She realizes that the parties involved would like for it to be resolved sooner and “there is always a ton of allegations,” making it hard to find out the truth. She said the parents will say anything to cast a bad light on each other.

By RHONDA CROWDER

Staff Reporter

Regina Proby is fighting to regain custody of her son, who was removed from her guardianship temporarily on Nov. 3, 2009 and permanently on Jan. 21, 2010, according to the Magistrate Patricia Yeomans-Salvador’s decision.

As a result, the child’s father became the residential custodial parent.

And Proby, who took the case to the appeals court to have the order overturned, can’t receive a ruling because Cuyahoga County Juvenile Court failed to submit the proper work.

“I can’t get my day in appeal court because of negligence and incompetence at juvenile court,” said Proby, who also claims juvenile court lost her transcript.

According to Judge James J. Sweeney’s judgment, in The Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga, the appeal case was dismissed for “lack of an appealable order.” Appeal was dismissed two times in 2010 and 2011 for the same reason.

David Parchem, a staff attorney in Eighth District Court of Appeals, explained that pursuant to the Constitution of the State of Ohio, the Court of Appeals can only review cases with a final appealable order before they can determine the merits of the case.

He also said to receive a case lacking a final appealable order is not uncommon; it’s something that happens periodically. He said the appellant can return to the appeal court once the order is issued. There are lots of factors as to why this would occur.

“This happens and it gets complicated,” he said.

Sweeney’s judgment went on to say the court dismissed this case for lack of appealable order, “holding that ‘the court failed to make an independent entry of judgment when overruling objections to the magistrate’s decision.’”

What Proby wants to know is why Juvenile Court hasn’t responded to the appeals court’s request to issue a final order… why the case has been sitting in Juvenile Court for two years… and why can’t she have her day in court?

“I feel enslaved to juvenile court. The way they treat you and talk to you… It’s like I have no rights,” said Proby before going on to explain what has occurred.

How they got to this point

“My son was stripped from me like I’m a drug addict or abusive,” she said.

Believing anything is possible at this point, Proby wonders if her son’s paternal grandfather’s employment with the county for more than 30 years is correlated to the delay of ruling.

With a master’s degree in Urban Studies, Proby was a single, working mother who took care of her son and older daughter without any assistance from their different fathers. She was employed as a program manager at Tri-C before relocating out of state.

According to Proby, her son’s father could barely take care of himself. Even now, with custody of the child, he lives with his parents. Proby said he is currently working for the City of Cleveland Water Department, and while he’s been there for about six months, has a history of unemployment.

However, Proby said she always allowed him to visit and develop a relationship with his son even though they decided to not be together and he paid no child support.

The two parents haven’t been together since the child was born.

She also said his pursuit to gain custody of their son, now 5 years old, only began once she announced her plans to marry and move out of state in July 2009.

“[His family] tried to make life hell for me since I got married,” she said.

Her son’s father, Robert Canady, Jr. filed for custody in August 2009. Then, on Nov. 3, 2009, the magistrate granted him temporary custody, in her report stating, “…finding that the mother secured an Ex Parte Order of Protection on Oct. 26, 2009, claiming telephone harassment by the father. While father has not yet been served with the order, mom has put father in a position of not being able to contact her about her son.”

Proby said the magistrate became upset at her actions.

“I filed the restraining order in Tennessee, where I was living. Even if I was in Cleveland, I wouldn’t have contacted juvenile court first on this matter because juvenile court doesn’t protect adults, only juveniles,” she said.

She also said Canady had no reason to contact her because their son was with him at the time. Then, Canady claimed Proby wouldn’t allow the child to speak to him on the phone. Proby said that is not true. She allowed them to talk once during the day but he would call all times of the day and night.

She also said the restraining order was never in effect, because it was never served. She cancelled it because it was being used against her by the magistrate and according to Proby, Yeomans Salvadore angrily asked her if she had caller id and said she didn’t have to answer her phone when Canady called.  The Order of Protection was one of the reasons for giving custody to father, according to Proby. She maintains that the Violence Against Women Act says an order should not be used when determining custody.

Proby said the magistrate also tried to accuse her of trying to remove her son from the hospital, prior to being discharged. Proby said she signed the discharge papers from the hospital because she still had sole custody of her son at the time.

They went to trial on Jan. 7, 2010. Proby said the father presented no evidence against her.

On Jan. 21, 2010, Canady received legal, physical custody based on the magistrate’s order. The magistrate ordered that the child was not to be removed from Cuyahoga County. Proby could visit her son four days per month, as well, while a violation would result in contempt of court. That decision made it difficult for Proby to visit since she resides outside of Ohio. She tries to visit whenever there’s a long weekend.

“Juvenile court treats the magistrates like judges,” Proby said, who found it hard to change magistrates and that her complaints fell on deaf ears. “I filed a motion to disqualify the magistrate but she was not removed from my case.”

Basically, she just wants her son back.

“No case should be on their books for more than one year,” she said. “If they’re doing so badly with a custody case, how bad are they dealing with juvenile justice cases? What’s going on down there?”

Proby filed for emergency custody with Juvenile Court in August 2011, based upon her son being taken out of the country without notification and his father neglecting to take him for follow-up with an allergist for almost two years.

The child was diagnosed with a fish allergy in Feb. 2008 and was supposed to go back to the allergist in Feb. 2010. Proby said he just went to an allergist again in December 2011. However, Yeomans-Salvador dismissed her emergency custody motion, saying Proby was “overreacting” and “nitpicking” the father. Proby was also ordered to pay all Guardian ad Litem fees even though the father taking son out of country without notifying mother was a direct violation of a current court order.

The Call and Post contacted Juvenile Court. Judge Peter M. Sikora responded by saying, “This case is open and I can not comment.”

Proby said her son is always asking when she’s coming to get him. She has two other children, so he doesn’t understand why he’s the only one not allowed to live with her. She believes it’s affecting his behavior as well. “He’s overjoyed to see me but angry because he doesn’t understand.”

Professional points of view

Nicole Longino, defense attorney for Canady, said she can’t discuss the case without his permission but did say there are some things Proby’s lawyer needs to do to get a final appealable order.

“This case is still open because she has filed one motion after another,” said Longino. She also said the motions filed on Proby’s behalf are frivolous.

Longino explained that custody hearings are decided based upon the parents’ willing to share the child. According to Longino, Canady was more willing to share the child.

“There was no judicial error,” she said.

Longino attempted to contact her client while on the phone with the Call and Post to see if he wanted to comment for the story. He could not be reached. We asked her to have him call us for comments, but he never responded.

Proby’s attorney, Michael Cretella, said he doesn’t have any particular facts as to why this case is still open but – in his opinion – “the courts hasn’t issued a proper order that will allow the case to became final.”

When asked about Longino’s comments that he failed to take necessary actions to receive a final order, he said, “She’s absolutely wrong.”

Cretella went on to say he’s filed two motions with the court, asking for a final order. One was filed more than a year ago and was ruled upon but the appeal court deemed it an unappealable order. He continues to await a rule for the last one.

Cretella explained that the final order needs to resolve all pending matters and include an independent review while the appeal courts ruling lays out what the courts needs to do.

The Call and Post has a copy of the appeal court ruling.

“The court has not conducted an independent review,” said Cretella.

He also explained that the independent review consist of the magistrate’s issued decision, a review of that decision, transcripts, and the objections.

As for as the transcripts being lost, Cretella said, there was a time when they were misplaced. Although he doesn’t know what happened, he doesn’t think it was intentional. It’s just something that happens in the clerk’s office. It happened over a year and has since been recovered, he said.

At the same time, he sees no end in sight. “There’s no indication on a ruling,” said Cretella. “The judge is out sick and ultimately it’s his responsibility.”

Evette Moton, a 5 year, active Guardian ad Litem, not assigned to this case, said “once social services become involved, the case is open for two years, that’s usually the longest amount of time a case is open.”

She went on to say the process becomes complicated and it takes time to get everything together as there are so many variables that goes into a case. But, after two years have passed, the case must be resolved.

She realizes that the parties involved would like for it to be resolved sooner and “there is always a ton of allegations,” making it hard to find out the truth. She said the parents will say anything to cast a bad light on each other.

Moton also said having a parent living out of state makes it much more complicated.

At the same time, she revealed that the goal is to keep the child with the person who already has custody of the child and to say the courts grant custody to the parent more willing to share the child is, “a gross oversimplification of the process.”