[Cite as In re D.T., 2014-Ohio-2332.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

IN RE: D.T.                                           C.A. No.     13CA010451
       J.T.
       R.T.
       N.T.                                           APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
                                                      CASE Nos. 12JC36788
                                                                 12JC36865
                                                                 12JC35294
                                                                 12JC35295


                                 DECISION AND JOURNAL ENTRY

Dated: June 2, 2014



        WHITMORE, Judge.

        {¶1}     Appellant, Teresa A. (“Mother”), appeals from a judgment of the Lorain County

Court of Common Pleas, Juvenile Division, that adjudicated her minor children neglected and

dependent and placed two of them in the temporary custody of a maternal aunt and two of them

in the temporary custody of Lorain County Children Services (“LCCS”). To the extent that this

Court reaches the merits of Mother’s assigned errors, we affirm.

                                                  I

        {¶2}     Mother is the natural mother of five children, four of whom are minors: D.T.,

born July 22, 1998; J.T., born November 11, 1999; R.T., born May 8, 2003; and N.T., born June

15, 2004. The children’s father is not a party to this appeal.

        {¶3}     On January 31, 2012, LCCS filed complaints alleging that R.T. and N.T. were

neglected and dependent children. LCCS apparently confined its complaints to the youngest
                                                2


children because they had excessive school absences, unlike the older two, and N.T. has Down

syndrome. The complaints focused on the children’s excessive school absences, the unsanitary

condition of the family home, and Mother’s neglect of their other basic and special needs. LCCS

did not remove R.T. or N.T. from Mother’s home but instead sought an order of protective

supervision over those two children. It filed an initial case plan that required Mother to work

with LCCS and demonstrate that she could provide a safe and sanitary home and meet the needs

of her children.

       {¶4}    The dependency and neglect cases of R.T. and N.T. proceeded to adjudicatory and

dispositional hearings before a magistrate. Although the transcript of proceedings is not part of

the record on appeal, the record reflects that Mother appeared at the March 2012 evidentiary

hearing and was represented by counsel. A few days later, the magistrate adjudicated R.T. and

N.T. neglected and dependent children and ordered that they remain in Mother’s home under the

protective supervision of LCCS and that the parties would be bound by the terms of the initial

case plan. The magistrate’s decision provided that protective supervision of the children would

continue until January 31, 2013.

       {¶5}    That same day, March 19, 2012, the trial court adopted the magistrate’s

adjudicatory and dispositional order. Mother filed no objections to the magistrate’s adjudication

and disposition of R.T. and N.T

       {¶6}    Throughout the next several months, LCCS suspected that the unsanitary

condition of Mother’s home had not improved and that none of the children were attending

school on a regular basis. It was unable to fully monitor the well-being of the children, however,

because Mother refused to allow the caseworker access to the home and would not sign releases

of their school or medical records.
                                                 3


       {¶7}    The caseworker also became concerned about Mother’s mental health because she

often behaved in an erratic or threatening manner. She also believed that Mother exhibited

“distorted thinking” by repeatedly accusing the caseworker of breaking into her house and taking

her children and/or possessions. Mother admitted to the caseworker that she had received mental

health treatment in the past, but she did not want to engage in any further treatment.

       {¶8}    LCCS later became concerned that the children were being exposed to domestic

violence and drug-related activity in Mother’s home after Mother was involved in a traffic

accident that resulted from a physical altercation with the children’s father while Mother was

driving under the influence. Mother admitted that there was violence in her relationship with the

father and that she used drugs, but she would not agree to obtain treatment for either problem.

       {¶9}    On July 5, 2012, LCCS filed an amended case plan, which required Mother to

address some of the additional problems that it had observed during the past few months.

Although Mother filed initial objections to the amended case plan, she later entered into an

agreement with LCCS. On July 26, after the caseworker was able to gain access to Mother’s

home, she concluded that it was in a deplorable condition and that it was not safe for the children

to continue living there. Mother agreed to place all four children with relatives while she worked

on the goals of an amended case plan. Through an order filed July 27, 2012, which was signed

by Mother and other parties, the trial court approved the amended case plan “[b]y agreement of

the parties.” Shortly afterward, LCCS sought dispositional orders to formally remove R.T. and

N.T. from Mother’s custody.

       {¶10} On August 7, 2012, LCCS filed complaints to allege that D.T. and J.T. were also

neglected and dependent children and sought dispositional orders to remove them from Mother’s

custody. The complaints alleged that LCCS had been involved with the family through the cases
                                               4


of R.T. and N.T., but that Mother had refused to work on the goals of her case plan or otherwise

cooperate with the agency. In addition to the unsanitary condition of Mother’s home and her

inability to meet the basic needs of her children, LCCS alleged that Mother had untreated mental

health and/or substance abuse problems that prevented her from providing a suitable home for

her children.

       {¶11} Mother’s trial counsel later became concerned that Mother’s untreated mental

health problems posed a serious obstacle to her ability to look out for her own best interest. On

August 30, 2012, counsel moved the trial court to appoint a guardian ad litem to represent

Mother because he believed that her “perception of the situation is distorted.” He further

explained that, over the several months that he had been representing Mother in the cases of R.T.

and N.T., he had observed “a steady decline in her ability to understand the situation[.]” The

trial court appointed a guardian ad litem, who represented Mother throughout the proceedings

that followed.

       {¶12} Hearings on the adjudication of D.T. and J.T. and on the disposition of all four

children were held before a magistrate over a four-day period during October, November, and

December, 2012. On January 2, 2013, the magistrate adjudicated D.T. and J.T. neglected and

dependent children, placed D.T. and N.T. (the boys) in the temporary custody of LCCS, and

placed J.T. and R.T. (the girls) in the temporary custody of a maternal aunt with protective

supervision by LCCS.

       {¶13} Following the January 2013 magistrate’s decision, Mother filed timely written

objections, asserting that the magistrate’s decision was against the manifest weight of the

evidence. Specifically, she asserted that LCCS had failed to present clear and convincing

evidence to establish that D.T. and J.T. were neglected or dependent children and had also failed
                                                 5


to prove that it was in the best interests of all four children to be placed outside her home.

Mother supported her objections with a transcript of the proceedings before the magistrate, to

which she cited extensively.

       {¶14} The trial court overruled Mother’s objections and entered an adjudicatory and

dispositional judgment in accordance with its earlier adoption of the magistrate’s decision.

Mother appeals and raises three assignments of error.

                                                 II

                                Assignment of Error Number One

       THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE[.]

       {¶15} Mother’s first assignment of error is that the trial court’s adjudication and

disposition of all four of her children was against the manifest weight of the evidence. In

response to Mother’s argument, LCCS first argues that this Court lacks jurisdiction to address

Mother’s challenge to the adjudication of R.T. and N.T. because she did not timely appeal from

the trial court’s March 19, 2012 adjudication and initial disposition of those two children.

       {¶16} Although this appeal involves all four of Mother’s minor children, LCCS initially

filed complaints involving only the youngest two: R.T. and N.T. Following adjudicatory and

dispositional hearings, the magistrate filed a decision on March 19, 2012 that R.T. and N.T. were

neglected and dependent children and that they should remain in Mother’s custody under an

order of protective supervision. That same day, the trial court adopted the magistrate’s decision.

Mother did not file written objections to the magistrate’s decision.

       {¶17} Nevertheless, LCCS argues that the trial court’s March 19, 2012 order was final

and appealable and that, because Mother did not appeal that order within 30 days, her appeal

from that order is untimely. As sole support for its argument, LCCS relies on a line of Ohio
                                                 6


Supreme Court cases, all of which addressed the finality of dispositional orders that are legally

distinguishable from the March 19, 2012 order at issue here.

       {¶18} In In re Murray, 52 Ohio St.3d 155 (1990), syllabus, the Supreme Court

affirmatively answered the specific issue before it: “whether a finding of child neglect or

dependency, coupled with a temporary commitment of that child to the custody of the department

of human services pursuant to R.C. 2151.353(A)(2), is a final order sufficient to invoke appellate

jurisdiction of the court of appeals.” (Emphasis added.) Id. at 156-157. In the Murray syllabus,

the Court held that a juvenile court’s adjudication of a child as dependent or neglected “followed

by a disposition awarding temporary custody to a public children services agency pursuant to

R.C. 2151.353(A)(2)” is a final, appealable order because it qualifies as an order that affects a

substantial right and, in effect, determines the action under R.C. 2505.02(B)(1).1

       {¶19} Each time the Supreme Court has addressed this issue, the case has involved an

analogous juvenile court order that adjudicates the child abused, neglected, and/or dependent and

places the child in the temporary custody of a children services agency. See, e.g., In re C.B., 129

Ohio St.3d 231, 2011-Ohio-2899; In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810. The Court

has repeatedly emphasized that its determination that a juvenile court’s adjudication is final and

appealable has hinged, at least in part, on the fact that the adjudication was coupled with a

dispositional order that removed the child from the parents’ custody because “a parent does have

a substantial right in the custody of his or her child.” C.B. at ¶ 11, citing In re Adams, 115 Ohio

St.3d 86, 2007-Ohio-4840, ¶ 43.




       1
         In a concurring opinion, Justice Douglas reasoned that the order was final under R.C.
2505.02(B)(2) as one that affects a substantial right in a special proceeding. The Supreme Court
cases since Murray have tended to focus on finality under both R.C. 2505.02(B)(1) and (B)(2).
                                                 7


       {¶20} C.B. further emphasized the Court’s reasoning in Murray “that parents of children

who have been adjudicated neglected or dependent, and who have been deprived of the custody

of their children, have a right to immediate appellate review ‘to determine if such deprivation

meets the requirements justifying such deprivation[.]’” (Emphasis added.) Id., quoting Murray

at 159. Finally, in H.F., the Ohio Supreme Court addressed a similar order and again hinged its

finality determination on the removal of the children from the parents’ custody: “[a]n appeal of

an adjudication order of abuse, dependency, or neglect and the award of temporary custody

pursuant to R.C. 2151.353(A)(2) must be filed within 30 days of the judgment entry pursuant to

App.R. 4(A).” H.F., 2008-Ohio-6810, at syllabus. Therefore, LCCS has failed to cite any

authority to support its argument because the Ohio Supreme Court has never addressed the

specific issue raised in this appeal: whether a juvenile court’s order is final and appealable if it

adjudicates children neglected and dependent but issues a dispositional order that provides for

protective supervision of them while they remain in the custody of their mother.

       {¶21} The Supreme Court has always explicitly based its finality determination on R.C.

2505.02(B)(1) and/or R.C. 2505.02(B)(2). Even though it has made reference to R.C. 2501.02,

which provides that a court of appeals has jurisdiction “to review, affirm, modify, set aside, or

reverse judgments or final orders * * * including the finding, order, or judgment of a juvenile

court that a child is delinquent, neglected, abused, or dependent,” it has never relied on that

statute to determine whether the order at issue was final and appealable. See Murray at 156;

H.F. at ¶ 7-8. While R.C. 2501.02 suggests that the adjudication, in and of itself, would

constitute an appealable order, LCCS has not raised that argument in this appeal, nor has the

Supreme Court or this Court directly spoken on that issue. Consequently, we need not address

that legal argument here.
                                                8


       {¶22} Nevertheless, even if we reject the agency’s argument and conclude that Mother’s

appeal from the adjudication and disposition of R.T. and N.T. is timely, there is nothing in the

record to support the merits of her argument. Juv.R. 40(D)(3)(b)(iv) provides:

       Except for a claim of plain error, a party shall not assign as error on appeal the
       court’s adoption of any factual finding or legal conclusion, whether or not
       specifically designated as a finding of fact or conclusion of law under Juv.R.
       40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
       required by Juv.R. 40(D)(3)(b).

       {¶23} Juv.R. 40(D)(3)(b) required Mother to file written objections within 14 days of

the magistrate’s March 2012 decision and to support any objections to the magistrate’s factual

findings with a transcript of all the evidence submitted at the hearing. See Juv.R. 40(D)(3)(b)(i)

and (iii).   Mother filed no objections to the magistrate’s March 19, 2012 decision that

adjudicated R.T. and N.T. neglected and dependent children, however.

       {¶24} Mother has failed to preserve any challenge to the adjudication of R.T. and N.T.

as neglected and dependent children and she has not argued that the adjudication was plain error.

Even if she had raised a plain error argument, the record does not include a transcript of the

relevant hearing, so this Court would be unable to review the evidence upon which the

magistrate based that adjudication. We must presume that the findings made by the magistrate

and adopted by the trial court pertaining to the adjudication of R.T. and N.T. were supported by

the evidence presented at the hearing. McLellan v. McLellan, 10th Dist. Franklin No. 10AP-

1105, 2011-Ohio-2418, ¶ 9.

       {¶25} Consequently, this Court must confine its weight-of-the-evidence review to the

trial court’s 2013 judgment that adjudicated D.T. and J.T. neglected and dependent children and

removed all four children from Mother’s custody. We will review the merits of that challenge

because Mother properly objected to the magistrate’s decision and timely appealed from the trial
                                                 9


court’s order overruling her objections and entering judgment. Mother does not challenge any

aspect of the trial court’s dispositional order, but confines her challenge to the trial court’s

adjudication of D.T. and J.T. as neglected and dependent children.

       {¶26} Although the trial court did not specify the statutory sections upon which it based

its adjudications, LCCS had alleged in its complaints that D.T. and J.T. were neglected children

under R.C. 2151.03(A)(2) and (6) and dependent children under R.C. 2151.04(B) and (C).

Because it was not necessary for the trial court to find more than one statutory basis for each

adjudication, we will confine our review to whether the evidence supported adjudications of

neglect under R.C. 2151.03(A)(2) and dependency under R.C. 2151.04(B). See In re D.H., 9th

Dist. Summit No. 24879, 2010-Ohio-422, ¶ 6.

       {¶27} A “neglected child” under R.C. 2151.03(A)(2) is any child “[w]ho lacks adequate

parental care because of the faults or habits of the child’s parents, guardian, or custodian[.]” A

“dependent child” is defined in R.C. 2151.04(B) as a child “[w]ho lacks adequate parental care

by reason of the mental or physical condition of the child’s parents, guardian, or custodian[.]”

       {¶28} LCCS presented ample evidence to support findings of neglect and dependency

under each of these provisions. LCCS filed its complaints pertaining to D.T. and J.T. because,

although it already had a case plan with Mother to address the unsanitary condition of her home,

the excessive school absences of R.T. and N.T., and Mother’s untreated mental health and

substance abuse problems, Mother had not been cooperating with LCCS to correct any of those

problems. The caseworker testified at the hearing that she had visited Mother’s home several

times during May, June, and July 2012 but was unable to gain access to the home until the end of

July. She would knock at the door, hear movement inside, but no one would answer the door.

She repeatedly left notes for Mother, but Mother did not call her.
                                                 10


       {¶29} Near the end of July 2012, the caseworker was able to gain access to Mother’s

home, which she described at the hearing as filthy and foul smelling. One of the toilets was

filled with feces and, although Mother later testified that the toilet just needed to be flushed, the

caseworker testified that the toilet smelled and looked as if it hadn’t been cleaned in months.

She further explained that the entire house was unclean and cluttered with clothing, trash, and

other items.

       {¶30} After LCCS was able to obtain releases of the school records of D.T. and J.T., it

learned that they also had excessive school absences. D.T. had also been suspended from school

several times for starting altercations with other students and teachers. The principal from one of

his schools testified that she had repeatedly recommended counseling to address D.T.’s

behavioral problems, but Mother refused to follow through. Mother would become upset and

start screaming at the principal whenever they spoke about the problem. Mother’s answer to

D.T.’s behavioral problems was to continually move him to different schools.

       {¶31} Several witnesses testified about how Mother’s untreated mental health problems

affected her ability to provide her children with a safe and stable home. In addition to Mother’s

refusal to cooperate with LCCS to work on the goals of the case plan, the caseworker explained

that her conversations with Mother were typically “erratic” because Mother would jump from

one topic to another. Because Mother frequently spoke about several unrelated topics at the

same time, the caseworker often had trouble understanding what she was talking about. The

caseworker further testified that Mother had threatened the prior caseworker and other LCCS

staff members and that she left nonsensical and threatening messages on the caseworker’s

voicemail.
                                                11


         {¶32} One of Mother’s witnesses testified that he had observed Mother have her “ups

and downs,” explaining that she would be “fine one minute [and] flip out the next.” The

guardian ad litem also testified that Mother had exhibited erratic behavior and was sometimes

hostile toward her. She further observed that Mother was often overwhelmed and did not seem

to understand what she needed to do to comply with the case plan. As explained already, it was

for similar reasons that Mother’s counsel requested that the court appoint a guardian ad litem to

represent Mother.

         {¶33} Mother admitted that she had felt paranoid and suicidal and that, although she had

been prescribed psychiatric medication, she was not taking any at that time. She admitted at the

hearing that she “probably could use a Xanax” but insisted that she was not going to be forced to

take medication or to engage in counseling. During her testimony, Mother often rambled off

topic and/or made irrational and paranoid statements about her interactions with the caseworkers

and other circumstances in this case. Her guardian ad litem repeatedly cautioned her to limit her

testimony to answering the questions posed to her.

         {¶34} Mother’s testimony further demonstrated that she lacked any understanding of

why her children were removed from her home or that there were problems in her home. Aside

from refusing to engage in substance abuse or mental health treatment, Mother insisted that her

home was clean when the caseworker came in July 2012. She also stated that D.T. and J.T., who

were then 13 and 14 years old, were old enough to clean up after themselves and that if she

didn’t feel well one day and didn’t get out of bed, they could pick up. The children apparently

did not keep the house clean, however, nor did they get themselves to school on a consistent

basis.
                                                12


        {¶35} LCCS presented ample evidence that Mother had mental health problems that

hampered her ability to provide her children with a suitable home, and that she refused to obtain

a mental health assessment or engage in any treatment. Based on the evidence presented at the

hearing, the trial court could reasonably conclude that D.T. and J.T. were neglected and

dependent children under R.C. 2151.03(A)(2) and 2151.04(B). Mother’s first assignment of

error is overruled.

                                Assignment of Error Number Two

        THE TRIAL COURT ERRED IN NOT LISTENING TO THE ACTUAL
        MAGISTRATE HEARING TAPES.

        {¶36} Mother’s second assignment of error is that the trial court erred by failing to listen

to the audiotape recordings of the hearing before the magistrate because the transcript includes

numerous spots in which the court reporter transcribed oral statements from the audiotape as

“unintelligible.” Mother did not raise this issue in her objections, however, nor did she suggest

that any evidence was missing from the transcript of proceedings. In fact, she supported her

argument that the magistrate’s decision was against the weight of the evidence with detailed

citations to the transcript.

        {¶37} Moreover, Mother did not ask the trial court to review the audiotape of the

proceedings.     If she believed that the trial judge could have been able to discern the

“unintelligible” portions of the audiotape that the trained court reporter could not, she was

required to obtain “leave of court” for the court to review the evidence through an “alternative

technology or manner.” Juv.R. 40(D)(3)(b)(iii). Juv.R. 40(D)(3)(b)(iii) further requires an

objecting party to support objections to the magistrate’s factual findings with a “transcript of all

the evidence * * * or an affidavit of that evidence if a transcript is not available.” To the extent

Mother believed that the “unintelligible” portions of the audiotape recording included evidence
                                                 13


that was relevant to her objection, she should have supplemented the transcript with an affidavit

of that evidence. Id. Because Mother did not comply with the requirements of Juv.R. 40 to

address any defect in the transcript of proceedings before the magistrate, her second assignment

of error is overruled.

                               Assignment of Error Number Three

       APPELLANT WAS DENIED DUE PROCESS TO PRESENT HER CASE
       WHEN THE MAGISTRATE EXCLUDED THE TESTIMONY OF
       WITNESSES SHE [SUBPOENAED.]

       {¶38} Mother’s final assignment of error is that the magistrate erred in excluding the

testimony of witnesses who failed to appear at the hearing despite being subpoenaed to testify on

her behalf. Although Mother argues that the testimony of those witnesses would have been

helpful to her defense, she failed to proffer what the substance of the witnesses’ testimony would

have been at the time the magistrate decided to exclude their testimony. Evid.R. 103(A)(2).

       {¶39} Moreover, Mother’s only objection to the magistrate’s decision was that it was

against the manifest weight of the evidence, not that the decision was in error because witness

testimony was excluded. Juv.R. 40(D)(3)(b)(iv) provides that, “[e]xcept for a claim of plain

error,” which Mother has not argued, “a party shall not assign as error on appeal” the trial court’s

adoption of the magistrate’s decision to exclude the testimony of these witnesses unless she filed

timely written objections to that aspect of the magistrate’s decision. Because Mother failed to

preserve this issue and has not argued plain error, her third assignment of error is overruled.

                                                 III

       {¶40} Mother’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas, Juvenile Division, is affirmed.

                                                                                Judgment affirmed.
                                                14




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

        Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT


HENSAL, P. J.
CONCURS.

CARR, J.
CONCURRING:

        {¶41} I write separately to express my concern that this Court is unable to review the

first adjudicatory decision in this case, which could potentially lead to the termination of

Mother’s rights to those children, because the parties to abuse, neglect, and dependency cases are

provided with inadequate procedural mechanisms to protect the significant rights at issue in the

case.
                                                 15


       {¶42} The first stated purpose of R.C. Chapter 2151 is to provide: “for the care,

protection, and mental and physical development of children * * * whenever possible, in a

family environment, separating the child from the child’s parents only when necessary for the

child’s welfare or in the interests of public safety[.]” R.C. 2151.01(A).        The second stated

purpose set forth in R.C. 2151.01(B) is to provide procedures “in which the parties are assured of

a fair hearing, and their constitutional and other legal rights are recognized and enforced.” Ohio

courts have long recognized that parents have a fundamental right to raise their children and

should be afforded every procedural protection before the State is permitted to intervene. See In

re Hayes, 79 Ohio St.3d 46, 48 (1997).

       {¶43} Nonetheless, because cases under R.C. Chapter 2151 are designated “civil” in

nature, the parties are limited to the procedural mechanisms available under Ohio’s Civil and

Juvenile Rules and the civil provisions of the Appellate Rules. With those limited avenues

available to protect the rights of the parties, the potential loss of parental rights is essentially

treated as nothing more significant than a loss of property. See In re N.R., 9th Dist. Summit Nos.

26834 and 26869, 2013-Ohio-4023, ¶ 32 (Carr, J., Dissenting). Because I believe that “the loss

of parental rights is more akin to a loss of life or liberty than to a loss of property[,]” the

protections provided to parties within the civil context are inherently inadequate. Id. at ¶ 33.

       {¶44} Although R.C. 2151.352 grants parents a right to counsel at all stages of these

juvenile proceedings, there are few procedural safeguards to fully protect parents’ fundamental

rights to raise their children.    For example, although a party’s statutory right to counsel

inherently includes a right to effective assistance, which can be raised as an error before the court

of appeals, parents have no similar method to redress ineffective assistance of appellate counsel.

See, e.g., In re N.J., 9th Dist. Lorain No. 12CA010221, 2012-Ohio-5429, ¶ 5; App.R. 26(B).
                                                  16


Similarly, App.R. 5(A) explicitly limits the right to file a delayed appeal to criminal defendants.

But see In re B.C., 137 Ohio St.3d 1473, 2014-Ohio-176; 138 Ohio St.3d 1424, 2014-Ohio-692

(appeal number 2013-1932 accepted for review on the question of whether “the delayed appeal

provisions of App.R. 5(A) extend to cases involving the termination of parental rights[.]”).

       {¶45} Of relevance here, a lack of procedural safeguards within the civil setting

authorized the trial court to refer the adjudication of Mother’s children to a court-appointed

magistrate. Because Mother’s counsel did not properly object to the adjudication of two of her

children under Juv.R. 40 or Civ.R. 53, no transcript of that hearing was prepared and Mother

forever lost her ability to obtain meaningful trial court or appellate review of that significant

decision. Given that the Ohio Supreme Court has equated an adjudication of abuse, neglect, or

dependency with a finding of parental unsuitability, that adjudication is somewhat analogous to a

finding of guilt in a criminal case. See In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191,

paragraph two of the syllabus.

       {¶46} Although the nature and significance of a dependency and neglect adjudication is

comparable to a criminal finding of guilt, the procedures available to protect the rights of

defendant parents and to ensure the integrity of the fact-finding process fall short of those

afforded a defendant in a criminal case. For example, had Mother faced a loss of life or liberty

within a criminal case, there would have been no similar waiver of her right to appellate review

of the fact-finding and decision-making process because criminal magistrates lack authority to

determine the guilt or innocence of the accused. See Crim.R. 19(C) and (D); State v. Chagaris,

107 Ohio App.3d 551 (9th Dist.1995). That significant decision cannot be delegated but is the

explicit responsibility of the elected judge (or a jury) and is subject to appellate review.
                                                   17


        {¶47} Although this Court must follow the Ohio procedural rules, I am deeply

concerned that a finding of parental unsuitability escapes appellate review in this case simply

because it arose within the context of a civil case. Given the long-standing emphasis by Ohio

courts that basic civil rights are at stake in abuse, dependency and neglect cases (both of parents

and children), it is time to enact more adequate procedures to protect not only the significant

rights of all parties but also the integrity of the process.


APPEARANCES:

BARBARA A. WEBBER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and EMILY W. KIRSCH, Assistant Prosecuting
Attorney, for Appellee.
