In re: K.M.

2018 Ohio 3144

• Court: Ohio Court of Appeals
• Decided: August 7, 2018
• Docket: 18CA07 and 18CA08
• Status: Published

Opinion

[Cite as In re: K.M., 2018-Ohio-3144.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: K.M. : JUDGES: : Hon. William B. Hoffman, P.J. IN THE MATTER OF: K.M. : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. : : : Case Nos. 18CA07 : 18CA08 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 2017-DEP-00068 and 2017-DEP- 00069

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 7, 2018

APPEARANCES:

For Appellee For Appellant-Mother

TIFFANY D. BIRD DARIN AVERY 731 Scholl Road 105 Sturges Avenue Mansfield, OH 44907 Mansfield, OH 44903 Richland County, Case Nos. 18CA07 and 18CA08 2

Wise, Earle, J.

{¶ 1} Appellant-Mother, R.H., appeals the December 26, 2017 judgment entries

of the Court of Common Pleas of Richland County, Ohio, Juvenile Division, finding her

children to be dependent and disposition was timely. Appellee is the Richland County

Children Services Board.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On April 19, 2017, appellee filed two separate complaints, alleging K.M.,

born July 9, 2009, and K.M., born July 14, 2011, to be abused, dependent, and neglected

children. Mother of the children is appellant; father of K.M born in 2011 is K.M; father of

K.M. born in 2009 is unknown.

{¶ 3} An adjudicatory hearing before a magistrate was held on June 30, 2017.

Father admitted to dependency. By decisions filed July 14, 2017, the magistrate found

the children to be dependent. Custody of the children remained with appellant pending

disposition.

{¶ 4} A dispositional hearing was held before the magistrate on August 4, 2017.

Prior to the start of the hearing, appellant made an oral motion to dismiss for failure to

hold the dispositional hearing in a timely manner under R.C. 2151.35(B)(1). The

magistrate denied the motion. By decisions filed August 17, 2017, the magistrate placed

the children in the temporary custody of the children's paternal grandmother, B.M., with

an order of protective supervision to appellee, and ordered a revision of the case plan.

{¶ 5} Appellant timely filed objections in both cases, claiming the findings of

dependency were not supported by the record, and disposition was untimely. By Richland County, Case Nos. 18CA07 and 18CA08 3

judgment entries filed December 26, 2017, the trial court denied the objections and

affirmed and adopted the magistrate's decisions.

{¶ 6} Appellant filed an appeal in each case and this matter is now before this

court for consideration. The assignments of error are identical and are as follows:

I

{¶ 7} "THE TRIAL COURT DID NOT HAVE COMPETENT, CREDIBLE

EVIDENCE SUPPORTING ITS FACTUAL FINDINGS."

II

{¶ 8} "THE COURT'S FINDINGS WERE INSUFFICIENT TO WARRANT A

FINDING OF DEPENDENCY UNDER ORC 2151.04(C)."

III

{¶ 9} "THE COURT'S FINDING OF DEPENDENCY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."

IV

{¶ 10} "THE COURT SHOULD HAVE DISMISSED THE CASE ON MOTHER'S

MOTION IN ACCORDANCE WITH RC 2151.35(B)(1)."

V

{¶ 11} "THE TRIAL COURT MAGISTRATE SHOULD HAVE RECUSED HIMSELF

TO PREVENT THE APPEARANCE OF IMPROPRIETY."

{¶ 12} We will address the fourth assignment of error first because the arguments

therein challenge the trial court's jurisdiction to enter judgment. Appellant claims the trial Richland County, Case Nos. 18CA07 and 18CA08 4

court should have dismissed the cases because the dispositional hearing was untimely

under R.C. 2151.35(B)(1). We disagree.

{¶ 13} R.C. 2151.35(B)(1) states the following:

(B)(1) If the court at an adjudicatory hearing determines that a child

is an abused, neglected, or dependent child, the court shall not issue a

dispositional order until after the court holds a separate dispositional

hearing. The court may hold the dispositional hearing for an adjudicated

abused, neglected, or dependent child immediately after the adjudicatory

hearing if all parties were served prior to the adjudicatory hearing with all

documents required for the dispositional hearing. The dispositional hearing

may not be held more than thirty days after the adjudicatory hearing is held.

The court, upon the request of any party or the guardian ad litem of the

child, may continue a dispositional hearing for a reasonable time not to

exceed the time limits set forth in this division to enable a party to obtain or

consult counsel. The dispositional hearing shall not be held more than

ninety days after the date on which the complaint in the case was filed.

If the dispositional hearing is not held within the period of time

required by this division, the court, on its own motion or the motion of any

party or the guardian ad litem of the child, shall dismiss the complaint

without prejudice.

{¶ 14} This language is mirrored in Juv.R. 34(A). Richland County, Case Nos. 18CA07 and 18CA08 5

{¶ 15} In her appellate briefs at 12, appellant argues the dispositional hearing was

held on day one hundred and seven, outside the ninety day time limit, and the time limit

is jurisdictional.

{¶ 16} In In the Matter of R.C. Dependent Child, 5th Dist. Guernsey No. 13 CA 14,

2014-Ohio-191, ¶ 19, this court noted the following:

Ohio appellate courts have nonetheless recognized that "[a]lthough

the time requirements are considered mandatory, a parent may waive

them." See, e.g., In re: D. W., 4th Dist. Athens No. 06CA42, 2007-Ohio-

2552, ¶ 14, citing In re Kutzli (1991), 71 Ohio App.3d 843, 845–846, 595

N.E.2d 1026. "A party implicitly waives the time-limit when the party 'fails

to move for dismissal when it becomes the party's right to do so, or when

the party assists in the delay of the hearing.' " Id., quoting In re A.P., Butler

App. No. CA2005-10-425, 2006-Ohio-2717, ¶ 13.

{¶ 17} In the A.P. case, the Twelfth District reviewed a case wherein the appellant

agreed to a date outside the time limit and then raised the untimely issue on the day of

hearing. The court found the appellant did not file his motion in compliance with Juv.R.

22(E). "That rule requires that all prehearing motions, except for motions to determine

whether a child is eligible to receive a sentence as a serious youthful offender, be filed by

the earlier of: '(1) seven days prior to the hearing, or (2) ten days after the appearance of

counsel.' " Richland County, Case Nos. 18CA07 and 18CA08 6

{¶ 18} In the case sub judice, the complaints were filed on April 19, 2017. The

adjudicatory hearing was held on June 30, 2017. At the conclusion of the hearing, the

magistrate found the children to be dependent. June 30, 2017 T. at 232-233. The trial

court then asked the parties if they wished to have a separate hearing on disposition, and

the parties answered in the negative. Id. at 233. Appellant's attorney specifically waived

any dispositional delay. Id. After this discussion, the magistrate indicated he wanted "to

have some more information before I make a disposition in this matter. So I am going to

continue this matter for a separate dispositional hearing." Id. at 233-234. The magistrate

ordered appellant to follow through on the medical care for one of the children, and

ordered her to give the agency the opportunity to visit her home "so they can determine

the appropriateness of that home for the children." T. at 234. The magistrate journalized

his decisions on July 14, 2017, which included notices of the dispositional hearing set for

August 4, 2017.

{¶ 19} The dispositional hearing went forward on August 4, 2017. Prior to the start

of the hearing, appellant made an oral motion to dismiss "because we are beyond the 90

day, the time limit, excuse me." August 4, 2017 T. at 7. The magistrate denied the motion,

finding "[w]e commenced our trial within the 90-day time limit. Uh based on the case law,

that's the standard we have to meet." Id.

{¶ 20} In denying appellant's objections on the issue, the trial court found the

following:

Although Attorney Avery and his client had actual notice that the

dispositional hearing had been scheduled for a date 107 days after the filing Richland County, Case Nos. 18CA07 and 18CA08 7

of the Complaint; and although they had 20 days from and after the filing of

the adjudicatory Magistrate's Decision within which to file an objection to

the dispositional hearing being scheduled outside of the parameters of Ohio

Juvenile Rule 34(A) and O.R.C. §2151.35(B)(1), no written objection was

ever filed with the Court. Further, it was not until the actual dispositional

hearing on August 4, 2017 that Attorney Avery and his client first objected

orally to the disposition being conducted outside of the 90-day parameter,

and thereupon orally requested that the Complaint/case be dismissed due

to time requirements.

Upon consideration of the unique procedural facts regarding this

case, and notwithstanding the time directives of Ohio Juvenile Rule 34(A)

and O.R.C. §2151.35(B)(1), the Court finds that Ms. [H]'s Objections to the

Magistrate's refusal to dismiss the case are without merit for the following

reasons: 1) The conduct of Attorney Avery and his client in failing to timely

object to the dispositional hearing being scheduled outside of rule/statutory

time parameters, when they had ample opportunity to do so, constituted an

implied-in-fact waiver regarding the time directives; 2) Notwithstanding the

import and purpose of rule/statutory case processing time directives, a party

may not "sit" on his/her rights when action is reasonably called for and may

reasonably be taken, to rectify a scheduling anomaly, and then wait until the

dispositional hearing to orally move for dismissal of the case. For this Court

to give credence or support to such dilatory trial tactics, under the unique

facts of this case, would not serve the interests of the administration of Richland County, Case Nos. 18CA07 and 18CA08 8

justice, especially upon consideration of the relatively minor time

infringement herein of Ohio Juvenile Rule 34(A) and O.R.C. §2151.35(B)(1)

and the investment of the court and all parties concerned to bring this case

to a just conclusion; 3) Notwithstanding that some appellate courts consider

the time requirements of Ohio Juvenile Rule 34(A) and O.R.C.

§2151.35(B)(1) to be "directory," and others find the requirements to be

"mandatory," this Court opines that the better and more reasonable view is

to construe the rule/statutory time requirement as directory under the unique

facts of this case. Regardless, if error occurred, the same should be

construed as harmless technical error, as all parties were afforded

substantial procedural due process.

The Court further notes that there is an additional important reason

as to why this case should not be dismissed for time delays reasons: Upon

a careful analysis of the colloquy between the Magistrate and the parties at

the conclusion of the adjudicatory hearing on June 30, 2017, the Magistrate

had actually timely commenced the dispositional hearing within the time

requirements of Ohio Juvenile Rule 34(A) and O.R.C. §2151.35(B)(1), but

because the Court needed additional information, it continued the

dispositional hearing to the August 4 date. See Tr. pps. 232-234. Hence,

the dispositional hearing was, under the unique facts herein, commenced

within 90 days but concluded after the 90-day timeline. Accordingly,

initiation of disposition was timely conducted pursuant to law, based upon

its commencement date. Richland County, Case Nos. 18CA07 and 18CA08 9

{¶ 21} We disagree with the trial court's analysis that the dispositional hearing

commenced within ninety days. A careful reading of the conclusion of the adjudicatory

hearing indicates the magistrate specifically stated he was going to continue the matter

for a "separate dispositional hearing" to gather more information. June 30, 2017 T. at

2233-234. Although the magistrate used the word "continue," he never actually

commenced a dispositional hearing. In fact, he specially asked the parties if they wanted

a dispositional hearing and they responded in the negative. Id. at 233.

{¶ 22} We agree this case has unique facts. Appellant was made aware on July

14, 2017, that the dispositional hearing was scheduled on a date beyond the ninety day

time limit, but chose not to move for dismissal until the hearing in contravention of Juv.R.

22(E).

{¶ 23} Furthermore, we find appellant assisted in the reason for the delay of the

hearing. As discussed infra, the magistrate heard testimony of appellant's uncooperative

behaviors. Appellant failed to pursue follow up medical care for one of the children, and

refused to provide her current address to the caseworker for the caseworker to review the

children's living arrangements. Another caseworker attempted home visits, but appellant

was never home or cancelled.

{¶ 24} Appellant testified she had scheduled a follow up doctor's visit for the

subject child on the advice of counsel, and did not cooperate with the agency because

any allegations were "foolishness." T. at 191.

{¶ 25} The magistrate had before him conflicting testimony. In order to make an

informed decision, the magistrate desired more evidence and gave appellant the Richland County, Case Nos. 18CA07 and 18CA08 10

opportunity to cooperate with the agency. Because of appellant's uncooperative behavior

during the investigation, coupled with the magistrate's desire to be fully informed and have

a clear picture of the situation before him, we find appellant assisted in the delay of the

hearing and in effect, waived her right to a ninety day dispositional hearing.

{¶ 26} Upon review, we find the trial court did not err in denying appellant's motion

to dismiss under R.C. 2151.35(B)(1).

{¶ 27} Assignment of Error IV is denied.

I, II, III

{¶ 28} In her first, second, and third assignments of error, appellant claims the trial

court's finding of dependency was against the sufficiency and manifest weight of the

evidence and was based on evidence that was not competent or credible. We disagree.

{¶ 29} Sufficiency of the evidence "is a test of adequacy. Whether the evidence is

legally sufficient to sustain a verdict [decision] is a question of law." State v. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶ 30} On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly

lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). In Thompkins, supra, at 387, quoting Black's

Law Dictionary 1594 (6th Ed.1990), the Supreme Court of Ohio explained the following: Richland County, Case Nos. 18CA07 and 18CA08 11

Weight of the evidence concerns "the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the

evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them. Weight

is not a question of mathematics, but depends on its effect in inducing

belief." (Emphasis sic.)

{¶ 31} In weighing the evidence, however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio St

.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.

{¶ 32} As explained by this court in In re G. McC., 5th Dist. Stark Nos.

2013CA00103 and 2013CA00106, 2013-Ohio-5310, ¶ 28:

As this Court stated in In re Pierce, 5th Dist. Muskingum No. CT2008-

0019, 2008-Ohio-6716, a trial court's adjudication of a child as abused,

neglected, or dependent must be supported by clear and convincing

evidence. R.C. 2151.35. Clear and convincing evidence is that which

produces "in the mind of the trier of fact a firm belief or conviction as to the

facts sought to be established." In Re: Adoption of Holcomb, 18 Ohio St.3d

361, 368, 481 N.E.2d 613 (1985), quoting Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954). When this Court reviews an adjudication to Richland County, Case Nos. 18CA07 and 18CA08 12

determine whether the judgment is supported by clear and convincing

evidence, we must determine whether the trier of fact had sufficient

evidence before it to satisfy the clear and convincing degree of proof. In

Re: Christian, 4th Dist. Athens No. 04CA10, 2004-Ohio-3146, citations

omitted.

{¶ 33} R.C. 2151.04 defines "dependent child" as any child:

(A) Who is homeless or destitute or without adequate parental care,

through no fault of the child's parents, guardian, or custodian;

(B) Who lacks adequate parental care by reason of the mental or

physical condition of the child's parents, guardian, or custodian;

(C) Whose condition or environment is such as to warrant the state,

in the interests of the child, in assuming the child's guardianship;

(D) To whom both of the following apply:

(1) The child is residing in a household in which a parent, guardian,

custodian, or other member of the household committed an act that was the

basis for an adjudication that a sibling of the child or any other child who

resides in the household is an abused, neglected, or dependent child.

(2) Because of the circumstances surrounding the abuse, neglect, or

dependency of the sibling or other child and the other conditions in the

household of the child, the child is in danger of being abused or neglected

by that parent, guardian, custodian, or member of the household. Richland County, Case Nos. 18CA07 and 18CA08 13

{¶ 34} Appellant challenges the trial court's findings that she failed to procure

recommended medical treatment for one of the children, she and her significant other

administered excessive corporal punishment to the children, and she engaged in sexual

activity observable by the children. Appellant argues the testimony on these issues was

not credible and consisted of unreliable hearsay.

{¶ 35} The magistrate heard from seven witnesses, the children's school principal

Amy Oswalt, father, paternal grandmother B.M., the family's caseworkers Sarah Owen

Hammad and Erin Magers, guardian ad litem Denise Iden-Koffel, and appellant.

{¶ 36} Ms. Oswalt testified the children had "probably over 70" tardies. T. at 15,

18; Exhibits A and B. The school communicated with appellant and father, but the tardies

continued. T. at 16, 18-19. The tardies were harmful to the educational process. T. at

25. Also, the children often did not have a lunch with them and somebody would have to

bring them lunch as the school did not have a commercial kitchen. T. at 19. The absence

of lunch and the arrival of the lunch caused disruption to the educational process. T. at

20.

{¶ 37} Father testified about violence towards the children, going over to

appellant's home and seeing one child with a bloody ear and injuries to a child's arm from

pulling. T. at 44. Father witnessed appellant punch one of the children and verbally

abuse the children. T. at 74-75, 79. One of the children suffered a head injury from

playing with a cousin in October 2016 and was complaining about his stomach and head

hurting in February 2017. T. at 45, 53, 158-159. Father sought medical care, but did not

follow up with any doctors because he was never called with a referral. T. at 47-49, 53- Richland County, Case Nos. 18CA07 and 18CA08 14

55. Also, he did not have health insurance for the children. T. at 66-67. Father stated

the children were never tardy when they stayed with his mother. T. at 55. It was

appellant's responsibility to pick up the children and take them to school, but she was

often late or a no-show and his mother would take them to school. T. at 68-69. Father

testified appellant and her boyfriend did "foul things in front of the kids." T. at 71. Father

explained one of the children took pictures and showed their grandmother. T. at 71-72.

{¶ 38} Paternal grandmother B.M. testified appellant was to take the children to

school, but many times she was late or did not show up. T. at 83-84, 100-101, 104. She

stated when appellant got mad, she would punch the children. T. at 87, 107-108. The

children have dental problems and although appellant has taken the children to the dentist

in the past, no new appointments have been scheduled because of a lack of a medical

card. T. at 88-89. The children told B.M. of observing appellant and her boyfriend having

sexual relations. T. at 95-96, 104.

{¶ 39} Caseworker Owen Hammad testified concerns with the children included

excessive physical abuse, questionable living arrangements, and "medical care not being

followed up with." T. at 110-111. Her investigation revealed multiple tardies and some

absences from school, and follow up medical care was not pursued for the headaches of

one of the children. T. at 112, 118. She spoke to appellant about her concerns, but

appellant was uncooperative. T. at 111-112. She was unable to see the children's living

arrangements because appellant would not provide her current address. T. at 113-115,

118-119.

{¶ 40} Caseworker Magers testified she attempted unannounced home visits, but

appellant was never home. T. at 123-124. She attempted to schedule a home visit with Richland County, Case Nos. 18CA07 and 18CA08 15

appellant, but appellant cancelled. T. at 123-125. Appellant gave Ms. Magers her new

phone number, but other than that, she has been uncooperative. T. at 126. The children

have complained to Ms. Magers that "their teeth are hurting for them to eat." T. at 130.

They also told her they "were both afraid to go home with their mom" because "of the

physical abuse from her and her boyfriend." T. at 131. Ms. Magers was concerned about

their numerous tardies and absences. T. at 131-132. When confronted about follow up

care for one of the children's headaches, appellant admitted to knowing it was necessary,

but stated it was father's responsibility to take the child. T. at 133.

{¶ 41} Guardian ad litem Iden-Koffel was called by appellant. She testified she

visited appellant's home and found it to be suitable. T. at 142. She recommended the

placement of a curtain between the living room and appellant's bedroom because the

children slept on the couches and they could see into the bedroom. T. at 144-145. One

of the children showed her some old scars and told her they were from abuse (appellant

scratching with her nails and spanking with a belt). T. at 143-144. She would recommend

that the children reside with appellant as the custodial parent. T. at 149.

{¶ 42} Appellant testified her son suffered a head injury while playing with his

cousin at the end of October 2016 and she took him to a doctor sometime in November

2016. T. at 158-159. Appellant was unaware of the incident until November. T. at 182.

The doctor said the child was fine and did not recommend a specialist. T. at 159. Father

took the child to a doctor in February 2017 because the child was complaining of head

and stomach aches. T. at 160. Appellant was unaware of this visit until she received

medical papers for the child in May 2017. T. at 163. She has scheduled a follow up visit

for the child with a neurologist on the advice of counsel. T. at 177-178, 260-207, 228. Richland County, Case Nos. 18CA07 and 18CA08 16

Appellant had lost her medical insurance in January or February 2017 because her work

hours were cut to part-time. T. at 164-165, 168. She was currently on a six month leave

to get "everything situated." T. at 206. She applied for a medical card through the agency

in May or June 2017. T. at 165-167, 186. The children were always covered under

Medicaid as a secondary insurance, but appellant missed the renewal paperwork and the

insurance lapsed, so she had to start the application process all over again. T. at 167.

The children did not have health insurance at the date of the hearing. T. at 187. She

admitted to physically striking the children with an open hand, but not with a closed fist.

T. at 170. She has hit them with physical objects i.e, a belt, paint stick, wooden spoon,

usually on their bottoms, but not frequently. T. at 175-176. Behaviors warranting a

"whooping" included repetitive behaviors such as fighting, disrespectfulness, not listening,

talking back, and raising their voices. T. at 196-197. She denied ever causing them

injury. T. at 170. She never observed her boyfriend abuse the children. T. at 181.

Appellant explained the school tardies were caused by the breakdown in the relationship

and communication between herself and B.M. T. at 171-172. She accepted responsibility

for the tardies, she admitted to "dropping the ball." T. at 173. She denied ever being

contacted by the school about the tardies. T. at 174, 189. Appellant explained the

children wanted a hot lunch, so their lunches were dropped off at the start of their lunch

time. T. at 173-174. She denied that the children observed her having sexual relations.

T. at 178, 207. The children see a dentist, albeit "last year," and are experiencing losing

their baby teeth and their adult teeth coming through. T. at 180-181, 200. She was not

cooperative with the agency because abuse allegations "was just foolishness and it didn't

make any sense." T. at 191-192. Richland County, Case Nos. 18CA07 and 18CA08 17

{¶ 43} As with any trial, the magistrate had before him conflicting testimony. We

note the weight to be given to the evidence and the credibility of the witnesses are issues

for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990). The

trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of

each witness, something that does not translate well on the written page." Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶ 44} We find the record contains sufficient evidence, if believed, to support the

trial court's findings of fact. On the challenged issues, appellant stated if father wanted a

follow up appointment with a neurologist, he could arrange it, then stated she had

scheduled an appointment after her counsel encouraged her to do so, she admitted to

striking the children with an open hand and various objects, and there was no indication

that father and/or B.M. made up the story about the children observing the sexual relations

as they were not familiar with the layout of appellant's home. Appellant accepted full

responsibility for the tardies, and acknowledged she was uncooperative with caseworkers

because it was all "foolishness."

{¶ 45} Upon review, we find the trial court did not lose its way in finding

dependency under R.C. 2151.04 by clear and convincing evidence.

{¶ 46} Assignments of Error I, II, and III are denied.

{¶ 47} In her fifth assignment of error, appellant claims the magistrate should have

recused himself to prevent the appearance of impropriety. We disagree. Richland County, Case Nos. 18CA07 and 18CA08 18

{¶ 48} Appellant argues the magistrate gave the appearance of impropriety by

disclosing that he had formerly represented B.M. and then "ruled in grandmother's favor."

Appellant's Brief at 14.

{¶ 49} In the interest of full disclosure, the magistrate explained that he

represented B.M. approximately thirty to thirty-five years prior in "some minor workers'

comp or personal injury, or both issues," and "I've had no contact with her since that time."

T. at 5. The magistrate indicated, "I don't see it as interfering with my ability to give

anybody a fair hearing today." T. at 4. He then asked appellant's counsel, "Mr. Avery,

does that give you and your client any problem at this time?" Id. Appellant's counsel

responded, "I don't believe it does, but I want to I guess preserve the, an objection for the

record, if I can." Id. The magistrate permitted him to do so.

{¶ 50} The proper procedure for seeking recusal is found in R.C. 2701.03(A) which

states the following:

If a judge of the court of common pleas allegedly is interested in a

proceeding pending before the court, allegedly is related to or has a bias or

prejudice for or against a party to a proceeding pending before the court or

a party's counsel, or allegedly otherwise is disqualified to preside in a

proceeding pending before the court, any party to the proceeding or the

party's counsel may file an affidavit of disqualification with the clerk of the

supreme court in accordance with division (B) of this section. Richland County, Case Nos. 18CA07 and 18CA08 19

{¶ 51} There is no indication in the record that this procedure was followed. In fact,

appellant's counsel never asked the magistrate to recuse himself. Apparently appellant

is arguing that the magistrate should have taken it upon himself to step aside.

{¶ 52} Appellant has not demonstrated any bias or prejudice to the magistrate

hearing the case. The magistrate did not "rule in grandmother's favor," but found

dependency pursuant to a complaint filed by the agency.

{¶ 53} Upon review, we do not find this assignment of error to have any merit.

{¶ 54} Assignment of Error V is denied. Richland County, Case Nos. 18CA07 and 18CA08 20

{¶ 55} The judgments of the Court of Common Pleas of Richland County, Ohio,

Juvenile Division are hereby affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Baldwin, J. concur.

EEW/db 622