[Cite as In re Z.S. , 2021-Ohio-118.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTERS OF: Z.S., C.S., and E.S. : JUDGES: : Hon. William B. Hoffman, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 20-CA-00002, 20-CA-00003, : and 20-CA-00004 : : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Juvenile Division, Case Nos. 2018-C-175, 2018-C-176, and 2018-C-177

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: January 19, 2021

APPEARANCES: For Plaintiff-Appellee For Defendants-Appellants

JESSICA MONGOLD STEVEN KINGSOLVER & Perry County Children Services TINA KINGSOLVER, pro se Post Office Box 502 11244 Ridenour Road Lancaster, Ohio 43130 Thornville, Ohio 43076Perry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 2

Baldwin, J. {¶1} Steven Kingsolver and Tina Kingsolver appeal the decision of th e Perry County Common Pleas Court, Juvenile Division granting legal cus tody of C.S., Z.S. and E.S to Sharon Walker and Mark Howland. Appellee is Perry Count y Children’s Services. {¶2} Appellants' statement of the facts and statement of the case ar e both difficult to understand, lack reference to the record and include comment s that are more editorial than expository. While we recognize that appellants are acting pro se, pro se litigants are presumed to have knowledge of the law and correct legal procedu res so that they remain subject to the same rules and procedures to which represented l itigants are bound.

Carskadon v. Avakian , 5th Dist. No. 11 CAG020018, 2011–Ohio–4423, ¶ 33 quoting Kilroy v. B.H.Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996). They are not given greater rights than represented parties, and must bear the consequences of their mistakes. Id. {¶3} Appellants have not provided a transcript of the hearings befor e the trial

court or a statement of the ev idence under App. R.9(C). Although we make some allowances for pro se litigants, we cannot change the fundament al requirement that appellants, as parties asserting that there was an error in the trial court, bear the bur den in the court of appeals to demonstrate error by reference to ma tters made a part of the

record. Knapp v. Edward Laboratories (1980), 61 Ohio St.2d 197, 199. Appellants’ failure to comply with the rules is particularly concerning because thi s is their second appearance before this court on this matter and the same warnin g was included in our prior decision. In the Matter of: Z.S., Perry County No. 18-CA-00018, 2019-Ohio-2859.Perry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 3

{¶4} Appellants’ brief also lacks a cl ear discrimination between wha t occurred prior to the last appeal and what occurred after our remand in In the Matter of: Z.S., supra on July 12, 2019. Without a transcript or a statement of evide nce, it is impossible to determine what occurred after our remand and at the hearing on the motion for legal custody on January 20, 2020. The lack of a transcript or any ag reement regarding the record would normally prevent a review of the assignments of er ror, but we find that the documents within the record allow us to come to a legal conclus ion regarding one critical issue, the violation of the time limit described in R.C. 2151.3 5(B)(1).

STATEMENT OF THE CASE {¶5} On July 25, 2018, Appellee filed a complaint in the trial court seeking temporary custody of five children, including C.S., Z.S. and E. S. An ex parte order was issued on July 25, 2018 and later, on that same date, a shelter care hearing was conducted with Tina Kingsolver in attendance. She denied the al legations of dependency and she and Steven Kingsolver filed a motion requesting appoint ment of counsel. That motion was granted on August 1, 2018 and the adjudication of th e complaint was scheduled for August 29, 2018. {¶6} On August 23, 2018, Tina Kingsolver filed a motion requesting t he appointment of guardian ad litem. On September 5, 2018 the tria l court addressed this motion and stated “[t]he parties agree to an in-camera intervie w, shall occur by Judge Cooperrider.(sic) The in-camera interview shall occur on Octobe r 3rd,(sic) 2018 at 11:30

a.m.”Perry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 4

{¶7} Appellee filed a motion to convert the August 29, 2018 adjudica tory hearing to a pretrial conference and that motion was granted on August 28, 2018. An order issued on the date of the pretrial sched uled the adjudication for Octo ber 3, 2018. {¶8} On October 3, 2018 appellants appeared before the court, with c ounsel, for the adjudicatory hearing on the complaint. The trial court ent ered an order finding the children dependent and scheduling the dispositional hearing for December 19, 2018. Because we have no transcript of the hearing or statement of ev idence, we must conclude that the hearing was conducted in accordance with applicable la w. Knapp, supra. {¶9} On October 26, 2018 the Kingsolvers submitted a written documen t to the court requesting that they be permitted to withdraw their plea admitting the dependency of the children. On November 2, 2018 the Kingsolvers filed a no tice of appeal of the judgment entry of October 3, 2018 finding the children dependen t. On November 6, 2018 counsel for appellant, Tina Kingsolver, filed a motion for leav e to withdraw as counsel and that motion was granted the same day. {¶10} On November 28, 2018 the trial court issued an order that state d as follows:

This matter will come before the court on December 19, 2018 at 10:00 a.m. for an Adjudicatory Hearing. The court hereby accepts the parties(sic) letter requesting the ir admission in open court with counsel present, be accepted. 1 The appeal filed by the Tina Kingsolver and Stephen Kingsolver was DISMISS ED effective November 26, 2018.

1 The record does not contain a “letter requesting their admissi on * * * be accepted.”Perry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 5

{¶11} Filed on the same date as this order were documents from the Un ited States District Court, Southern District of Ohio, Eastern Division dis missing six actions filed by the Kingsolvers and remanding the cases to the Perry County Cou rt of Common Pleas, Juvenile Division because the Federal District Court had no jur isdiction. These documents presumably comprise the dismissed appeal referenced by the tria l court, because the appeal before this court was st ill pending on November 28, 2018

. {¶12} On December 12, 2018 the trial court entered the following orde r:

The court hereby,(sic) cancels the Adjudicatory Hearing schedul ed for December 19, 2018 at 10:00 a.m. The court was advised the p arents Tina and Stephen Kingsolver desired to withdraw their admission . The court had converted the dispositional hearing to an adjudicatory hear ing to benefit the parents. However the parties now wish to continue with thei r appeal. The court will therefore, wait for the decision of the Fifth Di strict Court of Appeals. The adjudicatory hearing on December 19, 2018 at 10:00 a.m., is therefore, CANCELLED.

{¶13} Except for the filing of a case plan and a semi-annual review, no further proceedings took place in the trial court until after the journ alization of our decision in In the Matter of: Z.S., supra

. {¶14} This court issued its decision in In the Matter of: Z.S., supra on July 12, 2019 dismissing the appeal for lack of a final appealable order based upon the lack of aPerry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 6

dispositional order. We remanded the case to the “trial court f or consideration of Appellants' request to withdraw their admission of the allegati on of dependency and further proceedings consistent with this opinion.” Id. at ¶ 14. {¶15} On July 30, 2019 the trial court issued an order scheduling a p retrial for August 28, 2019 and, pursuant to the request of Appellee, an an nual review was scheduled for the same day. The hearing occurred as evidenced b y an order issued by the trial court. The order is a preprinted form with a number of alternatives listed and spaces before each to indicate which alternative has been selec ted to include in the judgment. The following terms in the order of August 28, 2019 were preceded by an “x”:

X There being no objection, the court proceeded with Dispositi on. X The Court asked caseworker from PCCS for recommendation from Agency. X It is ordered that *** Temporary Custody of the child *** sh ould continue

with PCCS until further order of the Court. X Visitation to cont’d as arranged by PCCS X All parties Ordered to comply with PCCS and Case Plan X (Reviewed)/Finalized Child’s Permanency Plan: Temp Custody t o cont’d

w/ PCCS X This is a Final Appealable ORDER X Other: Best interests and reasonable efforts taken by agency , but Court finds it in child’s best interests that Temporary Custody to co nt’d with PCCS

until further order of the Court.Perry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 7

{¶16} On October 30, 2019 Appellee filed a motion asking the court to place the children in the legal custody of Sharon Walker and Mark Howland and to close the case. The court conducted a hearing on the matter on January 22, 2020 and issued a decision granting the motion on January 28, 2020. {¶17} Appellant, Steven Kingsolver filed a timely notice of appeal. {¶18} Kingsolver has included several assignments of error that are d ifficult, if not impossible to interpret. We recognize that Kingsolver is actin g pro se and that he may have been challenged by the complexities of the law. However, as we noted above, the Supreme Court of Ohio has "repeatedly declared that “pro se lit igants * * * must follow the same procedures as litigants represented by counsel.” State ex rel. Gessner v. Vore , 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376, ¶ 5. “ ‘It is we ll established that pro se litigants are presumed to have knowledge of the law and legal p rocedures and that they are held to the same standard as litigants who are represented by counsel.’ ” State ex rel. Fuller v. Mengel , 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quot ing Sabouri v. Ohio Dept. of Job & Family Serv. , 145 Ohio St.3d 651, 654, 763 N.E.2d 1238.

ANALYSIS {¶19} One assignment we can confidently distill from Kingsolver’s bri ef is the contention that the trial court failed to conduct a disposition al hearing within ninety days of the filing of the complaint as required by R.C. 2151.35(B)(1 ). That section mandates that "[t]he dispositional hearing shall not be held more than n inety days after the date on which the complaint in the case was filed." * * * "If the disp ositional hearing is not held within the period of time required by this division, the court, on its own motion or thePerry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 8

motion of any party or the guardian ad litem of the child, shal l dismiss the complaint without prejudice." Rule 34 of the Juvenile Rules of Procedure contains an identical

instruction. {¶20} The Supreme Court of Ohio considered "whether R.C. 2151.35(B)(1 ) requires the dismissal of a case if a juvenile court fails to c onduct a dispositional hearing within 90 days of the filing of a complaint alleging that a chi ld is abused, neglected or dependent" in In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245. The Court held that "R.C. 2151.35(B)(1) does contain an express limitation on a juvenile court's authority for failure to comply with a statutory deadline” and dismissal after expiration of the time limit was mandatory. (Emphasis added.) In re K.M ., supra at ¶ 23. The court added that the language of the statute makes clear the intent o f the legislature to impose a mandatory deadline, that the statute does not permit implied waiver of the deadline and the procedural requirements of the Juvenile Rules cannot supers ede the statutory mandate requiring dismissal of the complaint. Id . at ¶¶ 26,27. The cases in In re K.M. were remanded to the juvenile court to enter orders of dismissa l without prejudice. Id. at ¶ 32. {¶21} In the matter before us, a complaint was filed on July 25, 2018 creating a deadline for disposition of October 23, 2018. The trial court scheduled the dispositional hearing for December 19, 2018, long after the expiration of the ninety day deadline, and did complete not conduct a dispositional hearing until August 2 8, 2019. The fact that appellants filed a motion to withdraw their admission to the ad judicatory phase of the proceeding does not serve to extend the ninety day time limit a s the language of the statute and the rule as well the Supreme Court’s holding in In re K.M. provide no flexibility.Perry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 9

The deadline is a mandatory requirement that may not be disrega rded. Further, the filing of the appeal did not impact the expiration of time as the noti ce of appeal was filed November 2, 2018, after the deadline for conducting the disposi tional hearing. {¶22} The Supreme Court of Ohio also explained that a mandatory deadl ine "must be considered a limitation upon the power of the officer.’ Davis at 522, 705 N.E.2d 1219, quoting State ex rel. Smith v. Barnell , 109 Ohio St. 246, 255, 142 N.E. 611 (1924).” In re

K.M

. supra at ¶ 20. Consequently, after the expiration of the ninety day deadline on October 23, 2018, the trial court had no authority to issue fur ther orders except to journalize the dismissal of the case. {¶23} We have previously noted that “dismissal of cases before their final disposition would require either that ***children be returned t o a potentially risky home situation or that a new complaint be filed to begin the process all over again” and the Supreme Court of Ohio has acknowledged “the burden that a manda tory 90-day deadline in R.C. 2151.35(B)(1) may impose on the already-strained docket s of the juvenile courts. But regardless of the policy concerns raised by dismissal of th e complaint, our duty is to apply the statute as written.” In re K.M., supra at ¶¶ 28, 30 reconsideration denied sub

nom. In re J.T., 159 Ohio St.3d 1438, 2020-Ohio-3634, 148 N.E.3d 578.Perry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 10

{¶24} Appellant's assignment of error regarding the application of R. C. 2151.35(B)(1) is granted and we hold that trial court had no au thority to act after October 23, 2018. We hereby reverse the decision of the trial court granting legal custody

of the children to Sharon Walker and Mark Howland and remand th e matter to the trial court to enter an order of dismissal of the complaint without p rejudice. Because we have found this issue to be dispositive, we find the remaining issue s raised by appellants are

moot.

By: Baldwin, J. Delaney, J. concur Hoffman, P.J. dissentsPerry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 11

Hoffman, J., dissenting {¶25} I respectfully dissent from the majority opinion. {¶26} The lynchpin of the majority opinion is its reliance on In re K.M. , 159 Ohio St.3d 544 (2020). 2 {¶27} I find In re K.M. significantly procedurally distinguishable. {¶28} In In re K.M ., the appellant mother made a motion to dismiss prior to the start of the dispositional hearing for failure of the trial cou rt to hold it in a timely manner as required by 2151.35(B)(1). The trial court denied Mother’s m otion to dismiss. Mother challenged that ruling on direct appeal. This Court overruled M other’s assigned error. The Ohio Supreme Court reversed this Court’s decision and reman ded the case to the trial court to enter orders of dismissal without prejudice. {¶29} The Ohio Supreme Court unanimously found the statutory deadline in R.C. 2151.35(B)(1), was mandatory, and not directory. The propositi on of law presented was:

Ohio law mandates that a juvenile court dismiss a neglect, abu se, or dependency case on the motion of any party if the court does not complete disposition within ninety days of the date of filing o f the complaint. ( In re K.M. , supra , at ¶16, emphasis added).

{¶30} In affirming this proposition of law, the Ohio Supreme Court qu oted R.C. 2151.35(B)(1):

2 Both Judge Baldwin and I were on the appellate court panel tha t decided In re K.M . See In re K.M. , 5th Dist. Richland No. 18CA07, 18CA08, 2018-Ohio-3144.Perry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 12

The dispositional hearing shall not be held more than ninety d ays after the date of which the complaint in the case was filed. If the dispositional hearing is not held within the period of time required by this division, the court on its own motion or the motion of any party or the guardian ad litem of the child , shall dismiss the complaint without prejudice. (Emphasis added).

{¶31} The Ohio Supreme Court found the statutory deadline to be man datory

when “the nature of the ac t to be performed or the phraseology of the statute in such tha t the designations of time must be considered a limitation upon t he power of the officer.”

Id. , citing In re Davis , 84 Ohio St.3d 520, 522. The Ohio Supreme Court then contrast ed

In re Z.R ., 144 Ohio St.3d 380, 2015-Ohio-3306, noting R.C. 2151.35(B)(1 ) does contain an express limitation of a juvenile court’s authority for failu re to comply with a statutory

deadline. In re K.M ., supra , at ¶23. I find it noteworthy the Ohio Supreme Court held the statute limits the juvenile court’s authority, not eliminates i t. {¶32} The Ohio Supreme Court went on to hold there can be no implicit waiver of the 90-day limit as the statutory language is explicit in requi ring dismissal after the expiration of the 90-day period. In re K.M ., supra at ¶23. {¶33} Based upon the explicit language of R.C. 2151.35(B)(1), I find In re K.M. to be distinguishable from the instant action. The statue does no t read “If the dispositional hearing is not held within the period of time required by the d ivision, the court shall dismiss the complaint without prejudice.” Rather, it includes the spec ific language “on its own motion or the motion of any party or the guardian ad litem of t he child.” I suggest suchPerry County, Case No. 20-CA-00002, 20-CA-00003, 20-CA-00004 13

additional language is not superfluous. The Ohio Supreme Court did not hold the trial court lacked authority or subject matter jurisdiction, but rath er the statute served as a limit on the juvenile court’s authority. It is clear there was a tim ely motion to dismiss in In re

K.M. and the issue was presented on direct appeal. Such is not the case herein. {¶34} There is no record Appellants herein made a motion to dismiss b efore the trial court issued its final entry on August 28, 2019. Nor did Appellants file a direct appeal from said final entry. Had there been, I would readily agree w ith the majority In re K.M. would mandate dismissal of the complaint without prejudice. Ho wever, this case does not present a situation of a lack of subject matter jurisdictio n, nor does it present the improper exercise of jurisdiction as occurred in In re K.M. {¶35} In the absence of a motion to dismiss pursuant to R.C. 2151.35( B)(1) and a direct appeal, I find Appellants’ asserted error is not now s ubject to collateral attack. I would overrule it on the basis of res judicata.