In re M.B. , 2012 Ohio 5428 ( 2012 )

[Cite as In re M.B., 2012-Ohio-5428.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
IN RE: M.B. C.A. Nos. 11CA010060
11CA010062
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 10JC29176
DECISION AND JOURNAL ENTRY
Dated: November 26, 2012
CARR, Judge.
{¶1} Appellants, Bobbie Z. (“Mother”) and Steven B. (“Father”), each appeal from a
judgment of the Lorain County Court of Common Pleas, Juvenile Division, that awarded legal
custody of their minor child, M.B., to his paternal great aunt and paternal great uncle. This Court
affirms in part and reverses in part.
I.
{¶2} Mother and Father are the unmarried parents of M.B., born on February 24, 2010.
Mother had one other child, S.Z., born on August 11, 2000, with a different father. S.Z.’s
custody is not at issue in this appeal.
{¶3} Mother’s history with Lorain County Children Services (“LCCS”) goes back
approximately ten years. At that time, Mother had been incarcerated for violating a term of her
probation, attendance in a substance abuse program, which was imposed following a conviction
for a drug trafficking offense. LCCS formally intervened and obtained emergency custody of
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S.Z. On January 8, 2003, S.Z. was adjudicated to be a neglected and dependent child, and he
was placed in the legal custody of his maternal grandparents. On October 12, 2004, after
Mother’s release from prison, she regained legal custody of S.Z.
{¶4} More recently, Mother was convicted of domestic violence and was again placed
on probation. During her term of probation, she tested positive for cocaine use three times while
she was also pregnant with M.B. Upon being diagnosed as “cocaine dependent,” she entered a
residential treatment program. Ten-year-old S.Z. was not allowed to reside at the facility with
Mother, and the staff soon determined that Mother could not properly care for newborn M.B.
there either while also addressing her substance abuse issues. No relative caregivers were
available.
{¶5} Accordingly, on March 25, 2010, the agency filed a complaint, alleging that the
children were abused, neglected, and dependent. The court granted emergency temporary
custody to the agency, and the children were removed from Mother’s care. From this point, the
custody of the two children proceeded separately, and this opinion will be concerned only with
the custody of M.B.
{¶6} In due course, the trial court adjudicated M.B. to be a neglected and dependent
child and granted temporary custody to the agency. LCCS initially placed M.B. with local foster
parents and later placed him with a paternal great aunt and great uncle who resided in Kentucky.
On January 13, 2011, the agency sought an order granting legal custody of M.B. to the Kentucky
relatives. Mother opposed the motion and sought custody in herself or, alternatively, an
extension of temporary custody. Following a hearing on both motions, the trial court granted
legal custody to the Kentucky relatives.
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{¶7} Mother and Father have each appealed from the judgment of the trial court.
Mother has assigned three errors for review, and Father has advanced one assignment of error on
appeal.
II.
MOTHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, WHEN
OVER THE OBJECTIONS OF MOTHER, IT ADOPTED THE JUDGMENT OF
THE MAGISTRATE GRANTING LEGAL CUSTODY OF [M.B.] TO A
PATERNAL GREAT AUNT AND GREAT UNCLE, WHERE THE
PROPOSED LEGAL CUSTODIANS HAD FAILED TO EXECUTE A
STATEMENT OF UNDERSTANDING FOR LEGAL CUSTODY AS
REQUIRED.
{¶8} Mother contends that the trial court erred in granting legal custody to M.B.’s
paternal great aunt and great uncle because the proposed legal custodians did not file a statement
of understanding, as described in R.C. 2151.353(A)(3), with the court prior to the dispositional
hearing. For its part, LCCS contends that a R.C. 2151.353(A) statement of understanding was
not necessary because the motion for legal custody was not filed by the proposed custodians, but
was filed instead by the agency under R.C. 2151.415 and that section of the Revised Code does
not require such a statement.
{¶9} The record reflects that LCCS filed a written motion seeking legal custody in the
Kentucky relatives approximately six weeks prior to the dispositional hearing. The relatives did
not prepare and sign a statement of understanding as described in R.C. 2151.353(A)(3), but, at
the hearing, the paternal great aunt testified at some length. She testified to her desire to be the
legal custodian of M.B., her ability to provide for the needs of the child, the fact that she is
committed to M.B.’s long-term care, and her understanding and acceptance of the fact that the
status of legal custody leaves residual rights with the parents. Three visitations with Mother had
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already taken place. In addition, the great aunt was available for questioning by the trial court
and cross-examination by the other parties. Consequently, the relative essentially addressed the
matters that would be contained within a written statement of understanding under R.C.
2151.353(A)(3) through her testimony in court.
{¶10} Significantly, Mother did not object to the lack of a statement of understanding by
the proposed legal custodians at a time when the error, if any, could have been corrected. In
other words, she failed to object to the lack of a statement of understanding either prior to the
dispositional hearing or at the hearing itself. Mother concedes that she did not
contemporaneously object to the lack of a statement of understanding, but asserts that her failure
to do so does not constitute a forfeiture of the issue because she subsequently filed a written
objection to the magistrate’s decision on this ground. She also invokes the doctrine of plain
error.
{¶11} The filing of a written objection to the decision of a magistrate is not a substitute
for the obligation to object to a purported error at the time of its occurrence. Indeed, “[t]he
contemporaneous objection rule is fundamental to our jurisprudence.” Steward v. Norris Bros.
Co., Inc., 8th Dist. No. 53540, 1988 WL 32117, *1 (Mar. 17, 1988). The rule serves the interest
of justice because it allows for the correction of many defects while they are readily curable, as
well as it encourages the elimination of delay and the unnecessary use of the appellate process.
State v. Brooks, 2d Dist. No. 9190, 1987 WL 12231,*5 (June 4, 1987). In this case, any
purported error could have been very easily corrected had an objection been timely entered.
Moreover, even if R.C. 2151.353(A)(3) is applicable here, given that the paternal great aunt
addressed the substance of that statute through her testimony at the dispositional hearing, the
matter would not rise to the level of plain error. Mother’s first assignment of error is overruled.
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MOTHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN VIOLATION OF JUV.R. 40(D)(4)(d), WHEN
IT FAILED TO RULE ON MOTHER’S OBJECTION TO THE
MAGISTRATE’S DECISION.
{¶12} Mother contends the trial court erred in failing to specifically rule on her written
objection to the magistrate’s decision regarding the failure of LCCS to submit a statement of
understanding under R.C. 2151.353(A)(3). She contends that, as a result, this Court lacks
jurisdiction because there is no final appealable order. Mother cites this Court’s decision in
Weygandt v. Porterfield, 9th Dist. No. 09CA0009, 2011-Ohio-510, ¶ 2 in support of her position.
{¶13} After the magistrate issued his decision, granting legal custody to the Kentucky
relatives, Mother filed several written objections, including an objection to the claimed lack of
compliance with R.C. 2151.353(A)(3) by the proposed custodians. In ruling on Mother’s
objections, the trial judge concluded: “It is therefore ordered, adjudged and decreed that
Mother’s objections are overruled.” Mother contends, on appeal, that the trial court erred in so
ruling because “until a trial court specifically resolves objections by explicitly stating the
resolution of each, no final appealable order exists.”
{¶14} Mother’s reliance on this Court’s decision in Weygandt is misplaced. First, the
judgment entry in that case consists of three separate and divergent opinions. Therefore, the lead
opinion lacks precedential value as an opinion of the entire Court. Second, in support of her
claim that this Court lacks jurisdiction to consider the merits of the present appeal, Mother cites a
portion of Weygandt that relies upon a case that has since been overruled. See id., at ¶ 2, citing
In re Strickler, 9th Dist. Nos. 08CA009375 and 08CA009393, 2008-Ohio-5813, overruled,
Miller v. Miller, 9th Dist. No. 10CA0034-M, 2011-Ohio-4299.
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{¶15} Finally, the reference to language in Weygandt concerning ruling on “each”
objection is taken out of context. The question of whether a trial judge must rule separately on
every objection to a magistrate’s decision was not before this Court in Weygandt. Rather, in
relevant part, the members of the Weygandt panel considered and disagreed upon whether the
language of the trial judge that Mr. Weygandt’s objections “should be overruled” was explicit
and precise enough to indicate that the trial judge did “actually overrule objections.” Weygandt,
at ¶ 10 and 12. In the lead opinion, Judge Whitmore wrote that the “fact that something should
be done does not mean that it has actually been done.” Id. at ¶ 10. Presiding Judge Dickinson
dissented because he concluded that the trial judge’s “clear intention was to explicitly overrule
the objections to the magistrate’s decision[,]” id. at ¶ 57, while Judge Belfance concurred in
judgment only and stated that “[a] majority of the Court does not agree with the analysis of the
dissent.” Id. at ¶ 13. None of the separate opinions in Weygandt advocated that the trial judge
must separately and individually rule upon each objection to a magistrate’s decision as is
suggested by Mother in the present appeal. The Weygandt opinion does not hold that a trial
judge must do so.
{¶16} In stating: “It is therefore ordered, adjudged and decreed that Mother’s objections
are overruled[,]” the trial judge explicitly overruled Mother’s objections in full satisfaction of
Juv.R. 40(D)(4)(d). It was not necessary for the trial judge to separately rule on each objection
made by Mother. Clearly, the trial judge overruled them all. Accordingly, Mother’s second
assignment of error is overruled.
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MOTHER’S ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, WHEN
OVER THE OBJECTIONS OF MOTHER, IT ADOPTED THE JUDGMENT OF
THE MAGISTRATE GRANTING LEGAL CUSTODY OF [M.B.] TO A
PATERNAL GREAT AUNT AND GREAT UNCLE, WHERE SUCH
JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶17} Mother contends that the trial court erred in granting legal custody of M.B. to
relatives because neither the decision of the magistrate nor the judgment of the trial judge
mentions the guardian ad litem’s recommendation that custody be returned to Mother. Mother
reasons that the failure to mention the recommendation of the guardian ad litem equates to a
failure to consider it, and further claims that such failure constitutes error because the trial court
judgment is against the weight of the evidence.
{¶18} To the extent that Mother challenges the judgment as being against the weight of
the evidence, this Court will review the evidence before the trial court. The record establishes
that M.B. resided with Mother for approximately one month at the treatment center before being
removed to a foster placement for eight months, and then to the home of relatives where he has
remained since November 17, 2010.
{¶19} There were concerns with Mother’s ability to care for M.B. even while she was at
the treatment center. The staff believed that Mother was not keeping M.B.’s bottles clean and
was not cleaning him well at diaper changes. A crisis point was reached, however, when the
staff formally expressed its concern to Mother about her lack of progress in her substance abuse
treatment. Mother became irate and abruptly began swinging the baby without even supporting
his head. At that point, LCCS initiated proceedings to remove M.B from the facility and from
Mother’s care because M.B.’s safety could not be ensured.
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{¶20} Thereafter, Mother’s interaction with M.B. took place through visits. To
Mother’s credit, two case aides testified that Mother was generally nurturing and attentive during
visits and that she regularly brought clothing and toys for her son to those visits. However, those
same aides, a caseworker and a police officer, all testified to several incidents of aggressive and
volatile behavior by Mother, similar to the incident that took place at the residential treatment
center. One such example took place at the courthouse after a visitation hearing. Mother became
verbally aggressive upon learning that her older son, S.Z., was having visits with his father when
she was not present.
{¶21} Mother also lost control of her emotions on several occasions during visits with
her children. A case aide explained that when Mother gets frustrated, her behavior continues to
escalate and the staff is unable to redirect or calm her. Service providers were occasionally
frightened by Mother’s behavior, and they were concerned that they might not be able to protect
the children from Mother’s anger and aggressive actions.
{¶22} Mother’s June 30, 2010 visit with M.B. is illustrative. At that time, Father had
been excluded from visits because of his inappropriate behavior. Father was still providing
transportation for Mother, however, and he telephoned her during that visit to say he wanted to
pick her up early. Mother became angry at him and inappropriately conveyed her complaints to
the children. The aide cautioned Mother against involving the children in such issues. Mother
then declared that she was going to take the children out of foster care. She became agitated,
rocked, and cried with M.B. in her arms. The aide repeatedly cautioned her to maintain
appropriate behavior, but Mother became very anxious and her conduct kept escalating until it
became “explosive.” The aide attempted to end the visit, and the supervisor came in to assist.
When the caseworker asked the older child to follow her out of the room, Mother “was dangling”
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the screaming baby with one arm and grabbing the arm of her older son with her other arm,
causing S.Z. to be confused about what he should do. After outbursts such as this, Mother’s
visitation with M.B. was changed from four to two hours weekly and a sheriff’s deputy was
required to be present.
{¶23} Two additional incidents took place in the month prior to the February 28, 2011
legal custody hearing. First, on January 31, 2011, Mother left a threatening phone message for
her caseworker. According to the caseworker, Mother complained that the caseworker had
stated that she was not completing her case plan and was telling people she was explosive. The
caseworker repeated a part of Mother’s message: “I’m going to show you explosive and knock
you the “f--- out, b----.”
{¶24} Second, on February 19, 2011, local police responded to a 911 call from Mother’s
home. It was the second time police were called to the home in two days. When they arrived,
they found Mother to be furious with Father and wanted him removed from the home. The
police explained that they could not force him to leave because he was a resident of the home.
Mother then told the police officers to “get the F out.” Mother called police dispatch again and
screamed at them over the telephone. Mother’s landlord called the police just a few minutes
later with concern for Mother’s well-being because she was still yelling and screaming. One of
the attending officers testified that in 17 years of police work, he had never seen a person so out
of control.
{¶25} In addition to her intermittently volatile behavior, Mother had a ten-year history
of substance abuse and treatment that included several relapses along the way. Mother’s
substance abuse counselors stated that Mother had met her “milestones” in treatment, but had
failed to internalize the treatment she had received. There was concern that Mother might
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relapse again. One counselor explained that Mother was stepped down from residential
treatment to outpatient treatment only because she had gotten all she was going to get from the
residential program. The counselor expressed concern with the fact that Mother continued her
relationship with Father who had a history of substance abuse and mental health issues. Mother
told the caseworker that she did not want to be apart from Father or to live alone. One of the
case aides, who had responsibility for scheduling Mother’s drug screens, noted that Mother had
refused three to five screens within the past month.
{¶26} Mother’s mental health counselor explained that Mother also has a history of
mental health challenges and that she had been engaged in counseling intermittently since 2003,
with her case being closed several times for lack of attendance. The counselor called attention to
the fact that Mother’s own mother had previously supported her financially and with child care,
but she is now deceased. The caseworker expressed concern with Mother’s judgment and cited
Mother’s habit of speaking to S.Z. as an adult. Mother thought there was nothing wrong with
that because he knew everything already. The caseworker believes Mother is unable to apply
what she has been taught and lacks insight into her problems.
{¶27} Regarding the child’s relationship with the relatives, the caseworker explained
that M.B. had resided with his great aunt and uncle for three months by the time of the hearing.
The caseworker visits the child there monthly. M.B. is doing well and had formed an attachment
to the family. He goes to the great aunt for comfort and has good play interaction with the great
uncle. He is doing well physically and is meeting developmental milestones. The great aunt and
uncle are facilitating visits with Mother. The caseworker said that there were no current
concerns with M.B. in that home and expressed the belief that it is in the best interest of the child
to be in the legal custody of his great aunt and great uncle. The agency does not believe Mother
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is able to care for a child due to her long history of mental health challenges, domestic violence,
inability to control anger and aggression, substance abuse of cocaine, and generally poor
judgment.
{¶28} The guardian ad litem recommended, on the other hand, that M.B. should be
placed with Mother, reasoning that Mother had completed most of her case plan and she saw no
reason why custody should not be granted to Mother. Without further explanation, she felt that
Mother had made “great improvement” with her substance abuse addiction. The guardian
acknowledged that Mother still needed to address her mental health problems. Although her
written report pre-dated the recent incident involving police being called to Mother’s home, she
did not believe that incident would impact her previously reached recommendation.
{¶29} On cross-examination, the guardian ad litem acknowledged that she had not seen
one-year-old M.B. for three months and had never seen him in his Kentucky placement.
Moreover, she conceded that her recommendation might be more accurate if she had seen M.B.
in Kentucky, but that she could not drive that far for health reasons. Significantly, in her
testimony and final report, the guardian offered no information or evaluation regarding the
relationship between M.B. and his parents or about their interactions during visits. In her earlier
interim report, the guardian ad litem stated that there was little activity during visits between
Mother, Father, and the children.
{¶30} On appeal, Mother argues that neither the magistrate nor the trial judge
considered the recommendation of the guardian ad litem. Mother did not object to the decision
of the magistrate on the basis of a failure to mention or consider the recommendation of the
guardian ad litem. Consequently, Mother could be found to have forfeited the right to assign it
as error on appeal. Juv.R. 40(D)(3)(b)(iv). Moreover, as we have often noted, the statutory
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scheme regarding an award of legal custody following an adjudication of abuse, neglect or
dependency does not include a specific test or set of criteria that must be considered beyond a
broad determination of the best interest of the child. See, e.g., In re N.P., 9th Dist. No. 21707,
2004-Ohio-110, ¶ 23.
{¶31} Even so, we observe that the trial judge included in his judgment entry that he
considered the arguments of the parties, the transcripts of the proceedings, and the evidence
presented at the hearing in arriving at his decision. The trial judge was not required to
specifically comment upon all of the evidence heard or considered. Because the report and
testimony of the guardian ad litem were included in the evidence before the court, we presume
that the trial judge considered them. Based upon this Court’s careful review of the entire record,
the recommendation of the guardian ad litem does not outweigh the abundance of evidence in
favor of granting legal custody to the relatives. Accordingly, Mother’s third assignment of error
is overruled.
FATHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN NOT AWARDING [FATHER] VISITATION
WITH THE MINOR CHILD.
{¶32} Father asserts the trial court erred in failing to address the issue of visitation in its
order granting legal custody of M.B. to relatives.
{¶33} Father’s initial case plan provided for supervised visits with his son while an
order of temporary custody to the agency was in effect. Two months later, an amended case plan
indicated that Father’s visits were stopped because of inappropriate behavior during a supervised
visit. Thereafter, the court granted legal custody to relatives, but failed to include an order
regarding visitation. Although the trial court made a finding of fact that Father had no visitation
at the time, the judgment entry includes no court order regarding visitation going forward.
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{¶34} Father contends that he is entitled to reasonable visitation and asserts his
“fundamental interest in the care, custody, and management” of his child. These rights,
however, are not absolute, but “are always subject to the ultimate welfare of the child.” In re
Cunningham, 59 Ohio St.2d 100, 106 (1979). Where, as here, a child has been adjudicated
abused, dependent or neglected, that judgment “implicitly involves a determination of the
unsuitability of the child’s parents.” In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 22. As
the parent of a neglected and dependent child whose legal custody is being awarded to a non-
parent, Father no longer retains the full range of parental rights, but rather only “residual parental
rights, privileges and responsibilities,” which include “the privilege of reasonable visitation[.]”
R.C. 2151.353(A)(3)(c). See also R.C. 2151.011(B)(48). Furthermore, in a case where there has
been an adjudication of abuse, neglect or dependency, a juvenile court is permitted to “[c]ontrol
any [parental] conduct or relationship that will be detrimental or harmful to the child.” R.C.
2151.359(A)(1). Accordingly, Father is not guaranteed visitation with his son, but visitation
remains an issue to be considered and ruled upon by the juvenile court.
{¶35} Because the trial court did not rule upon the matter of visitation at the time it
granted legal custody of M.B. to relatives, this Court remands this matter to the trial court for
consideration of the question of parental visitation. Father’s assignment of error is sustained.
III.
{¶36} Mother’s three assignments of error are overruled. Father’s assignment of error is
sustained. The judgment of the Lorain County Court of Common Pleas, Juvenile Division, is
affirmed in part and reversed in part.
Judgment affirmed in part,
and reversed in part.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
CONCURS.
BELFANCE, J.
CONCURRING IN JUDGMENT ONLY.
{¶37} I concur with most of the majority opinion, but write separately to address
Father’s assignment of error regarding visitation. In my view, the problem with the issue of
visitation is not the absence of a ruling, but rather that the ruling is ambiguous. Accordingly, on
that basis, I agree that the matter should be remanded to the trial court for clarification.
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APPEARANCES:
BARBARA A. WEBBER, Attorney at Law, for Appellant.
HOLLACE B. WEIZEL, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and AMY L. PRICE, Assistant Prosecuting Attorney,
for Appellee.