[Cite as In re S.M., 2025-Ohio-5144.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE S.M., ET AL. : No. 114922 A Minor Child :
[Appeal by Mother, P.M.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 13, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD22913139 and AD22913140
Appearances:
Brian A. Smith Law Firm, LLC and Brian A. Smith, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee CCDCFS.
MICHAEL JOHN RYAN, P.J.:
P.M., mother of Sau. M. and Sah. M. (“Mother”), appeals from the
juvenile court’s February 2025 judgments (one for each child) granting the motion
of plaintiff-appellee the Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the Agency”) to modify temporary custody to permanent custody.
For the reasons that follow, we affirm.
Factual and Procedural History
Initially, we note that Mother made the transcripts from the
proceedings in the juvenile court part of the record on appeal. Our recitation of the
facts are derived from the record filed, exclusive of the transcripts; the reason for us
not reviewing the transcripts will be explained in the analysis portion of the opinion.
The children came into the predispositional custody of CCDCFS on
December 24, 2022. According to two reports filed by the children’s guardian ad
litem (“GAL”), sometime in November 2022, Mother took the two children to a
friend for what was supposed to be a weekend. Mother never returned at the end of
the weekend, however, and the children were at the friend’s house for three weeks.
During that three-week period, Mother did not answer calls from the friend and did
not contact the friend or the children. The friend reported that during the time the
children were with her, Mother posted pictures of herself on social media “partying.”
The friend was unable to continue caring for the children, and they were brought
into the Agency’s care on December 24, 2022.
On December 27, 2022, the Agency filed a complaint alleging that the
children were neglected and requesting an order for temporary custody to CCDCFS.
The complaint was resolved when the children were adjudicated to be neglected and
were committed to the temporary custody of the Agency. Temporary custody was
extended in December 2023. In May 2024, CCDCFS filed a motion to modify temporary custody to
permanent custody. The following facts are derived from the juvenile court’s June
2024 semiannual review (“SAR”). Upon the Agency’s involvement with the family,
a case plan was developed for Mother to address mental-health, parenting,
substance abuse, and consistent visitation. As of June 2024, Mother had not actively
engaged in any of her case plan services.
Mother had a history of untreated mental-health issues; she self-
reported that she had been diagnosed as being bipolar. She refused to engage with
her mental-health provider, however. Mother also did not make any progress
toward starting or completing a parenting class.
Mother had a history of substance abuse, and the oldest child was
born with a positive toxicology screen for marijuana. Mother admitted that she
drinks as a way to cope with stress. In 2020, Mother was charged with an OVI
offense; both children were in the vehicle at the time of the alleged offense. The SAR
indicated that Mother refused to complete a drug screen for the Agency, did not
engage in substance use programs, and stated that she was not going to stop
drinking.
Mother was supposed to have weekly visits with the children, but she
was not consistent with them and at the time the June 2024 SAR was prepared, she
had only visited with the children twice in 2024. According to the GAL’s February
2025 report, the older child had sadness about Mother’s lack of engagement and the
younger child had little memory of Mother. Sau. M.’s Father had no contact with either his child or the Agency
during the pendency of this case. Sah. M.’s Father, E.A., was actively engaged with
both of the children and the Agency for a majority of the case and the children were
bonded with him. At the time of the preparation of the June 2024 SAR, E.A. was
subject to a no-contact order that prevented him from having contact with Mother
and/or the children, however. E.A. had been working to secure housing appropriate
to accommodate the children but had not yet done so as of June 2024. Further, the
Agency learned through public records that there was an active warrant for E.A.’s
arrest. Although CCDCFS once considered E.A. as a possible placement for the
children, the Agency ultimately eliminated him because of the above-mentioned
concerns.
CCDCFS conducted a family search for possible placement for the
children. Mother denied having any interested or able family members.
E.A. suggested his mother (“paternal grandmother”) and his adult daughter as
possibilities. The GAL’s February 2025 report indicates that both paternal
grandmother and the adult daughter were investigated but failed to follow through
with CCDCFS. The GAL opined that granting permanent custody to CCDCFS was
in the children’s best interest.
In February 2025, CCDCFS’s motion to modify temporary custody to
permanent custody was heard before a magistrate. At the time, Sau. M. was eight
years old and Sah. M. was six years old. The magistrate issued a decision for each
child in which he recommended termination of parental rights and that the children be placed in the permanent custody of CCDCFS. Mother did not file objections to
the magistrate’s decisions. On February 25 and 26, 2025, the juvenile court issued
judgments affirming the magistrate’s decisions. Mother has appealed from those
judgments, raising a sole assignment of error in which she contends that the juvenile
court’s judgments granting permanent custody of the children to CCDCFS was
against the manifest weight of the evidence.1
Law and Analysis
Plain Error and Limited Review
Under Juv.R. 40(D)(3)(b), a party who objects to a magistrate’s
decision must (1) file written objections to the decision within 14 days of the
decision, (2) state with specificity and particularity all grounds for objection, and
(3) support objections to a magistrate’s factual finding with a transcript of the
evidence submitted to the magistrate or an affidavit of evidence if a transcript is
unavailable. Juv.R. 40(D)(3)(b)(i)-(iii). If none of the parties files written
objections, a trial court may adopt the “magistrate’s decision unless it determines
that there is an error of law or other defect evident on the face of the magistrate’s
decision.” Juv.R. 40(D)(4)(c).
When an appealing party has failed to file objections to a magistrate’s
decision in the trial court, our review is limited to plain error:
[e]xcept for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion whether or not specifically designated as a finding of fact or conclusion 1 Neither of the children’s Fathers have appealed; therefore, except where appropriate, we do not discuss the Fathers but, rather, focus our discussion on Mother. of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).
Juv.R. 40(D)(3)(b)(iv).
Juv.R. 40(D)(3)(b)(iv) “embodies the long-recognized principle that
the failure to draw the trial court’s attention to possible error when the error could
have been corrected results in a waiver of the issue for purposes of appeal.” In re
Etter, 134 Ohio App.3d 484, 492 (1st Dist. 1998), citing Goldfuss v. Davidson, 79
Ohio St.3d 116, 121 (1997).
Thus, because Mother failed to object to the magistrate’s decisions in
the juvenile court, our review is limited for plain error. See Hamilton v. Hamilton,
2016-Ohio-5900, ¶ 6 (10th Dist.), citing Lavelle v. Lavelle, 2012-Ohio-6197, ¶ 8
(10th Dist.). As the Hamilton Court explained:
[I]n appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error seriously affects the basic fairness, integrity, or public reputation of the judicial process itself. Uretsky v. Uretsky, 10th Dist. No. 02AP-1011, 2003-Ohio-1455, ¶ 7, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997-Ohio-401, 679 N.E.2d 1099 (1997), syllabus. ‘Indeed, the plain error doctrine implicates errors in the judicial process where the error is clearly apparent on the face of the record and is prejudicial to the appellant.’ Skydive Columbus Ohio, L.L.C. v. Litter, 10th Dist. No. 09AP-563, 2010-Ohio-3325, ¶ 13, citing Reichert v. Ingersoll, 18 Ohio St.3d 220, 223, 18 Ohio B. 281, 480 N.E.2d 802 (1985). “Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise.” In re C.M., 10th Dist. No. 07AP-933, 2008-Ohio-2977, ¶ 50, quoting State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990).
Hamilton at ¶ 8. In addition to not objecting to the magistrate’s decisions, Mother
neither requested nor obtained the transcript from the hearing on the Agency’s
motions to modify temporary custody for the juvenile court’s review. Although
Mother has supplemented the record on appeal with the transcript, we are precluded
from reviewing it because the juvenile court did not have the opportunity to review
it before issuing the subject judgments. See In re J.K., 2012-Ohio-214, ¶ 14-16
(4th Dist.) (An appellate court may not consider the transcript of the magistrate’s
hearing when a party fails to file objections to a magistrate’s decision and fails to file
a hearing transcript with the trial court.).
Permanent Custody Determination
In her sole assignment of error, Mother contends that the juvenile
court’s judgments granting CCDCFS’s motion to modify temporary custody to
permanent custody were against the manifest weight of the evidence.
The Supreme Court of Ohio has clarified that, when reviewing a
juvenile court’s award of permanent custody and termination of parental rights, “the
proper appellate standards of review to apply . . . are the sufficiency-of-the-evidence
and/or manifest-weight-of-the-evidence standards, as appropriate depending on
the nature of the arguments that are presented by the parties” rather than an abuse-
of-discretion standard. In re Z.C., 2023-Ohio-4703, ¶ 18.
In reviewing a juvenile court’s decision regarding permanent custody
on weight-of-the-evidence grounds, the appellate court must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.
In re Z.C. at ¶ 14, citing Eastley v. Volkman, 2012-Ohio-2179.
R.C. 2151.414 provides a two-prong analysis to be applied by a
juvenile court in adjudicating a motion for permanent custody. In re S.C., 2018-
Ohio-2523, ¶ 20 (8th Dist.), citing R.C. 2151.414(B). Under the first prong, after a
hearing, the juvenile court considers whether any of the following factors have been
established by clear and convincing evidence:
(a) the child is not abandoned or orphaned, but the child cannot be placed with either parent within a reasonable time or should not be placed with the child’s parents;
(b) the child is abandoned;
(c) the child is orphaned, and there are no relatives of the child who are able to take permanent custody;
(d) the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for 12 or more months of a consecutive 22-month period; or
(e) the child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
R.C. 2151.414(B)(1)(a)-(e).
The juvenile court made findings under R.C. 2151.414(B)(1)(b) and
(d). The findings were supported by clear and convincing evidence. Under
subsection (b) — that the children were abandoned — R.C. 2151.011(C) provides that “a child shall be presumed abandoned when the parents of the child have failed to
visit or maintain contact with the child for more than ninety days, regardless of
whether the parents resume contact with the child after that period of ninety days.”
At the time the June 2024 SAR was prepared, Mother had only visited with the
children twice in 2024, which necessarily means that she failed to visit with them
for more than 90 days.
Under subsection (d) — the 12 out of 22 months finding —
R.C. 2151.414(B)(1)(e) provides in relevant part that “[f]or the purpose of division
(B)(1) of this section, a child shall be considered to have entered the temporary
custody of an agency on the earlier of the date the child is adjudicated pursuant to
section 2151.28 of the Revised Code or the date that is sixty days after removal of the
child from the home.”
The record demonstrates that the children were removed from
Mother’s care on December 24, 2022. The children were adjudicated neglected on
May 25, 2023. February 26, 2023 represented 60 days after the children were
removed from their home. The Agency filed its motion to modify temporary custody
to permanent custody on May 29, 2024. Accordingly, the children were in
temporary custody for approximately 15 months (three months beyond the required
12 months) before CCDCFS filed its motion for permanent custody. Thus, clear and
convincing evidence supported the juvenile court’s finding under
R.C. 2151.414(B)(1)(d). On this record, the first prong required to grant permanent custody
to CCDCFS was satisfied.
Under the second prong of R.C. 2151.414, when any one of the factors
under R.C. 2151.414(B)(1) exists, the juvenile court must then analyze whether, by
clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency pursuant to R.C. 2151.414(D). The
R.C. 2151.414(D)(1) factors are as follows:
(a) The interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;
(d) The child’s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
R.C. 2151.414(D)(1)(a)-(e).
The juvenile court made findings under all the subsections of
R.C. 2151.414(D)(1). Under subsection (a), the court found that “Mother has abandoned the child[ren]. Mother has visited the child[ren] only a few hours in past
eighteen (18) months.” Review of the juvenile court’s June 2024 SAR and the GAL’s
February 2025 report support the trial court’s finding. Under subsection (b), the
trial court found that the GAL recommended CCDCFS be granted permanent
custody.
Regarding the children’s custodial history, the juvenile court found
under subsection (c) that the children had been in custody since December 2022.
The court further made the following finding under subsection (d):
The child[ren] deserve[ ] a safe and stable home environment where [their] needs can be met and [they] can thrive. This cannot be achieved with Mother as she has not engaged in case plan services and has not remedied the cause for removal.
The juvenile court also made findings under R.C. 2151.414(E),
including under subsection (10), finding that Mother abandoned the children.
As mentioned, R.C. 2151.414(D)(1)(e) requires the court to consider whether any
factors under R.C. 2151.414(E)(7) to (11) apply in making its best interest
determination. The remaining R.C. 2151.414(E) factors will be discussed below.
The juvenile court also considered the factors under
R.C. 2151.414(D)(2), which are as follows:
(a) The court determines by clear and convincing evidence that one or more of the factors in division (E) of this section exist and the child cannot be placed with one of the child’s parents within a reasonable time or should not be placed with either parent.
(b) The child has been in an agency’s custody for two years or longer, and no longer qualifies for temporary custody pursuant to division (D) of section 2151.415 of the Revised Code. (c) The child does not meet the requirements for a planned permanent living arrangement pursuant to division (A)(5) of section 2151.353 of the Revised Code.
(d) Prior to the dispositional hearing, no relative or other interested person has filed, or has been identified in, a motion for legal custody of the child.
R.C. 2151.414(D)(2)(a)-(d).
The juvenile court found that all of the above factors applied. Our
review of the record confirms that the clear and convincing evidence supported the
findings. Under R.C. 2151.414(D)(2)(a), at least one of the (E) factors — that Mother
abandoned the children — was present and because Mother had not made any
progress on her case plan the children could not or should not be returned to her.
Under R.C. 2151.414(D)(2)(b), the children had continuously been in CCDCFS’s
custody since their removal from Mother in December 2022 through the time of the
February 2025 trial. Moreover, because the children had been in CCDCFS’s
continuous custody for over two years, their time for being in temporary custody
could not be extended.2
Under R.C. 2151.414(D)(2)(c), the children did not qualify for a
planned permanent living arrangement because they were not at least 16 years of
age as required under R.C. 2151.353(A)(5). And, under R.C. 2151.414(D)(2)(d), no
relative or interested party filed a motion for legal custody of the children.
2 See R.C. 2151.414(D)(4), which provides in relevant part that “the court shall not order an existing temporary custody order to continue beyond two years after the date on which the complaint was filed or the child was first placed into shelter care, whichever date is earlier, regardless of whether any extensions have been previously ordered pursuant to division (D) of this section.” Moreover, the Agency investigated relative placement and the only possible relative,
E.A., ultimately was not a viable option because, among other reasons, he had a no-
contact order with the children and an active arrest warrant.
Thus, clear and convincing evidence supported the juvenile court’s
finding that all the R.C. 2151.414(D)(2) factors applied. A juvenile court’s
determination that all of the R.C. 2151.414(D)(2)(a)-(d) factors apply mandates a
finding that “permanent custody is in the best interest of the child, and the court
shall commit the child to the permanent custody of [an agency].”
R.C. 2151.414(D)(2); In re A.S., 2021-Ohio-3829, ¶ 42 (8th Dist.), citing In re G.A.,
2020-Ohio-2949, ¶ 59 (8th Dist.).
The juvenile court also found that the children could not, or should
not, be placed with Mother after consideration of the R.C. 2151.414(E) factors. That
section provides in relevant part as follows:
(E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code that one or more of the following exist as to each of the child’s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:
(1) Following the placement of the child outside the child’s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual disability, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code;
...
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
(10) The parent has abandoned the child.
(14) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.
A review of the record demonstrates that the juvenile court’s findings
under R.C. 2141.414(E) were supported by clear and convincing evidence. Mother
failed to engage in her case plan services and therefore failed to remedy the
conditions that led to the children’s removal from her care. The case plan included
addressing substance use issues; Mother indicated that she drank as a stress reliever and would continue to do so. Mother also barely visited with the children, which
resulted in the juvenile court finding that she had a lack of commitment toward
them, abandoned them, and was unwilling to provide for them.
Because, as the juvenile court found and we affirm, the children
cannot or should not be placed with Mother within a reasonable time the juvenile
court could not return them to Mother. See In re T.S., 2024-Ohio-827, ¶ 16
(8th Dist.) (“[A] trial court’s finding that it cannot or should not place a child with a
parent precludes the court from considering returning the child to Mother’s
custody.”)
We recognize that a parent has a fundamental interest in the care and
custody of his or her child. In re L.W., 2019-Ohio-1343, ¶ 20 (8th Dist.). Parental
rights are not absolute, however: “‘The natural rights of a parent are always subject
to the ultimate welfare of the child, which is the polestar or controlling principle to
be observed.’” In re L.D., 2017-Ohio-1037, ¶ 29 (8th Dist.), quoting In re
Cunningham, 59 Ohio St.2d 100, 106 (1979). “By terminating parental rights, the
goal is to create ‘a more stable life’ for dependent children and to ‘facilitate adoption
to foster permanency for children.’” In re R.G., 2016-Ohio-7897, ¶ 21 (8th Dist.),
quoting In re N.B., 2015-Ohio-314, ¶ 67 (8th Dist.), citing In re Howard, 1986 Ohio
App. LEXIS 7860, *5 (5th Dist. Aug. 1, 1986). This court does not look upon these
matters lightly, and this case is certainly no exception. But in light of the above, the
juvenile court’s decision is not against the manifest weight of the evidence.
Mother’s sole assignment of error is overruled. Judgments 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 be sent to said court 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.
________________________________ MICHAEL JOHN RYAN, PRESIDING JUDGE
SEAN C. GALLAGHER J., CONCURS; KATHLEEN ANN KEOUGH J., CONCURS (WITH SEPARATE OPINION)
KATHLEEN ANN KEOUGH, J., CONCURRING:
I concur fully with the majority opinion. I write separately, however,
to express my concern about the practice of referring motions for permanent
custody to a magistrate to conduct the evidentiary hearing, which for all practical
purposes is a trial. This practice requires a parent to file objections to the
magistrate’s decision to preserve appellate review beyond just for plain error. This
process is just another hurdle that a parent must complete if the parent challenges
the agency’s attempt to terminate their parental rights. But more importantly, the
process only causes unnecessary delay in the already uncertainty a child faces during
these proceedings. It has long been held that “‘the permanent termination of parental
rights has been described as the family law equivalent of the death penalty in a
criminal case.’” In re Hoffman, 2002-Ohio-5368, ¶ 14, quoting In re Hayes, 79 Ohio
St.3d 46, 48 (1997). Accordingly, the most serious legal proceeding a parent faces
oftentimes is referred to an unelected magistrate to receive testimony and make an
initial legal determination whether the parent(s) should maintain their parental
rights over their children.
I recognize that the juvenile rules authorize the appointment of a
magistrate to hear permanent custody motions. Juv.R. 40 permits a court to
appoint magistrates to assist a court with legal proceedings, and subsection (C)
governs the scope of the magistrate’s authority. Currently, the juvenile rules only
prohibit magistrates from presiding over jury trials, motions involving a
determination of a child’s status as a serious youth offender, and non-jury trial
adjudications of a case against an alleged serious youthful offender. See Juv.R.
40(C)(1)(a)-(c). Nevertheless, Juv.R. 40(D)(1)(b), provides that a juvenile court
may limit a magistrate’s reference by specifying or limiting the magistrate’s powers, including but not limited to, directing the magistrate to determine particular issues, directing the magistrate to perform particular responsibilities, directing the magistrate to receive and report evidence only, fixing the time and place for beginning and closing any hearings, or fixing the time for filing any magistrate’s decision on the matter or matters referred.
Accordingly, the juvenile court, through its local rules, has the authority to limit a
magistrate from considering an agency’s motion for permanent custody. The Cuyahoga County Juvenile Division’s local rules do not provide for such limitation.
See Cuyahoga C.P., Juv. Div., Loc.R. 7.
Nevertheless, it cannot be ignored that when a magistrate conducts
the evidentiary hearing on a motion for permanent custody, the process of
permanency for the children causes further delay. After the magistrate conducts the
hearing and renders a decision, the juvenile rules afford a parent or a party 14 days
to file objections to the magistrate’s filed decision. Juv.R. 40(D)(3). If the
magistrate did not provide findings of fact or conclusions of law in its decision, a
party may request the magistrate to do so within seven days of the filed decision.
Interestingly, neither the juvenile rules nor the revised code requires findings of fact
and conclusions of law in permanency cases. Juv.R. 40(D)(3)(a)(ii); R.C.
2151.414(C).
The juvenile rules then mandate that if a party wishes to object to a
finding of fact or conclusion of law, the party then must request and file within 30
days of the magistrate’s decision, a transcript of the proceedings or an affidavit of
the evidence, if a transcript is not available. But in Cuyahoga County, before a party
can even order a transcript, the party must first seek permission from the juvenile
court to obtain the transcript. See Cuyahoga C.P., Juv. Div., Loc.R. 34(D) (“[A]n
individual seeking an audio copy or transcript of a court hearing or case shall
complete a ‘Request for Transcript or Audio Copy of Hearing Form’ which is
available in the Clerk’s Office. The form must be completed and accompanied by a
court order or a completed notice of appeal.”). Once the party files the transcript, the juvenile rules allow a party to seek leave to file supplemental objections based
on the information in the transcript. Juv.R. 40(D)(3)(b)(iii).
Only after all these steps are taken will the trial court conduct an
independent review to rule on the objections. See Juv.R. 40(D)(4)(d) (“In ruling on
objections, the court shall undertake an independent review as to the objected
matters to ascertain that the magistrate has properly determined the factual issues
and appropriately applied the law.”). Moreover, only after all these steps are
completed will the objecting party preserve the ability to have their subsequent
appeal in this court reviewed beyond just for plain error. See Juv.R. 40(D)(3)(b)(iii)-
(iv).
The delay created when a magistrate conducts the hearing is entirely
unnecessary and avoidable. This entire aforementioned process could all be
alleviated if the trial judge would conduct the evidentiary hearing on an agency’s
motion for permanent custody and render final judgment. Moreover, the parent or
party would not just be limited for plain error review on appeal for failing to file
objections or a transcript.
Additionally, if the parent does not file objections to the magistrate’s
decision, as in this case, the juvenile rules do not require the trial judge to review the
transcript or evidence of the proceedings before considering whether the adopt or
approve the magistrate’s decision. Juv.R. 40(D)(3)(c) provides that if no objections
are filed, “the court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate’s decision.” Accordingly, in cases that have been described as the “the family law
equivalent of the death penalty in a criminal case,” the trial judge is not even
required to review the evidence presented at the hearing prior to adopting the
magistrate’s decision.
Until the Ohio Supreme Court expressly limits a magistrate’s
authority regarding consideration of motions for permanent custody by modifying
Juv.R. 40, the juvenile court should consider whether it is in the best interests of the
parties for magistrates to continue conducting permanent custody hearings. In my
opinion, if the trial judge would conduct the evidentiary hearing and initially
determine whether the agency satisfied its burden, this process would not only
remove the additional hurdle of objecting to a magistrate’s decision and preserve a
party’s ability for full appellate review, but it would more importantly remove the
delays — delays that only hinder the goals of stability and permanency for these
children. These delays that the juvenile rules currently allow for cannot be in the
best interests of the children.