[Cite as In re D.H., 2014-Ohio-1496.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



IN THE MATTER OF:                           :       JUDGES:
                                            :       Hon. William B. Hoffman, P.J.
D.H.                                        :       Hon. Sheila G. Farmer, J.
                                            :       Hon. Craig R. Baldwin, J.
A DEPENDENT CHILD                           :
                                            :
                                            :       Case No. 13-CA-92
                                            :
                                            :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Juvenile Division, Case No.
                                                    F2011-0424


JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   April 8, 2014




APPEARANCES:

For Appellant                                       For Appellee Job & Family Services

JOHN D. WEAVER                                      JENNA E. JOSEPH
542 South Drexel Avenue                             20 South Second Street, 4th Floor
Bexley, OH 43209                                    Newark, OH 43055

For Mother                                          Guardian ad Litem

SCOTT M. SIDNER                                     MALLORY N. LAND
112 International Drive                             3 North Third Street
Pataskala, OH 43062                                 Newark, OH 43055
Licking County, Case No. 13-CA-92                                                        2

Farmer, J.

       {¶1}   On July 22, 2011, appellee, Licking County Job and Family Services, filed

a complaint for the temporary custody of D.H. born April 11, 2000, alleging the child to

be dependent. Mother of the children is Jennifer Alkire; father is appellant, Richard

Hunley.

       {¶2}   An adjudicatory/dispositional hearing before a magistrate was held on

September 16, 2011. By judgment entry filed same date, the trial court approved and

adopted the magistrate's decision finding the child to be dependent and awarding

temporary custody of the child to appellee.

       {¶3}   On December 31, 2012, appellee filed a motion for permanent custody.

On March 11, 2013, appellant filed a motion for legal custody of the child to be placed

with the maternal aunt, Vicki Faller. Hearings before a magistrate were held on March

13, and July 17, 2013.      By judgment entry filed September 4, 2013, the trial court

approved and adopted the magistrate's decision filed same date, denying appellant's

motion and granting permanent custody of the child to appellee.

       {¶4}   On September 18, 2013, appellant filed objections and also a motion for

the preparation of the transcript. By judgment entry filed October 3, 2013, the trial court

denied the objections, and awarded permanent custody of the child to appellee. By

order filed same date, the trial court granted appellant's request for the preparation of

the transcript, only if and when he filed a notice of appeal.

       {¶5}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
Licking County, Case No. 13-CA-92                                                             3


                                                I

       {¶6}    "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING

APPELLANT A TRANSCRIPT FOR THE PURPOSE OF OBJECTING TO THE

MAGISTRATE'S DECISION IN VIOLATION OF JUV.R. 40(D)(3)(b)(iii)."

                                               II

       {¶7}    "THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ALLOWING

APPELLANT 30 DAYS TO FILE A TRANSCRIPT WITH THE COURT PURSUANT TO

JUV.R.40(D)(3)(b)(iii)."

                                               III

       {¶8}    "THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

APPELLANT'S MOTION FOR LEGAL CUSTODY FOR LACK OF STANDING."

                                              IV

       {¶9}    "THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PREJUDICIAL ERROR BY DENYING APPELLANT'S OBJECTIONS TO THE

MAGISTRATE'S DECISION FOR LACKING THE SPECIFICITY REQUIRED BY JUV.R.

40(D)(3)(b)(ii)."

                                              I, II

       {¶10} Appellant claims the trial court erred in denying him the transcripts of the

magistrate's hearings and not giving him thirty days to file the transcripts in order to

further pursue his objections under Juv.R. 40(D)(3)(b)(iii). We agree.

       {¶11} Juv.R.     40(D)(3)(b)      governs      objections   to   magistrate's   decision.

Subsection (iii) states the following:
Licking County, Case No. 13-CA-92                                                            4


                 An objection to a factual finding, whether or not specifically

          designated as a finding of fact under Juv.R. 40(D)(3)(a)(ii), shall be

          supported by a transcript of all the evidence submitted to the magistrate

          relevant to that finding or an affidavit of that evidence if a transcript is not

          available.   With leave of court, alternative technology or manner of

          reviewing the relevant evidence may be considered. The objecting party

          shall file the transcript or affidavit with the court within thirty days after

          filing objections unless the court extends the time in writing for preparation

          of the transcript or other good cause. If a party files timely objections prior

          to the date on which a transcript is prepared, the party may seek leave of

          court to supplement the objections.



          {¶12} On September 18, 2013, appellant timely filed written objections to the

magistrate's decision. Appellant claimed Findings of Fact Nos. 2 and 12 were against

the manifest weight of the evidence and Conclusions of Law Nos. 1 and 2 were not

supported by clear and convincing evidence. Appellant also stated: "Pursuant to Juv.R.

40(D)(3)(b)(iii), because this objection pertains to the factual findings of the Magistrate,

and because these objections are filed prior to the preparation of a transcript, Mr.

Hunley respectfully reserves the right to supplement these objections with leave of the

court."

          {¶13} The specific findings of fact objected to were as follows:
Licking County, Case No. 13-CA-92                                                        5


             2. Since that time, progress on the case has been minimal, if at all.

      To start with, Richard Hunley remains in prison. He was convicted of

      multiple felony charges. At this time, his sentence will not expire until

      December of 2014.       As Ms. Weber testified, just being released from

      prison will not put Mr. Hunley in a position where he could immediately

      assume the role of full-time parent. To his credit, Mr. Hunley recognizes

      he will not be in a position to parent in the foreseeable future, which is

      likely why he has asked that legal custody be granted to Vicki Faller.

             12. Both Richard Hunley and Dewey Alkire have filed motions

      asking that [D.], [C.], and [K.] be placed in the legal custody of Vicki Faller.

      Statements of Understanding signed by Ms. Faller were presented to the

      undersigned. Ms. Faller herself did not testify, though it was related to the

      undersigned that she was in the hallway for the hearing on both dates.

      The only testimony presented with respect to Ms. Faller was that of Ms.

      Weber.    Ms. Weber testified that Ms. Faller had been ruled out as a

      placement option. There was no completed home study for Ms. Faller, as

      she was evicted before the requested home study could be completed.

      Ms. Faller's health is also a concern for the undersigned, in that Ms.

      Weber testified that Ms. Faller told her she had suffered several mini-

      strokes and seizures.



      {¶14} The specific conclusions of law objected to were as follows:
Licking County, Case No. 13-CA-92                                                     6


            1. With respect to the motions asking that legal custody of [D.], [C.],

      and [K.] be granted to Vicki Faller, the undersigned recommends that

      those motions be denied.      While both Mr. Hunley and Mr. Alkire did

      provide a Statement of Understanding signed by Ms. Faller, there was

      very little evidence presented with respect to Ms. Faller and the idea of

      legal custody. Ms. Weber testified to there being concerns about Ms.

      Faller's housing stability and her health.       There was no evidence

      presented which showed that these concerns were unfounded. In fact,

      other than some questioning of Ms. Weber about Ms. Faller and the

      concerns Children Services has about placing the children with Ms. Faller,

      no other evidence was offered on the issue of legal custody. It would

      have been highly helpful for the undersigned to hear about the relationship

      Ms. Faller has with the children, her ability to meet the children's needs,

      and even some testimony which indicated that Ms. Weber's concerns

      were not warranted. Bottom line is that there was no evidence presented

      to demonstrate why a grant of legal custody is in the children's best

      interests. As such, the motions asking that legal custody of the children

      be granted to Vicki Faller should be denied.

            2. With respect to the motion of Glenn Hunley asking that he be

      granted custody of [K.] and [D.], the undersigned has great concerns

      about this.   Over the course of the case, Mr. Hunley's home was the

      subject of a sexual abuse investigation regarding his step-son and these

      two girls. For almost a year after the girls were moved as a result of these
Licking County, Case No. 13-CA-92                                                        7


       allegations, Mr. Hunley did nothing with respect to the case. He didn't

       meet with the social workers. He didn't participate in services. He didn't

       see his own daughter. His explanation for why he did this was that he was

       angry with Children Services. How can the undersigned find that this man

       is committed to the future of these children when he let his anger toward a

       third party cause him to essentially abandon his daughter?                The

       undersigned simply cannot begin to comprehend how a father can get

       angry at Children Services and then choose as a result of that anger to

       walk away from his child. On top of this, even when Mr. Hunley was at his

       most involved with the case, his attendance at visits was sporadic. His

       participation in substance abuse treatment was poor, combined with

       ongoing positive drug screens.       As with the other motions for legal

       custody, there was simply not enough evidence presented to prove to the

       undersigned that this option is in the best interests of either of these girls.

       As such, this motion should also be denied.



       {¶15} Also on September 18, 2013, appellant filed a motion for the preparation

of the transcripts of the magistrate's hearings, as he was indigent.         By order filed

October 3, 2013, the trial court ruled as follows:



              The Court hereby conditionally orders that transcripts from hearings

       in the above-captioned matter, held on March 13, 2013 and July 17, 2013,

       before Magistrate Strefelt, be prepared at public expense, for purposes of
Licking County, Case No. 13-CA-92                                                        8


       Richard Hunley, father of [D.], perfecting an appeal to the Licking County

       Court of Appeals, Fifth Appellate District. HOWEVER, NO TRANSCRIPT

       WILL BE PREPARED UNLESS OR UNTIL THE FATHER, RICHARD

       HUNLEY, FILES A WRITTEN NOTICE OF APPEAL WITH THIS COURT.



       {¶16} It is appellee's position that there was no need for the transcripts because

appellant lacked standing to object to Finding of Fact No. 2 and Conclusion of Law No.

1, and appellant was going to be in prison for at least another year. Therefore, appellee

argues it was harmless error not to give appellant the transcripts, and the trial court

could have used alternative technology to review the record pursuant to Juv.R.

40(D)(3)(b)(iii).

       {¶17} The tremendous trifle appellee fails to grasp is that after a two day hearing

and transcripts (now filed) totaling 352 pages, appellant had requested the right to

supplement his objections and arguments. All of these remedies are provided for in

Juv.R. 40.

       {¶18} Although it is appellee's position that judicial expediency has been met

and a just result has occurred, we are unable to balance such an argument against the

clear latitude offered objections under Juv.R. 40 to supplement objections after

preparation of a transcript.

       {¶19} Upon review, we find the trial court erred in denying appellant the

transcripts to amend or supplement his objections pursuant to Juv.R. 40(D)(3)(b)(iii).

       {¶20} Assignments of Error I and II are granted.
Licking County, Case No. 13-CA-92                                                       9


                                          III, IV

       {¶21} Appellant claims the trial court erred in denying his motion requesting legal

custody of the child to Vicki Faller for lack of standing and denying his objections for

lack of specificity.

       {¶22} Because the matter is reversed and remanded for appellant to review the

filed transcripts and amend or supplement his objections, we find these assignments to

be premature.

       {¶23} Assignments of Error III and IV are denied.

       {¶24} The judgment of the Court of Common Pleas of Licking County, Ohio,

Juvenile Division is hereby reversed, and the matter is remanded to said court for

further proceedings consistent with this opinion.

By Farmer, J.

Hoffman, P.J. and

Baldwin, J. concur.



SGF/sg 321
