Ordered that the child shall be placed in the permanent custody of [appellee] and that the [parents’] rights shall be permanently terminated and severed.” As of August 2016, the court still had not adopted the magistrate’s Fe bruary 2014 dependency adjudication and entered its own i ndependent and separate judgment that adjudicated the children dependent. {¶ 32} After appellant filed her notices of appeal, the trial court apparently recognized that it had not adopted the magistrate’s decisi ons adjudicating the children and entered its own separate and inde pendent judgment adjudicating the ch ildren dependent. Thus, on SeptemberROSS, 16CA3569 & 16CA3570 14 22, 2016, the court entered two decisions - one adjudicated the children dependent, and the other essentially repeated its Au gust 2016 “nunc pro tunc” decisions. {¶ 33} Accordingly, to determine whether we have jurisdiction to consider the appeal, we initially must ascertain whether the trial court’s August 2016 “nunc pro tunc” decisions could be

final orders in the absence of decisions adjudicating the children dependent. If they could be,

then we would need to determine whether the August 2016 “nunc pro tun c” decisions effected substantive changes that created new rights, or whether the decisions simply corrected what the court actually decided but failed to carry over to its March 2016 decisions. If the August 2016 decisions could not be final, a ppealable orders in the absence of decisions adjudicating the children dependent, then we would need to de termine whether the tria l court’s September 22, 2016 decisions adjudicating the children depende nt cured the defect, which then renders appellant’s notices of appeal premature. We star t by examining the first of these questions, i.e., whether the trial court’s August 2016 “nunc pro tunc” decisions could be final, appealable orders in the absence of decisions adj udicating the children dependent.

B

VOID OR VOIDABLE JUDGMENTS {¶ 34} Our inquiry regarding whether the tr ial court’s August 2016 nunc pro tunc decisions are final, appealable orders in the absence of judgments adjudicating the children dependent focuses upon whether a trial court’s failure to adopt a magistrate’s adjudication renders the court’s subsequent dis positional order void or voidable. [W]hether a judgment is void or voi dable generally depends on “whether the Court rendering the judg ment has jurisdiction.” Cochran’s Heirs’ Lessee v. Loring , 17 Ohio 409, 423 (1848).ROSS, 16CA3569 & 16CA3570 15

“The distinction is between the lack of power or want of jurisdiction in the Court, and a wrongful or defective executi on of power. In the first instance all acts of the Court not having jurisdiction or power are void, in the latter voidable only. A Court then, may act, first, wit hout power or jurisdiction; second, having power or jurisdiction, may exercise it wrongfu lly; or third, irregularly. In the first instance, the act or judgment of the Cour t is wholly void, and is as though it had not been done. The second is wrong and mu st be reversed upon error. The third is irregular, and must be corrected by motion.” Id. at 423, quoting Paine’s Lessee v. Mooreland, 15 Ohio 435, 445 (1846). Thus, a judgment is generally void only when the court rendering the judgment lacks subject-matter jurisdiction or jurisdicti on over the parties; however, a voidable judgment is one rendered by a court that lacks jurisdiction over the particular case due to error or irregularity. In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, at ¶10, 15.

Miller v. Nelson-Miller , 132 Ohio St.3d 381, 2012-Ohio-2845, 972 N.E.2d 568, ¶12. {¶ 35} Despite the apparent clarity of the voi d-voidable distinction, the Ohio Supreme Court held that an exception applies in criminal cases: “a sentence that is not in accordance with statutorily mandated terms is void.” State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶8. Thus, “‘[a] sentence that does not include the statutor ily mandated term of postrelease control is void, is not precluded from appe llate review by princi ples of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.’” State v. Billiter , 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶7, quoting Fischer at paragraph one of the syllabus. [I]f a trial court imposes a sentence that is unauthorized by law, the sentence is void. “‘The effect of deter mining that a judgment is void is well established. It is as though such proceed ings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment.’”ROSS, 16CA3569 & 16CA3570 16

Billiter at ¶10, quoting State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶12, quoting Romito v. Maxwell, 10 Ohio St.2d 266, 267–268, 227 N.E.2d 223 (1967). “But if the sentencing court had jurisdiction and statutory authority to act, sentencing errors do not render the sentence void, and the sentence can be set aside only if successfully challenged on direct appeal.” State v. Williams , 2016-Ohio-7658, ¶23, citing Fischer at ¶6–7; State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶28. {¶ 36} The Ohio Supreme Court has thus far “determined that a sentence is void when the trial court fails to impose a statutorily mandated term of postrelease control; when it fails to include a mandatory driver’s license suspension in the offender’s sentence; and when it fails to include a mandatory fine in the sentence.” Williams , 2016-Ohio-7658, ¶21, citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶18, 25, 36, State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, paragraph one of the syllabus, and State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, syllabus. {¶ 37} We extended the void sentence doctrine to a juvenile court’s disposition in a delinquency matter. In re J.C. , 4 th Dist. Ross No. 15CA3510, 2016-Ohio-5362; In re G.S. , 4 th Dist. Pike No. 14CA852, 2015-Ohio-1285. In G.S. , the juvenile appealed the trial court’s decision that revoked his community control and imposed a suspended commitment to the Department of Youth Services . Although the magistrate ha d adjudicated the juvenile delinquent, the trial c ourt never adopted the magistrate ’s delinquency adjudication. We

determined that the tria l court’s failure to adopt the magistrate’s deli nquency adjudication meant that it could not enter a dispositi onal order. We explained:ROSS, 16CA3569 & 16CA3570 17 Under Juv.R. 40(D)(4)(a) a magistrate’s decision is not effective unless the trial court adopts it. Thus, a magistrate’s delinquency ad judication is of no effect unless and until the tria l court adopts it. In re C.B., 2nd Dist. Montgomery No. 23615, 2010-Ohio-2129, ¶34. “[M]agistrate’s decisions * * * have no adjudicative force or effect, regardless of the findings or conclusions contained therein, unless and until th e court adopts them.” Roe ex rel. Roe v. Heap, 10th Dist. Franklin No. 03AP–586, 2004–Ohio–2504, ¶36; accord In re P.S., 10th Dist. Franklin No. 07AP–516, 2007–Ohio–6644. A court cannot “consider matters relating to dis position” until “there has been an adjudication.” Giannelli and Sa lvador, Ohio Juvenile Law, Section 19.1 (2014). This means that until a trial court adopts a magist rate’s delinquency decision, the trial court lacks authority to consider matters rela ting to disposition. Thus, a dispositional order en tered before the court adopt s the magistrate’s * * * adjudication is void, as being contrary to law. See State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, ¶22, 23; State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, ¶27 (“A void [judgment] is one that a court imposes despite lacking * * * the authority to act.”); In re C.W., 2013–Ohio–2483, 991 N.E.2d 1167, (4th Dist.) (“If a juvenile court im poses a sanction that is unauthorized by law, then that sanction is void.”), citing State v. Billiter, 134 Ohio St.3d 103, 2012–Ohio–5144, ¶ 10. See, also In re Brown, 9th Dist. Medina App. No. 3096–M (Feb. 28, 2001), 2001 WL 196578 (stating that trial court dispositional order is invalid until court entered adjudication order). “‘The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment.’” Billiter at ¶10, quoting State v. Bezak, 114 Ohio St.3d 94, 2007–Ohio–3250, 868 N.E.2d 961, ¶12, quoting Romito v. Maxwell, 10 Ohio St.2d 266, 267–268, 227 N.E.2d 223 (1967). When a trial court issu es a judgment without authority to do so, the court of appeals may vacate the order and dismiss an appeal from that order. Painter & Pollis, Ohio Appe llate Practice (2014–2015 ed.), Section 2:1 and fn. 7. See also Fifth Third Mtge. Co. v. Rankin, 4th Dist. Pickaway No. 11CA18, 2012–Ohio–2804, ¶9; State v. Clay, 4th Dist. Lawrence No. 11CA23, 2013–Ohio–4649, ¶76 (noting that an appellate court has inherent authority to vacate a void judgment); Infinite Sec. Solutions, L.L.C. v. Karam Properties I, Ltd., 6th Dist. Lucas No. L–12–1313, 2013–Ohio–4415, ¶24 (stating that void judgment is not a fina l, appealable order); State v. Bedford, 184 Ohio App.3d 588, 2009–Ohio–3972, 921 N.E.2d 1085 ¶11 (9th Dist.) (observing that void judgment is not a final, appealable order). “A court has inherent power to vacate a void judgment because such an order simply recognizes the fact that the judgment was always a nullity.” Cincinnati School Dist. Bd. of Ed. v. Hamilton Co. Bd. of Revision, 87 Ohio St.3d 363, 368, (2000), citing Van DeRyt v. Van DeRyt, 6 Ohio St.2d 31, 36, 35 O.O.2d 42, 215 N.E.2d 698 (1966).ROSS, 16CA3569 & 16CA3570 18 Id. at ¶17-19. {¶ 38} Thus, In G.S. we held that in the absence of a trial court judgment (and not merely a magistrate’s decision) adjudica ting the juvenile delinquent, the tr ial court’s dis positional orders

were void. {¶ 39} In the case at bar, in February 2014 th e magistrate adjudicated the children dependent. In September 2016, mo re than two years later, the trial court adopted the magistrate’s decisions adjudicating the childre n dependent and entered its own separate and independent judgments that adj udicated the children dependent. 8 If we were to apply the G.S. logic to the case at bar, any dispositional orde rs entered between Febr uary 2014 and September 2016 would appear to be void. We do not believe, however, that the G.S. logic applies to abuse, neglect, and dependency cases. In stead, because our holding in G.S. was based upon the Ohio Supreme Court’s criminal sentencing cases, we limit G.S. to juvenile delinquency cases. As we explain below, we do not believe that the rationale for extending criminal protections to delinquency cases also applies to permanent custody cases. {¶ 40} We recognize that “parents’ interest in the care, custody, and control of their children ‘is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.’” In re B.C. , 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶19, quoting Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Thus, “parents who are ‘suitable’ have a ‘paramount ’ right to the custody of their children.” Id. ,

8 We note that the trial court’s April 1, 2014 entries recited th at “[i]t is the finding of the Magistrate that [the children we re] previously adjudicated” dependent. The co urt did not, however, state that it, as o pposed to the magistrate, adjudicated the ch ildren delinquent.ROSS, 16CA3569 & 16CA3570 19 quoting In re Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing Clark v. Bayer, 32 Ohio St. 299, 310 (1877); In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990). Additionally, the Ohio Supreme Cour t has described the permanent te rmination of parental rights as “‘the family law equivalent of the death penalty in a criminal case.’” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Smith , 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6 th Dist. 1991). Thus, courts must afford parent s facing the permanent termination of their parental rights “‘every procedural and substantive protection the law allows.’” Id. , quoting

Smith at 16; accord B.C. at ¶19. {¶ 41} Affording parents “‘every procedural and substantive protection the law allows’” does not, however, mean that parents facing ter mination of parental rights share the same procedural and substantive protection the law affords criminal defendants and juveniles alleged to be delinquent. In B.C. , for instance, the Ohio Supreme Court rejected the argument that “due process requires that a parent whos e parental rights have been terminated be afforded the right to a delayed appeal from the judgment of termination, comparable to the delayed appeal afforded to certain defendants by App.R. 5(A).” Id. at ¶1. {¶ 42} We therefore believe that limiting G.S. to cases involving juvenile delinquents makes sense in light of the Ohio Supreme Court’s refusal to find that the rights afforded criminal defendants and juvenile de linquents are coextensive with parents facing the loss of their parental rights. 9 Moreover, we do not believe that an abuse, neglect, or dependency adjudication carries

9 Additionally, we note that the Ohio Supreme Court’s recent Williams decision may render our holdings in J.C. and G.S. suspect. The Williams court seems to have limited its prior decisions to void sentences, meaning sentences that contradict the express punishments permitted in the criminal sentencing statutes, and not necessarily to sentences that contradict statutory procedure

. Id. at ¶22ROSS, 16CA3569 & 16CA3570 20 the same inherently criminal aspects of a juvenile delinquency adjudication. In re A.G. , 2016-Ohio-3306, — N.E.3d —, 9, quoting Breed v. Jones , 421 U.S. 519, 530-351, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (stating that “t here ‘is little to distinguish’ an adjudicatory hearing in a juvenile delinquency case from a traditional criminal prosecution”). An abuse, neglect, or dependency adjudication, in itself, does not necessarily lead to a te rmination of parental rights.

See R.C. 2151.353(A) (outlining dis positional alternatives for a buse, neglect, and dependency adjudications, only one of which is permanen t custody). A delinquency adjudication, on the other hand, may result in a juven ile being committed “to the legal cu stody of the department of youth services for secure confinement” and being subject to other “rehabilitative” consequences.

See R.C. 2152.01(A), 2152.16, and 2152.19. Thus, although both proceedings are civil in nature, a juvenile charged with delinquency is entitled to “‘num erous constitutional safeguards [that] normally [are] reserved for criminal prosecutions.’” State v. Hand , 2016-Ohio-5504, ¶15, quoting State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 26. Additionally, “[t]he criminal aspects of juve nile delinquency proceedings require greater constraints on juve nile courts.” State ex rel. Jean Baptiste v. Kirsch , 134 Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶29, quoting In re Cross , 96 Ohio St.3d 328, 2002-Ohio-4183,

(explaining that “courts may impose sentences only as prov ided by statute”). Yet nearly in the same breath, the Williams court continued: “‘No court has the authority to impose a sentence that is contrary to law,’ [Fischer] at ¶23, [and] when the trial court disregards statutory mandates, ‘[p]rinciples of res judicata, including the doctrine of the law of the case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by collateral attack.’ Id. at ¶ 30.” Id. ; see id. at ¶2 (stating that “[a] court only has authority to impose a sentence that conforms to law”). The problem, as we see it, is what the phrase, “contrary to law,” means. As we held in G.S. and J.C. , a trial court’s delinquency dispositional order appears “contrary to law,” in the absence of a proper delinquency adjudicatio n. Under Williams , however, the phrase “contrary to law,” seems to mean contrary to the specific sentencing guidelines set forth in the criminal sentencing statutes. Until the Ohio Supreme Court further clarif ies the meaning of “contrary to law,” however, trial courts wo uld be well-advised to fully comply with Juv.R. 40.ROSS, 16CA3569 & 16CA3570 21 774 N.E.2d 258, ¶25. Thus, “a juvenile court’s jurisdiction in a delinquency case is more limited than in an abuse, neglect, or dependency case.” Id. at ¶31. The Ohio Supreme Court has not extended the same constitutional safeguards, “constraints,” and jurisdictional limitations that apply in delinquency proceedings to perm anent custody proceedings involving abused, neglected, or dependent children. Cf. B.C. {¶ 43} Furthermore, voiding orders in abuse, neglect, and dependency cases due to failures to comply with Juv.R. 40 “would inject furt her uncertainty into the process of placing the child in a permanent home and postpone resoluti on of custody, contrary to the child’s best

interest.” Id. at ¶24. Voiding orders could result in delays and prolonged limbo for the child, and “‘[t]here is little that can be as detrimental to a child’s sound development as uncertainty

over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged.’” Id. at ¶20, quoting Lehman v. Lycoming Cty. Children’s Servs. Agency , 458 U.S. 502, 513–514, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). {¶ 44} Additionally, holding that all orders th at do not comply with Juv.R. 40 are void has “disastrous implications.” 10 Painter and Pollis, Ohio A ppellate Practice, Section 2.3.

10 Painter and Pollis explain:

It is highly likely that the archives of the 88 courts of common pleas and the even-more-numerous municipal courts in Ohio contain tens of thousands of trial-court orders that technica lly are not final because of defective language purporting to rule on objections or to adopt a magistrate’s decision. Years or even decades later, one of the parties could come forward to demand a truly fi nal order and then begin the appellate process long after the case was thought to have been resolved. That result has disastrous implications, and there is reason to suspect that the Ohio Supreme Court would not endorse it.

Id.

, citing Miller v. Nelson-Miller, supra

.ROSS, 16CA3569 & 16CA3570 22 Consequently, we do not be lieve that the trial cour t’s failure to adopt th e magistrate’s decision and to adjudicate the children dependent un til September 2016 voids all prior dispositional

orders. Cf. Miller v. Nelson-Miller, supra (determining that trial judge’s delegation of signing divorce decree to magistrate and failure to sign divorce decree in accordance with Civ.R. 58 does not render decree void); In re J.J. , 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851 (concluding that juvenile court not divested of subject matte r jurisdiction in neglect and custody proceeding even though magistrate exceeded authority by transferring case to a visiting judge). Rather, upon a timely appeal, the prior dispositional orders would have been voidable. Thus, the trial court’s August 2016 decisions granting appe llee permanent custody of the children are not void, but merely voidable. Because the decisi ons are not void, they could constitute final, appealable orders under appropria te circumstances, which is th e next question we consider.

C

AUGUST 2016 NUNC PRO TUNC DECISIONS {¶ 45} The next part of our analysis involve s whether the August 2016 nunc pro tunc decisions are final, appealable orders. {¶ 46} “It is elementary that courts possess inherent common-law power to enter judgments or orders nunc pr o tunc in proper cases.” Natl. Life Ins. Co. v. Kohn , 133 Ohio St. 111, 113, 11 N.E.2d 1020 (1937). “The general purpose of such an entry is to record a prior but

unrecorded act of the court.” Id. “[T]he power to make nunc pro tunc entries is restricted ordinarily to the subsequent recording of judici al action previously and actually taken. It is a simple device by which a court may ma ke its journal speak the truth.” Id. ; accord State ex rel. Fogle v. Steiner , 74 Ohio St.3d 158, 163-164, 656 N.E.2d 1288 (1995). A nunc pro tunc entryROSS, 16CA3569 & 16CA3570 23 “‘speaks the truth’ by correcting a judicial record that fails to show an order or a judgment of the court because the order or judgment was not recorded at all in the first instance.” State v. Breedlove , 46 Ohio App.3d 78, 81, 546 N.E.2d 420 (1st Di st.1988). “[N]unc pro tunc entries are limited in proper use to reflecting what the court actually decided, not what the court might or

should have decided or what th e court intended to decide.” State ex rel. Fogle v. Steiner , 74

Ohio St.3d at 164. {¶ 47} “[T]he function of a nunc pro tunc order is, essentially, clerical: it is to record officially an action or actions of a cour t actually taken but not duly recorded.” Breedlove , 46 Ohio App.3d at 81 citing Helle v. Pub. Util. Comm. , 118 Ohio St. 434, 161 N.E. 282 (1928);

Webb v. Western Reserve Bond & Share Co. , 115 Ohio St. 247, 153 N.E. 289 (1926); Reinbolt v.

Reinbolt , 112 Ohio St. 526, 147 N.E. 808 (1925). “Errors subject to correction by the court include a clerical error, mistake, or omission that is mechanical in nature and apparent on the

record and does not involve a le gal decision or judgment.” Lester at ¶18; accord State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263. In general, a clerical mistake is “‘the type of error identified with mistakes in transcription’” rather than with any legal decision or conclusion. Dentsply Internatl., Inc. v. Kostas , 26 Ohio App.3d 116, 118, 498 N.E.2d 1079 (8 th Dist. 1985), quoting In re Merry Queen Transfer Corp. , 266 F.Supp. 605, 607 (E.D.N.Y. 1967). Stated another way, clerical errors consist of “blunders in execution.” Rowell v. Smith, 186 Ohio App.3d 717, 930 N.E.2d 360, 2010–Ohio–260 (10 th Dist.), ¶15, quoting Wardeh v. Altabchi, 158 Ohio App.3d 325, 815 N.E.2d 712, 2004–Ohio–4423 (10 th Dist.), ¶10, quoting Kuehn v. Kuehn , 55 Ohio App.3d 245, 247, 564 N.E.2d 97 (12 th Dist. 1988). {¶ 48} A trial court may not use a nunc pro tunc entry to effect “[s]ubstantive changes inROSS, 16CA3569 & 16CA3570 24 judgments, orders, or decrees.” Nichols v. Nichols, 2013–Ohio–3927, 997 N.E.2d 1262 (10th Dist.), ¶12, citing Thurston v. Thurston, 10th Dist. Franklin No. 02AP–555, 2002–Ohio–6746.

“A substantive mistake consists of instances wh ere the court changes its mind, either because it made a legal or factual mistake in making its original t hought, [or because on second thought] it

has decided to exercise its disc retion in a different manner.” Lakhi v. Healthcare Choices & Consultants, LLC, 10th Dist. Franklin No. 06AP–806, 2007–Ohio–4127, ¶36 (internal quotations omitted); accord Dickerson v. Cleveland Metro. Hous. Auth. , 8th Dist. Cuyahoga No. 96726, 2011-Ohio-6437, 2011 WL 6287991, ¶11. {¶ 49} Because a proper nunc pro tunc entry does not affect substantive rights but merely

corrects a clerical or m echanical error, a proper nunc pro tunc entry does not give rise to a new final order for purposes of appeal. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, syllabus (“A nunc pro tunc judgment en try issued for the sole purpose of complying with Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new final order from which a new appeal may be taken”). “‘Nunc pro tunc ’ means ‘now for then’ and is commonly defined as ‘[h]aving retroactive legal effect through a court’ s inherent power.’ Black’s Law Dictionary (9th Ed.2009) 1174. Therefor e, a nunc pro tunc entry by its very nature applies retrospectively to the judgment it corrects.” Id. at ¶19. Thus, proper nunc pro tunc decisions do not constitute final, appealable orders. State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶31 (stating that nunc pro tunc entry “does not create a new final, appealable order”). Nor do they “restart the clock” for purposes of filing a timely appeal.

State v. Damron , 4 th Dist. Scioto No. 10CA3375, 2011-Ohio-165, ¶10; accord State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 943 N.E.2d 1010, 2011–Ohio–229, ¶15, quoting State v.ROSS, 16CA3569 & 16CA3570 25 Yeaples , 180 Ohio App.3d 720, 2009-Ohio-184, 907 N.E.2d 333 (3 rd Dist.), ¶15 (stating that “‘[a] nunc pro tunc entry is the procedure used to correct clerical errors in a judgment entry, but the entry does not extend the time within which to file an appeal, as it relates back to the original judgment entry’”). Only when the trial court changes a matter of substance or resolves a genuine ambiguity in a judgment previ ously rendered should the period within which an appeal must be taken begin to run anew. Perfection Stove Co. v. Scherer (1929), 120 Ohio St. 445, 449, 166 N.E. 376; Aetna Life & Casualty v. Daugherty (Apr. 21, 1983), Cuyahoga App. No. 45368, unreported. The relevant inquiry is whether the trial court, in its second judgment entr y, has disturbed or revised legal rights and obligations which by its prior judgment had been settled with finality. See F.T.C. v. Minneapolis & Honeywell Co. (1952), 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245.

Soroka v. Soroka , 8 th Dist. Cuyahoga No. 62739 (June 17, 1993) accord In re J.R. , 8th Dist. Cuyahoga No. 92957, 2009-Ohio-4883, 2009 WL 2964368, ¶¶10-11. {¶ 50} In the case sub judice, appellant recognizes that she filed her notices of appeal within thirty days of the tria l court’s “nunc pro tunc” decisions and that proper nunc pro tunc decisions are not appealable. Appellant claims, however, that the trial court’ s nunc pro tunc decisions made “substantial and substantive chan ges” to its March 2016 decisions by explicitly ordering that the children be placed in appe llee’s permanent custody and by terminating appellant’s parental rights. Appe llant thus asserts that the August 2016 decisions give rise to her right to appeal. {¶ 51} In J.R. , the court confronted a similar issue and determined that the trial court’s nunc pro tunc entry did not substantively change its original decision when the nunc pro tunc entry added language indicating that the court granted the children services agency’s permanent custody motion and terminated the a ppellant’s parental rights. In J.R. , in June 2004, the courtROSS, 16CA3569 & 16CA3570 26 entered a decision that found “a grant of permanent custody is in the child’s best interest.” Id. at ¶5. In February 2009, the court entered a nunc pr o tunc decision that stated: “The Motion to Modify Temporary Custody to Permanent Custody is granted and the parental rights of [the children’s parents] are terminated.” Id. at ¶8. The children’s mother appealed from the court’s February 2009 nunc pro tunc decisi on. The appellate cour t determined that th e court’s February 2009 nunc pro tunc decision did not change a matter of substance or resolve a genuine ambiguity and thus, did not create a right of appeal. The court thus concluded that the time for the mother to appeal the trial court’s J une 2004 decision began to run when the court entered the June 2004 decision, and not when it filed the February 2009 nunc pro tunc decision. The court noted that a nunc pro tunc decision “does not extend the deadlin e for filing an appeal; it relates back to the date of the original entry.” Id. at ¶11. {¶ 52} The appellant nonetheless asserted that the June 2004 decision “did not conclusively terminate her pare ntal rights,” but instead, “t he February 2009 entry actually terminated her parental rights and revised the rights enumerated in the June 2004 entry.” Id. at ¶12. The appellate cour t disagreed. The court recited the trial court’s June 2004 entry, which

stated: “This matter came on for hearing this 2nd day of June, 2004 * * * upon the motion for permanent custody as to the children [J.R. and A.A.] and upon the motion to modify temporary custody to Planned Permanent Living Arrangement as to the child [P.A.] * * *. The order heretofor[e] made committing children to the temporary custody of CCDCFS is now terminated. * * * In Re: [A.A. and J.R.]: * * * the Court finds by clear and convincing evidence that a grant of permanent custody is in the best interests of the child and the children cannot be placed with one of the children's paren’s within a reasonable period of time or should not be placed with either parent. The Court further finds that: The ch ildren are abandoned. The children areROSS, 16CA3569 & 16CA3570 27 orphaned and there are no relatives of the children who are able to take permanent custody. * * * The children [have] been in temporary custody of a public children services agency or private child placing agency under one or more separate orders of disposition for twelve or more mont hs of a consecutive twenty-two month period. The Court further finds that: Following the placement of the children outside the children’s home and notwithst anding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the children to be placed out side the home, the parents have failed continuously and repeatedly to substan tially remedy the conditions causing the children to be placed outside the childre n’s home. The chronic mental illness, chronic emotional illness, mental retard ation, physical disability, or chemical dependency of the parent th at is so severe that it makes the parent unable to provide an adequate permanent home for the children at the present time and, as anticipated, within one year. The parent committed any abuse against the children, caused the children to suffer any neglect, or allowed the children to suffer any neglect between the date that the original complaint alleging abuse or neglect was filed and the date of the filing of the motion for permanent custody. The parent has demonstrated a lack of commitment toward the children by failing to regularly support, visit, or co mmunicate with the children when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the children. The parent has placed the child at substantial risk of harm two or more times due to alcohol or drug abuse and has rejected tr eatment two or more times or refused to participate in further treatment two or more times after a case plan issued requiring treatment of the parent was journalized as part of a dispositional order issued with respect to the children or an order was issued by any other court requiring treatment of the parent. The parent for any reason is unwilling to provide food, clothing, shelte r, and other basic necessities for the children or to prevent the children from suffering physi cal, emotional, or sexual abuse or physical, emotional, or mental neglect. The parent has committed abuse against the children or caused or allowed the children to suffer neglect and the court determines that the seriousness, nature, or likelihood of recurrence of abuse or neglect makes the children’s placement with the children’s parent a threat to the child's safety.”

Id. at ¶12. {¶ 53} Although the trial court’s June 2004 deci sion did not explicitly place the children in the agency’s custody, specifically state that the court granted the agency’s motion forROSS, 16CA3569 & 16CA3570 28 permanent custody, or expressly terminate the mother’s parental rights, the appellate court

nevertheless determined:

Clearly, the June 2004 journal entry ter minated mother’s parental rights, finding that [the child] could not be reunite d with her. The nunc pro tunc entry of February 2009 did not revise her legal righ ts but reiterated that permanent custody was granted, thereby terminating mother’s parental rights, so it relates back to the June 2004 journal entry. Because the court’s underlying substantive

determinations were not di sturbed or revised in the nunc pro tunc order, we conclude that final judgme nt was entered in 2004.

Id. at ¶14. The court additionally noted that the trial court stated during the June 2004 proceeding: “And so I grant permanent custody of [the children].” {¶ 54} Similarly, in the case at bar, the trial court did not explicitly state in its March 2016 decision that it granted appellee permanent custody of the children. That result is, however, readily apparent from the court’s decision. The court noted that the magistrate held a final hearing concerning appell ee’s permanent custody motion. The remainder of the court’s

decision reads: The children in the instant case had been in agency custody for twelve or more months of a consecutive twenty-t wo month period. The children were removed from their father on Septem ber 2013 and have remained in the agency[‘s] custody since. The father of the children continues to have an untreated drug addiction. He has failed to complete dr ug counseling services as di rected. He continues to test positive for illegal drugs, when he can be located to test. Father has, in addition, not maintained stable housing suitable for his children. The mother of the children also ha s continued to suffer from untreated drug addiction throughout. She has refu sed to comply with drug addictionROSS, 16CA3569 & 16CA3570 29 counseling services. She was convicted of Felony Abduction while these matters were pending. She is currently incarcerated in CBCF in addition the mother too [sic] has failed to ma intain suitable housing for these children. The children herein are in need of a stable and permanent placement that cannot be provided by either pare nt. The children are adoptable. The Guardian ad Litem has recomme nded that Permanent Custody be granted. Based on the totality of the circumstances the Court finds by clear and convincing evidence that Permanent Custody is in the best interest of the children herein. {¶ 55} Thus, although the trial court did not sp ecifically state that it granted appellee permanent custody of the children, that result is manifest from its decisions. The court made the findings R.C. 2151.414(B)(1) requires in order to award a children services agency permanent custody of a child. The court found that (1) the children had been in appellee’s custody for more than twelve out of the past twenty-two mont hs (R.C. 2151.414(B)(1)(d)), a nd (2) that permanent custody is in the children’s best interest s (R.C. 2151.414(B)(1)). The court additionally determined that neither parent could provide the children with a stable and permanent home. Thus, even though the court did not explicitly stat e that it granted appellee permanent custody of the children, that result is implicit within the c ourt’s decision. Accordingly, because the court made all necessary findings to s upport an award of permanent custody to appellee, its failure to specify the relief granted was a mechanical error, or a “blunder in execution,” rather than a substantive change to its original decisions. We further observe that the court expressly

indicated that its March 2016 decisi ons were “final, appealable orde rs,” thus evidencing its belief that nothing remained to be determined. 11

11

We recognize that a trial court cannot make an order final an d appealable simply by uttering “final appealable order.” See generally In re Estate of Adkins , 4th Dist. Lawrence No. 16CA22, 2016-Ohio-5602, 2016 WL 4537814, ¶5, citing Ft. Frye Teachers Assn. v. Ft. Frye Local School Dist. Bd. of Edn., 87 Ohio App.3d 840 (4th Dist.1993) (stating that “appellate courts are not bound by a trial court’sROSS, 16CA3569 & 16CA3570 30 {¶ 56} Moreover, whether the trial c ourt did or did not specify that appellant’s parental rights were terminated does not affect our decision that the August 2016 nunc pro tunc entries did not substantively change the court’s March 2016 decisions. By operation of law, a grant of permanent custody to a children services agency terminates the natural parent’s rights. R.C. 2151.011(B)(32) states: “Permanent custody” means a legal status that vests in a public children services agency or a private child placing agency, all parental rights, duties, and obligations, including the right to cons ent to adoption, and divests the natural parents or adoptive parents of all parental rights, pr ivileges, and obligations, including all residual ri ghts and obligations. Thus, language in a trial court’ s permanent custody decision that terminates a parent’s parental rights is not necessary in order to dive st the parent of all parental rights. See In re Sims, 7th Dist. Jefferson No. 02–JE–2, 2002–Ohio–3458 (noting that the effect of permanent custody is to permanently divest the parents of their parental rights). {¶ 57} Consequently, we do not be lieve that the court’s Au gust 2016 entries effected substantive changes to its original decisions. In stead, the court corrected a mechanical error in that the court’s original decisions did not expressly state the relief it granted. 12 The court’s

determination or statement that a judgment constitutes a final appe alable order”). In the case sub judice, we make note of the court’s classification of its decisions as final, appealable orders merely to show that the court believed it had entered final decisio ns regarding appellee’s permanent custody motions and that the August 2016 en tries, therefore, did not substa ntively change the court’s earl ier decisions.

12 If appellant had timely appealed the trial court’s March 2016 decisions, we questioned whether we would have dismissed the appeals for lack of final, appealable orders due to the March 2016 decisions’ failure to expressly state the relief granted. In re A.R. , 4th Dist. Ross No. 07CA3000, 2008-Ohio-4822, 2008 WL 4308281, ¶8, citing Yahraus v. Circleville, 4th Dist. Pickaway No. 00CA04,ROSS, 16CA3569 & 16CA3570 31 August 2016 entries did not change its original decisions, but instead, merely ensured that the record correctly reflected the relief granted. Thus, the August 2016 deci sions did not create a new right of appeal and did not extend the time for appellant to appeal the March 2016 decisions. Accordingly, appellant did not timely a ppeal the trial court’ s March 2016 decisions.

D

SEPTEMBER 2016 DECISIONS {¶ 58} We next consider whether the court’s Se ptember 2016 decisions created a right of appeal and thereby made appellant’s notices of appeal prem aturely filed. See App.R. 4(C) (“A notice of appeal filed after the announcement of a decision, order, or sentence but before entry of the judgment or order that begins the running of the appeal time period is treated as filed immediately after the entry.”). After appellant filed her notices of appeal, the trial court filed two decisions in each case. One adjudicated the children dependent, and the other essentially repeated its August 2016 nunc pro tunc decisions . For the reasons we set forth below, we

believe that the trial court lack ed jurisdiction to enter the Sept ember 2016 entries. Therefore, the September 2016 entries ar e void and not appealable. {¶ 59} “‘[O]nce an appeal is perfected, the tria l court is divested of jurisdiction over

2000-Ohio-2019 (“One fundamental principle of the law of judgments is that in order to terminate an action, the judgment must c ontain a statement of the relief being afforded.”). Even if we had reached this conclusion, Civ.R. 60(A) would have permitted us to gra nt leave in order to permit the trial court to enter nunc pro tunc decisions. Civ.R. 60(A) states: “During the pendency of an appeal, [cl erical or mechanical] mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.” Cf. Ballinger v. Ballinger , 8th Dist. Cuyahoga Nos. 100958, 101074, 101655, 101812, 2015-Ohio-590, 2015 WL 754839, ¶64, citing Doe v. Catholic Charities, 158 Ohio App.3d 49, 2004–Ohio–3470, 813 N.E.2d 977 (8th Dist.), citing Civ.R. 60(A) and App.R. 9(E) (noting that proper nunc pro tunc entries permitted while appeal pending); Ferraro v. B.F. Goodrich Co. , 149 Ohio App.3d 301, 2002-Ohi o-4398, 777 N.E.2d 282, 2002 WL 1972599 (9th Dist.), ¶9-11 (concl uding that trial court retained jurisdiction in order to enter nunc pro tunc entry adding Civ.R. 54(B) language so decision would be a final, appealable order)

.ROSS, 16CA3569 & 16CA3570 32 matters that are inconsistent with the reviewing court’s jurisdiction to reverse, modify, or affirm the judgment.’” State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of

Common Pleas , 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶13, quoting State ex rel. Rock v. School Emp. Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶8. Stated differently, once a case has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas , 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). {¶ 60} Additionally, “the determination as to the appropriateness of an appeal lies solely with the appellate court.” In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶10. Consequently, “a trial cour t judge’s opinion that the order appealed from is not a final, appealable order does not alter the fact that the filing of the notice of appeal divests the trial court of jurisdiction.” State ex rel. Electronic Classroom of Tomorrow at ¶16. Thus, “[a] juvenile judge has no authority to determine the validity or merit of an appeal.” S.J. at ¶10. {¶ 61} In the case at bar, once appellant filed he r notices of appeal, the trial court lost jurisdiction over matters that are inconsistent with our jurisdiction to reverse, modify, or affirm the judgment. The trial court nevertheless entered dependency adjudicati ons and essentially refiled its nunc pro tunc decisions that gran ted appellee permanent custody. We believe, however, that the trial court’s decisions interfered with this court’s authority to consider whether appellant properly invoked our jurisdiction. The trial court apparently entere d its September 2016 adjudication and permanent custody decisions based upon its belief th at its prior orders were void due to the judge’s fa ilure to adopt the magistrate’s 2014 dependency adjudications. The judge’s determination, however, that its prior decisions were voi d interfered with this court’sROSS, 16CA3569 & 16CA3570 33 ability to determine whether appe llant properly invoked th is court’s jurisdiction. Therefore, the trial court’s Septembe r 2016 decisions are void and do not create a new right of appeal.

E

CONCLUSION {¶ 62} The trial court’s Septembe r 2016 entries are void because the trial court lacked authority to determine that its prior orders were void and therefore not a ppealable. The court’s August 2016 decisions did not substantively chan ge the March 2016 decisions and, thus, did not create a new right to appeal. Generally, because a ppellant did not file notices of appeal within thirty days of the trial c ourt’s March 2016 decisions, appella nt’s appeals are untimely. Accordingly, based upon the foregoing reasons, we dismiss these appeals. {¶ 63} Additionally, we wish to point out that even if the issues raised in appellant's assignments of error had been pr operly preserved and presented in this appeal, we would find no merit to those arguments. We believe, after our review of the record, that it is in the children's best interest to grant permanent custody to the agency. This situation is unfortunate and we do not question appellant's sincere de sire to have custody of her ch ildren. However, we agree with the trial court's conclusion that the children's need for legally secure placement could not, in light of the evidence adduced during the trial court proceedings and the children's custodial history, be achieved without the award of permanent custody.

APPEALS DISMISSED.ROSS, 16CA3569 & 16CA3570 34 Harsha, J., concurring in pa rt and dissenting in part: {¶ 64} I readily agree with the majority in limiting the application of the voidness rule in

J.C. & G.S. to delinquency cases. However, I cannot join in their holding that the trial court’s

March 2016 entries constituted fi nal appealable orders. {¶ 65} In my view the court did not issue a final appealable order until August 12, 2016 when it filed entries explicitly ordering an award of permanent custody to the agency. None of the entries prior to August 12, 2016 constituted judg ments because they did not expressly contain a statement of the relief granted. In fact at best, they were simply best-interest findings or a decision that included findings. {¶ 66} A decision indicates what the court finds and intends to impose as a result. A judgment must unequivocally order the relief that court deems appropriate. See Downard v.

Gilliland , 4th Dist. Jackson No. 10CA2, 2011-Ohio-1783, ¶ 11, citing St. Vincent Charity Hosp. v. Mintz , 33 Ohio st,3d 121, 123, 515 N.e.2d 917 ( 1987) Consequently, “a purported judgment that does not specify the relief gran ted does not terminate the action and does not constitute a final appealable order.” Downard at ¶ 10. The judgment entry “must contain clear language to provide basic notice of the parties’ rights, duties, and obligations.” In re

L.J.S. , 4th Dist. Wash. No. 16CA8, 2016-Ohio-8107, ¶ 12. {¶ 67} The March 2016 entries never awarded perm anent custody of the children to the agency and permanently severed parental rights. The trial court merely stated in its March 2016 entries that it found “by clear a nd convincing evidence that Permanent Custody is in the best

interest of the children herei n.” The March 2016 entries did not specify the relief granted and did not contain clear language pr oviding basic notice to the partie s that the court was awardingROSS, 16CA3569 & 16CA3570 35 permanent custody and severing th e parent’s rights to their ch ildren. Thus, they are not final appealable orders, i.e. they did not determine th e action and preclude a judgment in favor of the appellant under R.C.2505.02(B)(1). Moreover, the March 21, 2016 entries did not affect a substantial right in a special proceeding unde r R.C.2505.02(B)(2) because they did not have “immediate consequences,” i.e. they did not unequivocally order the appropriate relief. Those entries merely constituted decisions, or mere best-interest findings. {¶ 68} In my view the final appeal orders in this case occurred on August 12, 2016 when the trial court definitively ordered permanent custody be vested with the agency, thus terminating the appellant’s parental rights. Because the mother filed her notice of appeal from these entries on September 12, 2016 her appeal is timely and we should therefor e address the merits of her assignments of error. I respectfully dissent.ROSS, 16CA3569 & 16CA3570 36

JUDGMENT ENTRY It is ordered that the appeal be dismissed and that appellees rec over of appellants costs

herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court, Juvenile Division, to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appella te Procedure. Hoover, J.: Concurs in Judgment & Opinion Harsha, J.: Concurs in Part & Dissents in Part with Opinion

For the Court

BY: Peter B. Abele, JudgeROSS, 16CA3569 & 16CA3570 37

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.