[Cite as In re J.S. , 2022
- Ohio
- 2502.]

COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE J.S. , ET AL. : Minor Children : No. 11114 3 [Appeal by S.H ., Mother] :

JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 21, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 20 9 06255 and AD2 0 90 6256

Appearances: Judith M. Kowalski , for appellant

. Michael C. O ’ Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee

.

MARY EILEEN KILBANE , J.:

Appellant S.H . ( “ Mother ” ) appeals from the juvenile court ’ s decision granting legal custody of her minor children, J.S

. ( d.o.b. 12 /28/2015) and E.S

. ( d.o.b . 10/11/2017) , to the children ’ s paternal great

- grandparents, F.S. and P.S.( “ great

- grandparents ” )

. For the following reasons, we affirm the juvenile court ’ s

decision. Factual and Procedural History

On July 21, 2020 , the Cuyahoga County Division of Children and Family Services ( “ agency ” ) filed a complaint in Cuyahoga J.C. No s . AD 20906255 and AD20906256 for dependency and temporary custody of J.S. and E.S

. to the children ’ s great

- grandparents and filed a motion for predispo sitional temporary custody of J.S. and E.S. to their great

- grandparents

. 1 The complaint stemmed from two incidents related to Mother ’ s mental health.

On July 27, 2020 , the court appointed a guardian ad litem “ (GAL ” ) for J.S. and E.S

. The agency filed a family case plan on August 20, 2020 , that was signed by Mother and B.S. , father of J.S. and E.S. 2 T he case plan state d that Mother suffer ed from severe mental illness and was unable to provide care for her children due to two prior hospitaliz atio ns . The plan required Mother to engage in mental health services including attendance at all psychiatric appointments and
engage ment in therapy at Ohio Guidestone . The case worker was to make necessary referrals and monitor Mother ’ s progress by contactin g her service providers and

1 T he same complaint also sought dependency on behalf of Mother ’s minor child L. H. ( d.o.b . 05/31/2009) and temporary custody of L.H. to her father, A.H

. , i n Cuyahoga J.C. No. AD20906257

. Mother stipulated to and t he juvenile court ultimately grant ed legal custody of L.H. to A.H. T he current proceedings do not address L.H.’s placement and the factual and proce dural history does not include any subsequent reference to L.H

.

2 During the pendency of this action before the juvenile court , B.S. , father of J.S. and E.S., stipulated to granting legal custody of the children to their great

- grandparents , and he is not a part

y to this appeal.observing Mother ’ s behavior during face

- to

- face contacts. Mother was to submit to

random drug screens as requested by the case worker . The case plan noted family support from both maternal and paternal relatives. The permanen cy goal was to return the children to Mother for reunification.

On September 18, 2020, the magistrate conducted a hearing and found that the continued residence of the children with Mother was not in their best
interests . The court found probable cause to remove the children from Mother ’ s home and grant ed the agency predispositional temporary custody of J.S. and E.S. The children were placed with their great

- grandparents with whom they remained throughout the duration of this case.

On October 2, 2020, the juvenile court found the allegations of the complaint proven by clear and convincing evidence and adjudicated J.S. and E.S. dependent. The court terminated its previous order committing the children to predispositional temporary cu stody of the agency and committed them to the temporary custody of great

- grandparents. The court found Mother needed to comply with psychiatric and psychological services and establish housing. The court approved the case plan. On October 21, 2020, the juvenile court docketed a journal entry that adopted the magistrate ’ s decision and findings of fact.

The court ’ s order that granted temporary custody to the great

grandparents was set to expire on July 21, 2021. On May 6, 2021, the agency filed a motion to extend temporary custody for six months until January 21, 2022. The
motion also requested that the court issue findings of fact that continued placementwa s in the best interest s of the children and that the agency made reasonable efforts

to fin alize a permanency plan for the children ( “ reasonable efforts motion

. ” ) The motion stated if Mother fail ed to achieve the remaining case plan objectives, the
agency w ould pursue a new permanent home for the children.

The agency prepared a s emiannual a dministrative r eview ( “ SAR ” ) on July 20, 2021

. The SAR state d J.S. and E.S. ’ s placement with their great

grandparents was positive. The children and their great

- grandparents had family support from a grandparent and an a unt who live d on the same street. J.S. had progressed well in school and no longer required special education services. J.S. was doing well medically and no longer required yearly MRIs related to ongoing health
issues ; J.S. was fully recovered and developmentally on target. J.S. received weekly therapy to assist with her emotional adjustment. E.S. showed improvement following placement with her great

- grandparents and received counseling to manage her anger and tantrum s. E.S. received extensive oral surgery to correct

“ extreme neglect ” while in Mother ’ s care. The agency noted the status of Mother ’ s mental health was unclear and she was homeless. The agency had renewed concerns about Mother ’ s substance abuse. Because Mother was not compliant with services and ha d not demonstrated a proper change of behavior, the agency recommended modifying the custody request for J.S. and E.S. to legal custody to the great

grandparents

. On July 21, 2021, the magistrate conducted a he aring attended by the great

- grandparents , the children ’ s GAL, the children ’s father , and social workerNicole House ( “ House ” ) ; Mother did not participate. The magistrate held the

agency ’ s motion for first extension of temporary custody in abeyance , and t he court heard testimony from House on the agency ’ s reasonable efforts motion.

House testified that when she was assigned the instant case in June

202 1 , she thoroughly reviewed Mother ’ s file

. House testified that Mother ’ s case plan encompassed menta l health services, housing, and substance abuse services , and House reviewed the case plan objectives with Mother. 3

House testified that in 2020 , Mother received mental health services from Ohio Guidestone while living at a shelter and subsequently disc ontinued those
services. House testified that Mother claim ed she obtained additional services and medication from different provider s , but Mother never executed releases to allow the agency to obtain information directly from Mother ’ s mental health provid ers. Additionally, House testified that she provided the names of mental health providers to Mother, but House could not state whether Mother utilized those services. House also testified that Mother was homeless and was reportedly using illegal drugs

.

Based upon House ’ s testimony, t he juvenile court found the agency made reasonable efforts to finalize the permanency plan for the children. T he juvenile court adopted the magistrate ’ s July 21, 2021 decision in its entirety. 4

3 A review of Mother’s case plan shows substance abuse is not a designated objective, although the plan requires Mother’s submission of drug screens at the agency’s request.

4 The juvenile court’s journal entry that reflected its adoption of the magistrate’s decision was docketed on August 7, 2021.On July 30, 2021, the agency filed a motion to amend the

dispositional prayer from a motion for first extension of temporary custody to a motion to modify temporary custody to legal custody. On October 12, 2021 , the agency updated the family case plan and noted Mother ’ s failure to complete case plan services and her need to find employment and/or apply for income benefits to maintain housing and provide basic needs for the children.

On October 15, 2021, the magistrate held a hearing on the agency ’ s motion to modi fy temporary custody to legal custody with the great

- grandparents

. The juvenile court denied Mother ’ s motion for a continuance. House and the children ’ s GAL testified at the hearing.

House testified that she completes monthly onsite visits with J.S. and
E.S. House testified that t he children live with their great

- grandparents who meet the ir basic needs. House testified that J.S. and E.S. interact regularly with relatives who live on the same street as their great

- grandparents

. House stated that t he children ’ s mental health concerns are addressed with consistent therapy treatment and their poor speech and oral hygiene problems have been remedied while living with their great

- grandparents

. House further testi fied that t he great

- grandparents facilitated medical care for the children’s ongoing health issues

.

House testified that Mother had not remedied the concerns that caused the agency to file the original complaint and, therefore, House did not believe it would be safe for J.S. and E.S. to return home with their Mother. House stated that Mother initially received mental health services in 2020 and early 2021. House ,who began working with Mother in June 2021, recommended mental he alth

providers to Mother but she is unaware of Mother utilizing those services

. House testified that Mother failed to provide her mental health provider information so that the agency could verify her receipt of services.

House also testified that Mother failed to secure consistent and stable housing. House stated that Mother allegedly had a lease in December 2020 , from which she was wrongfully evicted, and Mother subsequently signed a rental lease agreement the day prior to the custody hearing. House te stified that w hile photos of the newly leased property appeared physically acceptable, the agency needed to complete a backg round check on the individual who cosi gn ed the lease with Mother. The co signer had no prior relationship with J.S. and E.S.

House testified that Mother provided negative drug tests from February through April 2021 and n o drug tests were submitted again until August

2021. House stated Mother ’ s August 29, 2021 urine screen tested positive for cocaine and fentanyl. House further testified that Mother claimed the positive drug test stemmed from a Novocain prescription she took on August 7, 2021 , when she was hospitalized and treated for a jaw injury . House did not find this explanation plausible although House conceded she did no t obtain the applicable hospital records

. House referred Mother for substance abuse services and offered to provide bus tickets to assist with Mother ’ s transportation to receive those services. House testified that Mother never participated in substance abuse services from the time the case opened until one week prior to the custody hearing when Mother toldHouse, via text, that she would participate in substance abuse treatment if that was

the agency ’ s preference.

The great

- grandparents facilitated visit ation between J.S., E.S., and Mother , and House testified t he great

- grandparents would continue to do so.

The children ’ s GAL recommend ed legal custody to the great

grandparents was in the best interests of the children. The GAL stated that the children reside in a stable environment and are being raised by a community of relatives. The GAL noted the length of time the case had been pending and the fact that prior to the agency ’ s involvement , J.S. and E.S. ’ s well

- being was jeopardized because of Mother ’ s failure to address their health needs. While the GAL was encouraged that Mother signed a lease and was attempting to address some of her case plan initiatives, he was concerned by Mother ’ s positive drug test a few month s prior to the custody hearing. The GAL acknowledged there were many unresolved issues that led to his recommendation for legal custody. The GAL recommended a

“ strong visitation schedule ” for Mother.

The record shows that throughout the pendency of this case, Mother’s visitation with the children was limited and consisted primarily of monthly phone calls. Mother then visited J.S. and E.S. four times a few weeks prior to the October 2021 custody hearing.

The co urt found Mother made minimal progress on her case plan and

on alleviat ing the cause for the children ’ s removal from her home. The court found return of J.S. and E.S. to Mother would be contrary to the children ’ s best interest s .The court also found p lacement of the children with their great

- grandparents was

appropriate and continued temporary custody was neither necessary nor i n the children ’ s best interest s . The court terminated the order for temporary custody and committed J.S. and E.S. to the legal custody of their great

- grandparents

. The court granted Mother reasonable supervised parenting time until she demonstrate d subst antial compliance on the case plan objectives.

On October 29, 2021, Mother filed objections to the magistrate ’ s findings and argued the decision was against the manifest weight of the evidence and not in the children ’ s best interest s . Mother filed her ob jections 14 days after the magistrate ’ s findings were filed , and the trial court failed to rule on those objections. On December 2, 2021, the trial court approved the magistrate ’ s findings.

On December 3 , 2021, mother filed a notice of appeal . On June 2, 2022, this court dismissed Mother ’ s appeal because absen t a ruling on Mother ’ s objections , there was no final appealable order.

On June 2, 2022, the trial court overruled Mother ’ s objections to the magistrate ’ s findings and Mother filed a motion to reinstate the appeal . On June 14,

2022 , this court granted Mother ’ s motion to reinstate the appeal and now considers the following assignments of error for r eview : First Assignment of Error: The Cuyahoga County Juvenile Court erred and abused its discr etion to the prejudice of this appellant in finding that a preponderance of the evidence supported granting legal custody of the subject children to their great

- grandparents. Second Assignment of Error: The trial court erred to the prejudice of the appell ant in not extending the temporary custody order, as themother had made significant case plan progress, and it was reasonable

to believe that the child[ren] could be reunified with her within the period of extension. Legal Analysis

In her first assignment of error, Mother argues that the trial court ’ s grant of legal custody to the great

- grandparents was an abuse of discretion

. In her second assignment of error, Mother argues that the trial court erred when it failed to extend the temporary cust ody order. Before we address the merits of Mother ’ s appeal, we must review what occurred procedurally before the lower court.

Pursuant to Civ.R. 53(D)(4)(d), a trial court must conduct an independent review of the case before it adopts a magistrate ’ s decision. However, when a party objects to the magistrate ’ s factual findings and wishes to preserve those challenges for consideration by the trial court, the party must provide the court with a transcript of the proceedings. Civ.R. 53(D)(3) (b)(iii). Where a party fails to timely file a transcript or affidavit of the evidence, the party waives any objections to the factual findings. In re A.L., 8th Dist. Cuyahoga No. 99040, 2013

- Ohio

- 5120 , ¶ 11, citing Ramsey v. Hurst , 5th Dist. Licking No. 12
- CA

- 70, 2013
- Ohio

- 2674, ¶ 23. “ If the objecting party fails to provide the court with a transcript of the magistrate ’ s hearing, the trial court may properly adopt a magistrate ’ s factual findings without further consideration. ” In re S.H., 8th Dist. Cu yahoga No. 100911, 2014

- Ohio

- 4476, ¶ 13, citing In re Maxwell , 4th Dist. Ross No. 05CA2863, 2006

- Ohio

- 527, ¶ 27, citing
Proctor v. Proctor , 48 Ohio App.3d 55, 60, 548 N.E.2d 287 (3d Dist.1988). Additionally , where the objecting party fails to provide a tr anscript to the trial court,an appellate court is precluded from considering the transcript. In re A.L. at ¶ 12 ;

State ex rel. Duncan v. Chippewa Twp. Trustees , 73 Ohio St.3d 728, 730, 1995

- Ohio

- 272, 654 N.E.2d 1254.

Here, the trial court adopted the ma gistrate ’ s findings . Mother objected to the magistrate ’ s findings, but did not file a transcript of the proceedings with the trial court. The trial court overruled Mother ’ s objections

. While a transcript was filed with this court , the reviewing court ma y not consider the transcript since
it was not available for the trial court ’ s review. In re A.L. at ¶ 16 ; In re S.H. at ¶ 14. Mother’s assignments of error are overruled.

We note that e ven if this court were permitted to review the transcript, Mother’s assignments of error would be overruled. At the time of the custody hearing, J.S. and E.S. had been in the custody of their great

- grandparents for approximately 15 months. While the children’s great

- grandparents were in their eighties, both children had a bond with their great

- grandparents as well as with their relatives who reside on the same street. The children had been doing well under their great

- grandparents’ care and received medical care and therapy for ongoing concerns. The great

- grandparents’ home was appropriate, safe , and stable , and all of the children’s basic needs were met. Further, Mother’s last

- minute attempts to secure housing, submit to substance abuse treatment, and visit with the children were unpersuasive; it was unreasonable to believe J.S. and E.S. could be reunified with Mother within the period of extension.

Judgment affirmed.It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directin g the common pleas court , juvenile division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

________________________________ MARY E ILEEN K ILBANE , JUDGE
SEAN C. GALLAGHER , A .J., and LISA B. FORBES , J., CONCUR