In re J.S. ( 2022 )

[Cite as In re J.S., 2022-Ohio-2502.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.S., ET AL. :
Minor Children : No. 111143
[Appeal by S.H., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 21, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD20906255 and AD20906256
Appearances:
Judith M. Kowalski, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
MARY EILEEN KILBANE, J.:
Appellant S.H. (“Mother”) appeals from the juvenile court’s decision
granting legal custody of her minor children, J.S. (d.o.b. 12/28/2015) and E.S.
(d.o.b. 10/11/2017), to the children’s paternal great-grandparents, F.S. and P.S.
(“great-grandparents”). For the following reasons, we affirm the juvenile court’s
decision.
Factual and Procedural History
On July 21, 2020, the Cuyahoga County Division of Children and
Family Services (“agency”) filed a complaint in Cuyahoga J.C. Nos. AD20906255
and AD20906256 for dependency and temporary custody of J.S. and E.S. to the
children’s great-grandparents and filed a motion for predispositional temporary
custody of J.S. and E.S. to their great-grandparents.1 The complaint stemmed from
two incidents related to Mother’s mental health.
On July 27, 2020, the court appointed a guardian ad litem “(GAL”)
for J.S. and E.S. The agency filed a family case plan on August 20, 2020, that was
signed by Mother and B.S., father of J.S. and E.S.2 The case plan stated that Mother
suffered from severe mental illness and was unable to provide care for her children
due to two prior hospitalizations. The plan required Mother to engage in mental
health services including attendance at all psychiatric appointments and
engagement in therapy at Ohio Guidestone. The case worker was to make necessary
referrals and monitor Mother’s progress by contacting her service providers and
1 The same complaint also sought dependency on behalf of Mother’s minor child
L.H. (d.o.b. 05/31/2009) and temporary custody of L.H. to her father, A.H., in Cuyahoga
J.C. No. AD20906257. Mother stipulated to and the juvenile court ultimately granted legal
custody of L.H. to A.H. The current proceedings do not address L.H.’s placement and the
factual and procedural history does not include any subsequent reference to L.H.
2 During the pendency of this action before the juvenile court, B.S., father of J.S. and
E.S., stipulated to granting legal custody of the children to their great-grandparents, and he
is not a party to this appeal.
observing Mother’s behavior during face-to-face contacts. Mother was to submit to
random drug screens as requested by the case worker. The case plan noted family
support from both maternal and paternal relatives. The permanency goal was to
return the children to Mother for reunification.
On September 18, 2020, the magistrate conducted a hearing and
found that the continued residence of the children with Mother was not in their best
interests. The court found probable cause to remove the children from Mother’s
home and granted the agency predispositional temporary custody of J.S. and E.S.
The children were placed with their great-grandparents with whom they remained
throughout the duration of this case.
On October 2, 2020, the juvenile court found the allegations of the
complaint proven by clear and convincing evidence and adjudicated J.S. and E.S.
dependent. The court terminated its previous order committing the children to
predispositional temporary custody of the agency and committed them to the
temporary custody of great-grandparents. The court found Mother needed to
comply with psychiatric and psychological services and establish housing. The court
approved the case plan. On October 21, 2020, the juvenile court docketed a journal
entry that adopted the magistrate’s decision and findings of fact.
The court’s order that granted temporary custody to the great-
grandparents was set to expire on July 21, 2021. On May 6, 2021, the agency filed a
motion to extend temporary custody for six months until January 21, 2022. The
motion also requested that the court issue findings of fact that continued placement
was in the best interests of the children and that the agency made reasonable efforts
to finalize a permanency plan for the children (“reasonable efforts motion.”) The
motion stated if Mother failed to achieve the remaining case plan objectives, the
agency would pursue a new permanent home for the children.
The agency prepared a semiannual administrative review (“SAR”) on
July 20, 2021. The SAR stated J.S. and E.S.’s placement with their great-
grandparents was positive. The children and their great-grandparents had family
support from a grandparent and an aunt who lived on the same street. J.S. had
progressed well in school and no longer required special education services. J.S. was
doing well medically and no longer required yearly MRIs related to ongoing health
issues; J.S. was fully recovered and developmentally on target. J.S. received weekly
therapy to assist with her emotional adjustment. E.S. showed improvement
following placement with her great-grandparents and received counseling to
manage her anger and tantrums. E.S. received extensive oral surgery to correct
“extreme neglect” while in Mother’s care. The agency noted the status of Mother’s
mental health was unclear and she was homeless. The agency had renewed concerns
about Mother’s substance abuse. Because Mother was not compliant with services
and had not demonstrated a proper change of behavior, the agency recommended
modifying the custody request for J.S. and E.S. to legal custody to the great-
grandparents.
On July 21, 2021, the magistrate conducted a hearing attended by the
great-grandparents, the children’s GAL, the children’s father, and social worker
Nicole House (“House”); Mother did not participate. The magistrate held the
agency’s motion for first extension of temporary custody in abeyance, and the court
heard testimony from House on the agency’s reasonable efforts motion.
House testified that when she was assigned the instant case in June
2021, she thoroughly reviewed Mother’s file. House testified that Mother’s case plan
encompassed mental health services, housing, and substance abuse services, and
House reviewed the case plan objectives with Mother.3
House testified that in 2020, Mother received mental health services
from Ohio Guidestone while living at a shelter and subsequently discontinued those
services. House testified that Mother claimed she obtained additional services and
medication from different providers, but Mother never executed releases to allow
the agency to obtain information directly from Mother’s mental health providers.
Additionally, House testified that she provided the names of mental health providers
to Mother, but House could not state whether Mother utilized those services. House
also testified that Mother was homeless and was reportedly using illegal drugs.
Based upon House’s testimony, the juvenile court found the agency
made reasonable efforts to finalize the permanency plan for the children. The
juvenile court adopted the magistrate’s July 21, 2021 decision in its entirety.4
3 A review of Mother’s case plan shows substance abuse is not a designated objective,
although the plan requires Mother’s submission of drug screens at the agency’s request.
4 The juvenile court’s journal entry that reflected its adoption of the magistrate’s
decision was docketed on August 7, 2021.
On July 30, 2021, the agency filed a motion to amend the
dispositional prayer from a motion for first extension of temporary custody to a
motion to modify temporary custody to legal custody. On October 12, 2021, the
agency updated the family case plan and noted Mother’s failure to complete case
plan services and her need to find employment and/or apply for income benefits to
maintain housing and provide basic needs for the children.
On October 15, 2021, the magistrate held a hearing on the agency’s
motion to modify temporary custody to legal custody with the great-grandparents.
The juvenile court denied Mother’s motion for a continuance. House and the
children’s GAL testified at the hearing.
House testified that she completes monthly onsite visits with J.S. and
E.S. House testified that the children live with their great-grandparents who meet
their basic needs. House testified that J.S. and E.S. interact regularly with relatives
who live on the same street as their great-grandparents. House stated that the
children’s mental health concerns are addressed with consistent therapy treatment
and their poor speech and oral hygiene problems have been remedied while living
with their great-grandparents. House further testified that the great-grandparents
facilitated medical care for the children’s ongoing health issues.
House testified that Mother had not remedied the concerns that
caused the agency to file the original complaint and, therefore, House did not believe
it would be safe for J.S. and E.S. to return home with their Mother. House stated
that Mother initially received mental health services in 2020 and early 2021. House,
who began working with Mother in June 2021, recommended mental health
providers to Mother but she is unaware of Mother utilizing those services. House
testified that Mother failed to provide her mental health provider information so
that the agency could verify her receipt of services.
House also testified that Mother failed to secure consistent and stable
housing. House stated that Mother allegedly had a lease in December 2020, from
which she was wrongfully evicted, and Mother subsequently signed a rental lease
agreement the day prior to the custody hearing. House testified that while photos
of the newly leased property appeared physically acceptable, the agency needed to
complete a background check on the individual who cosigned the lease with Mother.
The cosigner had no prior relationship with J.S. and E.S.
House testified that Mother provided negative drug tests from
February through April 2021 and no drug tests were submitted again until August
2021. House stated Mother’s August 29, 2021 urine screen tested positive for
cocaine and fentanyl. House further testified that Mother claimed the positive drug
test stemmed from a Novocain prescription she took on August 7, 2021, when she
was hospitalized and treated for a jaw injury. House did not find this explanation
plausible although House conceded she did not obtain the applicable hospital
records. House referred Mother for substance abuse services and offered to provide
bus tickets to assist with Mother’s transportation to receive those services. House
testified that Mother never participated in substance abuse services from the time
the case opened until one week prior to the custody hearing when Mother told
House, via text, that she would participate in substance abuse treatment if that was
the agency’s preference.
The great-grandparents facilitated visitation between J.S., E.S., and
Mother, and House testified the great-grandparents would continue to do so.
The children’s GAL recommended legal custody to the great-
grandparents was in the best interests of the children. The GAL stated that the
children reside in a stable environment and are being raised by a community of
relatives. The GAL noted the length of time the case had been pending and the fact
that prior to the agency’s involvement, J.S. and E.S.’s well-being was jeopardized
because of Mother’s failure to address their health needs. While the GAL was
encouraged that Mother signed a lease and was attempting to address some of her
case plan initiatives, he was concerned by Mother’s positive drug test a few months
prior to the custody hearing. The GAL acknowledged there were many unresolved
issues that led to his recommendation for legal custody. The GAL recommended a
“strong visitation schedule” for Mother.
The record shows that throughout the pendency of this case, Mother’s
visitation with the children was limited and consisted primarily of monthly phone
calls. Mother then visited J.S. and E.S. four times a few weeks prior to the October
2021 custody hearing.
The court found Mother made minimal progress on her case plan and
on alleviating the cause for the children’s removal from her home. The court found
return of J.S. and E.S. to Mother would be contrary to the children’s best interests.
The court also found placement of the children with their great-grandparents was
appropriate and continued temporary custody was neither necessary nor in the
children’s best interests. The court terminated the order for temporary custody and
committed J.S. and E.S. to the legal custody of their great-grandparents. The court
granted Mother reasonable supervised parenting time until she demonstrated
substantial compliance on the case plan objectives.
On October 29, 2021, Mother filed objections to the magistrate’s
findings and argued the decision was against the manifest weight of the evidence
and not in the children’s best interests. Mother filed her objections 14 days after the
magistrate’s findings were filed, and the trial court failed to rule on those objections.
On December 2, 2021, the trial court approved the magistrate’s findings.
On December 3, 2021, mother filed a notice of appeal. On June 2,
2022, this court dismissed Mother’s appeal because absent a ruling on Mother’s
objections, there was no final appealable order.
On June 2, 2022, the trial court overruled Mother’s objections to the
magistrate’s findings and Mother filed a motion to reinstate the appeal. On June 14,
2022, this court granted Mother’s motion to reinstate the appeal and now considers
the following assignments of error for review:
First Assignment of Error: The Cuyahoga County Juvenile Court erred
and abused its discretion to the prejudice of this appellant in finding
that a preponderance of the evidence supported granting legal custody
of the subject children to their great-grandparents.
Second Assignment of Error: The trial court erred to the prejudice of
the appellant in not extending the temporary custody order, as the
mother had made significant case plan progress, and it was reasonable
to believe that the child[ren] could be reunified with her within the
period of extension.
Legal Analysis
In her first assignment of error, Mother argues that the trial court’s
grant of legal custody to the great-grandparents was an abuse of discretion. In her
second assignment of error, Mother argues that the trial court erred when it failed
to extend the temporary custody order. Before we address the merits of Mother’s
appeal, we must review what occurred procedurally before the lower court.
Pursuant to Civ.R. 53(D)(4)(d), a trial court must conduct an
independent review of the case before it adopts a magistrate’s decision. However,
when a party objects to the magistrate’s factual findings and wishes to preserve those
challenges for consideration by the trial court, the party must provide the court with
a transcript of the proceedings. Civ.R. 53(D)(3)(b)(iii). Where a party fails to timely
file a transcript or affidavit of the evidence, the party waives any objections to the
factual findings. In re A.L., 8th Dist. Cuyahoga No. 99040, 2013-Ohio-5120, ¶ 11,
citing Ramsey v. Hurst, 5th Dist. Licking No. 12-CA-70, 2013-Ohio-2674, ¶ 23. “If
the objecting party fails to provide the court with a transcript of the magistrate’s
hearing, the trial court may properly adopt a magistrate’s factual findings without
further consideration.” In re S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476,
¶ 13, citing In re Maxwell, 4th Dist. Ross No. 05CA2863, 2006-Ohio-527, ¶ 27, citing
Proctor v. Proctor, 48 Ohio App.3d 55, 60, 548 N.E.2d 287 (3d Dist.1988).
Additionally, where the objecting party fails to provide a transcript to the trial court,
an appellate court is precluded from considering the transcript. In re A.L. at ¶ 12;
State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 1995-
Ohio-272, 654 N.E.2d 1254.
Here, the trial court adopted the magistrate’s findings. Mother
objected to the magistrate’s findings, but did not file a transcript of the proceedings
with the trial court. The trial court overruled Mother’s objections. While a transcript
was filed with this court, the reviewing court may not consider the transcript since
it was not available for the trial court’s review. In re A.L. at ¶ 16; In re S.H. at ¶ 14.
Mother’s assignments of error are overruled.
We note that even if this court were permitted to review the
transcript, Mother’s assignments of error would be overruled. At the time of the
custody hearing, J.S. and E.S. had been in the custody of their great-grandparents
for approximately 15 months. While the children’s great-grandparents were in their
eighties, both children had a bond with their great-grandparents as well as with their
relatives who reside on the same street. The children had been doing well under
their great-grandparents’ care and received medical care and therapy for ongoing
concerns. The great-grandparents’ home was appropriate, safe, and stable, and all
of the children’s basic needs were met. Further, Mother’s last-minute attempts to
secure housing, submit to substance abuse treatment, and visit with the children
were unpersuasive; it was unreasonable to believe J.S. and E.S. could be reunified
with Mother within the period of extension.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________________
MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, A.J., and
LISA B. FORBES, J., CONCUR