[Cite as In re K.M., 2011-Ohio-3632.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SHELBY COUNTY



IN THE MATTER OF:
                                            CASE NO. 17-11-15
        K. M.,

ADJUDGED DEPENDENT CHILD,

[JEFFREY M.,
     APPELLANT/FATHER],                     OPINION
[KATHLEEN M.,
     APPELLANT/MOTHER].


IN THE MATTER OF:
                                            CASE NO. 17-11-16
        A. M.,

ADJUDGED DEPENDENT CHILD,

[JEFFREY M.,
     APPELLANT/FATHER],                     OPINION
[KATHLEEN M.,
     APPELLANT/MOTHER].


IN THE MATTER OF:
                                            CASE NO. 17-11-17
        J. M.,

ADJUDGED DEPENDENT CHILD,

[JEFFREY M.,
     APPELLANT/FATHER],                     OPINION
[KATHLEEN M.,
     APPELLANT/MOTHER].
Case Nos. 17-11-15, 17-11-16, 17-11-17




             Appeal from Shelby County Common Pleas Court
     Trial Court Nos. 2010-NEG-0024, 2010-NEG-0026, 2010-NEG-0025

                 Judgments Reversed and Causes Remanded

                       Date of Decision:     July 25, 2011



APPEARANCES:

      Darrell L. Heckman for Appellants

      Rachael E. Stir for Appellee




PRESTON, J.

      {¶1} Parents-appellants, Kathleen M. and Jeffrey M. (hereinafter

“appellants”), appeal the Shelby County Court of Common Pleas’ judgment entry

adjudicating their three minor children, K.M., J.M., and A.M., dependent children

pursuant to R.C. 2151.04(C) and (D) and ordering that the children remain under

the protective supervision of the Shelby County Department of Job and Family

Services, Children Services Division (hereinafter “Children Services”) for six (6)

months. For the reasons that follow, we reverse.

      {¶2} On August 6, 2010, Shelby County Sheriff’s Deputy Strunk and

Chief Glass of the Botkins Police Department responded to Kathy’s phone call

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Case Nos. 17-11-15, 17-11-16, 17-11-17



requesting police assistance for an unruly child (J.M.). (Doc. No. 30, Dec. 1, 2010

Magistrate’s Decision, FOF #2). While responding to the call, Deputy Strunk and

Chief Glass observed that appellants’ home was filled with clutter, debris, junk,

dirt, and filth, to the point that it was difficult to travel from room to room. (Id. at

FOF ##7-8). Deputy Strunk and Chief Glass took several photographs of the

inside of appellants’ home. (Id. at FOF #6); (Exs. A-G, I-Q).

       {¶3} On August 12, 2010, Children Services visited appellants’ home and

noted that the home was in a similar condition as that depicted in the August 6th

photographs. (Id. at FOF #13). On August 17, 2010, Children Services enacted a

“safety plan,” removed the children from appellants’ home, and placed the

children with a neighbor until the conditions of the home improved. (Id. at FOF ##

22-23). Children Services noticed some improvements in appellants’ home during

their August 17th visit but the totality of the clutter, filth, smell, etc. remained. (Id.

at FOF #23).

       {¶4} On August 19, 2010, Children Services returned to appellants’ home

and noticed that the home’s condition was a “major improvement.” (Id. at FOF

#24). The clutter in the home had been removed; the home had been cleaned and

tidied; the cleaning supplies and other dangerous chemicals properly stored; and

the counters and floors had been cleaned and shined. (Id. at FOF # 26). Children

Services took several photographs of appellants’ home on that date showing the

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improvements. (Id.); (Exs. R-HH). As a result of the home inspection, Children

Services lifted the “safety plan” and allowed the children to return home. (Id. at

FOF #25). On September 22, 2010, Children Services returned to the home for

another inspection, but appellants did not allow them to enter the home. (Id. at

FOF #32).

         {¶5} On September 28, 2010, Children Services filed complaints alleging

that the three children were neglected and dependent children pursuant to R.C.

2151.03(b) and (f) and R.C. 2151.04(c) and (d). (Doc. Nos. 1, 1, 1).1                                  The

complaint involving K.M. was assigned case no. 2010 NEG 0024; the complaint

involving J.M. was assigned case no. 2010 NEG 0025; and the complaint

involving A.M. was assigned case no. 2010 NEG 0026.

         {¶6} On November 19, 2011, an adjudication hearing was held before a

magistrate, and, on December 1, 2010, the magistrate issued decisions finding that

the children were dependent children. (Doc. Nos. 29, 29, 30).

         {¶7} A dispositional hearing was held on December 8, 2010. (Id.). On

December 14, 2010, the magistrate issued decisions that the children should

remain in appellants’ physical custody but under Children Services’ protective

supervision for six (6) months. (Doc. Nos. 30, 30, 31). The magistrate ordered

that Children Services monitor appellants home through announced and
1
 Since there are three separate trial court case numbers involving each child, citations to the record herein
will have three docket numbers, one for each case, even though some of the docket numbers are identical.

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Case Nos. 17-11-15, 17-11-16, 17-11-17



unannounced visits, but ordered that appellants’ shall not be required to complete

any additional services or duties. (Id.).

       {¶8} On December 15, 2010, the trial court filed orders adopting the

magistrate’s December 1, 2010 adjudication and instructed counsel for Children

Services to prepare proposed judgment entries in conformity with its orders. (Doc.

Nos. 31, 31, 32).

       {¶9} On December 21, 2010, the trial court filed entries adjudicating the

children dependent children as defined in R.C. 2151.04(c) and (d). (Doc. Nos. 32,

32, 33).

       {¶10} On January 3, 2011, the trial court filed orders adopting the

magistrate’s December 14, 2010 dispositional decisions and instructing counsel

for Children Services to prepare judgment entries in conformity with its orders.

(Doc. Nos. 33, 33, 34).

       {¶11} On January 6, 2011, appellants filed a “Motion for Extension of

Time to File Objections to Magistrate’s Decisions” pursuant to Civ.R. 53(D)(5).

(Doc. No. 35). The motion specifically requested leave to file delayed objections

with respect to the magistrate’s December 1st adjudication and December 14th

disposition. (Id.).

       {¶12} On January 7, 2011, the trial court granted the motion, ordering that:

a transcript be prepared at appellants’ expense and filed by February 15, 2011;

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and, “* * * [appellants] shall be granted leave to supplement their Objections

within 14 days after the filing of the transcript herein.” (Doc. Nos. 35, 35, 36).

       {¶13} On February 22, 2011, appellants filed a “supplement to objections.”

(Doc. Nos. 40, 40, 41). On February 28, 2011, Children Services filed a response

to the objections arguing that the trial court should ignore appellants’ objections

since they were untimely. (Doc. Nos. 41, 41, 42). On March 7, 2011, appellants

filed a reply to Children Services’ response. (Doc. Nos. 42, 42, 43).

       {¶14} On March 8, 2011, the trial court filed a judgment entry dismissing

appellants’ objections as untimely with respect to the magistrate’s December 1st

adjudication and overruling appellants’ objections with respect to the magistrate’s

December 14th disposition. (Doc. Nos. 43, 43, 44). The trial court adjudicated the

children dependent and ordered that the children remain under Children Services’

protective supervision for six (6) months. (Id.).

       {¶15} On March 21, 2011, appellants filed their notice of appeal. (Doc.

Nos. 45, 45, 46). Appellants now appeal raising three assignments of error for our

review.

                        ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN FINDING THE CHILDREN
       TO BE DEPENDENT UNDER R.C. 2151.04(C).




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Case Nos. 17-11-15, 17-11-16, 17-11-17



       {¶16} In their first assignment of error, appellants argue that the trial court

erred by not considering their objections to the magistrate’s December 1st

adjudication after it had granted leave to file the objections. Next, appellants

argue that the trial court committed plain error by adjudicating the children

dependent, because the conditions in the home were remedied before the filing of

the complaint.

       {¶17} Before addressing the merits of appellants’ assignment of error, we

must address Children Services’ jurisdictional argument. Children Services argues

that, under App.R. 4(B)(2) and (3), appellants were required to file their notice of

appeal within thirty (30) days after January 3, 2011, when the trial court adopted

the magistrate’s dispositional decision. We disagree.

       {¶18} Juv.R. 40(D)(4) provides, in pertinent part:

       (4) Action of court on magistrate’s decision and on any
       objections to magistrate’s decision; entry of judgment or interim
       order by court.

       (a) Action of court required. A magistrate’s decision is not
       effective unless adopted by the court.
       ***
       (e) Entry of judgment or interim order by court. A court that
       adopts, rejects, or modifies a magistrate’s decision shall also
       enter a judgment or interim order.

Juv.R. 40(D)(4)(a), (e) (emphasis added). The trial court’s January 3, 2011 order

was merely an adoption of the magistrate’s December 14, 2010 dispositional


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Case Nos. 17-11-15, 17-11-16, 17-11-17



decision as required under Juv.R. 40(D)(4)(a).        Juv.R. 40(D)(4)(e), however,

requires that the trial court “also enter a judgment.” In re K.K., 9th Dist. No.

22352, 2005-Ohio-3112, ¶6, quoting Harkai v. Scherba Industries, Inc. (2000),

136 Ohio App.3d 211, 218, 736 N.E.2d 101 (“* * * a trial court cannot merely

adopt a magistrate’s decision but must enter its own judgment that sets forth ‘the

outcome of the dispute and the remedy provided.’”). In fact, the trial court sub

judice ordered that counsel for Children Services prepare a “Judgment Entry in

conformity with [the magistrate’s Dec. 14, 2010] decision * * * for final approval

and filing.” (Doc. Nos. 31, 31, 32). As such, the trial court’s January 3, 2011 entry

was not a final appealable order triggering App.R. 4(A)’s thirty-day filing

deadline. App.R. 4(A) was not triggered until the trial court filed its judgment

entry of disposition on March 8, 2011. (Doc. Nos. 43, 43, 44). Appellants’ notice

of appeal was filed March 21, 2011, well within the App.R. 4(A)’s thirty-day

filing deadline. (Doc. Nos. 45, 45, 46). Therefore, this Court has jurisdiction.

       {¶19} With respect to the merits of appellants’ first assignment of error, we

conclude that the trial court erred when it dismissed appellants’ objections to the

magistrate’s December 1st adjudication as untimely. The record indicates that, on

January 6, 2011 and prior to the trial court entering its judgment entry of

disposition, appellants filed a “Motion for Extension of Time to File Objections to



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Case Nos. 17-11-15, 17-11-16, 17-11-17



Magistrate’s Decisions” pursuant to Civ.R. 53(D)(5).2 (Doc. No. 35). Appellants’

motion specifically requested leave to file delayed objections with respect to both

the magistrate’s December 1st adjudication and December 14th disposition. (Id.).

In support of their motion, appellants alleged that their previous trial counsel

refused to file objections despite their request requiring them to retain new trial

counsel, who subsequently filed the motion for extension of time. (Id.).

Appellants also requested that a transcript be prepared and requested leave to

supplement their objections after the transcript was filed. (Id.).

        {¶20} On January 7, 2011, the trial court filed an “Order For Transcript,”

which stated, in pertinent part:

        On January 6, 2011, [appellants], parents of the above-captioned
        children, filed their objections to the Magistrate Decision of
        December 1, 2010 and December 14, 2010. The Defendant
        further requested leave of the Court to supplement such
        objections upon the filing of a transcript of the proceedings
        herein.

        The Court finds the request of [appellants] to be well taken and
        Orders that a transcript of the proceedings be prepared at the
        [appellants’] expense. * * *

        It is further ORDERED that the Transcript of the proceedings
        must be filed by February 15, 2011.




2
 Technically, the motion should have been filed pursuant to Juv.R. 40(D)(5), but the appellants’ failure to
designate the proper rule is not fatal. Smith v. Treadwell, 11th Dist. No. 2009-L-150, 2010-Ohio-2682, ¶9,
Fn.2.

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Case Nos. 17-11-15, 17-11-16, 17-11-17



       The Court further ORDERS that [appellants] shall be granted
       leave to supplement their Objections within 14 days after the
       filing of the transcript herein.

(Doc. Nos. 35, 35, 36). Contrary to the trial court’s statements in its January 7,

2011 order, appellants did not file their initial objections until February 22, 2011,

although appellants labeled them as a “supplement to objections.” (Doc. Nos. 40,

40, 41).

       {¶21} On March 8, 2011, the trial court filed a judgment entry dismissing

appellants’ objections to the magistrate’s December 1st adjudication as untimely.

(Doc. Nos. 43, 43, 44). The trial court concluded that its January 7, 2011 order

granting appellants an extension of time to file objections to the magistrate’s

December 1st adjudication was erroneous since it had already filed its order of

adjudication on December 21, 2010, prior to appellants’ request for an extension

of time. (Id.). The trial court reasoned that appellants were required to file a

Civ.R. 60(B) motion for relief from its December 21st order of adjudication. (Id.).

With respect to the magistrate’s December 14th disposition, however, the trial

court found that the motion for extension of time was timely since it was filed

before it had entered its final order of disposition. (Id.). Consequently, the trial

court only considered appellants’ objections relative to disposition. (Id.).

       {¶22} “‘[I]n order to constitute a final appealable order in dependency

cases, a dependency finding (adjudication) must be accompanied by an order of

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Case Nos. 17-11-15, 17-11-16, 17-11-17



disposition.’” In re Miller, 3d Dist. Nos. 13-06-41, 13-06-42, 13-06-51, 13-06-52,

2007-Ohio-4238, ¶4, quoting In re Nibert, 4th Dist. No. 04CA15, 2005-Ohio-

2797, ¶16, Fn.2. See, also, In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d

1169, syllabus.   The trial court’s December 21, 2010 order of adjudication,

therefore, was not a final appealable order but an interlocutory order. In the

Matter of Hall (May 20, 1977), 6th Dist. Nos. H-76-12, H-77-3, H-77-5, H-77-6,

at *2. Contrary to the trial court’s conclusion herein, it had inherent authority to

vacate this interlocutory order, because interlocutory orders are subject to revision

before the entry of final judgment. Mulford v. Columbus and Southern Ohio Elec.,

Co. (Jan. 12, 1994), 4th Dist. No. CA-1548, at *4, citing Civ.R. 54(B); Pitts v.

Dept. of Transp. (1981), 67 Ohio St.2d 378, 379-80, 423 N.E.2d 1105, Fn.1; Davis

v. Davis (Mar. 26, 1992), 8th Dist. Nos. 60224, 60751; State v. Gandy (June 16,

1988), 8th Dist. Nos. 53884, 54010. Additionally, since the December 21, 2010

order was not a final appealable order, a Civ.R. 60(B) motion—which the trial

court stated was required—would have been inappropriate. Vanest v. Pillsbury Co.

(1997), 124 Ohio App.3d 525, 532, 706 N.E.2d 825, citing Jarret v. Dayton

Osteopathic Hosp., Inc. (1985), 20 Ohio St.3d 77, 78, 486 N.E.2d 99. See, also,

Schelick v. Theatre Effects, Inc. (1996), 111 Ohio App.3d 271, 272, 675 N.E.2d

1349. Since the trial court had not yet entered its judgment entry of disposition

(i.e. a final appealable order), appellants were permitted to file a motion for

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Case Nos. 17-11-15, 17-11-16, 17-11-17



extension of time to file objections to the magistrate’s decision pursuant to Juv.R.

40(D)(5).

        {¶23} The trial court exercised its discretion to grant appellants’ motion for

extension of time. See In re Estate of Mason, 184 Ohio App.3d 544, 2009-Ohio-

5494, 921 N.E.2d 705, ¶34 (analyzing Civ.R. 53(D)(5)’s extension of time). The

trial court’s order granting appellants’ extension of time was also an interlocutory

order subject to reconsideration. Atlas Am., Inc. v. Fano, 11th Dist. No. 2008-P-

0093, 2008-Ohio-6561. The trial court here did not reconsider the merits of the

order granting the extension of time, i.e. whether appellants had demonstrated

good cause under Juv.R. 40(D)(5); but rather, the trial court erroneously concluded

that it lacked legal authority to grant the extension of time as it had originally

done.    Therefore, it appears from the record that the trial court would have

considered appellants’ objections as to adjudication but for its erroneous legal

conclusion. Under these circumstances, it is appropriate to remand the matter for

the trial court to conduct an “independent review” (Juv.R. 40(D)(4)(d)) of the

magistrate’s December 1, 2010 adjudication and December 14, 2010 disposition.

        {¶24} Appellants’ first assignment of error is sustained for the reasons

specifically stated herein.




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Case Nos. 17-11-15, 17-11-16, 17-11-17



                      ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN MAKING A DISPOSITION
       CONTINUING STATE SUPERVISION OF THE CHILDREN.

                      ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ERRED IN FINDING THE CHILDREN
       DEPENDENT UNDER R.C. 2151.04(D).

       {¶25} In their second assignment of error, appellants argue that the trial

court inappropriately reviewed the magistrate’s decision for an abuse of discretion

when it was required to independently review the objections. Appellants further

argue that the trial court’s disposition was unwarranted since the conditions

resulting in Children Services’ involvement were remedied before the filing of the

complaint.    Appellants also argue that the trial court’s disposition was

inappropriate regardless of when the conditions resulting in Children Services’

involvement were remedied.     In their third assignment of error, appellants argue

that the trial court erred in finding the children dependent under R.C. 2151.04(D)

since the trial court erred in finding the children dependent under R.C. 2151.04(C).

       {¶26} Since we have already sustained appellants’ first assignment of error

for reasons stated herein, appellants’ remaining assignments of error are rendered

moot. Appellants’ second and third assignments of error are, therefore, overruled

as moot.



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Case Nos. 17-11-15, 17-11-16, 17-11-17



       {¶27} Having found prejudicial error in appellants’ first assignment of

error, we reverse the judgment of the trial court and remand the matter to the trial

court for its independent review (Juv.R. 40(D)(4)(d)) of the objections to the

magistrate’s December 1, 2010 adjudication and December 14, 2010 disposition.

                                                          Judgments Reversed and
                                                               Causes Remanded

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




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