In re A.P.

2022 Ohio 1577

Opinion

[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.

{¶1} 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 children’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:

“THE 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 custody.

{¶3} 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.

{¶4} 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 appellant’s care 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. 3 GALLIA, 21CA14 AND 21CA15

{¶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.

{¶6} 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.

{¶7} On January 2, 2020, appellant filed a motion to stay

appellee’s permanent 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. 4 GALLIA, 21CA14 AND 21CA15

{¶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 custody.

{¶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.

{¶10} 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.

{¶11} 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 GALLIA, 21CA14 AND 21CA15

“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 left 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 plan aimed at

reunification.

{¶13} The family’s current caseworker, 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.

{¶14} Caseworker McCoy explained that the children have been

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. 6 GALLIA, 21CA14 AND 21CA15

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.

{¶15} The trial court asked Caseworker McCoy whether she

discussed 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 mother “is not willing to do the legal

custody,” but rather would like to adopt the children.

{¶16} 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 injuries

were discovered, she had been living with a boyfriend and she

believes her boyfriend caused the injuries. 7 GALLIA, 21CA14 AND 21CA15

{¶17} The foster mother testified that the children have

been in her home since their removal. She stated that R.P. “is

non-verbal,” “cannot communicate,” 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 girls that’s [sic] been abused

and keep them three years and not learn to love them.”

{¶18} 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 for 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)

the children are bonded to their foster mother and that “[t]here

is a strong possibility of adoption by the foster mother,” and 8 GALLIA, 21CA14 AND 21CA15

(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

{¶20} In her first assignment of error, appellant asserts

that the trial court’s decision to grant appellee 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

{¶21} 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. 9 GALLIA, 21CA14 AND 21CA15

“Weight of the evidence concerns ‘the inclination 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).

{¶22} When an appellate court reviews whether a trial

court’s permanent custody decision is against the manifest

weight 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 10 GALLIA, 21CA14 AND 21CA15

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.

{¶23} Moreover, deferring to the trial court on matters of

credibility 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.

{¶24} The question that an appellate court must resolve when

reviewing a permanent custody decision under the manifest weight

of the evidence standard is “whether the juvenile court’s

findings * * * were supported 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 11 GALLIA, 21CA14 AND 21CA15

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”). 12 GALLIA, 21CA14 AND 21CA15

{¶25} 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

the evidence ‘if the record contains competent, credible

evidence by which the court could have formed a firm belief or

conviction that the essential statutory elements * * * have been

established.’”).

{¶26} 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 GALLIA, 21CA14 AND 21CA15

decision against the manifest weight of the evidence only in the

“‘exceptional case 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

{¶27} We recognize that “parents’ interest in the care,

custody, and control of their 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.

1388, 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 14 GALLIA, 21CA14 AND 21CA15

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.

{¶28} 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.

Rather, “‘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.

{¶29} 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 children, ‘whenever possible, in a family 15 GALLIA, 21CA14 AND 21CA15

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

{¶30} 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).

{¶31} 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 16 GALLIA, 21CA14 AND 21CA15

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.

{¶33} 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.

{¶34} Appellant does not challenge the trial court’s R.C.

2151.414(B)(1)(d) finding. Instead, appellant disputes the

trial court’s alternate R.C. 2151.414(B)(1)(a) finding and its 17 GALLIA, 21CA14 AND 21CA15

corresponding findings under R.C. 2151.414(E).2

{¶35} 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 children services agency’s temporary custody for

twelve or more months of a consecutive twenty-two month period.

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 * * *. 18 GALLIA, 21CA14 AND 21CA15

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 (“The 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,

2008–Ohio–1238, ¶ 23; In re Williams, 10th Dist. Franklin No.

02AP–924, 2002–Ohio–7205.

{¶36} 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 19 GALLIA, 21CA14 AND 21CA15

reasonable time. Thus, when considering a R.C.

2151.414(B)(1)(d) permanent custody motion, the only other

consideration becomes the child’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.

{¶38} Consequently, even if for purposes of argument, we

agreed 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.

{¶39} We further note that, because appellant did not argue 20 GALLIA, 21CA14 AND 21CA15

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 appellant’s first assignment of error.

II

{¶41} 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.” Within her

second assignment of error, appellant also contends that her

trial counsel performed ineffectively by failing to call the GAL

as a witness.

{¶42} We initially observe that, during the trial court

proceedings, appellant did not assert that the GAL’s report

failed to comply with Sup.R. 48.06.3 It is well-settled that a

3 Sup.R. 48.06 contains the general requirements for a guardian ad litem’s report. The rule states as follows: 21 GALLIA, 21CA14 AND 21CA15

(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 warning: “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. 22 GALLIA, 21CA14 AND 21CA15

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. 23 GALLIA, 21CA14 AND 21CA15

Washington No. 15CA28, 2016-Ohio-2704, ¶ 24 (“arguments not

presented in the trial court are deemed to be waived and may not

be raised for the first time on appeal”).

{¶43} 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 may 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, 24 GALLIA, 21CA14 AND 21CA15

201 L.Ed.2d 376 (2018) (court has discretion whether to

recognize plain error).

{¶44} 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.

{¶45} The plain error doctrine is not, however, readily 25 GALLIA, 21CA14 AND 21CA15

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, 26 GALLIA, 21CA14 AND 21CA15

666 N.E.2d 631 (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.

{¶46} In the case sub judice, appellant did not argue that

the trial court obviously erred by admitting the GAL’s report 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, ¶ 63 (“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, 27 GALLIA, 21CA14 AND 21CA15

¶ 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).

{¶47} 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

GAL’s report violated her due process rights.

{¶48} 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 28 GALLIA, 21CA14 AND 21CA15

{¶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.

{¶50} 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.

{¶51} 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 29 GALLIA, 21CA14 AND 21CA15

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 element is fatal to the 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 defendant’s failure to satisfy

one of the elements “negates a court’s need to consider the

other”).

{¶52} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of

the legal community: ‘The proper measure of attorney 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 professional

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, ¶ 30 GALLIA, 21CA14 AND 21CA15

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 circumstances.’” 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.

{¶53} Moreover, when considering whether 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, “the 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 manner.” State 31 GALLIA, 21CA14 AND 21CA15

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

serious” 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).

{¶54} 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 32 GALLIA, 21CA14 AND 21CA15

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).

{¶55} 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 place 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). 33 GALLIA, 21CA14 AND 21CA15

{¶56} 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. Appellant 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. GALLIA, 21CA14 AND 21CA15

34 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.