In re K.A.G

[Cite as In re K.A.G, 2013-Ohio-780.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

IN THE MATTER OF: :

K.A.G.-M. a.k.a. K.N.L. : CASE NO. CA2012-10-101

: OPINION
3/4/2013
:

:

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 07-C00733

Christo Lassiter, 839 Dunore Road, Cincinnati, Ohio 45220-1416, appellant, pro se

Devon L. Dullaghan, 200 Woodland Road, Mason, Ohio 45040, appellee, pro se

PIPER, J.

{¶ 1} Appellant, Christo Lassiter (Father), appeals pro se a decision of the Warren

County Court of Common Pleas, Juvenile Division, sua sponte vacating its prior order

regarding quarterly psychiatric reporting to the court by appellee, Devon Dullaghan (Mother),

who is also proceeding pro se.

{¶ 2} Mother and Father have been before this court on multiple occasions regarding

the care and custody of their minor daughter. Although the procedural history of this case is

extensive, this court will confine itself to the basic facts relevant to this appeal.
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{¶ 3} Mother and Father were never married, but had a relationship that resulted in

the birth of a child. When Mother was six months pregnant with the child, she and Father

separated. Mother told Father that she miscarried the child and Father believed such to be

true until he later received an anonymous call that the child was born and did not die as

Mother stated. Father later moved for custody of the child in juvenile court. Father was

awarded custody of the child, and Mother was granted unsupervised visitation rights.

{¶ 4} On April 6, 2010, Father filed an emergency motion to suspend the parenting

time of Mother with the child. The juvenile court held an emergency hearing on Father's

motion the next day, with Mother and Father present and testifying. The juvenile court

denied Father's emergency relief, but rather ordered that Mother undergo a psychological

evaluation based on evidence deduced at the hearing that Mother had threatened to kill her

current husband, her husband's child, and herself.

{¶ 5} Mother's psychological report was conducted by a court-appointed psychologist.

The psychologist indicated that Mother has a long history of suicidal ideation. The

psychologist could not rule out the possibility that Mother would harm her daughter due to

Mother's history of depression and having suffered abuse as a child. The psychologist

recommended that Mother have supervised visits with her daughter, and seek long-term

counseling with medication.

{¶ 6} After receiving the psychologist's report, as well as reports from Warren County

Children Services regarding unannounced wellness checks performed while the child was

visiting with Mother, the juvenile court denied Father's motion to suspend Mother's parenting

time. In its October 2010 entry, the juvenile court also declined to order supervised visitation.

Instead, the juvenile court noted, "it is appropriate that Mother's parenting time with [the child]

be contingent upon Mother engaging in certain remedial measures to address her mental

health issues." The court then listed five orders and stated that "Mother's right to continue
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exercising the parenting time with [the child] previously ordered herein is contingent upon her

compliance with the following orders." One order was that "Mother shall execute such

release as may be necessary so that all psychologists/psychiatrists, counselors and

therapists may report to the Court no less frequently than quarterly concerning Mother's

progress, mental health status and risk factors to herself and others."

{¶ 7} Without a hearing, and by way of an entry dated September 27, 2012, the court

sua sponte vacated its order from October 2010 regarding the need for quarterly updates on

Mother's mental health status. In so doing, the court stated, "the Court finds that further

prospective application of the foregoing order is not appropriate. It is more appropriate that

the parties bring to the Court's attention specific issues that may require Court review of

Mother's mental health treatment rather than a general review by the Court relating to non-

specific matters." The court then "vacated" the order related to Mother's quarterly updates,

and issued its final appealable order of vacation to both Mother and Father.

{¶ 8} Father now appeals the juvenile court's sua sponte vacation of its prior order,

raising the following assignment of error.

{¶ 9} ABSENT AUTHORITY UNDER EITHER RULE 60(A) OR (B), THE TRIAL

COURT LACKED JURISDICTION TO SUA SPONTE VACATE ITS JUDGMENT ENTRY

FILED 10-19-10.

{¶ 10} Father argues in his first assignment of error that the juvenile court erred by sua

sponte vacating its prior order because it lacked jurisdiction to do so. While we agree that

the juvenile court should not have sua sponte vacated a prior order, we do not agree with

Father that the juvenile court lacked jurisdiction. Furthermore, contrary to Father's belief, it is

clear to this court that the juvenile court did not vacate the entire October 2010 entry, but

rather, only one order within that entry, as stated by the juvenile court within its sua sponte

vacation.
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{¶ 11} "A trial court has no authority to vacate its final orders sua sponte." Hudgins v.

Mitchell, 128 Ohio App.3d 403, 407 (9th Dist.1998). Instead, Civ.R. 60 provides "the

exclusive means for a trial court to vacate a final judgment." Id. According to Civ.R. 60(A),

"clerical mistakes in judgments, orders or other parts of the record and errors therein arising

from oversight or omission may be corrected by the court at any time on its own initiative or

on the motion of any party and after such notice, if any, as the court orders." Civ.R. 60(B)

addresses when and under what circumstances a court may relieve a party from a final

judgment or order. These circumstances include mistakes, inadvertence, excusable neglect,

newly-discovered evidence, or fraud.

{¶ 12} The juvenile court's decision to vacate its prior order was not based upon any

clerical error in the previous entry, nor was it based upon any means available under Civ.R.

60(B). Instead, it seems that the juvenile court determined that quarterly reports were no

longer necessary, and that the parties should bring to the attention of the court any specific

issues regarding Mother's mental health that may require court review. While we have no

doubt that a juvenile court is granted certain latitude in its case management and ongoing

orders regarding the welfare and best interests of the child, we do not find that the juvenile

court had the authority to sua sponte vacate a prior order without first allowing the parties full

notice and an opportunity to be heard on the issue.

{¶ 13} Father acknowledged at oral arguments before this court that he shares no right

to the reports or to their content. Being unfamiliar with the content, Father's input as to the

juvenile court's determination to the continued necessity of said reports may be limited.

Father also acknowledged that he believed that portion of the October 2010 entry being

reviewed herein, when originally ordered, was cumbersome and unworkable. Nevertheless,

Father contends that once the order was in place, the juvenile court lacked jurisdiction to

vacate the order.
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{¶ 14} While Father couches his argument in terms of jurisdiction, it is really a matter

of notice. The juvenile court certainly has subject matter jurisdiction pursuant to statute. As

to personal jurisdiction, there are motions currently pending that pertain to the parties on

related matters, and with proper notice, the juvenile court can review its previous orders as

pertaining to the best interest of a child where its previous orders are continuing in nature.

{¶ 15} As this court has previously stated, "the right to procedural due process is

required by the Fourteenth Amendment to the United States Constitution and Section 16,

Article I of the Ohio Constitution. Procedural due process requires the government to give

reasonable notice and a meaningful opportunity to be heard * * *." In re B.L., 12th Dist. No.

CA2008-05-013, 2008-Ohio-6385, ¶ 8.

{¶ 16} The juvenile court's decision to sua sponte vacate the order denied Father and

Mother the opportunity to be heard. Specifically, the juvenile court first ordered the quarterly

reports after learning from the psychologist's report that Mother suffers from major

depressive disorder, and has a dependent personality disorder with compulsive, narcissistic,

and schizoid features. Based on this diagnosis, the juvenile court noted that it was

appropriate that Mother's parenting time be contingent upon Mother's engaging in remedial

measures to address her mental health, including the quarterly reports updating the court on

Mother's progress, mental health status, and risk factors to herself and others. These risk

factors inherently relate to determining whether or not Mother poses a danger to the minor

child, which is a significant factor to consider when determining whether Mother having

visitation rights is in the child's best interests.

{¶ 17} Without notice and a chance to be heard, the juvenile court's sua sponte

vacation of that particular order denied Father the ability to argue that the continuing reports

were necessary to inform the court of Mother's mental health status so that the court could

potentially protect the child from what is a well-documented history of Mother's mental health
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issues. While the juvenile court may well have received sufficient information from the

quarterly reports demonstrating Mother's progress since the date of the original order, the

decision to vacate the order should not have been made until after Father was given notice of

the juvenile court's reconsideration of the order, and a chance to be heard on the issue. This

is especially true given the fact that Mother's visitation rights were "contingent upon" her

submitting the records to inform the court of any risk factors facing the child due to Mother's

mental health issues.

{¶ 18} This court is aware of the fact that a juvenile court has broad discretion in

making orders that are in the best interest of the child, and that the court has some authority

to sua sponte address prior orders. However, and according to the Ohio Revised Code and

other pertinent Juvenile Rules, the court is limited to specific situations when sua sponte

addressing prior orders.

{¶ 19} For example, according to R.C. 2151.417(B) a court may, on its own motion,

amend a dispositional order of abuse, neglect, or dependency made pursuant to R.C.

2151.353. R.C. 2151.33 also permits a court to sua sponte issue any temporary orders

necessary to protect the best interest of a child subject to a pending abuse, neglect, or

dependency complaint. Similarly, Juv.R. 13(B)(4) permits a juvenile court to review upon its

own motion any temporary orders made while a complaint alleging abuse, neglect, or

dependency is pending. However, none of these avenues apply in the current case.

{¶ 20} Otherwise, and especially in nonemergency situations when an ex parte

proceeding is not necessary, a juvenile court must give notice to the parties when

contemplating vacating prior orders, as well as the ability to be heard on the issue. See, e.g.,

Juv.R. 13(E) (stating that "wherever possible, the court shall provide an opportunity for

hearing" or must provide an opportunity for a hearing "concerning the continuing effects" of

any already-issued ex parte orders).
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{¶ 21} Mother argues generally that a juvenile court has the discretion to make or sua

sponte amend any order so long as doing so is in the best interest of the child. Beside the

fact that Mother was unable to cite any case law or statutory support for this argument, the

juvenile court did not state in its entry that its decision to vacate its prior order was related to,

or in the best interests of, the child. Instead, the court merely found that "further prospective

application" of the quarterly reports "is not appropriate." The juvenile court did not explain

how vacating an order that served as one of five conditions to Mother having custody, was no

longer necessary to facilitate visitation or was no longer necessary to guarantee that the child

would be safe in Mother's care. There is no discussion regarding why the other four orders

contained in the entry remained, while only the order regarding quarterly reporting was

vacated. If a review hearing is to be held, Mother may desire to be heard, as well as Father,

on this issue.

{¶ 22} We are sympathetic to the juvenile court in this matter. The court has presided

over countless motions filed by these two parties, and the juvenile court's sua sponte entry

was clearly meant to limit the number of filings and streamline the vast record of proceedings.

However, the decision to vacate a prior order must adhere to the applicable rules and

statutes. For reasons different than those advanced, Father's single assignment of error is

sustained and we reverse the juvenile court's decision vacating the fifth provision.

{¶ 23} Judgment reversed.

HENDRICKSON, P.J., and S. POWELL, J., concur.

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