[Cite as In re Contempt of Digney, 2015-Ohio-4278.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102736




               IN RE: CONTEMPT OF TRACY DIGNEY




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                       Juvenile Division
                          Case Nos. AD-14-910581 and AD-14-910582


        BEFORE: E.A. Gallagher, J., Keough, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: October 15, 2015
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga CountyProsecutor
BY: Michelle A. Myers
       Dale F. Pelsozy
Assistant Prosecuting Attorneys
Cuyahoga County Division of Children and Family Services
3955 Euclid Avenue
Cleveland, Ohio 44115


ATTORNEY FOR MOTHER

John Patrick Hyland
Cuyahoga County Public Defender
9300 Quincy Avenue
Cleveland, Ohio 44106

ATTORNEY FOR FATHER

Christopher R. Lenahan
2035 Crocker Road
Suite 104
Westlake, Ohio 44145

GUARDIAN AD LITEM

Gregory T. Stralka
6509 Brecksville Road
P.O. Box 31776
Independence, Ohio 44131
EILEEN A. GALLAGHER, J.:

       {¶1} Appellant, Tracy Digney, appeals the judgment of the Cuyahoga County

Court of Common Pleas Juvenile Division that found her in contempt of court. For the

following reasons, we reverse and remand.

       {¶2} In the underlying juvenile court case for dependency and temporary custody,

a court magistrate issued a case management order requiring the Cuyahoga County

Division of Children and Family Services (“CCDCFS”) to file a case plan by September

19, 2014.1 The order noted that a failure to file the case plan by this date may result in a

dismissal of the complaint and/or a finding of contempt against the assigned CCDCFS

social worker.

       {¶3} At a hearing on the matter on November 10, 2014, the assigned magistrate

noted that the case plan had been filed four days late, to wit: on September 23, 2014

which was well in advance of the adjudicatory hearing.          The court ordered a hearing on

a motion to show cause due to the late filing. At the hearing, Digney testified that she

prepared the case plan and submitted it to the prosecutor’s office at 10:15 a.m. the

morning of September 19, 2014 for filing pursuant to CCDCFS protocol, and submitted

the case log to support her testimony.         The prosecutor’s office, as internal protocol

dictated, would then file the plan with the court.            The magistrate issued an order

following the hearing, noting Digney’s argument that she complied with her duties by


       This court takes judicial notice that September 19, 2014 was a Friday.
       1
submitting the case plan to the prosecutor’s office, and ordered Digney’s counsel to

“determine who is responsible for violating this court’s order and have that individual

present at the next hearing.”

       {¶4} When Digney’s counsel failed to produce a responsible party at the

subsequent hearing, the magistrate noted that the filing of the case plan is a statutory

obligation imposed upon CCDCFS and reiterated that Digney, as the assigned social

worker, was responsible for the failure to timely file the case plan.       The magistrate found

Digney to be in contempt of court and, in court, stated “sentence is three days in the

County Jail and $75 fine/fees. The sentence is stayed, the fine is to be paid within 30

days.” This sentence is not consistent with that which was journalized. In the journal

entry both the magistrate and the court stated “Tracey Digney is fined $75 and sentenced

to three (3) days in the Cuyahoga County Jail. Fine to be paid within thirty (30) days. * *

* Jail sentence is stayed pending any further violation of court order.”

       {¶5} Digney filed objections to the magistrate’s decision arguing that the trial

court had abused its discretion by imposing criminal contempt in this instance. On

February 24, 2015, the trial court overruled Digney’s objections and adopted the

magistrate’s contempt order.2 This appeal followed.

       {¶6} In her sole assignment of error, Digney argues that the trial court abused its

discretion in adopting the magistrate’s decision finding her in contempt of court.


       2
          We note for the record, that both the magistrate’s decision and the court’s order adopting
the magistrate decision state that the case plan was to be filed by September 19, 2015.
       {¶7} We review a finding of contempt under an abuse of discretion standard. In re

Contempt of Modic, 8th Dist. Cuyahoga No. 96598, 2011-Ohio-5396, ¶ 7, citing State ex

rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991). Likewise, we review

a trial court’s decision to adopt a magistrate’s decision for abuse of discretion. In re A.L.,

8th Dist. Cuyahoga No. 99040, 2013-Ohio-5120, ¶ 10, citing Dancy v. Dancy, 8th Dist.

Cuyahoga No. 82580, 2004-Ohio-470, ¶ 10. An “abuse of discretion” connotes that the

court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶8} The Ohio Supreme Court has recognized that a contempt sanction can be both

civil and criminal. Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d

297, ¶ 15. A defendant must be proven guilty beyond a reasonable doubt to be punished

for criminal contempt, Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610

(1980), while civil contempt must be established by clear and convincing evidence.

Sagan v. Tobin, 8th Dist. Cuyahoga No. 86792, 2006-Ohio-2602, ¶ 34.                Clear and

convincing evidence implies that the trier of fact must have a firm conviction or belief

that the facts alleged are true. Id.

       {¶9} Criminal and civil contempt are distinguished by the character and purpose of

the punishment imposed by the court. Brown at 253. Civil contempt is enforced with

remedial or coercive sanctions and characterized by conditional sentences while criminal

contempt imposes punishment for an act of disobedience and vindicates the authority of

the law and the court. Id.             Criminal contempt is characterized by unconditional
sentences. Id. at 254. “Therefore, to determine if the sanctions in the instant cause were

criminal or civil in nature, it is necessary to determine the purpose behind each sanction:

was it to coerce the appellees to obey * * *, or was it to punish them for past violations?”

Id. at 254.

         {¶10} As in Brown, the instant case contains both criminal and civil contempt

sanctions.     Digney’s journalized conditional three-day jail sentence is contingent on

future compliance with the court’s filing deadlines and thus civil in nature. Digney’s

unconditional $75.00 fine is designed to punish and is criminal in nature. Again, we

note that the contempt sanctions that were journalized differ from those dictated in open

court.

         {¶11} Although this case presents differing standards of proof for Digney’s

contempt punishments, we find that under either standard, the trial court abused its

discretion in finding Digney in contempt. The facts in this case are not in dispute.

Digney was the sole witness at the contempt hearing and, as such, her testimony was

uncontroverted.     The trial court’s factual findings are consistent with the evidence

presented. Digney prepared the case plan and, pursuant to CCDCFS policy, submitted it

the morning of September 19, 2014 to the County Prosecutor’s Office for filing.

         {¶12} This is not an instance of a willful violation or intentional disregard of a

court order.    When the county prosecutor representing Digney asked the magistrate to

exercise discretion for what amounted to a harmless filing error outside of Digney’s

control, the magistrate explained that the filing of the case plan is statutory and provides
no exception for a breakdown in CCDCFS’s filing system. The magistrate justified the

sanctions on Digney individually because: “The statute is the statute and it’s 30 days. And

the obligation is on the social worker to see that it’s done.”

       {¶13} However, the statute that the magistrate referenced is R.C. 2151.412(D)

which provides in relevant part:

       (D) Each public children services agency and private child placing agency
       that is required by division (A) of this section to maintain a case plan shall
       file the case plan with the court prior to the child’s adjudicatory hearing but
       no later than thirty days after the earlier of the date on which the complaint
       in the case was filed or the child was first placed into shelter care. * * * All
       parts of the case plan shall be completed by the earlier of thirty days after
       the adjudicatory hearing or the date of the dispositional hearing for the
       child.

       {¶14} Contrary to the trial court’s position, R.C. 2151.412(D) places the duty to

file the case plan on the agency rather than an individual social worker. This is consistent

with Juv.R. 34(F) which similarly places the filing responsibility upon the agency:

       (F) Case plan. As part of its dispositional order, the court shall journalize a
       case plan for the child. The agency required to maintain a case plan shall
       file the case plan with the court prior to the child’s adjudicatory hearing but
       not later than thirty days after the earlier of the date on which the complaint
       in the case was filed or the child was first placed in shelter care. * * *

       {¶15} The trial court’s erroneous shifting of CCDCFS’s statutory burden onto an

individual social worker in the context of an undisputed breakdown in CCDCFS’s filing

procedure that is wholly unrelated to said worker amounts to an abuse of discretion.

       {¶16} The abuse of discretion in this instance is further reflected in the

magistrate’s continuance of the contempt hearing to allow the County Prosecutor’s Office
to produce the person responsible for the untimely filing. When the prosecutor failed to

produce a responsible party, the magistrate chose to sanction Digney.

       {¶17} The magistrate’s decision and the finding of contempt against Digney was

unreasonable, arbitrary and unconscionable.      Therefore, we find that the trial court’s

adoption of that decision to be an abuse of discretion.

       {¶18} Digney’s sole assignment of error is sustained.

       {¶19} This cause is reversed and remanded to the lower court to vacate the finding

of contempt and the sanctions imposed consistent therewith.

       It is ordered that appellant recover from appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       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.



______________________________________
EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR
