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In re K.P.

Court of Appeals of Ohio, Fifth District, Fairfield

June 7, 2017

IN THE MATTER OF: K.P. IN THE MATTER OF: M.P.

         Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 2014-AB-162 and 2014-AB-163.

          For Appellant WILLIAM J. HOLT

          For Father DARREN L. MEADE

          For K.P. and M.P. DAVID TAWNEY

          For Appellee DAVID K. H. SILWANI

          Guardian ad Litem SARAH RAHTER

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, Earle, J.

         {¶ 1} Appellant-Mother, C.L., appeals the January 5, 2017 judgment entries/orders of the Court of Common Pleas of Fairfield County, Ohio, Juvenile Division, denying her objections and upholding the magistrate's decision granting appellee, Fairfield County Child Protective Services, permanent custody of her children.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} On October 8, 2014, appellee filed two separate complaints, one alleging K.P., born February 10, 2012, and one alleging M.P., born November 13, 2013, to be abused, neglected, and/or dependent children. Mother of the children is appellant herein; father is K.P. The children were placed in appellee's temporary custody and case plans were filed. By agreed judgment entries filed December 22, 2014, the children were found to be dependent and appellee's temporary custody was continued.

         {¶ 3} On September 14, 2015, appellee filed motions for permanent custody of the children because neither parent had complied with the case plans. Hearings before a magistrate were held on April 12 and 13, 2016. By decisions filed May 10, 2016, the magistrate terminated appellant's parental rights and granted permanent custody of the children to appellee. Appellant filed objections, arguing the magistrate's decisions were against the manifest weight and sufficiency of the evidence, were an abuse of discretion, and appellee failed to comply with the federal Indian Child Welfare Act. Appellant indicated a memorandum in support would be submitted after completion of the trial transcript. Appellant also requested an oral hearing on the objections and that the trial court take additional testimony on matters that occurred before trial but were not discovered until after the trial. Appellant's requests were denied by orders filed May 24, 2016.

         {¶ 4} Transcripts of the magistrate's hearings were filed on June 30, 2016. By judgment entries/orders filed July 5, 2016, the trial court overruled the objections, finding the objections were broad and failed to state an objection with specificity. The trial court upheld the magistrate's decisions without considering the merits of the objections.

         {¶ 5} Appellant filed an appeal in each case. This court reversed the trial court's decisions, finding the trial court erred in finding the objections were not stated with particularity and in not conducting an independent review of the magistrate's decisions pursuant to Juv.R. 40(D)(4)(d). In the Matter of K.P., 5th Dist. Fairfield No. 16-CA-25, 2016-Ohio-8242; In the Matter of M.P., 5th Dist. Fairfield No. 16-CA-26, 2016-Ohio-8243. This court remanded the matter to the trial court for further proceedings.

         {¶ 6} By judgment entries/orders filed January 5, 2017, the trial court determined it would not hear additional evidence, conducted an independent review, overruled the objections, and upheld the magistrate's decisions.

         {¶ 7} Appellant filed two appeals, one for each child, and this matter is now before this court for consideration. Assignments of error are identical in each case and are as follows:

         I

         {¶ 8} "THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE APPELLANT WITH AN INDEPENDENT REVIEW OF THE MAGISTRATE'S DECISION IN VIOLATION OF JUVENILE RULE 40(D)(4)(d)."

         II

         {¶ 9} "THE TRIAL COURT ERRED IN THE APPLICATION OF JUVENILE RULE 40(D)(4) IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE CONSTITUTION OF THE UNITED STATES, AND THE DUE PROCESS CLAUSE OF THE OHIO CONSTITUTION."

         III

         {¶ 10} "THE TRIAL COURT ERRED IN FAILING TO HEAR ADDITIONAL EVIDENCE FROM THE APPELLANT IN VIOLATION OF JUVENILE RULE 40(D)(4)(d)."

         IV

         {¶ 11} "THE TRIAL COURT ERRED IN NOT FINDING THAT THE (SIC) THERE WAS INSUFFICIENT EVIDENCE TO AWARD TO FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES THE PERMANENT CUSTODY OF THE CHILDREN OF THE APPELLANT MOTHER."

         I, II

         {¶ 12} In assignments of error one and two, appellant claims the trial court failed to conduct an independent review of the magistrate's decisions in violation of Juv.R. 40(D)(4)(d) and failed to properly apply the rule, thereby violating her due process rights. We disagree.

         {¶ 13} Juv.R. 40(D)(4)(d) states the following:

If one or more objections to a magistrate's decision are timely filed, the court shall rule on those objections. 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. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.

         {¶ 14} Appellant argues the trial court failed to make an independent review. In its judgment entries filed January 5, 2017, the trial court acknowledged this court's "directive was for the Court to conduct an independent review of the magistrate's factual findings and application of the law in this matter. Therefore, the court has conducted said independent review and issues this decision as a result of said review." The trial court indicated it conducted an independent review of the transcript of the magistrate's hearings and the facts presented, and "will consider manifest weight and insufficient evidence in one analysis of insufficient evidence." The trial court set forth the burden of proof as "clear and convincing evidence, " reviewed the application of the law, and entered findings. The trial court concluded at 2, "the State presented sufficient evidence to support the granting of its motion for permanent custody by clear and convincing evidence."

         {¶ 15} Appellant takes issue with this statement, arguing the trial court applied "an appellate standard rather than an independent review." Appellant's Briefs at 4. Appellant argues the trial court's "function when making an independent review is anything but determining whether there is sufficient evidence which can be discerned ...


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