In re R.R. , 2015 Ohio 5245 ( 2015 )

[Cite as In re R.R., 2015-Ohio-5245.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: R.R. C.A. No. 27572
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN14-03-0187
DECISION AND JOURNAL ENTRY
Dated: December 16, 2015
MOORE, Judge.
{¶1} Appellant, Leslie H. (“Father”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that adjudicated his minor child dependent and
placed him in the temporary custody of Summit County Children Services Board (“CSB”). This
Court affirms in part and reverses in part.
I.
{¶2} Father is the natural father of R.R., born September 9, 2009. R.R.’s mother, who
is not a party to this appeal, was the child’s sole residential parent when this case began.
{¶3} On March 26, 2014, R.R. was removed from the custody of his mother because
she had mental health problems which had led to her admission to a hospital psychiatric unit.
R.R. was placed in the emergency temporary custody of CSB. The child was not placed with
Father at that time because CSB suspected that he regularly abused alcohol.
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{¶4} The matter proceeded to an adjudicatory hearing before a magistrate. Although
CSB had alleged that R.R. was abused, neglected, and dependent, the magistrate found that CSB
had proven only that the child was dependent and adjudicated him accordingly. The trial court
adopted the magistrate’s decision the same day, pending the filing of timely, written objections.
{¶5} Father and CSB filed timely objections to the magistrate’s adjudicatory decision.
CSB objected to the magistrate’s failure to adjudicate R.R. abused and neglected, based on the
evidence presented at the hearing. Father objected to the magistrate’s finding that R.R. was
dependent and to the magistrate’s finding that CSB had made reasonable efforts to prevent the
ongoing removal of R.R. from the home.
{¶6} Following the dispositional hearing, although CSB had attempted to demonstrate
that Father had a serious drinking problem, the magistrate decided that R.R. should be placed in
the temporary custody of Father under an order of protective supervision by CSB. That same
day, June 30, 2014, the trial court adopted the magistrate’s dispositional decision. For reasons
not clear from the record, Father did not take physical custody of R.R. until July 8, 2014.
{¶7} The next day, however, CSB received information that Father had consumed so
much alcohol on the day that R.R. was returned to his care that he had blacked out and had been
unable to go to work that morning. CSB immediately filed objections to the magistrate’s
dispositional decision. Its objections explained its new concerns in detail and also pointed to
evidence presented at the hearing to support its argument that R.R. should not be placed in
Father’s custody. Pursuant to Juv.R. 40(D)(4)(e)(i), CSB’s timely objections automatically
stayed the trial court’s June 30 judgment that adopted the magistrate’s decision to place R.R. in
Father’s temporary custody. R.R. was removed from Father’s custody that day.
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{¶8} After the court reporter filed transcripts of the adjudicatory and dispositional
hearings, CSB supplemented its objections to the adjudicatory decision with citations to the
transcript. A few days later, Father filed a brief to supplement his objections to the magistrate’s
adjudicatory decision and also raised, for the first time, objections to the magistrate’s
dispositional decision.
{¶9} On August 21, 2014, Father moved the trial court to place R.R. in his temporary
custody under a Juv.R. 40 interim order and requested an expedited hearing on the matter. Six
days later, CSB filed a motion for an evidentiary hearing on its objection to the magistrate’s
dispositional decision. The following day, the trial court set a hearing on Father’s request for an
interim order of temporary custody of R.R. pending the court’s ruling on the outstanding
objections.
{¶10} On September 25, 2014, the trial judge commenced a hearing on CSB’s
objections and Father’s motion for return of R.R. to his home. Counsel for Father and CSB
argued about whether the trial court should consider evidence about Father’s behavior that had
allegedly occurred after the dispositional hearing. Ultimately, the trial court allowed CSB to
present the evidence about Father drinking heavily on the day that R.R. was placed in his
temporary custody, that Father had passed out while the child was with him, that the only other
adult in the home had not been approved by CSB to watch the child, and that R.R.’s childcare
provider (Father’s ex-wife) was unable to rouse Father when she came to pick up R.R. the next
day. Father did not go to work that day but, after his ex-wife was able to make contact with him
a few hours later, he allowed her to take the child to her home. Because the ex-wife was
concerned about R.R.’s safety, she contacted CSB.
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{¶11} Father testified on the second day of the hearing. He denied that he had gotten
drunk or passed out while R.R. was in his home. He further explained that he did not go to work
the next day because he had taken the day off but had forgotten to tell his ex-wife.
{¶12} Following the hearing and a review of the transcripts of the original hearings
before the magistrate, the trial court sustained CSB’s objection to the magistrate’s dispositional
decision and overruled the objections to the magistrate’s adjudicatory decision. The trial court
adjudicated R.R. as a dependent child and placed him in the temporary custody of CSB. Father
appeals and raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
THE APPELLATE COURT LACKS JURISDICTION TO CONSIDER THE
APPEAL BECAUSE THE TRIAL COURT FAILED TO ISSUE A FINAL,
APPEALABLE ORDER.
{¶13} Father’s first assignment of error is that this Court lacks jurisdiction to hear his
appeal because the trial court did not issue a final, appealable order. Specifically, he asserts that
the trial court failed to rule on all of his objections to the magistrate’s adjudicatory and
dispositional decisions and, for that reason, the trial court’s judgment is not final.
{¶14} To begin with, the trial court was required to rule only on objections that the
parties “timely filed[.]” Juv.R. 40(D)(4)(d). Although Father filed timely objections to the
magistrate’s May 21 adjudicatory decision, he filed no timely objections to the magistrate’s June
30 dispositional decision. See In re L.P., 9th Dist. Summit No. 27792, 2015-Ohio-4164, ¶ 34
(emphasizing that timely objections to a magistrate’s adjudicatory decision did not constitute
objections to the magistrate’s separate dispositional decision); Juv.R. 40(D)(4)(e) and Juv.R.
40(D)(5). Instead, when Father filed a brief to supplement his pending objections to the
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adjudicatory decision, he attempted to raise objections to the magistrate’s dispositional decision.
Given that the term “supplement” means to make an addition to something that already exists, a
party’s authority to supplement objections after the transcript of the hearing is filed is necessarily
limited to objections that a party has already filed with the trial court in a timely manner. See,
e.g., Juv.R. 40(D)(3)(b)(iii); Loc.R. 3.03(F) of the Court of Common Pleas of Summit County,
Juvenile Division; Merriam-Webster’s Collegiate Dictionary 1255 (11th Ed.2005). Because
Father filed no timely objections to the dispositional decision, the trial court was not required to
address them.
{¶15} Father did file timely objections to the magistrate’s adjudicatory decision, some of
which were not explicitly addressed by the trial court. Father does not argue the merits of his
objections under this assigned error but argues only that the judgment is not final because the
trial court did not explicitly rule on every objection. Father relies on case law that that followed
this Court’s reasoning in In re Strickler, 9th Dist. Lorain Nos. 08CA009375, 08CA009393,
2008-Ohio-5813, ¶ 8, which this Court overruled in Miller v. Miller, 9th Dist. Medina No.
10CA0034-M, 2011-Ohio-4299, ¶ 19. Pursuant to this Court’s decision in Miller, “a trial court’s
failure to rule on objections to a magistrate’s decision will not cause this Court to dismiss an
appeal from the trial court’s final judgment.” Id. Because Father has failed to demonstrate that
this Court lacks jurisdiction to hear his appeal, his first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
DENYING FATHER DUE PROCESS OF LAW BY FAILING TO NOTIFY
HIM THAT IT WOULD BE CONDUCTING A HEARING ON OBJECTIONS
OR ON ALLEGATIONS CONCERNING EVENTS THAT OCCURRED
SUBSEQUENT TO THE DISPOSITIONAL HEARING.
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{¶16} Father’s second assignment of error is that the trial court denied him due process
by considering new evidence when it ruled on the objections to the magistrate’s decisions. He
does not dispute that the trial court was authorized by Juv.R. 40(D)(4)(d) to hear additional
evidence, nor does he challenge the substantive merits of the trial court’s dispositional decision.
Instead, he asserts that he was not given adequate notice that the trial court would take or
consider new evidence in ruling on CSB’s objections to the dispositional decision.
{¶17} R.R. was physically placed in Father’s temporary custody on July 8, 2014. The
next day, CSB received information that, while R.R. was in his home, Father had consumed so
much alcohol that he had blacked out and was unable to go to work the next day. Consequently,
CSB filed objections to the magistrate’s dispositional decision, immediately giving Father notice
that it wanted the trial court to consider new evidence when it ruled on its objections. The
agency’s brief in support of its objections detailed its concerns about Father drinking the first day
that R.R. was placed in his care and also pointed to evidence about Father’s drinking that had
been presented at the dispositional hearing.
{¶18} On August 21, 2014, Father requested that the trial court issue an interim order
under Juv.R. 40(D)(4)(e)(ii) to place R.R. in his temporary custody pending the court’s ruling on
the objections and that it hold an expedited hearing on the matter.1 On August 27, 2014, CSB
filed a motion for an evidentiary hearing on its objection to the magistrate’s dispositional
decision. Specifically, it requested that the court set an evidentiary hearing “so the agency can
present testimony regarding additional concerns regarding father that have come to light since
1
Because the trial court did not ultimately issue an interim order, this Court does not
reach the issue of whether the trial court would have had authority to do so, given that it had
issued its judgment adopting the magistrate’s decision almost two months earlier, which had
been automatically stayed by CSB’s timely objections.
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the [dispositional] hearing.” The following day, the trial court set a hearing with respect to
Father’s request for an interim order of temporary custody of R.R.
{¶19} The trial judge commenced the hearing on September 25, 2014. Counsel for
Father and CSB argued about whether the trial court should consider evidence about Father’s
behavior that allegedly occurred after the dispositional hearing. A lengthy discussion ensued
about whether Father had been given adequate notice about this issue and whether CSB had
properly raised the matter through its objections to the magistrate’s dispositional decision.
Ultimately, the trial judge allowed CSB to present its evidence, emphasizing that it was relevant
to Father’s request for immediate custody as well as CSB’s objection to him receiving temporary
custody.
{¶20} Any dispositional order in this case required the trial court to consider
circumstances pertaining to the best interest of the child. See R.C. 2151.42(A). If the trial court
had authority to entertain Father’s motion for an interim order at that point, such an order would
require a demonstration to the trial court that “immediate relief is justified.” Juv.R.
40(D)(4)(e)(ii). Because the dispositional hearing had focused on whether Father could
adequately care for R.R., despite CSB’s concerns that he had a drinking problem, CSB’s
evidence that Father had been heavily drinking immediately after R.R. was placed in his home
was relevant to whether he should have custody of his child at that time.
{¶21} Moreover, even if Father lacked adequate notice that the trial court would
consider the new evidence, he raised no objection to the testimony at the hearing, nor did he
request a continuance, which could have avoided any prejudice caused by a lack of notice. See
In re L.P., 9th Dist. Summit No. 27792, 2015-Ohio-4164, ¶ 25. The trial court held the
remainder of the hearing on a second day, four days later, and Father presented his own
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testimony about whether he had been drinking on the day that R.R. was placed in his care.
Because Father has failed to demonstrate that he was denied due process during these
proceedings, his second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
FAILING TO MAKE FINDINGS REGARDING WHETHER [CSB] MADE
REASONABLE EFFORTS.
{¶22} Father’s final assignment of error is that the trial court failed to comply with the
requirements of R.C. 2151.419(A)(1) in its adjudicatory and dispositional decisions. The trial
court continued R.R.’s removal from the home on an emergency basis when it adjudicated the
child and placed him in the temporary custody of CSB after sustaining CSB’s objections and
entering its independent dispositional decision. Therefore, it was required to find that CSB had
made reasonable reunification efforts and to explain the factual basis for those findings. Father
asserts that the trial court committed reversible error by failing to make the requisite findings.
{¶23} First, we must emphasize that this assigned error is unrelated to the evidence
supporting the trial court’s adjudicatory and dispositional decisions. Instead, it pertains to a
separate requirement during these proceedings that, if a child is properly removed from the home
or remains outside the home, the agency must demonstrate that it is making reasonable efforts to
facilitate the return of the child to his home or the custody of a relative. In other words, a
deficiency in the reunification efforts of the agency does not undermine the substantive merits of
the trial court’s adjudication or disposition of the child. See In re J.G., 9th Dist. Wayne No.
12CA0037, 2013-Ohio-417 (adjudication and disposition affirmed on the merits but reversed
solely for the purpose of the trial court making reasonable efforts findings).
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{¶24} This statutory requirement is imposed upon the agency and the trial court to
ensure that the agency is properly working toward reunifying the child with his family. Because
the trial court’s adjudication and disposition order continued R.R.’s removal from his home, R.C.
2151.419(A)(1) required CSB to prove, and the trial court to explicitly find, that CSB had made
“reasonable efforts to prevent the removal of the child from the child’s home, to eliminate the
continued removal of the child from the child’s home, or to make it possible for the child to
return safely home.” The trial court did not make such a finding in this case. Moreover, R.C.
2151.419(B)(1) also requires that “when making those required reasonable efforts findings, the
court ‘shall issue written findings of fact setting forth the reasons supporting its determination.’
Specifically, it must ‘briefly describe in [its] findings of fact the relevant services provided by
the agency to the family of the child and why those services did not prevent the removal of the
child from the child’s home or enable the child to return safely home.’” In re J.G., at ¶ 31,
quoting R.C. 2151.419(B)(1).
{¶25} Although CSB argues that these findings were implicit in its judgment, this Court
has previously rejected that argument. In re J.G. at ¶ 34-35. Based on the evidence before the
trial court, its failure to articulate a finding of reasonable efforts, as well as its failure to set forth
the factual basis for that finding as set forth in R.C. 2151.419(B)(1), constituted reversible error.
In re J.G. at ¶ 34-36. Father’s third assignment of error is sustained.
III.
{¶26} Father’s first and second assignments of error are overruled and his third
assignment of error is sustained. The judgment adjudicating R.R. as a dependent child and
placing him in the temporary custody of CSB is affirmed in part and is reversed and remanded
only insofar as the trial court failed to make the required reasonable efforts findings.
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Judgment affirmed in part,
reversed in part,
and cause remanded.
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 Summit, 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.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
MARK SWEENEY, Attorney at Law, for Appellee.
LINDA BENNETT, Guardian ad Litem.