In re A.P.
Robert F. Benintendi, for appellant.
M. POWELL, P.J.
{1} Appellant (“Mother“) appeals a decision of the Warren County Court of Common Pleas, Juvenile Division, adjudicating her daughter dependent.
{2} Mother and Father are the parents of the child at issue, Arlette, who was born on March 29, 2020. Father is not a party to this appeal. Mother has two other children who reside with her, a 15-year-old son and a 10-year-old daughter. Father also has another
{3} On September 28, 2021, the Warren County Children Services Board (the “Agency“) filed a complaint alleging that Arlette was a dependent child under
{4} An adjudicatory hearing was conducted before a magistrate over three days in December 2021. On December 20, 2022, the magistrate adjudicated Arlette a dependent child under
- Mother and Father were in an intermittent relationship for three or four years, which was marked by a “cycle of leaving and coming back“;
- The Agency initially opened a case in 2019 following Father‘s attack on Mother; the
case was closed eight or nine months later; - The Agency received another referral in May 2021 after Mother made Father and Jasmine leave the home. The Agency initiated a safety plan pursuant to which Jasmine was placed with Mother and was not to have any contact with Father. Despite the safety plan, Mother admitted she allowed Father to stay in her home “a few times“; a caseworker observed Father in Mother‘s home during a June 2021 home visit, and Father engaged into a verbal altercation during the visit; the caseworker advised Father to stay with his parents and leave Jasmine with Mother;
- In July 2021, Father tested positive for cocaine and THC;
- In August 2021, Mother, Father, and all four children took a Florida vacation and stayed in the same condominium. During this vacation, Father and Jasmine were involved in a physical altercation in the presence of the other three children and in Mother‘s absence. As a result of the altercation, Jasmine suffered a head wound that required staples. During the altercation, Arlette was nearly struck by a bowl that had been thrown. The altercation “was significant enough for [Mother‘s son] to video it; and scary enough that Mother‘s [other] daughter ran out of the home to find Mother and get her back to the condominium for help.” Father was arrested and charged with a felony offense. Mother admitted she knew the children were not to be left alone with Father.
- Following the incident, a plan was developed for Mother and the children to return to Ohio with Mother‘s former husband and father of her other daughter. However, Mother did not return to Ohio and instead drove to Oklahoma with Arlette. Mother then left for Indiana with Arlette to get away from Father.
- As a result of the Florida incident, the Agency reopened Mother‘s case. “Mother reported feeling unsafe; acknowledged that the previous domestic violence affected
the children and was initially willing to work with the agency. Mother indicated she wanted to move to Indiana[.]” At some point, Mother stopped answering phone calls from the Agency. - On August 6, 2021, a caseworker went to Mother‘s home and observed Mother‘s and Father‘s cars in the driveway but no one answered the door. Shortly after that, there was a “For Sale” sign in the yard and a combination lock on the door. On August 11, 2021, the caseworker was able to meet with Mother and Arlette at a relative‘s home. “Mother was afraid Father would find out where they were staying.”
- During a September 2021 hearing regarding Father‘s parenting time with Arlette, Mother and Father both admitted that Mother was allowing Father to visit Arlette under Mother‘s supervision and without a court order. Upon being confronted by a caseworker, Mother stated “she would never tell the agency that Father was seeing [Arlette].”
- Mother is a loving and caring parent. However, she is trapped in a cycle of domestic violence with Father and has been incapable of protecting Arlette from that cycle as she acknowledged she keeps allowing Father back into her life. Mother is a victim of domestic violence and “has created her children to be victims, as well. Even if Mother is doing some protective things, Father is still very much a factor.”
- There is a concern that Arlette may suffer mental, emotional, and physical harm as a result. “Exposure to domestic violence is part of the assessment as repeated instances of domestic violence increase the risk of safety to the child.”
{5} Mother filed objections to the magistrate‘s decision and requested a transcript of the adjudicatory hearing to support her objections. Mother argued that the evidence did not support the dependency adjudication because the magistrate “made certain assumptions as to the negative impact on [Arlette] including that the child was present
{6} On January 13, 2022, the juvenile court denied the motion, finding that Mother had failed to pay the deposit as ordered, and further, had waited until the January 10, 2022 deadline had passed before requesting an extension of time to pay the deposit. Therefore, the juvenile court found the request for extension to be untimely and considered Mother‘s objections to the magistrate‘s decision without the benefit of a transcript. The court then overruled Mother‘s objections and adopted the magistrate‘s decision as follows:
Mother‘s Objection is factually dependent upon the testimony provided at the hearings. Without knowledge of the testimony presented, the Court must base its review upon the factual matters noted by the magistrate in her decision and the pleadings in the file. Based upon a review of the file and the Magistrate‘s Decision, the Court finds that there is no error of law contained in the Magistrate‘s Decision.
{7} Mother appeals the dependency adjudication, raising one assignment of error:
{8} THE TRIAL COURT ERRED IN ITS DECISION THAT THE MINOR CHILD WAS FOUND TO BE DEPENDENT PURSUANT TO OHIO REVISED CODE SECTION 2151.04(B) AND 2151.04(C).
{9} Mother argues the juvenile court erred in adjudicating Arlette a dependent child under
{10} We first determine the appropriate standard of review of the juvenile court and this court in light of Mother‘s failure to provide the juvenile court with a transcript of the magistrate‘s adjudicatory hearing or an affidavit of the evidence in support of her objections to the magistrate‘s decision. We note that a transcript of the adjudicatory hearing was submitted with the appellate record.
{11}
{12} In the absence of a transcript or affidavit, the trial court must accept the magistrate‘s factual findings and limit its review to the magistrate‘s legal conclusions. Id. at 20. “When a party objecting to a referee‘s report has failed to provide the trial court with the evidence and documents by which the court could make a finding independent of the report, appellate review of the court‘s findings is limited to whether the trial court abused its discretion in adopting the referee‘s report.” State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 1995-Ohio-272. Furthermore, “the appellate court is precluded from considering the transcript of the hearing submitted with the appellate
{13}
{14} Absent a transcript or affidavit, our review is solely limited to whether the juvenile court abused its discretion in applying the law to the factual findings set forth in the magistrate‘s decision and in adopting the magistrate‘s decision adjudicating Arlette a dependent child. We find the juvenile court did not abuse its discretion in adopting the
{15} Judgment affirmed.
S. POWELL and HENDRICKSON, concur.