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In re T.J.T.

Court of Appeals of Ohio, Seventh District, Belmont

June 12, 2017

IN THE MATTER OF: T.J.T.

         Civil Appeal from the Court of Common Pleas, Juvenile Division, of Belmont County, Ohio Case No. 16 JG 0007

          For Elaine Billitter: Atty. Rebbeca L. Bench

          For Sharon and Tommy Joe Bruce, II: Atty. Eric Costine

          Guardian Ad Litem: Atty. Edward G. Sutersic

          Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} Appellant, Elaine Billitter, appeals the judgment of the Belmont County Court of Common Pleas, Juvenile Division, designating Appellees, Sharon and Tommy Joe Bruce, II, as the legal custodians of T.J.T. T.J.T. was born February 2, 2009. Appellant is the child's natural grandmother and Appellee Sharon Bruce ("Sharon") is the maternal aunt. Appellee Tommy Joe Bruce, II, is Sharon's husband. The child's mother died suddenly of a drug overdose in January of 2016 without a will and without naming a custodian for the child. The child's alleged father is currently serving a twenty-year term of incarceration for two sexual misconduct convictions.

         {¶2} Appellant filed a petition for custody on January 6, 2016, two days after the death of the child's mother. Appellees filed a petition for custody on January 29, 2016. Appellees filed a request for appointment of a guardian ad litem on February 26, 2016. On April 6, 2016, Appellant filed a motion for a child interview which was granted by the trial court. The guardian ad litem filed an interim custody report on April 11, 2016 followed by two additional reports on May 25, 2016 and July 24, 2016. The final guardian ad litem report concluded that, although Appellees could provide a much more traditional and materially beneficial environment, the child had undergone a great deal of trauma due to the loss of the mother. The bond with grandmother was strong and had been a large factor in the child's ability to heal and move forward. The custody hearing was held on two separate dates, July 27, 2016 and August 10, 2016. The guardian ad litem had filed his final report and was present for the hearing. Testimony was received from the guardian ad litem as well as Appellant, Appellee Sharon, Appellant's sister Patricia Piper and the child's cousin Dimitri Turner. Turner's adoptive mother, Kim Pollock, also testified.

         {¶3} On September 1, 2016, a lengthy magistrate's decision was issued. In it, the magistrate detailed the facts of the case and set forth a number of findings of fact and conclusions of law, ultimately determining that custody should be granted to Appellees with regular visitation given to Appellant. On September 6, 2016, Appellant filed a motion which included: (1) objections to the magistrate's decision with a request for additional time for objections after completion of the transcript; (2) a motion for stay pending a hearing on the objections; and (3) a motion requesting the appointment of a guardian ad litem or attorney for the child as the existing guardian ad litem for the child had retired. On September 9, 2016 the trial court issued a judgment entry which read, in pertinent part:

The Court has reviewed the file on this matter and sees no reason to overrule the Magistrate's recommendation. The Court has already issued an order regarding this matter and finds the same is in the best interest of the child.
Should further proceedings be necessary in this matter, the Court will then consider whether a Guardian ad Litem, or an attorney for the child, is necessary.
It is so ordered.

(9/9/16 J.E.)

         {¶4} On September 13, 2016, Appellant filed a motion for reconsideration and clarification of the September 9 order, noting that the judgment entry:

[A]ppears to overruling [sic] Petitioner's Objection and supplemental Motions. However, the Entry does not address the request for stay nor indicate if the Docket and Journal Entry was meant to be a Final Appealable Order. Both of which will have to be addressed prior to the Petitioner filing her Notice of Appeal with the appellate court.
If the Court intended it's [sic] September 9, 2016 Entry to be the Final Appealable Order, the undersigned would ask this Court to reconsider it's [sic] position and grant the stay and allow the Objection to be fully briefed by the parties to the case.
Second, it appears the Court is also overruling Petitioner's request that the Court appoint an attorney for the minor child at this time but would consider if [sic] the same if further proceedings become necessary. Petitioner would respectfully ask the Court to reconsider it's [sic] Order and appoint counsel for the child based upon Rule 4 of the Ohio Rules of Juvenile Procedure and the Seventh District's decisions in both In re Moore, 158 Ohio App.3d 679, 2004-Ohio-4544 and In the matter of A.S. 2014-Ohio-4282. Because the Magistrate's Recommendations are against the expressed wishes of the child and contrary to the recommendations of the GAL, it is imperative that the child and/or the GAL be afforded appointed counsel to file their own Objection to the Magistrate's Recommendation. (Emphasis sic.)

(9/13/16 Motion for Reconsideration and Clarification of Order.)

         {¶5} On September 14, 2016, the trial court issued a journal entry stating, "[t]he Court has ruled on the Motion for Reconsideration, therefore the request for stay is ...


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