[Cite as In re McColloch, 2003-Ohio-5739.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO IN RE: : C.A. CASE NOS. 02CA39,40
DAKOTA, KAYN, & KARLEANA : MC COLLOCH :
(Civil Appeal from Common Pleas Court) : ......... OPINION
Rendered on the 24th day of October, 2003. ......... William F. Schenck, Pros. Attorney; Robert K. Hendrix, Asst. Pros. Attorney, 61 Greene Street, Xenia, Ohio 45385, Atty. Reg. No. 0037351 Attorney for Plaintiff-Appellee Peter N. Griggs, 26 N. Wright Avenue, Fairborn, Ohio 45324, Atty. Reg. No. 0073819 Pamela L. Pinchot, 7501 Paragon Road, Lower Level, Dayton, Ohio 45459, Atty. Reg. No. 0071648 Attorneys for Defendants-Appellants ......... GRADY, J. {¶1} This matter is before the court on separate notices of
appeal filed by Carl and Frances McColloch from an order of the Juvenile Court awarding permanent custody of their three minor children, McColloch, (“CSB”). Dakota to the McColloch, Greene Kayn McColloch Children’s and Karleana Board
County
Services
Frances McColloch is the mother of all three children.
2 Carl McColloch is the father of Kayn and Karleana (the twins), but not Dakota. Frances and Carl McColloch are half-siblings, The court’s permanent custody order
sharing the same father.
was entered on March 12, 2002, pursuant to R.C. 2151.414(B), on a motion filed by CSB on May 30, 2000, pursuant to R.C.
2151.413. {¶2} This proceeding has an unusual history. Counsel were
appointed to represent each parent after CSB filed its motion for permanent custody. Those counsel represented the parents in
proceedings before a magistrate, who filed a decision on August 20, 2001. The court adopted the magistrate’s decision as its
own order on that same date, pursuant to Juv.R. 41(E)(4)(c). Counsel were apparently allowed to withdraw, and each parent then filed a general form of objection, pro se, arguing that their attorneys should not have been permitted to withdraw. counsel were then appointed. {¶3} The parents’ new counsel filed no additional written The matter eventually came before the court for New
objections.
hearing on February 12, 2002, on the pro se motions the parents had filed. Counsel for Carl McColloch advised the court that
he’d not had sufficient time to review the transcript to file written objections. The court advised him and counsel for
Frances McColloch that they could proceed orally, and they did. {¶4} On February 14, 2002 following the hearing, the court
recommitted
the
matter
to
the
magistrate
pursuant
to
3 Juv.R.
41(E)(4)(b), with directions to “issue a supplemental decision addressing the issue of adjudication.” The magistrate’s prior
decision had apparently not expressly granted custody to CSB. {¶5} February Juv.R. The magistrate filed a supplemental decision on
20, 2002.
The court adopted the decision pursuant to The record 20, does 2002 not reflect that any
41(E)(4)(c). to the
objections However,
February the
decision its
were own,
filed. separate
and
thereafter,
court
filed
judgment on March 12, 2002, granting custody to CSB. {¶6} The magistrate’s two decisions each contain findings.
The first decision, which the court adopted on August 20, 2001, but which the court subsequently rejected, in part, for lack of an adjudicative order, states: “FINDINGS OF FACT” {¶7} “Greene County Children Services Board has maintained On February 1, children, physical were abuse,
an open case since 1998 on the McColloch family. 1999, removed Dakota, from Kayn their and Karleana, the minor to
parents’
custody
due
neglect and dependency.
The children were returned on July 16, The children were placed in the
1999 and August 12, 1999.
custody of their maternal grandmother on February 28, 2000 and subsequently placed in foster care on March 17, 2000.
{¶8}
4 “When the children were returned to Frances in 1999,
services were put in place to assist with preserving the family unit. In spite of the services, the family household
deteriorated, the mental stability of Frances deteriorated to the point, as she testified, that she was not cognizant that she was stealing or being charged with a criminal offense. Both
Carl and Frances were on probation in Xenia Municipal Court, both have had a history with drugs, Carl was treated at the Christopher House and Frances has a history of mental illness, as she testified, she has tried to commit suicide at least three times prior to 1995. {¶9} “The testimony presented demonstrates that Frances is
able to care for the children for short periods of time, but is quickly overwhelmed and even more so when Carl is factored into the equation. {¶10} “The reports to the Guardian court ad litems and Dr. it Kelliher was in submitted the best
recommending
that
interest of the children to grant permanent custody to Greene County Children Services Board.” {¶11} The case was magistrate’s to second the decision, entered an after the
recommitted
magistrate
for
adjudicative
order, states: {¶12} “The Court found that the children lacked proper
5 parental care because of the faults or habits of the parents and their condition or environment was such that it warranted this state, in the interests of the children in assuming
guardianship. {¶13} “The Court heard testimony that both parents at times between February and May, 2000, were incarcerated. In February,
2000, the home was unsanitary, contained a strong odor, dirty, stale food, and the children were inadequately clothed.” {¶14} The trial court’s written judgment of March 12, 2002, reviewed the course of the proceedings, and then stated the
following: {¶15} “When the complaint seeking custody was filed . . . the agency had been providing services to the family for
approximately eighteen months.
Some of the same concerns, such
as mental stability and safety of the children, persisted, but new issues also surfaced. Frances was involved in drug
trafficking and petty theft.
Carl was having difficulties with
the law as well, spending periods of time incarcerated and in residential treatment programs. While there is evidence, even
from some of CSB’s witnesses, which indicates that Frances can be a good parent, there is also ample evidence which supports the Magistrate’s finding that Frances is not able to maintain proper care of the children, especially when Carl is in the picture. There was conflicting testimony as to whether Frances
6 was hiding Carl’s presence in the home from CSB, but it is the function of the trier of fact believe. {¶16} “Each parent was assessed by Dr. Kelliher to determine the likelihood that the children could be returned to either one within a reasonable time. Dr. Kelliher had previously evaluated to determine which testimony to
the parents, in connection with the initial Complaint filed by CSB. It was Dr. Kelliher’s opinion that the children should be
placed into the permanent custody of CSB. {¶17} “The Magistrate applied the appropriate statutory There is
criteria in ruling on the issue of permanent custody.
sufficient evidence in the record to support the Findings of Fact made by the Magistrate. * {¶18} “The Objections are * * overruled. The Magistrate’s
Decision is approved as submitted.” {¶19} Carl appeal by and Frances set of McColloch, appointed who are represented separately on and
another
counsel,
timely appealed to this court.
They each presented the same two
assignments of error: that the trial court abused its discretion in awarding permanent custody of these children to CSB because that agency did not prove by clear and convincing evidence: (1) that permanent placement with CSB was in the children’s best
7 interest, and (2) that the children could not be placed with either parent within a reasonable time, or should not be placed with their parents. {¶20} We concluded that on the record before us, we could not determine the assigned errors because the trial court’s
findings of fact and conclusions of law were not sufficient or in proper form. further findings. We remanded this matter to the trial court for In re: Dakota McColloch, Kayn McColloch and
Karleana McColloch (December 20, 2002), Greene App. Nos. 02CA39, and 02CA40. On January 7, 2003, the Juvenile Court filed its
findings of fact and conclusions of law pursuant to our remand order. This matter is now before this court for decision on the
merits of the assigned errors. CARL MCCOLLOCH’S FIRST ASSIGNMENT OF ERROR {¶21} “THE APPELLANT IN TRIAL COURT HIS ERRED TO THE TO PREJUDICE THE OF THE
OVERRULING
OBJECTIONS
MAGISTRATE’S
DECISION WHEN IT FOUND THERE WAS CLEAR AND CONVINCING EVIDENCE THAT THE MINOR CHILDREN COULD NOT BE PLACED WITH APPELLANT
WITHIN A REASONABLE TIME OR AT ALL.” FRANCES MCCOLLOCH’S SECOND ASSIGNMENT OF ERROR {¶22} “THE TRIAL COURT ERRED IN ITS DECISION GRANTING
PERMANENT CUSTODY OF THE CHILDREN NAMED HEREIN TO THE GREENE COUNTY CHILDREN SERVICES BOARD BECAUSE IT FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILDREN HEREIN COULD NOT
8 BE PLACED WITH THEIR MOTHER WITHIN A REASONABLE TIME OR SHOULD NOT BE PLACED WITH HER.” {¶23} In these assignments of error, both parents argue that the record does not contain clear and convincing evidence to support the court’s finding that these children cannot be placed with either parent within a reasonable time, or should not be placed with their parents. {¶24} In child custody cases, the focus of any decision must be on what is in the child's best interests. (1993), 86 Ohio App.3d 531, 539. deLevie v. deLevie
The trial court's discretion
should be given "the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. gains through observing the The knowledge a trial court and the parties in a
witnesses
custody proceeding cannot be conveyed to a reviewing court by a printed record. In this regard, the reviewing court in such
proceedings should be guided by the presumption that the trial court's findings were indeed correct." Miller v. Miller (1988),
37 Ohio St.3d 71, 74 (citations omitted). {¶25} Although the trial court's discretion in a custody
case is broad, it is not absolute.
In the Matter of Calvin and A trial
Tonya Beal (October 5, 1992), Clark App. No. 2903.
court's decision in a custody case is "subject to reversal upon a showing of an abuse of discretion." Miller, supra at 74.
9 'The term "abuse of discretion' connotes more than an error of law or judgment; it implies or that the court's attitude Blakemore is v.
unreasonable,
arbitrary,
unconscionable."
Blakemore (1983), 5 Ohio St.3d 217, 219. {¶26} R.C. 2151.414(B)(2) governs the termination of
parental rights in a natural child when the child is neither abandoned nor orphaned. It provides that a court may grant
custody of a child to a movant if the court determines, by clear and convincing evidence, that (1) "the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents"; and (2) "it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody." R.C. 2151.414(B)(1). Evidence is clear and convincing
if it produces in the mind of the trier of fact "a firm belief or conviction as to the facts sought to be established." v. Ledford (1954), 161 Ohio St. 469, paragraph Cross of
three
syllabus. {¶27} R.C. 2151.414(E) provides a list of sixteen factors which a court must use to determine whether a child can be placed with his natural parents within a reasonable time, if ever. If the court determines that one or more of these factors
exist as to each of the child's parents, the court must find that either the child cannot be placed with his parents within a
10 reasonable time or that the child should never be placed with either parent. Once the trial court finds from all relevant
evidence that one or more of these factors exist, it then must consider whether permanent commitment is in the best interest of the child. In re William S., 75 Ohio St .3d 95, 1996-Ohio-182.
{¶28} In determining that these children cannot be placed with either parent within a reasonable time, or should not be placed with their parents, the trial court made the following further findings: {¶29} “1. adjudicated an On February child, 1, 1999, Kayn McColloch was
abused
arising
from
physical
injuries
(skull fracture and intra-cranial bleeding) inflicted by Carl McColloch. See 11/12/98 complaint and 2/3/99 Judgment). When Carl is in the household, the environment (4/16/01 Transcript, Page 103,
{¶30} “2.
for the children deteriorates. Lines 10-16). {¶31} “3. children. residence
Carl lacks any concern for the well-being of the
At the home visit on February 28, 2000, when the was in disarray and Frances in distress (3/2/01
Transcript, Page 164, Lines 1-5), Carl simply left the house, neither attending to Frances’ nor the children’s needs.
(3/2/01, Transcript, Page 166, Lines 7-21) {¶32} “4. The potential harm to the children, posed by
risking
a
return
of
custody
to
Frances,
only
to
11 have that
placement disrupted again, is too great. on two separate occasions by Dr.
Frances was assessed Kelliher, licensed
psychologist.
In his second evaluation, his 11/28/00 report
contains the following assessment: {¶33} “If she followed through on recommended treatments and interventions (e.g., medications, therapy, and hands-on parent education) and fully separated herself from Carl, it may be that she would remain stable and be able to care for her children. Given the past record, however, there seems to be too great a likelihood that one or these assumptions would not hold. She
might succumb to pressures from Carl, she might stop taking her medications or discontinue therapy (if it were resumed), or the stress of caring for three small children might trigger a
relapse even with medications and therapy.
The risk of a third
crisis and removal is, in my opinion, too great, and I do not believe the children They need should be exposed to risk and of such best
disruption.
permanent
caretakers,
their
chance of such permanence appears to be through persons other than their parents. This course is all the more difficult to
embrace because Frances does appear to be able to take good, appropriate care of her children for short spans of time, but she does not appear likely to be able to maintain such care in the long term’ (11/28/00 Report, Plaintiff’s Exhibit 3, Page
12 17, First Paragraph) {¶34} “5. parent, The children should not be placed with either despite nearly eighteen services, secure months the of agency are the
because and
intervention unable to
community-based a safe and
parents for
maintain
environment
children.” {¶35} The trial court’s findings implicate one or more of the statutory factors set out in R.C. 2151.414(E) as to each parent. competent, Additionally, credible those in findings the are supported In re by
evidence
record.
Clever
(October 18, 2002), Montgomery App. No. 19298, 19299, 2002-Ohio5588. {¶36} As to Carl McColloch, on or about February 3, 1999, Kayn McColloch was adjudicated an abused child and removed from the home as a result of serious head injuries she suffered when struck by a toy Carl threw at her in a fit of rage. 2151.414(E)(3). incarcerated including or R.C.
Carl has also spent several periods of time in residential during which drug treatment facilities, custody
periods
these
permanent
proceedings were pending. obviously not available In
During those periods of time Carl was to care for the is children. that R.C. Carl
2151.414(E)(13).
addition,
there
evidence
suffers from mental illness and substance abuse problems, that he has in the past mistreated Dakota McColloch and now Dakota
13 mistreats the twins, Kayn and Karleana McColloch, and that on at least one occasion when Frances McColloch was experiencing a severe mental and emotional breakdown and the children needed immediate care, Carl simply left the home. R.C.
2151.414(E)(16). {¶37} With demonstrates various respect to Frances the fact to McColloch, CSB has the been evidence providing for over
that
despite based
community
services
this
family
eighteen months in an effort to remedy the problems that caused the children’s removal remedy from the home, Frances R.C. has failed to
substantially
those
conditions.
2151.414(E)(1).
Some of the initial concerns such as Frances’ mental illness and instability, and her inability to cope at times with the stress of caring for her three children persist. In addition, other
problems have arisen including Frances’ criminal behavior, which includes the sale of drugs from her home when her children were present, and her failure to attend court ordered budgeting
classes, and her admission to her mother that she had allowed Carl to stay with her and that she hid him from her caseworkers in violation of the court’s order. {¶38} While substantial children, periods there to is evidence her that ability a good Frances to care has for made her
efforts is
improve of
and of
capable if she
being
parent with
for of
short her
time
follows
through
all
14 recommended treatments and case plan interventions, especially when Carl is not around, there is also competent credible expert testimony from Dr. Kelliher that it is unlikely that Frances will be able to sustain appropriate care of her children long term. In other words, the improvements Frances has made in
being able to care for her children are most likely temporary, and she is at and high risk for The a relapse, notwithstanding the
medications
therapy.
testimony
demonstrates
children’s need for a legally secure permanent home which can only be achieved via a grant of permanent custody to CSB. {¶39} Additionally, there is evidence that at various times this home was filthy and cluttered with stale food, dirty
clothes, and on one occasion open pill bottles that were laying about. The children were at times not kept clean. The guardian
ad litems and Dr. Kelliher each recommended that CSB be granted permanent custody. R.C. 2151.414(E)(16).
{¶40} To the extent that one or more of the factors in R.C. 2151.414(E) exist as to each parent, the trial court was
required to find that these children could not be placed with either parent within a reasonable time or should not be placed with their parents. R.C. 2151.414(E). That finding is
supported by clear and convincing evidence. discretion on the part of the trial court.
We see no abuse of
{¶41} These assignments of error are overruled.
15 FRANCES MCCOLLOCH’S FIRST ASSIGNMENT OF ERROR {¶42} “THE TRIAL COURT ERRED IN ITS DECISION GRANTING
PERMANENT CUSTODY OF THE MCCOLLOCH CHILDREN TO THE GREENE COUNTY CHILDREN SERVICES BOARD BECAUSE IT FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS IN THE BEST INTEREST OF THE CHILDREN TO TERMINATE THEIR MOTHER’S PARENTAL RIGHTS AND GRANT PERMANENT CUSTODY TO THE AGENCY.” CARL MCCOLLOCH’S SECOND ASSIGNMENT OF ERROR {¶43} “THE APPELLANT IN TRIAL COURT HIS ERRED TO THE TO PREJUDICE THE OF THE
OVERRULING
OBJECTIONS
MAGISTRATE’S
DECISION WHEN IT DETERMINED THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT THE COMMITMENT OF THE CHILDREN TO PERMANENT
CUSTODY TO THE AGENCY WAS IN THE CHILDREN’S BEST INTEREST.” {¶44} In these assignments of error, both parents argue that the record does not contain clear and convincing evidence to support the court’s finding that permanent placement of these children with CSB is in the children’s best interest. {¶45} R.C. 2151.414(D) identifies factors a court must It
consider when determining the best interests of the child. states that a court shall consider all relevant
evidence
including, but not limited to: {¶46} “(1) child with the The interaction and interrelationship relatives, of the
child's
parents,
siblings,
foster
16 caregivers and out-of-home providers, and any other person who may significantly affect the child; {¶47} "(2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; {¶48} "(3) The custodial history of the child, including
whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999; {¶49} "(4) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; {¶50} "(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and
child." {¶51} In these court determining to grant that it is in the best interest the of
children made the
permanent findings
custody
to
CSB, to
trial the
following
relative
each
of
factors set out in R.C. 2151.414(D): {¶52} “(D)(1) child with the The interaction and interrelationship of the child’s parents, siblings, relatives, foster
caregivers and out-of-home providers, and any other person who
17 may significantly effect the child – ‘FINDINGS OF FACT {¶53} ‘1. approximately Complaint in Despite CSB’s involvement with the family for eighteen which months prior custody to was the May 30, the 2000, mental
permanent
sought,
instability and actions of the parents continued to place the safety of the children at risk. {¶54} ‘2. CSB’s involvement with the family began on
November 12, 1998, with the filing of a complaint alleging Kayn to be abused and dependent, and alleging Dakota and Karleana to be dependent. 9/13/99, and The Judgments filed 11/30/98, 2/3/99, 7/9/99, 1/28/00 reflect that CSB had been granted
protective supervision or temporary custody of the children. {¶55} ‘3. On February 28, 2000, CSB had protective
supervision of the children. Better Childhood, a county
On that date, an employee of A early intervention program for
children ages three years and younger, made a pre-arranged visit to the McColloch residence. The parents had advance notice, Both parents
therefore, of the caseworker’s visit that day. were home at the time.
The employee described the condition of
the home as follows: “That’s probably my third–that was actually my fourth home visit and that was the worst I’ve ever seen the home. door. You literally had to move things when you came in the There were shoes and clothes and food, and I know–I went
over
to
the
couch
where
Frances
was
and
noticed
18 there
was
medication bottles, prescription bottles, Pepto Bismol.
There
was a bowl of cereal on the floor with cigarette butts floating in the milk.” (3/2/01 Transcript, Page 169, Lines 9-17) “It was I
really dirty compared to the other times I had been there. had never seen it in such disarray. the most outstanding thing I
Safety issues were probably being the medication
noticed,
bottles. open.
There was various bottles out.
Some of them were
My concern would be if the children were up you would have a potential hazardous condition.” (3/2/01
definitely
Transcript, Page 170, Lines 2-9) {¶56} ‘4. The parents allowed the home environment to lapse
into a condition which placed the children’s safety at risk.’” {¶57} “(D)(2) The wishes of the child, as expressed by the child or through the child’s guardian ad litem, with due regard for the maturity of the child– ‘FINDINGS OF FACT {¶58} ‘1. It is the wish of all three children, as
expressed through their guardian ad litem, that they be placed into the permanent custody of CSB. Litem Report filed 12/1/00. {¶59} ‘2. It is the wish of Kayn McColloch, as expressed by See the CASA Guardian ad
his attorney, Mr. Miles, that he be placed into the Agency’s
permanent custody.
19 (4/16/01, Transcript, Page 151, Lines 3-7)’”
{¶60} “(D)(3) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999– ‘FINDINGS OF FACT {¶61} ‘1. Dakota McColloch was in the temporary custody of See Judgment filed
CSB from February 1, 1999, to July 16, 1999. 2/3/99 and 7/9/99. {¶62} ‘2.
Karleana and Kayn McColloch were in the temporary See
custody of CSB from February 1, 1999, to August 12, 1999. Judgment filed 2/3/99 and 7/9/99. {¶63} ‘3.
When the Court terminated the agency’s temporary
custody described in paragraphs #1 and #2, custody was returned to Frances McColloch. {¶64} ‘4. CSB was awarded protective supervision.
On April 3, 2000, interim custody of all three
children was awarded to the agency, pending the Complaint for Permanent Custody. {¶65} “(D)(4) See Judgment filed 4/13/00.’” The child’s need for a legally secure
permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency– ‘FINDINGS OF FACT
{¶66} ‘1.
20 The children need a legally secure placement.
When the complaint seeking permanent custody was filed on May 30, 2000, the children had been removed twice from the parents during the prior seventeen months. {¶67} ‘2. custody. the No other relative was available to assume
The children’s maternal grandmother, Lavina Rash, and step-grandfather, custody in the Ronald of Boyer, the withdrew their custody
maternal for
petition action.
midst
permanent
(4/16/01 Transcript, Page 44, Lines 4-11) Because the Court is making a finding herein that
{¶68} ‘3.
the children should not be returned to either parent, the Court is finding that a legally secure placement for the children
cannot be achieved without a grant of permanent custody to the agency.’” {¶69} The evidence presented in this case demonstrates that it is the wish of all three children to be placed in the
permanent custody of CSB.
R.C. 2151.414(D)(2).
These children
have been in the temporary custody of CSB for twelve or more months out of a consecutive twenty-two month period beginning February 1, 1999 and ending December 1, 2000. R.C.
2151.414(D)(3).
There is also evidence that these children need
a legally secure permanent placement that cannot be achieved without a grant of permanent custody to CSB. R.C.
2151.414(D)(4). the relationship
21 Additionally, evidence was presented regarding between the children and their biological
parents as well as their foster parents, R.C. 2151.414(D)(1), including conflicting evidence as to the degree of bonding
between Frances and the twins, Kayn and Karleana.
It is of
course the duty of the trial court as the trier of facts to resolve conflicts in the evidence by determining the credibility of the witnesses and the weight to be given to their testimony. Clever, supra. {¶70} We find that there is clear and convincing evidence that supports the trial court’s determination that it is in the best interest of these children to award permanent custody to CSB. Thus, there is no abuse of discretion on the part of the
trial court. {¶71} These assignments of error are overruled. FRANCES MCCOLLOCH’S SUPPLEMENTAL ASSIGNMENT OF ERROR {¶72} “THE TRIAL COURT ERRED IN ADOPTING BOTH THE AUGUST 20, 2001 DECISION OF OF THE THE MAGISTRATE IN AND SO THE AS FEBRUARY THE 20, 2002
DECISION
MAGISTRATE
FAR
MAGISTRATE’S
DECISIONS DID NOT CONTAIN SUFFICIENT FINDINGS OF FACT FOR THE TRIAL COURT TO MAKE AN INDEPENDENT ANALYSIS OF SAID DECISIONS.” {¶73} In this assignment of error Defendant argues that the magistrate’s decisions in this permanent custody matter did not
22 contain sufficient findings of fact and conclusions of law to enable the trial court to perform its own independent analysis of the magistrate’s decision. Thus, the trial court should not
have adopted the magistrate’s decision. {¶74} Defendant is challenging the sufficiency of the
magistrate’s findings.
Ordinarily, when a trial court overrules
any objections that have been filed and adopts a magistrate’s decision, on appeal from that decision we necessarily review the magistrate’s determining findings whether of fact trial and court conclusions abused its of law in
the
discretion.
Here, however, on appeal we remanded this matter back to the trial court to enter findings. Our order of remand required the
trial court to make its own findings of fact and law, which it did. and It is those findings, the trial court’s findings of fact conclusions of law, that we now review on appeal in
determining whether the trial court abused its discretion in awarding permanent custody of these children to CSB. The
magistrate’s findings are moot. {¶75} This assignment of error is overruled. of the trial court will be affirmed. The judgment
FAIN, P.J. and YOUNG, J., concur.
Copies mailed to:
23 Robert K. Hendrix, Esq. Peter N. Griggs, Esq. Pamela L. Pinchot, Esq. Hon. Robert W. Hutcheson
