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In re S.L.M.

Court of Appeals of Ohio, Ninth District, Summit

December 31, 2019

IN RE: S.L.M.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 18 09 0921

          NEIL P. AGARWAL, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST, Assistant Prosecuting Attorney, for Appellee.

          DENISE FERGUSON, Attorney at Law, for Appellee.

          ANNETTE POWERS, Guardian ad Litem.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN JUDGE.

         {¶1} Appellant, D.D. ("Father"), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that vacated its prior judgment that placed S.L.M. in the legal custody of Father. This Court reverses and remands.

         I.

         {¶2} Father and Mother are the biological parents of S.L.M., born February 24, 2009. Mother has two other children who were parties to the trial court case, but they are not Father's children and are not parties to this appeal.

         {¶3} On September 20, 2018, Summit County Children Services Board ("CSB") filed a complaint, alleging that S.L.M. was a neglected and dependent child because Mother was abusing drugs and otherwise failing to meet the child's needs. CSB sought an initial disposition of temporary custody to Father, who did not live with Mother, with protective supervision by CSB. Father was granted emergency temporary custody the same day.

         {¶4} S.L.M. was later adjudicated a neglected and dependent child and placed in the temporary custody of Father. Shortly afterward, Father moved for legal custody of S.L.M. On February 25, 2019, the trial court issued an order scheduling a review hearing for March 15, 2019, and explained that Father's motion for legal custody would be considered at that hearing. Because Mother was not then represented by counsel, the order further stated that "[i]t is important that Mother immediately see the bailiff and submit an application for the appointment of an attorney."

         {¶5} Upon the motion of the guardian ad litem, the hearing was continued until May 1, 2019. At the May 1 hearing before a magistrate, Mother appeared and requested a continuance so she could obtain counsel. The magistrate orally denied Mother's request for a continuance and proceeded with the hearing on Father's motion for legal custody. The magistrate did not file a dispositional decision, however, until several weeks later.

         {¶6} In the meantime, Mother requested and was appointed trial counsel. On May 31, 2019, the magistrate's dispositional decision was filed. The decision, which was adopted the same day by the trial court, placed S.L.M. in the legal custody of Father. It is unclear from the record whether the magistrate's decision was served on Mother's newly appointed trial counsel.

         {¶7} After the hearing but before the magistrate's decision was filed, Mother filed pro se objections to the magistrate's decision. The Ohio Supreme Court has held that premature objections to a magistrate's decision are deemed filed as of the date of the magistrate's decision and should be considered on the merits. See Gordon v. Gordon,98 Ohio St.3d 334, 2003-Ohio-1069, syllabus. The trial court waited until after the magistrate's decision was filed and allowed Mother time to request a transcript of the hearing. Because Mother did not supplement her objections with a transcript of the proceedings, the trial court ...


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