In re A.H.W. ( 2024 )

[Cite as In re A.H.W., 2024-Ohio-2168.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE A.H.W. :
No. 113147
A Minor Child :
[Appeal by F.S.W., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 6, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. FA21710287
Appearances:
F.S.W., pro se.
MICHELLE J. SHEEHAN, J.:
Appellant F.S.W. (“Mother”) appeals the judgment of the juvenile court
overruling her objections to a magistrate’s decision enacting a shared parenting plan
between F.S.W. and C.E. (“Father”) for their child, A.H.W. Because the juvenile
court did not abuse its discretion by overruling Mother’s objections and adopting
the magistrate’s decision, we affirm the judgment appealed.
PROCEDURAL HISTORY AND RELEVANT FACTS
On November 15, 2022, Father filed an application to establish a
shared parenting plan for A.H.W. On April 13, 2023, the magistrate held a hearing
at which Mother, represented by counsel; Father, represented by counsel; and the
guardian ad litem for A.H.W. were present. On May 8, 2023, the magistrate’s
decision (“Decision”) adopting Father’s shared parenting plan was journalized. On
May 23, 2023, Mother filed preliminary objections to the Decision and, on July 18,
2023, filed supplemental objections. The juvenile court overruled the objections
and adopted the Decision on July 31, 2023.
The Hearing and Decision
Prior to the start of hearing, Mother and Father informed the
magistrate that they had agreed to adopt a shared parenting plan, but disagreed as
to the specific schedule to be put in place. Mother requested a continuance due to
her witnesses being unavailable. The magistrate noted that the guardian ad litem
would be unavailable and asked about the testimony Mother’s witnesses would
provide. Neither Mother nor her attorney proffered any of the witnesses’ testimony.
The magistrate denied Mother’s motion for continuance and proceeded to hearing.
The guardian ad litem, Father, Father’s mother, and Mother testified
at the hearing. Mother testified that her objection to the schedule was that it gave
Father parenting time when he was at work. She stated:
What I’m asking for is that around [Father’s] work schedule, we have
the schedule based on his availability, and that doesn’t include any
grandparents in the time or any assumptions that the grandparents will
be taking care of him. So that we can both spend quality time with him
and his family just like mine.
In the Decision, the magistrate noted that Mother and Father could
not agree on a parenting schedule, with disagreement over midweek time with the
Father. The magistrate found that Father lived with his parents, was employed, and
Father’s parents would care for A.H.W. while Father was at work. As to Mother, the
magistrate found Mother has part-time employment and has family babysit A.H.W.
when necessary. The magistrate noted Mother and Father have a volatile
relationship but, despite their differences, they had been able to respect each other’s
religious beliefs. The magistrate also found Mother has a mental-health problem for
which she was receiving services. The magistrate noted that the family had an
assessment conducted that recommended the parents engage in parallel parenting
and that the parents communicate through a messaging application.
The magistrate stated that in granting the application to establish a
shared parenting plan, it considered the following factors:
The prior interaction and interrelationships of the child with the child’s
parents, siblings, and other persons related by consanguinity or
affinity, the child[‘s] close loving parent child relationship with both
parents and with extended family on both sides;
The geographical location of the residence of each parent and the
distance between those residences; The father lives in * * * and the
mother lives in * * *. The parents have managed this distance well.
The child’s and parents’ available time, including, but not limited to,
each parent’s employment schedule, the child’s school schedule, and
the child’s and the parents’ holiday and vacation schedules;
The age of the child; the child is one year[s] old.
The child’s adjustment to home, school, and community;
The child is too young to express his or her wishes;
The health and safety of the child; The child is safe in the care of both
parents.
The mental and physical health of all parties.
The magistrate found it was in A.H.W.’s best interest that Mother and Father be
designated as residential parents and legal custodians of A.H.W. and implemented
the shared parenting plan proposed by Father. The magistrate also ordered the
parties to register for a specified communications website and that they shall
thereafter conduct all communications regarding their minor child through this
website. The parties shall not telephone, text, or email each other directly regarding
issues relating to their child but instead shall post all communications exclusively
on the website.
Trial Court’s Judgment Overruling Mother’s Objections
Mother filed the following objections and request to the Decision:
1. The Magistrate Erred in Denying Mother’s Motion for
Continuance.
2. Request to Take New Evidence.
In her first objection, Mother argued that the hearing should have
been continued because her witnesses, many of whom are Orthodox Jews, would
not be available to testify on the hearing date because it was the last day of Passover.
Within her objection, Mother did not proffer her witnesses’ testimony.
The trial court determined that the parties agreed to the hearing date
because the guardian ad litem would not be available after that date. The trial court
also noted that the only issue to be resolved was Mother’s objection to the parenting
time Father would have while he was at work. The trial court found that the issue at
the hearing was
a philosophical dispute as opposed to a factual dispute and neither the
transcript nor the mother’s written objection shows how the case would
have gone differently if the case had been continued.
Mother also requested the trial court reopen the hearing and take new
evidence because following the hearing date, mother received racist, antisemitic,
and insulting text messages from Father to her that disparaged her and her religion.
Mother argued the fact Father sent these messages impugn his character and
credibility and raise valid concern regarding his ability to provide for the safety of
their son and an adequate parenting environment.
In resolving the first objection and request to reopen the hearing, the
trial court noted the text messages were not authenticated or dated, but assumed
they were authentic. The trial court found that because of the limited issue to be
determined at the hearing, Mother did not demonstrate how the outcome of the
hearing would be different were the texts presented or were her witnesses to testify.
The trial court overruled the first objection and denied Mother’s request to take
further evidence.1
1 The trial court found the texts to be concerning and noted the parties were ordered to use
the messaging application. It warned the parties that any further texts of the kind noted in
Mother also asserted the following objections to the trial court:
3. The Magistrate erred in ordering a parenting time schedule that
deviates from the Standard Parenting Time Schedule.
4. The Magistrate erred in granting Father parenting time where
the record reflects that such time will not actually be exercised
by Father.
Mother argued that the shared parenting schedule deviated from the
court’s standard schedule and that the Magistrate erred by awarding Father
parenting time while he would be at work with his extended family providing care
for their son. The trial court overruled these objections and rejected Mother’s
argument by noting the guardian ad litem testified as to the importance of
grandparents and extended family and the need for the child to socialize with other
children and that the Court Diagnostic Clinic recommended parallel parenting,
which applies to each parent’s decisions as to when the child will be with extended
family as well.
LAW AND ARGUMENT
Mother asserts three assignments of error in her appeal.2 Her first
two assignments of error reads:
1. The Trial Court Erred in Overruling Mother’s First Objection.
2. The Trial Court Erred in Declining to Set the Matter for Further
Hearing Considering New Evidence in the Case.
Mother’s objection could result in a finding of contempt of court and result in a
modification of the parenting plan.
2 Father did not file a brief in this appeal.
Mother argues that the trial court should have continued the hearing
due to the hearing date being set on a religious holiday because her witnesses were
unavailable to testify and that the trial court engaged in speculation as to the effect
her witnesses’ testimony would have on the outcome of the hearing. She further
argues that the hearing should be reopened to present testimony of Father’s text
messages. She states the trial court’s reliance on the unavailability of the guardian
ad litem was not a sufficient reason to deny her request for continuance. She further
states the trial court erred by not reopening the hearing to accept evidence of the
text messages.
The denial of a motion to continue is a matter ‘“entrusted to the
broad, sound discretion of the trial judge.’” In re Ka.C., 8th Dist. Cuyahoga
Nos. 102000, 102002, 102005, and 102006, 2015-Ohio-1158, ¶ 13, quoting State v.
Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). A trial court is further vested
with broad discretion when ruling upon objections to a magistrate’s decision. In re
A.K., 8th Dist. Cuyahoga No. 105426, 2017-Ohio-9165, ¶ 19. “An abuse of discretion
occurs when a court exercises ‘its judgment, in an unwarranted way, in regard to a
matter over which it has discretionary authority.’” Q.A-E. v. S.G., 8th Dist. Cuyahoga
No. 112616, 2023-Ohio-4318, ¶ 13, quoting Johnson v. Abdullah, 166 Ohio St.3d 427,
2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
The trial court determined that the only contested issue at the hearing
was the shared parenting plan as it allotted time to Father during his work hours.
As to her witnesses, Mother did not proffer their testimony or explain how that
testimony and the text messages would affect the issue outstanding at the hearing.
As such, we cannot say the trial court abused its discretion in overruling Mother’s
first objection and request to take new evidence. Further, because there was no
proffer of testimony, Mother forfeited the right to contest the denial of her
continuance. In re K.L., 11th Dist. Portage No. 2021-P-0022, 2021-Ohio-3080, ¶ 20
(“[W]hen a continuance is requested to secure a witness’ attendance, the failure to
proffer the substance of the anticipated testimony waives or forfeits any error.”).
The first and second assignments of error are overruled.
Mother’s third assignment of error reads:
3. The Trial Court Erred in Overruling Mother’s Third and Fourth
Objections, and Thus Adopting the Magistrate’s Decision as an
Order of the Trial Court.
Mother argues the decision to adopt the shared parenting plan was
not in her son’s best interests because he would be cared for by Father’s family when
he would be at work and that neither the magistrate nor trial court made specific
findings to support why the parenting schedule, which deviated from a standard
schedule, was in the best interests of the child.
The juvenile court’s decision concerning the allocation of parental
rights and responsibilities will not be disturbed absent an abuse of discretion. In re
J.W., 8th Dist. Cuyahoga No. 105337, 2017-Ohio-8486, ¶ 19, citing Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). In In re N.J.V., 8th Dist.
Cuyahoga No. 107753, 2019-Ohio-2234, ¶ 18, this court noted that
[w]hen a party requests shared parenting, R.C. 3109.04(F)(2) requires
the court to specifically decide whether shared parenting is in the
child’s best interest. R.C. 3109.04(F)(2) requires the court to consider
(1) the ability of the parents to cooperate and make decisions jointly;
(2) the ability of each parent to encourage the sharing of love, affection,
and contact between the child and the other parent; (3) any history of,
or potential for, child abuse, spouse abuse, or other domestic violence;
(4) the geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared parenting;
and (5) the recommendation of the guardian ad litem of the child, if the
child has a guardian ad litem.
In the Decision, the magistrate considered these factors when
adopting the shared parenting plan. It noted that there was “a close loving parent
child relationship with both parents and with extended family on both sides” and
that Father and Mother managed the distance they live apart well. It also considered
the parents’ schedules and found that A.H.W. is safe in the care of both parents.
Although Mother’s brief contains allegations that their son would not be safe with
Father or his mother, those issues were not raised at the hearing nor raised before
the magistrate. Based on the record on appeal, we cannot say the best interests of
A.H.W. were not considered or that the adoption of the shared parenting plan was
an abuse of discretion.
The third assignment of error is overruled.
CONCLUSION
We affirm the judgment of the trial court overruling Mother’s
objections and adopting the Decision in this case. Mother sought a continuation of
the hearing because witnesses were unavailable but failed to proffer those witnesses’
testimony. The trial court did not abuse its discretion overruling Mother’s objection
as to the continuance where no testimony was proffered. Further, the juvenile court
did not abuse its discretion by not reopening the hearing and taking additional
evidence because the new evidence presented did not pertain to the scheduling of
time that was at issue in the hearing. Further, the trial court did not abuse its
discretion in adopting the Decision and shared parenting plan where the best
interests of the child were considered.
Judgment affirmed.
It is ordered that appellant pay the 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.
________________________
MICHELLE J. SHEEHAN, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
ANITA LASTER MAYS, J., CONCUR