In re S.D.

[Cite as In re S.D., 2023-Ohio-1645.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: S.D. : APPEAL NO. C-220483
TRIAL NO. F18-1396X
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 17, 2023
Christopher P. Kapsal, for Appellee Mother,
Father, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Presiding Judge.
{¶1} Appellant mother requests reversal of the juvenile court’s order
granting custody of S.D. to appellee father. In two assignments of error, mother argues
that the juvenile court abused its discretion in awarding custody to father because it
violated mother’s due-process rights of notice and an opportunity to be heard and that
the court failed to apply the correct legal standard in its custody decision.
{¶2} After a thorough review of the record, we hold that mother’s due-
process rights were violated, and the juvenile court abused its discretion by divesting
mother of legal custody.
I. Factual and Procedural History
{¶3} S.D. was previously adjudicated dependent and placed in the temporary
custody of the Hamilton County Department of Job and Family Services (“HCJFS”).
After mother’s cooperation with HCJFS and participation in case-plan services, the
juvenile court remanded custody to mother in July 2020. The court ordered that father
was entitled to reasonable visitation.
{¶4} In December 2021, father initiated contempt proceedings against
mother, alleging that she had not permitted visitation as ordered. Father also filed a
motion for visitation. Mother missed the first hearing on father’s motions, but she
attended the second hearing. In May 2022, when father did not attend the third
hearing on his motions, the court dismissed his motions without prejudice.
{¶5} In June 2022, Father filed a motion for custody of S.D. and a request for
an emergency hearing. At the emergency hearing, the magistrate denied father’s
request for emergency custody and scheduled a pretrial hearing on the custody motion
for July 19, 2022.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Mother and father both appeared at the July 19 hearing, which was
conducted remotely via Zoom videoconference. After a lengthy exchange between
mother and father, the magistrate interrupted and stated:
Okay. Your trial date is August 1 at ten. I put you both on mute.
And I’ll hear from you with sworn testimony at that date and time.
Thank you, folks. Good luck on working this out.
The magistrate then answered father’s question about presenting evidence. After that,
the magistrate ended the hearing.
{¶7} On the morning of August 1, the magistrate conducted the custody trial
in person. Father appeared, but mother did not. The magistrate noted that mother had
not appeared but made no further comment about mother’s status. After taking
testimony from father, the magistrate granted father’s motion for custody.
{¶8} Later that day, mother, acting pro se, filed a motion for custody and a
request for an emergency hearing. That same day, mother appeared at an ex-parte
hearing on her motion before a different magistrate. Mother testified that she was
unaware that the trial had been scheduled for that morning. She testified that she did
not hear the date set at the end of the July 19 hearing, and no written notice had been
mailed to her. Mother explained that she did not find out about the trial until after it
had concluded, when she called her cousin, who had been watching S.D., to discuss
another matter. Her cousin informed her that father had been granted custody that
morning. Mother also testified to various conditions in support of returning custody
of S.D. to her.
{¶9} The magistrate denied mother’s motion because mother had not
demonstrated that S.D. was at imminent risk of serious emotional or physical harm.
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OHIO FIRST DISTRICT COURT OF APPEALS
The magistrate then informed mother that the proper recourse would be to file
objections to the magistrate’s custody decision. The magistrate stated, “I can’t grant
this motion, but I think the situation is very concerning, and there’s a lot of things
going on at a lot of different levels.”
{¶10} The next day, mother filed a motion to set aside the magistrate’s
decision. Mother followed this with written objections to the magistrate’s decision on
August 11. In both filings, mother addressed the lack of notice of the August 1 trial date.
Mother also made factual assertions suggesting that father’s custody of S.D. is not in
S.D.’s best interest and challenged the merits of the magistrate’s custody decision.
{¶11} On September 2, the juvenile court held a hearing on mother’s motion
to set aside and her objections to the magistrate’s decision. At the objections hearing,
mother was represented by counsel. Father appeared pro se. The court limited
argument to the issue of notice and would not take additional evidence on the merits
of the custody decision.
{¶12} At the hearing, mother established that the court had not been sending
documents to her correct address, but rather had been sending mail to her old address
that was not forwarded. Mother testified that she had learned of the July 19 hearing
from her caseworker, “maybe 10 hours before the court date.” Mother testified that the
Zoom audio connection was not very good during the hearing. Mother claimed that
she had not been able to hear the trial date, and then because the magistrate had put
her on mute, she could not alert the court to the fact that she had not heard. Finally,
mother testified that she did not receive notice of the hearing by mail. The court’s
docket confirms that no notice of the August 1 trial date was sent to mother or father.
{¶13} Following the hearing, the court denied mother’s objections. The court
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OHIO FIRST DISTRICT COURT OF APPEALS
found that “[t]he Magistrate clearly identified the date for trial in the July 19, 2022
hearing which Mother participated in.” The court also found that there was sufficient
evidence to permit the magistrate to decide custody in favor of father. Accordingly, the
court adopted the magistrate’s decision and granted custody of S.D. to father.
{¶14} Mother timely appealed the juvenile court’s order.
II. Analysis
{¶15} In her first assignment of error, mother argues that “[t]he Juvenile
Court abused its discretion by divesting mother of legal custody when only an ex-parte
trial was conducted, and pre-trial procedures required by local rule and due process
had not been complied with, resulting in a lack of proper inquiry into adequate notice
to appellant and of her right to counsel.”
{¶16} Mother argues that she was denied her right to due process because she
lacked adequate notice of the custody trial. Mother also argues that the juvenile court
did not make her aware of her right to counsel in the custody proceedings, in violation
of the local rules in effect at the time. Mother contends that the juvenile court had the
opportunity to correct the due-process issue at the hearing on mother’s objections, but
instead chose to only allow additional evidence regarding the notice issue.
{¶17} This court reviews custody decisions of the juvenile court for an abuse
of discretion. Bohannon v. Lewis, 1st Dist. Hamilton Nos. C-210316 and C-210332,
2022-Ohio-2398, ¶ 14. As such, this court must affirm the decision below “unless the
court has exercised its discretionary judgment over the matter in an unwarranted way
or committed legal error.” State v. A.S., 2022-Ohio-3833, 199 N.E.3d 994, ¶ 5 (1st
Dist.), citing Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d
463, ¶ 35. We employ a de novo review in matters alleging a violation of due process.
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OHIO FIRST DISTRICT COURT OF APPEALS
Puruczky v. Corsi, 2018-Ohio-1335, 110 N.E.3d 73, ¶ 17 (11th Dist.).
{¶18} Due process requires both notice and an opportunity to be heard. In re
Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 13. “ ‘An
elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.’ ” Id., quoting Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
{¶19} The juvenile court held that “[t]he magistrate clearly identified the date
for the trial in the July 19, 2022 hearing which Mother participated in.” We agree that
the magistrate did state the trial date on the record. However, the issue before the
juvenile court was that mother claimed, under oath, that she did not hear this date and
did not receive notice of the date. The juvenile court failed to address the issue of
whether mother lacked notice of the custody trial date.
{¶20} After reviewing the record, we are persuaded that mother lacked notice
of the custody trial date. The court’s docket confirms that no notice was sent by mail
or other means by the court. The only opportunity mother had to be informed of the
date was the single statement from the magistrate at the Zoom pretrial hearing. The
transcript of that hearing shows that mother was having audio difficulties, and mother
testified to that fact at the objections hearing. The transcript also shows that the
magistrate made no effort to confirm that the parties had actually heard the date and
time set for the trial. In addition, when mother became aware that the trial had been
conducted without her presence, she filed an emergency motion for custody and
appeared before a magistrate that same day.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Taking into account the remote nature of the pretrial hearing, the
magistrate’s failure to confirm that the parties had heard the date, the lack of any other
form of notice provided by the court, mother’s immediate action upon learning about
the custody decision, and mother’s uncontested, sworn testimony at the objections
hearing, we find that mother was not afforded adequate notice of the custody trial
before the magistrate.
{¶22} “Under Juv.R. 40(D)(4)(b), in ruling on objections, a juvenile court may
‘take additional evidence, or return a matter to a magistrate.’ ” In re M/W Children,
1st Dist. Hamilton No. C-180623, 2019-Ohio-948, ¶ 38. Upon learning that mother
did not attend the custody trial because she did not hear the magistrate state the trial
date on the record and did not receive notice by mail, the juvenile court had the
opportunity to correct this problem at the objections hearing. It could have either
taken additional evidence on the merits of the custody motion or returned the matter
to the magistrate to do the same. But the juvenile court made clear that it would only
take evidence on the notice issue.
{¶23} In light of the fact that mother did not receive notice of the magistrate
trial date, we find that it was an abuse of discretion for the juvenile court to overrule
mother’s objections without taking additional evidence or at a minimum, returning
the matter to the magistrate. See, e.g., id. at ¶ 38 (holding that the juvenile court “could
have conserved substantial judicial resources while causing little inconvenience to the
parties or the court” by permitting additional testimony on the merits at the objections
hearing).
{¶24} Because mother lacked adequate notice of the custody trial, it was an
abuse of discretion to award custody to father.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶25} For the foregoing reasons, we sustain mother’s first assignment of error,
reverse the judgment of the juvenile court, and remand the cause for further
proceedings. Because the first assignment of error is dispositive, the second
assignment of error is moot, and we decline to address it. See App.R. 12(A)(1)(c).
Judgment reversed and cause remanded.
ZAYAS and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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