Case Information
*1 [Cite as In re A.P. , 2022-Ohio-1577.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
IN THE MATTER OF: : CASE NO. 21CA14
21CA15 A.P. AND R.P., :
Dependent Children. :DECISION & JUDGMENT ENTRY
________________________________________________________________ APPEARANCES:
Robert W. Bright, Middleport, Ohio, for Appellant.
Jason Holdren, Gallia County Prosecuting Attorney, Emily
VanSickle, Assistant Gallia County Prosecuting Attorney, and
Randy Dupree, Assistant Gallia County Prosecuting Attorney,
Gallipolis, Ohio, for Appellee.
________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED:5-4-22
ABELE, J.
This is an appeal from a Gallia County Common Pleas
Court, Juvenile Division, judgment that granted Gallia County
Job and Family Services, appellee herein, permanent custody of
six-year-old A.P., and five-year-old R.P. C.G., the child ren’s
biological mother and appellant herein, raises the following
assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“THE JUVENILE COURT DID NOT FOLLOW AND/OR MISAPPLIED THE FACTORS FOUND IN R.C.
2151.414.”
SECOND ASSIGNMENT OF ERROR:
“TH E REPORT OF THE GUARDIAN AD LITEM DOES NOT COMPLY WITH SUPERINTENDENCE RULE 48.06 AND THE GUARDIAN AD LITEM DID NOT TESTIFY.” {¶2} In 2017, appellant’s infant child, R.P., was diagnosed with an unexplained skull fracture and a brain bleed. At the
time, R.P. lived with A.P., appellant, and her father. Appellee
removed R.P. and A.P. from their parents’ custody and developed
a case plan. Appellant completed the case plan, separated from
the children’s father, and appellee returned the children to
appellant’s cu stody. On October 12, 2018, R.P., then almost two years old,
was admitted to the hospital with unexplained injuries that
occurred while in appellant’s care and custody. Medical
professionals later determined that the child had sustained a
skull fracture, broken fingers, and leg fractures. On October 15, 2018, appellee filed a complaint that
alleged A.P. is a dependent child and that R.P. is a dependent
and abused child. Appellee alleged that R.P. had suffered
several unexplained injuries while in appella nt’s c are and
custody and that A.P. had bruising on her face. Appellee
asserted that “the children are at significant risk of further
and/or potential harm” and requested emergency temporary
custody. Subsequently, the trial court granted appellee
temporary custody of the children.
{¶5} On November 19, 2018, appellant admitted the allegations contained in the complaints, and the trial court
adjudicated the children dependent. The court continued the
temporary custody order pending disposition. On December 20,
2018, the parties agreed to continue the children in appellee’ s
temporary custody. On November 14, 2019, appellee filed a motion for
permanent custody of the children and alleged (1) the children
had been in temporary custody for 12 or more months of a
consecutive 22-month period, (2) the children cannot be placed
with either parent within a reasonable time or should not be
placed with either parent, and (3) placing the children in
appellee’s permanent custody is in the children’s best
interests. On January 2, 2020, appellant filed a motion to stay
appellee’s perm anent custody motion so that she could complete
one last case plan requirement. Appellant alleged she had
completed all case plan requirements except a mental health
evaluation. Appellant stated that she has been unable to
complete the evaluation “due to insurance restrictions” and that
she is “working diligently to get this completed.” The trial
court granted appellant’s motion.
{¶8} At a June 9, 2020 review hearing, the trial court noted that appellant still had to complete a mental health
evaluation. Appellee recommended that the court continue
temporary custody to provide additional time to complete a
mental health evaluation. The court thus continued the children
in appellee’s temporary custo dy.
{¶9} In February 2021, the state charged appellant with two counts of third-degree-felony endangering children in violation
of R.C. 2919.22(A). Appellant then requested multiple
continuances of the permanent custody hearing in order to
complete discovery and negotiations in the criminal matter. In May 2021, appellant filed a motion to ask the trial
court to place the children in the foster mother’s legal
custody. Appellee also renewed its permanent custody motion. In October 2021, the trial court held a hearing to
consider appellee’s permanent custody motion. At the hearing,
Gallia County Department of Job and Family Services Caseworker
Kristi Smith testified that she first worked with the family in
2017, when appellee received a report that R.P. had been abused.
Smith explained that the initial report stated that R.P. “was in
distress” and taken to the hospital. Doctors discovered R.P.
5
“had a brain bleed” and a skull fracture. Smith stated that the
agency developed a case plan for the family and that R.P. later
was reunified with appellant.
{¶12} Caseworker Smith related that appellee continued to receive “multiple reports of abuse and neglect” after the
children had been reunited with appellant. Smith stated that in
September 2018, [1] R.P. again went to the hospital. Doctors
discovered that R.P.’s right and lef t fibula were broken, her
right and left tibias were broken, she had “cauliflower ear” and
an eye infection. Appellee again removed the children from
appellant’s custody and developed another case pl an aimed at
reunification. The family’s current casewor ker, Jessica McCoy,
testified that the case plan required appellant to complete
parenting classes, obtain a mental health evaluation, and
maintain a stable and sanitary home, among other things. McCoy
stated that the parents completed parenting classes and mental
health evaluations. Caseworker McCoy explained that the children have been
in the same foster home since their October 2018 removal. McCoy
indicated that the children are doing well in the foster home
and that the foster mother ensures that all of their needs are
met.
McCoy also does not believe the children can safely be returned
to either parent. She believes that placing them in appellee’s
permanent custody is in their best interests. The trial court asked Caseworker McCoy whether she
di scussed appellant’s request that the court grant the foster
mother legal custody of the children. McCoy indicated that
appellee would like to obtain permanent custody of the children
and that the foster mothe r “is not willing to do the legal
custody,” but rather would like to adopt the children. Appellant testified that she does not believe that she
presently can care for the children. She advised the trial
court that she would like the children to remain with the foster
parent until appellant is able to “get on [her] feet.”
Appellant also revealed that her criminal charges are pending
and she intends to plead guilty to the two counts of endangering
children. Appellant explained that when R.P.’s 2018 i njuries
were discovered, she had been living with a boyfriend and she
believes her boyfriend caused the injuries.
The foster mother testified that the children have been in her home since their removal. She stated that R.P. “is
non- verbal,” “cannot commu nicate ,” and takes seizure medication.
Appellant’s counsel asked the foster mother why the foster
mother was not willing to accept legal custody of the children
and the foster mother responded: “These children are like my
own. You don’t take two little gi rls th at’s [sic] been abused
and keep them three ye ars and not learn to love them.” On November 3, 2021, the trial court granted appellee
permanent custody of the two children. The court found (1) the
children have been in appellee’s temporary custody fo r 12 or
more months of a consecutive 22-month period, and (2) the
children cannot be placed with either parent within a reasonable
time. The court additionally determined that placing the
children in appellee’s permanent custody is in their best
interests. The court found that the children need a legally
secure permanent placement that can only be achieved by granting
appellee permanent custody. The court noted that (1) the
children have been in appellee’s temporary custody for more than
two and one-half years and that “finalization is important,” (2)
t he children are bonded to their foster mother and that “[t]here
is a strong possibility of adoption by the foster mother,” and
(3) the guardian ad litem (GAL) recommended that the court grant
appellee permanent custody.
{¶19} Thus, the trial court awarded appellee permanent custody of the children and denied appellant’s request to place
the children in the foster mother’s legal custody. This appeal
followed.
I In her first assignment of error, appellant asserts
that the trial court’s decision to grant appell ee permanent
custody of the children is against the manifest weight of the
evidence. In particular, appellant challenges the trial court’s
findings that (1) appellant failed to remedy the problems that
led to the children’s initial removal, (2) appellant
demonstrated a lack of commitment toward the children, and (3)
the children cannot be placed with appellant within a reasonable
time.
A Generally, a reviewing court will not disturb a trial
court’s permanent custody decision unless the decision is
against the manifest weight of the evidence. E.g., In re B.E. ,
4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S. ,
4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
“Weight of the evidence concerns ‘the i nclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’” Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 12, quoting State v. Thompkins , 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594
(6th Ed.1990). When an appellate court reviews whether a trial
court’s permanent custody decision is against the manifest
we ight of the evidence, the court “‘“weighs the evidence and all
reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence,
the [finder of fact] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be
reversed and a new trial ordered.”’” Eastley at ¶ 20, quoting
Tewarson v. Simon , 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th
Dist.2001), quoting Thompkins , 78 Ohio St.3d at 387, quoting
State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983); accord In re Pittman , 9th Dist. Summit No. 20894,
2002-Ohio-2208, ¶¶ 23-24. We further observe, however, that
issues relating to the credibility of witnesses and the weight
to be given the evidence are primarily for the trier of fact.
As the court explained in Seasons Coal Co. v. Cleveland , 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984):
The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. Moreover, deferring to the trial court on matters of
credibil ity is “crucial in a child custody case, where there may
be much evident in the parties’ demeanor and attitude that does
not translate to the record well (Emphasis sic).” Davis v.
Flickinger , 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
Accord In re Christian , 4th Dist. No. 04CA 10, 2004-Ohio-3146, ¶
7. The question that an appellate court must resolve when
reviewing a permanent custody decision under the manifest weight
of the evidence standard is “whether th e juve nile court’s
findings * * * were supp orted by clear and convincing evidence.”
In re K.H. , 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809,
¶ 43. “Clear and convincing evidence” is:
the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
In re Estate of Haynes , 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23
(1986). In determining whether a trial court based its decision
upon clear and convincing evidence, “a reviewing court will
examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of
proof.” State v. Schiebel , 55 Ohio St.3d 71, 74, 564 N.E.2d 54
(1990); accord In re Holcomb , 18 Ohio St.3d 361, 368, 481 N.E.2d
613 (1985), citing Cross v. Ledford , 161 Ohio St. 469, 120
N.E.2d 118 (1954) (“Once the clear and convincing standard has
been met to the satisfaction of the [trial] court, the reviewing
court must examine the record and determine if the trier of fact
had sufficient evidence before it to satisfy this burden of
proof.”); In re Adoption of Lay , 25 Ohio St.3d 41, 42-43, 495
N.E.2d 9 (1986). Cf. In re Adoption of Masa , 23 Ohio St.3d 163,
165, 492 N.E.2d 140 (1986) (whether a fact has been “proven by
clear and convincing evidence in a particular case is a
determination for the [trial] court and will not be disturbed on
appeal unless such determination is against the manifest weight
of the evidence”).
Thus, if a children services agency presented competent and credible evidence upon which the trier of fact
reasonably could have formed a firm belief that permanent
custody is warranted, the court’s decision is not against the
manifest weight of the evidence. In re R.M. , 2013-Ohio-3588,
997 N.E.2d 169, ¶ 62 (4th Dist.); In re R.L. , 2nd Dist. Greene
Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 17, quoting In re
A.U. , 2nd Dist. Montgomery No. 22287, 2008-Ohio- 187, ¶ 9 (“A
reviewing court will not overturn a court’s grant of permanent
custody to the state as being contrary to the manifest weight of
th e evidence ‘if the record contains c ompetent, credible
evidence by which the court could have formed a firm belief or
conviction that the essential statutory elements * * * have been
established.’”). Once a reviewing court finishes its examination, the
judgment may be reversed only if it appears that the fact-
finder, when resolving the conflicts in evidence, “‘clearly lost
its way and created such a manifest miscarriage of justice that
the [judgment] must be reversed and a new trial ordered.’”
Thompkins , 78 Ohio St.3d at 387, quoting State v. Martin , 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A
reviewing court should find a trial court’s permanent custody
13
decision against the manifest weight of the evidence only in the
“‘exceptional cas e in which the evidence weighs heavily against
the [decision].’” Id. , quoting Martin , 20 Ohio App.3d at 175;
accord State v. Lindsey , 87 Ohio St.3d 479, 483, 721 N.E.2d 995
(2000).
B We recognize that “parents’ interest in the care,
custody, and control of th eir children ‘is perhaps the oldest of
the fundamental liberty interests recognized by th[e United
States Supreme] Court.’” In re B.C. , 141 Ohio St.3d 55, 2014-
Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville , 530
U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the
right to raise one’s “child is an ‘essential’ and ‘basic’ civil
right.” In re Murray , 52 Ohio St.3d 155, 157, 556 N.E.2d 1169
(1990); accord In re Hayes , 79 Ohio St.3d 46, 48, 679 N.E.2d 680
(1997); see Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 8, 71 L.Ed.2d 599 (1982) (“natural parents have a fundamental
right to the care and custody of their children”). Thus,
“parents who are ‘suitable’ have a ‘paramount’ right to the
custody of their children.” B.C. at ¶ 19, quoting In re
Perales , 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing
Clark v. Bayer , 32 Ohio St. 299, 310 (1877); Murray , 52 Ohio
St.3d at 157, 556 N.E.2d 1169. A parent’s rights, however, are not absolute. In re
D.A. , 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11.
Rat her, “‘it is plain that the natural rights of a parent * * *
are always subject to the ultimate welfare of the child, which
is the polestar or controlling principle to be observed.’” In
re Cunningham , 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979),
quoting In re R.J.C. , 300 So.2d 54, 58 (Fla. App. 1974). Thus,
the State may terminate parental rights when a child’s best
interest demands such termination. D.A. at ¶ 11. Before a court may award a children services agency
permanent custody of a child, R.C. 2151.414(A)(1) requires the
court to hold a hearing. The primary purpose of the hearing is
to allow the court to determine whether the child’s best
interests would be served by permanently terminating the
parental relationship and by awarding permanent custody to the
agency. Id. Additionally, when considering whether to grant a
children services agency permanent custody, a trial court should
consider the underlying purposes of R.C. Chapter 2151: “to care
for and protect c hildren, ‘whenever possible, in a family
environment, separating the child from the child’s parents only
when necessary for the child’s welfare or in the interests of
public safety.’” In re C.F. , 113 Ohio St.3d 73, 2007-Ohio-1104,
862 N.E.2d 816, ¶ 29, quoting R.C. 2151.01(A).
C A children services agency may obtain permanent
custody of a child by (1) requesting it in the abuse, neglect or
dependency complaint under R.C. 2151.353, or (2) filing a motion
under R.C. 2151.413 after obtaining temporary custody. In this
case, appellee sought permanent custody by filing a motion under
R.C. 2151.413. When an agency files a permanent custody motion
under R.C. 2151.413, R.C. 2151.414 applies. R.C. 2151.414(A). R.C. 2151.414(B)(1) permits a trial court to grant
permanent custody of a child to a children services agency if
the court determines, by clear and convincing evidence, that the
child’s best interest would be served by the award of permanent
custody and that one of the following conditions applies:
(a) The child is not abandoned or orphaned or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999, and the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999.
(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
{¶32} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of
the circumstances described in R.C. 2151.414(B)(1) applies, and
(2) that awarding the children services agency permanent custody
would further the child’s best interest. In the case at bar, the trial court found that the
children had been in the agency’s temporary custody for more
than 12 months of a consecutive 22-month period, and thus, that
R.C. 2151.414(B)(1)(d) applies. The court additionally found,
pursuant to R.C. 2151.414(B)(1)(a), that the children cannot be
placed with either parent within a reasonable time or should not
be placed with either parent. Appellant does not challenge the trial court’s R.C.
2151.414(B)(1)(d) finding. Instead, appellant disputes the
t rial court’s alternate R.C. 2151.414(B)(1)(a) finding and its
17
corresponding findings under R.C. 2151.414(E). [2] As we have noted in previous cases, R.C.
2151.414(B)(1)(a), by its terms, is inapplicable when a child
has been in a c hildren services agency’s t emporary custody for
twelve or more months of a consecutive twenty-two month period.
18
In re S.S. , 4th Dist. Jackson No. 16CA7, 2017-Ohio-2938, ¶ 126,
citing In re Damron , 10th Dist. Franklin No. 03AP – 419, 2003 –
Ohio – 5810, ¶ 9 (“Th e plain language of R.C. 2151.414(B)(1)(a)
reveals that this subsection is only triggered when none of the
remaining * * * subsections are triggered.”). Consequently,
when a child has been in a children services agency’s temporary
custody for 12 or more months of a consecutive 22-month period,
a trial court need not find that the child cannot or should not
be placed with either parent within a reasonable time. E.g., In
re C.W. , 104 Ohio St.3d 163, 2004 – Ohio – 6411, 818 N.E.2d 1176, ¶
21; In re A.M.1 , 4th Dist. Athens Nos. 10CA21 through 10CA31,
2010 – Ohio – 5837, ¶ 31; In re T.F. , 4th Dist. Pickaway No. 07CA34, – Ohio – 1238, ¶ 23; In re Williams , 10th Dist. Franklin No.
02AP – 924, 2002 – Ohio – 7205. We further observe that the statute requires the trial
court to find the existence of only one of the R.C.
2151.414(B)(1) factors. See In re W.W. , 1st Dist. Nos. C – 110363
and C – 110402, 2011 – Ohio – 4912, ¶ 54 (if one of R.C.
2151.414(B)(1) factors exists, court need not find that other
(B)(1) factors apply). If the court finds that R.C.
2151.414(B)(1)(d) applies, then it need not also find that the
child cannot or should not be placed with either parent within a
reasonable time. Thus, when considering a R.C.
2151.414(B)(1)(d) permanent custody motion, the only other
consideration becomes the c hild’s best interest. In re N.S.N. ,
4th Dist. Washington Nos. 15CA6, 15CA7, 15CA8, 15CA9, 2015 – Ohio –
2486, ¶ 52; In re Berkley , 4th Dist. Pickaway Nos. 04CA12,
04CA13, 04CA14, 2004 – Ohio – 4797, ¶ 61.
{¶37} In the case sub judice, as we stated above, the trial court found that R.C. 2151.414(B)(1)(d) applies. This one
factor alone suffices for purposes of R.C. 2151.414(B)(1). The
court, therefore, did not also need to find that R.C.
2151.414(B)(1)(a) applies. Consequently, even if for purposes of argument, we
agr eed with appellant that the trial court’s R.C.
2151.414(B)(1)(a) and corresponding R.C. 2151.414(E) findings
are against the manifest weight of the evidence, appellant has
not suggested that the court’s R.C. 2151.414(B)(1)(d) finding is
against the manifest weight of the evidence. Thus, because the
court’s R.C. 2151.414(B)(1)(d) finding alone suffices, we need
not consider whether the trial court’s superfluous R.C.
2151.414(B)(1)(a) and (E) findings are against the manifest
weight of the evidence. We further note that, because appellant did not argue
20
on appeal that the trial court’s best -interest findings are
against the manifest weight of the evidence, we do not address
the court’s best -interest findings. Instead, we simply note
that the record contains ample clear and convincing evidence to
support the court’s determination that placing the children in
appellee’s permanent custody is in their best interests.
{¶40} Accordingly, based upon the foregoing reasons, we overrule appella nt’s f irst assignment of error.
II In her second assignment of error, appellant asserts
that the trial court erred by relying upon the GAL’s report.
Appellant argues that the GAL’s report does not comply with
Sup.R. 48.06 and is “sorely lacking in details.” Wi thin her
second assignment of error, appellant also contends that her
trial counsel performed ineffectively by failing to call the GAL
as a witness.
A We initially observe that, during the trial court
proceedings, appellant did not assert that the G AL’s r eport
failed to comply with Sup.R. 48.06. [3] It is well-settled that a
(1) A guardian ad litem shall prepare a written final report, including recommendations to the court, within the times set forth in this division. The report shall affirmatively state that responsibilities have been met and shall detail the activities performed, hearings attended, persons interviewed, documents reviewed, experts consulted, and all other relevant information considered by the guardian ad litem in reaching the recommendations and in accomplishing the duties required by statute, by court rule, and in the order of appointment from the court.
(2) All reports shall include the following w arning: “The guardian ad litem report shall be provided to the court, unrepresented parties, and legal counsel. Any other disclosure of the report must be approved in advance by the court. Unauthorized disclosure or distribution of the report may be subject to court action, including the penalties for contempt, which include fine and/or incarceration.” (3) Oral and written reports shall address relevant issues, but shall not be considered determinative. (4) A guardian ad litem shall be available to testify at any relevant hearing and may orally supplement the report at the conclusion of the hearing. (5) A guardian ad litem may provide an interim written or oral report at any time.
(B) Guardian Ad Litem Reports in Abuse, Neglect, Dependency, Unruly, and Delinquency Reports.
(1) A guardian ad litem in abuse, neglect, dependency, unruly, and delinquency cases and actions to terminate parental rights shall provide a written report to the court, unrepresented parties, and legal counsel not less than seven days prior to any initial dispositional hearing, permanent custody hearing, and any hearing upon a motion requesting a change in disposition. The court may alter the seven-day period as may be necessary for the administration of justice. (2) A court shall review all guardian ad litem reports, written or oral, to ensure that the guardian ad litem has performed those responsibilities required by R.C. 2151.281.
party may not raise new issues or legal theories for the first
time on appeal. Stores Realty Co. v. Cleveland , 41 Ohio St.2d
41, 43, 322 N.E.2d 629 (1975). Thus, a litigant who fails to
raise an argument before the trial court forfeits the right to
raise that issue on appeal. Independence v. Office of the
Cuyahoga Cty. Executive , 142 Ohio St.3d 125, 2014-Ohio-4650, 28
N.E.3d 1182, ¶ 30 (“an appellant generally may not raise an
argument on appeal that the appellant has not raised in the
lower courts”); State v. Quarterman , 140 Ohio St.3d 464, 2014-
Ohio-4034, 19 N.E.3d 900, ¶ 21 (defendant forfeited his
constitutional challenge by failing to raise it during trial
court proceedings); Gibson v. Meadow Gold Dairy , 88 Ohio St.3d
201, 204, 724 N.E.2d 787 (2000) (party waived arguments for
purposes of appeal when party failed to raise those arguments
during trial court proceedings); State ex rel. Gutierrez v.
Trumbull Cty. Bd. of Elections , 65 Ohio St.3d 175, 177, 602
N.E.2d 622 (1992) (appellant cannot “present * * * new arguments
for the first time on appeal”); accord State ex rel. Jeffers v.
Athens Cty. Commrs. , 4th Dist. Athens No. 15CA27, 2016-Ohio-
8119, 2016 WL 7230928, fn.3 (“[i]t is well-settled that failure
to raise an argument in the trial court results in waiver of the
argument for purposes of appeal”); State v. Anderson , 4th Dist.
Washington No. 15CA28, 2016-Ohio- 2704, ¶ 24 (“arguments not
presented in the trial court are deemed to be waived and may not
b e raised for the first time on appeal”). Appellate courts may, however, in certain
circumstances, consider a forfeited argument using a plain-error
analysis. See Risner v. Ohio Dept. of Nat. Resources, Ohio Div.
of Wildlife , 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718,
¶ 27 (reviewing court has discretion to consider forfeited
constitutional challenges); see also Hill v. Urbana , 79 Ohio
St.3d 130, 133 – 34, 679 N.E.2d 1109 (1997), citing In re M.D. , 38
Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus (stating that
“[e]ven where [forfeiture] is clear, [appellate] court[s]
reserve[] the right to consider constitutional challenges to the
application of statutes in specific cases of plain error or
where the rights and interests involved ma y warrant it’”); State
v. Pyles , 7th Dist. Mahoning No. 13-MA-22, 2015-Ohio-5594, ¶ 82,
quoting State v. Jones , 7th Dist. No. 06-MA-109, 2008-Ohio-1541,
¶ 65 (the plain error doctrine “‘is a wholly discretionary
doctrine’”); DeVan v. Cuyahoga Cty. Bd. of Revision , 8th Dist.
Cuyahoga, 2015-Ohio-4279, 45 N.E.3d 661, ¶ 9 (appellate court
retains discretion to consider forfeited argument); see Rosales-
Mireles v. United States , ___ U.S. ___, 138 S.Ct. 1897, 1904,
201 L.Ed.2d 376 (2018) (court has discretion whether to
recognize plain error). For the plain error doctrine to apply, the party
claiming error must establish (1) that “‘an error, i.e., a
deviation from a legal rule” occurred, (2) that the error was
“‘an “obvious” defect in the trial proceedings,’” and (3) that
this obvious error affected substantial rights, i.e., the error
“‘must have affected the outcome of the trial.’” State v.
Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22,
quoting State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240
(2002); Schade v. Carnegie Body Co. , 70 Ohio St.2d 207, 209, 436
N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious and
prejudicial although neither objected to nor affirmatively
waived which, if permitted, would have a material adverse affect
on the character and public confidence in judicial
proceedings.”). For an error to be “plain” or “obvious,” the
error must be plain “under current law” “at the time of
appellate consideration.” Johnson v. United States , 520 U.S.
461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord
Barnes , 94 Ohio St.3d at 27; State v. G.C. , 10th Dist. Franklin
No. 15AP-536, 2016-Ohio-717, ¶ 14. The plain error doctrine is not, however, readily
invoked in civil cases. Instead, an appellate court “must
proceed with the utmost caution” when applying the plain error
doctrine in civil cases. Goldfuss v. Davidson , 79 Ohio St.3d
116, 121, 679 N.E.2d 1099 (1997). The Ohio Supreme Court has
set a “very high standard” for invoking the plain error doctrine
in a civil case. Perez v. Falls Financial, Inc. , 87 Ohio St.3d
371, 721 N.E.2d 47 (2000). Thus, “the doctrine is sharply
limited to the extremely rare case involving exceptional
circumstances where error, to which no objection was made at the
trial court, seriously affects the basic fairness, integrity, or
public reputation of the judicial process, thereby challenging
the legitimacy of the underlying judicial process itself.”
Goldfuss , 79 Ohio St.3d at 122; accord Jones v. Cleveland Clinic
Found. , 161 Ohio St.3d 337, 2020-Ohio-3780, 163 N.E.3d 501, ¶
24; Gable v. Gates Mills , 103 Ohio St.3d 449, 2004-Ohio-5719,
816 N.E.2d 1049, ¶ 43. Moreover, appellate courts “‘should be
hesitant to decide [forfeited errors] for the reason that
justice is far better served when it has the benefit of
briefing, arguing, and lower court consideration before making a
final determination.’” Risner at ¶ 28, quoting Sizemore v.
Smith , 6 Ohio St.3d 330, 332, 453 N.E.2d 632 (1983), fn. 2;
accord Mark v. Mellott Mfg. Co., Inc. , 106 Ohio App.3d 571, 589,
666 N.E.2d 63 1 (4th Dist.1995) (“Litigants must not be permitted
to hold their arguments in reserve for appeal, thus evading the
trial court process.”). Additionally, “[t]he plain error
doctrine should never be applied to reverse a civil judgment * *
* to allow litigation of issues which could easily have been
raised and determined in the initial trial.” Goldfuss , 79 Ohio
St.3d at 122. In the case sub judice, appellant did not argue that
the trial court obviously erred by admitting the GAL’s repo rt or
by considering the GAL’s recommendation. We further point out
that this court, along with other Ohio appellate courts, has
refused to recognize purported Sup.R. 48 violations as
reversible error. E.g., In re K.L. , 11th Dist. Portage No.
2021-P-0022, 2021-Ohio-3080, ¶ 6 3 (“the failure to comply with
the Rules of Superintendence, even if a technical error, is not
reversible”); In re E.W. , 4th Dist. Washington No. 10CA18, 2011-
Ohio-2123, ¶ 12 (superintendence rules are internal housekeeping
rules that do not create any substantive rights); Pettit v.
Pettit , 12th Dist. Fayette No. CA2011-08-018, 2012-Ohio-1801, ¶
12 (superintendence rules are “administrative directives only,
and are not intended to function as rules of practice and
procedure”); accord In re R.P. , 2021-Ohio-4065, 181 N.E.3d 594,
¶ 31 (10th Dist.); State v. Clark , 9th Dist. Medina No.
20CA0020-M, 2021-Ohio-3397, ¶ 39; State v. Klayman , 4th Dist.
Hocking No. 17CA13, 2018-Ohio-3580, ¶ 17; see State ex rel.
Parker Bey v. Byrd , 160 Ohio St.3d 141, 2020-Ohio-2766, 154
N.E.3d 57, ¶ 41, quoting Singer , 50 Ohio St.2d at 110, 362
N.E.2d 1216 (“‘[t]he Rules of Superintendence are not designed
to alter basic substantive rights’”) (Kennedy, J., concurring in
part and dissenting in part). Moreover, appellant has not shown that the result of
the trial court proceedings would have been different if the
GAL’s report had strictly complied with the superintendence
rule. Appellant did not argue, for example, that the trial
court would have rejected appellee’s permanent custody motion
and would have granted appellant’s request to place the children
in the foster mother’s legal custody, if the GAL’s report had
strictly complied with the superintendence rule. Rather,
appellant vaguely asserts that the purported inadequacies in the
G AL’s report violated her due process rights. Consequently, under the circumstances in the case sub
judice, we do not believe that appellant can establish that the
trial court plainly erred by considering the GAL’s report.
B {¶49} Appellant next argues that trial counsel’s failure to call the GAL to testify at the permanent custody hearing
constituted ineffective assistance of counsel. The right to counsel, guaranteed in permanent custody
proceedings by R.C. 2151.352 and by Juv.R. 4, includes the right
to the effective assistance of counsel. In re Wingo , 143 Ohio
App.3d 652, 666, 758 N.E.2d 780 (4th Dist.2001), citing In re
Heston , 129 Ohio App.3d 825, 827, 719 N.E.2d 93 (1st Dist.1998);
e.g., In re J.P.B. , 4th Dist. Washington No. 12CA34, 2013 – Ohio –
787, ¶ 23; In re K.M.D. , 4th Dist. Ross No. 11CA3289, 2012 – Ohio –
755, ¶ 60; In re A.C.H. , 4th Dist. Gallia No. 11CA2, 2011 – Ohio –
5595, ¶ 50. “‘Where the proceeding contemplates the loss of
parents’ ‘essential’ and ‘basic’ civil rights to raise their
children, * * * the test for ineffective assistance of counsel
used in criminal cases is equally applicable to actions seeking
to force the permanent, involuntary termination of parental
custody.’” Wingo , 143 Ohio App.3d at 666, quoting Heston . To establish constitutionally ineffective assistance
of counsel, a defendant must show (1) that his counsel’s
performance was deficient and (2) that the deficient performance
prejudiced the defense and deprived the defendant of a fair
trial. E.g., Strickland v. Washington , 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d674 (1984); State v. Obermiller , 147 Ohio
St.3d 175, 2016 – Ohio – 1594, 63 N.E.3d 93, ¶ 83; State v. Powell ,
132 Ohio St.3d 233, 2012 – Ohio – 2577, 971 N.E.2d 865, ¶ 85.
“Failure to establish either elemen t is fatal to th e claim.”
State v. Jones , 4th Dist. Scioto No. 06CA3116, 2008 – Ohio – 968, ¶
14. Therefore, if one element is dispositive, a court need not
analyze both. State v. Madrigal , 87 Ohio St.3d 378, 389, 721
N.E.2d 52 (2000) (stating that a defenda nt’s f ailure to satisfy
one of the elements “negates a court’s need to consider the
other”). The deficient performance part of an ineffectiveness
claim “is necessarily linked to the practice and expectations of
the legal community: ‘The proper measure of a ttorney performance
remains simply reasonableness under prevailing professional
norms.’” Padilla v. Kentucky , 559 U.S. 356, 366, 130 S.Ct.
1473, 176 L.Ed.2d 284 (2010), quoting Strickland , 466 U.S. at
688; accord Hinton , 134 S.Ct. at 1088. “Prevailing pr ofessional
norms dictate that with regard to decisions pertaining to legal
proceedings, ‘a lawyer must have “full authority to manage the
conduct of the trial.”’” Obermiller at ¶ 85, quoting State v.
Pasqualone , 121 Ohio St.3d 186, 2009 – Ohio – 315, 903 N.E.2d 270, ¶
24, quoting Taylor v. Illinois , 484 U.S. 400, 418, 108 S.Ct.
646, 98 L.Ed.2d 798 (1988). Furthermore, “‘[i]n any case
presenting an ineffectiveness claim, the performance inquiry
must be whether counsel’s assistance was reasonable considering
all the circumsta nces.’” Hinton , 134 S.Ct. at 1088, quoting
Strickland , 466 U.S. at 688. Accordingly, “[i]n order to show
deficient performance, the defendant must prove that counsel’s
performance fell below an objective level of reasonable
representation. ” State v. Conway , 109 Ohio St.3d 412, 2006 – Ohio –
2815, 848 N.E.2d 810, ¶ 95 (citations omitted); accord Hinton ,
134 S.Ct. at 1088, citing Padilla , 559 U.S. at 366; State v.
Wesson , 137 Ohio St.3d 309, 2013 – Ohio – 4575, 999 N.E.2d 557, ¶
81. Moreover, when considering whet her trial counsel’s
representation amounts to deficient performance, “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”
Strickland , 466 U.S. at 689. Thus, “th e defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id.
Additionally, “[a] properly licensed attorney is presumed to
execute his duties in an ethical and competent manne r.” State
v. Taylor , 4th Dist. Washington No. 07CA11, 2008 – Ohio – 482, ¶ 10,
citing State v. Smith , 17 Ohio St.3d 98, 100, 477 N.E.2d 1128
(1985). Therefore, a defendant bears the burden to show
ineffectiveness by demonstrating that counsel’s errors were “ so
ser ious” that counsel failed to function “as the ‘counsel’
guaranteed * * * by the Sixth Amendment.” Strickland , 466 U.S.
at 687; e.g., Obermiller at ¶ 84; State v. Gondor , 112 Ohio
St.3d 377, 2006 – Ohio – 6679, 860 N.E.2d 77, ¶ 62; State v.
Hamblin , 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988). To establish prejudice, a defendant must demonstrate
that a reasonable probability exists that “‘but for counsel’s
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine the outcome.’” Hinton , 134 S.Ct. at 1089, quoting
Strickland , 466 U.S. at 694; e.g., State v. Short , 129 Ohio
St.3d 360, 2011 – Ohio – 3641, 952 N.E.2d 1121, ¶ 113; State v.
Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph
three of the syllabus. Furthermore, courts may not simply
assume the existence of prejudice, but must require the
defendant to affirmatively establish prejudice. State v. Clark ,
4th Dist. Pike No. 02CA684, 2003 – Ohio – 1707, ¶ 22; State v.
Tucker , 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002). As we have
repeatedly recognized, speculation is insufficient to
demonstrate the prejudice component of an ineffective assistance
of counsel claim. E.g., State v. Jenkins , 4th Dist. Ross No.
13CA3413, 2014 – Ohio – 3123, ¶ 22; State v. Simmons , 4th Dist.
Highland No. 13CA4, 2013 – Ohio – 2890, ¶ 25; State v. Halley , 4th
Dist. Gallia No. 10CA13, 2012 – Ohio – 1625, ¶ 25; State v. Leonard ,
4th Dist. Athens No. 08CA24, 2009 – Ohio – 6191, ¶ 68; accord State
v. Powell , 132 Ohio St.3d 233, 2012 – Ohio – 2577, 971 N.E.2d 865, ¶
86 (an argument that is purely speculative cannot serve as the
basis for an ineffectiveness claim). In the case at bar, we do not believe that appellant
has demonstrated that trial counsel performed deficiently by
failing to call the GAL to testify. Instead, counsel may have
made a strategic decision that calling the GAL to testify would
have been detrimental to appellant’s case by amplifying the
GAL’s steadfast belief that the children’s best interest demand
that the court pl ace them in appellee’s permanent custody. In
re K.L. , 11th Dist. Portage No. 2021-P-0022, 2021-Ohio-3080, ¶
64 (counsel may have decided that cross-examining GAL would
“have only reinforced the evidence” and would not have helped
the mother’s position).
Furthermore, even if appellant could establish that counsel’s decision not to call the GAL to testify was deficient,
appellant has not demonstrated that the result of the proceeding
would have been different if counsel had called the GAL to
testify. Appel lant has not asserted that the GAL’s testimony
would have differed from her recommendation or that it would
have exposed severe inadequacies in her investigation into the
children’s situation such that the trial court would have
questioned the GAL’s recommendation.
We also note that, at the start of the permanent custody hearing, father’s counsel asked the court to order the GAL to
submit an updated report. When the court asked the GAL whether
she believed that an updated report was necessary, she indicated
that nothing had changed since her previous report and that it
remained accurate. Consequently, we do not believe that
appellant has established that trial counsel failed to provide
effective assistance of counsel.
Accordingly, based upon the foregoing reasons, we overrule appellant’s second assignment of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court, Juvenile
Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion For the Court BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
[1] The complaint states that R.P. went to the hospital in October, not September, 2018. The transcript of Smith’s testimony, however, indicates that R.P. went to the hospital in September 2018. The record does not contain any explanation for the apparent discrepancy.
[2] R.C. 2151.414(E) lists the factors that a trial court should consider when determining whether a child cannot be placed with a parent within a reasonable time or should not be placed with either parent. In the case sub judice, the trial court found that the following R.C. 2151.414(E) factors applied: (1) Following the placement of the child outside the child’s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home . In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. * * * * (4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child; * * * * (6) The parent has been convicted of or pleaded guilty to an offense under division (A) or (C) of section 2919.22 * * * and the child or a sibling of the child was a victim of the offense * * *.
[3] Sup.R. 48.06 contains the general requirements for a guardian ad litem’s report. The rule states as follows: