[Cite as In re D.K., 2024-Ohio-1149.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
:
IN THE MATER OF: : Case No. 23CA1177
D.K. :
DECISION & JUDGMENT ENTRY :
________________________________________________________________ APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for Appellant.
Ariana Bowles Norris, Adams County Assistant Prosecutor, West Union, Ohio, for Appellee. ________________________________________________________________ CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION DATE JOURNALIZED:3-20-24 ABELE, J.
{¶1} This is an appeal from an Adams County Common Pleas
Court, Juvenile Division, judgment that granted Adams County
Children Services (ACCS), appellee herein, permanent custody of
11-year-old D.K.
{¶2} William Ishmael, appellant herein, and the child’s
former legal custodian, raises the following assignment of error
for review:
“THE TRIAL COURT ERRED IN TERMINATING THE ISHMAEL’S [SIC] LEGAL CUSTODY OF D.K.” 2 ADAMS, 23CA1177
{¶3} On April 24, 2015, appellee filed a complaint that
alleged D.K. is a dependent child. The complaint averred that
on April 23, 2015, law enforcement arrested the child’s mother
for felony drug possession. Appellee asked the court to place
the child in its temporary custody. On that same date, appellee
sought, and received, an ex parte order of temporary custody.
{¶4} On June 12, 2015, the trial court adjudicated the
child a dependent child and continued her in appellee’s
temporary custody. On March 28, 2016, Terry Ishmael (the
child’s great aunt) and William Ishmael (her husband) asked the
court to grant them legal custody of the child. The court
subsequently placed the child in the Ishmaels’ legal custody and
granted appellee protective supervision. On August 26, 2016,
the court entered a final judgment that granted the Ishmaels
legal custody of the child and that terminated appellee’s (ACCS)
involvement.
{¶5} On May 6, 2021, appellee filed a motion to modify the
disposition that placed the child in the Ishmaels’ legal custody
and asserted that “new allegations concerning the safety and
well-being of the child have been made.” Appellee stated that,
on May 5, 2021, it received a report “concerning alleged
physical abuse and neglect of the child.” Appellee indicated ADAMS, 23CA1177 3
that the child had reported that the Ishmaels permitted two
alleged sexual perpetrators, Laura Dryden and Chris Conn, to be
around the child, even though appellee instructed the Ishmaels
that Conn and Dryden should not be permitted in their home and
should have no contact with the child. Appellee thus asked the
trial court to place the child in its temporary custody. On
that same date, appellee filed a motion for ex parte temporary
custody, which the trial court granted.
{¶6} On November 7, 2022, appellee filed a motion for
permanent custody. At the February 28, 2023 hearing to consider
appellee’s permanent-custody motion, Caseworker Michael Tomlin
testified that appellee most recently sought temporary custody
of the child due to allegations that the Ishmaels allowed the
child to have contact with her alleged abusers. Tomlin
indicated that appellee conducted a 2022 home study, and the
Ishmaels’ home did not pass.
{¶7} Appellant testified that the child lived in his home
from 2016 until May 2021, when the court placed the child in
appellee’s temporary custody. He agreed that the court removed
the child from his home due to allegations that involved Conn
and Dryden.
{¶8} The child’s guardian ad litem testified that the child
did not appear to be “protected from harm” at the Ishmaels’ home ADAMS, 23CA1177 4
due to their inability to control Conn’s and Dryden’s contact
with the child, even after the child’s sexual abuse allegations.
The child reported that when she lived with the Ishmaels, she
was in charge of making appellant lunch and she also rubbed
lotion on his feet. The child also reported being struck with a
dog leash. The guardian ad litem explained that she is not
certain exactly what happened in the Ishmaels’ home, but the
doctor who evaluated the child recommended that she not have any
contact with them. The guardian ad litem further indicated that
the child is “very happy” in the foster home and the foster
parents are considering adopting the child if the court grants
appellee permanent custody. The guardian ad litem recommended
that the court grant appellee permanent custody of the child.
{¶9} On March 7, 2023, the magistrate entered a decision to
place the child in appellee’s permanent custody. The magistrate
noted that the Ishmaels had legal custody of the child until the
court placed the child in appellee’s temporary custody in May
2021, but terminating the Ishmaels’ legal custody was proper due
to “a change in circumstance in the legal custodian’s home.”
The magistrate additionally determined that terminating the
Ishmaels’ legal custody is in the child’s best interest. The
magistrate further stated that a nonparent cannot be awarded
custody unless that nonparent files a written motion with the ADAMS, 23CA1177 5
court and here no one had filed a written motion that requested
legal custody. The magistrate further determined that, even if
the Ishmaels had filed a motion for legal custody of the child,
“the minor child would be at risk” if the court returned her to
their home. The magistrate explained: “During the period of
time the child was in the home, she lacked socialization, was
edxposed [sic] to abuse, and is only now demonstrating improved
behavior and stability.”
{¶10} The magistrate also observed that on May 11, 2022, the
court terminated visitation between the child and the Ishmaels
based upon the outcome of her pediatric assessment. The
magistrate noted that the child’s doctor “recommended no contact
with [the Ishmaels] as it would have a negative effect on her
progress made.” The magistrate thus concluded that it “cannot
find that placing the child in the legal custody of [the
Ishmaels] would be in the best interest of the minor child.”
With respect to appellee’s permanent-custody motion, the court
found that the child’s mother (and father, who remains unknown)
has abandoned her, the child has been in appellee’s temporary
custody for 12 or more months of a consecutive 22-month period,
and permanent custody is in the child’s best interest. On that
same date, the trial court adopted the magistrate’s decision.
{¶11} On March 17, 2023, appellant objected to the ADAMS, 23CA1177 6
magistrate’s decision and asserted that (1) the decision is
against the manifest weight of the evidence; (2) the “decision
fails to establish facts on which a decision may be based”; (3)
the magistrate failed to consider his “testimony indicating that
he had complied with and completed the case plan”; (4) the
magistrate failed to consider the case worker’s testimony that
he “complied with and completed all case plan goals”; (5) the
magistrate failed to consider that he maintained contact with
the agency throughout the case; and (6) the magistrate failed to
consider the child’s best interest.
{¶12} On September 19, 2023, the trial court overruled
appellant’s objections to the magistrate’s decision. In doing
so, the court applied the permanent-custody statute and stated
that it does “not address whether legal custodians, past or
present, are to be given consideration in termination of rights
[cases].” The court found that the parents had abandoned the
child and that the child has been in appellee’s custody for more
than 12 out of the past 22 months.
{¶13} The trial court noted that the child’s guardian ad
litem reported the following:
A. [The child] reported sexual abuse by Christopher Conn and/or Lora Dryden. Terry Ishmael denied that said sexual abuse could have happened and does not believe the allegations by [the child]. ADAMS, 23CA1177 7
B. There were several instances of contact between Conn, Dryden and [the child] and they were routinely allowed in the home by Terry Ishmael and hid Conn and Dryden in the bedroom when the Agency conducted an investigation.
C. [The child] exhibited behavior issues after removal from the Ishmaels and reported occurrences of strange behavior by the Ishmaels. [The child] was not protected in the home of the Ishmaels.
D. After [the child]’s evaluation by Dr. Wagner, it was recommended by Dr. Wagner that [the child] have no further contact with the Ishmaels, for the physical and mental safety of [the child].
{¶14} The trial court thus overruled appellant’s objections
and found that granting appellee permanent custody of the child
is in her best interest. This appeal followed.
{¶15} In his sole assignment of error, appellant asserts
that the trial court erred by terminating the legal-custody
order that had placed the child with him. He contends that (1)
no change in circumstances occurred sufficient to warrant the
removal of the child from his legal custody, and (2) the removal
of the child from his legal custody is not in the child’s best
interest.
{¶16} Appellee asserts that appellant lacks standing to
challenge the trial court’s decision to place the child in its
permanent custody because appellant did not file a motion for
legal custody of the child.
A ADAMS, 23CA1177 8
{¶17} Before we consider the merits of appellant’s
assignment of error, we first consider appellee’s argument that
appellant lacks standing to appeal the trial court’s permanent-
custody decision. “Standing is a threshold question for the
court to decide in order for it to adjudicate the action.”
State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d
1002 (1998). Thus, a person “who attempts to appeal a judgment
must meet standing requirements to invoke the jurisdiction of
the appellate court.” In re S.G.D.F., 10th Dist. Franklin No.
16AP-123, 2016-Ohio-7134, ¶ 11, citing Ohio Contract Carriers
Assn. v. Public Util. Comm. of Ohio, 140 Ohio St. 160, 161, 42
N.E.2d 758 (1942). “[L]ack of standing vitiates the party’s
ability to invoke the jurisdiction of a court” to hear an
action. Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-
Ohio-4275, 21 N.E.3d 1040, ¶ 22.
{¶18} As a general matter, an “‘[a]ppeal lies only on behalf
of a party aggrieved by the final order appealed from.’” State
ex rel. Gabriel v. Youngstown, 75 Ohio St.3d 618, 619, 665
N.E.2d 209 (1996), quoting Ohio Contract Carriers Assn., Inc. v.
Pub. Util. Comm., 140 Ohio St. 160, 42 N.E.2d 758 (1942),
syllabus; accord Goodman v. Hanseman, 132 Ohio St.3d 23, 2012-
Ohio-1587, 967 N.E.2d 1217, 1218, ¶ 1. “Aggrieved means
deprived of legal rights or claims.” Snodgrass v. Testa, 145 ADAMS, 23CA1177 9
Ohio St.3d 418, 2015-Ohio-5364, 50 N.E.3d 475, ¶ 27, quoting
Cononi v. Mikhail, 2d Dist. Montgomery No. 8161, 1984 WL 5419,
*6 (Jan. 10, 1984), citing In re Annexation in Mad River Twp.,
Montgomery Cty., 25 Ohio Misc. 175, 176, 266 N.E.2d 864 (C.P.
1970); see also Black’s Law Dictionary 80 (10th Ed.2014)
(defining “aggrieved” as “having legal rights that are adversely
affected”); accord Midwest Fireworks Mfg. Co. v. Deerfield Twp.
Bd. of Zoning Appeals, 91 Ohio St.3d 174, 177, 743 N.E.2d 894
(2001).
{¶19} In order to have standing to appeal, a person must be
“‘able to demonstrate a present interest in the subject matter
of the litigation which has been prejudiced’” by the judgment
appealed from. Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd.
of Zoning Appeals, 91 Ohio St.3d 174, 177, 743 N.E.2d 894
(2001), quoting Willoughby Hills v. C.C. Bar’s Sahara, Inc., 64
Ohio St.3d 24, 26, 591 N.E.2d 1203 (1992). Consequently, “a
party [ordinarily] does not have standing to prosecute an appeal
in order to protect the rights of a third party.” USB Financial
Services, Inc. v. Lacava, 8th Dist. Cuyahoga No. 106256, 2018-
Ohio-3165, ¶ 42 (citation omitted). Instead, to have standing
to appeal, a party must “assert [his] own rights, not the
[rights] of third parties.” North Canton v. Canton, 114 Ohio
St.3d 253, 2007-Ohio-4005, 871 N.E.2d 586, ¶ 14. Thus, ADAMS, 23CA1177 10
“[a]ppeals are * * * allowed * * * only to correct errors
injuriously affecting the appellant.’” State ex rel. Gabriel v.
Youngstown, 75 Ohio St.3d 618, 619, 665 N.E.2d 209 (1996),
quoting Ohio Contract Carriers Assn. at syllabus.
{¶20} When a trial court grants a children services agency
permanent custody, the decision “divests the natural parents or
adoptive parents of any and all parental rights, privileges, and
obligations, including all residual rights and obligations.”
Juv.R. 2(CC). In the case sub judice, appellant is not the
child’s natural or adoptive parent. Thus, the trial court’s
permanent-custody decision did not divest him of any parental
rights, privileges, or obligations. The decision did, however,
effectively confirm the trial court’s earlier decision that
removed the child from appellant’s legal custody and placed the
child in appellee’s temporary custody. Consequently, although
appellant’s parental rights were not at stake, appellant
previously had been named one of the child’s legal custodians.
Thus, we must determine whether the trial court’s permanent-
custody decision adversely affected any of appellant’s rights as
the child’s former legal custodian.
{¶21} R.C. 2151.011(B)(21) defines “[l]egal custody” as “a
legal status that vests in the custodian the right to have
physical care and control of the child and to determine where ADAMS, 23CA1177 11
and with whom the child shall live, and the right and duty to
protect, train, and discipline the child and to provide the
child with food, shelter, education, and medical care, all
subject to any residual parental rights, privileges, and
responsibilities.” See also Juv.R. 2(X). Additionally, legal
custody “is intended to be permanent in nature.” R.C.
2151.42(B).
{¶22} Nonparents who seek to obtain legal custody of a child
must follow the procedure set forth in R.C. 2151.353(A)(3).
This statute provides that a trial court may award legal custody
of a child to “either parent or to any other person who, prior
to the dispositional hearing, files a motion requesting legal
custody of the child or is identified as a proposed legal
custodian in a complaint or motion filed prior to the
dispositional hearing by any party to the proceedings.” See
also Juv.R. 34(D)(3).
The statute also provides:
A person identified in a complaint or motion filed by a party to the proceedings as a proposed legal custodian shall be awarded legal custody of the child only if the person identified signs a statement of understanding for legal custody that contains at least the following provisions: (a) That it is the intent of the person to become the legal custodian of the child and the person is able to assume legal responsibility for the care and supervision of the child; (b) That the person understands that legal custody ADAMS, 23CA1177 12
of the child in question is intended to be permanent in nature and that the person will be responsible as the custodian for the child until the child reaches the age of majority. Responsibility as custodian for the child shall continue beyond the age of majority if, at the time the child reaches the age of majority, the child is pursuing a diploma granted by the board of education or other governing authority, successful completion of the curriculum of any high school, successful completion of an individualized education program developed for the student by any high school, or an age and schooling certificate. Responsibility beyond the age of majority shall terminate when the child ceases to continuously pursue such an education, completes such an education, or is excused from such an education under standards adopted by the department of education and workforce, whichever occurs first. (c) That the parents of the child have residual parental rights, privileges, and responsibilities, including, but not limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child’s religious affiliation, and the responsibility for support; (d) That the person understands that the person must be present in court for the dispositional hearing in order to affirm the person's intention to become legal custodian, to affirm that the person understands the effect of the custodianship before the court, and to answer any questions that the court or any parties to the case may have.
{¶23} Courts have held that a legal custodian does not have
standing to appeal a trial court’s permanent-custody decision to
the extent that it terminates the biological parents’ parental
rights. E.g. In re Ez.D., 8th Dist. Cuyahoga No. 110447, 2021-
Ohio-3041, ¶ 117; In re B.C.-1, 4th Dist. Athens No. 14CA43,
2015-Ohio-2720, ¶ 32, citing In re Matthews, 3rd Dist. Marion
Nos. 9–07–28, 9–07–29, and 9–07–34, 2008–Ohio–276, ¶ 23 (non- ADAMS, 23CA1177 13
biological father lacked standing to appeal permanent custody
decision pertaining to non-biological child); In re A.L.A., 11th
Dist. Lake Nos., 2011–L–20 and 2011–L–21, 2011–Ohio–3124, ¶ 2,
citing In re Neff, 3rd Dist. Allen No. 1–78–9, *2 (June 14,
1978) (step-father lacked standing to appeal trial court’s
custody decision). However, some courts have determined that
legal custodians may appeal a permanent-custody decision “as it
relates to [their] request to maintain legal custody of [the
child] and the termination of [their] rights as legal
custodian.” In re E.E.D., 2022-Ohio-4014, 200 N.E.3d 738, ¶ 49
(8th Dist.), citing In re C & C, 1st Dist. Hamilton No. C-
220358, 2022-Ohio-3751, ¶ 21. These courts thus limit a legal
custodian’s appeal of a permanent-custody decision to the trial
court’s “denial of [the custodian’s] request to maintain legal
custody of [the child] and the termination of [the custodian’s]
rights as legal custodian.” Id.
{¶24} Nonparents who do not file a motion to request legal
custody of an adjudicated abused, neglected, or dependent child
do not, however, have standing to appeal a trial court’s
decision to grant a children services agency permanent custody
of the child. E.g., In re K.F., 12th Dist. Clermont No. CA2020-
10-061, 2021-Ohio-1183, ¶ 74 (because nonparents did not file
legal-custody motions, the issue was not before the trial court ADAMS, 23CA1177 14
and also not before the appellate court); In re A.B., 2018-Ohio-
4206, 114 N.E.3d 421, ¶ 5 (6th Dist.) (“a nonparent who never
moved to intervene nor moved for legal custody cannot appeal a
permanent custody award”), citing In re Titionna K., 6th Dist.
Lucas No. L-06-1232, 2007-Ohio-1861, ¶ 5; In re J.P., 12th Dist.
Butler Nos. CA2015–08–160 and CA2015–08–161, 2016–Ohio–7, ¶ 8
(nonparent who seeks legal custody of a child must file a motion
for legal custody pursuant to R.C. 2151.353(A)(3)); In re
L.R.T., 12th Dist. Butler Nos. CA2005-03-071 and CA2005-04-082,
2006-Ohio-207, ¶ 17 (“[b]ecause appellee failed to file a motion
requesting legal custody of L.R.T. at least seven days before
the dispositional hearing, the trial court erred as a matter of
law in awarding legal custody to her,” and noting that
compliance with procedural requirements of R.C. 2151.353 and
Juv.R. 34 “is mandatory”).
{¶25} In the case sub judice, after the child’s May 6, 2021
removal from appellant’s home and placement in the agency’s
temporary custody, appellant did not file a motion for legal
custody or a statement of understanding to ask the court to
return the child to his legal custody. Appellant’s legal status
as the child’s legal custodian effectively ended in May 2021,
when the court placed the child in appellee’s temporary custody.
{¶26} We also note that “an adjudication that a child is ADAMS, 23CA1177 15
neglected or dependent, followed by a disposition awarding
temporary custody to a public children services agency pursuant
to R.C. 2151.353(A)(2) constitutes a ‘final order’ for purposes
of R.C. 2505.02 and is appealable to the court of appeals
pursuant to R.C. 2501.02.” In re Murray, 52 Ohio St.3d 155,
161, 556 N.E.2d 1169 (1990). Furthermore, “an appeal of an
adjudication order of abuse, dependency, or neglect of a child
and the award of temporary custody to a children services agency
pursuant to R.C. 2151.353(A)(2) must be filed within 30 days of
the judgment entry pursuant to App.R. 4(A).” In re H.F., 120
Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 18.
{¶27} In the case sub judice, the trial court’s May 2021
order that granted ACCS temporary custody does not contain any
notification that it was a final order, and the record does not
contain any other order, filed before the court’s September 19,
2023 decision, that states it is a final order. For this
reason, the trial court’s May 6, 2021 order, and its subsequent
orders that continued the child in appellee’s temporary custody,
are interlocutory orders that merged into the trial court’s
final order in the case. Navistar, Inc. v. Testa, 143 Ohio
St.3d 460, 2015-Ohio-3283, 39 N.E.3d 509, ¶ 38, quoting Grover
v. Bartsch, 170 Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547,
¶ 9 (“‘Interlocutory orders * * * are merged into the final ADAMS, 23CA1177 16
judgment,’ with the result that ‘an appeal from the final
judgment includes all interlocutory orders merged with it’”).
{¶28} Consequently, the final order in this case is the
court’s decision to grant appellee permanent custody.
Therefore, we believe that appellant has standing to argue that
a change in circumstances did not occur to warrant the child’s
removal from his legal custody. However, because appellant did
not file a motion for legal custody of the child or a statement
of understanding, appellant lacks standing to challenge the
trial court’s decision to place the child in appellee’s
permanent custody.
B
{¶29} Additionally, we observe that although appellant filed
some objections to the magistrate’s decision, he did not object
to the magistrate’s decision based upon an alleged lack of a
change in circumstance under R.C. 2151.42(B). Instead,
appellant generally asserted that the magistrate’s decision is
against the manifest weight of the evidence and the decision
“fails to establish facts on which a decision may be based.”
The juvenile rules require an objecting party to (1) file
written objections to a magistrate’s decision within 14 days of
the decision, (2) state with specificity and particularity all ADAMS, 23CA1177 17
grounds for objection, and (3) support objections to a
magistrate’s factual finding with a transcript of the evidence
submitted to the magistrate or an affidavit of evidence if a
transcript is unavailable. Juv.R. 40(D)(3)(b)(i)-(iii).
{¶30} Moreover, the juvenile rules prevent a party from
assigning “as error on appeal the court’s adoption of any
factual finding or legal conclusion * * * unless the party has
objected to that finding or conclusion as required by Juv.R.
40(D)(3)(b).” Juv.R. 40(D)(3)(b)(iv). This rule “embodies the
long-recognized principle that the failure to draw the trial
court’s attention to possible error when the error could have
been corrected results in a waiver of the issue for purposes of
appeal.” In re Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d 694
(1st Dist. 1998). Thus, under Juv.R. 40(D)(3)(b)(iv), a party
who does not properly object to a magistrate’s decision waives
all but plain error. See State ex rel. Neguse v. McIntosh, 161
Ohio St.3d 125, 2020-Ohio-3533, 161 N.E.3d 571, ¶ 9, quoting
Civ.R. 53(D)(3)(b)(iv) (“failure to object to the magistrate’s
decision bars [appellant] from ‘assign[ing] as error on appeal
the court’s adoption of any factual finding or legal conclusion’
of the magistrate,” and appellate review is therefore limited to
plain error); Tucker v. Hines, 10th Dist. Franklin No. 18AP-375,
2020-Ohio-1086, ¶ 6 (“party who fails to timely object to a ADAMS, 23CA1177 18
magistrate’s decision is limited by operation of Juv.R.
40(D)(3)(b)(iv) to claims of plain error on appeal”); In re
Z.A.P., 177 Ohio App.3d 217, 2008-Ohio-3701, 894 N.E.2d 342, ¶
15 (4th Dist.).
{¶31} For the plain error doctrine to apply, the party that
claims error must establish that (1) “‘an error, i.e., a
deviation from a legal rule’” occurred, (2) the error was “‘an
“obvious” defect in the trial proceedings,’” and (3) 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.”).
{¶32} 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 ADAMS, 23CA1177 19
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 v. Ohio Dept. of Nat. Resources,
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.”). Additionally, “[t]he plain
error doctrine should never be applied to reverse a civil ADAMS, 23CA1177 20
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.
{¶33} In the case sub judice, appellant did not object to
the magistrate’s decision based upon a lack of a change in
circumstances. Thus, the trial court did not have an
opportunity to review the legal issue that appellant now raises
on appeal, i.e., the trial court erred by removing the child
from his legal custody because a change in circumstances had not
occurred. Appellant could have raised this argument at any
point after May 6, 2021, when the trial court initially removed
the child from his legal custody. He did not. Consequently,
appellant has forfeited all but plain error. Juv.R.
40(D)(3)(b)(iv). Appellant did not raise a plain-error argument
on appeal, however. This court ordinarily declines to develop a
plain-error argument for an appellant who fails to do so. State
v. Dailey, 4th Dist. Adams No. 18CA1059, 2018-Ohio-4315, ¶ 23,
citing Redmond v. Wade, 4th Dist. Lawrence No. 16CA16, 2017-
Ohio-2877, ¶ 34, citing State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke,
126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, 78
(O’Donnell, J., concurring in part and dissenting in part),
quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) ADAMS, 23CA1177 21
(appellate courts “are not obligated to search the record or
formulate legal arguments on behalf of the parties, because
‘“appellate courts do not sit as self-directed boards of legal
inquiry and research, but [preside] essentially as arbiters of
legal questions presented and argued by the parties before
them”’”); Coleman v. Coleman, 9th Dist. Summit No. 27592, 2015-
Ohio-2500, ¶ 9 (reviewing court will not craft plain-error
argument for an appellant who fails to raise one). Thus,
because appellant did not formulate plain-error argument, we
will not create one. Instead, we simply note that we believe
that the record contains ample evidence to support a finding
that a change in circumstance had occurred. As the trial court
noted, the child reported that sexual abuse occurred in the
Ishmaels’ home. Allegations of sexual abuse committed against
the child in the legal custodians’ home are an appropriate
consideration when a court considers whether a change in
circumstance has occurred. In re Russell, 4th Dist. Washington
No. 98CA525, 1999 WL 606781, *6 (Aug. 4, 1999) (“unsubstantiated
allegations of sexual abuse are a factor that a court may
consider when deciding whether a change in circumstances has
occurred”); accord In re N.C., 5th Dist. Richland No. 20 CA
0004, 2020-Ohio-6929, ¶ 32 (“disclosure of sexual abuse of the
child is ‘a change [that] has occurred in the circumstances of ADAMS, 23CA1177 22
the child’ and therefore constitutes a change of
circumstances”). Additionally, in March 2022 the child
underwent a pediatric assessment. The assessment report stated
that the child should not have contact with the Ishmaels “as it
would have a negative effect on her progress made.” For these
reasons, we do not believe that the trial court erred, plainly
or otherwise, by (1) determining that a change in circumstance
had occurred, (2) terminating appellant’s status as the child’s
legal custodian, and (3) finding that placing the child in
appellee’s permanent custody is in the child’s best interest.
{¶34} Accordingly, based upon the foregoing reasons, we
overrule appellant’s sole assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED. ADAMS, 23CA1177 23
JUDGMENT ENTRY
It is ordered that the appeal be affirmed and that appellee
recover of appellants 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 Adams 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.
Smith, P.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.