In re J.R.P.
JUDGMENT: Affirmed.
Atty. Matthew C. Giannini, 1040 South Commons Place, Suite 200, Youngstown, Ohio 44514 and Atty. Louis E. Katz, 70 West McKinley Way, Suite 16, Poland, Ohio 44514, for Appellants
Atty. David S. Barbee, Roth, Blair, Roberts, Strasfeld & Lodge, 100 East Federal Street, Suite 600, Youngstown, Ohio 44503-1893, for the Court Appointed Special Advocate Program (CASA)
Atty. Christopher A. Maruca, The Maruca Law Firm, LLC, 201 East Commerce Street Suite 200, Suite 316 Youngstown, Ohio 44503, for Appellees.
{¶1} Appellants husband and wife appeal the Mahoning County Court of Common Pleas, Juvenile Division‘s order granting custody of minor children, J.R.P. and J.A.P. to Appellees, the children‘s maternal grandfather and his husband. Appellants are distant paternal cousins of the children. Appellants raise multiple issues on appeal including the application of the appropriate statute; consideration of the guardian ad litem‘s testimony; and whether the trial court abused its discretion in granting custody to the maternal grandfathers. This record reflects that the trial court applied the appropriate statute in a custodial matter between two nonparent parties and that the testimony of the guardian ad litem was properly admitted and considered by the trial court. Applying the appropriate statutory factors, the trial court did not abuse its discretion in granting custody of the minor children to the maternal grandfathers. Based on the following, the judgment of the trial court is affirmed.
Procedural History
{¶2} This matter originated as a result of an abuse, dependency and neglect case filed by the Mahoning County Children Services Board (“CSB“). Minor child, J.A.P., born 5/10/2013, suffered serious injuries at the hands of his Father when Father stuffed baby wipes down the child‘s throat when the child was eight weeks of age. Mother admitted she was unable to care for the children. Consequently, J.A.P. and his sister, J.R.P., born 5/21/2012, were removed from the home. On July 8, 2013, CSB filed an ex parte motion for custody of the minor children. Criminal charges were filed against Father and he has
{¶3} On September 9, 2013, the trial court determined that the children were abused, dependent and neglected. Temporary custody was granted to their maternal grandmother, (“Grandmother“). On January 21, 2014, CSB filed a motion to terminate court ordered protective supervision. A hearing was held before a magistrate on March 17, 2014. At the conclusion of the hearing, it was determined that protective supervision would be terminated. Due to health problems, Grandmother was no longer able to care for the children at this point. CSB filed a motion to transfer custody to Appellants, who were present at the hearing. The trial court adopted the magistrate‘s decision on April 14, 2014.
{¶4} On July 10, 2014, Mother filed a motion seeking custody of the children. A guardian ad litem (“GAL“) was appointed in the matter and it was set for hearing on November 9, 2014, however, this hearing was continued at Appellants’ request. On December 2, 2014, Appellees filed a motion to intervene in the matter and filed a motion for custody. A hearing was held on December 19, 2014. Mother withdrew her complaint for custody and Appellees’ motion to intervene was granted. On March 26, 2015, a hearing was held to determine Appellees’ motion for custody. While the GAL had recommended Appellees be given custody, the trial court, applying
{¶5} Due to an error by the trial court, the magistrate‘s March 26, 2015 decision was not filed until October 30, 2015. The trial court adopted it on October 30, 2015.
{¶6} On November 14, 2016, Appellants filed a motion to dismiss on the basis that they had filed a petition for adoption of the children in the Mahoning County Probate Court. Appellees filed a motion in opposition. On December 22, 2016, Appellants filed a writ of prohibition in this Court, challenging the trial court‘s jurisdiction over custody proceedings because the children were also the subject of adoption proceedings. (Case No. 16 MA 0195). On January 26, 2017, Appellants voluntarily dismissed their request for writ of prohibition, stating that the parties had reconciled their differences and the adoption matter would not proceed.
{¶8} On March 15, 2017, Appellants filed another petition in this Court, now seeking a writ of mandamus. Appellants sought to compel the trial court judge to act on their motion for legal custody. The juvenile court, as Respondent, filed a motion to dismiss. On September 7, 2017, we dismissed Appellants’ petition, concluding that it had been filed prematurely and that the filing of the petition itself was now causing delay in the proceedings below. (7th Dist. Case No. 17 MA 0047). In fact, because of the pending petition, the trial dates which were originally set for May had to be continued to October of 2017.
{¶9} On May 15, 2017, Appellants filed yet another writ with this Court. This time they sought a writ of procedendo. We again dismissed the writ, noting that the proceedings below had not been unduly delayed and that the writ itself, again, was the cause of delay.
{¶10} A trial on the merits was held October 16 – 20, 2017. Both parties presented testimony from several witnesses and a number of exhibits were admitted into evidence. The court-appointed GAL also testified. Five written reports drafted by the guardian ad litem, spanning a period of approximately three years of investigation, were offered. The trial court took judicial notice of the reports and they were made part of the trial court record under seal. The trial court issued its judgment entry on November 22, 2017, granting legal custody of the minor children to Appellees.
Factual History
{¶12} Temporary custody was originally granted to Grandmother after the children were removed from their home by CSB. Appellants had no relationship with the minor children prior to this, but began visiting Grandmother and the children at that time. Also at that time, Appellees contacted CSB expressing a desire to have custody of the children, but were informed that obtaining a long distance custody arrangement would take an extended period of time. Hence, Appellees were in agreement that Grandmother be appointed temporary custodian of the children. They did not pursue custody at that time, but did contact Grandmother weekly to discuss the children. Mother lived with Appellees for approximately one year before returning to Mahoning County shortly before trial, and had daily interaction with her other two children. Mother maintained regular visitation with the two children at issue in this case while they were under Grandmother‘s care.
{¶13} This temporary custody arrangement lasted until Grandmother became terminally ill and was unable to care for the children. Although CSB was aware of Appellees’ desire to obtain custody of the children because of their previous call to CSB, Appellees were not contacted about the transfer of temporary custody from Grandmother,
{¶14} During the pendency of the matter, the parties have had a contentious relationship. Visitation was an ongoing concern. Appellants were not cooperative in allowing Appellees to have visitation with the children, necessitating several visitation orders be ordered by the trial court once Appellees’ motion to intervene was granted. Initially, Appellants insisted that all visits with the children occur only in the presence of the guardian ad litem and in the lobby of the hotel where Appellees stayed on visits to Youngstown. Appellants habitually monitored Appellees’ visits. During one visit when the children were staying at a local hotel with Appellees, Appellant husband drove around the parking lot looking for Appellees’ vehicle. When he could not find it, he contacted the local police department, alleging that Appellees had kidnapped the children. Testimony at trial revealed several such contentious interactions. Eventually, the court granted extended visitation, permitting Appellees to return to Massachusetts with the children and ordering the parties to meet in Pennsylvania for the exchange, or that Appellees were to be responsible for all of the transportation. Appellants never permitted Appellees into their home and Appellees had limited contact with Appellants due to Appellants’ refusal to engage meaningfully while they had the children.
{¶15} Another major area of contention was in providing the appropriate level of physical, occupational and speech therapy for both children. J.R.P. was born prematurely.
{¶16} Appellees testified that Appellants never told them that the children required any special accommodations originally, including failing to provide Appellees with the “thickener” for J.A.P.‘s drinks or to even tell them that this was necessary because he had difficulty swallowing liquids as a result of his injuries. Appellants failed to inform Appellees
{¶17} This record reveals that the matter of determining legal custody was pending for an extended period of time. We note that Appellees sought a continuance at the beginning of the proceedings because they had recently obtained counsel, which was denied. This was the only continuance sought by Appellees. However, Appellants have sought and obtained multiple continuances for several reasons, including their multiple filings to this Court, which caused additional delays. The trial court acknowledged that a seven-month delay in filing the first magistrate‘s decision also contributed to the extended period of time in which the matter remained unresolved. Finally, at the conclusion of the multi-day trial, the trial court awarded custody to Appellees. Appellants now file this timely
ASSIGNMENT OF ERROR NO. 1
THE JUVENILE COURT ERRED AS A MATTER OF LAW IN PROVIDING A SUMMARY OF TESTIMONY INSTEAD OF MAKING FINDINGS OF FACT.
{¶18} In their first assignment of error, Appellants contend the trial court erred in providing only a summary of the evidence rather than making actual findings of fact in this case.
{¶19} Citing Buzinski v. Buzinski, 5th Dist. No. CA-9304, 1993 WL 544358, Appellants claim that in its decision, the trial court merely recited all of the evidence that was presented instead of setting out only those facts the trial court deemed important, and that the judgment of the trial court should be reversed on this basis. Appellants also rely on Werden v. Crawford, 70 Ohio St.2d 122, 435 N.E.2d 424, 426 (1982), to urge that we cannot adequately review this matter absent the trial court‘s findings of fact. In Buzinski, the judgment of the trial court was reversed and remanded where the one page judgment entry failed to provide any factual basis for its conclusion. In Werden, the Ohio Supreme Court concluded that in custody proceedings,
{¶20} To be sure, the Ohio Supreme Court has noted “that a trial court has a mandatory duty under
{¶21} Notwithstanding this determination, there are statutory provisions that require the trial court to issue findings of fact and conclusions of law in certain circumstances.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO APPLY
R.C.3109.04 IN THIS CASE.
ASSIGNMENT OF ERROR NO. 3
THE JUVENILE COURT ERRED BY FAILING TO PROVIDE ANY ANALYSIS OF THE STATUTORY FACTORS SET FORTH IN
R.C. 3109.04(F) .
ASSIGNMENT OF ERROR NO. 5
THE JUVENILE COURT ERRED AS A MATTER OF LAW BY CHANGING CUSTODY WITHOUT A FINDING (OR EVEN MENTIONING) THAT “THE HARM LIKELY TO BE CAUSED BY A CHANGE OF ENVIRONMENT IS OUTWEIGHED BY THE ADVANTAGES OF THE CHANGE OF ENVIRONMENT TO THE CHILD” AS REQUIRED BY
R.C. 3109.04(E)(1)(a) .
{¶22} Appellants’ second, third and fifth assignments of error all relate to the trial court‘s application of
{¶23} A determination of legal custody by the juvenile court will only be reversed for an abuse of discretion. In re D.D.D., 7th Dist. No. 12 JE 7, 2012-Ohio-5254. Appellants argue that the trial court misinterpreted the statutory framework applicable in this matter and failed to apply the relevant statutory provision when awarding custody to Appellees.
{¶24} A trial court‘s interpretation and application of a statute is an issue of law, which we review de novo. In re A.K., 7th Dist. No. 08 MA 193, 2009-Ohio-5074, ¶ 18 citing Skirvin v. Kidd, 174 Ohio App.3d 273, 2007-Ohio-7179, 881 N.E.2d 914, ¶ 14 (4th Dist.). A de novo review by the appellate court necessitates an independent
{¶25} Appellants rely on In re D.D., 7th Dist. No. 17 CA 0914, 2017-Ohio-8392, 100 N.E.3d 141 for the proposition that before the trial court could award legal custody to Appellees, it was required to apply the factors enumerated in
{¶26} Appellants’ reliance on In re D.D. is misplaced. We agree that “custody of a child is a ‘fundamental liberty interest’ of a parent,” Id., at ¶ 12 quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d. 599 (1982). However, where
{¶27} Appellants also cite our decision in Allison v. McCune, 7th Dist. No. 15 MA 0208 for the proposition that the juvenile court must exercise jurisdiction in accordance with
{¶28} The trial court relied on the Ohio Supreme Court‘s decision in In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, which held:
2. A juvenile court adjudication of abuse, neglect, or dependency is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child‘s custodial and/or noncustodial parents.
3. When a juvenile court adjudicates a child to be abused, neglected, or dependent, it has no duty to make a separate finding at the dispositional hearing that a noncustodial parent is unsuitable before awarding legal custody to a nonparent.
Id., at paragraphs two and three of the syllabus.
{¶29} In its judgment entry dated November 22, 2017, the trial court thoroughly addressed the applicable law, concluding:
The magistrate initially applied ORC Section 3109.04 to the facts of the case. On review, this Court found said application was erroneous as the best interest standard applies. [Appellants‘] Counsel asserts that the ORC Section 3109.04 is the prevailing standard however this Court disagrees. This matter arose on the abuse, dependency, and neglect docket and at the time of the Maternal Grandfather and husband‘s Motion for Custody,
[Appellants] had temporary custody under ORC Section 2151.42. The Court relies on Ohio Revised Code Section 2151.42(A) when modifying an award of temporary custody which was granted in a dependency proceeding. The Court finds In re C.R., at ¶ 16, 108 Ohio St.3d 369 (2005) controlling. Ohio Revised Code Section 2151.011(B)(2) defines “temporary custody” as “legal custody of a child who is removed from the child‘s home, which custody may be terminated at any time at the discretion of the court.” Additionally, the case facts show the Minor Children were previously adjudicated abused and dependent, and were placed in the temporary custody first with the Maternal Grandmother and then the [Appellants]. The Ninth Appellant [sic] District ruled that “once a court has exercised jurisdiction over a child, the court has continuing jurisdiction to determine what is in the best interests of the child. Furthermore, O.R.C. Section 3109.04 applies to situations between parents since the philosophy of requiring a change of circumstances in custody issues is based on the presumption that parents are equals and must be treated as such.” See In re A.M., 2017 Ohio 7690 [sic] at ¶ 20, CA 28285, 2017 Ohio App. LEXIS 4024. In a juvenile proceeding where the parties are not on equal footing, the change of circumstances standard does not apply. See In re A.M., 2017 Ohio 7690 [sic] at ¶ 17 O.R.C. Section 3109.04 is relevant to a modification of a prior decree allocating parental rights and responsibilities and hence, is not applicable to the case at bar. Importantly, the Ohio Supreme Court has recognized the flexibility provided in O.R.C. Section 2151, and has eschewed the general rule that “permanency of final orders is a paramount principle.” In re Hockstock, [sic] at ¶¶ 35and [sic] 98, Ohio St.3d 238, 2002.
(11/22/17 J.E., pp. 13-14.)
{¶30} The trial court correctly noted that when children have been adjudicated abused, neglected or dependent, a previous determination as to the unsuitability of the parents has been made and legal custody may be awarded to a nonparent if it is in the child‘s best interest. In re Ray, 7th Dist. Nos. 07 BE 14, 07 BE 15, 2008-Ohio-3250, ¶ 48. On removal from the home, the children in this matter were placed in Grandmother‘s care. This custody was, by law, “temporary.”
{¶31} Appellants essentially seek to have the magistrate‘s decision reinstated. The magistrate utilized the standard set forth in
The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the
time of the prior decree, that a change has occurred in the circumstances of the child, the child‘s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child.
{¶32}
{¶33}
At any hearing in which a court is asked to modify or terminate an order of disposition issued under section 2151.353, 2151.415, or 2151.417 of the
Revised Code, the court, in determining whether to return the child to the child‘s parents, shall consider whether it is in the best interest of the child.
{¶34} In this matter, Mother sought to regain custody and then withdrew her request. At this juncture, Appellees and Appellants all sought legal custody. This request is clearly a modification of the earlier, temporary award and relies simply on the “best interests” standards. We realize that, on its face, this section applies when a parent seeks the return of his or her children, which is clearly not the case, here. The trial court cited In re C.R., supra, where the Ohio Supreme Court held that when a juvenile court adjudicates a child abused, neglected, or dependent, it has inherently made a determination as to the unsuitability of the child‘s parents and has no duty to make a separate finding of unsuitability at a dispositional hearing. Id., at paragraphs 2 and 3 of the syllabus. The trial court also cited In re A.M., 9th Dist. No. 28285, 2017-Ohio-7690, 97 N.E.3d 1036, wherein a mother who had previously relinquished custody to nonparents later sought to regain custody of her child. Even though custody was sought by the actual parent,
{¶35} In applying the principles set forth in In re D.D. and In re C.R., once a child is adjudicated abused, neglected and dependent a determination regarding the unsuitability of a parent is considered to be inherently part of that proceeding and no further inquiry remains other than the best interest standard. A party seeking legal custody who is a nonparent obviously does not possess the same rights a parent has to {¶36} In Appellants’ third and fifth assignments they also contend that {¶37} We also conclude that The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances {¶38} Appellants claim that THE JUVENILE COURT ERRED AS A MATTER OF LAW IN USING THE GUARDIAN AD LITEM‘S TESTIMONY IN DETERMINING CUSTODY WHEN THE GUARDIAN WAS UNAWARE OF THE STATUTORY FACTORS AS TO BEST INTERESTS SET FORTH UNDER THE JUVENILE COURT ERRED BY IMPROPERLY ALLOWING THE GUARDIAN AD LITEM TO GIVE HEARSAY TESTIMONY AND TO TESTIFY TO MATTERS BEYOND HER KNOWLEDGE. THE JUVENILE COURT ERRED IN TAKING JUDICIAL NOTICE OF THE FIVE GUARDIAN REPORTS, ONE OF WHICH RELATED TO A PRIOR PROCEEDING AND NONE OF WHICH WERE ADMITTED INTO EVIDENCE. {¶39} In Appellants’ sixth, eighth and tenth assignments of error they take issue with inclusion of the CASA/guardian ad litem‘s testimony and written reports. {¶40} Appellants first contend the trial court erred, as a matter of law, in permitting the GAL to testify and in relying on that testimony in making its custody determination when the guardian ad litem was not able to recite all of the factors found in {¶41} {¶42} In the instant matter, the GAL had been appointed early in the proceedings, in July of 2014. The GAL is not an attorney, but a retired educator, and a foundation listing her qualifications was properly before the trial court during her testimony. Appellants do not contest the GAL‘s general qualifications or abilities. Instead, they claim that because she was unable to recite the statutory factors found in The guardian ad litem for an alleged or adjudicated abused, neglected, or dependent child shall perform whatever functions are necessary to protect the best interest of the child, including, but not limited to, investigation, mediation, monitoring court proceedings, and monitoring the services provided the child by the public children services agency or private child placing agency that has temporary or permanent custody of the child, and shall file any motions and other court papers that are in the best interest of the child in accordance with rules adopted by the supreme court. {¶44} 5) A non-attorney guardian ad litem must avoid engaging in conduct that constitutes the unauthorized practice of law, be vigilant in performing the guardian ad litem‘s duties and request that the court appoint legal counsel, or otherwise employ the services of an attorney, to undertake appropriate legal actions on behalf of the guardian ad litem in the case. * * * (13) A guardian ad litem shall make reasonable efforts to become informed about the facts of the case and to contact all parties. In order to provide the court with relevant information and an informed {¶45} As noted by Appellees, there is no requirement that a GAL operate with “legal precision” but, rather, that they adhere to the statutory requirements. Pryor, 86 Ohio App.3d at 339. {¶46} The GAL in the instant matter provided lengthy testimony regarding her years-long investigation of all parties in this action, including several trips to the children‘s preschool and school, sitting in on visitations with Appellees at Appellants’ request and even visiting Appellees’ home during one of her personal vacations to Massachusetts. Her testimony reflected that she had taken several factors into consideration before making her recommendation to the court, many of which encompass the factors enumerated in {¶47} In their eighth assignment of error, Appellants contend the trial court erred in allowing the GAL to give hearsay testimony. Appellants cite to four instances in the testimony as evidence of impermissible hearsay, including a statement by Mother to the GAL that Appellants would not allow her to visit with the children. (Tr., p. 911.) Appellants also objected to the GAL‘s testimony about a statement made by one of the children. On review, the statement cited by Appellants was made to her by one of the children‘s teachers. (Tr., p. 948.) Appellants take issue with testimony regarding Appellant husband‘s opinion as to Appellees’ sexual orientation. (Tr., pp. 925-927.) Finally, Appellants object to testimony regarding one Appellee‘s fear that the police were going to be called to their hotel during a visitation period. (Tr., p. 919.) {¶48} A reviewing court will not disturb a trial court‘s determination on admissibility of evidence absent an abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. In order to find an abuse of discretion, the reviewing court must find that the trial court‘s decision was arbitrary, unconscionable or unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶49} The testimony regarding Mother‘s statement on visitation and Appellee‘s statement regarding the hotel incident are statements made by parties to the action, and the trial court properly overruled Appellants’ objection. See {¶50} Appellants have not cited to any testimony by the guardian ad litem that runs afoul of the evidence rules. Moreover, Appellants have not demonstrated that any of the statements to which they object affected the outcome of the proceedings. The GAL‘s testimony reflected her investigation over the course of several years in a complicated situation involving several witnesses, and involved inquiry into the needs of the children. Appellants’ eighth assignment of error is without merit and is overruled. {¶51} In their tenth assignment of error, Appellants contend the trial court erred in taking judicial notice of the five guardian ad litem reports issued over the course of the proceedings while pending. {¶52} As noted above, {¶53} Appellants’ attempt to discredit the mandatory reports filed by the GAL, under seal, flies in the face of statute. The GAL was required to detail her investigation and the activities she undertook in order to reach her recommendation to the court. The court may consider a guardian ad litem‘s report even if it contains impermissible hearsay so long as the GAL is available to testify and to be questioned regarding the reports. In re C.D.M., 4th Dist. No. 13CA1, 2013-Ohio-3792, ¶ 25. The GAL in the instant matter demonstrated that she conducted a thorough investigation and had generated a number of written reports over the tenure of her investigation. She was cross-examined by both parties on all issues. Appellants’ tenth assignment of error is without merit and is overruled. THE JUVENILE COURT ABUSED ITS DISCRETION BY AWARDING CUSTODY TO AN OUT OF STATE NON-PARENT THEREBY MAKING ANY CHANCE OF REUNIFICATION UNLIKELY AND PROBLEMATIC. {¶54} Appellants contend the trial court‘s decision is detrimental to potential reunification of the children with Mother because Appellees reside outside of Ohio. Appellants’ argument fails both legally and factually. {¶55} Once a child is adjudicated abused, neglected or dependent, a juvenile court may award legal custody of the child to any parent or person who files a motion for custody. {¶56} Appellants’ contention the trial court‘s award of legal custody to Appellees makes reunification “unlikely and problematic” is also not supported by the facts in the record. Mother testified that Appellants allowed her to visit the children when they initially gained custody of them, but that gradually they began to ignore her telephone calls and text messages seeking visitation with her children. (Tr., p. 399.) Moreover, Mother testified that she wanted the children to live with her father. (Tr., p. 404.) The record shows that Mother lived with Appellees for an extended period of time in Massachusetts where she had extended visitation with her other children on a daily basis before her return to Mahoning County shortly before trial in this matter. THE JUVENILE COURT ERRED BY ADJUDICATING THE MERITS OF THIS CASE WITHOUT A NECESSARY PARTY. {¶58} In their ninth assignment of error Appellants contend that the judgment of the trial court should be reversed, because CSB was never made a party to the action. The matter originated in an abuse, dependency and neglect case arising from a filing by CSB pursuant to THE JUVENILE COURT ERRED BY FAILING TO FOLLOW THE REQUIREMENTS OF {¶59} Appellants argue the trial court erred in failing to execute a signed statement of understanding and that this failure is indicative of a “systemic failure to follow proper protocol and procedures” by the trial court. (Appellants’ Brf., p. 23.) {¶60} Award legal custody of the child to either parent or to any other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child or is identified as a proposed legal custodian in a complaint or motion filed prior to the dispositional hearing by any party to the proceedings. A person identified in a complaint or motion filed by a party to the proceedings as a proposed legal custodian shall be awarded legal custody of the child only if the person identified signs a statement of {¶61} Appellees contend the statute requires a statement of understanding to be signed prior to the dispositional hearing. The {¶62} More importantly, even assuming the trial court erred in this regard, Appellants failed to preserve this issue for appellate review. Appellants did not raise an objection to the lack of a statement of understanding by Appellees at the time when the alleged error could have been addressed. Appellants failed to object during the entire four-year time period in which this matter was pending, and did not object at hearing. See {¶63} To establish plain error, Appellants must demonstrate that the trial court‘s failure to require the proposed legal custodian to submit a written statement of understanding affected, “the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus. Appellants {¶64} There appears to be a lack of consensus among appellate districts as to the interpretation of {¶65} In the instant matter, Appellees testified extensively regarding their desire to act as legal custodians of the children, and their ability to adjust their work schedules in order to work from home to care for the children. Additionally, they addressed their commitment to maintaining treatments for the children‘s special needs and ensuring the children maintain a relationship with Mother and extended family members. This testimony clearly demonstrates Appellees’ commitment to their roles as legal custodians. Appellants’ eleventh assignment of error is without merit and is overruled. THE JUVENILE COURT‘S RULING “... THAT A SIGNIFICANT CHANGE IN CIRCUMSTANCES OCCURRED SINCE THE MINOR CHILDREN HAVE NOT MADE SIGNIFICANT PROGRESS WHILE IN {¶66} In their fourth assignment of error, Appellants contend the trial court‘s determination that a significant change in circumstances occurred in the matter is against the manifest weight of the evidence. {¶67} The trial court recognized that it was not necessary to demonstrate a change in circumstances occurred in order to grant legal custody of the children to Appellees. In re Ray, 7th Dist. Nos. 07 BE 14, 07 BE 15, 2008-Ohio-3250, ¶ 48. However, in its judgment entry the trial court also stated: Borrowing from Ohio Revised Code Section 3109.04, the Court finds that a significant change in circumstances occurred since the Minor Children have not made significant progress while in [Appellants‘] care. Minor Child [J.R.P.] still struggles and is having difficulty in kindergarten. [Appellant wife] noted that the preschool did not adequately prepare [the child] for the transition. It appears that the Minor Children attended the selected preschool due to convenience for [Appellants] and not for the Minor Children‘s benefit. [Appellants] did not advise the Guardian ad Litem and the Maternal Grandfather and husband about the Minor Children‘s health needs whereby forcing the Guardian and the Maternal Grandfather and husband to guess and learn on their own. Maternal Grandfather testified that he did not know Minor Child [J.A.P.] required a thickener for his liquids, had ear infections, or therapies. Clearly, [Appellants‘] thwarts were not in the Minor Children‘s best interest. The fact that [Appellants] (11/22/17 J.E., p. 16.) {¶68} In their brief, Appellants reiterate selected passages from the nearly dozen teachers and counselors who provided testimony about the children‘s progress and disabilities. Appellants have highlighted testimony favorable to them and disregarded unfavorable testimony. Notably, the record contains testimony from Appellant wife indicating that therapy was allowed to lapse for over a year before being reinstituted, which would certainly support the trial court‘s finding that a significant change of circumstances had occurred. (Tr., p. 787.) {¶69} However, as earlier discussed, the trial court was not required to conduct a two-part analysis, first to determine whether there was a change of circumstances, followed by a best interest analysis. Again, we have determined that {¶70} Based on the foregoing, Appellants’ assignments of error are without merit and the judgment of the trial court is affirmed. Donofrio, J., concurs. Bartlett, J., concurs. For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas, Juvenile Division, of Mahoning County, Ohio, is affirmed. Costs to be taxed against the Appellants. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to This document constitutes a final judgment entry.
ASSIGNMENT OF ERROR NO. 6
ASSIGNMENT OF ERROR NO. 10
ASSIGNMENT OF ERROR NO. 7
ASSIGNMENT OF ERROR NO. 9
ASSIGNMENT OF ERROR NO. 11
ASSIGNMENT OF ERROR NO. 4
NOTICE TO COUNSEL