[Cite as In re K.D.W., 2017-Ohio-1280.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 104273




                                          IN RE: K.D.W.
                                          A Minor Child

                              [Appeal By A.W., Grandmother]



                                   JUDGMENT:
                             REVERSED AND REMANDED



                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                       Juvenile Division
                                   Case No. CU 15107299


        BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: April 6, 2017
ATTORNEY FOR APPELLANT

John V. Heutsche
John V. Heutsche Co., L.P.A.
Hoyt Block Building, Suite 220
700 West St. Clair Avenue
Cleveland, Ohio 44113-1273


ATTORNEYS FOR APPELLEE

For Father

Oscar Trivers
Trivers & Dickerson, L.L.C.
8608 Quincy Avenue, Up
Cleveland, Ohio 44106

For CCDCFS

Michael C. O’Malley
Cuyahoga County Prosecutor

BY:    Michelle A. Myers
       Joseph C. Young
Assistant Prosecuting Attorney
Cuyahoga County Department of
Children and Family Services
3955 Euclid Avenue
Cleveland, Ohio 44115

For CJFS

BY: Anthony R. Beery
Assistant Prosecuting Attorney
Cuyahoga Job and Family Services
4261 Fulton Parkway
Cleveland, Ohio 44144
Guardian Ad Litem

Pamela A. Hawkins
P.O. Box 43101
Richmond Hts., Ohio 44143
EILEEN T. GALLAGHER, J.:

       {¶1} Appellant, A.W., K.D.W’s maternal grandmother, appeals an order of the

Cuyahoga County Juvenile Court that awarded legal custody of K.D.W., a minor child, to

his father (“Father”). A.W. raises two assignments of error:

       1. The trial court committed prejudicial error to A.W. by approving the
       magistrate’s decision designating [Father] “residential parent legal
       custodian,” when the evidence established that such designation is against
       the child’s best interests.

       2. The trial court committed error prejudicial to A.W. when it approved
       the magistrate’s decision without allowing A.W. the requisite 30 days to file
       the transcripts of proceedings supporting her objections.

       {¶2} We find merit to the appeal, reverse the trial court’s judgment, and remand

the case to the trial court to conduct an independent review of the magistrate’s decision.

                            I. Facts and Procedural History

       {¶3} K.D.W. was born in March 2005 and lived with his mother, half-siblings, and

maternal grandmother, A.W.          In May 2015, K.D.W.’s mother was murdered.

Consequently, A.W. filed an application for legal custody of K.D.W. and his

half-siblings.   In response to A.W.’s application, Father filed a motion to modify

custody, also seeking custody of K.D.W.

       {¶4} The case proceeded to a trial before a magistrate.           After hearing the

evidence, the magistrate issued a decision designating Father as the residential parent and

legal custodian of K.D.W. A.W. filed timely objections to the magistrate’s decision and

requested a trial transcript. The trial court granted her leave to file the transcript, but

adopted the magistrate’s decision the following day before the transcript could be
prepared and filed. A.W. now appeals the trial court’s judgment.

                                 II. Law and Analysis

       {¶5} A trial court has broad discretion in custody proceedings.          Davis v.

Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997), paragraph one of the syllabus.

We, therefore, will not disturb a trial court’s custody decision absent an abuse of

discretion.

       {¶6} In the first assignment of error, A.W. argues the trial court erred in

designating Father as K.D.W.’s residential parent and legal custodian because the

evidence established that custody with Father was not in K.D.W.’s best interests. In the

second assignment of error, A.W. argues the trial court erred in adopting the magistrate’s

decision without allowing 30 days to file the transcript of the proceedings. In both

assigned errors, A.W. contends the trial court failed to conduct a de novo review of the

facts and an independent analysis of the issues before adopting the magistrate’s decision.

A.W. asserts the trial court could not have conducted an independent review of the

magistrate’s decision because the magistrate’s decision “contains NO facts,” and the trial

court adopted the magistrate’s decision without reviewing the trial transcript.

(Appellant’s brief at 9.)

       {¶7} Juv.R. 40(D)(3)(ii), which governs magistrate’s decisions, provides, in

relevant part:

       [A] magistrate’s decision may be general unless findings of fact and
       conclusions of law are timely requested by the party or otherwise required
       by law. A request for findings of fact and conclusions of law shall be
       made before entry of a magistrate’s decision or within seven days after the
       filing of the magistrate’s decision.

Neither party in this case requested findings of fact or conclusions of law. Therefore, the

magistrate was not required to make specific findings of fact in her decision.

       {¶8} However, when ruling on objections to a magistrate’s decision, a trial court is

required to conduct an independent review of the case. In re S.R.L., 8th Dist. Cuyahoga

No. 102797, 2015-Ohio-5227, ¶ 49. Juv.R. 40(D)(4)(d) provides, in relevant part:

       If one or more objections to a magistrate’s decision are timely filed, the
       court shall rule on those objections. In ruling on objections, the court shall
       undertake an independent review as to the objected matters to ascertain that
       the magistrate has properly determined the factual issues and appropriately
       applied the law.

See also In re J.W., 8th Dist. Cuyahoga No. 98607, 2013-Ohio-268, ¶ 8 (reversing

juvenile court’s judgment where the court failed to conduct independent review of

magistrate’s order).

       {¶9} In In re H.R.K., 8th Dist. Cuyahoga No. 97780, 2012-Ohio-4054, ¶ 12, this

court held that “it is an abuse of discretion to adopt a magistrate’s decision over an

objection to factual findings prior to its receipt of a timely requested transcript or other

materials necessary to conduct an independent review of the matter.” See also Savioli v.

Savioli, 99 Ohio App.3d 69, 649 N.E.2d 1295 (8th Dist.1994) (“Trial court abuses its

discretion when it rules on a referee’s report without the benefit of a transcript.”).

       {¶10} Similarly, In re R.C., 8th Dist. Cuyahoga No. 96396, 2011-Ohio-4641, ¶ 8,

this court held that the trial court failed to conduct an independent review of the

magistrate’s decision designating father as the residential parent and legal custodian
because the trial court overruled mother’s objections to the magistrate’s decision on the

same day it granted her motion for a transcript of the proceedings before the magistrate.

Id. at ¶ 8. In reaching this conclusion, we explained:

       [T]he court must conduct “a de novo review of any issue of fact or law that
       a magistrate has determined when an appropriate objection is timely filed.
       The trial court may not properly defer to the magistrate in the exercise of
       the trial court’s de novo review. The magistrate is a subordinate officer of
       the trial court, not an independent officer performing a separate function.”

Id. at ¶ 11, quoting Knauer v. Keener, 143 Ohio App.3d 789, 793-794, 758 N.E.2d 1234

(2d Dist.2001).

       {¶11} The magistrate filed her decision in this case on February 2, 2016.      In her

objections to the magistrate’s decision, A.W. challenged the magistrate’s conclusion that

designating Father as the residential parent and legal custodian of K.D.W. was in the

child’s best interests. In support of her objections, A.W. requested a trial transcript and

listed several facts not discussed in the magistrate’s decision, including the Guardian Ad

Litem’s recommendation that the court should award legal custody of K.D.W. to A.W.

       {¶12} As previously stated, the trial court granted A.W. leave to file the transcript,

but adopted the magistrate’s decision the following day, without reviewing the transcript,

which had yet to be filed. It was impossible for the trial court to independently review

the magistrate’s decision and A.W.’s objections without reviewing the transcript,

especially since the magistrate’s decision does not discuss any facts or provide any legal

analysis.

       {¶13} Therefore, the trial court abused its discretion in adopting the magistrate’s
decision without conducting an independent review as required by Juv.R. 40(D)(4).

Accordingly, the second assignment of error is sustained. However, because the trial

court lacked all of the necessary evidence to determine whether awarding custody to

Father is in K.D.W.’s best interests, the first assignment of error is overruled solely on

grounds that it is premature.

       {¶14} Judgment reversed. Case is remanded to the trial court for an independent

review of the magistrate’s decision and to determine whether awarding custody to Father

or A.W. would serve K.D.W.’s best interests.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas

Court, Juvenile Division, 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 T. GALLAGHER, JUDGE

TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR
