[Cite as In re V.H., 2019-Ohio-3097.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


IN RE V.H., ET AL.                            :
                                              :               No. 107599
Minor Children                                :
                                              :
[Appeal by A.H., Mother]                      :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: August 1, 2019


          Civil Appeal from the Cuyahoga County Court of Common Pleas
                                 Juvenile Division
        Case Nos. AD18905130, AD18905131, AD18905132, and AD18905133


                                        Appearances:

                 Nee Law Firm, L.L.C., and Leigh S. Prugh, for appellant.

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Michelle A. Myers, Assistant Prosecuting
                 Attorney, for appellee C.C.D.C.F.S.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Britta A. Barthol, Assistant Public Defender, for appellee
                 B.M.



RAYMOND C. HEADEN, J.:

                   Appellant A.H. (Mother) appeals a decision of the Cuyahoga County

Court of Common Pleas, Juvenile Division, that adjudicated child V.H. was abused
and children R.S., M.S., and T.M. were neglected. For the reasons that follow, we

reverse and remand the case to the trial court for further proceedings consistent with

this opinion.

Statement of the Facts

                Appellant A.H. (“Mother”) and T.H. (“Father”) are married and are

the parents of V.H. who was six months old at the time of the emergency custody

hearing. Mother also has three children from prior relationships, R.S., M.S., and

T.M., aged eight, six, and three respectively. R.S. and M.S. are the children of

Mother and Ro.S., and T.M. is the child of Mother and B.M. At all relevant times,

Mother had custody of R.S., M.S., and T.M.

                On April 17, 2018, Mother left V.H. and T.M. at home with Father

while Mother took R.S. to a doctor’s appointment. M.S. was at school. Conflicting

evidence was introduced whether Father worked the night shift the day before.

When Mother left the house, Father was awake, six-month-old V.H. was sleeping in

the parents’ bed, and three-year-old T.M. was asleep in his bedroom situated across

the hall. Father was tired and since both children were asleep, he returned to sleep

in the bed with V.H.

                Father awoke to crying from V.H. and T.M. Father found the children

on the floor at the foot of his bed, with T.M. holding V.H. It was soon apparent that

V.H.’s arm was injured. V.H. was treated immediately at an emergency room for a

fractured arm. While Mother, who was not home when the incident occurred, and
Father did not know the exact cause of V.H.’s broken arm, they surmised T.M.

attempted to pull her off the bed and V.H. fell to the ground, breaking her arm.

                 Although the hospital records were not included as part of the record,

testimony referenced those medical documents. According to the testimony, the

hospital records indicated that V.H.’s broken arm was consistent with a fall. There

was also testimony from Chloe Scott, a child protection specialist with the Cuyahoga

County Department of Child and Family Services (“CCDCFS”), that states V.H.’s

injury was sustained as she was passed back and forth between her brothers, R.S.,

and T.M. However, the record indicates that R.S. was not home when V.H. was

injured which disputes the testimony of Chloe Scott. At no other time is there

mention of V.H.’s brothers passing her back and forth as an explanation offered for

V.H.’s injury.

                 CCDCFS was informed of V.H.’s injury. Chloe Scott initiated an

investigation and met with Mother and Father on April 17, 2018. Father initially

refused Ms. Scott entry into the house until Mother arrived home; Father was not

T.M.’s parent and felt Mother needed to be present for discussions regarding T.M.

                 Mother and Father were not receptive to CCDCFS’s suggestion of

placing V.H. in a location inaccessible to the three year old, T.M., or making

alternate sleeping arrangements for V.H. The couple stated sleeping with an infant

was not illegal and V.H. slept best in a shared bed with her parents. CCDCFS

attempted to adopt a safety plan, but Mother and Father were unwilling to

cooperate. The parents agreed Father should not watch the children after working
a third shift, although this was not typically an issue since Mother was usually home

during the day. Ms. Scott noted the house was cluttered and full of dog fur from the

family’s three dogs. V.H. slept in the parents’ room while the three older children

slept in the room across the hallway. The children’s bedroom contained two beds

for the three children.

               Ms. Scott also discussed with Mother and Father an open

investigation dating from March 2018. At that time, R.S., self-reported that he put

a toy in V.H.’s crib causing her an injury and, as a result, Father disciplined him by

“punching” R.S. in the back. CCDCFS reported to their home in March 2018, but

was not permitted to speak independently to R.S.          The parents denied such

discipline occurred and the social worker did not observe any cuts or bruises on R.S.

The social worker did not lift the child’s shirt to examine his back. That complaint

was left open within CCDCFS’s system, but no further follow-up occurred.

               Ms. Scott attempted to schedule a staffing meeting with Mother and

Father regarding V.H. Mother and Father informed Ms. Scott they were not

available the next morning, April 18, 2018, because of a previously scheduled

doctor’s appointment. Due to Father’s aggressive behavior towards Ms. Scott, she

found it necessary to leave the home without scheduling a subsequent meeting.

               A staffing meeting was held by CCDCFS the morning of April 18,

2018. Ms. Scott left a voicemail message for Mother notifying her about the date

and time of the staffing meeting, even though she had been told Mother and Father

were unavailable at that time due to a previously scheduled doctor’s appointment.
Ms. Scott later realized that message was left at the wrong phone number and

attempted to schedule another staffing meeting with Mother and Father. Mother

and Father provided no amenable dates due to their busy schedules.

              Ms. Scott felt the parents were not taking the situation seriously

because they did not appear willing to change their sleeping patterns and she

discontinued any attempt to schedule a second staffing meeting.         Ms. Scott

attempted to notify the parents about a scheduled emergency temporary custody

hearing via telephone but Mother would not take the information and hung up on

Ms. Scott. A coworker of Ms. Scott left a voicemail for Mother with information

relevant to the emergency hearing. Mother returned the coworker’s call, but Ms.

Scott did not know the details of the conversation.

              Mother and Father recalled a different version of the facts. Because

of previously scheduled doctor’s appointments for R.S. and V.H., Ms. Scott and the

parents agreed to hold a staffing meeting on April 20, 2018, at 9:00 a.m. by phone.

The parents received a call from Ms. Scott at 10:00 a.m. stating she had called the

wrong phone number and the staffing meeting was held without the parents. A

subsequent meeting was to be held, via phone, that afternoon, after V.H.’s 12:30

p.m. doctor’s appointment. Mother and Father received two voicemail messages the

afternoon of April 20, 2018, stating an emergency custody hearing was scheduled at

2:00 p.m. and the parents must be present.

              An emergency temporary custody hearing on April 20, 2018,

addressed CCDCFS’s emergency complaint alleging V.H. was abused and neglected.
CCDCFS sought temporary custody of V.H. Ms. Scott testified removal of V.H. was

necessary to alleviate any risk to the child — the basis for removal was lack of

parental supervision, the concern of V.H. sleeping with her parents, and the

possibility that she may fall out of bed. The guardian ad litem also recommended

removal based upon the family’s uncooperative attitude; the different stories relayed

as to how V.H. injured her arm; and the young age of V.H. The court determined

CCDCFS made reasonable efforts to prevent removal, including safety planning, but

more services were required to alleviate risks to V.H. A motion for predispositional

temporary custody for V.H. was granted and a case plan was to be filed within thirty

days. Mother and Father attempted to attend the emergency temporary custody

hearing, but went to the wrong address. The couple arrived at the correct location

after the hearing had concluded and were confronted by CCDCFS employees and

police officers who immediately took custody of V.H.

              A magistrate then held a predispositional temporary custody hearing

on May 21, 2018, to determine whether the removal of R.S., M.S., and T.M. from

Mother’s home was in their best interest. Ro.S., the father of R.S. and M.S., and

B.M., the father of T.M., were present at the hearing. Ro.S., B.M., and CCDCFS all

stated it was not in the best interest of the children to remove them from Mother’s

custody.

              Ms. Scott testified about the children. Ms. Scott determined R.S.’s

school attendance was poor at the start of the year, but he was currently doing well.

R.S. had an IEP for behavior, but no evidence was introduced regarding any
problems. Ms. Scott had not spoken with the school regarding M.S. Some of Ms.

Scott’s statements were not well supported: “There [were] some concerns raised

about the physical discipline. I’m not sure to what extent but there [were] some

concerns in the way of her treatment of the children.” Ms. Scott further stated the

children’s fathers and school staff reported concerns regarding Mother’s physical

discipline; her yelling and screaming at the children; and an incident where Mother

allegedly “whipped” the children in a store. Testimony stated the three children

were bonded with one another. Mother and Father’s home was appropriate because

the family was provided with heat, food, and electricity. Ro.S. had some concern

regarding Mother’s physical discipline but supported placement of his children with

Mother and did not believe they were in immediate harm. Similarly, B.M. was

concerned that Mother would yell and scream at T.M., but he did not believe his son

was at immediate risk. Ro.S. and B.M.’s homes had not been investigated by

CCDCFS, nor were the fathers included in the April 18, 2018 staffing meeting.

               CCDCFS     felt   Mother    lacked   adequate    parenting    skills   as

demonstrated by her general lack of knowledge about the hazards of sleeping with

an infant and leaving Father in charge of the children after he had worked a third

shift. However, CCDCFS recommended it was in the best interests of R.S., M.S., and

T.M. to remain with Mother because the disciplinary concerns could be addressed

through agency-provided services; Mother and Father were willing to avoid Father

caring for the children after working a third shift; the biological fathers of the three
children were involved and had regular contact with their children; and R.S. and

M.S. were in school providing them with regular contact with nonfamilial adults.

              The agency had presented a case plan to Mother and Father

approximately one week after CCDCFS took custody of V.H. The agency ordered

both a drug screen and mental-health assessment because the parents were angry

and the agency was concerned about their anger management. The parents seemed

willing to comply with the parenting courses and mental-health and drug

screenings, but wanted to confer with their attorney prior to committing to the case

plan. CCDCFS found Mother and Father’s response to the proposed case plan

reasonable.   However, at the close of the predispositional temporary custody

hearing, counsel for Mother and Father indicated the parents were unwilling to

attend parenting classes and felt no case plan was necessary.

              The court determined that because the parents refused agency

services, it could not say it was in the children’s best interest to remain with the

parents. The children were placed in the predispositional temporary custody of

CCDCFS. R.S. and B.M. were to be considered first for placement of their children.

The court ordered Mother and Father to undergo mental-health assessments and

drug screenings.

              Trial was held on July 6, 2018, to determine the disposition of all four

children. CCDCFS continued to attempt implementation of a case plan for Mother

and Father. CCDCFS testified the parents were very argumentative during weekly

visitations with V.H., focusing on their anger toward the agency rather than working
to reach the agency’s requested goals. CCDCFS wanted Mother and Father to

complete the case plan objectives. Mother and Father underwent mental-health and

substance-abuse assessments with Recovery Resources on June 19, 2018. A letter

from Recovery Resources indicated no treatment was recommended for Mother

while a follow-up letter regarding Father requested he contact the facility. CCDCFS

was concerned with this care provider since the assessment was based upon

information provided exclusively by the parents. The agency preferred an agency-

recommended provider that accepted information from both the parents and

CCDCFS. The parents refused to sign a release of information; this document was

required before CCDCFS could refer the parents to agency services.

              The children had adapted to their various placements — V.H. in foster

care, R.S. and M.S. with Ro.S., and T.M. with B.M. There was no concern about the

children’s safety. Mother and Father had visitation with V.H. and Mother had

visitation with her other three children. Mother was difficult facilitating visitation

times with Ro.S. Mother raised allegations about Ro.S., Ro.S.’s girlfriend, and B.M.

The basis of the allegations is unknown and the record does not reflect whether any

claims were filed with CCDCFS. Mother and Father had changed their residence

and lived in a two-bedroom trailer with Mother’s parents that would not be suitable

if Mother had custody of her four children. The permanency plan for all four

children continued to be reunification with Mother.

              At the trial, CCDCFS requested temporary custody of the four

children with the agency; Ro.S. sought custody of R.S. and M.S.; B.M. requested
custody of T.M.; and the guardian ad litem recommended temporary custody to the

agency since she had not completed an investigation of Ro.S. and B.M. to make an

appropriate recommendation of them as custodial parents. Mother and Father

requested placement of the children with the agency rather than with either Ro.S. or

B.M.1

                The court found (1) it was in the best interest of V.H. to grant

temporary custody to CCDCFS with approval of the permanency plan for

reunification with Mother and Father; (2) it was in the best interest of R.S. and M.S.

to be in the legal custody of their father, Ro.S., with protective supervision and

approval of the permanency plan of reunification; and (3) it was in the best interest

of T.M. to be in the legal custody of his father, B.M., with an order of protective

supervision and approval of the permanency plan of reunification. Mother and

Father were ordered to comply with the court diagnostic clinic’s evaluation. The

temporary custody order and two protective supervision orders are still in effect.

                On July 6, 2018, an adjudicatory hearing was held before a

magistrate, and evidence was submitted. The magistrate found it was contrary to

the best interest of the four children to be returned to the home of Mother. The


        1 On May 21, 2018, Mother and Father filed an answer to magistrate’s pretrial order

and findings of fact and emergency temporary custody. The answer was in response to
the magistrate’s orders implemented on April 20, 2018, regarding V.H. On May 30, 2018,
Mother and Father filed a motion to set aside the magistrate’s order stating an objection
to removal of R.S., M.S, and T.M. from Mother and Father’s home. The motion to set
aside the magistrate’s order was subsequently withdrawn on June 28, 2018, and
journalized on July 3, 2018. The request on July 6, 2018, was Mother and Father’s first
request to place R.S., M.S., and T.M. with the agency rather than with their biological
fathers.
magistrate further found CCDCFS made reasonable efforts to prevent removal of the

children, to eliminate the continued removal of the children from the home, and to

make it possible for the children to return home. The magistrate’s decision and

findings of fact found relevant services were provided to the family in the case of

V.H. but Mother and Father refused to cooperate with referrals to the court

diagnostic clinic and for parenting classes at the Westside Collaborative. V.H. was

adjudicated abused, the case plan was approved, and the permanency plan

remained reunification.

                In the cases of R.S., M.S., and T.M., Mother refused to cooperate with

the same referrals to court diagnostic clinic and for parenting classes at the Westside

Collaborative. The three children were adjudicated neglected and legal custody was

granted to the biological fathers with protective supervision of CCDCFS. The case

plans were approved and the permanency plans remained reunification.

Subsequently, an order journalized on July 26, 2018, indicated the trial court

adopted the magistrate’s decisions related to the adjudicatory and dispositional

recommendations.

                Mother filed this timely appeal on August 27, 2018.

Law and Analysis

                In the first assignment of error, Mother argues the trial court’s

adoption of the magistrate’s decisions related to the adjudicatory and dispositional

recommendations for V.H., R.S., M.S., and T.M. were against the manifest weight of

the evidence.
               “The decision to adopt, reject, or modify a magistrate’s decision by a

trial court will not be reversed on appeal unless the trial court’s decision amounts to

an abuse of discretion, which has been defined as an error of law or judgment that

implies the trial court’s attitude is unreasonable, arbitrary, or unconscionable.” In

re S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476, ¶ 7, citing Fackelman v.

Micronix, 8th Dist. Cuyahoga No. 98320, 2012-Ohio-5513, ¶ 5. However, this

standard does not apply where an appellant fails to object to the magistrate’s

decision and fails to file a transcript of the hearing for the court’s review.

               Mother and Father failed to object to the magistrate’s decision.

“When a party has failed to file objections to a magistrate’s decision, an appellate

court’s review of the trial court’s decision is limited to review for plain error.” S.J. v.

J.T., 6th Dist. Lucas No. L-11-1011, 2011-Ohio-6316, ¶ 8, citing Goldfuss v.

Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997). Plain error is not favored and

is only applicable in rare cases where the error “seriously affects the basic fairness,

integrity, or public reputation of the judicial process, thereby challenging the

legitimacy of the underlying judicial process itself.” In re S.J. at ¶ 8, quoting

Goldfuss at syllabus.

               Mother and Father also failed to file a transcript of the magistrate’s

proceedings with the trial court. A party objecting to a magistrate’s factual finding

is required to support the objection with a transcript of all the evidence submitted

to the magistrate relevant to that finding. Juv.R. 40(D)(3)(b)(iii). “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. at ¶ 13. Under those circumstances, an appellate court is

precluded from considering the transcript when it is submitted with the appellate

record. In re A.L., 8th Dist. Cuyahoga No. 99040, 2013-Ohio-5120, ¶ 12. Without

the transcript properly before it, an appellate court has no basis to conclude that the

trial court erred in adopting the magistrate’s decision.

               In the case sub judice, Mother and Father did not object to the

magistrate’s decision so our review of the trial court’s decision is limited to plain

error. Additionally, even though a transcript of the magistrate’s hearing is before

this court, because the transcript was not filed with the trial court, we may not

consider it when reviewing factual findings. See In re S.H., 8th Dist. Cuyahoga No.

100911, 2014-Ohio-4476, at ¶ 16. Based upon our review of the limited record, we

are unable to conclude the trial court’s order of temporary custody constitutes plain

error.

               At this court’s request, the parties submitted supplemental briefs

addressing whether trial counsel was ineffective when he failed to object to the

magistrate’s decision. Mother’s second assignment of error argues trial counsel’s

failure to object to the magistrate’s decisions constituted ineffective assistance of

counsel.

               An initial issue is whether we can review the transcript in evaluating

this assignment of error. Typically, where the transcript of the magistrate’s decision

was not filed with the trial court, the transcript is not part of the trial court’s record
and an appellate court cannot review the transcript, upon appeal, to address factual

findings. See In re S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476. See also

In re Comer, 10th Dist. Franklin No. 96APF11-1571, 1997 Ohio App. LEXIS 4348, 5

(Sep. 23, 1997). However, appellate courts have reviewed transcripts for the purpose

of determining whether the appellant was prejudiced by counsel’s ineffective

assistance, despite the fact that the transcript was not available to the trial judge:

      First, we presume that the failure to file a transcript for review by the
      trial judge is associated with the failure to request findings of fact and
      the failure to object to the magistrate’s report. Second, because of the
      nature of the alleged errors, it would be impossible to apply the second
      prong of the Strickland test without considering the evidence
      presented to the magistrate.

In re Comer at 5-6, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). See also In re P.D.R., 5th Dist. Stark No. 2010-CA-00268,

2011-Ohio-1036, ¶ 22. In the interest of justice, this court will examine the transcript

of the magistrate’s hearings, despite the fact that it was not available to the trial

judge. In re Oliver, 5th Dist. Licking No. 2005-CA-40, 2005-Ohio-5792, ¶ 24.

               In order to establish a claim of ineffective assistance of counsel, a

defendant must demonstrate: (1) his counsel was deficient in some aspect of his

representation, and (2) the deficient performance prejudiced the defendant. In re

J.G., 8th Dist. Cuyahoga No. 100681, 2014-Ohio-2652, ¶ 32. This standard of review

is applicable in custody proceedings and is applied below when assessing Mother’s

claim of ineffective counsel. Id. at ¶ 32. Moreover, when a reviewing court considers

an ineffective assistance of counsel claim, the reviewing court should not consider
what, in hindsight, may have been a more appropriate course of action. See State v.

Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). Rather, the reviewing court

“must be highly deferential.” Strickland at 689. As the Strickland court stated, a

reviewing court “must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Id., quoting Michel v. Louisiana,

350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

               A reviewing court must evaluate the allegations of ineffective counsel

on a case-by-case basis and satisfy both prongs of the Strickland analysis. Here,

trial counsel’s failure to file objections to the magistrate’s decision or order impacted

the temporary custody of Mother’s children and, outside of an appeal, was the

Mother’s only opportunity to attempt to reverse the magistrate’s decision. Trial

counsel’s failure to object to the magistrate’s report constituted deficient

performance under the first prong of the Strickland test. In re Comer at 5. We must

also assess whether the failure to file objections prejudiced Mother to such an extent

that she was deprived a fair trial, thereby satisfying the second prong of the

Strickland test. To show prejudice, the appellant must demonstrate that there is a

reasonable probability that but for counsel’s errors, the result of the proceeding

would have been different. In re A.G., 8th Dist. Cuyahoga No. 105254, 2017-Ohio-

6892, ¶ 59.
               CCDCFS alleged V.H. was abused and R.S., M.S., and T.M. were

neglected. If there is a reasonable probability that Mother’s filing objections would

have resulted in the trial court not adopting the magistrate’s decision and findings

of fact, the second Strickland prong is met. To make this determination, we must

complete an analysis similar to that applied by the trial court.

               To adjudicate a child as “abused” we look to R.C. 2151.031 and

determine if V.H. meets the statutory definition:

      As used in this chapter, an “abused child” includes any child who:

      (A) Is the victim of “sexual activity” as defined under Chapter 2907 of
      the Revised Code, where such activity would constitute an offense
      under that chapter, except that the court need not find that any person
      has been convicted of the offense in order to find that the child is an
      abused child;

      (B) Is endangered as defined in section 2919.22 of the Revised Code,
      except that the court need not find that any person has been convicted
      under that section in order to find that the child is an abused child;

      (C) Exhibits evidence of any physical or mental injury or death,
      inflicted other than by accidental means, or an injury or death which is
      at variance with the history given of it. Except as provided in division
      (D) of this section, a child exhibiting evidence of corporal punishment
      or other physical disciplinary measure by a parent, guardian,
      custodian, person having custody or control, or person in loco parentis
      of a child is not an abused child under this division if the measure is not
      prohibited under section 2919.22 of the Revised Code.

      (D) Because of the acts of his parents, guardian, or custodian, suffers
      physical or mental injury that harms or threatens to harm the child’s
      health or welfare.

      (E) Is subjected to out-of-home care child abuse.
R.C. 2151.031(A) is inapplicable because there were no allegations of sexual activity.

R.C. 2151.031(B) requires clear and convincing evidence that the child was

endangered as defined in R.C. 2919.22.

               R.C. 2919.22 reads, in pertinent part:

       (A) No person, who is the parent, guardian, custodian, person having
      custody or control, or person in loco parentis of a child under eighteen
      years of age or a mentally or physically handicapped child under
      twenty-one years of age, shall create a substantial risk to the health or
      safety of the child, by violating a duty of care, protection, or support. It
      is not a violation of a duty of care, protection, or support under this
      division when the parent, guardian, custodian, or person having
      custody or control of a child treats the physical or mental illness or
      defect of the child by spiritual means through prayer alone, in
      accordance with the tenets of a recognized religious body.

      (B) No person shall do any of the following to a child under eighteen
      years of age or a mentally or physically handicapped child under
      twenty-one years of age:

      (1) Abuse the child.

“[T]o support a conviction for child endangering under R.C. 2919.22(A), it must be

established, beyond a reasonable doubt, that [parent] (1) recklessly (2) created a

substantial risk to the health or safety of one or more of his children (3) by violating

a duty of care, protection or support.” Cleveland Hts. v. Cohen, 2015-Ohio-1636, 31

N.E.3d 695, ¶ 25 (8th Dist.).

               The evidence does not support a finding that V.H. was endangered.

Mother left the house to take R.S. to the chiropractor. Mother left Father in charge

of both V.H. and T.M. Both children were sleeping when Mother left the home.

Father went back to sleep. He and Mother commonly slept with V.H. and Father

did so on the morning of April 17, 2018. Father and Mother believe T.M. awoke that
morning and entered the bedroom where Father and V.H. were sleeping. Father

awoke to the children’s cries and found T.M. seated on the floor at the foot of the

bed, holding V.H. A thorough review of the record supports Mother and Father’s

version of the facts that T.M. attempted to pick up or move V.H. and she fell to the

ground injuring her arm.      The parents maintained this story throughout the

proceedings. The alternate suggestion that V.H. was injured while being passed

back and forth between R.S. and T.M. was unsubstantiated.            A doctor’s note

confirmed R.S. was not home at the time of the injury and this version of events was

mentioned only in the emergency records.

              While V.H. was injured under Father’s watch, Father’s behavior did

not rise to being “reckless” or creating “substantial risk.”   Ms. Scott of CCDCFS

focused on Mother and Father’s sleeping with V.H. as the source of abuse. However,

sleeping did not satisfy the definitions of “reckless” or “substantial risk.” The

parents testified their doctor was aware of this sleeping arrangement and never

voiced any concerns and did not indicate the practice was comparable to abuse.

              Ms. Scott also alleged negligent supervision because Mother left the

children in Father’s care after he worked a night shift and he was sleeping when

Father was in charge of V.H. and T.M. Conflicting evidence was introduced whether

Father worked a night shift the day prior to V.H.’s injury. Father testified he was

awoken by Mother when she left the house and she did not know he went back to

sleep. Regardless, it seems unreasonable to state V.H. was endangered because

Father slept at the same time as she and T.M. Typically, parents sleep at night at the
same time as their children; children wake up and can move about the house. Such

behavior is neither reckless nor placing a child at a substantial risk. A baby gate on

the parents’ bedroom doorway could have remedied T.M. and the other children

having access to V.H. while she slept and such a solution would have been a far less

disruptive resolution in comparison to removing V.H. from her parents’ custody.

Father testified he and Mother initially were hesitant to change their sleeping habits

with V.H., but subsequently told CCDCFS via telephone that they were willing to

sleep separately from V.H.

              Lastly, CCDCFS referenced the March 2018 incident that was self-

reported by R.S. R.S. alleged Father “punched” him in the back as a form of

discipline. Ms. Scott spoke with Father and R.S. about the incident and there was

no testimony substantiating the allegations. While R.S. was interviewed in front of

both his Mother and Father, he did not state he had been punched. R.S. goes to

school each day where he interacts with teachers and adults. Presumably, R.S. could

have reported any complaints in his school setting yet no such reports were relayed

to CCDCFS. The record could be viewed, within a reasonable probability, not to

support an allegation that V.H. was an endangered child in accordance with

R.C. 2151.031(B).

              R.C. 2151.031(C) defines an abused child as one who “[e]xhibits

evidence of any physical or mental injury or death, inflicted other than by accidental

means, or an injury or death which is at variance with the history given of it.” As

stated previously, Mother and Father stated V.H. sustained a broken arm when her
brother, T.M., pulled her off of the bed or attempted to pick her up from the bed. A

different version of the facts was reflected in the emergency records where it was

written R.S. and T.M. were passing V.H. back and forth when she fell to the floor.

That account did not factually make sense since Mother and R.S. were not at home

when the incident occurred. Also, subsequent to the emergency room visit, Mother

and Father consistently stated V.H. was injured when T.M. attempted to move her

from bed. While V.H.’s injury was unfortunate and measures should have been

taken to avoid a repeat occurrence, the event could have been categorized as an

accident. The facts could have been interpreted, within a reasonable probability, as

showing V.H. was not an abused child under R.C. 2151.031(C).

              No facts were presented to suggest Mother and/or Father undertook

acts causing V.H. to suffer a physical or mental injury or that harm or threaten to

harm V.H.’s health or welfare. Additionally, no facts were introduced supporting an

allegation of out-of-home care child abuse. Absent such evidence, the record, within

a reasonable probability, can be seen as not supporting an allegation of abuse under

R.C. 2151.031(D) or (E). Based upon the foregoing, there is a reasonable probability

that but for counsel’s failure to object to the magistrate’s decision and findings of

fact, the trial court would not have found V.H. abused.

              The record also reflected a reasonable probability that the trial court

would not have adopted the magistrate’s decision and findings of fact to adjudicate

R.S., M.S., and T.M. as neglected. In the instant case, neglect could have been

argued under R.C. 2151.03(A)(2) or (A)(3):
       (A) As used in this chapter, “neglected child” includes any child:

      ***

      (2) Who lacks adequate parental care because of the faults or habits of
      the child’s parents, guardian, or custodian;

      (3) Whose parents, guardian, or custodian neglects the child or 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;

      ***

               The initial complaint against Mother and Father presented these

allegations:

      (1) Mother lacked adequate parenting skills which placed the children
          at risk of harm. Specifically, Mother left V.H. and T.M. in the care
          of Father after Father had worked a night shift and as a result,
          Father was sleeping when he was supposed to be caring for the
          children.

      (2) Mother failed to adequately supervise the children based upon an
          allegation that V.H. was injured during play with R.S. and T.M.

      (3) Father inappropriately disciplined R.S. by punching him in the
          back.

Mother left two sleeping children, V.H. and T.M., under the care of Father. Mother

and Father’s behavior towards R.S., M.S., and T.M. exhibited adequate parental care

and the provision of proper and necessary care as required under R.C. 2151.03(A)(2)

and (A)(3). R.S. was allegedly struck once by Father. CCDCFS became aware of this

self-reported incident, completed an investigation, and filed no complaint on the

allegations. The magistrate voiced her displeasure that the investigating social

worker was unable to talk with R.S. away from Mother and Father and did not
examine under R.S.’s shirt to ensure there was no bruising or visible marks.

However, the conversation between the social worker and the family did not support

any allegation against Mother and/or Father. R.S. attended school daily and had

regular visits with his biological father, Ro.S. R.S. presumably, could have shared

any abuse or neglect with those caregivers yet no such behavior was reported. The

father, Ro.S., voiced concerns about Mother and Father’s discipline and yelling, but

he supported keeping his children, R.S. and M.S., in Mother’s custody rather than

removing them to CCDCFS’s temporary custody.

              The only testimony introduced regarding M.S. was that she initially

missed a number of days of kindergarten, but her attendance improved by the end

of the year. And the only evidence regarding T.M. was that Mother left him in the

care of Father on a morning after Father allegedly worked a night shift. Father

denies working a night shift on the night in question. On the day V.H. was injured,

T.M. was sleeping when his mother left the house. Mother was normally home

during the day to care for T.M. There was a reasonable probability that the trial

court would not have adjudicated the three children neglected if Mother and

Father’s counsel had filed objections to the magistrate’s decision.

              But for the ineffective assistance of counsel provided to Mother and

Father, the above objections would have been raised in response to the magistrate’s

decision and there is a substantial probability that the trial court would not have

adopted the magistrate’s decision and findings of fact. For the foregoing reasons,

we find merit in Mother’s second assignment of error and remand the case so
Mother has an opportunity to file objections to the magistrate’s order and file a

transcript of the proceedings with the trial court.

               Judgment reversed and remanded to the trial court for further

proceedings consistent with this opinion.

      It is ordered that appellant recover of appellees the costs herein taxed. Costs

waived.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing 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.



RAYMOND C. HEADEN, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY
