[Cite as In re R.L.D., 2017-Ohio-1093.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: R.L.D., et al. : CASE NOS. CA2016-07-132 : CA2016-07-133
: OPINION 3/27/2017 :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2014-0406
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Job and Family Services
Nicole Stephenson, 30 North D Street, Hamilton, Ohio 45013, for appellees, A.B. and D.R.
Adolf Olivas, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, Guardian Ad Litem
Scott Blauvelt, 315 S. Monument, Hamilton, Ohio 45011, for appellant, R.D.
Mark Raines, 246 High Street, Hamilton, Ohio 45011, for S.R.
S. POWELL, J.
{¶ 1} Appellant, R.D., the father of B.D. and R.L.D. ("Father"), appeals from the
decision of the Butler County Court of Common Pleas, Juvenile Division, granting his cousin,
D.R., and her sister, A.B., legal custody of his two minor children. For the reasons outlined
below, this appeal is dismissed. Butler CA2016-07-132 CA2016-07-133
{¶ 2} The children at issue, B.D. and R.L.D., were born on December 20, 2010 and
March 1, 2012, respectively. At the time of their birth, both B.D. and R.L.D. tested positive
for drugs. Because of their positive drug tests, both children were placed in the temporary
custody of the Butler County Job and Family Services ("BCDJFS") until relative placement
was established. Custody of the children was subsequently returned to Father in June of
2013 after he provided multiple negative drug screens. Prior to custody being returned to
Father, it is undisputed that both D.R. and A.B. had exercised temporary custody over the
children.
{¶ 3} On October 22, 2014, BCDJFS filed a complaint alleging B.D. was an abused
and dependent child. That same day, BCDJFS also filed a complaint alleging R.L.D. was a
dependent child. The complaints for both children were based on allegations that Father was
selling drugs out of his home and that their mother, S.R. ("Mother"), was again using drugs
following her release from prison. The complaint also alleged that the children had witnessed
a domestic violence incident between Mother and Father where Father threw an empty wine
bottle at Mother, but missed and hit B.D. The complaint further alleged additional domestic
violence incidents between Mother and Father, including a report that "a family member has
had to get [Father] off of [Mother] as [Father] was biting her ear."
{¶ 4} After BDJFS filed its complaints, the juvenile court issued an emergency ex
parte order placing B.D. and R.L.D. in the temporary custody of D.R. As noted above, D.R.
had previously exercised temporary custody over the children after the children tested
positive for drugs at the time of their respective births. Approximately one month later, on
November 18, 2014, D.R. and A.B. filed a joint motion for legal custody of the children. A
guardian ad litem was then appointed for the children and a case plan was issued.
{¶ 5} On July 1, 2015, the juvenile court adjudicated B.D. an abused and dependent
-2- Butler CA2016-07-132 CA2016-07-133
child, while R.L.D. was adjudicated a dependent child. Neither Mother nor Father objected to
these adjudications. The matter was then scheduled for a hearing before a juvenile court
magistrate on D.R. and A.B.'s motion for legal custody, which concluded on April 18, 2016.
One week later, on April 26, 2016, the guardian ad litem filed a report recommending legal
custody of the children be awarded to D.R. and A.B. Thereafter, on May 12, 2016, the
magistrate issued a decision granting legal custody of the children to D.R. and A.B. That
same day, the juvenile court entered a judgment entry affirming and adopting the
magistrate's decision. The record indicates that all parties and their respective counsel were
timely served with both the magistrate's decision and the juvenile court's judgment entry
affirming and adopting that decision.
{¶ 6} Approximately three weeks later, on June 3, 2016, Father filed an untimely
objection to the magistrate's May 12, 2016 decision claiming the decision to grant legal
custody of the children to D.R. and A.B. was "not consistent with the facts determined in
court." Prior to filing this objection, Father did not request leave to file his objection untimely,
nor did Father provide any reason to justify the untimely filing of his objection. Nevertheless,
on June 9, 2016, the juvenile court issued another judgment entry denying Father's untimely
objection to the magistrate's decision that re-affirmed and re-adopted the magistrate's May
12, 2016 decision. In so holding, the juvenile court stated:
After review of the complete record, the Court finds that the Objection filed on June 3, 2016 to the Magistrate's Decision and Order of May 12, 2016 is not well taken. Said objection shall, therefore, be overruled. The Court further orders that the decision and order of the magistrate as filed on May 12, 2016 shall be adopted as the findings and orders of this court.
{¶ 7} On July 11, 2016, Father filed a notice of appeal from the juvenile court's June
9, 2016 judgment entry, raising two assignments of error challenging the trial court's decision
to grant legal custody of the children to D.R. and A.B. In response, D.R. and A.B. filed a
-3- Butler CA2016-07-132 CA2016-07-133
motion to dismiss arguing Father's notice of appeal was not timely filed in accordance with
App.R. 4(A). We agree with D.R. and A.B. and conclude that this court is without jurisdiction
to consider Father's appeal.
{¶ 8} Pursuant to Juv.R. 40(D)(3)(b)(i), a party may file written objections to a
magistrate's decision within 14 days of when that decision was filed. However, while a party
may file written objections within this 14-day period, Juv.R. 40(D)(4)(e)(i) provides that a
juvenile "court may enter a judgment either during the fourteen days permitted by Juv.R.
40(D)(3)(b)(i) for the filing of objections to a magistrate's decision or after the fourteen days
have expired." That rule further provides that if the juvenile court enters its judgment during
the 14 days permitted by Juv.R. 40(D)(3)(b)(i) 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." On the other hand, as this court has stated previously, 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 trial court's order. In re
J.A.M., 12th Dist. Butler No. CA2010-04-174, 2011-Ohio-668, ¶ 15.
{¶ 9} In this case, the magistrate filed its decision to award legal custody of the
children to D.B. and A.R. on May 12, 2016, a decision that was subsequently affirmed and
adopted by the juvenile court later that same day. Father, however, although being properly
served with both the magistrate's decision and the juvenile court's judgment entry affirming
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[Cite as In re R.L.D., 2017-Ohio-1093.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: R.L.D., et al. : CASE NOS. CA2016-07-132 : CA2016-07-133
: OPINION 3/27/2017 :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2014-0406
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Job and Family Services
Nicole Stephenson, 30 North D Street, Hamilton, Ohio 45013, for appellees, A.B. and D.R.
Adolf Olivas, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, Guardian Ad Litem
Scott Blauvelt, 315 S. Monument, Hamilton, Ohio 45011, for appellant, R.D.
Mark Raines, 246 High Street, Hamilton, Ohio 45011, for S.R.
S. POWELL, J.
{¶ 1} Appellant, R.D., the father of B.D. and R.L.D. ("Father"), appeals from the
decision of the Butler County Court of Common Pleas, Juvenile Division, granting his cousin,
D.R., and her sister, A.B., legal custody of his two minor children. For the reasons outlined
below, this appeal is dismissed. Butler CA2016-07-132 CA2016-07-133
{¶ 2} The children at issue, B.D. and R.L.D., were born on December 20, 2010 and
March 1, 2012, respectively. At the time of their birth, both B.D. and R.L.D. tested positive
for drugs. Because of their positive drug tests, both children were placed in the temporary
custody of the Butler County Job and Family Services ("BCDJFS") until relative placement
was established. Custody of the children was subsequently returned to Father in June of
2013 after he provided multiple negative drug screens. Prior to custody being returned to
Father, it is undisputed that both D.R. and A.B. had exercised temporary custody over the
children.
{¶ 3} On October 22, 2014, BCDJFS filed a complaint alleging B.D. was an abused
and dependent child. That same day, BCDJFS also filed a complaint alleging R.L.D. was a
dependent child. The complaints for both children were based on allegations that Father was
selling drugs out of his home and that their mother, S.R. ("Mother"), was again using drugs
following her release from prison. The complaint also alleged that the children had witnessed
a domestic violence incident between Mother and Father where Father threw an empty wine
bottle at Mother, but missed and hit B.D. The complaint further alleged additional domestic
violence incidents between Mother and Father, including a report that "a family member has
had to get [Father] off of [Mother] as [Father] was biting her ear."
{¶ 4} After BDJFS filed its complaints, the juvenile court issued an emergency ex
parte order placing B.D. and R.L.D. in the temporary custody of D.R. As noted above, D.R.
had previously exercised temporary custody over the children after the children tested
positive for drugs at the time of their respective births. Approximately one month later, on
November 18, 2014, D.R. and A.B. filed a joint motion for legal custody of the children. A
guardian ad litem was then appointed for the children and a case plan was issued.
{¶ 5} On July 1, 2015, the juvenile court adjudicated B.D. an abused and dependent
-2- Butler CA2016-07-132 CA2016-07-133
child, while R.L.D. was adjudicated a dependent child. Neither Mother nor Father objected to
these adjudications. The matter was then scheduled for a hearing before a juvenile court
magistrate on D.R. and A.B.'s motion for legal custody, which concluded on April 18, 2016.
One week later, on April 26, 2016, the guardian ad litem filed a report recommending legal
custody of the children be awarded to D.R. and A.B. Thereafter, on May 12, 2016, the
magistrate issued a decision granting legal custody of the children to D.R. and A.B. That
same day, the juvenile court entered a judgment entry affirming and adopting the
magistrate's decision. The record indicates that all parties and their respective counsel were
timely served with both the magistrate's decision and the juvenile court's judgment entry
affirming and adopting that decision.
{¶ 6} Approximately three weeks later, on June 3, 2016, Father filed an untimely
objection to the magistrate's May 12, 2016 decision claiming the decision to grant legal
custody of the children to D.R. and A.B. was "not consistent with the facts determined in
court." Prior to filing this objection, Father did not request leave to file his objection untimely,
nor did Father provide any reason to justify the untimely filing of his objection. Nevertheless,
on June 9, 2016, the juvenile court issued another judgment entry denying Father's untimely
objection to the magistrate's decision that re-affirmed and re-adopted the magistrate's May
12, 2016 decision. In so holding, the juvenile court stated:
After review of the complete record, the Court finds that the Objection filed on June 3, 2016 to the Magistrate's Decision and Order of May 12, 2016 is not well taken. Said objection shall, therefore, be overruled. The Court further orders that the decision and order of the magistrate as filed on May 12, 2016 shall be adopted as the findings and orders of this court.
{¶ 7} On July 11, 2016, Father filed a notice of appeal from the juvenile court's June
9, 2016 judgment entry, raising two assignments of error challenging the trial court's decision
to grant legal custody of the children to D.R. and A.B. In response, D.R. and A.B. filed a
-3- Butler CA2016-07-132 CA2016-07-133
motion to dismiss arguing Father's notice of appeal was not timely filed in accordance with
App.R. 4(A). We agree with D.R. and A.B. and conclude that this court is without jurisdiction
to consider Father's appeal.
{¶ 8} Pursuant to Juv.R. 40(D)(3)(b)(i), a party may file written objections to a
magistrate's decision within 14 days of when that decision was filed. However, while a party
may file written objections within this 14-day period, Juv.R. 40(D)(4)(e)(i) provides that a
juvenile "court may enter a judgment either during the fourteen days permitted by Juv.R.
40(D)(3)(b)(i) for the filing of objections to a magistrate's decision or after the fourteen days
have expired." That rule further provides that if the juvenile court enters its judgment during
the 14 days permitted by Juv.R. 40(D)(3)(b)(i) 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." On the other hand, as this court has stated previously, 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 trial court's order. In re
J.A.M., 12th Dist. Butler No. CA2010-04-174, 2011-Ohio-668, ¶ 15.
{¶ 9} In this case, the magistrate filed its decision to award legal custody of the
children to D.B. and A.R. on May 12, 2016, a decision that was subsequently affirmed and
adopted by the juvenile court later that same day. Father, however, although being properly
served with both the magistrate's decision and the juvenile court's judgment entry affirming
and adopting that decision, did not file his objection to the magistrate's decision until
approximately three weeks later on June 3, 2016. Father's objection was clearly untimely
and was not supported by any justification for its untimeliness. As a result, the juvenile
court's judgment entry issued on May 12, 2016 affirming and adopting the magistrate's
-4- Butler CA2016-07-132 CA2016-07-133
decision rendered earlier that day remained in full effect. Despite this, the juvenile court
issued another judgment entry on June 9, 2016, wherein it overruled Father's untimely
objection and re-affirmed and re-adopted the magistrate's May 12, 2016 decision.
{¶ 10} When faced with nearly identical facts to the case at bar, this court has
concluded that a juvenile court's later decision overruling a party's untimely objections to a
magistrate's decision is void since the juvenile court's jurisdiction terminated when it entered
its original judgment entry affirming and adopting the magistrate's decision and no timely
objections were filed. See, e.g., In re J.A.M., 2011-Ohio-668 at ¶ 14-16; In re C.B., 12th Dist.
Clermont No. CA2013-12-094, 2014-Ohio-3784, ¶ 11-14; see also Napier v. Cieslak, 12th
Dist. Butler No. CA2014-12-242, 2015-Ohio-2574, ¶ 15; Losekamp v. Losekamp, 12th Dist.
Butler No. CA2013-11-213, 2014-Ohio-4422, ¶ 25.
{¶ 11} Because Father's objection to the magistrate's decision was untimely filed, the
only viable judgment entry that Father could appeal from was the entry filed by the juvenile
court on May 12, 2016. As a result, pursuant to App.R. 4(A), Father had 30 days from that
date to file his notice of appeal. In re O.H.W., 175 Ohio App.3d 349, 2008-Ohio-627, ¶ 15
(12th Dist.) ("[b]ecause appellant's objections were not timely, appellant had 30 days from the
time the trial court judge adopted the decision * * * to appeal the decision of the trial court on
the merits"). However, Father did not file his notice of appeal until 60 days later on July 11,
2016, thus rendering that filing untimely.
{¶ 12} In light of the foregoing, because Father did not file a timely notice of appeal,
we lack the requisite jurisdiction to consider this appeal. State ex rel. Pendell v. Adams Cty.
Bd. of Elections, 40 Ohio St.3d 58, 60 (1988) ("[w]here a notice of appeal is not filed within
the time prescribed by law, the reviewing court is without jurisdiction to consider issues that
should have been raised in the appeal"). Accordingly, since we lack jurisdiction to consider
-5- Butler CA2016-07-132 CA2016-07-133
this appeal, D.B. and A.R.'s motion to dismiss is granted and Father's appeal is hereby
dismissed.
{¶ 13} Appeal dismissed.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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