[Cite as In re R.H. v. A.M., 2024-Ohio-4479.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. William B. Hoffman, P.J. R.H. : Hon. John W. Wise, J. : Hon. Andrew J. King, J. -vs- : : Case No. 2024 CA 000015 A.M. : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 11 JH 00256
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 11, 2024
APPEARANCES:
For Appellant Grandmother For Mother
SHARON BUCKLEY-MIRHAIDARI A.M., PRO SE 152 North Broadway, #200 128 Mayor Estate Drive New Philadelphia, OH 44663 Cambridge, OH 43725
For Father
R.H., PRO SE 2006 Moody Road Piedmont, SC 29673 Guernsey County, Case No. 2024 CA 000015 2
King, J.
{¶ 1} Appellant, maternal grandmother L.M., appeals the April 29, 2024 order,
judgment, and journal entry of the Court of Common Pleas of Guernsey County, Ohio,
Juvenile Division, denying her notice of withdrawal of prior notice of consent to transfer
custody and naming mother R.M. as legal custodian and residential parent of the child.
We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} This case involves one child, R.M. born December 2010. Mother of the
child is A.M.; father is R.H. Maternal grandmother is L.M. Grandmother has helped care
for the child since birth. Father is not involved in the child's life.
{¶ 3} On August 30, 2019, grandmother filed an ex parte verified motion for
temporary orders seeking custody of the child due to mother's actions. The trial court
granted the motion and named grandmother the temporary legal custodian and primary
residential parent of the child. Also on August 30, 2019, grandmother filed a complaint
for the determination of parental rights and responsibilities, requesting legal custody of
the child.
{¶ 4} A hearing on grandmother's motion before a magistrate was held on June
17, 2020. By decision filed June 19, 2020, the magistrate found mother voluntarily
contractually relinquished custody of the child to grandmother. The magistrate found both
mother and father to be unsuitable and named grandmother legal custodian and
residential parent of the child. Mother was granted supervised visitation. By order,
judgment, and journal entry filed June 19, 2020, the trial court approved and adopted the
magistrate's decision. Guernsey County, Case No. 2024 CA 000015 3
{¶ 5} On August 16, 2021, mother was granted unsupervised visitation.
{¶ 6} Mother continued fighting for custody. Mother's most recent filing for
custody was filed on January 25, 2024. A hearing was scheduled for February 29, 2024.
On that date, grandmother filed a notice with the trial court of her actions to facilitate the
transfer of custody of the child to mother. Apparently, grandmother agreed to do this
because the child had voiced that the child wanted to live with mother and grandmother
was honoring the child's wishes.
{¶ 7} The February hearing was canceled because father had not been served.
The hearing was continued to April 29, 2024.
{¶ 8} The child remained in counseling in order to help facilitate the transfer of
custody. On April 23, 2024, the child's counselor issued a letter stating the child no longer
wanted to live with mother and wanted to remain with grandmother.
{¶ 9} On April 25, 2024, grandmother filed a notice of withdrawal of her prior
notice of consent to transfer custody. The letter from the counselor was attached to the
notice. The counselor was available to testify via telephone at the April 29, 2024 hearing
before a magistrate. By decision filed April 29, 2024, the magistrate denied
grandmother's notice to withdraw her consent and without hearing, granted custody of
the child to mother, naming mother legal custodian and residential parent of the child.
The magistrate found it was in the child's best interests to do so. By order, judgment, and
journal entry filed on April 29, 2024, the trial court approved and adopted the magistrate's
decision.
{¶ 10} Grandmother filed an appeal with the following assignments of error:
I Guernsey County, Case No. 2024 CA 000015 4
{¶ 11} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION IN GRANTING CUSTODY OF THE MINOR CHILD TO
APPELLEE/MOTHER WITHOUT CONSIDERING ANY EVIDENCE AS REQUIRED BY
R.C. 3109.04(E)(1)(a)(iii)."
II
{¶ 12} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION IN RULING THE PARTIES HAD ENTERED INTO AN AGREEMENT FOR
A CHANGE OF CUSTODY OF THE MINOR CHILD."
III
{¶ 13} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
REFUSING TO ALLOW APPELLANT AND THE MINOR CHILD AN OPPORTUNITY TO
BE HEARD IN VIOLATION OF APPELLANT'S AND THE MINOR CHILD'S RIGHT TO
DUE PROCESS AND FUNDAMENTAL FAIRNESS AS GUARANTEED BY THE US AND
OHIO CONSTITUTIONS."
{¶ 14} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall
be sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form. Guernsey County, Case No. 2024 CA 000015 5
The decision may be by judgment entry in which case it will not be
published in any form.
{¶ 15} This appeal shall be considered in accordance with the aforementioned
rule. Mother has not filed an appellate brief; father has not appeared for any of the
custody proceedings.
I, II, III
{¶ 16} Because all of these assignments of error challenge the trial court's decision
on custody, they will be addressed collectively.
{¶ 17} Grandmother raises three issues in support of her position to reverse the
trial court's decision. Unfortunately, grandmother did not file objections to the magistrate's
decision under Juv.R. 40(D)(3)(b)(i): "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 Juv.R.
40(D)(4)(e)(i)." Because grandmother failed to file objections, she has waived her right
to assign as error on appeal the trial court's adoption of the magistrate's decision as
mandated under Juv.R. 40(D)(3)(b)(iv): "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)." This rule "embodies the long-recognized principle that
the failure to draw the trial court's attention to possible error when the error could have
been corrected results in a waiver of the issue for purposes of appeal." In re Etter, 134 Guernsey County, Case No. 2024 CA 000015 6
Ohio App.3d 484, 492 (1st Dist. 1998), citing Goldfuss v. Davidson, 79 Ohio St.3d 116,
121 (1997). The trial court did not have the opportunity to review the issues grandmother
now raises in this appeal.
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[Cite as In re R.H. v. A.M., 2024-Ohio-4479.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. William B. Hoffman, P.J. R.H. : Hon. John W. Wise, J. : Hon. Andrew J. King, J. -vs- : : Case No. 2024 CA 000015 A.M. : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 11 JH 00256
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 11, 2024
APPEARANCES:
For Appellant Grandmother For Mother
SHARON BUCKLEY-MIRHAIDARI A.M., PRO SE 152 North Broadway, #200 128 Mayor Estate Drive New Philadelphia, OH 44663 Cambridge, OH 43725
For Father
R.H., PRO SE 2006 Moody Road Piedmont, SC 29673 Guernsey County, Case No. 2024 CA 000015 2
King, J.
{¶ 1} Appellant, maternal grandmother L.M., appeals the April 29, 2024 order,
judgment, and journal entry of the Court of Common Pleas of Guernsey County, Ohio,
Juvenile Division, denying her notice of withdrawal of prior notice of consent to transfer
custody and naming mother R.M. as legal custodian and residential parent of the child.
We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} This case involves one child, R.M. born December 2010. Mother of the
child is A.M.; father is R.H. Maternal grandmother is L.M. Grandmother has helped care
for the child since birth. Father is not involved in the child's life.
{¶ 3} On August 30, 2019, grandmother filed an ex parte verified motion for
temporary orders seeking custody of the child due to mother's actions. The trial court
granted the motion and named grandmother the temporary legal custodian and primary
residential parent of the child. Also on August 30, 2019, grandmother filed a complaint
for the determination of parental rights and responsibilities, requesting legal custody of
the child.
{¶ 4} A hearing on grandmother's motion before a magistrate was held on June
17, 2020. By decision filed June 19, 2020, the magistrate found mother voluntarily
contractually relinquished custody of the child to grandmother. The magistrate found both
mother and father to be unsuitable and named grandmother legal custodian and
residential parent of the child. Mother was granted supervised visitation. By order,
judgment, and journal entry filed June 19, 2020, the trial court approved and adopted the
magistrate's decision. Guernsey County, Case No. 2024 CA 000015 3
{¶ 5} On August 16, 2021, mother was granted unsupervised visitation.
{¶ 6} Mother continued fighting for custody. Mother's most recent filing for
custody was filed on January 25, 2024. A hearing was scheduled for February 29, 2024.
On that date, grandmother filed a notice with the trial court of her actions to facilitate the
transfer of custody of the child to mother. Apparently, grandmother agreed to do this
because the child had voiced that the child wanted to live with mother and grandmother
was honoring the child's wishes.
{¶ 7} The February hearing was canceled because father had not been served.
The hearing was continued to April 29, 2024.
{¶ 8} The child remained in counseling in order to help facilitate the transfer of
custody. On April 23, 2024, the child's counselor issued a letter stating the child no longer
wanted to live with mother and wanted to remain with grandmother.
{¶ 9} On April 25, 2024, grandmother filed a notice of withdrawal of her prior
notice of consent to transfer custody. The letter from the counselor was attached to the
notice. The counselor was available to testify via telephone at the April 29, 2024 hearing
before a magistrate. By decision filed April 29, 2024, the magistrate denied
grandmother's notice to withdraw her consent and without hearing, granted custody of
the child to mother, naming mother legal custodian and residential parent of the child.
The magistrate found it was in the child's best interests to do so. By order, judgment, and
journal entry filed on April 29, 2024, the trial court approved and adopted the magistrate's
decision.
{¶ 10} Grandmother filed an appeal with the following assignments of error:
I Guernsey County, Case No. 2024 CA 000015 4
{¶ 11} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION IN GRANTING CUSTODY OF THE MINOR CHILD TO
APPELLEE/MOTHER WITHOUT CONSIDERING ANY EVIDENCE AS REQUIRED BY
R.C. 3109.04(E)(1)(a)(iii)."
II
{¶ 12} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION IN RULING THE PARTIES HAD ENTERED INTO AN AGREEMENT FOR
A CHANGE OF CUSTODY OF THE MINOR CHILD."
III
{¶ 13} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
REFUSING TO ALLOW APPELLANT AND THE MINOR CHILD AN OPPORTUNITY TO
BE HEARD IN VIOLATION OF APPELLANT'S AND THE MINOR CHILD'S RIGHT TO
DUE PROCESS AND FUNDAMENTAL FAIRNESS AS GUARANTEED BY THE US AND
OHIO CONSTITUTIONS."
{¶ 14} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall
be sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form. Guernsey County, Case No. 2024 CA 000015 5
The decision may be by judgment entry in which case it will not be
published in any form.
{¶ 15} This appeal shall be considered in accordance with the aforementioned
rule. Mother has not filed an appellate brief; father has not appeared for any of the
custody proceedings.
I, II, III
{¶ 16} Because all of these assignments of error challenge the trial court's decision
on custody, they will be addressed collectively.
{¶ 17} Grandmother raises three issues in support of her position to reverse the
trial court's decision. Unfortunately, grandmother did not file objections to the magistrate's
decision under Juv.R. 40(D)(3)(b)(i): "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 Juv.R.
40(D)(4)(e)(i)." Because grandmother failed to file objections, she has waived her right
to assign as error on appeal the trial court's adoption of the magistrate's decision as
mandated under Juv.R. 40(D)(3)(b)(iv): "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)." This rule "embodies the long-recognized principle that
the failure to draw the trial court's attention to possible error when the error could have
been corrected results in a waiver of the issue for purposes of appeal." In re Etter, 134 Guernsey County, Case No. 2024 CA 000015 6
Ohio App.3d 484, 492 (1st Dist. 1998), citing Goldfuss v. Davidson, 79 Ohio St.3d 116,
121 (1997). The trial court did not have the opportunity to review the issues grandmother
now raises in this appeal.
{¶ 18} The Supreme Court of Ohio defined civil plain error as "error, to which no
objection was made at the trial court, seriously affects the basic fairness, integrity, or
public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself." Goldfuss at syllabus.
{¶ 19} Grandmother failed to object to the magistrate's decision and has not
argued plain error on appeal. "Appellant's failure to argue plain error at this juncture is
fatal as we are constrained to review the trial court's actions for plain error only and
appellant has failed to cite legal authority and develop an argument as to the existence
of an obvious defect in the proceedings that affected appellant's substantial rights." A.A.
v. F.A., 2019-Ohio-1706, ¶ 22 (5th Dist.), citing State v. Benitez-Maranon, 2014-Ohio-
3575, ¶ 7.
{¶ 20} In our review of the record, we do not find any error rising to the level of
plain error as explained in Goldfuss.
{¶ 21} We note the magistrate's decision included the requisite notice for the need
to file objections to any factual findings or legal conclusions in order to challenge the trial
court's adoption of them on appeal. Juv.R. 40(D)(3)(a)(iii).
{¶ 22} Grandmother has failed to preserve the issues she has raised for appellate
review. Consequently, we cannot reach the merits of her arguments.
{¶ 23} Assignments of Error I, II, and III are denied. Guernsey County, Case No. 2024 CA 000015 7
{¶ 24} The judgment of the Court of Common Pleas of Guernsey County, Ohio,
Juvenile Division, is hereby affirmed.
By King, J.
Hoffman, P.J. and
Wise, J. concur.