[Cite as In re B.W.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 96550 and 96551

IN RE: B.W., ET AL.

Minor Children (Appeal by Mother)

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. CU 06102841 and CU 06102842

BEFORE: S. Gallagher, J., Boyle, P.J., and Keough, J.

RELEASED AND JOURNALIZED: September 8, 2011 FOR APPELLANT H.M., pro se 4305 Friendly Ct. Cleveland, OH 44104

ATTORNEY FOR APPELLEE

Stanley Jackson, Jr. 75 Public Square Suite 1414 Cleveland, OH 44113

Guardian ad Litem for Children

Anjanette Arabrian Whitmon P.O. Box 16554 Rocky River, OH 44116

Guardian ad Litem for Mother

Carla Golubovic P.O. Box 29127 Parma, OH 44129

SEAN C. GALLAGHER, J.: {¶ 1} In this consolidated action, appellant, H.M. 1 (“mother”), pro se,

appeals the decision of the Cuyahoga County Court of Common Pleas, Juvenile

Division, to reallocate parental rights as to each of her two minor children.2

For the reasons stated herein, we dismiss the appeal for a lack of a final

appealable order.

{¶ 2} H.M. is the mother and N.W. is the father of the two minor children

involved in this matter. In March 2006, mother filed an application to

determine custody of the children. In November 2006, pursuant to an

agreement of the parties, the court designated mother as the residential and

legal custodian of the children and provided father with parenting time.

{¶ 3} In January 2010, father filed a motion to modify custody, as well as

a motion for temporary custody pending a hearing. Father sought custody of

the children because mother had been incarcerated for a domestic violence

incident and the children were living with their aunt. The court granted

father temporary custody of the children and set the matter for hearing.

{¶ 4} A hearing was held before a court magistrate on November 8, 2010.

Thereafter, on December 9, 2010, the magistrate issued a boilerplate decision

that found there had been a sufficient change in circumstances to warrant a 1 The parties are referred to herein by their initials or title in accordance with this court’s established policy regarding nondisclosure of identities in juvenile cases. 2 Separate juvenile court cases exist as to each respective child, Case Nos. CU 06102841 and CU 06102842. modification of custody, without indicating what change in circumstances had

occurred. The magistrate further made a listing of the best interest factors

that were considered and made a perfunctory statement that it was in the

children’s best interest to modify the court’s prior order and to designate

father the residential and legal custodian of the children, while according

mother with parenting time. No factual basis was set forth for these

determinations.

{¶ 5} Both mother and the guardian ad litem for the children filed

objections to the magistrate’s decision. Mother’s objections were filed on

December 15, 2010, and the guardian ad litem’s objections were filed on

December 16, 2010. Mother expressed the love and devotion she has to her

children and indicated that while they were in her care, her children were well

cared for, received a good education, had a stable place to live, and were

bonded with their siblings. The guardian ad litem argued that custody was

awarded to father over her recommendation. She indicated that the children

were removed from mother’s home following a domestic incident arising from

mother’s unruly teenage daughter’s behavior, that this daughter has been

removed from the situation, that the household is now under control, that the

children were well cared for, and that the reason upon which the minor

children had been removed from the home no longer exists. She also

referenced concerning behavior regarding father. {¶ 6} The trial court adopted the magistrate’s decision and designated

father the residential parent and legal custodian of the children, while

according parenting time to mother. Mother filed this appeal, arguing in her

sole assignment of error that the trial court abused its discretion by ruling

against the recommendation of the guardian ad litem and without addressing

or hearing the objections raised to the magistrate’s decision.3

{¶ 7} Our review reflects that the judgment entries in the underlying cases contain

boilerplate language and fail to explicitly rule upon the objections to the magistrate’s decision.

Pursuant to Civ.R. 53(D)(4)(d), “[i]f 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. Before so ruling,

the court may hear additional evidence but may refuse to do so unless the objecting party

demonstrates that the party could not, with reasonable diligence, have produced that evidence

for consideration by the magistrate.” 4

3 Although our review has been limited, nothing herein precludes mother from filing a motion to modify parental rights if a change in circumstances occurs. See R.C. 3109.04. We also note that although a juvenile court is to consider the recommendation of the guardian ad litem, it is not required to follow that recommendation. See In re P.T.P., Greene App. No. 2005 CA 148,

. 4 Also, pursuant to Civ.R. 53(D)(4)(b), regardless of whether objections are made, a court may choose a course of action other than adopting a magistrate’s decision and is permitted to “hear a previously-referred matter, take additional evidence, or return a matter to a magistrate.” The rule is {¶ 8} Where a trial court fails to rule on timely objections, there is no final appealable

order. Peric v. Buccilli, Cuyahoga App. No. 80805,

, ¶ 8. As stated by

one court, “‘When a trial court enters judgment on a magistrate’s decision, but fails to

explicitly rule on a party’s objections, that judgment does not constitute a final, appealable

order because it does not fully determine the action.’” In re Strickler, Lorain App. No.

09CA9692,

, ¶ 5, quoting In re Strickler, Lorain App. Nos. 08CA009375 and

08CA009393,

.

{¶ 9} Additionally, a trial court may not merely rubber stamp a magistrate’s decision.

Knauer v. Keener (2001),

,

; Roach v. Roach

(1992),

,

. Our review reflects that the trial court

adopted the boilerplate language of the magistrate’s decision. While the court found that a

sufficient change of circumstances had occurred, it never expressly identified any change in

circumstances.

{¶ 10} In accordance with R.C. 3109.04(E)(1)(a), a trial court may not modify a prior

decree allocating parental rights and responsibilities for the care of children unless it finds: (1)

there was a change in circumstances; (2) a modification is necessary to serve the best interest

of the child; and (3) one of the three remaining factors in the statute is present. There must

discretionary in this regard. be competent, credible evidence to support a trial court’s findings that there has been a change

in circumstances and that modification is necessary to serve the best interest of the children.

{¶ 11} In light of the objections raised, upon returning the matter to the trial court, the

court may wish to consider additional evidence as permitted by Civ.R. 53(D)(4)(d), shall rule

on the objections that were timely filed, and shall issue a judgment in each case consistent

herewith. We caution trial courts that attention must be paid to the requirements imposed in

determining custody cases and that they must comply with the applicable statutes and rules.

While the trial court was not required to provide comprehensive findings of fact and

conclusions of law, it should provide more to the parties than boilerplate language or a

perfunctory statement that the statutory factors have been considered. Because of the

interests of the children involved, the court should expeditiously move the case to finality.

See In re C.B.,

,

,

, McGee Brown, J.,

concurring.

{¶ 12} Appeal dismissed.

It is ordered that appellee recover of appellant costs herein taxed. A

certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR