[Cite as In re B.O., 2019-Ohio-608.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: B.O. : JUDGES: : Hon. William B. Hoffman, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 18CA64 : 18CA65 : 18CA67 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Juvenile Division, Case Nos. 15-DEP-107 15-DEP-108 15-DEP-109
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 19, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant S.Y.
GINA NENNIG-HENRY DARIN AVERY Richland County Children Services Board 105 Sturges Avenue 731 Scholl Road Mansfield, Ohio 44903 Mansfield, Ohio 44907 Richland County, Case No. 18CA64 2
Baldwin, J.
{¶1} Appellant S.Y. appeals from the July 18, 2018 Judgment Entries of the
Richland County Court of Common Pleas, Juvenile Division.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the mother of B.O. (DOB 5/07/2000), B.O. (DOB 3/5/2009) and
B.O. (DOB 8/17/2006). On July 24, 2015, Richland County Children Services (“RCCS”)
filed complaints alleging that the three children were dependent and/or neglected.
Following a hearing before a Magistrate, the court adopted the Magistrate’s Decisions
finding the children to be dependent children. In 2016, legal custody of them was granted
to his father, S.O.
{¶3} In March of 2017, the three cases were reopened to address appellant’s
visitation with the children. As a result of mediation, the parties reached an agreement as
to visitation. The trial court adopted the agreement as an Order of the court via a
Judgment Entry filed in each case on February 28, 2018.
{¶4} On March 8, 2018, RCCS filed an “Ex Parte Motion to Immediately
Terminate Visitation” between B.O. and appellant in each case. Attached to such motions
was an affidavit from an employee of RCCS stating that appellant had made wrongful
allegations of sexual abuse by S.O. The Magistrate, in temporary orders filed on March
9, 2018, ordered that visitation be immediately suspended between appellant and the
children. The matter was set for a hearing on May 16, 2018 before a Magistrate.
{¶5} The Magistrate, in Decisions filed on June 29, 2018 stated that “all prior
orders granting parenting time or visitation between [appellant] and [B.O.] are terminated.” Richland County, Case No. 18CA64 3
The Magistrate further found in each case that it was in B.O.’s best interest that all contact
with appellant “be only as such as his father, [S.O.], permits.”
{¶6} No objections to the Magistrate’s Decisions were filed. The trial court filed a
Judgment Entry in each case approving and adopting the Magistrate’s Decision on July
18, 2018.
{¶7} Appellant now raises the following assignment of error on appeal:
{¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY TERMINATING
THE PARTIES’ AGREEMENT TO PHASE-IN MOTHER’S VISITATION WITH THE
MINOR CHILD.”
I
Appellant challenges that trial court’s decisions terminating the parties’
agreement to phase-in her visitation with the three minor children.
{¶9} Juv.R. 40(D)(3)(b)(iv) provides that “[e]xcept 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).” “The purpose behind the appellate waiver rule is to
ensure that the trial judge shall have an opportunity to correct any errors occurring in the
trial judge’s court, the only exception being for plain error.” In re M.G. and C.G., 2d Dist.
Miami No. 07-CA-6, 2007-Ohio-3589, ¶ 15.
{¶10} Our review of the record confirms that appellant did not file objections to the
to the Magistrate's Decision pursuant to Juv.R. 40. Accordingly, we find appellant cannot
assign as error on appeal the trial court's adoption of any factual finding or legal Richland County, Case No. 18CA64 4
conclusion pursuant to Juv.R. 40(D)(3). We note that authority exists in Ohio law for the
proposition that appellant's failure to object to the magistrate's decision does not bar
appellate review of “plain error.” In re Ortego, 5th Dist. Tuscarawas No.1999AP05003,
2000 WL 330069(Mar. 8, 2000.) However, the Supreme Court has cautioned against the
over application of plain error analysis.
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.
{¶11} Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997–Ohio–401, 679
N.E.2d 1099.
{¶12} Moreover, appellant failed to provide a transcript of the May 16, 2018
hearing before the Magistrate to the trial court. The transcript was not filed until August
14, 2018, which is after the appeals were filed. This Court has held, “where an appellant
fails to provide a transcript of the original hearing before the magistrate for the trial court's
review, the magistrate's findings of fact are considered established and may not be Richland County, Case No. 18CA64 5
attacked on appeal.” Doane v. Doane, 5th Dist. Guernsey No. 00CA21, 2001 WL
474267(May 2, 2001). When a party objecting to a magistrate's decision has failed to
provide the trial court with the evidence and documents by which the trial court could
make a finding independent of the report, the appellate court is precluded from
considering the transcript of the hearing submitted with the appellate record. State ex rel.
Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 1995–Ohio–272, 654 NH.E.2d
1254.
{¶13} Accordingly, we review appellant’s assignment of error only to analyze
whether the trial court committed plain error. The Magistrate, in the case sub judice,
found, in relevant part, as follows:
{¶14} “Mother had been persistently telling the younger two boys that they were
being sexually abused by Father, by their grandfather, by an uncle, by [B.O.], the oldest
brother. In the preceding year, she had made reports of this sexual abuse multiple times
to RCCSB, to the police, to Mr. Powers1, to a parenting education provider, she even
reported to [B.O.’s] school that he was abusing his brothers. Mother told the younger
boys that they were being raped while they were sleeping, that they were being molested
every night. She tried to coerce them to disclose this alleged abuse to others, promising
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[Cite as In re B.O., 2019-Ohio-608.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: B.O. : JUDGES: : Hon. William B. Hoffman, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 18CA64 : 18CA65 : 18CA67 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Juvenile Division, Case Nos. 15-DEP-107 15-DEP-108 15-DEP-109
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 19, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant S.Y.
GINA NENNIG-HENRY DARIN AVERY Richland County Children Services Board 105 Sturges Avenue 731 Scholl Road Mansfield, Ohio 44903 Mansfield, Ohio 44907 Richland County, Case No. 18CA64 2
Baldwin, J.
{¶1} Appellant S.Y. appeals from the July 18, 2018 Judgment Entries of the
Richland County Court of Common Pleas, Juvenile Division.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the mother of B.O. (DOB 5/07/2000), B.O. (DOB 3/5/2009) and
B.O. (DOB 8/17/2006). On July 24, 2015, Richland County Children Services (“RCCS”)
filed complaints alleging that the three children were dependent and/or neglected.
Following a hearing before a Magistrate, the court adopted the Magistrate’s Decisions
finding the children to be dependent children. In 2016, legal custody of them was granted
to his father, S.O.
{¶3} In March of 2017, the three cases were reopened to address appellant’s
visitation with the children. As a result of mediation, the parties reached an agreement as
to visitation. The trial court adopted the agreement as an Order of the court via a
Judgment Entry filed in each case on February 28, 2018.
{¶4} On March 8, 2018, RCCS filed an “Ex Parte Motion to Immediately
Terminate Visitation” between B.O. and appellant in each case. Attached to such motions
was an affidavit from an employee of RCCS stating that appellant had made wrongful
allegations of sexual abuse by S.O. The Magistrate, in temporary orders filed on March
9, 2018, ordered that visitation be immediately suspended between appellant and the
children. The matter was set for a hearing on May 16, 2018 before a Magistrate.
{¶5} The Magistrate, in Decisions filed on June 29, 2018 stated that “all prior
orders granting parenting time or visitation between [appellant] and [B.O.] are terminated.” Richland County, Case No. 18CA64 3
The Magistrate further found in each case that it was in B.O.’s best interest that all contact
with appellant “be only as such as his father, [S.O.], permits.”
{¶6} No objections to the Magistrate’s Decisions were filed. The trial court filed a
Judgment Entry in each case approving and adopting the Magistrate’s Decision on July
18, 2018.
{¶7} Appellant now raises the following assignment of error on appeal:
{¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY TERMINATING
THE PARTIES’ AGREEMENT TO PHASE-IN MOTHER’S VISITATION WITH THE
MINOR CHILD.”
I
Appellant challenges that trial court’s decisions terminating the parties’
agreement to phase-in her visitation with the three minor children.
{¶9} Juv.R. 40(D)(3)(b)(iv) provides that “[e]xcept 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).” “The purpose behind the appellate waiver rule is to
ensure that the trial judge shall have an opportunity to correct any errors occurring in the
trial judge’s court, the only exception being for plain error.” In re M.G. and C.G., 2d Dist.
Miami No. 07-CA-6, 2007-Ohio-3589, ¶ 15.
{¶10} Our review of the record confirms that appellant did not file objections to the
to the Magistrate's Decision pursuant to Juv.R. 40. Accordingly, we find appellant cannot
assign as error on appeal the trial court's adoption of any factual finding or legal Richland County, Case No. 18CA64 4
conclusion pursuant to Juv.R. 40(D)(3). We note that authority exists in Ohio law for the
proposition that appellant's failure to object to the magistrate's decision does not bar
appellate review of “plain error.” In re Ortego, 5th Dist. Tuscarawas No.1999AP05003,
2000 WL 330069(Mar. 8, 2000.) However, the Supreme Court has cautioned against the
over application of plain error analysis.
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.
{¶11} Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997–Ohio–401, 679
N.E.2d 1099.
{¶12} Moreover, appellant failed to provide a transcript of the May 16, 2018
hearing before the Magistrate to the trial court. The transcript was not filed until August
14, 2018, which is after the appeals were filed. This Court has held, “where an appellant
fails to provide a transcript of the original hearing before the magistrate for the trial court's
review, the magistrate's findings of fact are considered established and may not be Richland County, Case No. 18CA64 5
attacked on appeal.” Doane v. Doane, 5th Dist. Guernsey No. 00CA21, 2001 WL
474267(May 2, 2001). When a party objecting to a magistrate's decision has failed to
provide the trial court with the evidence and documents by which the trial court could
make a finding independent of the report, the appellate court is precluded from
considering the transcript of the hearing submitted with the appellate record. State ex rel.
Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 1995–Ohio–272, 654 NH.E.2d
1254.
{¶13} Accordingly, we review appellant’s assignment of error only to analyze
whether the trial court committed plain error. The Magistrate, in the case sub judice,
found, in relevant part, as follows:
{¶14} “Mother had been persistently telling the younger two boys that they were
being sexually abused by Father, by their grandfather, by an uncle, by [B.O.], the oldest
brother. In the preceding year, she had made reports of this sexual abuse multiple times
to RCCSB, to the police, to Mr. Powers1, to a parenting education provider, she even
reported to [B.O.’s] school that he was abusing his brothers. Mother told the younger
boys that they were being raped while they were sleeping, that they were being molested
every night. She tried to coerce them to disclose this alleged abuse to others, promising
them a puppy, a big house, McDonalds, etc.
{¶15} “All three boys as well as Father consistently denied being sexually abused
or perpetrating sexual abuse. On one occasion [B.O.] told Shawn Powers that sexual
abuse had happened but also told him that he was coerced to say that. School personnel
reported that [B.O.] had repeated the allegations at school but, based on his demeanor
1Shawn Powers is a licensed professional counselor with Family Life Counseling who testified at the hearing. Richland County, Case No. 18CA64 6
when doing so, felt he was being brainwashed or coerced. RCCSB investigated multiple
times and each time found no basis for the allegations. Shawn Powers who had
counseled the two younger boys since 2015 found no basis to believe the allegations of
sex abuse. Despite numerous directives from the Court and warnings from Mr. Powers
about the harm to the boys, Mother continues to make these allegations to the boys and
third parties.
{¶16} “Shawn Powers had diagnosed the younger two boys with post-traumatic
stress disorder due, at least in part, to Mother’s assaultive and destructive behaviors in
the past and found that their emotional and behavioral health was negatively impacted by
these traumas. He opined that Mother’s current, persistent allegations of sex abuse are
highly disturbing to them and causing new trauma. Testimony established that their
grades their physical and emotional wellbeing was being negatively affected by Mother’s
conduct.
{¶17} “Mother has demonstrated that she will not refrain from making these
disturbing and false allegations to authorities and to the boys, despite instructions from
the Court, or advice from the boys’ counsellor.
{¶18} “Father has demonstrated that he has the best interests of the children at
heart regarding visitation with Mother. In the past he has supported Mother’s visitation,
contributing games and materials to her parenting time, taking the children to visits at her
home, to visits at RCCSB, hiring persons to transport the boys to visits with mom. The
children love their mother and want to see her; Father appears sympathetic to that. The
Court has good reason to believe that Father will facilitate contact between the children
and Mother so longs as it is not detrimental to their mental, emotional and physical health.” Richland County, Case No. 18CA64 7
{¶19} Based on the Magistrate’s established findings, we find no plain error in the
trial court’s decision adopting the Magistrate’s Decision terminating the parties’
agreement to phase-in appellant’s visitation.
{¶20} Therefore, appellant’s sole assignment of error is overruled.
{¶21} Accordingly, the judgment of the Richland County Court of Common Pleas,
Juvenile Division, is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.