In re S.H. , 2014 Ohio 4476 ( 2014 )

[Cite as In re S.H., 2014-Ohio-4476.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100911
IN RE: S.H.
A Minor Child
[Appeal By, Donna Bell, Grandmother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU 13106352
BEFORE: Jones, P.J., Rocco, J., and Stewart, J.
RELEASED AND JOURNALIZED: October 9, 2014
FOR APPELLANT
Donna Bell, pro se
600 Turney Road, #111
Bedford, Ohio 44146
ATTORNEYS FOR APPELLEES
Guardian Ad Litem for Child
Patricia Lanzy
16411 Nicholas Road
Shaker Heights, Ohio 44120
For Mother
Ebonie Keaton
6000 Bear Creek Drive, #311
Bedford, Ohio 44146
For Father
Sylvester H.
6000 Bear Creek Drive, #311
Bedford, Ohio 44146
LARRY A. JONES, SR., P.J.:
{¶1} Appellant Donna Bell appeals the juvenile court’s decision to deny her
application for visitation. We affirm.
I. Procedural History
{¶2} In 2013, Bell filed an application in juvenile court to establish visitation with
her granddaughter, S.H. According to Bell, her daughter, Ebonie Keaton, and S.H.’s
father, S. H., would not allow her to see six-year-old S.H. and the lack of visitation was
not in the child’s best interests.
{¶3} The court appointed a guardian ad litem (“GAL”) to the case and sent the
matter to mediation. The parties could not reach a resolution so the court set the matter
for a hearing before a magistrate. Present at the hearing were Keaton, Sylvestor H.,
Bell, Bell’s aunt, and the GAL. The magistrate heard testimony from those present.
The GAL recommended the court deny the application for visitation.
{¶4} The magistrate issued a decision finding that S.H.’s parents and Bell had a
“falling out” in January 2013 and the parents no longer wanted Bell to visit with S.H.
The magistrate determined that it was not in the child’s best interests to have visitation
and recommended that Bell’s application for visitation be denied.
{¶5} Bell did not file any objections to the magistrate’s decision and did not file a
transcript of the magistrate’s hearing for the trial court to consider.
The trial court adopted the magistrate’s decision.
{¶6} Bell filed a notice of appeal, pro se, and assigns the following assignment of
error for our review:
[I]. The Juvenile Court abused its discretion and acted in plain error by
ordering [the GAL] to act as an inquisitor for the Court and directly
examine Appellant, Ms. Bell, rather than allowing her to present her case in
chief to the Court pro se.
II. Law and Analysis
{¶7} The decision to adopt, reject, or modify a magistrate’s decision will not be
reversed on appeal unless the decision amounts to an abuse of discretion, which has been
defined as an error of law or judgment that implies the court’s attitude is unreasonable,
arbitrary, or unconscionable. Fackelman v. Micronix, 8th Dist. Cuyahoga No. 98320,
2012-Ohio-5513, ¶ 5, citing Wade v. Wade, 113 Ohio App.3d 414, 419, 680 N.E.2d 1305(11th Dist.1996).
{¶8} Bell filed her application for visitation pursuant to R.C. 3109.12(A), which
provides:
If a child is born to an unmarried woman, the parents of the
woman and any relative of the woman may file
a complaint requesting the court of common
pleas of the county in which the child resides to
grant them reasonable companionship or
visitation rights with the child.
{¶9} In her sole assignment of error, Bell argues that the trial court erred by
allowing the GAL to question her, rather than allowing Bell to present her own case.
We are unable, however, to consider Bell’s argument that she was prevented from fully
presenting her case to the magistrate because Bell failed to file objections to the
magistrate’s decision and failed to file a transcript of the hearing for the trial court’s
review.
{¶10} Juv.R. 40(D)(3)(b)(iv) states:
Except for a claim of plain error, a 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), unless the party has objected to that finding or
conclusion as required by Juv.R. 40(D)(3)(b).
See also Civ.R. 53(E)(4)(a).
{¶11} Bell failed to file objections to the magistrate’s decision; therefore, she has
waived the errors she alleged are inherent in the decision. Additionally, as a result of
her failure to file objections to the magistrate’s decision, the trial court only was required
to review the decision to determine whether an error of law or other defect existed on the
face of the magistrate’s decision. In re K.X., 10th Dist. Franklin No. 04-AP-949,
2005-Ohio-3791, ¶ 15.
{¶12} Likewise, when a party has failed to file objections to a magistrate’s
decision, an appellate court’s review is limited to review for plain error. S.J. v. J.T., 6th
Dist. Lucas No. L-11-1011, 2011-Ohio-6316, ¶ 8. Plain error is not favored and is only
applicable in rare cases where the error “seriously affects the basic fairness, integrity, or
public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself.” Id., citing Goldfuss v. Davidson, 79 Ohio St.3d 116,
679 N.E.2d 1099 (1997).
{¶13} Pursuant to Juv.R. 40(D)(3)(b)(iii), a party who wishes to object to a
magistrate’s factual finding is required to support the objection with the transcript of the
evidence submitted to the magistrate relevant to that finding. In re Maxwell, 4th Dist.
Ross No. 05CA2863, 2006-Ohio-527, ¶ 27, citing Proctor v. Proctor, 48 Ohio App.3d 55,
60, 548 N.E.2d 287 (3d Dist.1988). If the objecting party fails to provide the court with
a transcript of the magistrate’s hearing, the trial court may properly adopt a magistrate’s
factual findings without further consideration. In re Maxwell at id., citing Proctor.
{¶14} In In re A.L., 8th Dist. Cuyahoga No. 99040, 2013-Ohio-5120, ¶ 12, appeal
not allowed, 138 Ohio St.3d 1468, 2014-Ohio-1674, 6 N.E.3d 1204, this court noted the
following:
The Supreme Court of Ohio has stated that where the objecting party fails
to provide the trial court with the transcript of the proceedings before the
magistrate, an appellate court is precluded from considering the transcript
of the magistrate’s hearing submitted with the appellate record. Palmer v.
Palmer, 7th Dist. Belmont No. 12 BE 12, 2013-Ohio-2875, ¶ 16, citing
State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730,
1995- Ohio-272, 654 N.E.2d 1254 (1995). See also State v. Ishmail, 54
Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus (“A
reviewing court cannot add matter to the record before it, which was not a
part of the trial court’s proceedings, and then decide the appeal on the basis
of the new matter”).
{¶15} Thus, if Bell wanted to object to any of the magistrate’s factual findings or
the magistrate’s decision to deny her application for visitation, it was incumbent upon her
to file objections and support those objections with evidence, e.g., the transcript of the
magistrate’s hearing. Here, Bell neither objected to the magistrate’s decision nor timely
filed a transcript of the magistrate’s hearing with the trial court.1
{¶16} We note that there is currently a transcript of the magistrate’s hearing in the
record on appeal. But because the transcript was not properly before the trial court, we
may not consider it on appeal. See In re J.K., 4th Dist. Ross No. 11CA3269,
2012-Ohio-214, ¶ 14-16 (an appellate court may not consider the transcript of the
magistrate’s hearing when a party fails to file objections to a magistrate’s decision and
fails to file a hearing transcript with the trial court.) Thus, without the transcript
properly before us, we have no basis to conclude that the trial court erred in adopting the
magistrate’s decision. To the extent that Bell’s assignment of error is based on the
procedure of the hearing itself, we must presume the validity of the proceedings and
reject her argument that the trial court erred in adopting the magistrate’s decision. See
The record reflects that Bell filed the transcript with the trial court after she filed her notice
1
of appeal with this court.
In re A.L. at ¶ 16 (“ * * * reference to the transcript is inappropriate on appeal because the
transcript was not available for the trial court to review.”)
{¶17} In light of the facts the above, we find no error of law or other defect on the
face of the magistrate’s decision nor do we find plain error with the trial court’s order
adopting the magistrate’s decision.
{¶18} Finally, we note that although it is apparent from the record that Bell cares
deeply for her granddaughter, pro se civil litigants cannot be afforded greater rights than
they would have if represented by counsel.
{¶19} The sole assignment of error is overruled.
{¶20} 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 be sent to said court 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.
LARRY A. JONES, SR., PRESIDING JUDGE
KENNETH A. ROCCO, J., CONCURS;
MELODY J. STEWART, J., DISSENTS
WITH SEPARATE OPINION
MELODY J. STEWART, J., DISSENTING:
{¶21} Juv. R. 40(D)(3)(b)(iv), which ordinarily forecloses appellate review when
the aggrieved party has failed to file objections to a magistrate’s decision, by its own
terms, does not apply in this case because Bell has raised a claim of plain error. In
addition, the absence of a properly-filed transcript is of no consequence to this appeal
because there has been no appellee’s brief filed. App.R. 18(C) states that when the
appellee fails to file a brief, we “may accept the appellant’s statement of the facts and
issues as correct and reverse the judgment if appellant’s brief reasonably appears to
sustain such action.”
{¶22} Bell’s statement of facts shows that the court instructed the guardian ad
litem for the child — who had expressed an opinion that Bell not be granted visitation
rights with the child — to direct Bell in presenting her pro se case-in-chief. This created
a clear conflict of interest between Bell and the child’s guardian ad litem because their
interests were so nonaligned. See Sup.R. 48(D)(9) (“A guardian ad litem shall avoid any
actual or apparent conflict of interest arising from any relationship or activity including *
* * contacts with parties or others involved in the case.”) That conflict of interest denied
Bell due process of law. State v. Gillard, 64 Ohio St.3d 304, 311-312, 595 N.E.2d 878(1992). The error is one that the magistrate could have avoided by allowing Bell to make
a narrative statement of her case or by asking Bell questions in an impartial manner. See,
e.g., McCandlish v. McCandlish, 5th Dist. Licking No. 13-CA-37, 2013-Ohio-5066, ¶ 34.
{¶23} Because Bell’s statement of facts presents a demonstrable claim of plain
error based on the conflict engendered by an adverse party being instructed to direct her
pro se case-in-chief, I would sustain the assignment of error and remand for a new trial.
I respectfully dissent.