In re S.N.A.-K. ( 2024 )

[Cite as In re S.N.A.-K., 2024-Ohio-4494.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE S.N.A-K. :
: No. 113677
A Minor Child :
:
[Appeal by S.M.F., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 12, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. FA21705753
Appearances:
S.M.F., pro se.
EMANUELLA D. GROVES, J.:
Appellant-mother, S.M.F. (“Mother”), pro se, appeals from the
decision of the Juvenile Division of the Cuyahoga County Court of Common Pleas
(the “Juvenile Court”) that denied her motion to modify custody. For the reasons
that follow, we affirm the Juvenile Court’s decision.
Facts and Procedural History
In December 2022, Father was granted legal custody of the child,
S.N.A-K. Between June and October 2023, Mother, acting pro se, filed four motions
before the juvenile court: a motion to show cause, a motion to modify custody, a
motion to waive GAL fees, and a motion for appointment of a medical expert. The
guardian ad litem (“GAL”) recommended no changes to the current schedule or
custody except for the holidays. On January 22, 2024, a magistrate heard testimony
on Mother’s motions. The magistrate heard testimony from Mother, Father, and the
GAL. Ultimately, the magistrate denied Mother’s motions and filed the decision on
January 22, 2024. Mother did not file a transcript or an objection to the decision of
the magistrate. On February 7, 2024, the juvenile court approved the magistrate’s
decision. The juvenile court found that Mother failed to meet the burden of proof
on her motion to show cause where she had alleged that Father refused to allow
her access to medical and educational records. The juvenile court also denied
Mother’s motion to modify custody based on Father’s alleged medical neglect of
the child. The juvenile court also denied Mother’s motion to waive GAL fees and
her request to appoint a medical expert to determine whether S.N.A-K. was
medically neglected. The court found the issue moot as the GAL had spoken to the
child’s pediatricians who did not find the child medically neglected.
Subsequently, Mother filed an appeal and raises one assignment of
error for our review.
Assignment of Error
The trial court erred and abused its discretion and power in
determining the physical custody of S.N.A-K. (Ohio revised code, Title
31 Ch.3109, Section 3109.042, and 3109.043) The Guardian Ad Litem’s
testimony should be stricken from the record. The Guardian Ad Litem’s
investigation fell far short of the minimum standards established by the
Ohio Supreme Court.
Law and Analysis
As a preliminary matter, we note that pro se litigants are held to the
same standards as litigants who are represented by attorneys. In re C.T.T., 2019-
Ohio-3362, ¶ 9 (8th Dist.). Additionally, they are presumed to have knowledge of
legal procedures and the law. Id.In the instant case, Mother failed to file a transcript of proceedings
with the juvenile court nor did she file objections to the decision of the magistrate.
Magistrate’s decisions and the procedure for filing and ruling on objections to a
magistrate’s decision are governed by Juv.R. 40. In re A.C., 2019-Ohio-5127, ¶ 18
(8th Dist.). A party has 14 days after the magistrate’s decision is filed to file
objections. Juv.R. 40(D)(3)(b)(i). If a party timely objects, the juvenile court is
required to “undertake an independent review as to the objected matters to
ascertain that the magistrate has properly determined the factual issues and
appropriately applied the law.” Juv.R. 40(D)(4)(d). This “independent review” is
a de novo review of the facts and requires the juvenile court to reach its own
conclusions about the case issues. In re A.C. at ¶ 18, citing Radford v. Radford,
2011-Ohio-6263, ¶ 13 (8th Dist.). To this end, the party objecting must file “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.” Juv.R.
40(D)(3)(b)(iii).
If a party fails to object to the decision of the magistrate and follow
the procedures established in Juv.R. 40, with the exception of plain error, the
“party shall not assign as error on appeal the court’s adoption of any factual finding
or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Juv.R. 40(D)(3)(a)(ii).” Juv.R. 40(D)(3)(b)(iv).
As Mother failed to object, the juvenile court was only “required to
review the [magistrate’s] decision to determine whether an error of law or other
defect existed on the face of the magistrate’s decision.” In re S.H., 2014-Ohio-
4476, ¶ 11 (8th Dist.). Additionally, where a party fails to file a transcript of the
proceedings, the juvenile court “may properly adopt a magistrate’s factual findings
without further consideration.” Id. at ¶ 13.
As a result, as a reviewing court, this court is limited to considering
whether plain error occurred. Id. at ¶ 12. In civil cases, courts are advised to
proceed with the “utmost caution” and limit application of plain error “to those
extremely rare cases where exceptional circumstances require its application to
prevent a manifest miscarriage of justice.” Goldfuss v. Davidson, 79 Ohio St.3d
116, 121 (1997). Furthermore, because Mother failed to file a transcript with the
juvenile court, we are precluded from considering the transcript of the magistrate’s
hearing that Mother submitted as part of the record on appeal. In re S.H. at ¶ 14,
citing In re A.L., 2013-Ohio-5120, ¶ 12.
The juvenile court is given broad discretion in custody issues. In re
A.B., 2021-Ohio-4613, ¶ 28 (8th Dist.). These decisions will not be disturbed unless
the juvenile court abused its discretion. Id. An abuse of discretion implies the
court’s attitude is unreasonable, arbitrary, or unconscionable. Id.Mother challenges the GAL’s investigation, arguing that he failed to
comply with the rules under which he is governed. Mother cites to the Ohio
Supreme Court Rules of Superintendence in support of her argument that the GAL
violated several sections of Rule 48.03 which discusses the responsibilities of a
guardian ad litem. However, while Mother cited to the rule in her issues presented
section and her statement of the case and statement of facts included a list of alleged
failures in the GAL’s performance, she failed to construct an argument to establish
how the listed facts, if true, violated the GAL’s duties, or how those alleged failures
required a modification of legal custody in her favor. Mother’s brief therefore fails
to meet the requirements of App.R. 16(A)(7) and an appellate court “is not obliged
to construct or develop arguments in support of an assignment of error where the
appellant has failed to do so.” Olive Oil, L.L.C. v. Cleveland Elec. Illum. Co., 2021-
Ohio-2309, ¶ 22 (8th Dist.).
Mother further claimed that the trial court relied upon erroneous
findings of facts and unsupported incompetent evidence. Mother has waived any
challenge to the magistrate’s factual findings by failing to file objections to the
magistrate’s decision. Juv.R. 40(D)(3)(b)(iv).
Here, Mother requested modification of custody because she alleged
Father was neglecting S.N.A-K.’s medical care. A court may not modify a decree
allocating parental rights unless the court finds based on facts that arose after the
decree or facts unknown to the court prior to the decree, that there has been a change
in the circumstances of either the child, the child’s residential parent, or either
parent subject to a shared-parenting decree, and modification is necessary to serve
the best interests of the child. In re E.B., 2020-Ohio-4139, ¶ 69 (8th Dist.)
In other words, the juvenile court may modify the allocation of
parental rights and responsibilities if it finds (1) there was a change in circumstances
since the last decree; (2) modification is necessary to serve the best interest of the
child; and (3) the harm attendant with modification is outweighed by the advantages
of an environment change. In re E.R.P. 2012-Ohio-1053 ¶16 (8th Dist.), citing R.C.
3109.04(E)(1)(a)(iii). These requirements are necessary to ensure stability to the
custodial status of the children and to avoid a constant “tug of war” between the
parents. Id. The evidence to support a modification must be credible and
competent. Id. at ¶ 19. The magistrate found and the juvenile court agreed that
there had not been a change in circumstances since the assignment of legal custody
that warranted a change. Based on the record before us, this court is bound to accept
the juvenile court’s findings of fact.
Furthermore, the juvenile court noted in its journal entry that it
considered the best interests of the child, summarizing the considerations listed in
R.C. 3109.04(F)(1)(a)-(j). February 22, 2024 J/E.
Based upon our review of the record, we cannot say the juvenile court
erred in adopting the magistrate’s decision denying Mother’s motion to modify
custody, nor did the court commit plain error. Mother’s assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
MICHAEL JOHN RYAN, J., CONCUR