2017 Ohio 7391
Ohio Ct. App.2017Background
- H.W., age 7 at removal, was found with bruises; Akron Children’s Hospital substantiated abuse allegations against mother, Alicia Borden (Mother). Father (Ryan White) was not exercising parenting time prior to removal.
- Emergency custody initially granted to other father figures; by June 2015 temporary custody of H.W. was continued with Father after adjudication; TCJFS filed abuse/neglect/dependency complaint and a case plan was implemented.
- Father completed a psychological assessment, provided stable housing, medical/dental care, counseling, and school support for H.W.; Mother completed some services but had unstable housing, unmet anger-management needs, and continued to deny the abuse.
- An evidentiary hearing was held (Aug. 31, 2016) on TCJFS’s motion to terminate protective supervision and leave custody with Father; GAL attended the hearing but did not file a report or testify as a witness called by the parties.
- Trial court granted custody to Father and terminated TCJFS protective supervision (Sept. 19, 2016). Mother appealed, raising four assignments of error.
Issues
| Issue | Mother’s Argument | TCJFS/Father’s Argument | Held |
|---|---|---|---|
| 1. Granting custody without a GAL report under Sup.R. 48 | Trial court erred by awarding custody to Father absent GAL report/testimony | GAL attended hearing; Sup.R. 48 is not a substantive right; Mother forfeited objection and no plain error occurred | No plain error; assignment overruled |
| 2. Trial court failed to address Mother’s residual companionship (parenting time) rights | Court did not clarify or enter an order regarding Mother’s companionship time; off‑record discussion insufficient | Record ambiguous; judgment entry silent on companionship time | Remanded for clarification of companionship/residual parental rights |
| 3. Failure to enter R.C. 2151.419(B)(1) reasonable‑efforts findings | Court did not make the statutorily required written findings describing services and why they failed | Trial court’s entry was detailed but did not "briefly describe" services per statute | Reversed in part and remanded for mandatory reasonable‑efforts findings |
| 4. Judicial bias / judge not impartial | Judge questioned Mother and relatives more harshly, referenced evaluations and outside matters—denying fair trial | Claims of judicial bias must be pursued under R.C. 2701.03; appellate court lacks authority to order recusal; alternatively, record does not show reversible bias | Assignment overruled (court declines jurisdiction to order recusal; no relief granted) |
Key Cases Cited
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (Ohio 1997) (sets civil plain‑error standard; extremely rare, limited application to prevent miscarriage of justice)