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In re D.C.H.

Court of Appeals of Ohio, First District, Hamilton

December 4, 2019


          Appeal From: Hamilton County Juvenile Court Trial No. F08-642

         Judgment Appealed From Is: Appeal Dismissed

          Foster Law, LLC, and Mary T. Foster, for appellee

          Mother, Father, pro se.


          Bergeron, Judge.

         {¶1} When a case arrives on a juvenile court judge's desk on objections to a magistrate's decision, the juvenile court may entertain new evidence to evaluate the propriety of the magistrate's decision. But when a juvenile court does so, that evidence must satisfy established evidentiary requirements, and for witnesses, that means they must offer sworn testimony. The appellant here challenges the juvenile court's order overturning the magistrate's decision for its reliance on unsworn statements during a colloquy with the court at which no opportunity for cross-examination was provided. But jurisdictional obstacles ultimately overshadow that issue and deprive us of jurisdiction over this appeal. We accordingly dismiss this appeal.

         {¶2} This case involves a dispute between two parents who share a daughter, D.C.H. Unhappy with how visitation was proceeding, Mother petitioned the Hamilton County Juvenile Court for an ex parte emergency order suspending Father's visitation rights in the aftermath of an alleged physical altercation between D.C.H. and Father's girlfriend. Although the court denied that motion, it precipitated a hearing before the magistrate on the underlying motion to modify the visitation plan for Father. During this same time, Mother also reported the alleged incident to 241-KIDS (Hamilton County's child abuse hotline), which investigated the matter separately (eventually finding no substantiation to the claim).

         {¶3} With a trial date set for determination of the visitation matter, Father failed to appear in front of the magistrate at the appointed hour. The magistrate, proceeding in the absence of Father, received testimony from Mother regarding the altercation between D.C.H. and Father's girlfriend, as well as Mother's concerns with Father's relationship with their daughter. Mother requested that the magistrate modify visitation to eliminate her daughter's overnight visits and reduce allotted vacation time with Father, which the magistrate granted. Once made aware of the ruling, Father timely lodged objections to it.

         {¶4} At the objections hearing in the juvenile court, both parents appeared without counsel (Mother's counsel apparently had a scheduling conflict). Father chalked up his failure to appear before the magistrate to a misunderstanding. He believed that the determination in the pending 241-KIDS investigation, finding no abuse, effectively disposed of the pending request to modify his visitation and obviated the need for him to appear in court. Because Father never had a chance to present his side of the story before the magistrate, the juvenile court proceeded to question Father about his desires regarding the underlying visitation modification.

         {¶5} The juvenile court explained to Father that "you can tell me why you believe the Decision of the Magistrate was wrong or the changes you want done and what you're asking the court to do." Father then offered his perspective on the visitation modification and other information regarding the various alleged conflicts between his daughter and himself. Though the juvenile court questioned Mother in "rebuttal," the record reflects that neither party was ever sworn in, and that no cross-examination was conducted.

         {¶6} Mother expressed confusion at the hearing as to what, exactly, was under consideration and what the next steps might be, emphasizing, "I need to have my attorney with me." The juvenile court assured Mother that it would review the transcript from the proceeding before the magistrate and then it would "either remand it or uphold the decision."

         {¶7} But the juvenile court ultimately took a different path, rejecting the substance of the magistrate's findings:

Although the magistrate was able to view the demeanor of the witnesses, judge the credibility of the testimony and the weight of the evidence presented to the Court, the Magistrate's Decision is not supported in light of the additional evidence.

         {¶8} The problem, and the basis for Mother's appeal, is that no actual "evidence" was submitted at the oral argument. Mother's appeal accordingly presents a single assignment of error challenging the juvenile court's rejection of the magistrate's ...

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