In Re O.H.W.

{¶ 1} Appellant is the mother of O.H.W., the minor child at issue in this case. Appellees are the minor child's paternal grandmother and step-grandfather. The child was born in October 1998. The child was exposed to unstable living conditions until appellant left the child with appellees in June 2001. It is unclear how the stay was initiated, but it is clear that it was through the mutual decision of appellees and appellant and not through any action of the state. O.H.W. has a guardian ad litem, but children services is not involved in this private custody dispute. Both parties stated during the initial hearing regarding custody that the purpose of appellant's decision to leave the child with appellees was to allow appellant to make arrangements to provide a more suitable environment for the child. Appellant left the state during this time and was gone for several weeks. She did make frequent phone calls to appellees to inquire as to the child's well being.

{¶ 2} After the child had been with appellees for approximately three weeks, appellees took the child to a doctor, who indicated that the child was significantly delayed developmentally. The doctor advised appellees that he believed the child was neglected and indicated his intent to contact children services. Thereafter, appellees filed a private motion for custody alleging neglect. Because appellant's physical whereabouts were unknown, appellees served appellant by publication and did not otherwise notify her of their attempt to gain custody of the child, despite the fact that she contacted them by telephone after the filing of the complaint. Emergency custody was granted to appellees, and a hearing was scheduled for August 27, 2001, at which appellant appeared and requested counsel.

{¶ 3} A hearing regarding custody was held on December 2 and December 23, 2002, and January 6, 2003. On January 29, 2003, legal custody was granted to appellees. During the course of the hearing, several healthcare providers, including physicians and therapists, testified regarding the child's diagnosis with and treatment for an autism spectrum disorder. Significant evidence was presented regarding expensive controversial treatment not covered by insurance instituted by appellees at the recommendation of a developmental pediatrician.

{¶ 4} In its judgment entry determining custody, the trial court stated that the facts established by clear and convincing proof that the child was dependent and neglected. The court noted appellant's "present honest commitment to do everything seemingly asked of a mother" but found that this behavior "falls far short of the commitment needed by" the child. The court went on to note that appellees' relationship with the child was based not on money but on commitment to his care and needs, that appellant was unable to make the commitment that the child needs, and that the changes urged by her would be made to his detriment. The court stated that it found that "the child is neglected and dependent and that it is in the best interest that the legal custody of [the child] should be with his grandparents." The court ordered that appellant receive "liberal visitation."

{¶ 5} Appellant did not appeal this decision of the trial court. On May 5, 2003, appellant requested a new custody hearing. In August 2003, appellant requested an emergency hearing on visitation, alleging that appellees were interfering with her access to the child. After continuances, a hearing was set for October 2004. A new visitation schedule was ordered following this hearing. Again on August 5, 2005, this time pro se, appellant filed a motion for modification of custody. The motion was dismissed for failure of process on other parties. In November 2005, appellant again filed a pro se motion for modification of custody. A hearing occurred regarding this motion in March 2006, at which the child's guardian ad litem requested psychiatric evaluations of all parties. Appellant continued to file documents pro se, including a motion for reconsideration, objections, and a motion for a new hearing. The motion for a new hearing, filed August 23, 2006, alleged that the trial court had not applied the correct standard in the initial hearing to justify granting legal custody to appellees. The magistrate overruled this request for a new hearing without explanation in a journal entry dated October 3, 2006. Appellant filed a late objection, dated October 24, 2006, to the magistrate's order. The trial court judge, in an entry dated January 12, 2007, found that all pending objections were either untimely or lacked merit or both and overruled the objections. Appellant purports to appeal from this decision overruling her objections to the magistrate's decision denying her request for a new hearing. She raises four assignments of error, as follows:

{¶ 6} Assignment of Error No. 1:

{¶ 7} "The juvenile court's denial of a new hearing to reconsider the adjudication was a gross abuse of discretion."

{¶ 8} Assignment of Error No. 2:

{¶ 9} "The refusal of a new hearing is an unconstitutional denial of my right to due process of law. The juvenile court owes me at least one round of due process."

{¶ 10} Assignment of Error No. 3:

{¶ 11} "The juvenile court erred and abused it's [sic] discretion when failing to use the proper standard for reviewing a due process violation that affected a fundamental right, my parental rights, which is strict scrutiny."

{¶ 12} Assignment of Error No. 4:

{¶ 13} "Omission of the adjudicatory phase of the proceedings is plain error."

{¶ 14} Appellant argues the merits of her objections to the magistrate's decision in her assignments of error. However, the sole issue before this court is the judge's decision to overrule appellant's objections. The magistrate's decision was filed October 3, 2006, the trial court judge adopted the order on October 10, 2006, and appellant's objections were filed October 24, 2006. Under Juv. R. 40(D)(3)(b)(i), an objection to a magistrate's decision is timely only if filed within 14 days after the magistrate's decision is filed. Therefore, appellant's objections were untimely, and the trial court judge did not err in overruling the objections. See In re D.K.K., Champaign App. No. 2006-CA-4, 2006-Ohio-5576, 2006 WL 3030835, ¶ 23-25;Bamba v. Derkson, Warren App. No. CA2006-10-125,2007-Ohio-5192, 2007 WL 2821800, ¶ 19.

{¶ 15} Appellant's appeal of the trial court's denial of her objections as untimely filed was timely filed with this court under App. R. 4. However, appellant's four assignments of error argue the merits of her motion for a new hearing, filed during a currently pending motion for modification of custody, which argued under In reHockstok, 98 Ohio St.3d 238, 2002-0hio-7208,781 N.E.2d 971, that her due process rights had been infringed when the trial court failed to make a parental suitability determination in the original custody decision of January 2003. We reserve judgment on those issues because the arguments are not properly before us yet. Under App. R. 4(A), a party must file a notice of appeal within 30 days after the later of the entry of judgment or service of notice of judgment. When there is an objection to a magistrate's decision, under App. R. 4(B)(3), the time for filing a notice of appeal begins to run when the order disposing of the objection is entered, but only if the objections are timely filed. Because appellant's objections were not timely, appellant had 30 days from the time the trial court judge adopted the decision on October 10, 2006, to appeal the decision of the trial court on the merits. Further, even if appellant had timely appealed the trial court's October 10 decision, Juv. R. 40(D)(3)(b)(iv) prohibits a party from assigning as error on appeal, except as plain error, any factual findings or legal conclusions of the magistrate unless the party made a timely objection to it, which appellant did not. As a result, except on a claim of plain error, we would likewise be precluded from ruling on the merits of appellant's objections or the underlying motion.Performance Const, Inc. v. Carter Lumber Co., Hancock App. No. 5-04-28, 2005-Ohio-151, 2005 WL 91638, ¶ 11;In re T.M., Butler App. No. CA2007-01-019,2007-Ohio-6034, 2007 WL 3348221, ¶ 9.

{¶ 16} The dissent argues that this court should apply the doctrine of civil plain error on the issue of the timeliness of appellant's objections in order to reach the merits of appellant's appeal, which are also the merits of her objections and underlying motion for a new hearing. We find that it is inappropriate to do under the circumstances of this case.

{¶ 17} Under the rules governing appellate procedure, in order for this court to exercise jurisdiction to review a decision of a lower court, the appeal must be timely. The issue of timeliness of the appeal can be resolved through analysis of the procedural posture of In re Hockstok,98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971. In that case, the trial court initially applied a best-interest-of-the-child standard when it designated a nonparent as the custodian of the minor child at issue. Id. at ¶ 8. The parent filed a motion for reallocation of custody. Id. at ¶ 9. The magistrate applied a best-interest-of-the-child standard and denied the motion for reallocation. Id. The parent objected to the magistrate's decision, arguing that the magistrate was required to apply a parental unsuitability test rather than the best-interest-of-the-child test. Id. at ¶ 10. The judge overruled the objection. Id. The parent appealed, and the court of appeals reversed and remanded, finding that the trial court erred in failing to make a parental unsuitability determination, as required underIn re Perales (1977), 52 Ohio St.2d 89, 6 O.O.3d 293,369 N.E.2d 1047. Hockstok at ¶ 11.

{¶ 18} The Supreme Court affirmed this holding. Id. at ¶ 40. In doing so, the Supreme Court addressed the relevant issue of procedural posture. It stated:

{¶ 19} "[O]ur holding in this case does not change the well-established rule, codified in R.C. 3109.04(B)(1), that after the legal custody determination is made, the best-interest-of-the-child standard should be used for any custody modification petitions filed by a natural parent. A parent should be given only one unsuitability determination, which should come at the time of the legal custody hearing. After such a determination has established, or taken away, a parent's fundamental custodial rights, the focus must shift from the rights of the parents to the rights of the child. A child's rights are effectuated through the use of the best-interest-of-the-child standard for subsequent custodial modification requests." Id. at ¶ 35-39.

{¶ 20} In Hockstok, the Ohio Supreme Court acknowledged that the permanency of final orders is a paramount principle. Id. at ¶ 35. Hockstok outlined a specific exception to this general rule. We are bound to follow the rules of appellate procedure. App. R. 1. We should not be inclined to expand the exception to this rule beyond the circumstances arising in Hockstok.

{¶ 21} Appellant's motion for a new hearing argues that she is entitled to a new hearing regarding parental suitability separate and apart from her pending motion for modification of custody. Hockstok specifically instructs that a parental suitability determination must be made in the context of a legal custody hearing, which appellant currently has pending at the trial court level.Hockstok does not permit the trial court to entertain this motion for a new hearing separate from such a proceeding. In accordance with the procedural posture and specific statements of the Ohio Supreme Court in Hockstok, the trial court should be given the first opportunity to review the record during the course of the pending motion for modification of custody and decide whether a parental unsuitability determination was ever made or if appellant at some point waived her right to such a determination. The trial court will then apply either a parental suitability determination (if one has not yet been made) or a best-interests-of-the-child determination (if a parental suitability determination has already been made or waived) in deciding the motion. Only if the trial court determines that a best-interests-of-the-child standard applies will appellant's right to appeal arise underHockstok. Therefore, although the trial court may have incorrectly made a determination regarding the merits of appellant's motion, it did not err in overruling the motion because, under Hockstok, appellant's arguments must be made to the trial court in the context of the currently pending motion for modification of custody and not through a motion for a new hearing. Any right appellant may have to appeal from the actions of the trial court under Hockstok is not yet ripe for review, but will arise at the time that the trial court enters judgment on the currently pending motion.

{¶ 22} We note that the Supreme Court has instructed that the doctrine of civil plain error should be employed only when "error * * * seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss v. Davidson (1997),79 Ohio St.3d 116, 679 N.E.2d 1099, at syllabus. Having determined that the trial court was not incorrect in refusing to grant appellant a new hearing, we find that the decision to employ the doctrine of civil plain error would not change the outcome of this case for the benefit of appellant, and thus, the circumstances of this case do not rise to such a level as to seriously affect basic fairness. Consequently, we decline to employ civil plain error at this juncture.

{¶ 23} For the foregoing reasons, the decision of the trial court is affirmed.

Judgment affirmed.

POWELL, J., concurs.

WALSH, J., dissents.