In re S.S.

[Cite as In re S.S., 2021-Ohio-2148.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
IN RE: :
S.S., et al. : CASE NO. CA2021-03-003
: OPINION
6/28/2021
:
:
:
APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. 20183182, 20183183, 20203014
Zachary A. Corbin, Brown County Prosecuting Attorney, Courtney A. Worley, 740 Mt. Orab
Pike, Suite 1, Georgetown, Ohio 45121, for appellee
Dever Law Firm, Scott A. Hoberg, 9146 Cincinnati, Columbus Road, West Chester, Ohio
45069, for appellant
HENDRICKSON, J.
{¶1} Appellant, the biological mother of S.S., A.H., and M.R., appeals from a
decision of the Brown County Court of Common Pleas, Juvenile Division, granting
permanent custody of her children to appellee, the Brown County Department of Job and
Family Services ("BCDJFS" or "the Agency"). For the reasons set forth below, we dismiss
the appeal for lack of jurisdiction.
Brown CA2021-03-003
I. FACTS & PROCEDURAL HISTORY
{¶2} Mother has eight biological children. The present appeal involves three of
Mother's children: her son S.S. (born November 1, 2016) and her daughters A.H. (born
December 12, 2017) and M.R. (born January 21, 2020).1
A. The Agency's Involvement with S.S. and A.H.
{¶3} At the beginning of December 2018, Mother gave birth to C.S., who testified
positive for methamphetamine. Due to C.S. testing positive for methamphetamine and
Mother's ongoing substance abuse issues, on December 5, 2018, the Agency filed a
complaint with the juvenile court requesting temporary custody of S.S., A.H., and C.S. on
the grounds that the children were abused, dependent, and neglected.2 A shelter care
hearing was held that same day, and the court placed S.S., A.H., and C.S. in the Agency's
temporary custody. The court also appointed a guardian ad litem for the children. S.S. and
A.H. were placed in a foster home and C.S. was placed in the care of relatives.
{¶4} An adjudication hearing was held on March 25, 2019. Following a stipulation
by the parties, the children were adjudicated abused, neglected, and dependent. Legal
custody of C.S. was subsequently awarded to C.S.'s relatives on June 20, 2019. S.S. and
A.H. remained in the temporary custody of the Agency.
{¶5} A case plan for Mother's reunification with the children was filed with and
adopted by the court. The case plan required Mother to complete case management, obtain
safe and stable housing, obtain stable employment and income, complete parenting
education classes, complete mental health and drug and alcohol assessments and follow
1. S.S., A.H., and M.R. have different biological fathers. The children's fathers did not participate in any case
plan services, did not appear at the permanent custody hearing, and are not parties to the present appeal.
2. The Agency filed an amended complaint alleging S.S., A.H., and C.S. were abused, dependent, and
neglected children on February 20, 2019.
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through with any treatment recommendations, and participate in random toxicology
screens. Mother was granted supervised visitation with S.S. and A.H. on a weekly basis.
{¶6} From December 2018 through the end of July 2019, Mother failed to comply
with case plan services. Mother continued to use drugs and would not participate in random
or scheduled drug screens. Agency attempts to have Mother complete inpatient drug
treatment in Cincinnati, Ohio failed as Mother would not stay at the treatment facility.
{¶7} In August 2019, upon discovering that she was pregnant with M.R., Mother
checked herself into inpatient treatment at Stepping Stones in Portsmouth, Ohio. Mother
remained at this treatment facility until the end of February 2020, when she moved to
Columbus, Ohio.
{¶8} On December 2, 2019, the juvenile court extended the Agency's temporary
custody of S.S. and A.H. On June 10, 2020, the Agency filed a motion for permanent
custody of S.S. and A.H., citing Mother's limited progress in meeting the goals of her case
plan, her failure to remedy the problems that initially caused the children to be placed
outside the home, and the children's need for legally secure permanent placement. On
June 15, 2020, while the Agency's permanent custody motion remained pending, the
juvenile court granted a second extension of the Agency's temporary custody of S.S. and
A.H.
B. The Agency's Involvement with M.R.
{¶9} M.R. was born on January 21, 2020, while Mother was engaged in services
at Stepping Stones. On January 23, 2020, the Agency filed a complaint with the juvenile
court alleging M.R. was an abused, dependent, and neglected child.3 A shelter care hearing
was held that same day, and M.R. was placed in the Agency's temporary custody. M.R.
3. The Agency filed an amended complaint alleging M.R. was an abused, dependent, and neglected child
on March 18, 2020.
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was added to Mother's already-existing case plan, and Mother was granted supervised
visitation with M.R. on a weekly basis.
{¶10} An adjudication hearing was held on June 15, 2020. Following a stipulation
by the parties, M.R. was adjudicated a dependent child and the abuse and neglect
allegations were dismissed. M.R. remained in the Agency's temporary custody.
{¶11} Less than a month later, on July 6, 2020, the Agency filed a motion for
permanent custody of M.R. In its motion, the Agency noted Mother's ongoing case with the
Agency, which had been active since December 2018, her failure to make progress on the
case plan, her failure to remedy the problems that initially caused M.R. to be placed outside
the home, and M.R.'s need for legally secure permanent placement.
C. Permanent Custody Hearing
{¶12} On August 3, 2020, the guardian ad litem filed a report with the juvenile court
recommending that permanent custody of S.S., A.H., and M.R. be granted to the Agency.
A hearing on the Agency's motions for permanent custody was then held before a
magistrate on August 10, 2020. At the hearing, the magistrate heard testimony from the
children's caseworker, the guardian ad litem, and from Mother.
{¶13} On October 8, 2020, the magistrate issued a decision granting the Agency
permanent custody of S.S., A.H., and M.R. The juvenile court adopted the magistrate's
decision on the same day it was issued. Nineteen days later, on October 27, 2020, Mother
sought leave to file objections out of time. The juvenile court granted leave and Mother's
objections were subsequently filed. On February 18, 2021, the juvenile court overruled
Mother's objections and adopted the magistrate's decision in its entirety.
{¶14} Mother appealed, raising two assignments of error.
II. ANALYSIS
{¶15} Assignment of Error No. 1:
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{¶16} IN A CHILD CUSTODY CASE, THE TRIAL COURT ERRED IN ITS
DECISION AND ORDER GRANTING PERMANENT CUSTODY OF THE CHILDREN TO
THE AGENCY DESPITE THE MANIFEST WEIGHT OF THE EVIDENCE THAT IT WAS
NOT IN THE BEST INTEREST OF THE CHILDREN.
{¶17} Assignment of Error No. 2:
{¶18} IN A CHILD CUSTODY CASE, THE TRIAL COURT ERRED IN FINDING
THAT THE YOUNGEST CHILD SHOULD HAVE BEEN PERMANENTLY COMMITTED TO
THE AGENCY BY BASING ITS DECISION ON FACTS NOT PRESENTED AS EVIDENCE
IN THE PERMANENT CUSTODY TRIAL.
{¶19} Before we can address the merits of Mother's assignments of errors, we must
first determine whether this court has jurisdiction to hear the appeal. As we have previously
recognized, "[i]n the absence of a timely appeal pursuant to App.R. 4(A) from a final,
appealable order, an appellate court does not have jurisdiction to review the issue." In re
C.B., 12th Dist. Clermont No. CA2013-12-094, 2014-Ohio-3784, ¶ 8
{¶20} The juvenile rules require written objections to a magistrate's decision to be
filed within 14 days of the filing of the magistrate's decision. Juv.R. 40(D)(3)(b)(i). The rules
further provide that a court may enter a judgment either during the 14 days permitted for
the filing of objections or after the 14 days have expired. Juv.R. 40(D)(4)(e)(i). "If the court
enters a judgment during the fourteen days permitted * * * for the filing of objections, the
timely filing of objections to the magistrate's decision shall operate as an automatic stay of
execution of the judgment until the court disposes of those objections and vacates, modifies,
or adheres to the judgment previously entered." Id. However, if a juvenile court enters its
judgment during the 14-day period and a party files untimely objections to a magistrate's
decision, there is no such stay of the juvenile court's order. In re J.A.M., 12th Dist. Butler
No. CA2010-07-174, 2011-Ohio-668, ¶ 15
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{¶21} "A trial court does not have jurisdiction to consider untimely objections if the
court has already adopted the magistrate's decision." In re J.D., 12th Dist. Butler No.
CA2019-02-032, 2019-Ohio-2163, ¶ 6. See also In re C.B. at ¶ 12; In re J.A.M. at ¶ 15; In
re R.L.D., 12th Dist. Butler Nos. CA2016-07-132 and CA2016-07-133, 2017-Ohio-1093, ¶
10. "Instead, the juvenile court's jurisdiction terminates when it has adopted a magistrate's
decision and no timely objections have been filed." In re J.D. at ¶ 6, citing In re R.L.D. at ¶
10. As a result, a juvenile court's later decision overruling a party's untimely objections to
a previously adopted magistrate's decision is void. Id. at ¶ 7. Accordingly, "if a trial court
adopts a magistrate's decision and no timely objections have been filed, the trial court's
decision adopting the magistrate's decision is a final, appealable order." Id., citing In re
C.B. at ¶ 12, In re R.L.D. at ¶ 11, and In re J.A.M. at ¶ 16.
{¶22} Juv.R. 40(D)(5) does provide that a juvenile court "[f]or good cause shown,"
may allow a reasonable extension of time for a party to file objections to a magistrate
decision. However, if 14 days have passed since the magistrate's issuance of its decision,
"a request for an extension of time must be filed before the court adopts the decision." In
re J.D. at ¶ 9. Once the court has adopted the magistrate's decision and 14 days have
passed, "the court loses jurisdiction and cannot consider a request for untimely objections."
Id. See also Napier v. Cieslak, 12th Dist. Butler No. CA2014-12-242, 2015-Ohio-2574, ¶ 6-
7; Losekamp v. Losekamp, 12th Dist. Butler No. CA2013-11-213, 2014-Ohio-4422, ¶ 19-20
(both cases addressing Civ.R. 53[D][5], which has identical language to Juv.R. 40[D][5]).
{¶23} The record reflects that the juvenile court adopted the magistrate's decision
the same day it was filed – October 8, 2020. Fourteen days passed and no timely objections
or request for an extension of time to file objections was filed. As a result, the magistrate's
decision adopted by the juvenile court became a final appealable order. The juvenile court
did not have jurisdiction to hear the untimely filed objections and the juvenile court's decision
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overruling the objections was void. See In re J.D. at ¶ 8. Therefore, the only viable, final
judgment entry in this case was filed on October 8, 2020, when the juvenile court adopted
the magistrate's decision. Pursuant to App.R. 4(A), Mother had 30 days from that date to
file her notice of appeal. In re R.L.D. at ¶ 11. As Mother did not file her appeal until March
4, 2021, nearly five months later, her appeal is untimely and cannot be considered by this
court. See State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60 (1988)
(noting that "[w]here a notice of appeal is not filed within the time prescribed by law, the
reviewing court is without jurisdiction to consider the issues that should have been raised
in the appeal").4
III. CONCLUSION
{¶24} As Mother did not timely appeal from the juvenile court's October 8, 2020 entry
adopting the magistrate's decision, we lack the requisite jurisdiction to address Mother's
assignments of error. Mother's appeal is hereby dismissed.
{¶25} Appeal dismissed.
M. POWELL, P.J., and BYRNE, J., concur.
4. We note that Mother may still have procedural options available to her in order to obtain review of the
magistrate's decision. As this court has previously recognized, an appellant faced with the same procedural
scenario as Mother "may have other options to attack the magistrate's decision by filing a Civ.R. 60(B) motion,
a motion for judgment notwithstanding the verdict, or a motion for new trial." In re J.D. at ¶ 11, citing In re
C.B. at ¶ 12 and In re J.A.M. at ¶ 16, fn. 2.
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