In re K.M. , 2011 Ohio 3632 ( 2011 )

[Cite as In re K.M., 2011-Ohio-3632.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
IN THE MATTER OF:
CASE NO. 17-11-15
K. M.,
ADJUDGED DEPENDENT CHILD,
[JEFFREY M.,
APPELLANT/FATHER], OPINION
[KATHLEEN M.,
APPELLANT/MOTHER].
IN THE MATTER OF:
CASE NO. 17-11-16
A. M.,
ADJUDGED DEPENDENT CHILD,
[JEFFREY M.,
APPELLANT/FATHER], OPINION
[KATHLEEN M.,
APPELLANT/MOTHER].
IN THE MATTER OF:
CASE NO. 17-11-17
J. M.,
ADJUDGED DEPENDENT CHILD,
[JEFFREY M.,
APPELLANT/FATHER], OPINION
[KATHLEEN M.,
APPELLANT/MOTHER].
Case Nos. 17-11-15, 17-11-16, 17-11-17
Appeal from Shelby County Common Pleas Court
Trial Court Nos. 2010-NEG-0024, 2010-NEG-0026, 2010-NEG-0025
Judgments Reversed and Causes Remanded
Date of Decision: July 25, 2011
APPEARANCES:
Darrell L. Heckman for Appellants
Rachael E. Stir for Appellee
PRESTON, J.
{¶1} Parents-appellants, Kathleen M. and Jeffrey M. (hereinafter
“appellants”), appeal the Shelby County Court of Common Pleas’ judgment entry
adjudicating their three minor children, K.M., J.M., and A.M., dependent children
pursuant to R.C. 2151.04(C) and (D) and ordering that the children remain under
the protective supervision of the Shelby County Department of Job and Family
Services, Children Services Division (hereinafter “Children Services”) for six (6)
months. For the reasons that follow, we reverse.
{¶2} On August 6, 2010, Shelby County Sheriff’s Deputy Strunk and
Chief Glass of the Botkins Police Department responded to Kathy’s phone call
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requesting police assistance for an unruly child (J.M.). (Doc. No. 30, Dec. 1, 2010
Magistrate’s Decision, FOF #2). While responding to the call, Deputy Strunk and
Chief Glass observed that appellants’ home was filled with clutter, debris, junk,
dirt, and filth, to the point that it was difficult to travel from room to room. (Id. at
FOF ##7-8). Deputy Strunk and Chief Glass took several photographs of the
inside of appellants’ home. (Id. at FOF #6); (Exs. A-G, I-Q).
{¶3} On August 12, 2010, Children Services visited appellants’ home and
noted that the home was in a similar condition as that depicted in the August 6th
photographs. (Id. at FOF #13). On August 17, 2010, Children Services enacted a
“safety plan,” removed the children from appellants’ home, and placed the
children with a neighbor until the conditions of the home improved. (Id. at FOF ##
22-23). Children Services noticed some improvements in appellants’ home during
their August 17th visit but the totality of the clutter, filth, smell, etc. remained. (Id.
at FOF #23).
{¶4} On August 19, 2010, Children Services returned to appellants’ home
and noticed that the home’s condition was a “major improvement.” (Id. at FOF
#24). The clutter in the home had been removed; the home had been cleaned and
tidied; the cleaning supplies and other dangerous chemicals properly stored; and
the counters and floors had been cleaned and shined. (Id. at FOF # 26). Children
Services took several photographs of appellants’ home on that date showing the
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improvements. (Id.); (Exs. R-HH). As a result of the home inspection, Children
Services lifted the “safety plan” and allowed the children to return home. (Id. at
FOF #25). On September 22, 2010, Children Services returned to the home for
another inspection, but appellants did not allow them to enter the home. (Id. at
FOF #32).
{¶5} On September 28, 2010, Children Services filed complaints alleging
that the three children were neglected and dependent children pursuant to R.C.
2151.03(b) and (f) and R.C. 2151.04(c) and (d). (Doc. Nos. 1, 1, 1).1 The
complaint involving K.M. was assigned case no. 2010 NEG 0024; the complaint
involving J.M. was assigned case no. 2010 NEG 0025; and the complaint
involving A.M. was assigned case no. 2010 NEG 0026.
{¶6} On November 19, 2011, an adjudication hearing was held before a
magistrate, and, on December 1, 2010, the magistrate issued decisions finding that
the children were dependent children. (Doc. Nos. 29, 29, 30).
{¶7} A dispositional hearing was held on December 8, 2010. (Id.). On
December 14, 2010, the magistrate issued decisions that the children should
remain in appellants’ physical custody but under Children Services’ protective
supervision for six (6) months. (Doc. Nos. 30, 30, 31). The magistrate ordered
that Children Services monitor appellants home through announced and
1
Since there are three separate trial court case numbers involving each child, citations to the record herein
will have three docket numbers, one for each case, even though some of the docket numbers are identical.
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unannounced visits, but ordered that appellants’ shall not be required to complete
any additional services or duties. (Id.).
{¶8} On December 15, 2010, the trial court filed orders adopting the
magistrate’s December 1, 2010 adjudication and instructed counsel for Children
Services to prepare proposed judgment entries in conformity with its orders. (Doc.
Nos. 31, 31, 32).
{¶9} On December 21, 2010, the trial court filed entries adjudicating the
children dependent children as defined in R.C. 2151.04(c) and (d). (Doc. Nos. 32,
32, 33).
{¶10} On January 3, 2011, the trial court filed orders adopting the
magistrate’s December 14, 2010 dispositional decisions and instructing counsel
for Children Services to prepare judgment entries in conformity with its orders.
(Doc. Nos. 33, 33, 34).
{¶11} On January 6, 2011, appellants filed a “Motion for Extension of
Time to File Objections to Magistrate’s Decisions” pursuant to Civ.R. 53(D)(5).
(Doc. No. 35). The motion specifically requested leave to file delayed objections
with respect to the magistrate’s December 1st adjudication and December 14th
disposition. (Id.).
{¶12} On January 7, 2011, the trial court granted the motion, ordering that:
a transcript be prepared at appellants’ expense and filed by February 15, 2011;
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and, “* * * [appellants] shall be granted leave to supplement their Objections
within 14 days after the filing of the transcript herein.” (Doc. Nos. 35, 35, 36).
{¶13} On February 22, 2011, appellants filed a “supplement to objections.”
(Doc. Nos. 40, 40, 41). On February 28, 2011, Children Services filed a response
to the objections arguing that the trial court should ignore appellants’ objections
since they were untimely. (Doc. Nos. 41, 41, 42). On March 7, 2011, appellants
filed a reply to Children Services’ response. (Doc. Nos. 42, 42, 43).
{¶14} On March 8, 2011, the trial court filed a judgment entry dismissing
appellants’ objections as untimely with respect to the magistrate’s December 1st
adjudication and overruling appellants’ objections with respect to the magistrate’s
December 14th disposition. (Doc. Nos. 43, 43, 44). The trial court adjudicated the
children dependent and ordered that the children remain under Children Services’
protective supervision for six (6) months. (Id.).
{¶15} On March 21, 2011, appellants filed their notice of appeal. (Doc.
Nos. 45, 45, 46). Appellants now appeal raising three assignments of error for our
review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN FINDING THE CHILDREN
TO BE DEPENDENT UNDER R.C. 2151.04(C).
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{¶16} In their first assignment of error, appellants argue that the trial court
erred by not considering their objections to the magistrate’s December 1st
adjudication after it had granted leave to file the objections. Next, appellants
argue that the trial court committed plain error by adjudicating the children
dependent, because the conditions in the home were remedied before the filing of
the complaint.
{¶17} Before addressing the merits of appellants’ assignment of error, we
must address Children Services’ jurisdictional argument. Children Services argues
that, under App.R. 4(B)(2) and (3), appellants were required to file their notice of
appeal within thirty (30) days after January 3, 2011, when the trial court adopted
the magistrate’s dispositional decision. We disagree.
{¶18} Juv.R. 40(D)(4) provides, in pertinent part:
(4) Action of court on magistrate’s decision and on any
objections to magistrate’s decision; entry of judgment or interim
order by court.
(a) Action of court required. A magistrate’s decision is not
effective unless adopted by the court.
***
(e) Entry of judgment or interim order by court. A court that
adopts, rejects, or modifies a magistrate’s decision shall also
enter a judgment or interim order.
Juv.R. 40(D)(4)(a), (e) (emphasis added). The trial court’s January 3, 2011 order
was merely an adoption of the magistrate’s December 14, 2010 dispositional
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decision as required under Juv.R. 40(D)(4)(a). Juv.R. 40(D)(4)(e), however,
requires that the trial court “also enter a judgment.” In re K.K., 9th Dist. No.
22352, 2005-Ohio-3112, ¶6, quoting Harkai v. Scherba Industries, Inc. (2000),
136 Ohio App.3d 211, 218, 736 N.E.2d 101 (“* * * a trial court cannot merely
adopt a magistrate’s decision but must enter its own judgment that sets forth ‘the
outcome of the dispute and the remedy provided.’”). In fact, the trial court sub
judice ordered that counsel for Children Services prepare a “Judgment Entry in
conformity with [the magistrate’s Dec. 14, 2010] decision * * * for final approval
and filing.” (Doc. Nos. 31, 31, 32). As such, the trial court’s January 3, 2011 entry
was not a final appealable order triggering App.R. 4(A)’s thirty-day filing
deadline. App.R. 4(A) was not triggered until the trial court filed its judgment
entry of disposition on March 8, 2011. (Doc. Nos. 43, 43, 44). Appellants’ notice
of appeal was filed March 21, 2011, well within the App.R. 4(A)’s thirty-day
filing deadline. (Doc. Nos. 45, 45, 46). Therefore, this Court has jurisdiction.
{¶19} With respect to the merits of appellants’ first assignment of error, we
conclude that the trial court erred when it dismissed appellants’ objections to the
magistrate’s December 1st adjudication as untimely. The record indicates that, on
January 6, 2011 and prior to the trial court entering its judgment entry of
disposition, appellants filed a “Motion for Extension of Time to File Objections to
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Magistrate’s Decisions” pursuant to Civ.R. 53(D)(5).2 (Doc. No. 35). Appellants’
motion specifically requested leave to file delayed objections with respect to both
the magistrate’s December 1st adjudication and December 14th disposition. (Id.).
In support of their motion, appellants alleged that their previous trial counsel
refused to file objections despite their request requiring them to retain new trial
counsel, who subsequently filed the motion for extension of time. (Id.).
Appellants also requested that a transcript be prepared and requested leave to
supplement their objections after the transcript was filed. (Id.).
{¶20} On January 7, 2011, the trial court filed an “Order For Transcript,”
which stated, in pertinent part:
On January 6, 2011, [appellants], parents of the above-captioned
children, filed their objections to the Magistrate Decision of
December 1, 2010 and December 14, 2010. The Defendant
further requested leave of the Court to supplement such
objections upon the filing of a transcript of the proceedings
herein.
The Court finds the request of [appellants] to be well taken and
Orders that a transcript of the proceedings be prepared at the
[appellants’] expense. * * *
It is further ORDERED that the Transcript of the proceedings
must be filed by February 15, 2011.
2
Technically, the motion should have been filed pursuant to Juv.R. 40(D)(5), but the appellants’ failure to
designate the proper rule is not fatal. Smith v. Treadwell, 11th Dist. No. 2009-L-150, 2010-Ohio-2682, ¶9,
Fn.2.
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The Court further ORDERS that [appellants] shall be granted
leave to supplement their Objections within 14 days after the
filing of the transcript herein.
(Doc. Nos. 35, 35, 36). Contrary to the trial court’s statements in its January 7,
2011 order, appellants did not file their initial objections until February 22, 2011,
although appellants labeled them as a “supplement to objections.” (Doc. Nos. 40,
40, 41).
{¶21} On March 8, 2011, the trial court filed a judgment entry dismissing
appellants’ objections to the magistrate’s December 1st adjudication as untimely.
(Doc. Nos. 43, 43, 44). The trial court concluded that its January 7, 2011 order
granting appellants an extension of time to file objections to the magistrate’s
December 1st adjudication was erroneous since it had already filed its order of
adjudication on December 21, 2010, prior to appellants’ request for an extension
of time. (Id.). The trial court reasoned that appellants were required to file a
Civ.R. 60(B) motion for relief from its December 21st order of adjudication. (Id.).
With respect to the magistrate’s December 14th disposition, however, the trial
court found that the motion for extension of time was timely since it was filed
before it had entered its final order of disposition. (Id.). Consequently, the trial
court only considered appellants’ objections relative to disposition. (Id.).
{¶22} “‘[I]n order to constitute a final appealable order in dependency
cases, a dependency finding (adjudication) must be accompanied by an order of
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disposition.’” In re Miller, 3d Dist. Nos. 13-06-41, 13-06-42, 13-06-51, 13-06-52,
2007-Ohio-4238, ¶4, quoting In re Nibert, 4th Dist. No. 04CA15, 2005-Ohio-
2797, ¶16, Fn.2. See, also, In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d
1169, syllabus. The trial court’s December 21, 2010 order of adjudication,
therefore, was not a final appealable order but an interlocutory order. In the
Matter of Hall (May 20, 1977), 6th Dist. Nos. H-76-12, H-77-3, H-77-5, H-77-6,
at *2. Contrary to the trial court’s conclusion herein, it had inherent authority to
vacate this interlocutory order, because interlocutory orders are subject to revision
before the entry of final judgment. Mulford v. Columbus and Southern Ohio Elec.,
Co. (Jan. 12, 1994), 4th Dist. No. CA-1548, at *4, citing Civ.R. 54(B); Pitts v.
Dept. of Transp. (1981), 67 Ohio St.2d 378, 379-80, 423 N.E.2d 1105, Fn.1; Davis
v. Davis (Mar. 26, 1992), 8th Dist. Nos. 60224, 60751; State v. Gandy (June 16,
1988), 8th Dist. Nos. 53884, 54010. Additionally, since the December 21, 2010
order was not a final appealable order, a Civ.R. 60(B) motion—which the trial
court stated was required—would have been inappropriate. Vanest v. Pillsbury Co.
(1997), 124 Ohio App.3d 525, 532, 706 N.E.2d 825, citing Jarret v. Dayton
Osteopathic Hosp., Inc. (1985), 20 Ohio St.3d 77, 78, 486 N.E.2d 99. See, also,
Schelick v. Theatre Effects, Inc. (1996), 111 Ohio App.3d 271, 272, 675 N.E.2d
1349. Since the trial court had not yet entered its judgment entry of disposition
(i.e. a final appealable order), appellants were permitted to file a motion for
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extension of time to file objections to the magistrate’s decision pursuant to Juv.R.
40(D)(5).
{¶23} The trial court exercised its discretion to grant appellants’ motion for
extension of time. See In re Estate of Mason, 184 Ohio App.3d 544, 2009-Ohio-
5494, 921 N.E.2d 705, ¶34 (analyzing Civ.R. 53(D)(5)’s extension of time). The
trial court’s order granting appellants’ extension of time was also an interlocutory
order subject to reconsideration. Atlas Am., Inc. v. Fano, 11th Dist. No. 2008-P-
0093, 2008-Ohio-6561. The trial court here did not reconsider the merits of the
order granting the extension of time, i.e. whether appellants had demonstrated
good cause under Juv.R. 40(D)(5); but rather, the trial court erroneously concluded
that it lacked legal authority to grant the extension of time as it had originally
done. Therefore, it appears from the record that the trial court would have
considered appellants’ objections as to adjudication but for its erroneous legal
conclusion. Under these circumstances, it is appropriate to remand the matter for
the trial court to conduct an “independent review” (Juv.R. 40(D)(4)(d)) of the
magistrate’s December 1, 2010 adjudication and December 14, 2010 disposition.
{¶24} Appellants’ first assignment of error is sustained for the reasons
specifically stated herein.
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ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN MAKING A DISPOSITION
CONTINUING STATE SUPERVISION OF THE CHILDREN.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED IN FINDING THE CHILDREN
DEPENDENT UNDER R.C. 2151.04(D).
{¶25} In their second assignment of error, appellants argue that the trial
court inappropriately reviewed the magistrate’s decision for an abuse of discretion
when it was required to independently review the objections. Appellants further
argue that the trial court’s disposition was unwarranted since the conditions
resulting in Children Services’ involvement were remedied before the filing of the
complaint. Appellants also argue that the trial court’s disposition was
inappropriate regardless of when the conditions resulting in Children Services’
involvement were remedied. In their third assignment of error, appellants argue
that the trial court erred in finding the children dependent under R.C. 2151.04(D)
since the trial court erred in finding the children dependent under R.C. 2151.04(C).
{¶26} Since we have already sustained appellants’ first assignment of error
for reasons stated herein, appellants’ remaining assignments of error are rendered
moot. Appellants’ second and third assignments of error are, therefore, overruled
as moot.
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{¶27} Having found prejudicial error in appellants’ first assignment of
error, we reverse the judgment of the trial court and remand the matter to the trial
court for its independent review (Juv.R. 40(D)(4)(d)) of the objections to the
magistrate’s December 1, 2010 adjudication and December 14, 2010 disposition.
Judgments Reversed and
Causes Remanded
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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