IN RE A.C., A Minor Child [Appeal by Mother]
No. 108442
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
December 12, 2019
[Cite as In re A.C., 2019-Ohio-5127.]
EILEEN A. GALLAGHER, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: REVERSED; REMANDED
Appearances:
Bartos & Bartos, L.P.A., and David Bartos, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Rachel Eisenberg, Assistant Prosecuting Attorney, for appellee Cuyahoga County Division of Children and Family Services.
Laubacher & Company, Eric R. Laubacher, and Lauren M. Strandbergh, for appellee Father.
JOURNAL ENTRY AND OPINION
EILEEN A. GALLAGHER, J.:
{¶ 1} Appellant-mother E.C. (“Mother”) appeals from an order of the Cuyahoga County Court of Common Pleas, Juvenile Division (the “juvenile court”)
{¶ 2} For the reasons that follow, we find merit to the appeal, reverse the juvenile court’s judgment and remand the case for the juvenile court to conduct an independent review of the magistrate’s decision in accordance with
Factual Background and Procedural History
{¶ 3} On December 18, 2017, appellee Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the agency”) filed a complaint for neglect seeking temporary custody of K.V.1 be awarded to CCDCFS and legal custody of A.C. be awarded to Father. On January 9, 2018, Father was granted predispositional emergency custody of A.C.
{¶ 4} In February 2018, Father filed a motion for legal custody of A.C. and Mother filed a motion for legal custody or, alternatively, temporary custody to CCDCFS with placement with Father or alternatively, temporary custody to A.C.’s maternal grandmother. In March 2018, Mother stipulated to the allegations of an
{¶ 5} In November 2018, Father filed another motion for legal custody of A.C., Mother filed a motion for legal custody of A.C. or, alternatively, to adopt a shared parenting plan and CCDCFS filed a motion to modify temporary custody to legal custody of A.C. to Father.
{¶ 6} On March 11, 2019, the magistrate held an evidentiary hearing on the pending motions.4 The parties presented testimony from five witnesses and over 20
{¶ 7} At the conclusion of the hearing, the magistrate announced her decision to grant legal custody of A.C. to Father, setting forth her findings and explaining her decision as follows:
As to [A.C.], I will find that the Agency has made reasonable efforts to finalize the permanency plan for this child, and I do find that it is in this child’s best interest to be committed to the legal custody of her father.
She is doing well in placement. Permanency is what we all strive for in the best interests of the children. I do find that it is in her best interest at this point to be placed in the legal custody of her father.
Mother needs to maintain sobriety * * *[.]
Mother’s own testimony before this Court was that she’s an alcohol[ic] and I understand that there’s difficulties in dealing with that, but you’ve got to get that under control. It’s not in the children’s best interest.
{¶ 8} On March 12, 2019, the magistrate issued her written decision terminating temporary custody, denying Mother’s motion for legal custody and granting legal custody of A.C. to Father. In her written decision, the magistrate set forth a finding that “the child’s continued residence in or return to the home of [E.C.], the mother, will be contrary to the child’s best interest.” The magistrate’s written decision contains no other findings or reasoning for her decision.
- The Magistrate’s Decision is against the manifest weight of [the] evidence. Mother completed all services. The child was residing with mother at the time of removal. Reunification should be with mother. Mother was ready, willing, and able to provide for her children. Mother had appropriate housing, basic needs and has completed case plan services.
- Decision failed to show a causational nexus showing that any action by Mother was detrimental to the child.
- Mother was denied admission of the testimony and evidence regarding Father[’s] historical patterns of behavior and nefarious conduct. Further the evidence would show father had reason and motive to fabricate the extent of concerns claimed upon mother.
- CCDCFS failed to exercise its due diligence in investigating claims made by mother regarding father.
- CCDCFS failed to adequately investigate father’s behaviors in laying hands on one of the children in his care, prior to an award of custody.
- The Magistrate’s decision was not in the best interest of the minor child.
Mother also requested leave to supplement her objections after she received the transcript of the hearing.
{¶ 10} On March 26, 2019, the juvenile court granted Mother’s request for a transcript of the March 11, 2019 hearing. Three days later, without waiting for the
{¶ 11} In approving and adopting the magistrate’s decision and overruling Mother’s objections, the juvenile court did not make any additional findings or provide any explanation for its decision to grant legal custody to Father, but simply reiterated the magistrate’s finding that “the child’s continued residence in or return to the home of [E.C.], the mother, will be contrary to the child’s best interest.”
{¶ 12} On April 3, 2019, the juvenile court denied Mother’s request to file supplemental objections. The juvenile court did not explain its decision to deny Mother’s request other than to state: “Upon review of the Court file and the Request, the Court finds the Request is not well taken. It is therefore ordered that said Request is denied.”
{¶ 13} Mother appealed the juvenile court’s decision, raising the following five assignments of error for review:
Assignment of Error 2: The trial court abused its discretion and committed reversible error and prejudicial error by denying appellant’s motion for legal custody and granting legal custody of the child to her father, T.C. without making a determination that the preponderance of the evidence supported the award of legal custody to the father nor any finding that legal custody to the father was in fact in the child’s best interest.
Assignment of Error 3: The trial court abused its discretion and committed reversible and prejudicial error by denying Mother[’s] motion for legal custody and granting legal custody of A.C. to Father, T.C. in finding that the child’s continued residence in or return to the home of Mother, E.C. will be contrary to the child’s [best] interest. As such the trial court’s judgment was against the manifest weight of the evidence.
Assignment of Error 4: The trial court committed prejudicial error in excluding probative and relevant evidence and testimony of appellant which related to the retaliatory motive and bias of the appellee Father, T.C.
Assignment of Error 5: The trial court committed prejud[icial] error by entering a final order which evidence presented at trial was insufficient to determine parenting and for a proper determination of best interest of the child.
Law and Analysis
Standard for Determining Legal Custody
{¶ 14} “Legal custody” is
a legal status that vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and
medical care, all subject to any residual parental rights, privileges, and responsibilities.
{¶ 15} When a juvenile court awards legal custody following an adjudication of abuse, neglect or dependency, ‘“it does so by examining what would be in the best interest of the child based on a preponderance of the evidence.”’ In re T.R., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 44, quoting In re M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 11, 14. A “preponderance of the evidence” means evidence that is ‘“more probable, more persuasive, or of greater probative value.’” In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7, quoting In re D.P., 10th Dist. Franklin No. 05AP-117, 2005-Ohio-5097, ¶ 52. There is no “specific test or set of criteria” that must be applied or considered in determining what is in a child’s best interest in a legal custody case. In re T.R. at ¶ 48.
{¶ 16} The decision whether to grant or deny a request for legal custody is within the sound discretion of the juvenile court. Accordingly, when reviewing a juvenile court’s ‘“ultimate decision on whether the facts as determined would make it in the child’s best interests to be placed in legal custody,’” we apply an abuse of discretion standard. In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, ¶ 2, quoting In re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14. We likewise review a trial court’s decision to accept or reject a magistrate’s decision for abuse of discretion. In re D.G.B., 8th Dist. Cuyahoga No. 107921, 2019-Ohio-3571, ¶ 24, citing In re S.E., 8th Dist. Cuyahoga No. 96031, 2011-Ohio-2042, ¶ 13. An
Ruling on Objections and Adopting Magistrate’s Decision before Receiving Transcript
{¶ 17} In her first assignment of error, Mother contends that the juvenile court erred in adopting the magistrate’s decision before receiving the transcript of the March 11, 2019 hearing. She contends that (1) her objections sufficiently raised a manifest-weight-of-the-evidence challenge to the magistrate’s determination that “the child’s continued residence in or return to the home of [E.C.], the mother, will be contrary to the child’s best interest” and decision to award legal custody to Father and (2) pursuant to
{¶ 18}
{¶ 19} To aid in the juvenile court’s “independent review,” if the objecting party challenges a magistrate’s finding of fact, the party must provide the juvenile court with “a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available.”
{¶ 20}
An objection to a factual finding, whether or not specifically designated as a finding of fact under
Juv.R. 40(D)(3)(a)(ii) , shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available. With leave of court, alternative technology or manner of reviewing the relevant evidence may be considered. The objecting party shall file the transcript or affidavit with the court within thirtydays after filing objections unless the court extends the time in writing for preparation of the transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to supplement the objections.
{¶ 21} As this court has previously held, “it is an abuse of discretion to adopt a magistrate’s decision over an objection to factual findings prior to its receipt of a timely requested transcript or other materials necessary to conduct an independent review of the matter.” In re H.R.K., 8th Dist. Cuyahoga No. 97780, 2012-Ohio-4054, ¶ 12; see also In re I.R.Q., 2018-Ohio-292, at ¶ 24-25 (trial court abused its discretion in adopting magistrate’s decision without conducting the independent review required by
[T]he court must conduct “a de novo review of any issue of fact or law that a magistrate has determined when an appropriate objection is timely filed. The trial court may not properly defer to the magistrate in the exercise of the trial court’s de novo review. The magistrate is a subordinate officer of the trial court, not an independent officer performing a separate function.”
Id. at ¶ 11, quoting Knauer v. Keener, 143 Ohio App.3d 789, 793-794 (2001).
{¶ 23} In this case, Mother timely filed her objections to the magistrate’s decision, challenging the magistrate’s determination that granting legal custody of A.C. to Father was in A.C.’s best interest based on various alleged facts that were not referenced in the magistrate’s decision. The juvenile court granted Mother’s request for the transcript but then adopted the magistrate’s decision three days later without waiting for Mother to file the transcript.
{¶ 24} Because the trial court was alerted that Mother intended to obtain the transcript to support her objections (and granted her motion to obtain the transcript), it should not have ruled on the objections until the expiration of the 30 days. The juvenile court “could not purport to conduct an independent review of the evidence when it knew that there was a transcript of the trial being prepared.” In re R.C., 2010-Ohio-4690, at ¶ 7, fn. 1.
{¶ 25} Appellees contend that Mother’s objections “relate to legal determinations made in the case, rather than disputing findings of fact” and,
{¶ 26} CCDCFS also asserts that a transcript was “unnecessary” for the juvenile court to conduct an independent review of the record in this case because the court has access to the “Court Smart” system that “records each and every case” and “can be utilized by the court at any time” to listen to and review proceedings even without a transcript.
{¶ 27} Although
{¶ 28} Accordingly, the juvenile court abused its discretion in adopting the magistrate’s decision and overruling Mother’s objections without reviewing the transcript and conducting the independent review required by
{¶ 29} Mother’s first assignment of error is sustained. The juvenile court’s judgment is reversed and this matter is remanded to the juvenile court to conduct the independent review required by
{¶ 30} Judgment reversed; remanded.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Cuyahoga County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, JUDGE
ANITA LASTER MAYS, P.J., and
RAYMOND C. HEADEN, J., CONCUR
Notes
- Mother, E.C., has a substance abuse problem, specifically alcohol, for which she is in need of treatment. Mother needs to acknowledge her drinking impacted her children.
- Mother’s alcohol use caused conflict with her two children as well as her parental separation.
- K.V. suffers academically as a result of mother and [father’s] separation in July 2017. * * *
- Father of A.C. * * * is willing and able to provide a safe home for the child.