In re T.C.K.

2013 Ohio 3583

• Court: Ohio Court of Appeals
• Decided: August 12, 2013
• Docket: 13CA3
• Status: Published

Opinion

[Cite as In re T.C.K., 2013-Ohio-3583.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

IN THE MATTER OF: : T.C.K. : Case No. 13CA3 : : DECISION AND JUDGMENT : ENTRY : : RELEASED 08/12/2013 ________________________________________________________________ APPEARANCES:

Amanda Keys, St. Marys, West Virginia, Pro Se Appellant. ________________________________________________________________

Hoover, J.

{¶ 1} Amanda Keys, the natural mother of T.C.K., appeals the trial court’s

decision that awarded legal custody of her child to April King, the child’s paternal aunt.

Appellant, appearing pro se, does not set forth assignments of error in accordance with

the Appellate Rules. We have attempted to discern some cognizable assignments of error

from the litany of Juvenile Rules that appellant cites. None of the cognizable

assignments of error have merit. Accordingly, we overrule appellant’s assignments of

error; and we affirm the trial court’s judgment.

I. FACTS

{¶ 2} On or about November 24, 2009, the trial court adjudicated T.C.K. a

dependent child and ordered the child to remain in appellant Amanda Key’s legal custody

under the protective supervision of Washington County Children Services’s (WCCS).

On April 16, 2010, the court terminated the order of protective supervision and placed the

child in appellant’s legal custody. Washington App. No. 13CA3 2

{¶ 3} On April 26, 2012, April King, the child’s paternal aunt, filed a petition for

custody of the child.

{¶ 4} The court subsequently appointed a guardian ad litem for the child. The

guardian ad litem recommended that the court award King legal custody of the child.

{¶ 5} On December 14, 2012, the trial court determined that awarding King legal

custody of the child would serve the child’s best interests. In reaching its decision, the

court set forth the following facts:

[T.C.K.] is a 5 ½ year old boy currently in the temporary custody

of his paternal aunt, April King. Ms. King filed for custody on April 26,

2012, and this Court granted her temporary custody on April 27, 2012. At

the time of her filing, Ms. King had physical custody of [the child] for at

least a week after she picked the child up for an overnight visit and the

parents never came back for him.

This was not the first time that [the child] had lived with his aunt.

He lived with her from August 23, 2007, to April 11, 2009, due to both

parents being charged with and later convicted of felony charges in West

Virginia relating to the manufacturing of methamphetamine. West

Virginia Children Services as a result of the charges placed [the child]

with Ms. King. Rodney King [the child’s father] served approximately 2

years in prison on that charge and [appellant] served 120 days in the

county jail along with 5 years community control. After Mr. King’s

release from prison, the parents reconciled and [the child] returned to their

home in Newport, Ohio. The family resided in Newport, Ohio from April Washington App. No. 13CA3 3

2009 until June of 2012. During this time the child moved back and forth

between Ms. King, the paternal grandparents and his parents. Between

Christmas 2011 and April 2012, when Ms. King obtained temporary

custody, the child resided with Ms. King a majority of the time.

The parents over the years failed to keep the child’s shots current.

He hadn’t been to his pediatrician for 3 years prior to Ms. King obtaining

temporary custody. They also failed to provide proper dental care for him.

He had a cavity that they neglected for 6 months to have filled which

caused him pain when eating. Ms. King has brought all shots current and

had his cavity filled.

Accordingly, [sic] to the testimony of family, neighbors and their

landlord, the parents fought regularly. They could be heard yelling and

screaming at each other all hours of the day. The children were generally

present during these fights. Some of the fights involved physical violence

between the parents.

In May 2012 the utilities to the parents’ home were disconnected

and in June they were evicted. After being evicted, the parents and the

other two children lived in tents during June and July 2012 in West

Virginia, before moving into a house in West Virginia. [The child] visited

his parents during the time they lived in the tents. During one of the visits

on July 21, 2012, the child was injured during a fight between his parents.

His father was hitting his mother and when he stepped between them his

father hit him in the head. The child reported this to Ms. King who Washington App. No. 13CA3 4

immediately took him to the hospital because he was complaining of

headaches. West Virginia Children Services was contacted and an

investigation was undertaken. As a result of their investigation, [the

child’s] two half brothers were removed from the custody of their mother,

Amanda Keys by West Virginia authorities and placed in foster care on

August 1, 2012. [The child] was not removed since he was in the

temporary custody of April King and they were satisfied with his

placement since they had placed him with Ms. King back in 2007 to 2009

when the parents went to jail and prison on the drug charge. The worker

testified that if [the child] were returned to his parents by this Court that

they would immediately file for emergency removal of him. The removal

of the two boys by West Virginia was as a result of concerns of domestic

violence, physical and verbal abuse of all 3 children, and drug usage by

both parents in the presence of the children. As of this date, [the child’s]

half brothers still remain in foster care in West Virginia.

At the time of the child’s placement in the temporary custody of

April King in April 2012 his behavior was terrible. He was a very violent

and angry child. He was afraid his parents would return and take him

away. He was scared by the thought of going with them. He would hit

and cuss at people and talk about sex. He knew more about sex than a 5

year old should. Ms. King placed him in counseling. He sees a counselor

one time per week and is now on Adderall. His behavior as a result of the

counseling is much better now, although he still has some anger issues. Washington App. No. 13CA3 5

According to the child’s guardian ad litem’s testimony in Court

and in his report, the child is scared by the thought of going back to his

parents and told the guardian ad litem they are mean. He told the guardian

ad litem that he desires to live with his aunt and stated that he would run

away if he were returned to his parents.

The guardian ad litem believes it would be in the best interest of

[the child] to be placed in the legal custody of his paternal aunt given all

the issues with his parents and the fact that he is bonded with April King

and she can provide a stable environment for the child.

{¶ 6} The court determined that the parents are unsuitable and that placing the

child in the parents’ custody would not be in the child’s best interests. The court

concluded that awarding King legal custody of the child would serve his best interests.

The court thus awarded King legal custody. Appellant timely appealed the trial court’s

judgment.

II. ASSIGNMENTS OF ERROR

{¶ 7} Appellant has not raised any assignments of error that comply with the

appellate rules. Instead, she lists eleven Juvenile Rules preceded by “Trial Court er [sic]”

or “Receiving agency er [sic].” We ordinarily afford considerable leniency to pro se

litigants and do not necessarily hold them to the same standards as attorneys. E.g., State

v. Ritchie, 4th Dist. No. 10CA20, 2011–Ohio–164, ¶5; Robb v. Smallwood, 165 Ohio

App.3d 385, 2005–Ohio–5863, 846 N.E.2d 878, ¶5 (4th Dist.); Whittington v. Kudlapur,

4th Dist. No. 01CA1, 2001–Ohio–2525. However, we will not “conjure up questions

never squarely asked or construct full-blown claims from convoluted reasoning.” State Washington App. No. 13CA3 6

ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 206, 614 N.E.2d 827 (1992). We will

consider a pro se litigant’s appellant’s brief so long as it “contains at least some

cognizable assignment of error.” Robb at ¶ 5; accord Coleman v. Davis, 4th Dist. No.

10CA5, 2011–Ohio–506, ¶14 (considering pro se litigant’s brief when it contains “some

semblance of compliance” with appellate rules of practice and procedure).

{¶ 8} In the case sub judice, we are tempted to dismiss this appeal based upon

appellant’s failure to comply with the appellate rules and to identify any cognizable

assignment of error. Appellant’s listing of a variety of Juvenile Rules does not tell us

precisely how she believes the trial court erred when applying the rules. However, we

have liberally construed appellant’s brief and believe some assignments of error can be

surmised. We explain and discuss each one below.

III.

ANALYSIS

A.

LACK OF TRANSCRIPT

{¶ 9} Before considering appellant’s assignments of error, we first note that the

record does not contain a transcript of the custody hearing. Although appellant requested

a transcript of the proceedings, the court reporter filed an affidavit in which he alleged

that he could not transcribe the proceedings due to a malfunction in the recording.

{¶ 10} App.R. 9(C) specifies the procedure an appellant may follow when a

transcript is unavailable: “If no recording of the proceedings was made, if a transcript is

unavailable, or if a recording was made but is no longer available for transcription, the

appellant may prepare a statement of the evidence or proceedings from the best available Washington App. No. 13CA3 7

means, including the appellant’s recollection.” In Knapp v. Edwards Laboratories, the

court set forth the consequences of failing to provide a transcript or a statement of the

evidence: “When portions of the transcript necessary for resolution of assigned errors are

omitted from the record, the reviewing court has nothing to pass upon and thus, as to

those assigned errors, the court has no choice but to presume the validity of the lower

court's proceedings, and affirm.” 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

{¶ 11} In the case at bar, without a transcript of the custody hearing or a

statement of the evidence, our review of appellant’s assignments of error is limited.

Absent an adequate record of the facts, testimony, and evidentiary matters necessary to

support appellant’s assignments of error, we have nothing to pass upon and are left with

no choice but to presume the validity of the proceedings and affirm trial court’s

B.

Juv. R. 3

{¶ 12} Appellant contends that the trial court erred when applying Juv.R.

3(A)(1)(3), (B), and (D). Juv.R. 3 reads, in relevant part:

(A) A child’s right to be represented by counsel may not be waived in the

following circumstances:

(1) at a hearing conducted pursuant to Juv.R. 30;

****

(3) when there is a conflict or disagreement between the child and the

parent, guardian, or custodian; or if the parent, guardian, or custodian requests

that the child be removed from the home. Washington App. No. 13CA3 8

(B) If a child is facing the potential loss of liberty, the child shall be

informed on the record of the child’s right to counsel and the disadvantages of

self-representation.

(D) Any waiver of the right to counsel shall be made in open court,

recorded, and in writing. In determining whether a child has knowingly,

intelligently, and voluntarily waived the right to counsel, the court shall look to

the totality of the circumstances including, but not limited to: the child’s age;

intelligence; education; background and experience generally and in the court

system specifically; the child’s emotional stability; and the complexity of the

proceedings. The Court shall ensure that a child consults with a parent, custodian,

guardian, or guardian ad litem, before any waiver of counsel. However, no

parent, guardian, custodian, or other person may waive the child’s right to

counsel.

{¶ 13} In the case at bar, appellant may be arguing that the trial court erred by

permitting the child to waive counsel or she may be arguing that the trial court erred by

determining that the child validly waived counsel. We reject both of these arguments.

{¶ 14} First, appellant does not have standing to appeal any error that may have

occurred with respect to the child’s waiver of counsel. As this court recognized in In re

Moody, 4th Dist. No. 00CA5 (June 28, 2001): “’An appealing party may complain of an

error committed against a non-appealing party when the error is prejudicial to the rights

of the appellant.’” Id., quoting In re Smith, 77 Ohio App.3d 1, 13, 601 N.E.2d 45 (1991)

(citations omitted). Thus, a parent has standing to appeal an error committed against a Washington App. No. 13CA3 9

child when the parent and the child seek the same outcome, i.e., reunification of the

family. When a parent and child seek the same outcome, then an error “that is prejudicial

to the children’s interests in that outcome is similarly prejudicial to the parents’

interests.” Id.; accord In re S.S., 10th Dist. Nos. 12AP–322 and 12AP–323, 2012-Ohio-

4794, ¶26 (“Parents have standing to appeal an error committed against their children

only if the error is prejudicial to the parents’ rights.”); In re B.L., 10th Dist. No. 04AP–

1108, 2005–Ohio–1151, ¶ 44.

{¶ 15} In the case at bar, the trial court’s decision makes clear that appellant and

the child did not seek the same outcome. The trial court found that the child does not

want to be placed in appellant’s legal custody. On the other hand, appellant wishes to

have the child returned to her legal custody. Because appellant and the child did not seek

the same outcome, their interests are not aligned such that an error prejudicial to the child

also prejudiced appellant. In re Johnson, 10th Dist. Nos. 03AP-1264 and 03AP-1265.

2004-Ohio-3886, ¶13 (concluding that parent lacked standing to raise error relating to

deprivation of counsel to children when children wished to be adopted and thus interests

not aligned). Consequently, appellant lacks standing to raise an error relating to the

child’s waiver of counsel.

{¶ 16} Additionally, even if appellant has standing to assert this error, appellant

never raised any issue relating to the child’s right to or waiver of counsel during the trial

court proceedings. “Ordinarily, errors which arise during the course of a trial, which are

not brought to the attention of the court by objection or otherwise, are waived and may

not be raised upon appeal.” Stores Realty Co. v. City of Cleveland, Bd. of Bldg.

Standards and Bldg. Appeals, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975), citing Washington App. No. 13CA3 10

Snyder v. Standford, 15 Ohio St.2d 31, 238 N.E.2d 563 (1968), and Oney v. Needham, 6

Ohio St.2d 154, 216 N.E.2d 625 (1966). An appellate court may recognize an error that

an appellant waived only if it constitutes plain error. E.g., In re Etter, 134 Ohio App.3d

484, 492, 731 N.E.2d 694 (1998). Courts should exercise extreme caution when invoking

the plain error doctrine, especially in civil cases. The Ohio Supreme Court has

admonished courts to limit applying the plain error doctrine to 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 *

* *.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997).

{¶ 17} The case at bar does not involve exceptional circumstances and any error

regarding the child’s waiver of counsel did not seriously affect the basic fairness,

integrity, or public reputation of the judicial process. Accordingly, based upon the

foregoing reasons, we overrule this assignment of error.

C.

Juv. R. 4

{¶ 18} Appellant next asserts that the trial court erred when applying Juv.R.

4(A), (B)(4), (B)(5), (B)(7), and (B)(8). Those provisions state:

(A) Assistance of counsel

Every party shall have the right to be represented by counsel and

every child, parent, custodian, or other person in loco parentis the right to

appointed counsel if indigent. These rights shall arise when a person

becomes a party to a juvenile court proceeding. When the complaint

alleges that a child is an abused child, the court must appoint an attorney Washington App. No. 13CA3 11

to represent the interests of the child. This rule shall not be construed to

provide for a right to appointed counsel in cases in which that right is not

otherwise provided for by constitution or statute.

(B) Guardian ad litem; when appointed

The court shall appoint a guardian ad litem to protect the interests

of a child or incompetent adult in a juvenile court proceeding when

***

(4) The court believes that the parent of the child is not capable of

representing the best interest of the child.

(5) Any proceeding involves allegations of abuse or neglect,

voluntary surrender of permanent custody, or termination of parental

rights as soon as possible after the commencement of such proceeding.

(6) There is an agreement for the voluntary surrender of temporary

custody that is made in accordance with section 5103.15 of the Revised

Code, and thereafter there is a request for extension of the voluntary

agreement.

(7) The proceeding is a removal action.

(8) Appointment is otherwise necessary to meet the requirements

of a fair hearing.

{¶ 19} We first observe that the court appointed a guardian ad litem for the child.

Thus, we summarily reject any argument that the trial court erred by failing to appoint a

guardian ad litem for the child. Washington App. No. 13CA3 12

{¶ 20} It is not clear whether appellant is asserting that the trial court erred by

failing to appoint a guardian ad litem to represent her. To the extent that she is making

this assertion, she waived any error by failing to request the court to appoint a guardian

ad litem. Additionally, based upon the extremely limited record before this court, we

cannot state that the court committed plain error by failing to appoint a guardian ad litem

for appellant.

{¶ 21} To the extent appellant asserts that the trial court erred by failing to

appoint counsel to represent her or the child, neither appellant nor the child has a right to

appointed counsel in a private custody matter between a parent and a non-parent and in

which the state does not seek a termination of parental rights.

{¶ 22} Juv.R. 4(A) states that “[e]very party shall have the right to be represented

by counsel and every child, parent, custodian, or other person in loco parentis the right to

appointed counsel if indigent.” However, the rule further states that it does not create a

“right to appointed counsel in cases in which that right is not otherwise provided for by

constitution or statute.”

{¶ 23} R.C. 2151.352 governs the right to counsel in juvenile proceedings and

provides, in relevant part:

A child, the child’s parents or custodian, or any other person in

loco parentis of the child is entitled to representation by legal counsel at

all stages of the proceedings under this chapter or Chapter 2152. of the

Revised Code. If, as an indigent person, a party is unable to employ

counsel, the party is entitled to have counsel provided for the person

pursuant to Chapter 120. of the Revised Code except in civil matters in Washington App. No. 13CA3 13

which the juvenile court is exercising jurisdiction pursuant to division

(A)(2) * * * of section 2151.23 of the Revised Code.

(Emphasis added).

{¶ 24} In the case sub judice, the juvenile court exercised jurisdiction pursuant to

R.C. 2151.23(A)(2). That section grants a juvenile court exclusive original jurisdiction

“to determine the custody of any child not a ward of another court of this state.” Because

the court exercised jurisdiction under R.C. 2151.23(A)(2), the civil-matter exception

specified in R.C. 2151.352 applies. Thus, neither appellant nor the child has a right to

appointed counsel. In re D.H., 10th Dist. No. 11AP-761, 2012-Ohio-2272, ¶12

(observing that parent not entitled to appointed counsel when court proceeding concerned

legal custody of children who are not wards of another court of this state); In re D.J.M.,

11th Dist. No. 2011-L-022, 2011-Ohio-6836, ¶35 (finding that father not entitled to

appointed counsel in proceeding brought under R.C. 2151.23(A)(2)); In re M.E.H., 4th

Dist. No. 08CA4, 2008-Ohio-3563, ¶12 (same).

{¶ 25} Accordingly, based upon the foregoing reasons, we overrule this

assignment of error.

D.

Juv.R. 6

{¶ 26} Next, appellant contends that the trial court erred when applying “Juv.R.

6(B)(C)(E)(2)(3)(G)(H)(J).” Juv.R. 6(C), (E)(2), (E)(3), (G), (H), and (J) are non-

existent. Juv.R. 6(B) states:

(B) Probable cause hearing Washington App. No. 13CA3 14

When a child is taken into custody pursuant to an ex parte

emergency order pursuant to division (A)(3)(g) or (A)(4) of this rule, a

probable cause hearing shall be held before the end of the next business

day after the day on which the order is issued but not later than seventy-

two hours after the issuance of the emergency order.

{¶ 27} Appellant’s apparent argument is that the trial court erred by failing to

hold a probable cause hearing in accordance with Juv.R. 6(B). Juv.R. 6(B) requires a

probable cause hearing “[w]hen a child is taken into custody pursuant to an ex parte

emergency order pursuant to division (A)(3)(g) or (A)(4).” Those two provisions state:

(A) A child may be taken into custody:

(3) by a law enforcement officer or duly authorized officer of the

court when any of the following conditions exist:

(g) A juvenile judge or designated magistrate has found that there

is probable cause to believe any of the conditions set forth in division

(A)(3)(a), (b), or (c) of this rule are present, has found that reasonable

efforts have been made to notify the child’s parents, guardian ad litem or

custodian that the child may be placed into shelter care, except where

notification would jeopardize the physical or emotional safety of the child

or result in the child’s removal from the court's jurisdiction, and has

ordered ex parte, by telephone or otherwise, the taking of the child into

custody. Washington App. No. 13CA3 15

(4) By the judge or designated magistrate ex parte pending the

outcome of the adjudicatory and dispositional hearing in an abuse, neglect,

or dependency proceeding, where it appears to the court that the best

interest and welfare of the child require the immediate issuance of a

shelter care order.

{¶ 28} The case at bar arose from King’s filing of a petition for legal custody.

When she filed the petition, she requested the court to award her temporary custody of

the child, which the court did. Nothing in the record indicates that a law enforcement

officer or duly authorized officer of the court removed the child from appellant’s custody.

Instead, according to the trial court’s decision, the child already had been staying with

King and the parents failed to contact King or pick up the child when scheduled.

Consequently, we do not find Juv.R. 6(B) applicable to the facts in the case sub judice.

{¶ 29} Even if Juv.R. 6(B) applies, appellant has not identified how the failure to

hold a probable cause hearing within the specified time prejudiced the outcome of the

case. Thus, any error that the trial court may have committed is harmless error that we

may disregard. Civ.R. 61.

{¶ 30} Accordingly, based upon the foregoing reasons, we overrule this

E.

Juv.R. 17

{¶ 31} Appellant asserts that the trial court erred when applying “Juv.R.

17(D)(1)(2)(3)(a)(b)(c)(d)(4)(5)(E)(1)(2)(G).” Those provisions state:

(D) Protection of persons subject to subpoenas Washington App. No. 13CA3 16

(1) A party or an attorney responsible for the issuance and service

of a subpoena shall take reasonable steps to avoid imposing undue burden

or expense on a person subject to that subpoena.

(2)(a) A person commanded to produce under division

(A)(1)(b)(ii), (iii), or (iv) of this rule is not required to appear in person at

the place of production or inspection unless commanded to attend and give

testimony at a trial, hearing, proceeding, or deposition.

(b) Subject to division (E)(2) of this rule, a person commanded to

produce under division (A)(1)(b)(ii), (iii), or (iv) of this rule may serve

upon the party or attorney designated in the subpoena written objections to

production. The objections must be served within fourteen days after

service of the subpoena or before the time specified for compliance if that

time is less than fourteen days after service. If objection is made, the party

serving the subpoena shall not be entitled to production except pursuant to

an order of the court that issued the subpoena. If objection has been made,

the party serving the subpoena, upon notice to the person commanded to

produce, may move at any time for an order to compel the production. An

order to compel production shall protect any person who is not a party or

an officer of a party from significant expense resulting from the

production commanded.

(3) On timely motion, the court from which the subpoena was

issued shall quash or modify the subpoena, or order appearance or Washington App. No. 13CA3 17

production only under specified conditions, if the subpoena does any of

the following:

(a) Fails to allow reasonable time to comply;

(b) Requires disclosure of privileged or otherwise protected matter

and no exception or waiver applies;

(c) Requires disclosure of a fact known or opinion held by an

expert not retained or specially employed by any party in anticipation of

litigation or preparation for trial if the fact or opinion does not describe

specific events or occurrences in dispute and results from study by that

expert that was not made at the request of any party;

(d) Subjects a person to undue burden.

(4) Before filing a motion pursuant to division (D)(3)(d) of this

rule, a person resisting discovery under this rule shall attempt to resolve

any claim of undue burden through discussions with the issuing attorney.

A motion filed pursuant to division (D)(3)(d) of this rule shall be

supported by an affidavit of the subpoenaed person or a certificate of that

person's attorney of the efforts made to resolve any claim of undue burden.

(5) If a motion is made under division (D)(3)(c) or (D)(3)(d) of this

rule, the court shall quash or modify the subpoena unless the party in

whose behalf the subpoena is issued shows a substantial need for the

testimony or material that cannot be otherwise met without undue hardship

and assures that the person to whom the subpoena is addressed will be

reasonably compensated. Washington App. No. 13CA3 18

(E) Duties in responding to subpoena

(1) A person responding to a subpoena to produce documents shall,

at the person's option, produce the documents as they are kept in the usual

course of business or organized and labeled to correspond with the

categories in the subpoena. A person producing documents pursuant to a

subpoena for them shall permit their inspection and copying by all parties

present at the time and place set in the subpoena for inspection and

copying.

(2) When information subject to a subpoena is withheld on a claim

that it is privileged or subject to protection as trial preparation materials,

the claim shall be made expressly and shall be supported by a description

of the nature of the documents, communications, or things not produced

that is sufficient to enable the demanding party to contest the claim.

(G) Privileges

Nothing in this rule shall be construed to authorize a party to

obtain information protected by any privilege recognized by law or to

authorize any person to disclose such information.

{¶ 32} We are unable to discern a specific assignment of error from appellant’s

reference to Juv.R. 17. The reference is too general to enable us to determine what error

appellant alleges occurred. Therefore, we summarily overrule this assignment of error.

F.

Juv.R. 27 Washington App. No. 13CA3 19

{¶ 33} Appellant argues that the trial court erred when applying “Juv.R.

27(B)(1)(a)(b)(c)(2)(a)(b)(c)(3)(a)(b)(c).” Those provisions state:

(B) Special provisions for abuse, neglect, and dependency

proceedings

(1) In any proceeding involving abuse, neglect, or dependency at

which the court removes a child from the child’s home or continues the

removal of a child from the child’s home, or in a proceeding where the

court orders detention, the court shall determine whether the person who

filed the complaint in the case and removed the child from the child’s

home has custody of the child or will be given custody and has made

reasonable efforts to do any of the following:

(a) Prevent the removal of the child from the child’s home;

(b) Eliminate the continued removal of the child from the child’s

home;

(c) Make it possible for the child to return home.

(2) In a proceeding involving abuse, neglect, or dependency, the

examination made by the court to determine whether a child is a

competent witness shall comply with all of the following:

(a) Occur in an area other than a courtroom or hearing room;

(b) Be conducted in the presence of only those individuals

considered necessary by the court for the conduct of the examination or

the well being of the child; Washington App. No. 13CA3 20

(c) Be recorded in accordance with Juv. R. 37 or Juv. R. 40. The

court may allow the prosecutor, guardian ad litem, or attorney for any

party to submit questions for use by the court in determining whether the

child is a competent witness.

(3) In a proceeding where a child is alleged to be an abused child,

the court may order that the testimony of the child be taken by deposition

in the presence of a judge or a magistrate. On motion of the prosecuting

attorney, guardian ad litem, or a party, or in its own discretion, the court

may order that the deposition be videotaped. All or part of the deposition

is admissible in evidence where all of the following apply:

(a) It is filed with the clerk;

(b) Counsel for all parties had an opportunity and similar motive at

the time of the taking of the deposition to develop the testimony by direct,

cross, or redirect examination;

(c) The judge or magistrate determines there is reasonable cause to

believe that if the child were to testify in person at the hearing, the child

would experience emotional trauma as a result of the child's participation

at the hearing.

{¶ 34} Juv.R. 27(B) applies to abuse, neglect, and dependency proceedings. The

trial court’s decision that awarded King legal custody did not arise from a complaint

alleging that the child is an abused, neglected, and dependent child. Instead, the court

awarded King legal custody based upon King’s filing of a complaint for legal custody.

Consequently, Juv.R. 27(B) is not applicable. Washington App. No. 13CA3 21

{¶ 35} Accordingly, we overrule this assignment of error.

G.

Juv.R. 29

{¶ 36} Appellant asserts that the trial court erred when applying “Juv.R.

29(A)(B)(C)(D)(E)(F).” Those provisions state:

(A) Scheduling the hearing

The date for the adjudicatory hearing shall be set when the

complaint is filed or as soon thereafter as is practicable. If the child is the

subject of a complaint alleging a violation of a section of the Revised

Code that may be violated by an adult and that does not request a serious

youthful offender sentence, and if the child is in detention or shelter care,

the hearing shall be held not later than fifteen days after the filing of the

complaint. Upon a showing of good cause, the adjudicatory hearing may

be continued and detention or shelter care extended.

The prosecuting attorney’s filing of either a notice of intent to

pursue or a statement of an interest in pursuing a serious youthful offender

sentence shall constitute good cause for continuing the adjudicatory

hearing date and extending detention or shelter care.

The hearing of a removal action shall be scheduled in accordance

with Juv. R. 39(B).

If the complaint alleges abuse, neglect, or dependency, the hearing

shall be held no later than thirty days after the complaint is filed. For good

cause shown, the adjudicatory hearing may extend beyond thirty days Washington App. No. 13CA3 22

either for an additional ten days to allow any party to obtain counsel or for

a reasonable time beyond thirty days to obtain service on all parties or

complete any necessary evaluations. However, the adjudicatory hearing

shall be held no later than sixty days after the complaint is filed.

The failure of the court to hold an adjudicatory hearing within any

time period set forth in this rule does not affect the ability of the court to

issue any order otherwise provided for in statute or rule and does not

provide any basis for contesting the jurisdiction of the court or the validity

of any order of the court.

(B) Advisement and findings at the commencement of the hearing

At the beginning of the hearing, the court shall do all of the

following:

(1) Ascertain whether notice requirements have been complied

with and, if not, whether the affected parties waive compliance;

(2) Inform the parties of the substance of the complaint, the

purpose of the hearing, and possible consequences of the hearing,

including the possibility that the cause may be transferred to the

appropriate adult court under Juv. R. 30 where the complaint alleges that a

child fourteen years of age or over is delinquent by conduct that would

constitute a felony if committed by an adult;

(3) Inform unrepresented parties of their right to counsel and

determine if those parties are waiving their right to counsel; Washington App. No. 13CA3 23

(4) Appoint counsel for any unrepresented party under Juv. R. 4(A)

who does not waive the right to counsel;

(5) Inform any unrepresented party who waives the right to counsel

of the right: to obtain counsel at any stage of the proceedings, to remain

silent, to offer evidence, to cross-examine witnesses, and, upon request, to

have a record of all proceedings made, at public expense if indigent.

(C) Entry of admission or denial

The court shall request each party against whom allegations are

being made in the complaint to admit or deny the allegations. A failure or

refusal to admit the allegations shall be deemed a denial, except in cases

where the court consents to entry of a plea of no contest.

(D) Initial procedure upon entry of an admission

The court may refuse to accept an admission and shall not accept

an admission without addressing the party personally and determining

both of the following:

(1) The party is making the admission voluntarily with

understanding of the nature of the allegations and the consequences of the

admission;

(2) The party understands that by entering an admission the party

is waiving the right to challenge the witnesses and evidence against the

party, to remain silent, and to introduce evidence at the adjudicatory

hearing. Washington App. No. 13CA3 24

The court may hear testimony, review documents, or make further

inquiry, as it considers appropriate, or it may proceed directly to the action

required by division (F) of this rule.

(E) Initial procedure upon entry of a denial

If a party denies the allegations the court shall:

(1) Direct the prosecuting attorney or another attorney-at-law to

assist the court by presenting evidence in support of the allegations of a

complaint;

(2) Order the separation of witnesses, upon request of any party;

(3) Take all testimony under oath or affirmation in either question-

answer or narrative form; and

(4) Determine the issues by proof beyond a reasonable doubt in

juvenile traffic offense, delinquency, and unruly proceedings; by clear and

convincing evidence in dependency, neglect, and abuse cases, and in a

removal action; and by a preponderance of the evidence in all other cases.

(F) Procedure upon determination of the issues

Upon the determination of the issues, the court shall do one of the

(1) If the allegations of the complaint, indictment, or information

were not proven, dismiss the complaint;

(2) If the allegations of the complaint, indictment, or information

are admitted or proven, do any one of the following, unless precluded by

statute: Washington App. No. 13CA3 25

(a) Enter an adjudication and proceed forthwith to disposition;

(b) Enter an adjudication and continue the matter for disposition

for not more than six months and may make appropriate temporary orders;

(c) Postpone entry of adjudication for not more than six months;

(d) Dismiss the complaint if dismissal is in the best interest of the

child and the community.

(3) Upon request make written findings of fact and conclusions of

law pursuant to Civ. R. 52.

(4) Ascertain whether the child should remain or be placed in

shelter care until the dispositional hearing in an abuse, neglect, or

dependency proceeding. In making a shelter care determination, the court

shall make written finding of facts with respect to reasonable efforts in

accordance with the provisions in Juv. R. 27(B)(1) and to relative

placement in accordance with Juv. R. 7(F)(3).

{¶ 37} Appellant’s argument that the trial court erred by failing to comply with

Juv.R. 29 is without merit. Juv. R. 29 applies to adjudicatory hearings. In the case at bar,

the decision that awarded King legal custody of appellant’s child arose from King’s filing

of a complaint for legal custody and not from a complaint that required the court to hold

an adjudicatory hearing, i.e., a complaint alleging that the child is delinquent, abused,

neglected, dependent, etc. Consequently, Juv.R. 29 does not apply.

{¶ 38} Accordingly, we overrule this assignment of error.

H.

Juv.R. 30 Washington App. No. 13CA3 26

{¶ 39} Appellant asserts that the court erred when applying “Juv.R.

30(A)(B)(C)(D)(E)(F)(G)(H).” Those provisions state:

(A) Preliminary hearing

In any proceeding where the court considers the transfer of a case

for criminal prosecution, the court shall hold a preliminary hearing to

determine if there is probable cause to believe that the child committed the

act alleged and that the act would be an offense if committed by an adult.

The hearing may be upon motion of the court, the prosecuting attorney, or

the child.

(B) Mandatory transfer

In any proceeding in which transfer of a case for criminal

prosecution is required by statute upon a finding of probable cause, the

order of transfer shall be entered upon a finding of probable cause.

(C) Discretionary transfer

prosecution is permitted, but not required, by statute, and in which

probable cause is found at the preliminary hearing, the court shall continue

the proceeding for full investigation. The investigation shall include a

mental examination of the child by a public or private agency or by a

person qualified to make the examination. When the investigation is

completed, an amenability hearing shall be held to determine whether to

transfer jurisdiction. The criteria for transfer shall be as provided by

statute. Washington App. No. 13CA3 27

(D) Notice

Notice in writing of the time, place, and purpose of any hearing

held pursuant to this rule shall be given to the state, the child's parents,

guardian, or other custodian and the child's counsel at least three days

prior to the hearing, unless written notice has been waived on the record.

(E) Retention of jurisdiction

If the court retains jurisdiction, it shall set the proceedings for

hearing on the merits.

(F) Waiver of mental examination

The child may waive the mental examination required under

division (C) of this rule. Refusal by the child to submit to a mental

examination or any part of the examination shall constitute a waiver of the

examination.

(G) Order of transfer

The order of transfer shall state the reasons for transfer.

(H) Release of child

With respect to the transferred case, the juvenile court shall set the

terms and conditions for release of the child in accordance with Crim. R.

46.

{¶ 40} Juv. R. 30 applies when a juvenile court considers whether to transfer a

delinquency complaint for criminal prosecution. Appellant has not asserted how Juv.R.

30 has any applicability to the case at bar, which involves legal custody. Moreover, we Washington App. No. 13CA3 28

fail to see how Juv.R. 30 applies to the trial court’s decision that awarded King legal

custody.

{¶ 41} Accordingly, we overrule this assignment of error.

I.

Juv.R. 32

{¶ 42} Appellant contends that the court erred when applying “Juv.R.

32(A)(B)(C)(D).” Those provisions state:

(A) Social history and physical or mental examination: availability

before adjudication

The court may order and utilize a social history or physical or

mental examination at any time after the filing of a complaint under any of

the following circumstances:

(1) Upon the request of the party concerning whom the history or

examination is to be made;

(2) Where transfer of a child for adult prosecution is an issue in the

proceeding;

(3) Where a material allegation of a neglect, dependency, or

abused child complaint relates to matters that a history or examination

may clarify;

(4) Where a party’s legal responsibility for the party’s acts or the

party’s competence to participate in the proceedings is an issue;

(5) Where a physical or mental examination is required to

determine the need for emergency medical care under Juv. R. 13; or Washington App. No. 13CA3 29

(6) Where authorized under Juv. R. 7(I).

(B) Limitations on preparation and use

Until there has been an admission or adjudication that the child

who is the subject of the proceedings is a juvenile traffic offender,

delinquent, unruly, neglected, dependent, or abused, no social history,

physical examination or mental examination shall be ordered except as

authorized under subdivision (A) and any social history, physical

examination or mental examination ordered pursuant to subdivision (A)

shall be utilized only for the limited purposes therein specified. The person

preparing a social history or making a physical or mental examination

shall not testify about the history or examination or information received

in its preparation in any juvenile traffic offender, delinquency, or unruly

child adjudicatory hearing, except as may be required in a hearing to

determine whether a child should be transferred to an adult court for

criminal prosecution.

(C) Availability of social history or investigation report

A reasonable time before the dispositional hearing, or any other

hearing at which a social history or physical or mental examination is to

be utilized, counsel shall be permitted to inspect any social history or

report of a mental or physical examination. The court may, for good cause

shown, deny such inspection or limit its scope to specified portions of the

history or report. The court may order that the contents of the history or

report, in whole or in part, not be disclosed to specified persons. If Washington App. No. 13CA3 30

inspection or disclosure is denied or limited, the court shall state its

reasons for such denial or limitation to counsel.

(D) Investigation: allocation of parental rights and responsibilities

for the care of children; habeas corpus

On the filing of a complaint for the allocation of parental rights and

responsibilities for the care of children or for a writ of habeas corpus to

determine the allocation of parental rights and responsibilities for the care

of a child, or on the filing of a motion for change in the allocation of

parental rights and responsibilities for the care of children, the court may

cause an investigation to be made as to the character, health, family

relations, past conduct, present living conditions, earning ability, and

financial worth of the parties to the action. The report of the investigation

shall be confidential, but shall be made available to the parties or their

counsel upon written request not less than three days before hearing. The

court may tax as costs all or any part of the expenses of each investigation.

{¶ 43} Presumably, appellant’s argument is that the court should have ordered “a

social history or physical or mental examination” or “cause[d] an investigation to be

made as to the character, health, family relations, past conduct, present living conditions,

earning ability, and financial worth of the parties to the action.”

{¶ 44} We previously have discussed the discretionary nature of Juv.R. 32 and

stated:

Juv.R. 32(A) provides that the court may order and utilize a

physical or mental examination at any time after the filing of a complaint. Washington App. No. 13CA3 31

The use of the word “may” is generally construed as optional, permissive

or discretionary. In re Fleming (1991), 76 Ohio App.3d 30, 38.

Analogously, it has been held that the right of an indigent criminal

defendant to an expert witness or a second medical examination is within

the discretion of the trial court. See State v. President (Apr. 21, 1993),

Lorain App. No. 92CA5408, unreported; State v. McFarland (Jan. 15,

1993), Muskingum App. No. CA-92-7, unreported; and State v. Tanner

(Dec. 31, 1991), Franklin App. Nos. 91AP-263 and 651 (all of these cases

citing Ake v. Oklahoma (1985), 470 U.S. 68). Based upon the foregoing,

as well as the parties’ citation of this standard of review on appeal, we

must determine if the trial court abused its discretion in overruling

appellant's motions for appointment of a medical expert and a defense

psychologist. An abuse of discretion involves more than an error of

judgment; it connotes an attitude on the part of the court that is

unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept.

v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506; Wilmington

Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120,

122. When applying the abuse of discretion standard, a reviewing court is

not free to merely substitute its judgment for that of the trial court. In re

Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, citing Berk v. Matthews

(1990), 53 Ohio St.3d 161, 169.

In re Queen, 4th Dist. Nos. 93CA11 and 93CA12 (July 23, 1993). Washington App. No. 13CA3 32

{¶ 45} In the case at bar, assuming that Juv.R. 32(A), (B), and (C) apply to a

private custody proceeding, we are unable to state that the trial court abused its discretion

by not ordering a social history or a mental or physical examination or by not ordering a

Juv.R. 32(D) investigation. The limited record before us does not indicate that the trial

court acted unreasonably, unconscionably, or arbitrarily by failing to order a social

history, a mental or physical examination or by failing to otherwise order an

investigation.

{¶ 46} Accordingly, based upon the foregoing reasons, we overrule this

J.

Juv.R. 34

{¶ 47} Appellant argues that the trial court erred when applying “Juv.R.

34(A)(B)(C)(D)(E)(G)(I)(J).” Those provisions state:

Where a child has been adjudicated as an abused, neglected, or

dependent child, the court shall not issue a dispositional order until after it

holds a separate dispositional hearing. The dispositional hearing for an

adjudicated abused, neglected, or dependent child shall be held at least one

day but not more than thirty days after the adjudicatory hearing is held.

The dispositional hearing may be held immediately after the adjudicatory

hearing if all parties were served prior to the adjudicatory hearing with all

documents required for the dispositional hearing and all parties consent to

the dispositional hearing being held immediately after the adjudicatory Washington App. No. 13CA3 33

hearing. Upon the request of any party or the guardian ad litem of the

child, the court may continue a dispositional hearing for a reasonable time

not to exceed the time limit set forth in this division to enable a party to

obtain or consult counsel. The dispositional hearing shall not be held more

than ninety days after the date on which the complaint in the case was

filed. If the dispositional hearing is not held within this ninety day period

of time, the court, on its own motion or the motion of any party or the

guardian ad litem of the child, shall dismiss the complaint without

prejudice.

In all other juvenile proceedings, the dispositional hearing shall be

held pursuant to Juv. R. 29(F)(2)(a) through (d) and the ninety day

requirement shall not apply. Where the dispositional hearing is to be held

immediately following the adjudicatory hearing, the court, upon the

request of any party, shall continue the hearing for a reasonable time to

enable the party to obtain or consult counsel.

(B) Hearing procedure

The hearing shall be conducted in the following manner:

(1) The judge or magistrate who presided at the adjudicatory

hearing shall, if possible, preside;

(2) Except as provided in division (I) of this rule, the court may

admit evidence that is material and relevant, including, but not limited to,

hearsay, opinion, and documentary evidence; Washington App. No. 13CA3 34

(3) Medical examiners and each investigator who prepared a social

history shall not be cross-examined, except upon consent of all parties, for

good cause shown, or as the court in its discretion may direct. Any party

may offer evidence supplementing, explaining, or disputing any

information contained in the social history or other reports that may be

used by the court in determining disposition.

(C) Judgment

After the conclusion of the hearing, the court shall enter an

appropriate judgment within seven days. A copy of the judgment shall be

given to any party requesting a copy. In all cases where a child is placed

on probation, the child shall receive a written statement of the conditions

of probation. If the judgment is conditional, the order shall state the

conditions. If the child is not returned to the child's home, the court shall

determine the school district that shall bear the cost of the child's

education and may fix an amount of support to be paid by the responsible

parent or from public funds.

(D) Dispositional Orders

Where a child is adjudicated an abused, neglected, or dependent

child, the court may make any of the following orders of disposition:

(1) Place the child in protective supervision;

(2) Commit the child to the temporary custody of a public or

private agency, either parent, a relative residing within or outside the state, Washington App. No. 13CA3 35

or a probation officer for placement in a certified foster home or approved

foster care;

(3) Award legal custody of the child to either parent or to any other

person who, prior to the dispositional hearing, files a motion requesting

legal custody;

(4) Commit the child to the permanent custody of a public or

private agency, if the court determines that the child cannot be placed with

one of the child's parents within a reasonable time or should not be placed

with either parent and determines that the permanent commitment is in the

best interest of the child;

(5) Place the child in a planned permanent living arrangement with

a public or private agency if the agency requests the court for placement, if

the court finds that a planned permanent living arrangement is in the best

interest of the child, and if the court finds that one of the following exists:

(a) The child because of physical, mental, or psychological

problems or needs is unable to function in a family-like setting;

(b) The parents of the child have significant physical, mental or

psychological problems and are unable to care for the child, adoption is

not in the best interest of the child and the child retains a significant and

positive relationship with a parent or relative;

(c) The child is sixteen years of age or older, has been counseled,

is unwilling to accept or unable to adapt to a permanent placement and is

in an agency program preparing the child for independent living. Washington App. No. 13CA3 36

(E) Protective supervision

If the court issues an order for protective supervision, the court

may place any reasonable restrictions upon the child, the child's parents,

guardian, or any other person including, but not limited to, any of the

(1) Ordering a party within forty-eight hours to vacate the child's

home indefinitely or for a fixed period of time;

(2) Ordering a party, parent, or custodian to prevent any particular

person from having contact with the child;

(3) Issuing a restraining order to control the conduct of any party.

(G) Modification of temporary order

The department of human services or any other public or private

agency or any party, other than a parent whose parental rights have been

terminated, may at any time file a motion requesting that the court modify

or terminate any order of disposition. The court shall hold a hearing upon

the motion as if the hearing were the original dispositional hearing and

shall give all parties and the guardian ad litem notice of the hearing

pursuant to these rules. The court, on its own motion and upon proper

notice to all parties and any interested agency, may modify or terminate

any order of disposition.

(I) Bifurcation; Rules of Evidence Washington App. No. 13CA3 37

Hearings to determine whether temporary orders regarding custody

should be modified to orders for permanent custody shall be considered

dispositional hearings and need not be bifurcated. The Rules of Evidence

shall apply in hearings on motions for permanent custody.

(J) Advisement of rights after hearing

At the conclusion of the hearing, the court shall advise the child of

the child's right to record expungement and, where any part of the

proceeding was contested, advise the parties of their right to appeal.

{¶ 48} As we previously noted, the case at bar did not involve a complaint

alleging that the child is abused, neglected, dependent, delinquent, etc. Thus, the

dispositional hearing provisions applicable to those types of proceedings do not apply to

the case sub judice, which involves a petition for legal custody.

{¶ 49} Accordingly, based upon the foregoing reasons, we overrule this

K.

Juv.R. 36

{¶ 50} Appellant asserts that the trial court erred when applying “Juv.R.

36(A)(C)(1)(2)(3)(4).” Those provisions state:

(A) Court review

A court that issues a dispositional order in an abuse, neglect, or

dependency case may review the child’s placement or custody

arrangement, the case plan, and the actions of the public or private agency

implementing that plan at any time. A court that issues a dispositional Washington App. No. 13CA3 38

order shall hold a review hearing one year after the earlier of the date on

which the complaint in the case was filed or the child was first placed into

shelter care. The court shall schedule the review hearing at the time that it

holds the dispositional hearing. The court shall hold a similar review

hearing no later than every twelve months after the initial review hearing

until the child is adopted, returned to the child's parents, or the court

otherwise terminates the child's placement or custody arrangement. A

hearing pursuant to section 2151.415 of the Revised Code shall take the

place of the first review hearing. The court shall schedule each subsequent

review hearing at the conclusion of the review hearing immediately

preceding the review hearing to be scheduled. Review hearings may also

be conducted by a magistrate.

(C) Agency review

Each agency required to prepare a case plan for a child shall

complete a semiannual administrative review of the case plan no later than

six months after the earlier of the date on which the complaint in the case

was filed or the child was first placed in shelter care. After the first

administrative review, the agency shall complete semiannual

administrative reviews no later than every six months. The agency shall

prepare and file a written summary of the semiannual administrative

review that shall include an updated case plan. If the agency, parents,

guardian, or custodian of the child and guardian ad litem stipulate to the Washington App. No. 13CA3 39

revised case plan, the plan shall be signed by all parties and filed with the

written summary of the administrative review no later than seven days

after the completion of the administrative review. If the court does not

object to the revised case plan, it shall journalize the case plan within

fourteen days after it is filed with the court. If the court does not approve

of the revised case plan or if the agency, parties, guardian ad litem, and the

attorney of the child do not agree to the need for changes to the case plan

and to all of the proposed changes, the agency shall file its written

summary and request a hearing. The court shall schedule a review hearing

to be held no later than thirty days after the filing of the case plan or

written summary or both, if required. The court shall give notice of the

date, time, and location of the hearing to all interested parties and the

guardian ad litem of the child. The court shall take one of the following

actions:

(1) Approve or modify the case plan based upon the evidence

presented;

(2) Return the child home with or without protective supervision

and terminate temporary custody or determine which agency shall have

custody;

(3) If the child is in permanent custody determine what actions

would facilitate adoption;

(4) Journalize the terms of the updated case plan. Washington App. No. 13CA3 40

{¶ 51} Juv.R. 34 applies in abuse, neglect, and dependency cases. As we already

explained, the case at bar is not an abuse, neglect, and dependency case. Thus,

appellant’s assertion that the trial court erred by failing to comply with Juv.R. 34 is

without merit.

{¶ 52} Accordingly, based upon the foregoing reasons, we overrule this

L.

Juv.R. 38

{¶ 53} Appellant contends that the trial court erred when applying “Juv.R.

38(A)(B).” Those provisions state:

(A) Temporary custody

(1) A person with custody of a child may enter into an agreement

with any public or private children services agency giving the agency

temporary custody for a period of up to thirty days without the approval of

the juvenile court. The agency may request the court to grant a thirty day

extension of the original agreement. The court may grant the original

extension if it determines the extension to be in the best interest of the

child. A case plan shall be filed at the same time the request for extension

is filed. At the expiration of the original thirty day extension period, the

agency may request the court to grant an additional thirty day extension.

The court may grant the additional extension if it determines the extension

is in the child's best interest. The agency shall file an updated case plan at

the same time it files the request for additional extension. At the expiration Washington App. No. 13CA3 41

of the additional thirty day extension period, or at the expiration of the

original thirty day extension period if no additional thirty day extension

was requested, the agency shall either return the child to the custodian or

file a complaint requesting temporary or permanent custody and a case

plan.

(2) Notwithstanding division (A)(1) of this rule, the agreement

may be for a period of sixty days if executed solely for the purpose of

obtaining the adoption of a child less than six months of age. The agency

may request the court to extend the temporary custody agreement for

thirty days. A case plan shall be filed at the same time the request for

extension is filed. At the expiration of the thirty day extension, the agency

shall either return the child to the child’s custodian or file a complaint with

the court requesting temporary or permanent custody and a case plan.

(B) Permanent custody

(1) A person with custody of a child may make an agreement with

court approval surrendering the child into the permanent custody of a

public children service agency or private child placing agency. A public

children service agency shall request and a private child placing agency

may request the juvenile court of the county in which the child had

residence or legal settlement to approve the permanent surrender

agreement. The court may approve the agreement if it determines it to be

in the best interest of the child. The agency requesting the approval shall Washington App. No. 13CA3 42

file a case plan at the same time it files its request for approval of the

permanent surrender agreement.

(2) An agreement for the surrender of permanent custody of a child

to a private service agency is not required to be approved by the court if

the agreement is executed solely for the purpose of obtaining an adoption

of a child who is less than six months of age on the date of the execution

of the agreement.

One year after the agreement is entered and every subsequent

twelve months after that date, the court shall schedule a review hearing if a

final decree of adoption has not been entered for a child who is the subject

of an agreement for the surrender of permanent custody.

{¶ 54} We are unable to discern an assignment of error from appellant’s citation

to this rule. Accordingly, we summarily overrule this assignment of error.

M.

Juv.R. 11 and 14

{¶ 55} Appellant states in her “conclusion:” “Modify custody granting April

King physical custody, WVDHHR Children Services temporary custody, concurrent

jurisdiction of courts pending propper [sic] disposition of propper [sic] proceedings.”

She further requests the following motions: “Juv.R. 11(A)(B)(C)(D)[;] Juv.R. 14(A)(B)[;

and] Juv.R. 14(6)(B) [sic.]”

{¶ 56} “As an appellate court, we [ordinarily] do not consider arguments that the

trial court did not address.” State ex rel. A.F. Krainz Co., L.L.C. v. Jackson, 8th Dist.

Cuyahoga No. 98104, 2012-Ohio-5072, ¶12, citing Roush v. Butera, 8th Dist. No. 97463, Washington App. No. 13CA3 43

2012–Ohio–2506, and Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 N.E.2d 138

(1992). As we explained in Cruse v. Finley, 4th Dist. Lawrence App. No. 12CA2, 2012-

Ohio-5465, ¶20:

‘In light of the Ohio Supreme Court's determination in Murphy v.

Reynoldsburg (1992), 65 Ohio St.3d 356, 360, 604 N.E.2d 138, we, as an

appellate court, should not first consider an argument that the trial court

did not address.’ Lang v. Holly Hill Motel, Inc., 4th Dist. No. 05CA6,

2005–Ohio–6766, ¶ 22. The Murphy court stated the following: ‘A

reviewing court, even though it must conduct its own examination of the

record, has a different focus than the trial court. If the trial court does not

consider all the evidence before it, an appellate court does not sit as a

reviewing court, but, in effect, becomes a trial court.’ Murphy at 360.

{¶ 57} Consequently, because the trial court did not consider whether to grant

appellant’s Juv.R. 11 and Juv.R. 14 motions, we decline to do so in the first instance.

IV.

CONCLUSION

{¶ 58} Accordingly, based upon the foregoing reasons, we overrule all of

appellant’s assignments of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED. Washington App. No. 13CA3 44

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay 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 Washington 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.

Harsha, J.: Concurs in Judgment Only as to Subsection M; Concurs in Judgment and Opinion as to the remainder of the Opinion.

McFarland, P.J.: Concurs in Judgment Only.

For the Court

By: Marie Hoover, 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.