In re J.S.

2022 Ohio 2502

Opinion

[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