In re D.H.

2014 Ohio 1496

• Court: Ohio Court of Appeals
• Decided: April 8, 2014
• Docket: 13-CA-92
• Status: Published

Opinion

[Cite as In re D.H., 2014-Ohio-1496.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. William B. Hoffman, P.J. D.H. : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. A DEPENDENT CHILD : : : Case No. 13-CA-92 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. F2011-0424

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: April 8, 2014

APPEARANCES:

For Appellant For Appellee Job & Family Services

JOHN D. WEAVER JENNA E. JOSEPH 542 South Drexel Avenue 20 South Second Street, 4th Floor Bexley, OH 43209 Newark, OH 43055

For Mother Guardian ad Litem

SCOTT M. SIDNER MALLORY N. LAND 112 International Drive 3 North Third Street Pataskala, OH 43062 Newark, OH 43055 Licking County, Case No. 13-CA-92 2

Farmer, J.

{¶1} On July 22, 2011, appellee, Licking County Job and Family Services, filed

a complaint for the temporary custody of D.H. born April 11, 2000, alleging the child to

be dependent. Mother of the children is Jennifer Alkire; father is appellant, Richard

Hunley.

{¶2} An adjudicatory/dispositional hearing before a magistrate was held on

September 16, 2011. By judgment entry filed same date, the trial court approved and

adopted the magistrate's decision finding the child to be dependent and awarding

temporary custody of the child to appellee.

{¶3} On December 31, 2012, appellee filed a motion for permanent custody.

On March 11, 2013, appellant filed a motion for legal custody of the child to be placed

with the maternal aunt, Vicki Faller. Hearings before a magistrate were held on March

13, and July 17, 2013. By judgment entry filed September 4, 2013, the trial court

approved and adopted the magistrate's decision filed same date, denying appellant's

motion and granting permanent custody of the child to appellee.

{¶4} On September 18, 2013, appellant filed objections and also a motion for

the preparation of the transcript. By judgment entry filed October 3, 2013, the trial court

denied the objections, and awarded permanent custody of the child to appellee. By

order filed same date, the trial court granted appellant's request for the preparation of

the transcript, only if and when he filed a notice of appeal.

{¶5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows: Licking County, Case No. 13-CA-92 3

I

{¶6} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING

APPELLANT A TRANSCRIPT FOR THE PURPOSE OF OBJECTING TO THE

MAGISTRATE'S DECISION IN VIOLATION OF JUV.R. 40(D)(3)(b)(iii)."

II

{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING

APPELLANT 30 DAYS TO FILE A TRANSCRIPT WITH THE COURT PURSUANT TO

JUV.R.40(D)(3)(b)(iii)."

III

{¶8} "THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

APPELLANT'S MOTION FOR LEGAL CUSTODY FOR LACK OF STANDING."

IV

{¶9} "THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PREJUDICIAL ERROR BY DENYING APPELLANT'S OBJECTIONS TO THE

MAGISTRATE'S DECISION FOR LACKING THE SPECIFICITY REQUIRED BY JUV.R.

40(D)(3)(b)(ii)."

I, II

{¶10} Appellant claims the trial court erred in denying him the transcripts of the

magistrate's hearings and not giving him thirty days to file the transcripts in order to

further pursue his objections under Juv.R. 40(D)(3)(b)(iii). We agree.

{¶11} Juv.R. 40(D)(3)(b) governs objections to magistrate's decision.

Subsection (iii) states the following: Licking County, Case No. 13-CA-92 4

An 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. With leave of court, alternative technology or manner of

reviewing the relevant evidence may be considered. The objecting party

shall file the transcript or affidavit with the court within thirty days after

filing objections unless the court extends the time in writing for preparation

of the transcript or other good cause. If a party files timely objections prior

to the date on which a transcript is prepared, the party may seek leave of

court to supplement the objections.

{¶12} On September 18, 2013, appellant timely filed written objections to the

magistrate's decision. Appellant claimed Findings of Fact Nos. 2 and 12 were against

the manifest weight of the evidence and Conclusions of Law Nos. 1 and 2 were not

supported by clear and convincing evidence. Appellant also stated: "Pursuant to Juv.R.

40(D)(3)(b)(iii), because this objection pertains to the factual findings of the Magistrate,

and because these objections are filed prior to the preparation of a transcript, Mr.

Hunley respectfully reserves the right to supplement these objections with leave of the

court."

{¶13} The specific findings of fact objected to were as follows: Licking County, Case No. 13-CA-92 5

2. Since that time, progress on the case has been minimal, if at all.

To start with, Richard Hunley remains in prison. He was convicted of

multiple felony charges. At this time, his sentence will not expire until

December of 2014. As Ms. Weber testified, just being released from

prison will not put Mr. Hunley in a position where he could immediately

assume the role of full-time parent. To his credit, Mr. Hunley recognizes

he will not be in a position to parent in the foreseeable future, which is

likely why he has asked that legal custody be granted to Vicki Faller.

12. Both Richard Hunley and Dewey Alkire have filed motions

asking that [D.], [C.], and [K.] be placed in the legal custody of Vicki Faller.

Statements of Understanding signed by Ms. Faller were presented to the

undersigned. Ms. Faller herself did not testify, though it was related to the

undersigned that she was in the hallway for the hearing on both dates.

The only testimony presented with respect to Ms. Faller was that of Ms.

Weber. Ms. Weber testified that Ms. Faller had been ruled out as a

placement option. There was no completed home study for Ms. Faller, as

she was evicted before the requested home study could be completed.

Ms. Faller's health is also a concern for the undersigned, in that Ms.

Weber testified that Ms. Faller told her she had suffered several mini-

strokes and seizures.

{¶14} The specific conclusions of law objected to were as follows: Licking County, Case No. 13-CA-92 6

1. With respect to the motions asking that legal custody of [D.], [C.],

and [K.] be granted to Vicki Faller, the undersigned recommends that

those motions be denied. While both Mr. Hunley and Mr. Alkire did

provide a Statement of Understanding signed by Ms. Faller, there was

very little evidence presented with respect to Ms. Faller and the idea of

legal custody. Ms. Weber testified to there being concerns about Ms.

Faller's housing stability and her health. There was no evidence

presented which showed that these concerns were unfounded. In fact,

other than some questioning of Ms. Weber about Ms. Faller and the

concerns Children Services has about placing the children with Ms. Faller,

no other evidence was offered on the issue of legal custody. It would

have been highly helpful for the undersigned to hear about the relationship

Ms. Faller has with the children, her ability to meet the children's needs,

and even some testimony which indicated that Ms. Weber's concerns

were not warranted. Bottom line is that there was no evidence presented

to demonstrate why a grant of legal custody is in the children's best

interests. As such, the motions asking that legal custody of the children

be granted to Vicki Faller should be denied.

2. With respect to the motion of Glenn Hunley asking that he be

granted custody of [K.] and [D.], the undersigned has great concerns

about this. Over the course of the case, Mr. Hunley's home was the

subject of a sexual abuse investigation regarding his step-son and these

two girls. For almost a year after the girls were moved as a result of these Licking County, Case No. 13-CA-92 7

allegations, Mr. Hunley did nothing with respect to the case. He didn't

meet with the social workers. He didn't participate in services. He didn't

see his own daughter. His explanation for why he did this was that he was

angry with Children Services. How can the undersigned find that this man

is committed to the future of these children when he let his anger toward a

third party cause him to essentially abandon his daughter? The

undersigned simply cannot begin to comprehend how a father can get

angry at Children Services and then choose as a result of that anger to

walk away from his child. On top of this, even when Mr. Hunley was at his

most involved with the case, his attendance at visits was sporadic. His

participation in substance abuse treatment was poor, combined with

ongoing positive drug screens. As with the other motions for legal

custody, there was simply not enough evidence presented to prove to the

undersigned that this option is in the best interests of either of these girls.

As such, this motion should also be denied.

{¶15} Also on September 18, 2013, appellant filed a motion for the preparation

of the transcripts of the magistrate's hearings, as he was indigent. By order filed

October 3, 2013, the trial court ruled as follows:

The Court hereby conditionally orders that transcripts from hearings

in the above-captioned matter, held on March 13, 2013 and July 17, 2013,

before Magistrate Strefelt, be prepared at public expense, for purposes of Licking County, Case No. 13-CA-92 8

Richard Hunley, father of [D.], perfecting an appeal to the Licking County

Court of Appeals, Fifth Appellate District. HOWEVER, NO TRANSCRIPT

WILL BE PREPARED UNLESS OR UNTIL THE FATHER, RICHARD

HUNLEY, FILES A WRITTEN NOTICE OF APPEAL WITH THIS COURT.

{¶16} It is appellee's position that there was no need for the transcripts because

appellant lacked standing to object to Finding of Fact No. 2 and Conclusion of Law No.

1, and appellant was going to be in prison for at least another year. Therefore, appellee

argues it was harmless error not to give appellant the transcripts, and the trial court

could have used alternative technology to review the record pursuant to Juv.R.

40(D)(3)(b)(iii).

{¶17} The tremendous trifle appellee fails to grasp is that after a two day hearing

and transcripts (now filed) totaling 352 pages, appellant had requested the right to

supplement his objections and arguments. All of these remedies are provided for in

Juv.R. 40.

{¶18} Although it is appellee's position that judicial expediency has been met

and a just result has occurred, we are unable to balance such an argument against the

clear latitude offered objections under Juv.R. 40 to supplement objections after

preparation of a transcript.

{¶19} Upon review, we find the trial court erred in denying appellant the

transcripts to amend or supplement his objections pursuant to Juv.R. 40(D)(3)(b)(iii).

{¶20} Assignments of Error I and II are granted. Licking County, Case No. 13-CA-92 9

III, IV

{¶21} Appellant claims the trial court erred in denying his motion requesting legal

custody of the child to Vicki Faller for lack of standing and denying his objections for

lack of specificity.

{¶22} Because the matter is reversed and remanded for appellant to review the

filed transcripts and amend or supplement his objections, we find these assignments to

be premature.

{¶23} Assignments of Error III and IV are denied.

{¶24} The judgment of the Court of Common Pleas of Licking County, Ohio,

Juvenile Division is hereby reversed, and the matter is remanded to said court for

further proceedings consistent with this opinion.

By Farmer, J.

Hoffman, P.J. and

Baldwin, J. concur.

SGF/sg 321