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In re S.K.

Court of Appeals of Ohio, Fifth District, Richland

June 24, 2019

IN RE: S.K., T.K., D.T., M.T., J.T., and R.T. DEPENDENT CHILDREN

          Civil appeal from the Richland County Court of Common Pleas, Juvenile Division, Case Nos. 2017-DEP-00081, 2017-DEP-00082, 2017-DEP-00083, 2017-DEP-00084, 2017-DEP-00085, and 2017-DEP-00086

          For: Richland County Children's Services.

          For: Mother-Appellant DARIN AVERY.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin J.

          OPINION

          GWIN, P.J.

         {¶1} Appellant-mother, B.S., appeals the decisions of the Richland County Court of Common Pleas, Juvenile Court Division entered on August 31, 2018, that issued dispositional orders pertaining to her children D.T[1]., M.T.[2], R.T.[3], J.T.[4] S.K. [5]and T.K[6]. under R.C.2151.353(A). Appellee the Richland County Children Services Board ["RCCSB"] did not file a brief in this case.

         Facts and Procedural History

         {¶2} Appellee RCCSB did not file a brief in this matter. Pursuant to App.R. 18(C), in determining the appeal, we may accept Appellant's statement of the facts and issues as correct, and reverse the judgment if Appellant's brief reasonably appears to sustain such action. See State v. S.K., 5th Dist. Richland No. 18CA89, 2018-Ohio-3332; State v. S.H., 5th Dist. Guernsey No. 10CA000023, 2010-Ohio-5741, ¶17; State v. McLeod, 5th Dist. Knox No. 2011-CA-22, 2012-Ohio-1797, ¶2. Therefore, we presume the validity of Appellant's statement of facts and issues.

         {¶3} RCCSB filed complaints on May 4, 2017, alleging D.T. and his sibling, M.T., to be abused and dependent children, and their other siblings, R.T., J.T., S.K., and T.K., to be dependent children due to concerns of physical abuse by mother's paramour stemming from an incident on January 17, 2017.

         {¶4} Following that incident, mother had agreed to a voluntary safety plan placing her children with her sister, the grandmother of two of the children, and a friend. On or about May 12, 2017, mother gathered her children from those voluntary placements and moved to Kentucky with the father of four of the children.

         {¶5} On May 18, 2017, the trial court issued an ex parte order placing the children in the temporary custody of RCCSB in response to a motion alleging that mother had fled. On May 19, 2017, the trial court held a hearing at which it heard no evidence and on May 22, 2017, issued an order continuing the previous order of temporary custody to RCCSB. On May 20, 2017, representatives of RCCSB went to Kentucky seeking the children, and Appellant voluntarily surrendered the children to them. Appellant was served with the complaint on May 20, 2017, by residential service at her home in Mansfield, Ohio.

         {¶6} On July 21, 2017, the magistrate heard testimony from Detective David Scheurer of the Mansfield City Police Department; S. K., maternal aunt; N. H., family friend and temporary caregiver; and Y. G. of Encompass Counseling Services.

         {¶7} On August 29, 2017, and October 6, 2017, Appellant moved for dismissal for failure to follow the time requirements of R.C. 2151.35(B).

         {¶8} On August 31, 2017, the magistrate heard testimony from T. G., counselor at Malabar Middle School; and B.P., A.H., and K.K., RCCSB caseworkers.

         {¶9} On October 12, 2017, the magistrate heard testimony from Appellant, called to testify by her counsel.

         {¶10} On August 31, 2017, the magistrate, with the consent of all parties, admitted into evidence RCCSB Exhibits A-1 through A-15 and B-1 through B-8, each being photographs of the minor child and siblings. On October 12, 2017, with the consent of all parties, the magistrate admitted into evidence RCCSB Exhibit C, being medical records regarding Appellant from Urgent Care dated January 2, 2017. After the presentation of evidence, the magistrate heard closing arguments from the parties.

         {¶11} The Richland County Court of Common Pleas, Juvenile Division, in its October 25, 2017, entry, overruled Appellant's motions to dismiss and found all six children dependent and M.T. and D.T. abused.

         {¶12} Appellant timely objected to the magistrate's decisions regarding dependency, abuse, and mother's motion to dismiss. The trial court overruled Appellant's objections by entry dated March 16, 2018.

         {¶13} In the meantime, the magistrate in the case at bar, conducted hearings on disposition on November 8, 2017, January 12, 2018 and March 22, 2018. The magistrate issued a decision on April 9, 2018 addressing disposition. The trial court approved and adopted the decision the same day.

         {¶14} Appellant filed a notice of appeal to this Court on April 11, 2018. Upon review, this Court overruled Appellant's five assignments of error. See, State v. S.K., 5th Dist. Richland No. 18CA89, 2018-Ohio-3332. The Ohio Supreme Court accepted the cases as a jurisdictional appeal on December 12, 2018. See, In re S.K., 154 Ohio St.3d 1443, 2018-Ohio-4962, 113 N.E.3d 55. It appears that briefing is complete in the Ohio Supreme Court.

         {¶15} However, on April 19, 2018, Appellant filed objections under Juv.R. 40 to the magistrate's April 9, 2018 decision that had been approved and adopted by the trial court. The trial court overruled the objections and issued a Dispositional Order on August 31, 2018.

         {¶16} On October 1, 2018, Appellant filed a notice of appeal from the trial court's August 31, 2018 decision.

         Assignments of Error

         {¶17} Mother raises three assignments of error, {¶18} "I. THE COURT'S FAILURE TO RETURN THE CHILDREN HOME WITH A PSO WAS ...


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