In re K.D. , 2018 Ohio 3454 ( 2018 )

[Cite as In re K.D., 2018-Ohio-3454.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
Hon. John W. Wise, P. J.
IN THE MATTER OF: Hon. W. Scott Gwin, J.
Hon. Craig R. Baldwin, J.
K.D. Case No. 18 CA 0026
DEPENDENT CHILD OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. F2016-
0186
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 27, 2018
APPEARANCES:
For Appellant Father For Appellee LCJFS
ERIN J. MCENANEY WILLIAM C. HAYES
6956 East Broad Street PROSECUTING ATTORNEY
#238 JEFFREY BOUCHER
Columbus, Ohio 43213 ASSISTANT PROSECUTOR
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 18 CA 0026 2
Wise, P. J.
{¶1} Appellant-Father Jamie D. appeals the decision of the Licking County Court
of Common Pleas, Juvenile Division, which granted permanent custody of his minor
child, K.D., to the Licking County Job and Family Services (“LCJFS”). The relevant
procedural facts leading to this appeal are as follows.
{¶2} Appellant is the father of two minor children, L.D., born in 2014, and K.D.,
born in 2012.1 Appellant is married to Stephanie D., the mother of the two children. Both
children were removed from the mother's home in March 2016 upon a report received
by the agency that the parents had tested positive for methamphetamine. The concerns
at that time included parental substance abuse and unemployment, potential loss of
housing, and previous domestic violence incidents allegedly witnessed by the children.
{¶3} On March 23, 2016, LCJFS filed a complaint alleging dependency in the
Licking County Court of Common Pleas, Juvenile Division. On June 15, 2016, appellant
and the children’s mother appeared in court and stipulated to a dependency finding.
{¶4} A dispositional hearing took place on August 19, 2016. A juvenile court
magistrate issued a decision on September 19, 2016, recommending the maintaining of
temporary custody with the agency. Both parents filed objections, but the trial court
overruled same and adopted the magistrate’s decision via a judgment entry issued on
March 24, 2017.
1 The sibling’s case, as to appellant-father, is being addressed under a separate
appellate case number. In addition, the mother of the children has filed her own appeal.
Licking County, Case No. 18 CA 0026 3
{¶5} In the meantime, prior to the court’s ruling on the aforesaid objections, the
agency filed a motion for permanent custody on February 17, 2017. The matter was
heard by a magistrate on August 28, 2017, October 18, 2017, and October 20, 2017.
{¶6} After taking the matter under advisement, the magistrate issued a decision
on January 25, 2018, recommending a grant of permanent custody of K.D. and L.D. to
LCJFS.
{¶7} On February 8, 2018, Stephanie D., the children’s mother, filed objections
to the magistrate’s decision regarding permanent custody.
{¶8} On February 12, 2018, appellant-father also filed objections to the
magistrate’s decision.
{¶9} The trial court overruled Stephanie D.’s objections and approved the
decision of the magistrate on February 14, 2018.
{¶10} The trial court, in a separate judgment entry, also denied appellant’s
objections on February 14, 2018.2
{¶11} On March 16, 2018, appellant filed a notice of appeal concerning the latter
entry. He herein raises the following sole Assignment of Error:
{¶12} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN
OVERRULING THE DEFENDANT-APPELLANT’S OBJECTION TO THE
MAGISTRATE’S DECISION.”
2 Appellant did not include or attach with his brief a copy of the judgment entry under
appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original document in
the record.
Licking County, Case No. 18 CA 0026 4
I.
{¶13} In his sole Assignment of Error, appellant-father contends the trial court
committed harmful error in overruling his objection to the magistrate’s decision and
awarding permanent custody of K.D. to LCJFS. We disagree.
{¶14} Juv.R. 40(D)(3)(b)(iii) states in pertinent part that “[a]n 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. ***.” (Emphasis added). Furthermore, as we have frequently noted, objections
to a magistrate's decision must be specific. See, e.g., In re M.H., 5th Dist. Fairfield No.
2016 CA 43, 2017-Ohio-1110, ¶ 24, citing North v. Murphy, 5th Dist. Tuscarawas No.
2000AP050044, 2001 WL 246419.
{¶15} A review of the record in the case sub judice reveals the magistrate issued
a seven-page decision, with thirteen paragraphs of factual findings, concluding with a
recommendation of permanent custody of K.D. and L.D. to the agency. Despite this
attention to detail by the magistrate, appellant’s objection to the decision makes only the
general assertion that the ruling was against the manifest weight of the evidence, with
no factual findings mentioned; instead, the objection merely indicates a memorandum
would be forthcoming after receipt of the transcript.
{¶16} Appellant presently concedes that his objection “did not state particular
grounds” (Appellant’s Brief at 7), but he essentially maintains that supplementation
thereto would have been sought upon completion of the transcript. Certainly, Juv.R.
40(D)(3)(b)(iii) additionally states that “[i]f a party files timely objections prior to the date
Licking County, Case No. 18 CA 0026 5
on which a transcript is prepared, the party may seek leave of court to supplement the
objections.” Because this portion of the rule utilizes “leave of court” language, allowance
of supplementation would be at the trial court’s discretion. See Matter of Estate of
Holbrook, 5th Dist. Tuscarawas No. 2016 AP 10 0051, 2017-Ohio-4429, ¶ 32, citing Riley
v. City of Cincinnati, 1st Dist. Hamilton No. C–73435, 1974 WL 184559. It would not be
unusual for an attorney representing an objecting party to bulk up his or her objections
under Civ.R. 53 or Juv.R. 40 after an opportunity to read and review a trial transcript.
However, we are unable in this instance to conclude the trial court abused its discretion
in denying appellant an opportunity to do so, given the paucity of his original objection,
even though the rule ordinarily allows thirty days to obtain a transcript.
{¶17} The trial court, in the judgment entry under appeal, cross-referenced its
other judgment entry (issued on the same day), in which it had denied the objections
filed by the mother, Stephanie D., and, having reviewed the audio record and exhibits,
approved and adopted the magistrate’s decision recommending permanent custody to
the agency of both children. Reading the two rulings in pari materia, we find no basis to
reverse the trial court’s decision in the judgment entry under appeal to deny appellant’s
objections under Juv.R. 40.3
3 The trial court also found appellant’s objections were untimely filed. Although we
presently find the issue moot, we observe Juv.R. 40(D)(3)(b)(i) clearly states that if a party
(Stephanie D. in this case) timely files objections, any other party may also file objections
“not later than ten days after the first objections are filed.”
Licking County, Case No. 18 CA 0026 6
{¶18} Appellant's sole Assignment of Error is therefore overruled.
{¶19} For the reasons stated in the foregoing opinion, the decision of the Court of
Common Pleas, Juvenile Division, Licking County, Ohio, is hereby affirmed.
By: Wise, P. J.
Gwin, J., and
Baldwin, J., concur.
JWW/d 0727