[Cite as In re J.R., 2011-Ohio-4643.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                Nos. 96639 and 96640


                                   IN RE: J.R., ET AL.

                                        Minor Children

                                   [Appeal by Father]



                                         JUDGMENT:
                                          AFFIRMED


                                   Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                     Juvenile Division
                         Case Nos. AD 10921273 and AD 10921274

        BEFORE:             Boyle, P.J., Cooney, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                       September 15, 2011
ATTORNEY FOR APPELLANT

Lester S. Potash
1717 Illuminating Building
55 Public Square
Cleveland, Ohio 44113-1901


ATTORNEYS FOR APPELLEES

For Cuyahoga County Department of Children and Family Services

William D. Mason
Cuyahoga County Prosecutor
BY: Thomas B. Robinson
Assistant County Prosecutor
13815 Kinsman Road
Room 336
Cleveland, Ohio 44120

For Mother

Mark Witt
6209 Barton Road
North Olmsted, Ohio 44070-3856

Guardian Ad Litem for Child

James H. Schulz, Jr.
1370 Ontario Street
Suite 1520
Cleveland, Ohio 44113

Guardian Ad Litem for Father

Suzanne Piccorelli
255 Falmouth Drive
Rocky River, Ohio 44116
MARY J. BOYLE, P.J.:

        {¶ 1} Appellant J.R., Sr. (“father”) appeals the trial court’s judgment

adopting the magistrate’s decision, overruling his objections, and finding the

minor sons, Jam. R. (d.o.b. 1/10/2000) and Jac. R. (d.o.b. 12/21/2000), to be

dependent, and granting custody of them to appellee P.R. (“mother”).1 He

raises two assignments of error for our review:

        {¶ 2} “[1.] The trial court committed prejudicial error by failing to

independently review [father’s] objections to the magistrate’s decisions.

        {¶ 3} “[2.]     The trial court committed prejudicial error in adjudicating

the minor children as being dependent.”

        {¶ 4} Finding no merit to his appeal, we affirm.

                          Procedural History and Factual Background

        {¶ 5} Mother and father were divorced in 2003.                        They entered into a

shared parenting agreement for the children, with mother named as the

residential parent.            In 2005, father became the children’s temporary

residential parent because mother was recovering from a surgical procedure.

There is nothing in the record to indicate why the mother did not become the

residential parent again when she recovered from surgery. Father and the



        The parties are referred to by their initials or title in accordance with this court’s established
        1


policy regarding non-disclosure of identities in juvenile cases. “Jam. R.” and “Jac. R.” are
abbreviations of the children’s names used by Cuyahoga County Department of Children
and Family Services in its complaint. Since the children have the same initials, we will also
children lived with the paternal grandmother when Cuyahoga County

Department of Children and Family Services (“CCDCFS”) became involved

with the case, which was sometime in June 2010.

       {¶ 6} CCDCFS became involved in the case due to allegations that

father and paternal grandmother were physically abusing the children.

CCDCFS received ex-parte custody of the two minor children and placed

them in mother’s emergency, temporary custody.2

       {¶ 7} In its refiled complaint for dependency and legal custody to

mother, CCDCFS alleged that Jam. R. and Jac. R. were abused and

dependent.        It alleged that father had inappropriately disciplined the

children by punching them. It further alleged that father was overwhelmed

with the children’s behavior and lacked judgment and parenting skills

necessary to provide adequate care for the children.

       {¶ 8} A magistrate held an adjudicatory hearing on January 31, 2011.

Jennifer Wenderoth, social services supervisor at CCDCFS, testified that the

agency received allegations that Jam. R. and Jac. R. were being physically

abused by father. Wenderoth stated that father denied the allegations, but




refer to them as “Jam. R.” and “Jac. R.”

       The record indicates that CCDCFS dismissed its original complaint and refiled on August 27,
       2


2010 due to the failure to hold a dispositional hearing within the statutory time limits.
admitted that he was overwhelmed with caring for the children and

managing their behavior.

     {¶ 9} Wenderoth testified that Jac. R. had significant behavioral issues,

and at one point, had to be hospitalized because he could not calm down.

Wenderoth testified that Jac. R. called 911 in early August 2010 because

father punched him in the legs. The father admitted that he punched Jac. R.

in the legs. Wenderoth explained that Jac. R. had been hiding under his

grandmother’s bed and would not come out. Father punched Jac. R. in the

legs to get him to come out from under the bed. Wenderoth never saw any

marks on Jac. R.’s legs when she visited the home that indicated he had been

physically injured by father’s punching him.

     {¶ 10} Wenderoth testified that she visited the children at least monthly

while they were still in their father’s care. She observed signs of physical

injury on the boys caused by their grandmother, scars on their arms, which

the children said came from their grandmother grabbing their arms.

     {¶ 11} Wenderoth also testified that Jam. R. said that his father

punched him in the face, but Wenderoth could not substantiate Jam. R.’s

allegations. Father denied that he ever punched Jam. R. The children also

made allegations that their paternal grandmother bit them, but Wenderoth

never saw any bite marks on the children.
      {¶ 12} Wenderoth testified that she believed that father lacked the skills

necessary to appropriately discipline the children. She further testified that

father relied on paternal grandmother for shelter and food, and that he

needed “significant assistance to be able to do these things.”        Wenderoth

testified that at one point, father had received his paycheck, but within a

couple of days it was gone, and father could not explain where it went.

      {¶ 13} Wenderoth further testified that father gets overwhelmed with

the children “and a lot of times he did not know how to manage their behavior

and at times went overboard in trying to manage their behavior *** and he

did use inappropriate discipline techniques.”      She said that she did not

consider punching a child in the legs to be appropriate discipline.

      {¶ 14} Wenderoth also testified that father “seemed resistant” to

providing some of the services that the children needed, specifically, services

to address Jac. R.’s significant behavioral issues and Jam. R.’s anger issues.

She said that at times, father was “not there or would leave” when the

children had appointments with service providers.        She also said that if

father was there, he would sometimes do things when the service providers

were there to prevent them from doing their job, such as not giving them

privacy to counsel the children.

      {¶ 15} Mother testified that her sons would call her to come and get

them and once she heard father say, “take them out of here before I kill
them.”   When she got to their home, father refused to send Jac. R.’s

medications with him because he was angry.

      {¶ 16} The magistrate found the children to be dependent because

“father is overwhelmed with the children’s behavior” and “father lacks

judgment and parenting skills necessary to provide adequate care for the

children,” but she determined that CCDCFS failed to establish by clear and

convincing evidence that the children had been abused.          The magistrate

granted temporary custody to mother.

      {¶ 17} Father filed objections to the magistrate’s decision.     The trial

court overruled father’s objections and adopted the magistrate’s decision in its

entirety. It is from this judgment that father appeals.

                    Independent Review of Magistrate’s Decision

      {¶ 18} In his first assignment of error, father argues that the trial court

merely “rubber stamped” the magistrate’s decision and failed to conduct an

independent review.

      {¶ 19} Civ.R. 53(D)(4)(d) provides that “[i]f one or more objections to a

magistrate’s decision are timely filed, the court shall rule on those objections.

 In ruling on objections, the court shall undertake an independent review as

to the objected matters to ascertain that the magistrate has properly

determined the factual issues and appropriately applied the law.”
      {¶ 20} A trial court must independently review a magistrate’s decision,

and any objections, to determine whether the magistrate properly determined

the factual issues and appropriately applied the law.      Civ.R. 53(D)(4)(d).

Under this de novo standard of review, the trial court may not merely “rubber

stamp” the magistrate’s decision. Knauer v. Keener (2001), 143 Ohio App.3d

789, 793, 758 N.E.2d 1234. An appellate court must uphold the judgment so

long as the record contains “some evidence from which the trier of fact could

have reached its ultimate factual conclusions.” Amsbary v. Brumfield, 177

Ohio App.3d 121, 2008-Ohio-3183, 894 N.E.2d 71, ¶11.

      {¶ 21} Father   argues that because the trial court adopted the

magistrate’s decision a mere four days after he filed his objections to the

magistrate’s decision, it shows that the trial court could not have

independently reviewed the case. Father further argues that the trial court’s

judgment does not give any “indicia that [it] conducted an independent, de

novo review.” We disagree that these facts by themselves indicate that the

trial court failed to independently review the case.

      {¶ 22} Here, the trial judge indicated that she had considered the court

file, the magistrate’s decision, father’s objections, and CCDCFS’s response

and found that father’s objections were not well taken. Although the trial

judge’s opinion is short, there is no evidence that she merely “rubber
stamped” the magistrate’s decision.       MacConnell v. Nellis, 2d Dist. No.

19924, 2004-Ohio-170, ¶12.

      {¶ 23} We must, however, review the record to determine if there is

“some evidence from which the trier of fact could have reached its ultimate

factual conclusions” before we overrule father’s first assignment of error.

Amsbary, 177 Ohio App.3d at ¶11. In doing so, we will necessarily address

his second assignment of error, i.e., whether the trial court erred in finding

the minor children to be dependent.

                             R.C. 2151.04 — Dependency

      {¶ 24} Under R.C. 2151.04, “dependent child” is defined, in part, to be

any child:

      {¶ 25} “(A) Who is homeless or destitute or without adequate parental

care, through no fault of the child’s parents, guardian, or custodian;

      {¶ 26} “(B) Who lacks adequate parental care by reason of the mental or

physical condition of the child’s parents, guardian, or custodian;

      {¶ 27} “(C) Whose condition or environment is such as to warrant the

state, in the interests of the child, in assuming the child’s guardianship[.]”

      {¶ 28} A finding of dependency must be supported by clear and

convincing evidence. R.C. 2151.35; Juv.R. 29. The Ohio Supreme Court has

defined “clear and convincing evidence” as “[t]he measure or degree of proof

that will produce in the mind of the trier of fact a firm belief or conviction as
to the allegations sought to be established. It is intermediate, being more

than a mere preponderance, but not to the extent of such certainty as

required beyond a reasonable doubt as in criminal cases. It does not mean

clear and unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d 101,

103-104, 495 N.E.2d 23.

      {¶ 29} Even under the clear and convincing standard, our review is

deferential. If some competent, credible evidence going to all the essential

elements of the case supports the trial court’s judgment, an appellate court

must affirm the judgment and not substitute its judgment for that of the trial

court. State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54; C.E.

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.

The credibility of witnesses and weight of the evidence are issues primarily

for the trial court, as the trier of fact. Seasons Coal Co. v. Cleveland (1984),

10 Ohio St.3d 77, 80, 461 N.E.2d 1273.

      {¶ 30} Father raises several issues in his second assignment of error.

But in all of them, he argues that CCDCFS failed to prove by clear and

convincing evidence that his children were dependent. We disagree.

      {¶ 31} After a review of the record, we find there was “some competent,

credible evidence” from which the trial judge could have found the children

dependent.    CCDCFS presented evidence that Jac. R. had significant

behavioral issues that father had a difficult time addressing.          Father
admitted as much.     Wenderoth stated that she believed father lacked the

skills to appropriately discipline the children.      Father admitted      being

overwhelmed with the children’s behavior and admitted punching Jac. R. in

the legs when Jac. R. refused to listen to him. Mother testified that she

heard father threaten to kill the children if she did not come to get them.

      {¶ 32} Wenderoth also testified that father had a difficult time

managing money, such that she had serious doubts that father could provide

food and shelter without paternal grandmother’s assistance.         And finally,

father was also reluctant to provide some of the needed services for the

children, such as counseling, when they were in his care.

      {¶ 33} Accordingly, we find there was “some competent, credible

evidence” for which the trial court could find that the children were

dependent. We further conclude that since there was some evidence for the

trial court to reach its ultimate factual conclusion, the trial court did not err

when it adopted the magistrate’s decision.

      {¶ 34} Thus, father’s first and second assignments of error are

overruled.

      Judgment affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate be sent to said court 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 J. BOYLE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR
