COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75757 IN THE MATTER OF: JACQUE A. CLAYTON JOURNAL ENTRY AND OPINION DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 9, 2000 CHARACTER OF PROCEEDING: Civil appeal from the Juvenile Court Division of the Cuyahoga County Common Pleas Court, Case No. 9713540 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For appellant, Angela Thomas: NICHOLAS K. THOMAS, ESQ. The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103-1125 For Cuyahoga County Department WILLIAM D. MASON, ESQ. of Children and Family Cuyahoga County Prosecutor Services: CATHERINE P. TUCKER, ESQ. Assistant Prosecuting Attorney C.C.D.C.F.S. 3955 Euclid Avenue Cleveland, Ohio 44115 For appellee father Jacque W. JACQUE W. CLAYTON, pro se Clayton: 3372 W. 95th St., #2 Cleveland, Ohio 44102 -2- KARPINSKI, J.: Mother, Angela Thomas, appeals from an order of the juvenile court granting legal custody of her child to the child's father, appellee Jacque Clayton, Sr. On October 7, 1997, Thomas commenced this matter pro se by filing an application to determine custody of the child. The matter was initially referred for mediation but was placed on the court's active docket for further proceedings in January, 1998 when the parents1 were unable to reach any agreement. Following a hearing attended by the parties, the court appointed a guardian ad litemfor the child and separate counsel for the parents, who were apparently indigent. Thomas filed an affidavit of indigency with her application for custody, but the record contains no such affidavit by Clayton. The parties subsequently appeared with counsel for a final pretrial. The father was ordered to complete a psychological evaluation and each parent was required to complete drug and alcohol evaluation at each parent's own expense. The completed evaluations were to be submitted before the scheduled trial. On May 27, 1998, Clayton filed his own application to determine custody. The matter was scheduled for trial on August 6, 1998, but continued later at the request of Thomas' counsel who had a conflicting trial date. The matter was rescheduled for trial 1 Thomas and Clayton were named as mother and father on copy of the birth certificate submitted with Thomas' application. A subsequent order recites that Clayton was found to be the child's father in a prior juvenile court action. -3- before a magistrate on October 30, 1998. No psychological or drug/alcohol evaluations were filed by the original deadline, but the magistrate extended the filing period until (30) days of trial. The matter ultimately proceeded to a hearing before the magistrate, without evaluations or a report from the guardian ad litem having been filed. Thomas requested the court prepare a complete transcript of the proceedings, which has been certified to this court on appeal as a true and accurate record of the hearing. The transcript is comprised of fewer than seven pages of conversation, begins and ends abruptly, is replete with inaudible statements, and the participants are frequently unidentified. The transcript begins with the magistrate stating: In any event, there's an application before the court to determine custody of the child (inaudible)[.] During the course of the proceedings the parties asserted their positions. An unidentified male asserted that the mother, Thomas, had committed domestic violence and been ordered to leave the residence the parties shared with the child. Counsel for Thomas asserted that the father, Clayton, had been fired from his job at the RTA for drug use and had a conviction for theft. Clayton's counsel requested the court dismiss Thomas' application for custody of the child because she did not appear in person at the hearing. Thomas' counsel requested a continuance and objected to dismissal of her application for custody. In response to the request for a continuance, the guardian ad litem stated: -4- (inaudible). I think it would be in the best interest of both mom and child. The participants thereafter discussed alleged drug abuse by Clayton and his roommate. Counsel for Clayton was unsure whether Clayton completed the drug and alcohol evaluation, but stated that Clayton and his boyfriend who resided with him and the child were straightened out. The guardian ad litem admitted she had not seen a completed drug evaluation for Clayton and had never been in the child's home. No one mentioned the psychological evaluation of Clayton the magistrate had previously ordered. Two unidentified males stated that the County was not involved in this matter but observed Clayton's care of the child. The guardian ad litem relied on Mr. Skully, who apparently worked for the County Department of Family and Children Services and was outside the courtroom. She stated she had reports of inappropriate conduct by Thomas. The transcript concludes with the magistrate stating: Would you bring Mr. Skully in. (END OF HEARING) . None of the statements by any of the participants was made under oath. Following the hearing, the magistrate issued a brief decision. The original decision does not appear to be in the record, but two photocopies are contained in the record. The magistrate's decision provides in pertinent part as follows: Counsel for the Father made an oral Motion that the Mother's Application be dismissed for want of prosecution. The guardian ad litem concurred [sic] with the oral Motion. Counsel for the Mother, objected, and requested that a continuance be granted on the matter. Regarding the Father's Application, this Magistrate heard sworn testimony supporting the Application. Based -5- upon all the evidence submitted at this hearing and upon the recommendation of the Guardian ad litem, this Magistrate finds that for the safety and welfare of this child and in the best interests of this child, the Mother's Application be denied for lack of prosecution, and that the Father's Application for custody be granted. THEREFORE, it is the Decision of this Magistrate, subject to the approval of this Court, that the Application to Determine Custody filed by the Mother is denied. It is further Recommended, subject to the approval of this Court, that the Father's Application to Determine Custody be granted; that it ordered [sic] and decreed that the Father, Jacque Clayton, is the sole residential parent and legal custodian of the child, Jacque Clayton, Jr., born 9/25/94. It is further Recommended, subject to the approval of this Court, that the Mother, Angela Thomas, is entitled to supervised visitation as arranged and monitored by and through an appropriate public or private family agency at the Mother's expense. The trial court approved and signed a copy of the magistrate's decision. Thomas pro se timely filed a notice of appeal. A motion panel of this court appointed counsel and granted her request for the above transcript at state expense. Her brief raises two assignments of error. Clayton, the child's father, has filed no appellee's brief. Thomas' first assignment of error follows: THE TRIAL COURT FAILED TO MAKE A COMPLETE RECORD OF THE CUSTODY HEARING AS REQUIRED BY JUVENILE RULE 37(A). This assignment is well taken. Thomas argues that the seven-page transcript of the custody hearing before the magistrate is incomplete and does not comply with applicable requirements to record the proceedings. In -6- support, she cites one of a line of cases in which this court reversed juvenile court judgments for failure to make an adequate record. Several Juvenile Court rules govern the recording of proceedings. The rules have been amended in piecemeal fashion in an attempt to eliminate certain recurring disputes. Juv.R. 37, cited by Thomas, was amended most recently, effective July 1, 1996. It governs the recording of proceedings in juvenile court generally and provides in pertinent part as follows: (A) Record of Proceedings The juvenile court shall make a record of adjudicatory and dispositional proceedings in abuse, neglect, dependent, unruly, and delinquent cases; permanent custody cases; and proceedings before magistrates.In all other proceedings governed by these rules, a record shall be made upon request of a party or upon motion of the court. The record shall be taken in shorthand, stenotype, or by any other adequate mechanical, electronic, or videorecording device. (Emphasis added.) Juv.R. 40 was amended the year before the amendment to Juv.R. 37(A) and mandates the recording of all proceedings before magistrates. It applies to magistrates generally and provides in pertinent part as follows: (D) Proceedings (1) All proceedings before the magistrate shall be in accordance with these rules and any applicable statutes, as if before the court. (2) Except as otherwise provided by law and notwithstanding the provisions of Juv.R. 37, all proceedings before magistrates shall be recorded in accordance with procedures established by the court. (Emphasis added.) -7- Finally, Cuyahoga County Local Juvenile Court Rule 12 also provides for the recording of proceedings, but has not been updated since the amendment to Juv.R. 37.2 In In re Mason (July 13, 2000), Cuyahoga App. No. 76532, unreported, this court recently stated as follows: This court has consistently held that the trial court's failure to follow the requirements of Juv.R. 37 as amended July 1, 1996, mandates reversal. In re Collins (1998), 127 Ohio App.3d 278; In re Ward (June 12, 1997), Cuyahoga App. No. 71245, unreported; In re Solis, 124 Ohio App.3d 547, 706 N.E.2d 839 (1997); In re McAlpine, 1998 Ohio App. LEXIS 5786 (Dec. 3, 1998), Cuyahoga App. No. 74256, unreported; In re Goff, 1999 Ohio App. LEXIS 2798 (June 17, 1999), Cuyahoga App. No. 75328, unreported. Id. at p. 4. Thomas' brief on appeal cites another of these cases, which reversed a juvenile court permanent custody determination for failure to record the proceedings before the magistrate. In re Hart (Dec. 9, 1999), Cuyahoga App. No. 75326, unreported. As in the case at bar, the six-page transcript of proceedings in Hart was deemed inadequate to satisfy Juv.R. 37(A) and the matter was remanded for new proceedings. All these cases involved proceedings before magistrates, but, contrary to the dissent, none of them required the litigant to file objections pointing out the absence of a recording as a prerequisite to raising the defect on appeal. The dissent argues that the failure to object waives the right to appeal. This argument confuses waiving the right to an appeal 2 Loc.Juv.R. 12 was likewise not amended to reflect the changes in Juv.R. 37(A). It provides that a complete record shall be made in specified manners upon the request of a party or upon the Court's own motion. -8- with waiving certain obje of fact and conclusions of law proposed by magistratesctions. By fail the parties may waive their right to raise these objections as issues on appeal, but they do not waive the right to an appeal itself. Moreover, the failure to record the proceedings has resulted in a fundamental irregularity in the proceedings, not a challenge to any subsequent finding of fact or conclusion of law. The dissent has not cited a single case holding that filing objections is a prerequisite to challenging the failure to record the proceedings. A review of cases reveals, moreover, that some have expressly rejected the argument that failing to object to the magistrate's decision waives the magistrate's failure to record the proceedings. E.g., In re Dikun (Nov. 28, 1997), Trumbull App. No. 96-T-5558, unreported; In re Kuntz (Sept. 20, 1996), Trumbull App. No. 95-T- 5357, unreported; In re Chrestay (Sept. 20, 1996), Trumbull App. No. 95-T-5332, unreported. Others have held that the failure to record magistrate proceedings constitutes plain error. E.g., Moyers v. Moyers (June 18, 1999), Ashtabula App. No. 98-A-0080, unreported. We need not decide the question, and expressly reserve the issue for another day, however, because the argument was not raised or briefed by any of the parties.3 When an appellee does not file 3 We note that the requirement for filing objections supported by a transcript is complicated when a party is indigent and is required by Loc.Juv.R. 12 to make payment arrangements before a transcript is prepared. -9- a brief, App.R. 18(C) provides that in determining the appeal, the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action. E.g., In re Kurtz, supra; Wright v. Wright (1993), 86 Ohio App.3d 539; Ford Motor Credit Co. v. Potts (1986), 28 Ohio App.3d 93; State v. Grimes (1984), 17 Ohio App.3d 71. In the case at bar, we are confronted with a transcript that indicates the magistrate did not record all the proceedings. Thomas requested a complete transcript and the transcript submitted to this court has been certified as true, accurate, and complete. It does not remotely support the determination. Thomas initiated the proceedings for custody of the child and participated for approximately one year, but her request for custody was dismissed for failure to appear, without prior notice to her or an opportunity for her counsel to proceed in her absence. From the transcript, it appears that the child's fate was decided essentially by default. None of the comments by the participants mentioned the best interest of the child, which is the central consideration under R.C. 2151.35(A)(2), except when the guardian ad litem stated that the continuance requested by Thomas would be in the best interest of the child. Two basic errors appear in the magistrate's decision: The guardian concurred in the continuance rather than proceeding to judgment in the absence of the mother, and the record contains no evidence to support the award of custody to the father. The record -10- reveals no witnesses were called, no oaths were administered, and no documents were submitted. The guardian ad litem did not file a written report prior to or at the hearing as required by R.C. 2151.414(C), and neither the psychological nor drug/alcohol evaluations of Clayton were filed. Under the circumstances, Thomas' first assignment of error is sustained. Accordingly, we reverse and remand for further proceedings. Thomas' second assignment of error follows: THE MAGISTRATE'S RULING RELIES ON HEARSAY EVIDENCE. This assignment of error is overruled. Thomas argues that the magistrate's decision improperly refers to a recommendation by the guardian ad litem. She argues the record shows that the guardian ad litem did not properly file a report. Moreover, she argues the transcript of proceedings does not contain any testimony by the guardian ad litem. Under the circumstances, because we reverse and remand under the first assignment of error, this assignment is moot and we decline to address it pursuant to App.R. 12(A)(1)(c). E.g., In re Hart, supra. Judgment reversed and remanded for further proceedings. -11- This cause is reversed and remanded for further proceedings. It is, therefore, ordered that appellant recover of appellee her costs herein taxed. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANNE L. KILBANE, J., CONCURS; TERRENCE O'DONNELL, P.J., DISSENTS (See Dissenting Opinion). DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75757 IN THE MATTER OF: : : DISSENTING JACQUE CLAYTON : : OPINION : : DATE: NOVEMBER 9, 2000 TERRENCE O'DONNELL, P.J., DISSENTING: I respectfully dissent. This appeal concerns whether the juvenile court made a complete record of the custody hearing as required by Juv.R. 37(A), and whether the magistrate relied on hearsay evidence when it determined the issue of custody. Civ.R. 53(E)(3)(a) provides in pertinent part: Within fourteen days of the filing of a magistrate's decision, a party may file written objections to the magistrate's decision. If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. * * *. Further, Civ.R. 53(4)(a) states: The magistrate's decision shall be effective when adopted by the court. The court may adopt the magistrate's decision if no written objections are filed unless it determines that there is an error of law or other defect on the face of the magistrate's decision. (Emphasis added). In Asad v. Asad (1999), 131 Ohio App.3d 654, we determined that a husband's failure to object to a magistrate's decision in the domestic relations court waived his right to appeal the matter. There, we noted that under Civ. R. 53(E)(3)(b), [a] party shall -2- not assign as error on appeal the court's adoption of any findings of fact or conclusions of law unless the party has objected to that finding or conclusion under this rule. The majority opinion neglects to follow this published authority of our appellate district which is controlling law in this district, and instead chooses to rely on unpublished opinions of our court, which are persuasive, but not controlling. In this case, Thomas failed to file objections to the magistrate's decision in a timely manner in accordance with Civ.R. 53(E)(3)(a), and has now, therefore, waived her right to appeal. If Thomas chose to contest the magistrate's decision based on an insufficient transcript, the civil rules direct that she should have filed objections to the magistrate's report. By failing to object, she did not afford the trial court an opportunity to consider her position or afford any relief. This failure has deprived the trial court the opportunity to correct the error in the first instance and constitutes a waiver of the right to raise the issue for the first time in this court. Failure by the majority to give effect to Civ.R. 53 opens the gates for all litigants to ignore its meaning; by ignoring the rule, we diminish the purpose of having rules. The second assignment of error which concerns hearsay evidence is similarly flawed because the failure to file objections to the magistrate's decision has waived this issue on appeal. Thus, in accordance with Asad, I would conclude that the matters being raised here have been waived because no objection had been made to the magistrate's report and I would affirm the -3- judgment of the court granting custody of Jacque Clayton, Jr. to his father. .