[Cite as In re B.B., 2016-Ohio-7994.]


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

IN RE: B.B.                                           C.A. No.       15CA010880



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
                                                      CASE No.   14 JC 41864

                                 DECISION AND JOURNAL ENTRY

Dated: December 5, 2016



        WHITMORE, Judge.

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

Court of Common Pleas, Juvenile Division, that placed her minor child in the legal custody of

his maternal grandmother (“Grandmother”). This Court affirms.

                                                  I

        {¶2}     Mother is the natural mother of B.B., the child at issue in this case. Although the

child’s father (“Father”) did not appeal from the trial court’s judgment, he is relevant to this case

because he abused B.B’s older half-sibling, J.C., in 2005. J.C., who was five weeks old at the

time of the abuse, was admitted to the hospital with two skull fractures, two fractured vertebrae,

six frontal rib fractures, retinal hemorrhaging, and numerous deep scratches on his neck. J.C.

sustained severe and permanent neurological damage from Father’s abuse. After entering a

guilty plea, Father was convicted of felonious assault and child endangering and was sentenced

to seven years’ incarceration. J.C. was adjudicated an abused, neglected, and dependent child,
                                                 2


and was ultimately returned to the custody of his mother while Father was incarcerated and

unable to have any contact with the child.

       {¶3}    Although Father admitted that he had caused J.C. to suffer severe cognitive delays

and that the child would continue to have the mentality of an infant, he denied that he had lost his

temper and/or shaken J.C. Instead, he continued to insist that he merely had been irresponsible

while playing with J.C. and could not understand how the child suffered such extensive injuries.

Therefore, Father did not engage in mental health counseling while in prison and, although he

participated in some anger management groups, he did not focus on developing appropriate

anger management skills because he did not believe that he had a problem controlling his anger.

       {¶4}    Shortly after Father was released from prison in 2012, he became romantically

involved with Mother. Mother knew about Father’s conviction for causing serious physical harm

to J.C., but she did not believe that he posed a threat to another baby. The two decided to have a

child together and B.B. was born on November 1, 2013.

       {¶5}    Approximately 12 weeks after B.B. was born, Mother returned to work full time

and left the infant in the care of Father. Lorain County Children Services (“LCCS”) was

contacted during February and March 2014 because B.B. was hospitalized two separate times

with symptoms that suggested that he had been physically abused. The agency then became

aware of Father’s prior abuse of J.C. and that he had been B.B.’s sole caretaker while Mother

was at work. The family initially agreed to a safety plan with LCCS, which provided that Father

would move out of the home and have no contact with B.B. until LCCS was able to complete its

investigation. The parents did not abide by that agreement, however, because Father continued

to have contact with B.B.
                                                 3


       {¶6}    Consequently, on April 4, 2014, LCCS filed a complaint to allege that B.B. was a

dependent child. Although LCCS had been unable to substantiate any abuse of B.B., it was

concerned that Father had caused severe physical harm to J.C. as an infant and that both parents

minimized the significance of that abuse and/or Father’s need to address his behavior that had

caused J.C.’s injuries.

       {¶7}    Following adjudicatory and dispositional hearings held before a magistrate, and

without subsequent objections by any party, the trial court adopted the magistrate’s decision to

adjudicate B.B. a dependent child on July 11, 2014. The trial court allowed B.B. to remain in the

custody of Mother under an order of protective supervision. The trial court also prohibited

Father from residing in the home with B.B. or having any unsupervised contact with him until

further order of the court.

       {¶8}    The case plan in this case focused primarily on Father completing a psychological

evaluation, both parents completing parenting evaluations, and the parents following any

treatment recommendations that resulted from those evaluations. Although both parents engaged

in some case plan services, they continued to minimize the significance Father’s abuse of J.C.

Notably, neither parent would admit that Father had abused J.C. and/or that he had a problem

controlling his anger. Both continued to insist that Father accidentally harmed J.C. and that he

posed no threat to B.B.

       {¶9}    Throughout the next year of this case, Father continued to deny that he had lost

his temper with J.C. Moreover, he would not recognize that J.C.’s past injury had any bearing on

his current parenting ability. Father repeatedly stated that J.C.’s injuries were a “closed chapter”

in his life and that the incident was “done and over with[,]” but that LCCS would not let it go.

Father described himself as a “happy, joking person” and insisted that he had no problem
                                                4


controlling his anger. Therefore, Father did not comply with the case plan requirements that he

engage in anger management classes and counseling to address his anger and violent behavior.

       {¶10} Although Father and Mother engaged in some parenting education classes,

according to the counselor who taught them, neither parent put forth any effort to gain parenting

skills from the classes. Father also gave him several different accounts of how he had injured

J.C., none of which the counselor could believe.         The counselor emphasized that Father’s

inability to be honest with him was one of several obstacles to him making progress in their

parenting sessions.

       {¶11} Father had seriously injured J.C., entered a guilty plea to his crimes, and served

seven years in prison, yet he continued to insist that J.C.’s injuries had been an accident. Not

only had Father refused to engage in any counseling or anger management services to remedy his

abusive behavior, but he also had failed to take the first step toward remedying his problem by

admitting that he had one. LCCS was primarily concerned that neither parent believed that

Father posed a risk to B.B. For that reason, LCCS was concerned that Mother would allow

Father to have unsupervised contact with B.B. if LCCS and the juvenile court were no longer

involved with the family. In fact, both parents had told others that they wanted to live together

with B.B. as a family and get LCCS out of their lives.

       {¶12} At some point during this case, apparently for financial reasons, Mother and B.B.

moved to the home of Grandmother, who then began supervising Father’s visits with B.B.

Grandmother had always been concerned about the risk that Father posed to B.B. and had

assured LCCS that she would not leave Father alone with B.B. until he complied with the case

plan and the court approved unsupervised visits.
                                                5


       {¶13} Because Mother and Father continued to deny that Father posed a threat to B.B.,

LCCS eventually moved the trial court to place B.B. in the legal custody of Grandmother.

Mother alternatively moved to have full legal custody restored to her. Following a hearing on

the dispositional motions, the trial court granted legal custody to Grandmother. Mother appeals

and raises three assignments of error.

                                                I

                                Assignment of Error Number One

       THE TRIAL COURT’S DETERMINATION THAT B.B. WAS A DEPENDENT
       CHILD WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,
       CONSTITUTED AN ABUSE OF DISCRETION AND PLAIN ERROR, AND
       VIOLATED MOTHER’S RIGHTS TO DUE PROCESS AND EQUAL
       PROTECTION UNDER THE U.S. AND OHIO CONSTITUTIONS.

                                Assignment of Error Number Two

       THE MAGISTRATE’S DECISION OF JULY 11, 2014 WAS DEFECTIVE ON
       ITS FACE AS IT DID NOT CONTAIN LANGUAGE MANDATED BY OHIO
       CIV.R. 53(D), REQUIRING REVERSAL AND REMAND OF THIS MATTER
       TO THE TRIAL COURT, OR ALTERNATIVELY, REQUIRING AN
       EVALUATION OF THE MERITS OF MOTHER’S ASSIGNMENT OF ERROR
       I UNDER A DE NOVO STANDARD OF REVIEW, AND NOT PLAIN ERROR.

       {¶14} Mother’s first two assignments of error pertain solely to the trial court’s July 2014

judgment that adjudicated B.B. a dependent child and placed him under the protective

supervision of LCCS. This Court initially questions its jurisdiction to determine the merits of

these assignments of error because, according to App.R. 4(A), a notice of appeal must be filed

within 30 days of a final, appealable order. An untimely notice of appeal does not invoke this

Court’s jurisdiction. See Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), syllabus.

Mother did not appeal from the July 2014 judgment until after the trial court’s final disposition

of B.B. more than one year later.
                                                6


       {¶15} This Court is not persuaded by Mother’s argument that the July 2014 adjudicatory

and dispositional order did not become final and appealable until the final legal custody

disposition of the case. She apparently misinterprets this Court’s reasoning in In re D.T., 9th

Dist. Lorain No. 13CA010451, 2014-Ohio-2332, ¶ 17-21. In In re D.T., a timely appeal from the

adjudication of two of the mother’s four minor children, LCCS questioned the timeliness of

mother’s attempt to appeal a prior judgment that had adjudicated her younger two children and

allowed them to remain in the home under an order of protective supervision. See id. This Court

did not resolve the merits of the timeliness argument in In re D.T., however. Instead, the opinion

explicitly emphasized that, because LCCS did not argue why In re Murray, 52 Ohio St.3d 155

(1990), and a line of cases involving adjudication and removal of the children from the home

should be extended to a case in which the children were not removed from the home, this Court

declined to reach the merits of the finality/timeliness argument.      Id. at ¶ 21.   This Court

ultimately concluded that even if the mother’s challenge to the prior adjudication was timely, we

could not reach its merits because the mother had failed to file timely objections to the

magistrate’s decision and the record did not include a transcript of that hearing to enable a

review for plain error. Id. at ¶ 21-23.

       {¶16} In re D.T. did not hold that an adjudication of dependency and disposition of

protective supervision to the agency is not a final, appealable order. In fact, this Court has

assumed jurisdiction over similar judgments in other appeals. See, e.g., In re M.T.-B., 9th Dist.

Summit No. 26866, 2013-Ohio-4998. Even when the child is permitted to remain in the parent’s

custody under an order of protective supervision, this Court has implicitly extended the finality

reasoning of the Ohio Supreme Court in cases such as In re H.F., 120 Ohio St.3d 499, 2008-

Ohio-6810; In re Adams, 115 Ohio St. 3d 86, 2007-Ohio-4840; and In re Murray. In re H.F.
                                                 7


implicitly stressed that an adjudication of a child as abused, neglected, and/or dependent,

followed by any temporary disposition, affects the substantial rights of the parents and that the

immediate actions between the parties, as set forth in the complaint, are concluded at that point.

Id. at ¶ 13. Moreover, the adjudication is not subject to reconsideration by the trial court and, if

not final and appealable, would not be subject to appellate review if the child is ultimately

returned to the custody of one or both parents. See id. at ¶ 14-15.

       {¶17} Because the adjudication and disposition of B.B. in July 2014 was a final,

appealable order and Mother failed to timely appeal from that judgment, this Court lacks

jurisdiction to reach the merits of her challenges to it. For that reason, this Court does not reach

the merits of Mother’s first and second assignments of error.

                               Assignment of Error Number Three

       THE TRIAL COURT ERRED IN GRANTING LEGAL CUSTODY TO
       MATERNAL GRANDMOTHER AND IN DENYING MOTHER’S MOTION
       FOR LEGAL CUSTODY BECAUSE IT WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE, THE AGENCY DID NOT ENGAGE IN
       REASONABLE EFFORTS TO REUNIFY THE CHILD WITH MOTHER, AND
       THERE WAS NO EVIDENCE THAT THE CHILD’S BEST INTERESTS
       WERE SERVED BY GRANTING LEGAL CUSTODY TO MATERNAL
       GRANDMOTHER.

       {¶18} Mother’s final assignment of error is that the trial court erred in placing B.B. in

the legal custody of Grandmother rather than returning the child to her legal custody. After an

adjudication of abuse, neglect, or dependency, the juvenile court’s determination of whether to

place a child in the legal custody of a parent or a relative is based solely on the best interest of

the child. See In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330, ¶ 12. “Although there

is no specific test or set of criteria set forth in the statutory scheme, courts agree that the trial

court must base its decision [regarding legal custody] on the best interest of the child.” In re
                                                    8


N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23, citing In re Fulton, 12th Dist. Butler

No. CA2002-09-236, 2003-Ohio-5984, ¶ 11.

         {¶19} The sole focus of the legal custody hearing was on the parenting ability of each

potential custodian (Mother and Grandmother) and whether it was in the best interest of B.B. to

be permanently placed in the legal custody of either of them. See In re K.C., 9th Dist. Summit

Nos. 26992, 26993, 2014-Ohio-372, ¶ 20. Mother makes no argument on any of the best interest

factors, however, nor does she explain why placing B.B. in her legal custody rather than

Grandmother’s would be in the child’s best interest. Instead, Mother focuses her argument on

the adjudication of B.B. and whether LCCS made reasonable efforts to reunify her with her

child.

         {¶20} Despite Mother’s argument to the contrary, LCCS did not take the position that

there was nothing that Mother could do to regain custody of her child. The agency developed a

reunification case plan, which required Mother and Father to admit: that Father had abused J.C.;

that he posed a potential threat to B.B.; that he must undergo parenting classes, anger

management, and ongoing counseling to develop appropriate coping skills for dealing with his

anger; and that Father’s interaction with B.B. must be appropriately supervised until his service

providers determined that he did not pose a risk to B.B. Father and Mother refused to admit that

Father had an anger management or other behavioral problem and Father refused to undergo

counseling to address that problem. Mother planned to continue a relationship with Father and

refused to recognize that he posed a risk to B.B.

         {¶21} Rather than working on the requirements of the case plan to regain custody of

their child, Mother and Father spent the next year disputing the need for LCCS and court

involvement in their lives. The primary focus of Mother’s appeal is on the merits of the
                                                  9


adjudication and whether LCCS was reasonable in requiring Father and Mother to engage in

services to address the risk that Father posed to B.B. because of his past abuse of J.C. Neither

parent challenged the adjudication through a timely appeal to this Court, however, and this Court

lacks jurisdiction to reach the merits of the adjudicatory decision. Because Mother has raised no

argument to undermine the propriety of the trial court’s legal custody decision, her third

assignment of error is overruled.

                                            III

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

Court of Common Pleas, Juvenile Division, is affirmed.

                                                                              Judgment affirmed.




       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.
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      Costs taxed to Appellant.




                                             BETH WHITMORE
                                             FOR THE COURT



MOORE, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

KATHLEEN M. AMERKHANIAN, Attorney at Law, for Appellant.

CARA M. FINNEGAN, Attorney at Law, for Appellee.

AURELIE HIGGINS, Guardian ad Litem.
