[Cite as In re B.O., 2019-Ohio-608.]


                                           COURT OF APPEALS
                                        RICHLAND COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


IN THE MATTER OF: B.O.                          :       JUDGES:
                                                :       Hon. William B. Hoffman, P.J.
                                                :       Hon. Patricia A. Delaney, J.
                                                :       Hon. Craig R. Baldwin, J.
                                                :
                                                :
                                                :       Case No. 18CA64
                                                :                18CA65
                                                :                18CA67
                                                :
                                                :       OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Richland County
                                                        Court of Common Pleas, Juvenile
                                                        Division, Case Nos. 15-DEP-107
                                                                            15-DEP-108
                                                                            15-DEP-109


JUDGMENT:                                               Affirmed



DATE OF JUDGMENT:                                       February 19, 2019




APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant S.Y.

GINA NENNIG-HENRY                                       DARIN AVERY
Richland County Children Services Board                 105 Sturges Avenue
731 Scholl Road                                         Mansfield, Ohio 44903
Mansfield, Ohio 44907
Richland County, Case No. 18CA64                                                    2

Baldwin, J.

       {¶1}   Appellant S.Y. appeals from the July 18, 2018 Judgment Entries of the

Richland County Court of Common Pleas, Juvenile Division.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellant is the mother of B.O. (DOB 5/07/2000), B.O. (DOB 3/5/2009) and

B.O. (DOB 8/17/2006). On July 24, 2015, Richland County Children Services (“RCCS”)

filed complaints alleging that the three children were dependent and/or neglected.

Following a hearing before a Magistrate, the court adopted the Magistrate’s Decisions

finding the children to be dependent children. In 2016, legal custody of them was granted

to his father, S.O.

       {¶3}   In March of 2017, the three cases were reopened to address appellant’s

visitation with the children. As a result of mediation, the parties reached an agreement as

to visitation. The trial court adopted the agreement as an Order of the court via a

Judgment Entry filed in each case on February 28, 2018.

       {¶4}   On March 8, 2018, RCCS filed an “Ex Parte Motion to Immediately

Terminate Visitation” between B.O. and appellant in each case. Attached to such motions

was an affidavit from an employee of RCCS stating that appellant had made wrongful

allegations of sexual abuse by S.O. The Magistrate, in temporary orders filed on March

9, 2018, ordered that visitation be immediately suspended between appellant and the

children. The matter was set for a hearing on May 16, 2018 before a Magistrate.

       {¶5}   The Magistrate, in Decisions filed on June 29, 2018 stated that “all prior

orders granting parenting time or visitation between [appellant] and [B.O.] are terminated.”
Richland County, Case No. 18CA64                                                      3


The Magistrate further found in each case that it was in B.O.’s best interest that all contact

with appellant “be only as such as his father, [S.O.], permits.”

       {¶6}   No objections to the Magistrate’s Decisions were filed. The trial court filed a

Judgment Entry in each case approving and adopting the Magistrate’s Decision on July

18, 2018.

       {¶7}   Appellant now raises the following assignment of error on appeal:

       {¶8}   “I. THE TRIAL COURT ABUSED ITS DISCRETION BY TERMINATING

THE PARTIES’ AGREEMENT TO PHASE-IN MOTHER’S VISITATION WITH THE

MINOR CHILD.”

                                              I

              Appellant challenges that trial court’s decisions terminating the parties’

agreement to phase-in her visitation with the three minor children.

       {¶9}   Juv.R. 40(D)(3)(b)(iv) provides that “[e]xcept 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).” “The purpose behind the appellate waiver rule is to

ensure that the trial judge shall have an opportunity to correct any errors occurring in the

trial judge’s court, the only exception being for plain error.” In re M.G. and C.G., 2d Dist.

Miami No. 07-CA-6, 2007-Ohio-3589, ¶ 15.

       {¶10} Our review of the record confirms that appellant did not file objections to the

to the Magistrate's Decision pursuant to Juv.R. 40. Accordingly, we find appellant cannot

assign as error on appeal the trial court's adoption of any factual finding or legal
Richland County, Case No. 18CA64                                                         4


conclusion pursuant to Juv.R. 40(D)(3). We note that authority exists in Ohio law for the

proposition that appellant's failure to object to the magistrate's decision does not bar

appellate review of “plain error.” In re Ortego, 5th Dist. Tuscarawas No.1999AP05003,

2000 WL 330069(Mar. 8, 2000.) However, the Supreme Court has cautioned against the

over application of plain error analysis.

               The plain error doctrine originated as a criminal law concept. In

       applying the doctrine of plain error in a civil case, reviewing courts must

       proceed with the utmost caution, limiting the doctrine strictly to those

       extremely rare cases where exceptional circumstances require its

       application to prevent a manifest miscarriage of justice, and where the error

       complained of, if left uncorrected, would have a material adverse effect on

       the character of, and public confidence in, judicial proceedings. Schade, 70

       Ohio St.2d at 209, 24 O.O.3d at 317, 436 N.E.2d at 1003; LeFort v. Century

       21–Maitland Realty Co. (1987), 32 Ohio St.3d 121, 124, 512 N.E.2d 640,

       643; Cleveland Elec. Illum. Co. v. Astorhurst Land Co . (1985), 18 Ohio

       St.3d 268, 275, 18 OBR 322, 327–328, 480 N.E.2d 794, 800.

       {¶11} Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997–Ohio–401, 679

N.E.2d 1099.

       {¶12} Moreover, appellant failed to provide a transcript of the May 16, 2018

hearing before the Magistrate to the trial court. The transcript was not filed until August

14, 2018, which is after the appeals were filed. This Court has held, “where an appellant

fails to provide a transcript of the original hearing before the magistrate for the trial court's

review, the magistrate's findings of fact are considered established and may not be
Richland County, Case No. 18CA64                                                                5

attacked on appeal.” Doane v. Doane, 5th Dist. Guernsey No. 00CA21, 2001 WL

474267(May 2, 2001). When a party objecting to a magistrate's decision has failed to

provide the trial court with the evidence and documents by which the trial court could

make a finding independent of the report, the appellate court is precluded from

considering the transcript of the hearing submitted with the appellate record. State ex rel.

Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 1995–Ohio–272, 654 NH.E.2d

1254.

        {¶13} Accordingly, we review appellant’s assignment of error only to analyze

whether the trial court committed plain error. The Magistrate, in the case sub judice,

found, in relevant part, as follows:

        {¶14} “Mother had been persistently telling the younger two boys that they were

being sexually abused by Father, by their grandfather, by an uncle, by [B.O.], the oldest

brother. In the preceding year, she had made reports of this sexual abuse multiple times

to RCCSB, to the police, to Mr. Powers1, to a parenting education provider, she even

reported to [B.O.’s] school that he was abusing his brothers. Mother told the younger

boys that they were being raped while they were sleeping, that they were being molested

every night. She tried to coerce them to disclose this alleged abuse to others, promising

them a puppy, a big house, McDonalds, etc.

        {¶15} “All three boys as well as Father consistently denied being sexually abused

or perpetrating sexual abuse. On one occasion [B.O.] told Shawn Powers that sexual

abuse had happened but also told him that he was coerced to say that. School personnel

reported that [B.O.] had repeated the allegations at school but, based on his demeanor


1Shawn Powers is a licensed professional counselor with Family Life Counseling who testified at the
hearing.
Richland County, Case No. 18CA64                                                     6


when doing so, felt he was being brainwashed or coerced. RCCSB investigated multiple

times and each time found no basis for the allegations.          Shawn Powers who had

counseled the two younger boys since 2015 found no basis to believe the allegations of

sex abuse. Despite numerous directives from the Court and warnings from Mr. Powers

about the harm to the boys, Mother continues to make these allegations to the boys and

third parties.

       {¶16} “Shawn Powers had diagnosed the younger two boys with post-traumatic

stress disorder due, at least in part, to Mother’s assaultive and destructive behaviors in

the past and found that their emotional and behavioral health was negatively impacted by

these traumas. He opined that Mother’s current, persistent allegations of sex abuse are

highly disturbing to them and causing new trauma. Testimony established that their

grades their physical and emotional wellbeing was being negatively affected by Mother’s

conduct.

       {¶17} “Mother has demonstrated that she will not refrain from making these

disturbing and false allegations to authorities and to the boys, despite instructions from

the Court, or advice from the boys’ counsellor.

       {¶18} “Father has demonstrated that he has the best interests of the children at

heart regarding visitation with Mother. In the past he has supported Mother’s visitation,

contributing games and materials to her parenting time, taking the children to visits at her

home, to visits at RCCSB, hiring persons to transport the boys to visits with mom. The

children love their mother and want to see her; Father appears sympathetic to that. The

Court has good reason to believe that Father will facilitate contact between the children

and Mother so longs as it is not detrimental to their mental, emotional and physical health.”
Richland County, Case No. 18CA64                                                   7


       {¶19} Based on the Magistrate’s established findings, we find no plain error in the

trial court’s decision adopting the Magistrate’s Decision terminating the parties’

agreement to phase-in appellant’s visitation.

       {¶20} Therefore, appellant’s sole assignment of error is overruled.

       {¶21} Accordingly, the judgment of the Richland County Court of Common Pleas,

Juvenile Division, is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
