[Cite as In re A.W., 2024-Ohio-2243.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
In the Matter of: : : Case Nos. 23CA18 A.W. and B.W. : 23CA19 Adjudicated Dependent Children. : : DECISION AND JUDGMENT : ENTRY : : RELEASED: 06/04/2024 _____________________________________________________________________ APPEARANCES:
L. Scott Petroff, Athens, Ohio, for appellant.
Alisa Turner, Hocking County Assistant Prosecutor, Logan, Ohio, for appellee. _____________________________________________________________________
Wilkin, J.
{¶1} Appellant, Tasha Stevens, appeals a decision of the Hocking County Court
of Common Pleas, Juvenile Division, that granted South-Central Ohio Job and Family
Services, Children Services, (“the agency”) permanent custody of her two children,
A.W. and B.W. (ages four and five, respectively). Appellant raises two assignments of
error. She first argues that the trial court’s judgment granting the agency permanent
custody of the children is against the manifest weight of the evidence. Next, appellant
contends that the trial court plainly erred by failing to discharge the children’s guardian
ad litem (GAL) and to appoint a new GAL due to the GAL’s alleged failure to comply
with some of the duties listed in Sup.R. 48.03(D). After our review of the record and the
applicable law, we do not find any merit to appellant’s assignments of error. Therefore,
we affirm the trial court’s judgment. Hocking App. Nos. 23CA18 and 23CA19 2
FACTS AND PROCEDURAL BACKGROUND
{¶2} On July 28, 2020, the agency filed complaints that alleged A.W. (then, one
year of age) is neglected and dependent and B.W. (then, two years of age) is a
dependent child. The agency later filed amended complaints that alleged both children
are dependent children and that revised the factual allegations of the original complaint.
The amended complaints alleged the following facts. On July 25, 2020, law
enforcement officers responded to the family’s home after receiving a report regarding a
medical emergency involving an infant. When one of the officers held the baby, the
officer noted that she “was pale, not breathing, and seemed lifeless.” A person at the
scene reported that the baby “drowned in the tub.” The officer resuscitated the baby
and transported her to the hospital. Upon examination, medical personnel observed
four “bruises the size of a dime across her forehead.” Appellant reported that as she
was washing the baby’s hair, water entered her mouth. The baby “started to have
breathing issues and then she stopped breathing.”
{¶3} The baby’s father stated that he was unaware that she was in the bathtub.
He stated that appellant had been “giving the baby a bath and walked away” to enter
the bedroom. The father “then heard screaming and they ran into the bathroom.” The
“tub was overflowing and water was going everywhere.”
{¶4} The baby had to be life-flighted to Nationwide Children’s Hospital in
Columbus because she “was showing signs of possible brain damage and she was
throwing up copious amounts of water.” The hospital reported that the incident “was a Hocking App. Nos. 23CA18 and 23CA19 3
near drowning due to neglect and lack of supervision.” Fortunately, the baby1 “has
improved” and “appears to be doing well.”
{¶5} Appellant has a history with the agency and “struggles to care for 7 children
on her own.” The agency requested the court to grant it an order of protective
supervision or to place the children in its temporary custody.
{¶6} The trial court subsequently adjudicated the children dependent and placed
them in the agency’s temporary custody.
{¶7} In January 2022, appellant was sentenced to serve a prison term for child
endangerment.
{¶8} On July 5, 2023, the agency filed separate motions that requested
permanent custody of the children. The agency alleged that the children have been in
its temporary custody for 12 or more months of a consecutive 22-month period and that
placing the children in its permanent custody is in their best interest.
{¶9} On October 3, 2023, the trial court held a hearing to consider the agency’s
permanent custody motions. Caseworker Jamie Taylor testified as follows. She was
the family’s caseworker from January 2021, through June 2022. The agency initially
became involved due to “the near fatality.” The family’s case “was a difficult case to
work,” because “[t]he parents were cooperative then not cooperative. Cooperative and
not cooperative. So there was a lot of that kind of thing throughout the case.”
1 The closing paragraph of the factual allegations indicate that A.W. is the child who nearly drowned. However, some testimony was presented at the permanent custody hearing that B.W. is the child who nearly drowned. The trial court found that appellant had been incarcerated for a child endangering offense involving A.W. Given the lack of clarity, this part of the opinion recounting the factual allegations of the complaint refrains from identifying the child involved in the incident. Hocking App. Nos. 23CA18 and 23CA19 4
{¶10} When Taylor first became involved with the family, the parents lived
together and had appropriate housing. Taylor, however, had concerns about the
parents’ relationship. “It was on again, off again throughout the life of the case.”
Additionally, the near fatality occurred because the parents “were fighting at the time
that * * * the bathtub was running and [the child] was in the bathtub.” Moreover, even
though the parents completed parenting classes, “there was little behavior change” and
“no accountability for what happened.”
{¶11} Taylor further indicated that the parents did not prioritize their children. As
one example, the father did not visit the children while appellant was incarcerated
“because it wasn’t fair that [appellant] wasn’t also receiving visits.” Taylor also reported
an incident between the parents that occurred as appellant prepared to give birth to her
eighth child. The night before she was to be induced, the father left and stated “that he
was not the father.” Thus, appellant “was at the hospital by herself being induced and
laboring.” “[T]he whole time at the hospital while she was having the baby it was about
[the father] and * * * their relationship.”
{¶12} On cross-examination, Taylor did not agree that the parents substantially
complied with their case plan. She explained that “even though they had parenting
classes and they had housing, it was not stable and there was no behavior change.”
She “still did not see that their priority was the children over relationship or other things.”
The parents did not have stable housing, and “it was just continual chaos.”
{¶13} Marni Tucker testified as follows. She was the family’s caseworker from
July 2020, through January 2021, and then again from June 2022, through July 2023.
Although the parents were “checking off boxes,” they did not change their behaviors. Hocking App. Nos. 23CA18 and 23CA19 5
The father “was very argumentative.” Tucker talked to appellant and told her that she
was “not going to talk to [appellant] as long as [the father is] yelling and screaming at
[Tucker].”
{¶14} Appellant has eight biological children, and she does not have custody of
any of them. Several are placed in the legal custody of others. One is placed in a
group home.
{¶15} The father did not visit the children. He did not think that visiting them
would be fair when appellant remained incarcerated and unable to visit them—an
indication to Tucker that he does not prioritize the children. The parents did call the
children at the foster home. However, neither parent has visited the children in about
two years.
{¶16} Elizabeth Gura, the family’s current caseworker, testified that appellant had
been released from prison a couple of weeks earlier. She explained that appellant had
been sent to prison for child endangerment as a result of the near fatality.
{¶17} Cameron Weaver, the children’s GAL, testified as follows. He has been
the GAL for over three years. He did not believe that the children were mature enough
“to give any kind of reasonable or logical conclusion as to what would be in their best
interest.”
{¶18} The GAL was “involved in the permanency hearings for all of the other
children of the parents.” Neither parent attended those hearings. Appellant had been
incarcerated at the time. The GAL did not have any communication with appellant while
she was incarcerated. Hocking App. Nos. 23CA18 and 23CA19 6
{¶19} Once appellant entered prison, the father’s contact with the GAL
“completely ceased.” Before appellant entered prison, the father seemed to make “a
genuine effort to reunify,” but once appellant went to prison, the father “just kind of went
MIA,” and the GAL “never heard anything else from him for a very long time.” The GAL
tried calling several phone numbers but was unable to reach the father until late August
2023. At that point, he scheduled a home visit with the father. The father was living in
an apartment with a friend, and “the bedroom was the living room.” This residence had
“the bare necessities,” but it did not have “any kind of clothing or bedding that would’ve
been suitable for a child that’s four or five years old.” Moreover, it did not appear to be
large enough to accommodate two small children.
{¶20} The GAL stated that he saw “a genuine desire from both parties to have
some kind of relationship with the [children].” More recently, the father seemed “sincere
in his conviction for wanting reunification.” The GAL nevertheless believes that placing
the children in the agency’s permanent custody is in their best interests. The children
have been with the same foster parent since their initial removal, and they seem “safe,
happy, [and] bonded with [the] foster [parent].”
{¶21} The father testified as follows. The agency did not give him “the requisite
assistance to help” him “reunify with” the children. The caseworkers were “[a]lways
rude, disruptive towards [him] and they wondered why [he] would come back at them
rude.” He and appellant “took matters into [their] own hands” by “getting into counseling
and parenting classes way before the case plan was even written out.” He has “[b]een
through counseling five different times” and completed it, along with anger
management. He has learned coping mechanisms. Both he and appellant have “the Hocking App. Nos. 23CA18 and 23CA19 7
skills” and “the wherewithal to adequately parent” the children. The parents are living in
a different residence than the one that the GAL visited, and they have the children’s
furnishings located in a storage unit.
{¶22} On cross-examination, the father explained that he did not visit the children
while appellant was incarcerated because he did not want the children asking him
“questions where their mom was at.” He did not believe that it was fair to appellant to
visit the children without her.
{¶23} Appellant testified that she went to prison in January 2022, and was
released on October 11, 2023. She participated in various programs while in prison.
She and the father currently live with a third individual, which has been “very stressful”
because this person has been “in [the parents’] relationship trying to cause things.”
Appellant believes that she has the resources and ability to provide proper care for the
children.
{¶24} On October 31, 2023, the trial court granted the agency permanent
custody of the children. The court found that the children have been in the agency’s
temporary custody for 12 or more months of a consecutive 22-month period and that
placing them in the agency’s permanent custody is in their best interest. With respect to
the children’s best interests, the court found as follows: (1) the children’s
interrelationships with appellant and the father are “negligible”; (2) between January
2022, and October 11, 2023, appellant had been incarcerated for a child endangering
offense involving A.W.; (3) neither parent has visited the children in person “since
before January 2022”; (4) the children are too young to express their wishes; (5) the
children have been in the agency’s temporary custody since the summer of 2020; (6) Hocking App. Nos. 23CA18 and 23CA19 8
the children need a legally secure permanent placement and cannot achieve this type of
placement without granting the agency permanent custody of the children; and (7) the
children lack “a parental bond” with appellant and the father. The court thus granted the
agency permanent custody of the children. This appeal followed.
ASSIGNMENTS OF ERROR
I. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT TERMINATED THE PARENTAL RIGHTS OF APPELLANT BECAUSE THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT PLAINLY ERRED WHEN IT FAILED TO COMPLY WITH R.C. 2151.281(D) AND (I) GIVEN THE NONCOMPLIANCE WITH THE DUTIES OF THE GUARDIAN AD LITEM.
ASSIGNMENT OF ERROR I
{¶25} In her first assignment of error, appellant argues that the trial court’s
decision to award the agency permanent custody of the children is against the manifest
weight of the evidence. More particularly, appellant asserts that the trial court
improperly applied the best interest factors by failing to consider whether any R.C.
2151.414(E)(7)-(11) factors applied. She further claims that the evidence fails to
support the court’s finding that “permanent removal from [the] parents was in the best
interest of the child[ren].”
STANDARD OF REVIEW
{¶26} 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; accord In re Z.C., 173 Ohio St.3d Hocking App. Nos. 23CA18 and 23CA19 9
359, 2023-Ohio-4703, ___ N.E.3d ___, ¶ 1. 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 v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141
Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist. 2001), quoting State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist. 1983). 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 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.” Davis v. Flickinger, 77 Ohio St.3d
415, 419, 674 N.E.2d 1159 (1997); accord In re Christian, 4th Dist. Athens No. 04CA10,
2004-Ohio-3146, ¶ 7.
{¶27} The question that an appellate court must resolve when reviewing a
permanent custody decision under the manifest-weight-of-the-evidence standard is Hocking App. Nos. 23CA18 and 23CA19 10
“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 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).
{¶28} 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.”).
{¶29} 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, then 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., 2d Dist. Greene Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 17, quoting
In re A.U., 2d 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 Hocking App. Nos. 23CA18 and 23CA19 11
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.’ ”). A reviewing court should find a trial court’s
permanent custody decision against the manifest weight of the evidence only in the “
‘exceptional case in which the evidence weighs heavily against the [decision].’ ”
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at
175, 485 N.E.2d 717.
PERMANENT CUSTODY PROCEDURE
{¶30} 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. R.C. 2151.414(A)(1). 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 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).
R.C. 2151.414(B)
{¶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 Hocking App. Nos. 23CA18 and 23CA19 12
evidence, that the child’s best interest would be served by the award of permanent
custody and, as relevant here, one of the following circumstances applies:
(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, or 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 and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state.
{¶32} In the case before us, appellant does not dispute the trial court’s finding
that the children have been in the agency’s temporary custody for 12 or more months of
a consecutive 22-month period. Therefore, we do not address this factor.
BEST INTEREST
{¶33} R.C. 2151.414(D) directs a trial court to consider “all relevant factors,” as
well as specific factors, to determine whether a child’s best interest will be served by
granting a children services agency permanent custody. The following are the specific
factors: (1) the child’s interaction and interrelationship with the child’s parents, siblings,
relatives, foster parents and out-of-home providers, and any other person who may
significantly affect the child; (2) the child’s wishes, as expressed directly by the child or
through the child’s GAL, with due regard for the child’s maturity; (3) the child’s custodial
history; (4) the child’s need for a legally secure permanent placement and whether that
type of placement can be achieved without a grant of permanent custody to the agency;
and (5) whether any factors listed under R.C. 2151.414(E)(7) to (11) apply.
{¶34} Deciding whether a grant of permanent custody to a children services
agency will promote a child’s best interest involves a delicate balancing of “all relevant
[best interest] factors,” as well as the “five enumerated statutory factors.” C.F. at ¶ 57, Hocking App. Nos. 23CA18 and 23CA19 13
citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.
However, none of the best interest factors requires a court to give it “greater weight or
heightened significance.” Id. Instead, the trial court considers the totality of the
circumstances when making its best interest determination. In re K.M.S., 3d Dist.
Marion Nos. 9-15-37, 9-15-38, and 9-15-39, 2017-Ohio-142, ¶ 24; In re A.C., 9th Dist.
Summit No. 27328, 2014-Ohio-4918, ¶ 46. In general, “[a] child’s best interest is served
by placing the child in a permanent situation that fosters growth, stability, and security.”
In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio-916, ¶ 66, citing
In re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991).
{¶35} Certainly, “the best practice is for the juvenile court to specifically address
each factor” listed in R.C. 2151.414(D). In re A.M., 166 Ohio St.3d 127, 2020-Ohio-
5102, 184 N.E.3d 1, ¶ 32. However, so long as the record indicates that the trial court
considered the best interest factors, no prejudicial error occurs. Id. at ¶ 36. As the A.M.
court explained,
R.C. 2151.414(D)(1) does not require a juvenile court to expressly discuss each of the best-interest factors in R.C. 2151.414(D)(1)(a) through (e). Consideration is all the statute requires. Although a reviewing court must be able to discern from the magistrate’s or juvenile court’s decision and the court’s judgment entry that the court satisfied the statutory requirement that it consider the enumerated factors, we may not graft onto the statute a requirement that the court include in its decision a written discussion of or express findings regarding each of the best-interest factors.
Id. at ¶ 31.
{¶36} In the case at bar, as we explain below, we do not agree with appellant
that the trial court’s best interest determination is against the manifest weight of the
evidence. Hocking App. Nos. 23CA18 and 23CA19 14
Children’s Interactions and Interrelationships
{¶37} Appellant asserts that the evidence regarding this factor does not weigh in
favor of granting the agency permanent custody. She recognizes that the GAL reported
that the children share a bond with the foster parent and that the trial court described
the children’s relationship with appellant as “negligible.” Appellant contends, however,
that the court did not find that the children’s bonds to the foster parent were “greater
than the bonds to their parents.” She further points out that the foster parent stated that
she can only continue to care for the children until the agency finds a permanent
placement.2
{¶38} We do not agree with appellant’s analysis. First, the trial court did not find
that the children share a bond with appellant. Instead, it found that “the
interrelationship” between the children and their mother is “negligible.” The court
additionally stated, in its discussion of the children’s need for a legally secure
permanent placement, that the children “lack * * * a parental bond” with appellant.
Therefore, appellant’s assertion that the trial court found that “bonds still exist between”
the children and appellant is without merit.
{¶39} Furthermore, even if the foster parent stated that she will continue to
provide care for the children only until the agency finds a permanent family, her
statement does not mean that the children lack a positive relationship with the foster
parent. Instead, this statement indicates that at some point, the children may need to
transition to a new, permanent placement.
2 This statement allegedly appears in the GAL’s report. However, the GAL’s report is not part of the record transmitted on appeal. Hocking App. Nos. 23CA18 and 23CA19 15
{¶40} For these reasons, we do not agree with appellant that the evidence
regarding the children’s interactions and interrelationships weighs against granting the
agency permanent custody of the children.
Children’s Wishes
{¶41} Appellant does not specifically challenge the court’s finding regarding this
factor. We note that the GAL recommended that the court grant the agency permanent
custody of the children. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d
816, ¶ 55 (R.C. 2151.414 “unambiguously gives the trial court the choice of considering
the child’s wishes directly from the child or through the guardian ad litem”); In re S.M.,
4th Dist. Highland No. 14CA4, 2014-Ohio-2961, ¶ 32 (recognizing that R.C. 2151.414
permits juvenile courts to consider a child’s wishes as the child directly expresses or
through the GAL).
Custodial History
{¶42} Appellant does not challenge the court’s findings regarding the children’s
custodial history. We observe that the evidence shows at the time of the permanent
custody hearing, the children had been in the agency’s temporary custody for the
majority of their young lives. B.W. entered the agency’s temporary custody when she
was two years of age, and A.W. entered the agency’s temporary custody when she was
one year of age. At the time of the permanent custody hearing, the children were ages
five and four, respectively.
Legally Secure Permanent Placement
{¶43} Appellant asserts that both she and the children’s father complied with the
case plan and have resolved the issue that initially led to the children’s removal. She Hocking App. Nos. 23CA18 and 23CA19 16
also contends that the children could have been placed with the father. We do not
agree with appellant that this factor weighs against granting the agency permanent
custody.
{¶44} “Although the Ohio Revised Code does not define the term, ‘legally secure
permanent placement,’ this court and others have generally interpreted the phrase to
mean a safe, stable, consistent environment where a child’s needs will be met.” In re
M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56, citing In re Dyal, 4th Dist.
Hocking No. 01CA12, 2001 WL 925423, *9 (Aug. 9, 2001) (implying that “legally secure
permanent placement” means a “stable, safe, and nurturing environment”); see also In
re K.M., 10th Dist. Franklin Nos. 15AP-64 and 15AP-66, 2015-Ohio-4682, ¶ 28
(observing that legally secure permanent placement requires more than a stable home
and income but also requires an environment that will provide for the child’s needs); In
re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, ¶ 95 (stating that the mother
was unable to provide a legally secure permanent placement when she lacked physical
and emotional stability and that the father was unable to do so when he lacked a grasp
of parenting concepts). Thus, “[a] legally secure permanent placement is more than a
house with four walls. Rather, it generally encompasses a stable environment where a
child will live in safety with one or more dependable adults who will provide for the
child’s needs.” In re M.B. at ¶ 56.
{¶45} In the case at bar, appellant had been released from prison a few weeks
before the permanent custody hearing and was living with the father and another
individual. Appellant indicated that this other individual had been creating some turmoil
between her and the father. Hocking App. Nos. 23CA18 and 23CA19 17
{¶46} Before appellant was released from prison, the GAL had visited the
apartment where the father was residing. He stated that it did not have suitable
furnishings for young children. The GAL further explained that the father had been
absent from the children’s lives while appellant was in prison. The father had stated
that he did not think that visiting the children without appellant would be “fair.” Thus, the
lack of appropriate furnishings for young children, combined with the father’s
nonchalance about visiting his children while appellant was incarcerated, support a
finding that the father cannot provide the children with a safe, stable, and consistent
environment where the children’s needs will be met.
{¶47} Although appellant stated that she was working on obtaining her own place
to live, at the time of the permanent custody hearing, she did not have independent
housing. Moreover, appellant had been convicted of child endangerment, and the
agency continued to have concerns regarding appellant’s ability to properly supervise
her children and her relationship with the children’s father. Thus, neither of the children
can be placed in appellant’s custody, and they desperately need “stability and security *
* * to become productive and well-adjusted members of the adult community.”
Ridenour, 61 Ohio St.3d at 324. Their best interests will be “served by placing them in a
permanent situation that fosters growth, stability, and security.” C.B.C. at ¶ 66, citing
Ridenour. Thus, this factor weighs in favor of granting the agency permanent custody.
R.C. 2151.414(E)(7) THROUGH (11)
{¶48} Appellant also contends that the trial court’s judgment is against the
manifest weight of the evidence because the court “did not engage in a discussion of”
the R.C. 2151.414(E)(7) through (11) factors. Hocking App. Nos. 23CA18 and 23CA19 18
The factors in R.C. 2151.414(E)(7) through (11), which are referred to in R.C. 2151.414(D)(1)(e), involve a parent’s having been convicted of or pleaded guilty to specific criminal offenses against the child, the child’s sibling or another child who lived in the parent’s household; a parent’s withholding medical treatment or food from the child; a parent’s repeatedly placing the child at substantial risk of harm because of alcohol or drug abuse; a parent’s abandoning the child; and a parent’s having had parental rights as to the child’s sibling involuntarily terminated.
A.M. at ¶ 19.
{¶49} In the case before us, the trial court’s judgment entry recites all of the best
interest factors listed in R.C. 2151.414(D)(1), including the R.C. 2151.414(E)(7) through
(11) factors contained in R.C. 2151.414(D)(1)(e). The lack of specific findings regarding
those factors is not a fatal flaw. Instead, the statute “requires only that the court
consider those factors.” (Emphasis in original.) Id. at ¶ 42.
{¶50} Here, the record indicates that the trial court considered all of the best
interest factors, including R.C. 2151.414(D)(1)(e). Nothing required the court to engage
in a discussion of each of the circumstances listed in R.C. 2151.414(E)(7) through (11).
Consequently, we do not agree with appellant that the trial court’s failure to discuss
each R.C. 2151.414(E)(7) through (11) factor means that the court prejudicially erred.
{¶51} Based upon all of the foregoing reasons, the trial court could have firmly
believed that placing the children in the agency’s permanent custody is in their best
interests. Therefore, we do not agree with appellant the trial court’s judgment granting
the agency permanent custody is against the manifest weight of the evidence.
{¶52} Accordingly, based upon the foregoing reasons, we overrule appellant’s
first assignment of error. Hocking App. Nos. 23CA18 and 23CA19 19
ASSIGNMENT OF ERROR II
{¶53} In her second assignment of error, appellant argues that the trial court
plainly erred by failing to discharge the guardian ad litem and appoint a new one.
Appellant claims that R.C. 2151.281(D) required the trial court to discharge the GAL
because the GAL failed to comply with all of the duties listed in Sup.R. 48.03(D).
{¶54} The agency asserts that appellant failed to object to the GAL’s alleged
noncompliance during the trial court proceedings and that she, thus, forfeited all but
plain error. The agency contends that even if error occurred, appellant cannot establish
that the outcome of the proceeding would have been different.
{¶55} A well-established rule of appellate procedure is that “ ‘an appellate court
will not consider any error which counsel for a party complaining of the trial court’s
judgment could have called but did not call to the trial court’s attention at a time when
such error could have been avoided or corrected by the trial court.’ ” State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State
v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus.
The failure to object to an error at a time when the court could have avoided or
corrected the error means that the appellant forfeits the right to raise the 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 (stating that “an appellant generally may not
raise an argument on appeal that the appellant has not raised in the lower courts”);
Quarterman at ¶ 21 (explaining that 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) (concluding that party waived arguments for Hocking App. Nos. 23CA18 and 23CA19 20
purposes of appeal when that party failed to raise those arguments during the 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) (explaining that an 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, ¶ 27, fn.3 (stating that “[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 (explaining that “arguments not presented in the trial
court are deemed to be waived and may not be raised for the first time on appeal”).
{¶56} Appellate courts nevertheless have discretion to consider forfeited errors
and review them for plain error. Quarterman at ¶ 16; State v. Pyles, 7th Dist. Mahoning
No. 13-MA-22, 2015-Ohio-5594, ¶ 82, quoting State v. Jones, 7th Dist. Mahoning No.
No. 06-MA-109, 2008-Ohio-1541, ¶ 65 (explaining that the plain error doctrine “ ‘is a
wholly discretionary doctrine’ ”); DeVan v. Cuyahoga Cty. Bd. of Revision, 2015-Ohio-
4279, 45 N.E.3d 661, ¶ 9 (8th Dist.) (noting that appellate courts retain discretion to
consider forfeited arguments). 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 (1982)
(“A ‘plain error’ is obvious and prejudicial although neither objected to nor affirmatively Hocking App. Nos. 23CA18 and 23CA19 21
waived which, if permitted, would have a material adverse [e]ffect on the character and
public confidence in judicial proceedings.”).
{¶57} 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 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 v. Ohio Dept. of Nat. Resources, Ohio Div. of
Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 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 631 (4th Dist.1995) (“Litigants
must not be permitted to hold their arguments in reserve for appeal, thus evading the
trial court process.”).
{¶58} 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 Hocking App. Nos. 23CA18 and 23CA19 22
determined in the initial trial.” Goldfuss, 79 Ohio St.3d at 122. Instead, “ ‘the idea that
parties must bear the cost of their own mistakes at trial is a central presupposition of our
adversarial system of justice.’ ” Id. at 121, 679 N.E.2d 1099, quoting Montalvo v. Lapez,
77 Haw. 282, 305, 884 P.2d 345 (1994) (Nakayama, J., concurring in part and
dissenting in part).
{¶59} In the case at bar, appellant did not object to the GAL’s alleged
noncompliance with Sup.R. 48.03(D) at a time when the trial court could have corrected
any error. Therefore, appellant forfeited the right to raise the issue on appeal. In re
E.A.G., 4th Dist. Washington No. 23CA7, 2024-Ohio-315, ¶ 80; see In re B.S., 8th Dist.
Cuyahoga No. 113014, 2023-Ohio-4548, ¶ 39 (a GAL’s failure to submit a written report
before a permanent custody hearing “is waived unless raised at the trial-court level”).
Moreover, as we explain below, any error that may have occurred did not affect the
outcome of the proceedings.
{¶60} A GAL’s primary duty in a permanent custody proceeding is “to protect the
interest of the child.” R.C. 2151.281(B)(1); accord In re C.B., 129 Ohio St.3d 231, 2011-
Ohio-2899, 951 N.E.2d 398, ¶ 14 (a GAL’s “purpose is to protect the interest of the
child”). The GAL must “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” that the agency provided the child, “and
shall file any motions and other court papers that are in the best interest of the child.”
R.C. 2151.281(I). If the GAL fails “to faithfully discharge the guardian ad litem’s duties,”
the court “shall discharge the guardian ad litem and appoint another guardian ad litem.”
R.C. 2151.281(D). Hocking App. Nos. 23CA18 and 23CA19 23
{¶61} Additionally, Sup.R. 48.03(D) contains a nonexhaustive listing of a GAL’s
duties:
(1) Become informed about the facts of the case and contact all relevant persons; (2) Observe the child with each parent, foster parent, guardian or physical custodian; (3) Interview the child, if age and developmentally appropriate, where no parent, foster parent, guardian, or physical custodian is present; (4) Visit the child at the residence or proposed residence of the child in accordance with any standards established by the court; (5) Ascertain the wishes and concerns of the child; (6) Interview the parties, foster parents, guardians, physical custodian, and other significant individuals who may have relevant knowledge regarding the issues of the case. The guardian ad litem may require each individual to be interviewed without the presence of others. Upon request of the individual, the attorney for the individual may be present. (7) Interview relevant school personnel, medical and mental health providers, child protective services workers, and court personnel and obtain copies of relevant records; (8) Review pleadings and other relevant court documents in the case; (9) Obtain and review relevant criminal, civil, educational, mental health, medical, and administrative records pertaining to the child and, if appropriate, the family of the child or other parties in the case; (10) Request that the court order psychological evaluations, mental health substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court; (11) Review any necessary information and interview other persons as necessary to make an informed recommendation regarding the best interest of the child.
{¶62} Appellant asserts that the GAL failed to comply with Sup.R. 48.03(D) in the
following respects: (1) the GAL “repeatedly failed to contact Appellant and the prior
caseworkers” (Sup.R. 48.03(D)(1)); (2) “[t]he GAL failed to confirm that no one was
present when he interviewed the children” (Sup.R. 48.03(D)(3)); (3) upon appellant’s
release from prison, “the GAL failed to contact Appellant to confirm her residence”
(Sup.R. 48.03(D)(4)); (4) “[t]he GAL did not interview Appellant or the previous two case Hocking App. Nos. 23CA18 and 23CA19 24
workers” (Sup.R. 48.03(D)(6)); (5) the GAL did not interview “relevant school personnel
or medical or mental health providers,” or obtain “relevant records of the children or
parents” (Sup.R. 48.03(D)(7)).
{¶63} However, even if appellant’s assertions are correct, this court, along with
other Ohio appellate courts, has refused to recognize purported Sup.R. 48.03(D)
violations as reversible error. In re A.A., 10th Dist. Franklin No. 23AP-152, 2024-Ohio-
224, ¶ 50; In re S.W., 2023-Ohio-793, 210 N.E.3d 36, ¶ 45 (4th Dist.); see 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”); see State ex rel. Parker Bey v. Byrd, 160 Ohio St.3d 141, 2020-Ohio-
2766, 154 N.E.3d 57, ¶ 41, quoting State v. Singer, 50 Ohio St.2d 103, 110, 362 N.E.2d
1216 (1977) (“ ‘[t]he Rules of Superintendence are not designed to alter basic
substantive rights’ ”) (Kennedy, J., concurring in part and dissenting in part). Therefore,
even if the GAL failed to comply with some of the duties listed in Sup.R. 48.03(D), the
failure to comply with this superintendence rule does not constitute reversible error.
{¶64} Additionally, appellant has not argued that any purported failures to comply
with Sup.R. 48.03(D) affected the outcome of the proceedings. Rather, she simply
contends that the trial court should have discharged the GAL and appointed a new one.
Appellant does not claim that appointing a new GAL would have caused the trial court to Hocking App. Nos. 23CA18 and 23CA19 25
deny the agency’s request for permanent custody of the children. Consequently,
appellant cannot establish that this case is one of the extremely rare cases “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.
{¶65} Accordingly, we overrule appellant’s second assignment of error.
CONCLUSION
{¶66} Having overruled appellant’s two assignments of error, we affirm the trial
court’s judgment.
JUDGMENT AFFIRMED. Hocking App. Nos. 23CA18 and 23CA19 26
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________ Kristy S. Wilkin, 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.