[Cite as In re M.L.E., 2015-Ohio-3647.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

IN RE: : O P I N I O N 

M.L.E. and C.I.E., 

NEGLECTED/ABUSED/ :

DEPENDENT CHILDREN CASE NOS. 2015-P-0007,

 : 2015-P-0010,

J.T.E., A.C.E., N.C.E., 2015-P-0011,

H.J.E., L.M.E., J.R.E., : 2015-P-0012,

NEGLECTED/DEPENDENT 2015-P-0013,

CHILDREN :

: 

 2015-P-0014,

 2015-P-0015, 

 and 2015-P-0016 

Appeals from the Portage County Court of Common Pleas, Juvenile Division, Case 

Nos. 2014 JCC 00619, 2014 JCC 00620, 2014 JCC 00621, 2014 JCC 00622, 2014 

JCC 00623, 2014 JCC 00624, 2014 JCC 00625, and 2014 JCC 00626. 

Judgment: Affirmed. 

Victor V. Vigluicci, Portage County Prosecutor, and Brandon J. Wheeler, Assistant 

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Portage County 

Department of Job and Family Services). 

William T. Whitaker and Andrea Whitaker, 54 East Mill Street, Suite 301, Akron, OH 

44308 (For Appellants). 

Gerrit M. Denheijer, Guilitto Law Office, L.L.P., 222 West Main Street, P.O. Box 350, 

Ravenna, OH 44255 (Guardian ad litem).

THOMAS R. WRIGHT, J. 

{¶1} These consolidated appeals are from judgments in eight juvenile 
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proceedings before the Portage County Court of Common Pleas. In each judgment, the 

trial court upheld the magistrate’s conclusion that all of the subject children should 

remain in the temporary custody of appellee, the Portage County Department of Jobs 

and Family Services, because each child was either a neglected and dependent child, 

or an abused child. Appellants, Jessica M. and James T. Earley, primarily assert that all 

eight judgments must be reversed because the magistrate’s underlying findings are not 

supported by the evidence. For the following reasons, we affirm. 

{¶2} Appellants own and maintain a small farm in Brimfield Township, Portage 

County, Ohio. As of July 2014, they lived in a two-story home on the farm with eight of 

their nine children. In conjunction with the maintenance of the farm, appellants harbor a 

number of animals, including dogs, cats, and at least one goose. Some of the animals 

are permitted to enter the home and sleep with the children. 

{¶3} The ages of the eight children range from fifteen years old, M.L.E., to one 

year, C.I.E. Three of the children have conditions requiring some form of medical 

treatment. M.L.E. has a history of depression often causing her to engage in violent 

behavior against her siblings. M.L.E. also has suicidal tendencies and has been 

prescribed specific medication. N.C.E has been diagnosed as autistic and needs 

specialized educational services. J.R.E. has been diagnosed with ADHD. 

{¶4} On the morning of July 27, 2014, M.L.E. became involved in an altercation 

with her younger brother, J.T.E. This altercation led to a confrontation between M.L.E. 

and James T. Earley, her father. During the confrontation, M.L.E. sustained at least one 

blow to her head. As a result, M.L.E. called 9-1-1 on her cellphone, and Officer Crystal 

Casterlin of the Brimfield Police Department was dispatched to appellants’ home, along 
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with the emergency squad. 

{¶5} Upon exiting her cruiser, Officer Casterlin initially spoke to the father in the 

driveway regarding the basis for his daughter’s 9-1-1 call. According to the officer, the 

father appeared to be intoxicated. When Officer Casterlin asked whether he had been 

drinking, the father replied that “it was from the night before.” The officer then asked if 

one of the children had been injured that morning. In response, the father indicated that 

it was possible M.L.E may have been hit by his bedroom door as he was closing it after 

the altercation between her and J.T.E. ended. 

{¶6} Officer Casterlin was able to locate M.L.E. in the basement of the Earley 

residence. After M.L.E. gave a brief description of the underlying incident involving her 

father, the officer asked her if she had any evidence of an actual injury to her head. The 

officer was then taken to the basement bathroom, where M.L.E. showed her a piece of 

“wadded-up” toilet paper that was sitting inside the toilet bowl. According to the officer, 

there was fresh blood on the paper. 

{¶7} While investigating M.L.E.’s complaint against her father, Officer Casterlin 

had the opportunity to observe the other seven children. According to her, none of the 

children were clean, despite the fact that she did not arrive at the Earley residence until 

approximately 11:45 a.m. In regard to appellants’ youngest child, C.I.E., the officer saw 

that the child’s diaper was so full that it was hanging around her knees. The officer also 

noted that C.I.E. had a substantial injury to her right foot that caused her to walk on the 

outside edge of the foot. 

{¶8} In addition, Officer Casterlin was able to observe the general condition of 

the inside of the home. The officer gave the following summary regarding the home’s 
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condition: 

{¶9} “It was deplorable. Um, the home was absolutely filthy. The floor had, 

um, feces on it, urine. The couch had, um, you know how if you put something on 

upholstery on something with a liquid it will dry up and you can see the fabric. The 

entire couch was like that from the bottom where you could see that it had drawn up like 

moisture. It smelled like urine. The smell was like animal feces and urine and was 

unbearable. There were flies all throughout the house. Um, every room was filthy. The 

walls were filthy. Holes in the wall. The beds didn’t have, um, coverings on them. The 

mattresses were filthy. There was like a wild goose in one (1) of the rooms that was in 

a dog, what appeared to be a smaller dog cage. Um, the entire bottom of it was 

covered in, um, goose feces, urine that had leaked out onto the floor in the little boy’s 

room. His bed was right next to the goose cage and it had all spilled out onto the floor 

around it. Um, there were animals everywhere. The door was open, um, and the like 

the animals just walked in and out. But there were dishes piled up in the sink, um, that 

appeared to have some old food on them and bugs crawling in them. I mean every 

room was just absolutely filthy.” 

{¶10} Based upon her observations of the eight children and the Earley home, 

Officer Casterlin immediately took temporary custody of the children so that they could 

be transported to the Akron Children’s Hospital for examination by Dr. Adarsh Gupta, a 

specialist in pediatric emergency medicine. In relation to C.I.E., the doctor found three 

splinters near the heel of her right foot. The doctor also found a dark spot on the bottom 

of the foot, where a blister had formed. According to Dr. Gupta, upon lancing the blister, 

he determined that the foot was infected, but could not locate the specific splinter which 
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led to the blister. The doctor concluded that the wound had never been treated before, 

and that the splinter was inside the child’s foot for so long that her body had dissolved 

the foreign object. 

{¶11} In examining M.L.E., Dr. Gupta could not find any physical indication that 

she was hit in the face/head. However, during an interview with a social worker at the 

hospital, M.L.E. gave a lengthy description of the alleged confrontation with her father. 

According to M.L.E., she and her younger brother, J.T.E, were arguing in their parents’ 

bedroom when she pushed him onto their bed. Upon witnessing this, the father hit her 

in the back multiple times with his fist. Once M.L.E. turned around to face her father, he 

slapped her three times on her face with his open hand, thereby giving her a bloody 

nose. After running from the room, M.L.E. called 9-1-1 on a cellphone. 

{¶12} One day following the removal of the children from appellants’ residence, 

appellee filed eight separate complaints for temporary custody. As to all eight children, 

the complaints asserted that they were abused, neglected and dependent children. The 

same day the complaints were filed, the court magistrate held a shelter-care hearing, in 

which appellants stipulated that reasonable grounds for removing the children existed. 

Thus, the magistrate found that removal of the children had been in their best interests, 

and issued an interim order granting temporary pre-dispositional custody to appellee. 

{¶13} The final adjudicatory hearing on the complaints was held before the court 

magistrate in September 2014. In addition to Officer Casterlin and Dr. Gupta, appellee 

also introduced the testimony of Pamela Huzvar, a social worker who was assigned to 

this case the same day of the children’s removal. Huzvar’s testimony focused upon the 

condition of the children and appellants’ home immediately following their removal. As 
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to the confrontation between M.L.E. and her father, the magistrate did not allow Officer 

Casterlin to testify regarding the statements M.L.E. made when the officer first arrived at 

the home. However, the magistrate accepted into evidence a copy of M.L.E.’s medical 

records from the Akron hospital. These records contained a summary of the statements 

the child made concerning the altercation to the hospital social worker. 

{¶14} Neither appellant testified at the adjudicatory hearing. Instead, appellants 

presented the testimony of four individuals who had seen the children and the home in 

the weeks prior to the children’s removal. Two of these witnesses were employees of a 

different county agency which had been providing assistance to appellants in relation to 

the treatment of M.L.E. and J.R.E. Through this testimony, appellants tried to establish 

two basic points: (1) the condition of both the children and the home on the day of their 

removal was not typical; and (2) any problems with the home’s condition was primarily 

attributable to M.L.E., who had a tendency, due to her psychological problems, to throw 

temper tantrums and cause messes inside the home. 

{¶15} In his ensuing decision, the magistrate dismissed the allegations of abuse 

as to six of the children. Regarding M.L.E. and C.I.E., though, the magistrate found that 

they were abused children. The magistrate further found that the allegations of neglect 

and dependency were proven as to each of the children. As to the dependency finding, 

the decision specifically cited the “deplorable” condition of the home as a danger to the 

children’s well being. Accordingly, the magistrate recommended that all eight children 

remain in the temporary custody of appellee. 

{¶16} During the evidentiary hearing, the parents/appellants were represented 

by separate counsel. However, following the issuance of the magistrate’s decision, they 
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hired a new attorney to represent both of their interests in the case. After filing a notice 

of appearance, new counsel submitted objections on their behalf, expressly contesting 

many of the factual issues that had been raised during the hearing. In conjunction with 

the objections, new counsel also requested the trial court to allow appellants to submit 

additional evidence. New counsel asserted that appellants had gathered a significant 

amount of evidence in their favor before the evidentiary hearing, but their prior attorneys 

did not have sufficient time to review it and decide what to present. New counsel further 

asserted that both appellants wanted to testify at the hearing, but were advised not to as 

a result of pending criminal charges for child endangerment. 

{¶17} An oral hearing on appellants’ objections was held in December 2014. At 

the outset of the proceeding, the trial court ruled that appellants would not be permitted 

to present additional evidence. New counsel then requested an opportunity to make a 

proffer regarding the substance of the additional evidence and why it was not presented 

during the evidentiary hearing before the magistrate. Even though the trial court did not 

allow the proffer to be made during the objections hearing, counsel was granted leave 

to submit a written proffer prior to the issuance of the court’s determination. 

{¶18} In its final judgment, the trial court overruled appellants’ objections to the 

magistrate’s decision, expressly concluding that the transcript of the evidentiary hearing 

had sufficient evidence to support the findings that M.L.E. and C.I.E. were abused, and 

that all eight children were neglected and dependent. The trial court also held that there 

was nothing in the record to indicate that appellants were denied the opportunity at the 

evidentiary hearing to present any evidence in their favor. As a result, the court 

continued appellee’s temporary custody of the eight children. 
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{¶19} In appealing the adjudicatory ruling as to each child, appellants assert two 

assignments for review: 

{¶20} “[1.] The magistrate erred by making the determination that [appellee] 

presented clear and convincing evidence that two of the Earley children were abused 

and that all of the Earley children were neglected and dependent and it was error for the 

trial court to adopt the magistrate’s decision. 

{¶21} “[2.] The trial court erred as a matter of law and abused its discretion in 

denying the Earleys the opportunity under Juv.R. 40(D)(4)(d) to produce additional 

evidence at the hearing on the objections to the magistrate’s decision since the Earleys 

were unable to with reasonable diligence produce the evidence at the magistrate’s 

hearing.” 

{¶22} Under their first assignment, appellants submit that appellee failed to carry 

its burden of establishing a proper legal justification for the decision to remove the eight 

children from the home. In essence, they argue that the magistrate’s findings of abuse, 

neglect, and dependency were either not supported by sufficient evidence or against the 

manifest weight of the evidence. In challenging appellee’s evidence, appellants often 

refer to the additional evidence they would have introduced if the trial court had granted 

their request to hear the new evidence. However, in deciding whether the magistrate’s 

findings were supported by the evidence, the scope of our review must be limited to the 

transcript of the evidentiary hearing. 

{¶23} For purposes of the adjudicatory hearing, the family services agency has 

the burden of proving, by clear and convincing evidence, that the subject child had been 

abused, neglected or dependent. In re T.M.W., 11th Dist. Portage No. 2010-P-0085, 
 9

2011-Ohio-4303, ¶10. “‘Clear and convincing evidence is more than a mere 

preponderance of the evidence; it is evidence sufficient to produce in the mind of the 

trier of fact a firm belief or conviction as to the facts sought to be established.’” In re 

C.D.D. and H.G.D., 11th Dist. Portage Nos. 2011-P-0065 and 2011-P-0066, 2012-Ohio3302, ¶21, quoting In re Krems, 11th Dist. Geauga No. 2003-G-2535, 2004-Ohio-2449, 

¶36. 

{¶24} As to the role of an appellate court in reviewing a juvenile court’s findings 

of abuse, neglect, or dependency, this court has stated: 

{¶25} “In juvenile proceedings, we apply the criminal standard for reviewing 

manifest weight challenges. Cf. In re Corey, 11th Dist. No. 2005-G-2649, 2006-Ohio2013, at ¶17. Under this standard, when reviewing a claim that a judgment was against 

the manifest weight of the evidence, an appellate court must review the entire record, 

weigh both the evidence and all reasonable inferences, consider the credibility of 

witnesses, and determine whether in resolving conflicts, the trier of fact clearly lost its 

way and created such a manifest miscarriage of justice that a new trial must be ordered. 

State v. Martin (1983), 20 Ohio App.3d 172, 175, * * *; see, also, State v. Thompkins, 78 

Ohio St.3d 380, 387, * * *. 

{¶26} “‘The discretionary power to grant a new trial should be exercised only in 

the exceptional case in which the evidence weighs heavily against the conviction.’ 

Martin, supra, at 175. The role of the appellate court is to engage in a limited weighing 

of the evidence introduced at trial in order to determine whether the state appropriately 

carried its burden of persuasion. Thompkins, supra, at 390 (Cook, J., concurring). The 

reviewing court must defer to the factual findings of the trier of fact as to the weight to 
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be given the evidence and the credibility of the witnesses. State v. DeHass (1967), 10 

Ohio St.2d 230, * * *, at paragraph one of the syllabus. Indeed, ‘[o]nce the clear and 

convincing standard has been met to the satisfaction of the [juvenile] court, the 

reviewing court must examine the record and determine if the trier of fact had sufficient 

evidence before it to satisfy this burden of proof.’ In re Adoption of Holcomb (1985), 18 

Ohio St.3d 361, 368, * * *.” In re Savchuk, 180 Ohio App.3d 349, 2008-Ohio-6877, ¶28-

29 (11th Dist.2008). 

{¶27} As noted above, in relation to each of the eight children in this case, the 

court magistrate first concluded that the children were both neglected and dependent. 

These conclusions were based upon the magistrate’s underlying factual finding that the 

condition of the children and appellants’ home had been “deplorable” on the day that 

Officer Casterlin and Social Worker Huzvar made their observations. In contesting the 

magistrate’s finding, appellants maintain that the Casterlin and Huzvar testimony was 

not entitled to significant weight because they only saw the home on one particular day. 

They contend that greater weight should have been given to the testimony of their four 

witnesses, which demonstrated that, during the weeks prior to July 27, 2014, the home 

had been properly kept and the children were generally clean. Appellant further assert 

that, given that they lived on a farm, had eight children, and had a low income, it is not 

surprising that their residence was a little dirty on a specific day. 

{¶28} The flaw in appellants’ argument is that, if believed, appellee’s evidence 

was readily sufficient to show that the home and the children were more than a little 

dirty. In addition to the testimony of Casterlin, Huzvar, and Dr. Gupta, appellee also 

introduced into evidence twenty photographs of the home, taken on the day of the 
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removal. When viewed as a whole, this evidence readily established that the extent of 

the filth/dirt in the home was not such that it could have accumulated over one or two 

days. Instead, the evidence showed that the condition of the home had been neglected 

over a substantial period of time. Moreover, regarding the children, Dr. Gupta testified 

that, in examining J.R.E., he noticed that the child was filthy, and that the dirt on him 

was not fresh, but old and dry. 

{¶29} As previously stated, as part of their evidentiary submission, appellants 

presented the testimony of two employees from a different county agency that had been 

providing assistance to the Earley family prior to the date of the removal. Both of these 

witnesses stated that, whenever they visited the home, they did not find any unsanitary 

conditions in the home. However, the magistrate could have justifiably concluded that 

this evidence only showed that when appellants were aware that county officials might 

be visiting their home in the near future, they took the required steps to make the home 

and the children presentable. Furthermore, when shown the photographs of the home 

taken on the date of the removal, one of the employees agreed that the condition of the 

home was not appropriate for children. 

{¶30} Based upon the testimony of Officer Casterlin and Social Worker Huzvar, 

they observed the following problems in the home: (1) each room in the home was filthy 

and smelled like urine and feces; (2) there were flies throughout the structure; (3) one of 

the children’s bedrooms contained a caged goose; (4) the bottom of the goose’s cage 

was overflowing with feces; (5) the entire kitchen counter was covered with dirty dishes, 

and there were bugs crawling around the dishes; (6) all of the children’s mattresses and 

box springs were stained and smelled; (7) to the extent that there were any linens upon 
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the mattresses, the linens were dirty; (8) the entire basement of the home was covered 

with dirty clothes and trash; and (9) there was a box of rotting produce at the foot of the 

basement stairs. As to the children, Huzvar testified that, at the time they were initially 

taken into custody, they smelled, were wearing dirty and stained clothes, and some did 

not have shoes. 

{¶31} As to the odor in the home, appellants argue that the evidence supported 

the finding that the odor was limited to the room containing the caged goose. They also 

assert that their additional evidence would have demonstrated that the goose was only 

bought into the house that day because the bird was frightened by the police cars. But, 

as part of their respective testimony, Casterlin and Huzvar stated that the smell of urine 

and feces permeated the entire structure. Such an odor would not have been created 

by the momentary presence of a single animal. 

{¶32} Appellants further maintain that the ultimate findings of dependency and 

neglect were not warranted because there was no direct evidence that the home posed 

an imminent threat to the children’s health and well being. However, given the extent of 

the unsanitary conditions in the home, no expert testimony was needed. A lay person 

would not need expert guidance to determine that a child’s health could be adversely 

affected by constantly living in such conditions. 

{¶33} R.C. 2151.04(C) provides that a child can be deemed dependent when the 

child’s “condition or environment is such as to warrant the state, in the interests of the 

child, in assuming the child’s guardianship.” Pursuant to R.C. 2151.03(A)(2), a child is 

considered neglected when, due to faults or habits of the parents, there is an absence 

of adequate parental care. A finding of neglect can also be made when a parent 
 13

“refuses to provide proper or necessary subsistence, education, medical or surgical 

care or treatment, or other care necessary for the child’s health, morals, or well being.” 

R.C. 2151.03(A)(3). 

{¶34} In light of the testimony of Officer Casterlin, Social Worker Huzvar, and Dr. 

Gupta, the magistrate did not lose his way in ultimately finding that each of the eight 

children was both neglected and dependent. The record demonstrates there was clear 

and convincing evidence showing that appellants were not providing an adequate home 

or environment to properly ensure the children’s health and physical safety. Moreover, 

the evidence established that appellants were not providing adequate parental care as 

to the children’s day-to-day needs, such as proper clothing and proper grooming. For 

this reason, the trial court did not err in overruling appellants’ objections as to the 

findings of neglect and dependency. 

{¶35} Regarding the distinct findings of abuse, appellants have raised separate 

arguments as to each of the alleged victims. First, in relation to M.L.E., they assert that 

appellee did not present clear and convincing evidence that her father assaulted her. In 

support, they submit that there was some evidence indicating that any physical contact 

between M.L.E. and her father occurred solely because he was attempting to pull her 

away from her brother. They further emphasize that Dr. Gupta did not find any physical 

indication that she sustained an injury to her head. 

{¶36} As previously indicated, a copy of M.L.E.’s medical records from the Akron 

hospital was introduced into evidence. The records contain a summary of the statement 

M.L.E. gave to a hospital social worker concerning the altercation between her and her 

father. According to her, after striking her a number of times on her back, her father 
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slapped her three times across the face with an open hand. She further stated that she 

suffered a nose bleed as a result of the slaps. 

{¶37} Although Dr. Gupta could not find any signs of trauma on M.L.E.’s face 

during his examination, he also testified that the lack of any physical signs did not mean 

that she was not hit across the face. Furthermore, there was some evidence 

corroborating M.L.E.’s statement concerning the physical injury to her face. Officer 

Casterlin testified on cross-examination that when she asked M.L.E. for evidence that 

she had a nose bleed, M.L.E. took her to the basement toilet, where the officer could 

see a wad of toilet paper that appeared to have blood on it. 

{¶38} In relation to M.L.E., appellants also point to the fact that she had a history 

of violent behavior, and that she had just pushed her younger brother down when her 

father confronted her. However, if M.L.E.’s statement as to the nature of the altercation 

between her and her father is believed, the extent of the force the father employed to 

stop her was clearly excessive. 

{¶39} Pursuant to R.C. 2151.031(C), a finding of abuse can be made if there is 

evidence of a physical injury that was inflicted “other than be accidental means, * * *.’ 

Again, if believed, Officer Casterlin’s testimony and M.L.E.’s statement in the submitted 

medical records constitute clear and convincing evidence that the father purposely hit 

her in the face three times, causing a physical injury to her nose. Hence, the finding of 

abuse as to M.L.E. was not against the manifest weight of the evidence. 

{¶40} As to C.I.E., appellants assert that there was no evidence that she was in 

pain as a result of the blister on her right foot. They emphasize that Dr. Gupta admitted 

at trial that he never asked C.I.E to walk on the foot as part of his examination. As part 
 15

of his testimony, though, the doctor stated that he knew C.I.E. was in pain because she 

would draw back her foot every time he tried to touch it. In addition, Officer Casterlin 

stated that she knew the injury to the right foot was serious because C.I.E. was walking 

on the outside edge of the foot. 

{¶41} During his testimony, Dr. Gupta indicated that, since he could not find an 

object in the foot when he opened the blister, he concluded that C.I.E. had the injury for 

a number of weeks prior to her hospital visit. Based upon this, the trier of fact could find 

that appellants had failed to take the necessary steps to remove the splinter and ensure 

that the foot would heal properly. As to this point, Officer Casterlin testified that when 

she asked the mother about the injury, she admitted that she had been aware of C.I.E.’s 

problem for at least two weeks, but had decided not to take the child to a doctor. 

{¶42} Pursuant to R.C. 2151.031(D), a finding of abuse can be made if, due to 

acts of her parents, a child “suffers physical or mental injury that harms or threatens to 

harm the child’s health or welfare.” In relation to C.I.E., the record contains clear and 

convincing evidence that appellants delayed in obtaining proper medical treatment for 

the child, despite the fact that a blister had formed on the foot and the child was having 

trouble walking. Plus, Dr. Gupta testified that the infection in C.I.E.’s foot would have 

continued to grow if she had not been brought to the hospital. Accordingly, the 

magistrate did not lose his way in finding that C.I.E. was an abused child. 

{¶43} Consistent with the foregoing analysis, appellants have failed to show that 

the magistrate’s findings of abuse, neglect, and dependency were against the manifest 

weight of the evidence. Therefore, as the trial court did not err in overruling appellants’ 

objections and adopting the magistrate’s findings, their first assignment lacks merit. 
 16

{¶44} Under their second assignment, appellants contest the trial court’s refusal 

to allow them to present additional evidence in conjunction with their objections to the 

magistrate’s decision. Appellants argue that, since they acted with reasonable diligence 

to collect the additional evidence prior to the evidentiary hearing before the magistrate, 

the trial court abused its discretion in not permitting them to submit it for consideration. 

{¶45} Juv.R. 40(D)(4)(d) governs the procedure a trial court must follow in ruling 

upon objections to a magistrate’s decision, and provides, in pertinent part: 

{¶46} “If one or more objections to a magistrate’s decision are timely filed, the 

court shall rule on those objections. * * * Before so ruling, the court may hear additional 

evidence but may refuse to do so unless the objecting party demonstrates that the party 

could not, with reasonable diligence, have produced that evidence for consideration by 

the magistrate.” 

{¶47} As to the second sentence of the quote, appellants appear to interpret the 

sentence to mean that, so long as they had collected the evidence and were prepared 

to present it at the hearing before the magistrate, the trial court cannot refuse to hear 

the additional evidence. However, this interpretation conflicts with the plain language of 

Juv.R. 40(D)(4)(d). That is, the rule readily states that, unless the objecting party can 

show that the additional evidence was not producible, even with reasonable diligence, 

prior to the magistrate’s hearing, the trial court can refuse to hear it. To this extent, the 

court is only obligated to hear the additional evidence when it could not be discovered 

prior to the magistrate’s hearing. 

{¶48} In requesting the trial court to hear their additional evidence in this case, 

appellants readily admitted that they had accumulated the evidence in question prior to 
 17

the magistrate’s evidentiary hearing, but their original counsel chose not to introduce it. 

Thus, appellants were attempting to use the “additional evidence” procedure as a way 

of avoiding the effects of their original counsel’s decision. The plain language of Juv.R. 

40(D)(4)(d) does not indicate that rule was intended to be used for this purpose. 

{¶49} Given that appellants were not seeking to present new evidence that was 

not discovered until after the magistrate’s evidentiary hearing, the trial court acted within 

the scope of its sound discretion in refusing to hear the additional evidence. Therefore, 

appellants’ second assignment is also without merit. 

{¶50} The judgment of the juvenile court is affirmed. 

CYNTHIA WESTCOTT RICE, J., concurs, 

COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion. 

____________________ 

COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion. 

{¶51} I concur with the majority to affirm the judgment of the juvenile court. I 

write separately to note two points. 

{¶52} First, this matter involves abuse, neglect, and/or dependency with respect 

to all eight children. A child who is subject to a juvenile court proceeding is a party to 

that proceeding. See In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, ¶29. As 

such, a “child is a party whose due process rights are entitled to protection.” Id. at ¶28. 

All persons, including children, have a constitutional right under the Fourth Amendment 
 18

to be safe and secure in their own home. See generally In re Spicuzza, 11th Dist. Lake 

Nos. 2007-L-121, 2007-L-126, 2007-L-145, and 2007-L-146, 2008-Ohio-527, ¶46; In re 

S.K., 2d Dist. Clark No. 2009 CA 26, 2009-Ohio-3954, ¶58. The safety and welfare of 

the child is of paramount concern. See Spicuzza, supra, at ¶46; Sheridan v. Sheridan, 

6th Dist. Williams No. WM-04-010, 2005-Ohio-6007, ¶28. 

{¶53} Clearly, the record reveals the home environment in this case was not 

safe and secure. Thus, I agree with the majority that appellants have failed to show that 

the magistrate’s findings of abuse, neglect, and/or dependency with respect to all eight 

children were against the manifest weight of the evidence. See R.C. 2151.031(D) 

(abuse); R.C. 2151.03(A)(2) (neglect); R.C. 2151.04(C) (dependent). Accordingly, the 

juvenile court did not err in overruling appellants’ objections and adopting the 

magistrate’s findings. 

{¶54} Second, the majority contends the juvenile court acted within its discretion 

in refusing to hear the additional evidence at issue. However, based on the facts 

presented, I believe the better practice, and in the interests of justice, would have been 

for the juvenile court to hear the additional evidence. Juv.R. 40(D)(4)(d) permits the 

court to hear additional evidence in ruling on objections to a magistrate’s decision. The 

purpose is to provide a full, fair, and complete review by the court. Nevertheless, the 

juvenile court’s decision to not hear the additional evidence, i.e. a video, does not 

change the outcome in this case as there is an abundance of evidence that the subject 

children are abused, neglected, and/or dependent. 

{¶55} I concur in judgment only.