On Aug. 7, 2024, the Ohio Supreme Court dismissed the appeal in Kyser v. Summit County Children Services (discretionary case number 2022-1419 and certified conflict case number 2023-0126) for lack of a final appealable order under R.C. 2506.01 on a 5-2 vote. The decision came after full rounds of substantive briefing in the trial court, intermediate appellate court, and the Supreme Court of Ohio. On the eve of oral argument before the Supreme Court of Ohio, the court requested briefing on whether a final appealable order existed and, ultimately, dismissed the appeal on that basis.

Authors of this blog have raised this final appealable order dismissal issue previously, but it has raised its head again after the parties made a serious investment in resources between briefing and oral argument.

Background of Kyser

In Kyser, a foster parent was reported to Summit County Children’s Services (SCCS) for abusing her foster child by making him pick up dog feces while he was not wearing gloves. SCCS removed the child from the home and investigated. Ultimately, SCCS issued a disposition letter finding that the reports of physical abuse were substantiated, a finding which was required to be reported to law enforcement and the Ohio Department of Job and Family Services (ODJFS) for inclusion on a confidential database – the Statewide Automated Child Welfare Information System (SACWIS).

Within 30 days of receiving the disposition letter, the foster parent sought to appeal the disposition to Common Pleas Court, but SCCS moved to dismiss the appeal as untimely because it was not filed within 30 days of the date SCCS had mailed the disposition letter. The Common Pleas Court agreed with SCCS and dismissed. The Ninth District affirmed. And the Supreme Court accepted discretionary review because there was a conflict among districts regarding whether the time to file an appeal under R.C. 2505.07 begins to run upon mailing or receipt. The Ninth District also certified that its decision was in conflict with decisions from the Sixth, Tenth and Eleventh District Courts of Appeal.

After the Supreme Court granted discretionary review, acknowledged the certified conflicts, and received substantive briefing on the timeliness issue, the Court asked for briefing on whether the disposition letter constituted a final appealable order under R.C. 2506.1. Specifically, to be “final,” an order must “determine[] rights, duties, privileges, benefits, or legal relationships of a person.” R.C. 2506.1(C). The foster parent argued that the disposition letter was a final appealable order because it had consequences. The foster child was removed from her home, and adoption proceedings were terminated.  She was added to the SACWIS. Someone informed her employer about the disposition, and she was terminated from her job. And ODJFS permanently revoked her foster parent license in a separate proceeding. 

Nevertheless, the Supreme Court concluded that inclusion in the SACWIS did not determine her “rights, duties, privileges, benefits, or legal relationships” because that database is confidential to law enforcement, ODJFS, and a limited group of employers that the foster parent did not work for. The Supreme Court also concluded that the other alleged consequences were merely collateral results, which were not directed, required, or determined by SCCS’s disposition letter.

Final appealable order: a must-check for every appellate lawyer

Jurisdictional review should be the among the first sections on every appellate lawyer’s checklist, and the Final Appealable Order question is the first question in that review. Indeed, you can’t even get to the question of when your notice of appeal is due until you’ve identified the existence of a final appealable order.

At the very least, you better be able to answer this question when the court raises it. And you can rest assured the court will raise it sometime. 

Ohio courts lack jurisdiction to review any order that is not a “final appealable order,” whether looking at an administrative appeal to the Court of Common Pleas under R.C. 2505.07, or an appeal from a lawsuit filed in the first instance in the Court of Common Pleas under R.C. 2505.02, or any of the other subject matter statutes that create a final appealable order. And because “every court holds a duty to ensure it has jurisdiction to hear the claims before it,” Smith v. Ohio State Univ., 2024-Ohio-764, 28, this is often the first step for staff attorneys and law clerks when they pick up a new matter. 

Why early jurisdictional review matters: key takeaways from Kyser

Indeed, when I was a freshly minted first-year Staff Attorney for the Eleventh Circuit, the supervising lawyer drilled into us that – even though each case assigned to us would have already been reviewed by our dedicated jurisdiction unit – we were required to ensure a final appealable order existed as soon as we were assigned a matter. Some Ohio districts also advise staff to proactively review for jurisdictional questions like the existence of a final appealable order and will issue a show-cause order if the existence of one is questionable.

But some courts don’t do this review proactively, and even if they do some cases may slip through the cracks. Unfortunately for the parties in Kyser, this issue slipped through the cracks until the most inconvenient time. The parties had already spent significant time and resources on briefing at three levels of judicial review and prepared for oral argument before the Ohio Supreme Court before anyone even asked the question. 

With a little more preparation and adding this question to the top of your checklist even when the answer might seem obvious, you may make sure that these questions are answered at the most practical (and economical) time. Unfortunately, the Ohio district split on administrative appeal timing remains unresolved.