[Cite as In re F.B., 2019-Ohio-1738.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: F.B. C.A. Nos. 28960 G.G. 28985 T.G. J.G.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 14-02-86 DN 14-02-87 DN 14-02-88 DN 14-02-89 DN 14-02-90
DECISION AND JOURNAL ENTRY
Dated: May 8, 2019
SCHAFER, Judge.
{¶1} Appellants, A.G. (“Mother”) and S.G. (“Father”) appeal from a judgment of the
Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights
to their minor children after a reversal and remand by this Court. This Court had reversed and
remanded the case for the trial court to determine whether Mother’s trial counsel had a conflict
of interest that may have necessitated a new permanent custody hearing in this case. The trial
court determined that there had been no conflict of interest and reinstated the prior permanent
custody judgment. This Court affirms.
I.
{¶2} Father is the biological father of the four of the minor children at issue in this
appeal: F.B., born August 2, 2005; J.G., born February 29, 2008; G.G., born April 7, 2009; and 2
T.G., born October 16, 2010. Mother is the biological mother of G.G. and T.G. and is the
biological mother of the fifth child at issue in this appeal: C.L., born May 18, 2002. Although
the mother of F.B. and J.G. participated in the prior appeal, she did not appeal from the trial
court’s judgment on remand.
{¶3} This case has a long and complicated history, which has included several prior
appeals. The five children at issue in this appeal are a blended family with more than one mother
and father. Most of the mothers and fathers have had prior involvement with CSB, with some of
these children and other siblings who are not at issue in this case.
{¶4} Summit County Children Services Board (“CSB”) first became involved in this
case during 2014, based on allegations that the children’s basic needs were not being met and
that C.L. and another child, who is not a party to this appeal, had been subjected to ongoing
neglect and abuse by Mother. At that time, Father was living outside the home because Mother
had obtained a domestic violence protection order against him. The children were removed from
the home, later adjudicated dependent, and placed in the temporary custody of CSB. Father
appealed the initial adjudication and disposition of his children, which was affirmed by this
Court. In re F.B., 9th Dist. Summit No. 27762, 2016-Ohio-3434.
{¶5} The case plan required both parents to address their mental health and substance
abuse problems, abstain from domestic violence and other criminal activity, maintain stable
income and housing, and demonstrate that they could provide for the children’s basic needs.
Father did not comply with the requirements of the case plan.
{¶6} Because Mother initially made progress on the reunification goals of the case
plan, one of her children and later the other two were returned to her temporary custody under
protective supervision by CSB. Within one to two months of each child’s return to Mother’s 3
home, however, they were again removed and placed in the temporary custody of CSB because
domestic violence continued between Father and Mother, Mother moved out of county, was
living with a sex offender, and had been arrested in West Virginia for driving while intoxicated.
Shortly afterward, CSB moved for permanent custody of the children. Mother and Father
alternatively moved for legal custody of some of the children.
{¶7} The case proceeded to a final dispositional hearing before a visiting judge. The
dispositive issue in the prior appeal involved a potential conflict of interest by Mother’s trial
counsel. Specifically, toward the end of the hearing, Mother’s trial counsel informed the trial
court that she could not represent Mother on appeal because she had accepted a position in the
legal department at CSB and would soon begin her new position. The trial court did not inquire
about any potential conflict of interest created by counsel accepting employment with the
opposing party. Mother was not questioned about the potential conflict of interest on the record,
nor did she waive any potential conflict in writing or otherwise on the record. Mother’s trial
counsel continued to represent her throughout the hearing.
{¶8} The trial court ultimately terminated parental rights and placed the five children in
the permanent custody of CSB. Among other grounds, it found that the parents had failed to
substantially remedy the conditions that caused the children to remain placed outside the home
and that permanent custody was in their best interest. See R.C. 2151.414(B)(1)(a); R.C.
2151.414(E)(1); R.C. 2151.414(D). Three of the children’s parents appealed the trial court’s
original permanent custody judgment.
{¶9} In the first permanent custody appeal, CSB conceded that the trial court
committed reversible error by failing to inquire about whether Mother’s counsel had a conflict of
interest because of her upcoming employment with CSB and whether Mother had waived any 4
potential conflict of interest. Prof.Cond.R. 1.7(a). Because the conflict issue could potentially
necessitate a new permanent custody hearing, this Court did not address the parents’ remaining
assignments of error, but reversed and remanded the entire case for the trial court to inquire of
trial counsel and Mother about the potential conflict of interest. In re G.G., 9th Dist. Summit.
Nos. 28574, 28587, and 28594, 2017-Ohio-7850, ¶ 3.
{¶10} On remand, the parties were given the opportunity to brief the issue prior to the
hearing. The sole focus of the pre-hearing briefing was on whether Mother’s former trial counsel
had a conflict of interest under Prof.Cond.R. 1.7(a)(1), because she may have concurrently or
simultaneously represented Mother and CSB. The trial court held a hearing with the parties and
their current counsel. The trial court ultimately determined that there was no conflict of interest
because Mother’s trial counsel did not have a conflict of interest under Prof.Cod.R. 1.7(a)(1).
Consequently, the trial court again placed the children in the permanent custody of CSB.
{¶11} Mother and Father separately appealed and their appeals were later consolidated.
Mother raises three assignments of error and Father raises eight. For ease of discussion, we will
address each parent’s assigned errors in turn.
II.
Mother’s Assignment of Error I
The trial court’s order granting permanent custody is not a final, appealable order.
{¶12} We will address this assignment of error first because it challenges this Court’s
jurisdiction to hear this appeal. Section 3(B)(2), Article IV of the Ohio Constitution limits this
Court’s appellate jurisdiction to the review of final judgments of lower courts. For a judgment to
be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable,
Civ.R. 54(B). Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88 (1989). Pursuant to 5
R.C. 2505.02(B)(1), which is at issue in this appeal, “[a]n order is a final order that may be
reviewed, affirmed, modified, or reversed, with or without retrial, when it is *** [a]n order that
affects a substantial right in an action that in effect determines the action and prevents a
judgment[.]”
{¶13} The order appealed in this case is the trial court’s judgment of February 13, 2018,
that placed all five children in the permanent custody of CSB. Despite Mother’s argument to the
contrary, in addition to granting CSB’s motion to reinstate the prior permanent custody
judgment, the trial court explicitly ordered that each child be “placed in the permanent custody of
[CSB.]” The order further explained that it was entered in accordance with two prior orders of
the court: (1) the trial court’s January 2018 order on remand, finding that there was no conflict of
interest on the part of Mother’s former counsel; and (2) the prior permanent custody judgment,
filed on March 6, 2017.
{¶14} Mother also argues that the February 2018 order is not final and appealable
because it requires the parties to refer to other orders issued by the juvenile court in this case.
Mother points to no legal authority that requires a juvenile court judgment to be issued in a
single order that sets forth all the reasons for its decision. In fact, this Court rejected a similar
argument raised by Father in his appeal from the initial adjudication and disposition of his
children in this case. In re F.B., 9th Dist. Summit No. 27762, 2016-Ohio-3434, ¶ 9-10. Because
Mother has failed to demonstrate that the order appealed in this case is not final and appealable,
this Court concludes that it has jurisdiction to consider the merits of this appeal. Mother’s first
assignment of error is overruled. 6
Mother’s Assignment of Error II
Mother’s counsel violated the Ohio Rules of Professional Conduct and Mother’s rights to due process by taking a position with [CSB] in the middle of the permanent custody hearing.
{¶15} Through her first assignment or error, Mother challenges the trial court’s decision
on remand that her former trial counsel did not have a conflict of interest under Prof.Cond.R.
1.7(a). During the permanent custody hearing in this case, Mother’s counsel informed the trial
court that she had just accepted a position in CSB’s legal department and that she would be
starting the position in one week. Trial counsel met with the trial judge in chambers without the
parties present. Mother’s counsel wanted to put on the record that she had accepted a job at CSB
and that she would not be able to continue representing Mother after the hearing. The trial court
did not delve into whether Mother’s trial counsel had a potential conflict of interest, given that
she had accepted a position with the opposing party, nor did it question Mother about whether
she had waived any potential conflict. Mother’s counsel continued to represent Mother
throughout the remainder of the hearing. After the hearing, Mother’s counsel submitted a motion
to withdraw, which was granted one week later.
{¶16} During the first appeal, all parties, including CSB, agreed that the trial court
committed reversible error by failing to inquire into whether Mother’s trial counsel had a conflict
of interest and, if so, question Mother about whether she had agreed to waive any potential
conflict. CSB conceded in its brief that, “where the trial court knows or reasonably should know
of a potential conflict of interest, the court has an affirmative duty to inquire whether a conflict
actually exists.” CSB’s Brief, citing State v. Gillard, 64 Ohio St.3d. 304, 309 (1992). The
agency further conceded that, because the trial court had conducted no inquiry, the case should
be reversed and remanded to the trial court for a hearing. Because CSB had conceded error, this 7
Court’s discussion of the issue in the prior appeal was brief. Without citing a specific subsection
of Prof.Cond.R. 1.7(a), this Court explained that “[t]he conflict of interest issue relates to one
attorney’s application for and acceptance of imminent employment in CSB’s legal counsel
department during her representation of one of the parents.” In re G.G., 2017-Ohio-7850, ¶ 3.
{¶17} At issue was Prof.Cond.R. 1.7(a), which provides:
A lawyer’s * * * continuation of representation of a client creates a conflict of interest if either of the following applies:
(1) the representation of that client will be directly adverse to another current client;
(2) there is a substantial risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer’s responsibilities to * * * a third person or by the lawyer’s own personal interests.
{¶18} Although not directly stated in this Court’s opinion in the prior appeal, there could
have been a potential conflict of interest either because Mother’s trial counsel may have
simultaneously represented Mother and CSB, or because counsel had accepted employment with
the opposing party, which may have created a “substantial risk that [her] ability to consider,
recommend, or carry out an appropriate course of action for [Mother] will be materially limited
by the lawyer’s responsibilities to * * * a third person or by the lawyer’s own personal
interests.” Prof.Cond.R. 1.7(a)(2). Moreover, if a conflict of interest did exist, continued
representation of Mother was permitted only if, among other things, Mother gave informed
consent, confirmed in writing, to the lawyer continuing to represent her. Prof.Cond.R. 1.7(b).
{¶19} This Court’s direction on remand, however, did not specify a subsection of
Prof.Cond.R. 1.7(a) but stated:
Although it appears to this Court on the surface that counsel may be representing adverse clients, and an inherent conflict of interest may exist pursuant to Prof.Cond.R. 1.7, this Court cannot make that determination in the first instance on the limited record here. Consequently, this matter is remanded to the juvenile 8
court for a hearing including all parties to determine the following: (1) if a conflict of interest was created by counsel’s acceptance of employment with CSB during the course of the permanent custody hearing; (2) if so, whether such a conflict of interest could be waived under the law; and (3) the impact of this type of conflict of interest on (a) each of the parents, (b) the agency, and (c) the children. The juvenile court failed to inquire regarding these issues when the conflict was disclosed below, and further declined to include the parents in the limited discussion it had with the attorneys.
In re G.G. at ¶ 4.
{¶20} On remand, Mother was appointed new counsel to represent her. Prior to a
hearing, the parties were given the opportunity to submit written briefs on the potential conflict
of interest and its effect on the permanent custody hearing. The sole issue briefed by the parties
prior to the hearing was whether trial counsel had a potential conflict of interest under
Prof.Cond.R. 1.7(a)(1) because counsel may have simultaneously or concurrently represented
Mother and CSB. The brief submitted by CSB included attached affidavits and filings in the
case about the relevant facts asserted in its brief. No party, all of whom were represented by
counsel, raised an argument under Prof.Cond.R. 1.7(a)(2) about whether former counsel’s
imminent employment with CSB created a substantial risk that her representation of Mother
might have been adversely affected by her relationship with her soon-to-be employer or by her
own personal interests.
{¶21} The matter proceeded to a hearing, attended by all parties and their counsel at that
time. Although counsel for CSB was the first to speak to the trial court, trial counsel for each
parent was then given the opportunity to state their respective position. Each argued about
whether there had been a conflict of interest by Mother’s former counsel under Prof.Cond.R.
1.7(a)(1), not 1.7(a)(2).
{¶22} None of the attorneys asked to present additional evidence or to call any witnesses
because, as to whether Mother’s former counsel had concurrently represented Mother and CSB, 9
the relevant facts were not disputed. The permanent custody hearing concluded on Friday,
February 24, 2017. On March 1, Mother’s former counsel moved the trial court to withdraw as
counsel for Mother, but the trial court did not grant her leave to withdraw until March 7, one day
after the permanent custody decision was filed. Counsel began her position at CSB on March 6,
and she began completing paperwork for the job on March 2.
{¶23} Although the parties argued in the trial court and again on appeal solely about
whether there was any overlap in counsel’s representation of Mother and CSB, there really was
no factual dispute that there was a one-day overlap in counsel’s representation of Mother and
CSB. Counsel remained Mother’s counsel of record in this case for one day after she began
working for CSB.
{¶24} Although there was a one-day overlap in counsel’s representation of Mother and
CSB, Prof.Cond.R. 1.7(a)(1) provides that a conflict of interest existed only if counsel’s
representation of CSB was “directly adverse to another current client[.]” Notably, none of the
parents attempted to present any argument or evidence that Mother had been adversely affected
by her trial counsel beginning a position at CSB after the permanent custody hearing had
concluded and only one day into the running of time to file an appeal or any post-judgment
motions. There was not even a suggestion at the hearing that counsel did or should have done
anything to represent Mother’s interests during that one-day overlap of representation. She was
merely Mother’s counsel of record in this case.
{¶25} The trial court concluded that there was no conflict of interest under Prof.Cond.R.
1.7(a)(1) because Mother’s former trial counsel had not concurrently represented Mother and
CSB in a manner that had an adverse impact on either client. Having found no conflict of
interest, there was no need for the trial court to answer the remaining questions set forth by this 10
Court in its mandate on remand. Consequently, the trial court again placed the children in the
permanent custody of CSB.
{¶26} In this appeal, Mother again argues about whether Mother’s former counsel had a
conflict of interest under Prof.Cond.R. 1.7(a)(1) because of that one-day overlap of
representation. Again, however, she fails to argue or demonstrate that there was an adverse
impact on her during that time. Absent some suggestion of an adverse impact on Mother during
that brief overlap, we cannot conclude that the trial court erred in finding that there was no
conflict of interest under Prof.Cond.R. 1.7(a)(1).
{¶27} Alternatively, Mother’s appellate counsel argues that there was conflict of interest
under Prof.Cond.R. 1.7(a)(2) because counsel’s relationship with her soon-to-be employer and/or
her own personal interests may have negatively affected her legal representation of Mother.
Mother was represented by counsel during the proceedings on remand, as were the other parents,
and none of them raised this legal argument during the trial court proceedings. Moreover, none
of the parties attempted to get evidence on the record that would be necessary to address such an
argument. The parties were provided due process through the proceedings on remand. This
Court will not fault the trial court for failing to address a legal argument that was not raised or
for failing to consider evidence that was not presented. Mother’s second assignment of error is
overruled.
Mother’s Assignment of Error III
The trial court committed reversible and plain error when it terminated Mother’s parental rights as the [judgment] was not supported by clear and convincing evidence and was against the manifest weight of the evidence.
{¶28} Mother’s final assignment of error is that the trial court’s judgment was against
the manifest weight of the evidence. Mother does not actually argue that the trial court’s 11
decision was not supported by the evidence presented at the hearing, however. Instead, she
argues that the trial court’s judgment on remand is legally deficient because the court stated no
findings about the basis for granting permanent custody of these children. As this Court
explained in its discussion of Mother’s first assignment of error, the trial court’s permanent
custody judgment on remand explicitly stated that it was entered on the same basis as the March
2017 permanent custody judgment. The prior judgment explicitly found that, among other
grounds, the parents had failed to substantially remedy the conditions that caused the children to
remain placed outside the home and that permanent custody was in their best interest. See R.C.
2151.414(B)(1)(a); R.C. 2151.414(E)(1); R.C. 2151.414(D).
{¶29} To the extent that Mother raises additional arguments that do not fall within the
scope of her stated assignment of error and have not separately been assigned as error, they will
not be addressed. See App.R. 16(A)(7); State v. Bennett, 9th Dist. Lorain No. 14CA010579,
2015-Ohio-2887, ¶ 13. Mother’s third assignment of error is overruled.
Father’s Assignment of Error I
The trial court committed reversible and plain error when it prohibited Father from fully participating in all portions of the case by ignoring his objections and stating that he did not have standing thus impeding his due process rights.
{¶30} Father’s first assignment of error is that the trial court committed reversible error
by preventing him from raising objections to evidence that pertained to the mothers of his
children. Father asserts that, because his rights were aligned with the children’s mothers, he
should have been permitted to raise objections on their behalf. Father concedes, however, that
whenever he raised an objection on behalf of the mothers, the trial court asked the mothers’
counsel if they joined in the objection. To demonstrate reversible error, Father must demonstrate 12
not only trial court error but also that the error resulted in prejudice to his defense. See, e.g., In
re P.T., 9th Dist. Summit No. 24207, 2008-Ohio-4690, ¶ 17.
{¶31} Father fails to point to any evidence that was admitted to his prejudice because he
or other defense counsel was not permitted to raise an objection. Father’s first assignment of
error is overruled.
Father’s Assignment of Error II
The trial court committed reversible and plain error when it allowed testimony regarding Father’s parenting evaluation which a magistrate had found to be biased and had stated would not be held for him to complete.
{¶32} Father’s second assignment of error is that the trial court erred in allowing
testimony about his parenting evaluation because: (1) the court had already determined that the
evaluator was biased and (2) he should not have been held to the requirements of that evaluation.
Father’s argument is based on faulty premises. This Court will address each in turn.
{¶33} To begin with, the trial court did not find that the parenting evaluation was biased
or that it should not be considered at the permanent custody phase of the case. During late 2014,
Father had objected to the parenting evaluation because the evaluator had relied on outside
information that had been provided by CSB, including facts about multiple acts of violence
allegedly committed by Father. At that time, the trial court noted that Father had not been given
the opportunity to dispute the claims of violence and, for that reason, stated that it would place
little weight on the evaluation. Nevertheless, the trial court did not strike the evaluation or
explicitly find it to be biased, and it repeatedly denied Father’s request for a new parenting
evaluation.
{¶34} At the permanent custody hearing held more than two years later, Father had the
opportunity to cross-examine the evaluator about the outside information provided by CSB. The 13
evaluator explained that she would have reached the same conclusions even without the outside
information from CSB, and that Father himself had admitted to committing numerous acts of
violence against family members. CSB also presented several certified convictions to
demonstrate that Father had more than a ten-year history of multiple convictions of assault,
endangering children, domestic violence, and violating civil protection orders.
{¶35} Next, Father claims that he suffered prejudice from the parenting evaluation
because he had no notice that he was expected to comply with the counseling recommendation
from what he believes was a flawed evaluation. Even if this Court accepted Father’s argument
that he received no valid parenting evaluation, that was not the only part of the case plan that
required Father to engage in counseling and anger management programs.
{¶36} From the beginning of this case, CSB was aware that Father had a lengthy history
in criminal and juvenile courts cases because he lacked the ability to control his anger and had
committed numerous acts of violence against the women and children in his life. As originally
adopted, the case plan explicitly required Father to engage in counseling, anger management, and
drug treatment and to demonstrate that he could manage his anger and control the symptoms of
his pre-diagnosed antisocial personality disorder.
{¶37} Although Father completed a parenting evaluation, which became the subject of
this controversy, the stated purpose of that evaluation on the case plan was “to determine what
additional services would benefit” each parent. Father failed to consistently engage in case plan
services, violated orders of the criminal court and juvenile court prohibiting him from having
contact with Mother or the children, continued to demonstrate violent behavior, and was again
criminally convicted for an act of domestic violence against Mother. 14
{¶38} Even if the trial court would have stricken all evidence about the parenting
evaluation, the record was replete with evidence that Father failed to comply with the other
requirements of the case plan and continued to exhibit the same parenting problems that he had
demonstrated for many years. Father’s second assignment of error is overruled.
Father’s Assignment of Error III
The trial court committed reversible and plain error when it allowed expert testimony over Father’s objection.
{¶39} Father’s third assignment of error challenges the manner in which the witness
who conducted his parenting evaluation was qualified to testify as an expert. The witness
explained that she has been a licensed psychologist for more than 15 years and that she had
conducted over 3,000 parenting evaluations during her career. Again, Father’s argument that the
trial court had already found the witness to be biased is not supported by the record.
{¶40} In other words, Father points to nothing in the record to demonstrate that the
witness was not, in fact, qualified to testify as an expert in her field under Evid.R. 702. He
merely challenges the way that opposing counsel questioned her about her qualifications as an
expert, asserting that counsel failed to comply with the requirements of Loc.R. 7.02(B)(4) of the
Court of Common Pleas of Summit County, Juvenile Division. In fact, the trial court offered
Father’s counsel the opportunity to question the witness about her qualifications as an expert, but
she declined to do so. Because Father has failed to demonstrate any prejudice resulting from this
alleged error, his third assignment of error is overruled.
Father’s Assignment of Error IV
The trial court committed reversible and plain error when it allowed testimony [about] exhibits that had been obtained by court order without a motion or providing the parties a chance to object to said exhibits being obtained. 15
Father’s Assignment of Error V
The trial court committed reversible and plain error when it admitted exhibits over Father’s objection that Father had not had a chance to review.
{¶41} Father’s fourth and fifth assignments of error are that the trial court committed
reversible error when it allowed CSB to present certain exhibits into evidence because CSB had
failed to provide defense counsel with proper notice that it would be subpoenaing and/or offering
those records into evidence. This Court recently addressed a similar argument in another
permanent custody appeal. See In re N.K., 9th Dist. Summit No. 29074, 2019-Ohio-371, ¶ 23.
In that case, we emphasized that the parent did not demonstrate reversible error because she
failed to demonstrate any prejudice resulting from any trial court error. Id. This Court reasoned
that:
[e]ven if Mother could establish that she was deprived of proper notice that CSB intended to introduce these exhibits, she must establish that the lack of notice hampered her counsel’s ability to prepare a defense. Although Mother’s counsel raised a timely objection to the introduction of this evidence, counsel did not request a continuance of the hearing or a recess to enable defense counsel to review the exhibits to prepare to defend against them. See In re R.R., 9th Dist. Summit No. 27572, 2015-Ohio-5245, ¶ 21 (emphasizing that a continuance could have avoided any prejudice caused by a lack of notice about evidence to be considered by the trial court.).
Id.
{¶42} As in In re N.K., during the permanent custody hearing in this case, Father failed
to request a continuance of the hearing or a recess so his counsel had an opportunity to review
the exhibits. Because Father has failed to demonstrate any prejudicial error in the admission of
these exhibits or testimony about them, his fourth and fifth assignments of error are overruled.
Father’s Assignment of Error VI
The trial court committed reversible and plain error when it allowed evidence, including exhibits, over Father’s objection that were not admissible under the rules of evidence. 16
{¶43} Father’s sixth assignment of error is that the trial court erred in admitting certain
testimony and numerous exhibits because they were not admissible under the rules of evidence.
Many of the arguments that Father has raised under this assignment of error are redundant of
arguments already overruled in Father’s other assignments of error. Father also assets that the
trial court erred in admitting certified copies of his prior convictions because they did not comply
with Evid.R. 803(22). This Court has previously rejected the argument that certified court
records of convictions must comply with Evid.R. 803(22) because they are self-authenticating
under Evid.R. 902(4) and are admissible under Evid.R. 803(8), the public records exception to
the hearsay rule. See, e.g., In re R.P., 9th Dist. Summit No. 26836, 2013-Ohio-5728, ¶11.
{¶44} The remaining arguments under this assignment of error focus primarily on
whether certain exhibits were properly authenticated as complete medical or counseling records.
Father does not assert that the records were not authentic or that they reflected any false or
nonrelevant information, but only that their admission did not technically comply with the rules
of evidence. Again, even if Father can demonstrate any technical error in establishing that these
records were authentic or complete, he has failed to argue or demonstrate that there was any
resulting prejudice to his defense. Consequently, Father’s sixth assignment of error is overruled.
Father’s Assignment of Error VII
The trial court committed reversible and plain error when it modified a final order, by issuing a nunc pro tunc journal entry, when the case was on appeal and no one requested leave for a nunc pro tunc entry.
{¶45} Father’s seventh assignment of error is that the trial court erred in issuing a nunc
pro tunc journal entry on March 16, 2018, because this case was pending on appeal. This Court
has already recognized that the trial court lacked jurisdiction to enter nunc pro tunc entries on
March 16, 2018 and on April 9, 2019. On September 11, 2018, through a journal entry filed in 17
the consolidated appeals from those orders, this Court vacated those orders as void and dismissed
appeals Nos. 28991, 29007, and 29042. Father’s seventh assignment of error is overruled as
moot.
Father’s Assignment of Error VIII
The trial court committed reversible and plain error by finding permanent custody [because] the cumulative errors above, even if harmless individually, taken together show that permanent custody is against the manifest weight of the evidence.
{¶46} Father’s final assignment of error is that, even if this Court finds that his
individual assignments of error lack merit, we should find that the cumulative errors require
reversal of the permanent custody judgment. As with Mother’s “manifest weight” assignment of
error, Father makes no argument about the evidence supporting the judgment. Instead, his only
argument is that the cumulative errors stated through his other assignments of error constitute
reversible error.
{¶47} In State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus, the
Ohio Supreme Court recognized the doctrine of cumulative error. It held that although
individual errors during trial may not rise to the level of reversible error, the combined prejudice
resulting from those errors may rise to the level of reversible error. Id.; see also State v. Lang,
129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 310; State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017,
¶ 217. Because Father failed to demonstrate any prejudice resulting from the errors he has
alleged, he cannot demonstrate cumulative error. Father’s eighth assignment of error is
III.
{¶48} The parents’ assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed. 18
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JULIE A. SCHAFER FOR THE COURT
CARR, P. J. RICE, J. CONCUR.
(Rice, J., of the Eleventh District Court of Appeals, sitting by assignment.) 19
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant, Mother.
DENISE FERGUSON, Attorney at Law, for Appellant, Father.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
GINA D’AURELIO, Attorney at Law, for Children.
JOSEPH M. KERNAN, Guardian ad Litem.