[Cite as Whitesed v. Huddleston , 2021-Ohio-2400.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

ALLIE J. WHITESED, : Case No. 21CA3 Plaintiff-Appellant :

v. : DECISION AND JUDGMENT ENTRY JONATHAN R. HUDDLESTON, : Defendant-Appellee. : RELEASED 7/13/2021

_______________________________________________________________ _______ APPEARANCES: Stephen D. Brown, Lancaster, Ohio, for appellant. Charles C. Postlewaite, Columbus, Ohio, for appellee.

_______________________________________________________________ _______ Hess, J. {¶1} Allie J. Whitesed appeals from a judgment of the Pickaway Count y Common Pleas Court, Juvenile Division, that overruled her objec tions to the magistrate’s decision and designated Jonathan R. Huddleston the residential parent and legal custodian of A.J.W. Whitesed contends that the trial court erred in adopting the magistrate’s decision without appointing a guardian ad lite m for the child. Whitesed also claims that the trial court should not have adopted the ma gistrate’s decision granting her attorney’s request to withdraw the morning of the trial and determining that she had constitutionally sufficient notice of the trial. Howeve r, we find that the magistrate was not required to appoint a guardian ad litem beca use there were no allegations of abuse or neglect. The trial court properly adopt ed the magistrate’s decision allowing Whitesed’s attorney to withdraw because White sed knowingly chosePickaway App. No. 21CA3 2

not to appear for the trial and repeatedly violated court order s and deadlines. The trial court did not violate Whitesed’s due process rights when it pro ceeded ex parte with the trial because it provided notice of the trial date to Whitesed when it recorded it on the docket and notices were sent to her attorney, who informed Whit esed of the hearing date. We overrule Whitesed’s assignments of error and affirm th e trial court’s judgment.

I. FACTS AND PROCEDURAL HISTORY {¶2} Whitesed and Huddleston are the parents of A.J.W., born in July 2018. In December 2018, Whitesed filed a complaint for allocation of par ental rights and responsibilities in which she alle ged she and Huddleston were t he parents of A.J.W. as determined by a paternity test and she sought an order allocati ng parental rights and responsibilities. The complaint contained no allegations of abu se or neglect. Huddleston answered and admitted the allegations and requested a shared pa renting order. Huddleston’s answer contained no allegations of abuse or neglec t. A custody hearing was set for August 12, 2019. Prior to the hearing, Huddleston f iled a notice of his successful completion of a parenting seminar. The custody heari ng was not held on August 12 and instead, on that date, the court issued a notice of a pretrial hearing on October 8, 2019. Huddleston was granted permission to attend th e October pretrial hearing via telephone because he is in the U.S. Military and wo uld be in California for training. {¶3} In October 2019, the magistrate issued an agreed temporary pare nting time order in which Huddleston was given parenting time when he is on military leave. Huddleston was also entitled to use a video call conferencing s ervice to communicate with A.J.W. on specific days and times of the week. Both partie s were ordered to set upPickaway App. No. 21CA3 3

an Our Family Wizard account to communicate with each other con cerning A.J.W. Each parent was required to provide a relocation notice, if app licable, and was given equal access to the child’s records, day care, and school activ ities. {¶4} On December 20, 2019, the court held a telephonic conference, a nd the magistrate issued an order stating that Whitesed had failed to appear for the conference and had terminated her attorney the day before. The order stat es that the magistrate attempted to reach Whitesed and left a voicemail message for he r to contact the court or the conference would proceed without her. Whitesed failed to contact the court so the conference proceeded and the magistrate issued a holiday parent ing schedule based upon Huddleston’s holiday leave. On that same date, Whitesed’s attorney filed an application to withdraw as counsel, which was granted, in which he explained that two days before the telephone conference, Whitesed terminated him a nd instructed him not to participate in the telephonic conference on her behalf becau se she had retained a new attorney who would be handling the conference for her. Howe ver, neither Whitesed nor a new attorney participated in the December 20, 2019 confer ence. Whitesed’s new attorney made a notice of appearance on December 27, 2019 and s erved it on Huddleston’s attorney, but the notice of appearance is not on t he docket. However, the record shows that thereafter the clerk’s office began to serve Whitesed’s new attorney with court filings. {¶5} In January 2020, Huddleston filed a contempt motion against Whi tesed for violating the October and December 2019 parenting orders. He al so sought attorney’s fees and a psychological examination of Whitesed to assist the court in determining parental rights and responsibilitie s. Huddleston’s counsel soug ht attorney’s fees andPickaway App. No. 21CA3 4

reimbursements for medical support Huddleston incurred because Whitesed had not provided him with A.J.W.’s social security card so that he coul d enroll the child in his military medical insurance, in violation of the court order req uiring her to do so. In an affidavit in support of his motions, Huddleston stated that Whi tesed refused to allow him to visit with A.J.W. as outlined in the parenting orders and wa s imposing additional, onerous requirements upon him that were not included in the ord ers. He provided detailed descriptions of each incident. Huddleston also stated that although he had enrolled in Our Family Wizard for communications, Whitesed had not, contrary to the court’s order. Huddleston explained how, during one of his visi ts, Whitesed called the Columbus Police Department and asked them to do a wellness chec k on A.J.W. because she believed Huddleston had kidnapped A.J.W. and was pl anning to leave the state. Included with Huddleston’s affidavit were copies of emai l communications between Huddleston and Whitesed’s attorneys and text messages b etween Whitesed and Huddleston in which Whitesed, either directly in text messa ges or through her attorney, refused to comply with the parenting orders. Although the record includes hearing date notice for these motions, it does not appear that a hearing was held. We note that one of the hearing dates was March 16, 2020, which wa s near the time government policies addressing the pandemic commenced. {¶6} In February 2020, Whitesed signed an affidavit in which she res ponded to the allegations in Huddleston’s January 2020 motion for contemp t. Whitesed stated that

she did not allow A.J.W. to visit Huddleston because the truck that had been sent to transport A.J.W. did not accommodate the child’s car seat. Howe ver, Whitesed’sPickaway App. No. 21CA3 5

affidavit was not submitted to the court until late May 2020, i n support of Whitesed’s own contempt motion filed against Huddleston. {¶7} In late April and early May 2020, Whitesed underwent a psycholo gical evaluation pursuant to the magistrate’s order. In the psycholog ist’s report, which was submitted to the court in July 2020, the psychologist stated th at he had been delayed in submitting it because of the extended period of time Whitesed t ook to return a questionnaire and that she returned it only after the psycholog ist sent repeated emails and messages to the parties’ attorneys. {¶8} Also in April and May 2020, Huddleston filed a motion to file a n amended answer and a counterclaim for sole custody of A.J.W. 1 and a motion to compel discovery. Huddleston’s request to amend his pleadings was base d on allegations that Whitesed repeatedly failed to comply with the court’s parenting orders and was attempting to alienate the child from Huddleston. These propose d amended pleadings did not contain allegations of abuse or neglect. Huddleston fil ed a motion to compel discovery because Whitesed had failed to answer discovery reque sts, which were due in April 2020. Emails between the attorneys show that on April 27, 2020, Whitesed’s attorney stated that the matter of discovery would have to be t aken up directly with Whitesed because the attorney would be asking to withdraw. Whit esed’s attorney’s April 27, 2020 motion to withdraw does not appear in the record. Howe ver, it appears that a copy of the motion was served on Huddleston’s attorney and incl uded in a filing submitted by Huddleston. In that motion, Whitesed’s attorney st ated that he had informed Whitesed of his intention to withdraw and he had provi ded her with upcoming court dates. There is nothing in the record showing any court r esponse to counsel’s

1 The record indicates this motion was not addressed and is deem ed denied.Pickaway App. No. 21CA3 6

April 27, 2020 motion to withdraw. However, at the November 202 0 custody hearing, the magistrate acknowledged that Whitesed’s attorney had made a t least three motions to withdraw, and the court had previously not allowed it. {¶9} In August 2020 the court set the date for the custody hearing f or November 2 and November 3, 2020. The hearing notice states that copies of it should be sent directly to Whitesed, Huddleston, and their attorneys. However, a certificate

from the clerk’s office states that the notice was sent to the parties’ attorneys by email and U.S. regular mail, with no indication that the clerk sent c opies directly to Huddleston

and Whitesed. {¶10} In early September 2020, Huddleston filed a motion for an emerg ency temporary order for legal custody of A.J.W. In his affidavit su pporting the motion, Huddleston stated that Whitesed had moved to Union County, Ohio and was living with

two men. 2 Whitesed had posted three inappropriate photographs of A.J.W. on a social media site, one photograph showed the child standing inside a d rawer with the room in disarray, one in which the child appeared to be eating eyeshado w, and one in which the child appeared to be smeared with a brown substance. Huddleston stated that he did not know where A.J.W. was residing, who the two men were, or wh o was taking care of

A.J.W. while Whitesed was at work. {¶11} The magistrate held an immediate hearing on the motion and issu ed an order in which, Huddleston, his attorney, and Whitesed’s attorn ey participated, but Whitesed did not. The order stated that Whitesed’s attorney att empted to contact her for

information but at the time of the order the court had no addit ional information from

2 The record shows that Whitesed has resided at no less than fou r different addresses during the pendency of the case: Circleville, Ashville, Tarlton, and Carro ll, Ohio.Pickaway App. No. 21CA3 7

Whitesed. The order set a subsequent video hearing on the emerg ency motion for September 9, 2020. 3 Both Whitesed and Huddleston attended the video conference with their attorneys. The magistrate denied the motion but orde red Huddleston to have companionship time with A.J.W. for five consecutive days in Sep tember, ordered Whitesed to enroll in Our Family Wizard, and ordered Whitesed t o answer Huddleston’s discovery requests on or before September 16, 2020. The order a lso reminded the parties that the custody hearing was scheduled for November 2 a nd 3, 2020. Although Whitesed’s discovery responses were due in mid-April 2020 and t he court ordered her to respond on or before September 16, 2020, in her affidavit, s he states she did not provide discovery responses to her attorney until October 8, 20 20. {¶12} A third notice about the November final custody hearing was iss ued in mid-September and a final pretrial was set for October 16, 2020 via video conference. This notice was emailed to the parties’ attorneys. In her affid avit, Whitesed acknowledged that her attorney advised her of the October 16 fi nal pretrial. {¶13} Whitesed also acknowledged that she was in communication with h er attorney on October 27, 28, and 29, 2020, during which time the y discussed the witnesses to be called at the custody hearing and she stated th at she provided him with a list of witnesses. Whitesed’s attorney filed a list of witnes ses, a notice of intent to introduce evidence at trial, and he caused a subpoena to issue to compel the

attendance of Officer Thomas of the Ashville Police Department to attend the custody hearing. Whitesed also stated that her attorney informed her o n October 28, 2020, that he would be filing a motion to withdraw. Whitesed’s attorney fi led a motion to withdraw on October 28 and stated that Whitesed failed to provide him wi th evidence to be used

3 A transcript of the hearing was not made part of the record.Pickaway App. No. 21CA3 8

at trial and that he had informed Whitesed that he was seeking to withdraw and informed her of the upcoming court dates. {¶14} On November 2, 2020, at 9:00 a.m. the morning of the hearing, Huddleston, his attorneys, and Whitesed’s attorney appeared for the custody hearing, but Whitesed was not present. The magistrate delayed the hearin g and contacted other courtrooms looking for Whitesed. Whitesed did not appear and at approximately 9:30 a.m. Whitesed’s attorney made an oral motion to withdraw. White sed’s attorney stated that Whitesed had notice of the hearing and he spoke to her abo ut it multiple times. The magistrate granted Whitesed’s attorney’s motion to withdraw and the hearing proceeded

with Huddleston’s witnesses. {¶15} The magistrate issued a decision based upon all the evidence pr esented at the hearing that it was in the best interest of the child to be placed in the legal custody of Huddleston and ordered that Huddleston be designated the residential parent and legal custodian of A.J.W. Whitesed was given compani onship time in accordance with the local rules for long distance. Whitesed fil ed objections with a supporting affidavit, and suppl emental objections, which the tr ial court overruled. {¶16} Relevant to this appeal, Whitesed objected to the magistrate’s granting her attorney permission to withdraw and allowing the trial to g o forward without her. The trial court found that Whitesed had engaged in multiple instanc es of delay and disregard for court orders and overruled her objection: Plaintiff had notice of Attorney DeBeneditto’s intention to wit hdraw on October 28 th . Instead of appearing for the November 2 trial and requesting a continuance to obtain new counsel, she chose to skip the tria l altogether, much like her behavior for the December 20, 2019 he aring. After reviewing the history of this case, this Court comes to t he conclusionPickaway App. No. 21CA3 9

that Plaintiff knowingly chose to avoid the trial and knowingly chose not to oppose her attorney’s withdrawal.

II. ASSIGNMENTS OF ERROR {¶17} Whitesed presents the following assignments of error: 1. The trial court erred in adopting the magistrate’s decision granting custody of the minor child to appellee without complying with t he mandatory provision of Ohio Juvenile Rule of Procedure 4(B)(5) requiring the appointment of a guardian ad litem. (R. 109, Dec. Entry). 2. The trial court erred in adopting the magistrate’s decision granting leave for appellant’s counsel to withdrawal [sic] the morning o f trial. (R. 109, Dec. Entry). 3. The trial court erred in adopting the magistrate’s decision determining appellant had constitutionally sufficient notice of trial. (R. 109, Dec. Entry).

III. LAW AND ANALYSIS A. Appointment of Guardian ad Litem {¶18} Whitesed contends that the trial court erred when it failed to appoint a guardian ad litem under Juv.R. 4(B)(5). Juv.R. 4(B)(5) states t hat a “court shall appoint a guardian ad litem to protect the interest of a child when * * * [a]ny proceeding involves allegations of abuse, neglect, or dependency, voluntary surrend er of permanent custody, or termination of parental rights as soon as possible after the commencement of such proceeding * * * .” Whether Juv.R. 4(B)(5) imposes a ma ndatory duty upon the court to appoint a guardian ad litem and whether the court fail ed to discharge that duty constitute questions of law. We review questions of law de novo

. In re A.G.B. , 173 Ohio App.3d 263, 2007-Ohio-4753, 878 N.E.2d 49, ¶ 11 (4th Dist.); In re A.K., 9th Dist. Summit No. 26291, 2012-Ohio-4430, ¶ 12 (“Generally, this Court reviews a trial court's action with respect to a magistrate's decision for an abuse of discretion. * * * Here, thePickaway App. No. 21CA3 10

assignment of error challenges the trial court's failure to app oint a guardian ad litem pursuant to the mandatory requirements of R.C. 2151.281 and Juv .R. 4. Therefore, this issue presents a question of law, which we review de novo, affo rding no deference to the conclusion of the trial court.”) However, where Juv.R. 4(B) is clearly applicable to a proceeding and the question is whether a guardian ad litem shou ld have been appointed, an appellate court will review it for abuse of discr etion. In re Spradlin, 140 Ohio App.3d 402, 407, 747 N.E.2d 877, 880 (2000) (an abuse-of-d iscretion standard applies to the trial court's decision whether to appoint a guar dian ad litem when a purported conflict exists between the child and parent). {¶19} Whitesed filed an action under R.C. 2151.23(F)(1) and R.C. 3109 .04 for an allocation of parental rights and responsibilities between h erself, an unmarried female who gave birth to A.J.W., and Huddleston, the father. Wh itesed made no allegations of abuse, neglect, or dependency in her complaint a nd Huddleston made none in his answer or in his proposed supplemental pleadings. T hus, we find that this case involves neither a “private” 4 nor a governmental abuse, neglect, or dependency proceeding. Juv.R. 4(B)(5) is inapplicable and the requirement to appoint a guardian ad litem “as soon as possible after the commencement of such proce edings” was never triggered. {¶20} Whitesed contends that the allegations of abuse and neglect wer e made in various filings throughout the proceeding. She contends that Huddleston requested a

4 But see In re A.G.B., 173 Ohio App.3d 263, 2007-Ohio-4753, 878 N.E.2d 49, ¶ 22 (Abel e, J., dissenting, “It is my belief that R.C. Chapter 2151 does not apply to ‘priv ate’ custody disputes (i.e., custody actions brought by private parties rather than children services agenci es).”); In re Shepard , 4th Dist. Highland No. 99CA04, 1999 WL 809760 (Abele, J., concurring); In re Shepard, 4th Dist. Highland No. 2001-Ohio-2499 (Abele, P.J., concurring).Pickaway App. No. 21CA3 11

psychological evaluation of her out of concerns for the child’s wellbeing and this concern constituted an allegation of abuse or neglect that trig gered the court’s obligation to appoint a guardian ad litem under Juv.R. 4(B)(5). The “threat to wellbeing”

was in reference to Whitesed’s refusal to follow the court-orde red parenting time, her manipulative efforts to prevent Huddleston from exercising his parenting time, and the impact that situation would have on the child’s wellbeing. Noth ing in Huddleston’s motion alleged that the child was suffering abuse or neglect. {¶21} Whitesed also cites to Huddleston’s motion for emergency custod y as another example of what she argues are allegations of abuse tri ggering the requirement for a guardian ad litem appointment. In his motion for emergenc y custody, Huddleston

stated his concern that he did not know where his child was liv ing, who was caring for the child while Whitesed was at work, and that Whitesed had pos ted inappropriate photographs of the child on a social media site. Again, these w ere statements of concern about the possibility of harm that could befall the chi ld – not that actual abuse or neglect had occurred or was ongoing. The other allegations o f abuse Whitesed refers

to are unsubstantiated statements Whitesed made about Huddlesto n’s alleged treatment of Whitesed, not his treatment of the child, which th e trial court found

meritless. See L.W. v. L.B. , 6th Dist. Lucas No. L-09-1309, 2010-Ohio-2796, ¶ 27 (in custody dispute between two parents “there was no allegation of abuse or neglect within the contemplation of R.C. 2151.281. As a result, the trial cour t was under no mandate to appoint a guardian ad litem”). {¶22} Whitesed cites no caselaw or statutory provision that requires the trial court to appoint a guardian ad litem pursuant to Juv.R. 4(B)(5) in a case involving thePickaway App. No. 21CA3 12

allocation of parenting rights and responsibilities where there are no allegations of abuse, neglect or dependency. Her legal authority governs delin quency cases. See In re Spradlin , 140 Ohio App.3d 402, 2000-Ohio-2003, 747 N.E.2d 877 (4th Dist .) (juvenile delinquency proceedings under R.C. 2151.281(A)); In re D.A.G ., 4th Dist. Ross Nos. 13CA3366, 13CA3367, 2013-Ohio-3414 (juvenile delinquency procee dings under R.C. 2151.281(A)). {¶23} Here, in a custody case between parents, R.C. 3109.04 applies a nd R.C. 3109.04(B)(1) and (2) provide that when the court is “making th e allocation of the parental rights and responsibilities for the care of the childr en * * * the court, in its discretion, may * * * interview * * * the involved children * * *. If the court interviews any child * * * [t]he court, in its discretion, may and, upon the m otion of either parent, shall appoint a guardian ad litem for the child.” Here, the trial cou rt did not conduct an interview of the child and therefore the provisions governing t he appointment of a guardian ad litem under R.C. 3109.04(B) were not triggered. Purvis v. Purvis, 4th Dist. Adams No. 00CA703, 2002-Ohio-570 (because the trial court did n ot interview the child, it was not required to appoint a guardian ad litem under R.C. 3 109.04(B)(2)(a)). {¶24} Whitesed did not request a guardian ad litem and she did not ob ject to the magistrate’s decision not to appoint a guardian ad litem. “Ordi narily, to preserve a trial court error for appeal, an objection must be timely raised to t he trial court, where the alleged error may be corrected, or else the objection is waived ; it may not be raised for the first time on appeal. As the Ohio Supreme Court held, ‘the fundamental rule is that an appellate court will not consider any error which could have been brought to the trial court's attention, and hence avoided or otherwise corrected.’ ” (Citations omitted.)Pickaway App. No. 21CA3 13

Wilson v. Wilson , 4th Dist. Lawrence No. 09CA1, 2009-Ohio-4978, ¶ 11. “Appellat e courts may, however, consider a forfeited argument using a plai n-error analysis.” In the

Matter of J.M ., 4th Dist. Ross No. 18CA3633, 2018-Ohio-5374, ¶27. Before we can recognize plain error, Whitesed must establish that an error oc curred, it was an obvious defect, and that it affected substantial rights, i.e. it must h ave affected the outcome of

the trial. Id. at ¶ 28. {¶25} Whitesed has not invoked the plain-error doctrine on appeal. “W e generally will not craft a plain-error argument for an appellan t who fails to do so.” Id. at ¶ 66. Because Whitesed failed to present a plain-error argument o n appeal, we will not create one for her. The record contains not hing to suggest that the trial court made an obvious error, that the outcome of the case would have differed, or that the case at bar is one of those extremely rare cases that warrants application of the plain-error doctrine. {¶26} We overruled Whitesed’s first assignment of error. B. Attorney’s Withdrawal {¶27} Whitesed contends that the trial court erred in adopting the ma gistrate’s decision granting her attorney’s motion to withdraw the morning of the trial. We review

the trial court’s decision for abuse of discretion. “An appellate court reviews the trial court's decision to adopt , reject or modify the Magistrate's decision under an abuse of discretion s tandard.” The trial court may adopt, reject, or modify the magistrate's d ecision. Civ.R. 53(D)(4)(b). When ruling on objections to the magistrate 's decision, the trial court is “not required to follow or accept the findin gs or recommendations of its magistrate.” Instead, the trial court “s hall undertake an independent review as to the objected matters to a scertain that the magistrate has properly determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d). Accordingly , the trialPickaway App. No. 21CA3 14

court reviews the magistrate's decision under a de novo standar d of review. (Citations omitted.) Sheehan v. Sheehan, 3d Dist. Defiance No. 4-19-25, 2020-Ohio-5300, ¶ 11. “Error, i f any, committed by the trial court focuses not on the magistrate 's findings or proposed decision, but rather on the trial court's actions.” Morford v. Morford , 2018-Ohio-3439, 118 N.E.3d 937, ¶ 10 (11th Dist.) (“an abuse of discretion may be found when the trial court ‘applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact’ ”). Abuse of discretion means an unreasonable, arbitrary, or unconscionable use of discretion, or a view or ac tion that no conscientious judge could honestly have taken. Eichenlaub v. Eichenlaub , 2018-Ohio -4060, 120 N.E.3d 380, ¶ 11 (4th Dist.). {¶28} First, Whitesed has no right to an attorney in this type of cus tody proceeding. T.S. v. A.T. , 6th Dist. Lucas No. L-19-1296, 2020-Ohio-6871, ¶ 23. Therefore, cases concerning a parent’s right to counsel in invo luntary termination of parental rights proceedings are distinguishable. Second, White sed’s attorney was present at trial to represent her – it was Whitesed who did not appear for the trial. Therefore, cases in which an attorney withdraws within days of the trial are inapplicable. E.g., Wilson v. Wilson , 154 Ohio App.3d 454, 2003-Ohio-4474, 797 N.E.2d 990 (3d Dist.) (client contacted magistrate, requested continuance, sta ted objections to grounds for her attorney’s withdrawal, and appeared at the final hearin g and requested a second extension). This is the key distinction: Whitesed’s attorney di d not leave her without representation at trial, she left her attorney without a client at trial. {¶29} Prof.Cond.R. 1.16(b)(6) allows an attorney to withdraw from representation of a client where the representation “has been r endered unreasonablyPickaway App. No. 21CA3 15

difficult by the client.” Under subpart (d), a lawyer must take steps “to the extent reasonably practicable” to protect a client’s interest. Here, t he withdrawal occurred because of Whitesed’s failure to appear for trial and repeated disregard for the court’s rules and procedures, including her purposeful failure to compl y with court parenting orders. Thus, there were few “reasonably practicable” steps her attorney could take to protect her interests in a case which, at that point, was pendi ng for nearly two years. In the meantime, the child had grown from a five-month-old infant to a two-year-old

toddler. {¶30} The trial court found that the record showed that her attorney stated that Whitesed was aware of the trial date and that they had spoken m ultiple times about it. Whitesed’s own affidavit confirmed that she had spoken to her a ttorney in the days immediately prior to the hearing and provided a list of witness es to be called at the hearing. The trial court also found that Whitesed’s affidavit w as evasive in that she stated she “did not receive notice of hearing,” yet she did not allege that she was unaware of the hearing, and she admitted that her attorney told her about the final pretrial conference. The magistrate delayed the hearing for a h alf hour while they

searched the courthouse for Whitesed. The trial court noted tha t the record showed that Whitesed repeatedly missed hearings, failed to comply with cour t orders, failed to respond to discovery for six months, failed to comply with cour t ordered deadlines, failed to timely complete a required psychological evaluation, refused to communicate on Our Family Wizard, and repeatedly interfered with or entirel y prevented Huddleston’s court-ordered parenting time. The trial court found: In a nutshell, the case history is replete with examples of Pla intiff’s refusal to cooperate in the adjudication of this Complaint, a Complaint that shePickaway App. No. 21CA3 16

had initiated. * * * After reviewing the history of this case, this Court comes to the conclusion that Plaintiff knowingly chose to avoid the trial and knowingly chose not to oppose her attorney’s withdrawal. {¶31} When the plaintiff does not appear for trial , the trial court m ay dismiss the action for lack of prosecution under Civ.R. 41(B). Sunshine Ltd. Partnership v. C.A.S.T.L.E. High School, Inc. , 8th Dist. Cuyahoga No. 106245, 2018-Ohio-2298, ¶ 16. “Where a party's conduct is ‘negligent, irresponsible, contumac ious or dilatory,’ it may provide grounds for a dismissal with prejudice for a failure to prosecute or to obey a

court order.” Ransom v. Aldi, Inc. , 2017-Ohio-6993, 95 N.E.3d 699, ¶ 28 (2d Dist.). Here, as sanctions for her conduct, the trial court could have dismissed her action under Civ.R. 41(B)(1). However, because Huddleston answered, asserted his own claim for the allocation of parental rights, and appeared for the trial, the trial court properly proceeded ex parte with the trial. Sunshine Ltd. Partnership at ¶ 16. “ ‘The Rules of Civil Procedure apply to custody proceedings in juvenile court except when they are clearly inapplicable.’ In re H.W., 114 Ohio St.3d 65, 868 N.E.2d 261, 2007–Ohio–2879, at ¶ 11

* * *.” Stevenson v. Kotnik , 11th Dist. Lake No. 2010-L-063, 2011-Ohio-2585, ¶ 58 (applying Civ.R. 41(B) to juvenile custody proceeding); Leonard v. Yenser, 3d Dist. No. 10–2003–01, 2003–Ohio–4251 (applying Civ.R. 41(B) to a juvenile court proceeding). {¶32} The trial court conducted an independent review of the record a nd determined that Whitesed had knowingly chose to avoid the trial and knowingly chose not to oppose her attorney’s withdrawal. Based upon our review of the record, we find nothing unreasonable, arbitrary, or unconscionable about the tr ial court’s adoption of the magistrate’s decision granting Whitesed’s attorney leave to wit hdraw. As the magistrate stated, “if your client is not going to show, I am not going to make you sit there andPickaway App. No. 21CA3 17

represent her.” Even if this were an involuntary termination of parental rights case in which a parent has a right to counsel, under these circumstance s, the trial court had a reasonable basis to find that Whitesed’s dilatory tactics waive d any objections to her attorney’s withdrawal: Where a parent fails to maintain contact with counsel, fails to appear for scheduled hearings despite receiving notice of such, and fails to cooperate with counsel and the court, the court may infer that the parent has waived his or her right to counsel and may grant counsel's request to withdraw. To ascertain whether a waiver may be inferred, the co urt must take into account the total circumstances of the individual cas e, including the background, experience and conduct of the parent.

In re A.S ., 8th Dist. Cuyahoga No. 94098, 2010-Ohio-1441, ¶ 27; In re B.M., 10th Dist. Franklin No. 09AP-60, 2009-Ohio-4846, ¶ 26 (Where a parent fail s to appear for hearings and cooperate with counsel and the court, the court ma y infer that the parent has waived his or her right to co unsel and may grant counsel's request to withdraw). {¶33} We overrule Whitesed’s se cond assignment of error. C. Notice of the Hearing {¶34} For her final assignment of error, Whitesed contends that trial court erred in adopting the magistrate’s decision finding she had constitut ionally sufficient notice of the trial. She argues that the trial court misinterpreted her a ffidavit and erroneously concluded that she had notice of the hearing and decided to “sk ip the trial altogether, much like her behavior for the December 20, 2019 hearing.” {¶35} Due process requires both a notice and an opportunity to be hea rd:

The Due Process Clause of the Fifth Amendment to the United Sta tes Constitution, as applicable to the states through the Fourteent h Amendment, provides: “No person shall * * * be deprived of life , liberty, or property, without due process of law.” But “[f]or all its conse quence, ‘due process’ has never been, and perhaps can never be, precisely de fined. * * * Rather, the phrase expresses the requirement of ‘fundamental fairness,’Pickaway App. No. 21CA3 18

a requirement whose meaning can be as opaque as its importance is lofty.” Although “due process” lacks a pr ecise definition, courts have long held that due process requires both notice and an opportunity to be heard. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonabl y calculated, under all the circumstances, to apprise interested parties of t he pendency of the action and afford them an opportunity to present their o bjections.”

* * * Generally, notice of new or rescheduled hearings is sent to the parent's attorney, as prescribed by Juv.R. 20. A parent's attorney's statement to the court that he or she communicate d with the parent, who failed to appear, proves that the parent had constructive notice of the permanent custody hearing

. (Citations omitted.) (Emphasis added.) Matter of C.B., 2020-Ohio-5151, 161 N.E.3d 770, ¶ 10-11, 16 (4th Dist.). “Ohio courts have traditionally held that while some form of notice of a tri al date is required to satisfy due process, an entry of the date of trial on the court's docke t constitutes reasonable,

constructive notice of that fact.” Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. , 28 Ohio St.3d 118, 124, 502 N.E.2d 599, 604 (1986); Clelland v. Cartman , 11th Dist. Lake No. 2009-L-024, 2009-Ohio-6514, ¶ 27 (“the entr y of the trial date upon the trial court's docket is sufficient to satisfy the requireme nts of due process because a party is responsible for keeping track of the status of her c ase”). {¶36} The record shows that the final custody hearing was scheduled i n August 2020 for a November 2 and 3, 2020 final hearing. Notice of the hearing issued multiple times in this case to Whitesed’s attorney of record and appeare d on the docket. The order following the September 9, 2020 hearing on Huddleston’s e mergency motion summarizes what occurred at the hearing, which both Whitesed an d her attorney attended. That order was served on her attorney and directed Wh itesed to enroll in OurPickaway App. No. 21CA3 19

Family Wizard, stated that the matter was set for a final heari ng November 2 and 3, 2020, and ordered Whitesed to answer long overdue discovery. {¶37} According to Whitesed’s affidavit and filings in the court reco rd, approximately six days prior to the hearing, Whitesed and her a ttorney discussed witnesses in preparation for the November 2, 2020 hearing – she provided him the

names of four witnesses she wanted to have him call on her beha lf. In her affidavit, she states that on October 27, 2020, she provided her attorney “wit h a list of the names and contact information of all the witnesses I wanted him to subpoe na for the final hearing.” The following day her attorney filed a subpoena for an Ashville police officer to appear on November 2, 2020 at 9:00 am for the hearing. Whitesed testi fied in her affidavit that she was communicating with her attorney on October 27, 28, and 29 prior to the November 2, 2020 hearing about the hearing, his need for paymen t of attorney fees, and his intention to seek to withdraw as her attorney. And, Whi tesed stated that her attorney informed her of and she was available for the final pr etrial hearing on October 16, 2020. Despite all of this activity and her knowledge of and participation in hearing preparation efforts, she claims she “did not receive a notice of hearing regarding the November 2, 2020 hearing.” (Emphasis added.) See Fendrich v. Fendrich, 8th Dist. Cuyahoga No. 54840, 1989 WL 21431, *3 (where court’s journal en tries provided constructive notice of trial, affidavit which averred that part y did not receive notice does not establish ground for relief). {¶38} The day of the hearing, after Whitesed failed to appear and the y could not locate her in the courthouse, the magistrate asked her attorney whether she had notice of the final hearing:Pickaway App. No. 21CA3 20

Q. And, this matter was set for hearing today at 9 o’clock, and Mr. DeBeneditto, did your client have notice of today’s hearing?

A. She did. Q. And, what notice did she have? A. Well, I, I knew we spoke about this multiple times. I assume the court sent her notice as well, but yes, she is certainly aware of thi s morning’s hearing. Q. And she knew to be here today at 9 o’clock.

A. I believe so. Q. And you had talked to her about having witnesses?

A. Yes. Q. And she gave you witnesses?

A. That is correct. Q. And some of those witnesses were her family members?

A. Yes. Q. And, so they knew to be here also, or they were going to be called for a hearing? A. Right. {¶39} Based on our review of the record we find that the trial court did not act unreasonably, arbitrary, or unconscionably when it determined t hat Whitesed had constitutionally sufficient notice of the hearing and decided n ot to attend it. The trial

court determined that her contention that she did not “receive a notice” is not the same as stating that she had no actual knowledge of the hearing date . The record shows that the clerk served multiple notices of the hearing date on Whites ed’s attorney and he informed the magistrate that he had informed his client. The m agistrate determined,Pickaway App. No. 21CA3 21

based upon Whitesed’s attorney’s representations, that Whitesed had notice of the hearing. The trial court conducted an independent review of the evidence as required by Juv.R. 40, considered Whitesed’s affidavit, and determined that Whitesed was not credible and was not being completely forthright in her affidav it. The trial court, not the magistrate, is “the ultimate trier of fact.” State ex rel. Dewine v. Ashworth , 4th Dist. Lawrence No. 11CA16, 2012-Ohio-5632, ¶ 37; In re A.S., 1st Dist. Hamilton No. C180056, 2019-Ohio-2359, ¶ 20. {¶40} The trial court did not violate Whitesed’s constitutional right s when it determined that the magistrate properly proceeded ex parte with the custody hearing. Whitesed had constitutionally sufficient notice of the trial. W e overrule the third assignment of error.

IV. CONCLUSION {¶41} Having overruled the assignments of error, we affirm the trial court’s judgment.

JUDGMENT AFFIRMED.Pickaway App. No. 21CA3 22

JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Pickaway County Common Pleas Court, Juvenile Division, to carry this jud gment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.

For the Court

BY : ________________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for further appeal commences from the date of filing with the clerk.