[Cite as In re N.F., 2018-Ohio-4907.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


In re N.F.                                        Court of Appeals No. S-18-007

                                                  Trial Court No. 21730218



                                                  DECISION AND JUDGMENT

                                                  Decided: December 7, 2018

                                           *****

        Matthew A. Craig, for appellant.

        Dean E. Ross, for appellee.

                                           *****

        JENSEN, J.

                                        I. Introduction

        {¶ 1} This is an appeal from the judgment of the Sandusky County Court of

Common Pleas, Juvenile Division, granting temporary custody of N.F. to her maternal

grandmother and placing her under the protective supervision of appellee, the Sandusky

County Department of Job and Family Services (“JFS”).
                         A. Facts and Procedural Background

       {¶ 2} On September 21, 2017, JFS filed a complaint with the juvenile court,

alleging that N.F., who was seven years old at the time, was a neglected and dependent

child.1 Appellant, C.F., is N.F.’s father. The complaint went on to state the facts upon

which JFS’s allegations of dependency and neglect were based. These facts are not in

dispute.

       {¶ 3} On July 24, 2017, JFS opened an investigation into allegations that illicit

drugs were accessible to N.F. The following day, JFS spoke to N.F.’s mother, L.M., on

the telephone. L.M. was N.F.’s custodial parent at the time. JFS followed up the phone

call with a home visit two days later. During the home visit, L.M. acknowledged that

there was marijuana in her eight-month-old son’s pack and play. L.M. admitted that she

used marijuana, but denied any other substance abuse. At the time of the home visit,

L.M. refused to submit to a drug screening.

       {¶ 4} As the investigation continued, JFS was informed that N.F. was present

during a domestic violence incident in which appellant “burned his girlfriend with a blow

torch over a meth pipe.” Further, JFS received a report that L.M. was snorting Xanax.

       {¶ 5} On August 31, 2017, JFS met with L.M. to discuss placement options for the

children due to substance abuse concerns and L.M.’s lack of cooperation. L.M.

suggested that N.F. be placed with the maternal grandmother, G.J., and signed a safety


1
 The complaint also addresses N.F.’s younger siblings, V.M. and E.M., whose custody is
not at issue in this appeal.




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plan to that effect. Three weeks later, JFS filed the aforementioned complaint, seeking

protective supervision of N.F. and a grant of temporary custody to G.J.

       {¶ 6} On October 10, 2017, appellant appeared before a magistrate for an initial

hearing on JFS’s complaint. At the hearing, the magistrate ordered that N.F. be placed

under the protective supervision of JFS and in G.J.’s temporary custody. Appellant

consented to this order. The magistrate then set the matter for an adjudicatory hearing.

       {¶ 7} Nine days after the initial hearing, JFS filed its case plan with the juvenile

court. The case plan indicated that appellant had a history of substance abuse and

domestic violence. Therefore, under the terms of the case plan, appellant was required to

be “drug and alcohol free 100% of the time” and “have no further law enforcement

involvement.” Appellant was directed to provide negative drug screens, and was

informed that “[a]ll no shows/dilutes will be considered positive screens.”

       {¶ 8} On November 17, 2017, the court conducted an adjudicatory hearing, at

which appellant consented to a finding that N.F. was dependent. The court found N.F. to

be dependent, and concluded that JFS had made reasonable efforts to prevent N.F.’s

removal from L.M.’s home. The court ordered that N.F. remain in G.J.’s interim

temporary custody and JFS’s interim protective supervision pending a dispositional

hearing on the matter.

       {¶ 9} The dispositional hearing was held on December 15, 2017. Once again,

appellant consented to the court’s placement of N.F. into the temporary custody of G.J.

However, appellant objected to the terms of his case plan. Specifically, appellant




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objected to the requirement that he not consume alcohol and have no further involvement

with law enforcement. Appellant also objected to JFS treating diluted drug screens and

failure to provide drug screens as positive screens.

       {¶ 10} In her decision following the dispositional hearing, the magistrate found

that retaining these case plan requirements was in N.F.’s best interest, and overruled

appellant’s objections. As to the prohibition on alcohol use, the magistrate found that the

restriction was supported by appellant’s history of substance abuse, which included

methamphetamine, cocaine, heroin, opioids, and marijuana. Although alcohol abuse was

not part of appellant’s documented substance abuse history, the magistrate found that JFS

was legitimately concerned that appellant would use alcohol as a substitute for illicit

substances, which would not be in N.F.’s best interest.

       {¶ 11} The court went on to find that the case plan provision prohibiting any

further law enforcement involvement was appropriate in light of appellant’s criminal

history and alleged temper issues.

       {¶ 12} Finally, the court concluded that JFS was justified in presuming positive

screenings where appellant diluted his drug screening or failed to submit a drug screen.

The court found that this presumption was customary and necessary to deter drug screen

tampering. In addition, the court found that JFS’s presumption did not prevent appellant

from challenging the accuracy of a test or providing a legitimate excuse for failing to

submit a drug screen.




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       {¶ 13} On January 5, 2018, appellant filed his objections to the magistrate’s

decision, in which he took issue with the magistrate’s findings concerning the case plan

requirements that he remain alcohol-free, have no involvement with law enforcement,

and suffer a positive drug screen determination in the event he dilutes his specimen or

fails to appear for a drug screen. Upon consideration of appellant’s objections, the trial

court determined that the magistrate properly found that the challenged case plan

requirements were in N.F.’s best interest. Consequently, the trial court denied appellant’s

objections to the magistrate’s decision, thereby upholding the magistrate’s decision. The

trial court did not enter a separate judgment entry addressing N.F.’s dependency and

temporary custody at this time.

       {¶ 14} Thereafter, appellant filed a timely notice of appeal. On April 5, 2018, we

remanded the appeal to the trial court for the preparation of a judgment entry that

complied with Juv.R. 40 by finding that N.F. was a dependent child and awarding

temporary custody of N.F. to G.J. The trial court entered a compliant judgment entry two

months later, at which point we reinstated the appeal.

                                  B. Assignments of Error

       {¶ 15} On appeal, appellant asserts the following errors for our review:

              I. The trial court abused its discretion by adopting case plan

       provisions/requirements not supported by the evidence presented at the

       dispositional hearing.




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              II. The trial court abused its discretion and unduly impinged upon

       appellant’s liberty by prohibiting appellant from consuming alcohol without

       any evidence to justify the prohibition.

              III. The trial court abused its discretion in explicitly prohibiting

       father from law enforcement involvement because said prohibition is

       overbroad.

                                        II. Analysis

       {¶ 16} In appellant’s assignments of error, he argues that the trial court erred in

denying his objections to the aforementioned provisions of his case plan. Prior to

addressing the merits of appellant’s argument, we must determine whether this issue is

appropriately before us.

       {¶ 17} According to the state, the arguments raised by appellant are not subject to

our review because the trial court’s journalization of the case plan is not a final and

appealable order. The state contends that the terms of appellant’s case plan, being subject

to change at any time upon the filing of a timely request by appellant under R.C.

2151.412(F)(2)(a), are not within the purview of this court’s appellate jurisdiction.

Appellant responds by noting that orders that adjudicate a child dependent and award

temporary custody of the child have been held to be final, appealable orders. See In re

Murray, 52 Ohio St.3d 155, 161, 556 N.E.2d 1169 (1990) (holding that “an adjudication

that a child is neglected or dependent, followed by a disposition awarding temporary

custody to a public children services agency pursuant to R.C. 2151.353(A)(2) constitutes




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a ‘final order’ for purposes of R.C. 2505.02 and is appealable to the court of appeals

pursuant to R.C. 2501.02”).

       {¶ 18} In In re B.M., 9th Dist. Wayne Nos. 12CA0009, 12CA0010, 12CA0011,

and 12CA0012, 2012-Ohio-4093, the Ninth District examined whether it had jurisdiction

to review the juvenile court’s order directing the children’s mother to obtain a

psychological evaluation, which was part of the court’s decision that found the children

to be dependent and placed the children in the temporary custody of the Wayne County

Children Services Board. After recognizing that the juvenile court’s order was generally

final and appealable under Murray, supra, with regard to issues pertaining to the finding

of dependency and the award of temporary custody, the court found that “other orders

that do not pertain to those final aspects are not [final and appealable], as they have not

yet determined the action or affected the substantial rights of the parties.” Id. at ¶ 23,

citing Smith v. Williams, 10th Dist. Franklin No. 09AP-732, 2010-Ohio-1381. The court

found that it lacked jurisdiction over the issue raised by mother, pertaining to the case

plan requirement that she obtain a psychological evaluation, because the imposition of

that case plan requirement did not affect mother’s substantial rights or determine the

action. Id. at ¶ 24.

       {¶ 19} Four years after B.M. was decided, the Ninth District once again visited the

issue before us in In re Z.R., 9th Dist. Summit No. 26860, 2016-Ohio-1331. There, the

court found that it lacked jurisdiction to review mother’s argument that the trial court

erred by refusing to discharge a guardian ad litem in its order adjudicating Z.R. a




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dependent child and placing her in the temporary custody of the Summit County Children

Services Board. Id. at ¶ 18. In so finding, the court noted that the juvenile court’s denial

of a motion to remove a guardian ad litem does not affect a party’s substantial right

because the court retains the authority to change its order and that order may be appealed

after final judgment. Id. Notably, the court determined that mother did not argue that the

juvenile court’s failure to remove the guardian ad litem affected the adjudication and

disposition of Z.R. Id. at ¶ 17.

       {¶ 20} As was true in the foregoing cases, the arguments raised in appellant’s

assignments of error concern the juvenile court’s adoption of certain case plan

requirements, which may be modified at any time prior to a final judgment under R.C.

2151.412(F)(2)(a). These case plan requirements had no impact on the trial court’s

dependency finding or its award of temporary custody, as these judgments were entered

into with appellant’s consent. Thus, we find that we lack jurisdiction to review the

juvenile court’s journalization of the challenged case plan requirements, and we do not

reach the merits of appellant’s arguments.

                                     III. Conclusion

       {¶ 21} Having concluded that we lack jurisdiction over the issues raised by

appellant in his assignments of error, we hereby dismiss the appeal. Appellant is ordered

to pay the costs of this appeal pursuant to App.R. 24.


                                                                          Appeal dismissed.




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                                                                      In re N.F.
                                                                      C.A. No. S-18-007




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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