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In re A.B.

Court of Appeals of Ohio, Ninth District, Lorain

June 19, 2017

IN RE: A.B. C.B.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 15 JC 45172 15 JC 45173

          ROBERT CABRERA, Attorney at Law, for Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and EMILY W. KIRSCH, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, Judge.

         {¶1} Appellant T.H. ("Mother") appeals the judgment of the Lorain County Court of Common Pleas, Juvenile Division, which denied her request to file untimely objections instanter in the absence of any showing of excusable neglect, and which further "denied" her objections to the magistrate's decision for noncompliance with the timeliness requirements of Juv.R. 40. This Court dismisses the entire appeal as moot.

         I. Procedural history

         {¶2} Mother is the biological mother of A.B. and C.B. The biological father ("Father"), whose initials are also C.B., is not a party to this appeal. The parents were not married or living together at any time during the course of these proceedings.

         {¶3} In early April 2015, Lorain County Children Services ("LCCS") filed a complaint alleging that A.B. and C.B. were dependent and neglected children. After continuing the matter once, the magistrate held an adjudicatory hearing in mid-June, followed by a dispositional hearing five days later.

         {¶4} On June 19, 2015, the magistrate issued a decision from the adjudicatory hearing, adjudicating the children dependent and neglected. The magistrate's decision failed to contain the requisite, conspicuous notice pursuant to Juv.R. 40(D), notifying the parties that they must file written objections to findings of fact and/or conclusions of law within fourteen days, or be precluded from raising such issues on appeal. See Juv.R. 40(D)(3)(a)(iii) and (b)(i). The juvenile judge issued a judgment entry the same day, adopting the magistrate's decision, and adjudicating the children dependent and neglected. The judgment entry, however, contained a disclaimer indicating that it merely constituted an interim order, valid for 28 days, plus additional 28-day incremental extensions "for good cause shown."

         {¶5} On June 29, 2015, the magistrate issued a decision from the dispositional hearing, ordering that both children be placed in the legal custody of Father under an order of protective supervision to LCCS. Mother was awarded visitation. This decision, too, failed to contain the requisite, conspicuous Juv.R. 40(D) notice regarding objections. The juvenile judge issued a judgment entry[1] the same day, adopting the magistrate's decision, and granting legal custody to Father with an order of protective supervision, and ordering that Mother shall have parenting time as set forth in the magistrate's decision. This judgment, too, contained the same disclaimer indicating that it merely constituted a 28-day interim order, subject to extension "for good cause shown."

          {¶6} The clerk's docket of events indicates that both adjudicatory entries and both dispositional entries were served on the parties.

         {¶7} On July 20, 2015, Mother filed a motion for leave to file objections instanter. She appended her proposed objections to the motion. Substantively, Mother's objections challenged only the dispositional orders. She argued that an award of legal custody to Father was against the manifest weight of the evidence and was not in the best interest of the children. She also objected to the visitation order as being unreasonable. Mother requested the opportunity to supplement her objections after the transcript of the hearing had been filed. LCCS filed a motion to dismiss Mother's objections as untimely.

         {¶8} Before the juvenile court had an opportunity to consider the two pending motions, Mother filed her first appeal to this Court. She asserted that she was appealing the June 29, 2015 judgment entry, i.e., the dispositional order. After issuing a show cause order and reviewing any responses, this Court dismissed Mother's first appeal by journal entry for lack of a final, appealable order, because the juvenile court had failed to independently issue an adjudication concerning the children. In re A.B., C.B., 9th Dist. Lorain No. 15CA010824 (Sept. 18, 2015).

         {¶9} Immediately thereafter, LCCS filed a motion to terminate protective supervision. Two days later, on September 24, 2015, the juvenile court issued an order indicating that it would grant the agency's motion without a hearing unless any party filed written objections within seven days. Within the same minute, the judge filed a journal entry noting that seven days had elapsed since the agency had filed its motion to terminate protective supervision and that no party had filed written objections. The juvenile court granted the agency's motion, terminated protective supervision, and cancelled all further hearings. The practical effect of this order is unclear. Given that the juvenile court's interim dispositional order awarding legal custody to Father under an order of protective ...


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