IN THE MATTER OF: K.E.C.
| Decision Date | 18 June 2010 |
| Docket Number | CASE NO. 2009-T-0035 |
| Citation | 2010 Ohio 2819 |
| Parties | IN THE MATTER OF: K.E.C., DEPENDENT CHILD |
| Court | Ohio Court of Appeals |
Elise M. Burkey, Burkey, Burkey & Scher Co., L.P.A., 200 Chestnut Avenue, N.E., Warren, OH 44483-5805 (For Appellant, Megan Coward, Mother).
Dwight Smith, pro se, 226 Highland Avenue, Newton Falls, OH 44444 (Appellee,
Uncle).
Jacqueline Smith, pro se, 226 Highland Avenue, Newton Falls, OH 44444 (Appellee,
Aunt).
Craig H. Neuman and Susan Porter Collins, Trumbull County Children Services Board, 2282 Reeves Road, N.E., Warren, OH 44483 (For Appellee, Trumbull County Children Services Board).
Kimberly A. Kohli, 3680 Starrs Centre Drive, Canfield, OH 44406-9514 (Guardian ad litem).
Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 07 JC 244.
Judgment: Reversed and remanded.
{¶1} Appellant, Megan Coward, mother of K.E.C. ("minor child"), appeals from the March 18, 2009 judgment entry of the Trumbull County Court of Common Pleas, Juvenile Division, overruling her objections to the magistrate's decision and grantinglegal custody of the minor child to the minor child's paternal uncle and aunt, appellees, Dwight and Jacqueline Smith ("the Smiths").
{¶2} Appellant is the mother of three children: a set of twins, L.P. and A.P. ("twins"), d.o.b. October 28, 2005, and the minor child, d.o.b. March 18, 2008.
{¶3} While appellant was pregnant with the minor child, appellee, Trumbull County Children Services Board ("TCCSB") filed a complaint for dependency and neglect with respect to the twins on August 10, 2007. On August 13, 2007, Attorney Kimberly A. Kohli ("GAL") was appointed as the guardian ad litem and counsel for the twins.
{¶4} Adjudicatory and dispositional hearings with regard to the twins were held on September 12, 2007. TCCSB had been providing services to the family at issue since January of 2007. The trial court determined there were issues of inappropriate supervision, lack of medical care, delayed immunizations, alcohol abuse, poor home conditions, and conflict between the parents and third parties in the home who were usurping the minimal assets and resources of the family. However, at the time of the hearings, appellant had obtained a medical card for the twins, improved the home conditions, and posted no trespassing signs at the home.
{¶5} Pursuant to his September 12, 2007 decision, the magistrate found the twins dependent. The trial court approved and adopted the magistrate's decision on October 2, 2007. Appellant maintained temporary custody of the twins subject to an order of protective supervision. Appellant was to obtain prenatal care, complete a drug and alcohol assessment, submit to random screens, complete a psychological evaluation, follow treatment recommendations, complete an assessment for angermanagement, complete parenting classes, and maintain her home free of known felons and persons likely to engage in domestic violence.
{¶6} On December 12, 2007, TCCSB filed a motion for ex-parte temporary orders due to appellant's failure to follow court orders. Specifically, appellant had not completed her drug and alcohol assessment and refused to take random screens. In addition, there was a domestic violence incident at appellant's home where her new boyfriend attempted to break in with an ax. There were also other existing warrants for the boyfriend's arrest. Further, appellant had permitted third parties into the home and her utilities were shut off.
{¶7} On December 12, 2007, the trial court issued a judgment entry, ordering temporary custody of the twins to TCCSB, and directing TCCSB to relocate the twins to a safe placement with a relative or to place them in foster care, pending a shelter care hearing. On December 13, 2007, a shelter care hearing was held. TCCSB continued to hold temporary custody of the twins, with visitation permitted to family.
{¶8} A dispositional review hearing was held on January 9, 2008. Pursuant to his decision, the magistrate determined that temporary custody of the twins, subject to an order of protective supervision, be granted to the paternal grandparents, Larry and Terri Pigg ("the Piggs"). The trial court approved and adopted the magistrate's decision on January 23, 2008.
{¶9} On March 18, 2008, appellant gave birth to the minor child. She had entered the Beatitude House, a supervised residential facility that deals with income and housing problems.
{¶10} On April 2, 2008, TCCSB filed a complaint for dependency with respect to the minor child. The GAL was appointed as the guardian ad litem and counsel for the minor child on April 4, 2008. On April 15, 2008, appellant filed a motion to regain custody of the twins. The GAL filed her report on April 23, 2008, recommending that it would be in the minor child's best interest to reside with appellant and in the best interests of the twins to restore allocation of parental rights and responsibilities to appellant, as she had been complying with her case plan.
{¶11} Adjudicatory and dispositional hearings were held on April 23, 2008. Pursuant to his April 23, 2008 decision, the magistrate found the minor child dependent. Since appellant was at the Beatitude House, the trial court granted her temporary custody of the minor child, subject to an order of protective supervision, on May 15, 2008.
{¶12} A review hearing was held on June 19, 2008, with regard to appellant's motion concerning the twins. Pursuant to his June 19, 2008 decision, the magistrate determined that appellant should be granted temporary custody of the twins, subject to an order of protective supervision. The trial court approved and adopted the magistrate's decision on June 26, 2008.
{¶13} Appellant failed to comply with the trial court's orders and the rules of the Beatitude House. For example, the twins were discovered unsupervised in their apartment playing with a full tub of bath water; were found outside of the apartment by other residents; and had not been properly cleaned or fed. Appellant was asked to leave the facility because she did not follow house rules.
{¶14} Because appellant violated the terms of the trial court's protective supervision order, TCCSB filed a motion for modification of dispositional orders on September 18, 2008. A review hearing was held on October 8, 2008. Appellant did not appear. At the time of that hearing, the paternal grandparents, the Piggs, had completed a full home evaluation for custody. They were willing to take legal custody of the twins, but were hesitant to take full custody of the infant minor child at that point of their lives. The Piggs agreed to take temporary custody of the minor child while other relative options could be identified.
{¶15} Pursuant to his October 8, 2008 decision, the magistrate determined that legal custody of the twins and temporary custody of the minor child be granted to the Piggs. The trial court approved and adopted the magistrate's decision on October 24, 2008.
{¶16} On February 19, 2009, TCCSB filed a motion to grant legal custody of the minor child to the minor child's paternal uncle and aunt, the Smiths. A review hearing was held on March 2, 2009. It was determined that appellant maintained limited contact with her assigned caseworker; had no housing; no income; and no driver's license.
{¶17} Pursuant to his March 2, 2009 decision, the magistrate determined that it would be in the best interests of the minor child to grant legal custody to the Smiths, who had completed a full home evaluation and were appropriate custodians. Appellant filed objections to the magistrate's decision on March 16, 2009.
{¶18} Pursuant to its March 18, 2009 judgment entry, the trial court overruled appellant's objections, and approved and adopted the magistrate's decision, grantinglegal custody of the minor child to the Smiths. It is from that judgment that appellant filed a timely appeal, raising the following assignments of error for our review:
{¶19} "[1.] THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MOTHER'S REQUEST FOR A CONTINUANCE BECAUSE OF HER SUBSTANTIAL COMPLIANCE WITH THE CASE PLAN.
{¶20} "[2.] THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING MOTHER SUCH RESTRICTIVE VISITATION AS IT WAS A DENIAL OF VISITATION AGAINST THE GUARDIAN AD LITEM'S RECOMMENDATION AND BY THEN ALLOWING THE FATHER TO CONTINUE TO RESIDE IN THE HOME AND VISIT THE CHILDREN WITHOUT ANY ATTEMPTS ON HIS PART TO COMPLETE HIS CASE PLAN.
{¶21}
{¶22} For ease of discussion, we will consider appellant's assignments of error out of order.
{¶23} In her third assignment of error, appellant maintains that the trial court abused its discretion in overruling her objections to the magistrate's decision, only two days after filing, without an independent review or additional hearing. We agree.
{¶24} "The standard of review generally applied when reviewing a court's adoption of a magistrate's decision is abuse of discretion. Wade v. Wade (1996), 113 Ohio App.3d 414, 419 Stafinsky v. Stafinsky (1996), 116 Ohio App.3d 781, 785 Defrank-Jenne v. Pruitt, 11th Dist. No. 2008-L-156, 2009-Ohio-1438, at ¶8. (Parallelcitations omitted). An abuse of discretion is no mere error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Rather, the phrase connotes an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Id. Therefore, "abuse of discretion" describes a judgment neither comporting with the record, nor reason. See, e.g., State v. Ferranto (1925), 112 Ohio St. 667, 676-678.
{¶25} Appellant cites Civ.R. 53(D)(4)(d), which provides: ...
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