In re A.R.

[Cite as In re A.R., 2019-Ohio-713.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
:
: Hon. William B. Hoffman, P.J.
: Hon. Patricia A. Delaney, J.
IN RE A.R. : Hon. Craig R. Baldwin, J.
:
: Case No. 18CA44
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Juvenile Division,
Case No. 2017-DEP-00025
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 27, 2019
APPEARANCES:
For Mother-Appellant:
DARIN AVERY
105 Sturges Ave.
Mansfield, OH 44903
Richland County, Case No. 18CA44 2
Delaney, J.
{¶1} Mother-Appellant appeals the May 17, 2018 judgment entry of the Richland
County Court of Common Pleas, Juvenile Division. Appellee Richland County Children
Services Board and Appellee Father did not file an appellate brief.
FACTS AND PROCEDURAL HISTORY
{¶2} N.R., Mother-Appellant, was residing at a drug treatment facility receiving
methadone treatment when she gave birth to A.R. on January 21, 2017. A.R. tested
positive for methadone at birth. While at the hospital, the staff observed Mother repeatedly
falling asleep while she breastfed A.R. For A.R.’s welfare, the hospital staff would not
permit Mother to be alone with A.R. On January 23, 2017, A.R. tested positive for opiates
even though Mother had not been prescribed opiates. Mother wanted to bring A.R. to the
residential drug treatment facility, but the facility could not supervise the child.
{¶3} On February 15, 2017, the Richland County Children Services Board
(“RCCSB”) filed a complaint alleging A.R. was a dependent and abused child pursuant to
R.C. 2151.04 and 2151.031. Father of A.R. was alleged to be L.E. pending genetic
testing.
{¶4} A.R. was adjudicated a dependent child on April 25, 2017. By judgment
entry issued May 3, 2017, A.R. was placed in the temporary custody of RCCSB. RCCSB
placed the child with maternal relatives. At that time, Father’s paternity had not been
established. Mother had voluntarily left her drug treatment facility without completing her
treatment and her address was unknown. RCCSB established a case plan for Mother and
Father. The case plan included visitation for both parents. Father complied with his case
plan requirements. As part of her case plan, Mother was required to successfully
Richland County, Case No. 18CA44 3
complete substance abuse treatment with random drug screens and releases of
information to RCCSB. Mother did not complete her case plan requirements.
{¶5} On May 9, 2017, Father filed a motion for disposition requesting temporary
custody of the child.
{¶6} Father’s paternity was established by genetic testing and court order on
May 10, 2017.
{¶7} In July 2017, Mother was indicted in Richland County for possession of
heroin, aggravated possession of drugs, and possession of drugs.
{¶8} On September 12, 2017, Father filed a motion for no contact order. Father
requested the trial court order that it was in the best interests of A.R. that Mother be
prohibited from having contact with Father. Mother allegedly came to Father’s residence
without invitation while A.R. was present. Mother made allegations against Father and
refused to leave.
{¶9} The trial court granted Father’s motion for no contact on October 19, 2017.
{¶10} The trial court held a hearing on October 20, 2017 on Father’s motion for
temporary custody. At the time of the hearing, Mother was confined in the Richland
County Jail based on a probation violation. Mother had a recent opiate overdose, but she
did not know the reason for her recent confinement because she stated she had so many
drug-related cases pending. Mother opposed Father’s motion that he be awarded
temporary custody of the child. She claimed at the hearing that she observed Father
sexually abuse the child during her unsanctioned visit to Father’s home, which was the
impetus for the no-contact order. Mother claimed her observation of the incident caused
her to take heroin again. RCCSB investigated Mother’s claim and found it was
Richland County, Case No. 18CA44 4
unsubstantiated. The Guardian ad litem recommended temporary custody be awarded to
Father with the child remaining in the protective supervision of the RCCSB.
{¶11} On February 1, 2018, the magistrate issued its amended magistrate’s
decision recommending that temporary custody of the child be granted to Father, with an
order of protective supervision to RCCSB. The magistrate further recommended that it
was in the best interests of the child that Mother have no contact with the child and Father
pending presentation of proof of her substantial compliance with the substance abuse
treatment as stated in her case plan.
{¶12} Mother filed objections to the magistrate’s decision on February 15, 2018.
She argued the magistrate’s decision was not supported by the evidence at trial and
against the manifest weight of the evidence. Mother filed supplemental objections to the
magistrate’s decision on May 1, 2018. She objected to the magistrate’s findings of facts
that RCCSB fully investigated her concerns regarding Father’s alleged sexual abuse of
the child and that Father was giving the child the proper protection and care.
{¶13} On May 17, 2018, the trial court overruled Mother’s objections and adopted
the magistrate’s decision.
{¶14} It is from this judgment Mother now appeals.
ASSIGNMENT OF ERROR
{¶15} Mother raises one Assignment of Error:
{¶16} “THE COURT ABUSED ITS DISCRETION BY ORDERING MOTHER TO
HAVE NO CONTACT WITH HER INFANT CHILD A.R.”
Richland County, Case No. 18CA44 5
ANALYSIS
{¶17} Mother contends in her sole Assignment of Error that the trial court abused
its discretion when it ordered Mother to have no contact with the child until she completed
her drug treatment pursuant to her case plan. She argues the magistrate failed to
establish the no-contact order was in the best interest of the child. We have reviewed
Mother’s objections and supplemental objections to the magistrate’s decision. Based
upon our review of her objections, we find Mother failed to file a specific objection to the
magistrate’s conclusion of law that “it is in [A.R.’s] best interests that the Court’s prior
order of no contact between the minor child and [Mother] be maintained pending
[Mother’s] successful completion of substance abuse treatment and pending further order
of this Court.” (Amended Magistrate’s Decision, Feb. 1, 2018).
{¶18} Objections to a magistrate’s decision are governed by Civ.R. 53. Civ. R.
53(D) states in pertinent part:
(3) Magistrate's decision; objections to magistrate's decision
***
(b) Objections to magistrate's decision
***
(i) Time for filing. A party may file written objections to a magistrate's decision
within fourteen days of the filing of the decision, whether or not the court has
adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i). If any party timely files objections, any other party may also
file objections not later than ten days after the first objections are filed. If a
party makes a timely request for findings of fact and conclusions of law, the
Richland County, Case No. 18CA44 6
time for filing objections begins to run when the magistrate files a decision
that includes findings of fact and conclusions of law.
(ii) Specificity of objection. An objection to a magistrate's decision shall be
specific and state with particularity all grounds for objection.
***
(iv) Waiver of right to assign adoption by court as error on appeal. 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 Civ.R.
53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Civ.R. 53(D)(3)(b).
{¶19} Mother failed to file a specific objection pursuant to Civ.R. 53(D)(3)(b) that
argued the magistrate erred in continuing the no-contact order with child until Mother
completed her drug treatment. We therefore find Mother cannot assign as error on appeal
the trial court's adoption of any factual finding or legal conclusion pursuant to Civ.R.
53(D)(3)(b)(iv). We note that authority exists in Ohio law for the proposition that Mother's
failure to object to a conclusion of law in a magistrate's decision does not bar appellate
review of “plain error.” In re B.H., 5th Dist. Fairfield No. 14–CA–53, 2014–Ohio–5790, ¶¶
56–57 citing R.G. Real Estate Holding, Inc. v. Wagner, 2nd Dist. Montgomery App. No.
16737, 1998 WL 199628(Apr. 24, 1998); In re Ortego, 5th Dist. Tuscarawas
No.1999AP05003, 2000 WL 330069 (Mar. 8, 2000); Batsch v. Tress, 11th Dist. Portage
No.2000–P–0022, 2001–Ohio–4343. However, the Supreme Court has cautioned against
the over application of plain error analysis:
Richland County, Case No. 18CA44 7
The plain error doctrine originated as a criminal law concept. In applying the
doctrine of plain error in a civil case, reviewing courts must proceed with the
utmost caution, limiting the doctrine strictly to those extremely rare cases
where exceptional circumstances require its application to prevent a
manifest miscarriage of justice, and where the error complained of, if left
uncorrected, would have a material adverse effect on the character of, and
public confidence in, judicial proceedings. Schade, 70 Ohio St.2d at 209, 24
O.O.3d at 317, 436 N.E.2d at 1003; LeFort v. Century 21–Maitland Realty
Co. (1987), 32 Ohio St.3d 121, 124, 512 N.E.2d 640, 643; Cleveland Elec.
Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 275, 18 OBR
322, 327–328, 480 N.E.2d 794, 800.
Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997–Ohio–401, 679 N.E.2d 1099.
{¶20} Mother argues the trial court abused its discretion by denying her visitation
with her child. A trial court enjoys broad discretion in deciding matters regarding the
visitation of non-residential parents. Matter of X.G., 5th Dist. Tuscarawas No. 2018 AP 04
0015, 2018-Ohio-4890, 2018 WL 6435764, ¶¶ 26-28 citing Appleby v. Appleby, 24 Ohio
St.3d 39, 492 N.E.2d 831 (1986). However, a non-residential parent's right of visitation is
a natural right and should be denied under extraordinary circumstances, including
unfitness of the noncustodial parent or a significant risk of harm to the child. Cremeans v.
Cheadle, 5th Dist. Licking No. 07 CA 25, 2008-Ohio-2148. The standard of review
concerning visitation rights is whether the trial court committed an abuse of discretion.
Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989). An abuse of discretion
Richland County, Case No. 18CA44 8
implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶21} The juvenile court retains the authority to grant, limit, or eliminate visitation
rights with respect to a child when crafting the final disposition of a case. In order to further
a child's best interest, the trial court has the discretion to limit or restrict visitation rights.
Hurst v. Hurst, 5th Dist. Licking No. 12-CA-70, 2013-Ohio-2674. “This includes the power
to restrict the time and place of visitation, to determine the conditions under which
visitation will take place, and to deny visitation rights altogether if visitation would not be
in the best interest of the child.” Jannetti v. Nichol, 7th Dist. Mahoning No. 97-CA-239,
2000 WL 652540 (May 12, 2000).
{¶22} Because custody issues are some of the most difficult and agonizing
decisions a trial judge must make, he or she must have wide latitude in considering all
the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). The Ohio
Supreme Court has also explained, “A reviewing court should not reverse a decision
simply because it holds a different opinion concerning credibility of the witnesses and
evidence submitted before the trial court. A finding of an error of law is a legitimate
grounds for reversal, but a difference of opinion on credibility of witnesses and evidence
is not.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). As
an appellate court, we neither weigh the evidence nor judge the credibility of the
witnesses. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). Deferring to
the trial court on matters of credibility is “crucial in a child custody case, where there may
be much evidence in the parties' demeanor and attitude that does not translate to the
record well.” Id.Richland County, Case No. 18CA44 9
{¶23} In this case, we find no plain error or abuse of the discretion for the trial
court to find it was in the best interest of the child to order no-contact between Mother
and child until Mother successfully completed drug treatment. The evidence in this case
demonstrated Mother was struggling with an addiction to heroin. The amended
magistrate’s decision found:
7. [Mother] was conveyed to both hearings from the Richland County Jail.
On October 20, 2017, she was incarcerated for a probation violation. On
January 19, 2018, [Mother] was awaiting sentencing for a felony. [Mother]
testified that she had “so many (presumably drug-related) cases pending
that I don’t know which case” was the basis for her current confinement. On
October 20, 2017, [Mother] testified that she had a recent opiate overdose
but was not sure when it had occurred. [Mother’s] Case Plan required that
she successfully complete substance abuse treatment with random drug
screens and releases of information to Children Services.
8. * * * [Mother] had voluntarily abandoned inpatient treatment in Cincinnati,
Ohio without completing treatment and she had revoked her release of
information to Children Services. In her testimony on October 20, [Mother]
claimed that she had completed drug treatment in Cincinnati; she had
walked away from aftercare at an unnamed facility because of “roommate
conflicts”; that she had regularly attended a methadone clinic at “UCPC
Cincinnati”; and that she had “stacks and stacks of clean drug screens.”
She presented no evidence of any of these claims. In fact, no evidence was
presented indicating that [Mother] has completed nor is involved in ongoing
Richland County, Case No. 18CA44 10
treatment for her substance abuse issues; and the Court finds that her
claims to the contrary lack credibility.
(Amended Magistrate’s Decision, Feb. 1, 2018).
{¶24} The trial court originally issued the no-contact order because Mother came
to Father’s home without permission while Father had visitation with the child. Mother’s
unsanctioned visit caused RCCSB to investigate an unsubstantiated sexual abuse
allegation and Mother allegedly relapsed thereafter. It was within the juvenile court’s
discretion to find it would be in the best interest of the child to deny Mother visitation until
she successfully completed a drug treatment program pursuant to her case plan. It is
within Mother’s control to re-establish visitation by demonstrating compliance with her
case plan.
{¶25} Mother’s sole Assignment of Error is overruled.
Richland County, Case No. 18CA44 11
CONCLUSION
{¶26} The judgment of the Richland County Court of Common Pleas, Juvenile
Division is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Baldwin, J., concur.