In Re O.H.W. , 175 Ohio App. 3d 349 ( 2008 )

{¶ 24} The majority decides this case on the procedural basis that appellant's objections to the magistrate's decision were not timely, and therefore, she failed to preserve her right to appeal the magistrate's decision. I find that this reasoning is flawed in the context of this case. For the reasons that follow, I respectfully dissent.

{¶ 25} This case involves a private custody dispute. Appellant is a pro se litigant. The Ohio Supreme Court has stated "`that pro se litigants are presumed to have knowledge of the law and legal procedures and that they are held to the same standard as litigants who are represented by counsel'" in the application of rules of procedure.State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352,354, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quotingSabouri v. Ohio Dept. of Job Family Servs. (2001), 145 Ohio App.3d 651, 654, 763 N.E.2d 1238. However, it is widely acknowledged that cases regarding parental custody involve issues of fundamental rights, and throughout such proceedings, parents are entitled to every procedural and substantive protection the law allows. See In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680.

{¶ 26} Appellant did technically file her objections outside the 14-day period permitted under Juv. R. 40(D)(3)(B)(i). But there were two errors at the trial court level that would allow this court to determine that the trial court abused its discretion in overruling appellant's late objections. The first error is that the magistrate's decision was required to contain language informing appellant of the rule under which she could enter an objection and of her obligation to object in order to preserve her right to appeal. Specifically, Juv. R. 40(D)(3)(a)(iii) requires that a magistrate's decision include conspicuous language informing the parties that "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 timely and specifically objects to that factual finding or legal conclusion as required by Juv. R. 40(D)(3)(b)." This language was not included in the magistrate's decision denying appellant's motion for a new hearing. Thus, appellant was not formally apprised, as required under the rules, of the procedural rules for filing objections.

{¶ 27} Further, the judgment entry that arguably adopts the magistrate's decision is ambiguous at best or misleading at worst. It states:

{¶ 28} "Magistrate's Decision is effective upon approval by the Judge and the journalization by the Court. The parties have 14 days within which to file objections to the Magistrate's Decision or 10 days within which to file objections to the Magistrate's Order, which would operate as a stay of this order."

{¶ 29} Although the judgment entry purported to explain the procedural rules, it did not apprise appellant of the rule from which these obligations arise, and it ambiguously identified the date from which the time periods began to run. Notably, appellant's objections were filed 14 days after the date of the filing of the judgment entry, which is a reasonable mistake for a pro se litigant to make in light of the failure of the magistrate to include the language required under the rules directing appellant to the proper rule, and the compounding failure of the judge to clearly state the date on which the time period began to run. I believe that "[s]imple fairness requires that when the court * * * provides to a concerned parent notice of the procedural requirements to be met for protection of parental rights, that notice must be accurate, not misleading." In re Adoption of Greer (Mar. 16, 1993), Hancock App. No. 5-92-34, 1993 WL 75093 at *2. In this situation, the trial court abused its discretion in overruling appellant's objections as untimely because the court documents provided to appellant did not contain the required language and were misleading.

{¶ 30} In its decision overruling appellant's objections, the trial court specifically stated, "With regard to the objections of October 24, 2006, the Court finds that the objections go back to a variety of hearings [sic] one conducted January 9, 2003 and others in the past. The objections are neither timely filed, being entirely too late, are [sic] without merit on their allegations, or both." It appears from this statement that the trial court found that appellant's objections were untimely because they related back to the original custody determination of January 2003.

{¶ 31} Appellant logically directed her arguments on appeal toward this issue of timeliness of her motion for a new hearing, which was addressed in her objections and by the judge in the decision overruling appellant's objections. Appellees in their brief do argue that the objections were untimely because they were filed outside the 14-day period under Juv. R. 40(D)(3)(B)(iii). However, this court should sua sponte address this issue under the theory of civil plain error.

{¶ 32} In the civil context, plain error is not favored. Goldfuss v. Davidson (1997),79 Ohio St.3d 116, 679 N.E.2d 1099. The Ohio Supreme Court admonishes that it should be applied only "in the extremely rare case involving exceptional circumstances where 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." Id. at syllabus. Because an error has occurred that so clearly implicates infringement of appellant's fundamental rights in this case, I am of the opinion this court should exercise its discretion. See, e.g., In reMcCain, Vinton App. No. 06CA654, 2007-Ohio-1429,2007 WL 914870, ¶ 25. Having found that appellant's objections were not untimely, I proceed to address the merits of appellant's assignments of error.

{¶ 33} The fourth assignment of error argues that the trial court improperly failed to bifurcate its adjudicatory and dispositional hearings regarding custody of the child. Appellant's brief reveals that she is confused regarding the procedural circumstances of this case. She does not appreciate the difference between a custody suit arising from a complaint filed by the state (through a county children services agency) and a private custody dispute.

{¶ 34} Appellant cites In re Riddle (1997), 79 Ohio St.3d 259, 680 N.E.2d 1227, for its statements regarding the adjudication of neglect or dependency in an agency-initiated proceeding. Despite appellant's misunderstanding of the procedure at issue in this case,Riddle remains applicable because the trial court purported in the original custody determination in the case at bar to make a finding of dependency and neglect, giving rise to appellant's confusion. In Riddle, the Ohio Supreme Court cautioned that "a neglect/dependency complaint should not be filed as a substitute for a custody action." The court stated that "a child who is receiving proper care pursuant to an arrangement initiated by the parent with a caregiver is not a dependent child under R.C. 2151.04(A)." The court stated that a "parent's voluntary act of placing the child with a responsible relative is an indicator of proper parental care, and does not support a finding that the parent is at fault" for purposes of a neglect proceeding under R.C. 2151.03(A)(2). Id. at 263, 680 N.E.2d 1227. In these situations, "the care furnished by the relative can be imputed to the parent." Id.

{¶ 35} Appellant argues that she is entitled to a new custody determination because the trial court omitted the "adjudicatory phase." She argues that the trial court conceded her parental fitness. She argues that the adjudication of neglect and dependency was unlawful because she was fit as a parent. She argues that her due process rights were violated when the trial court failed to consider the fundamental nature of her parental rights. She specifically argues that underRiddle, the trial court was foreclosed from finding that her child was either neglected or dependent because he was receiving proper parental care initiated by her.

{¶ 36} While appellant is correct that failure to bifurcate a permanent custody proceeding into separate adjudicatory and dispositional hearings amounts to reversible error, Riddle is not dispositive on this appeal. Because the state (i.e., children services) is not involved in these proceedings, the hearings do not amount to a permanent custody proceeding subject to the bifurcation requirement. As the Ohio Supreme Court directed in Riddle, there is a necessary distinction between a custody proceeding prosecuted by the state and a private custody dispute. The case at bar is a private custody dispute subject to juvenile court jurisdiction under R.C. 2151.23(A)(2) and is not required to be bifurcated. For these reasons, I would overrule this assignment of error.

{¶ 37} The third assignment of error argues that the trial court erred in failing to apply strict scrutiny to an alleged due process violation affecting her fundamental rights. Strict scrutiny is a standard that applies when a court reviews allegations that a statute or rule impinges on a person's fundamental rights, depriving the person of substantive due process. Harrold v. Collier, 107 Ohio St.3d 44,2005-Ohio-5334, 836 N.E.2d 1165, ¶ 39. In this case, appellant has not argued that any statutes have adversely affected her rights. Rather, she alleges that the procedures used by the juvenile court, as applied in this case, failed to protect her fundamental rights. Thus, appellant's claims give rise to procedural due process claims rather thansubstantive due process claims. Consequently, this assignment of error fundamentally misstates the law, and I would overrule it on that basis.

{¶ 38} Appellant's purported first and second assignments of error are basically issues arising under a single assignment of error, which argues that the trial court erred when it overruled her motion for a new trial. Under Ohio and federal law, "parents have a fundamental liberty interest in the care, custody and management of their children" that is protected by the Due Process Clause of the Fourteenth Amendment to the United State Constitution and Section 16, Article I of the Ohio Constitution. In re Hockstok,98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 16, citing Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. Because this is a constitutional right, any action by the state used to deprive the parent of the right must be fundamentally fair. Hockstok at ¶ 16, citing Santosky at 754, 102 S.Ct. 1388, 71 L.Ed.2d 599.

{¶ 39} In In re Perales (1977),52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047, the Ohio Supreme Court effectuated those restrictions by holding that "[i]n an R.C. 2151.23(A)(2) child custody proceeding between a parent and a nonparent, the hearing officer may not award custody to the nonparent without first making a finding of parental unsuitability that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the parent has become totally incapable of supporting or caring for the child, or that an award of custody to the parent would be detrimental to the child."Perales at syllabus. The court stated that "[a]lthough divorce custody proceedings involving disputes between two parents are logically best served by looking only to the welfare of the child, the court's scope of inquiry must, of necessity, be broader in R.C. 2151.23(A) custody proceedings between a parent and a nonparent, which bring into play the right of the parent to rear his own child." Id. at 96, 6 O.O.3d 293, 369 N.E.2d 1047. The court directed that once a trial court finds the existence of one or more of the factors, "it must indicate that a preponderance of the evidence militates against parental custody by making a finding of unsuitability."

{¶ 40} Appellees argued only that appellant's arguments were not timely, particularly because they related back to the original custody determination of the trial court made in January 2003. The Ohio Supreme Court has specifically addressed this issue in a case cited and discussed by appellant in her brief. See Hockstok at ¶ 34-39. The court noted at ¶ 35:

{¶ 41} "Unlike most areas of the law where permanency of final orders is a paramount principle, in child custody law, flexibility is often an overriding concern. Such flexibility is codified in R.C. 2151.011(B)(19), which defines the term `legal custody' as `a legal status that vests in the custodian the right to have physical care and control of the child * * * subject to any residual parental rights,privileges, and responsibilities' This definition of legal custody is statutory codification of the principle that in child custody, permanency of final orders is not always of the highest priority."

{¶ 42} This is a fundamental difference between a permanent custody proceeding instituted by the state and a private custody dispute between a parent and a nonparent. In a grant of legal custody, the parent is not divested of her fundamental parental rights, and she can petition the court for modification at any time. Id. at ¶ 36. In Hockstok, the court held that because the appellant in that case retained residual parental rights and was denied the proper parental unsuitability determination afforded in Perales, the case was required to be remanded for a proper suitability determination. Id. The court found that such an outcome was consistent with the Ohio jurisprudence holding that "in custody cases between a natural parent and nonparent, a parental unsuitability determination must be made and appear in the record before custody can be awarded to a nonparent. This result preserves the fundamental parental rights" never forfeited in this type of proceeding. Id.

{¶ 43} Hockstok and Perales indicate that reversible error exists where a parent is able to show that no parental suitability determination was made before custody was granted to a nonparent. For the foregoing reasons, I find that appellant's first and second assignments of error have merit. I would reverse the decision of the trial court and remand this case for a new hearing consistent with the law set forth herein.