In re X.P.

• Court: Ohio Court of Appeals
• Decided: March 25, 2026
• Docket: 25CA4149
• Status: Published

Opinion

[Cite as In re X.P., 2026-Ohio-1222.]

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

IN RE: X.P. : CASE NO. 25CA4149 I.R. : Adjudicated Neglected/ Dependent Children. : DECISION & JUDGMENT ENTRY

: ________________________________________________________________

APPEARANCES:

Lisa Rothwell, West Union, Ohio, for appellant.

Shane A. Tieman, Scioto County Prosecuting Attorney, and Elisabeth M. Howard, Assistant Scioto County Prosecuting Attorney, Portsmouth, Ohio, for appellee. ________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT, JUVENILE DIVISION DATE JOURNALIZED:3-25-26 ABELE, J.

{¶1} This is an appeal from a Scioto County Common Pleas

Court, Juvenile Division, judgment that granted Scioto County

Children Services, appellee herein, permanent custody of four-

year-old I.R.1

{¶2} Appellant, D.T., the child’s biological father, assigns

the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN NOT CONDUCTING AN ADJUDICATORY HEARING WITHIN THE REQUIRED STATUTORY PERIOD, PURSUANT TO R.C. 2151.35(B)(1).”

This appeal does not involve X.P., the other child listed in the case 1

caption. Scioto 25CA4149 2

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY OF THE CHILD, PURSUANT TO R.C. 2151.414(A)(2).”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN FAILING TO RECORD ITS ADJUDICATION AND DISPOSITIONAL HEARINGS, PURSUANT TO JUVENILE RULE 37.”

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE BEST INTERESTS OF [THE] CHILD TO PERMANENTLY TERMINATE THE PARENTAL RIGHTS OF HIS PARENTS AND PLACE HIM IN THE PERMANENT CUSTODY OF SCIOTO COUNTY JOB AND FAMILY SERVICES, CHILDREN SERVICES DIVISION.”

FIFTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND BY CLEAR AND CONVINCING EVIDENCE THAT [THE] CHILD COULD NOT BE PLACED WITH HIS FATHER WITHIN A REASONABLE TIME OR SHOULD NOT BE PLACED WITH HIS FATHER.”

SIXTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT THE SCIOTO COUNTY DEPARTMENT OF JOBS AND FAMILY SERVICES MADE REASONABLE EFFORTS TO REUNIFY [THE] FATHER WITH HIS CHILD.”

SEVENTH ASSIGNMENT OF ERROR:

“THE GUARDIAN AD LITEM FAILED TO COMPETENTLY PERFORM HER DUTIES PURSUANT TO SUPERINTENDENCE RULE 48. THUS, THE COURT ABUSED ITS DISCRETION IN TAKING HER REPORT Scioto 25CA4149 3

INTO EVIDENCE AND ALLOWING HER TO SUBMIT TESTIMONY AND A BEST INTEREST RECOMMENDATION.”

EIGHTH ASSIGNMENT OF ERROR:

“THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.”

{¶3} In October 2021, appellee received a referral that the

child’s mother had been arrested for shoplifting and admitted

that she recently used “ice.” At the time of the mother’s

arrest, X.P. had been with the mother, and I.R. had been at home

with the putative father, L.R. When a caseworker subsequently

visited the home to check on I.R., L.R. consented to a drug

screen and tested positive for methamphetamine, oxycodone,

benzodiazepine, and buprenorphine.

{¶4} Shortly thereafter, appellee filed a complaint that

alleged I.R. to be “neglected/dependent.” Appellee requested an

ex parte order to place the child in its temporary custody

pending adjudication and disposition, and further requested

temporary custody of the child. The trial court subsequently

granted appellee emergency, temporary custody of the child.

{¶5} On January 14, 2022, the trial court adjudicated the

child “neglected/dependent,” and, on January 26, 2022, the court

entered a dispositional order that placed the child in

appellee’s temporary custody. Scioto 25CA4149 4

{¶6} A short time later, the parties learned that L.R. is

not I.R.’s biological father. The mother subsequently advised

appellant that she believed that he is the child’s father.

Additionally, the mother filed a motion that asked the trial

court to order appellant to undergo genetic testing to determine

if he is I.R.’s biological father. On June 3, 2022, the court

granted this motion.

{¶7} More than one year later, on October 6, 2023, the trial

court entered a nunc pro tunc order to correct “a clerical

error” in its June 3, 2022 order. The court stated that its

previous entry “failed to detail the needed participation of all

parties with the Scioto County Child Support Enforcement Agency

(CSEA) to complete [the genetic] testing.”

{¶8} In January 2024, appellant obtained a DNA test, which

later confirmed that he is I.R.’s biological father.

{¶9} On February 23, 2024, appellee filed a motion that

asked the trial court to modify the disposition to permanent

custody. Appellee alleged that the child had been in its

temporary custody for 12 or more months of a consecutive 22-

month period and that placing the child in its permanent custody

would be in his best interest.

{¶10} On July 16, 2024, the trial court held a hearing to

consider appellee’s permanent custody motion. At the hearing,

the family’s caseworker, Timothy Secoy, testified that after the Scioto 25CA4149 5

children entered appellee’s temporary custody, appellee

developed a case plan that required the mother to (1) obtain an

alcohol and drug assessment and follow any treatment

recommendations, (2) obtain a mental health assessment and

follow any treatment recommendations, (3) submit to random drug

screens, and (4) complete parenting classes. The mother entered

some drug treatment programs, but she did not remain drug-free.

{¶11} The evidence reveals that the mother consistently

visited the child and interacted appropriately with him during

the visits. Appellee later offered the mother extended visits

and, eventually, unsupervised visits. During the period of

unsupervised visits, the mother unfortunately relapsed. Thus,

the visits returned to supervised visits at the agency.2

{¶12} At the time of the permanent custody hearing, the

mother did not have independent housing, but instead lived with

her parents. Secoy indicated that the mother’s parents would

not be appropriate caregivers for the child, but he did not

provide the reason appellee deemed appellant’s parents

inappropriate. Secoy stated that he had not been able to locate

the records.

{¶13} Secoy next explained appellant’s involvement in the

case. In June 2022, appellant contacted Secoy to state that he

2 Secoy could not recall the dates when appellant had unsupervised visits with the children or when she relapsed. Scioto 25CA4149 6

believed that he is I.R.’s biological father. The next month,

Secoy met with appellant and gave him the paperwork needed to

complete a drug screen and a background check. Secoy also

advised appellant to complete parenting classes. He further

informed appellant that “if he wanted to become involved in the

case that he needed to come down here to Juvenile Court, request

an attorney, as well as go get a DNA test.”

{¶14} In August 2022, appellant visited the agency and

dropped off a certificate that indicated he had completed

parenting classes. Secoy did not have any further contact with

appellant until June 27, 2023, when appellant next contacted

him. During that approximately 11-month period, appellant did

not have any supervised visits with the child, but appellant

reported that he saw the child when the mother had unsupervised

visits.

{¶15} In July 2023, Secoy visited appellant’s home to

perform a safety audit. Secoy stated that appellant had been

remodeling the home, but the home otherwise appeared to be free

of safety hazards. Secoy asked appellant to resolve the few

safety hazards that the remodeling posed and to obtain bedding

for the child’s room. When Secoy returned to the home,

appellant had resolved the safety issues.

{¶16} Beginning in October 2023, appellee offered appellant

supervised visits with the child that occurred during the same Scioto 25CA4149 7

time as the mother’s visits. Appellant regularly attended the

visits until May 2024, when “he was in the potential jeopardy of

losing his job.”

{¶17} In June 2024, appellant asked about having a weekend

visit with the child or scheduling a different time to visit the

child. Secoy informed appellant that appellee “would not be

moving forward with expanding visitations,” given that appellee

had filed a permanent custody motion.

{¶18} Appellee did not seek to place the child with

appellant due to appellant’s approximately one-year delay in

following Secoy’s instructions to become involved in the case,

such as obtaining a DNA test. Secoy further stated that

appellant’s interaction with the child was “very hit and miss.”

He explained that appellant “[s]ometimes [was] attentive” to the

child, but “other times,” he was “very standoffish” and did not

seem to “know how to appropriately interact.” Secoy did not

observe any bond between appellant and the child.

{¶19} Secoy also explained that child is doing well in his

foster home. The child has been with the same foster family

since the end of October 2021, when he was about 14 months of

age. The child is bonded with his foster family and refers to

the foster parents as “mom” and “dad.” The child also interacts

well with the other children in the home. Scioto 25CA4149 8

{¶20} After Secoy’s testimony, the court continued the

hearing until January 3, 2025.

{¶21} When the hearing resumed, the child’s foster mother

testified that the child is doing well in her home and that she

and her husband would be willing to adopt the child if the trial

court were to grant appellee permanent custody.

{¶22} Margaret McCue testified that she is a behavioral

health therapist and counseled the child. McCue reported that

the child has “[s]evere ADHD” and “difficulty regulating his

emotions.” She has been helping him learn some techniques to

help him better regulate his emotions.

{¶23} McCue indicated that the child interacts well with the

foster family. She believes that the child thinks of “his

foster parents as his parents.” When she has spoken with the

child about his visits with the mother, he “talks about [X.P.,

his half-brother] more than anything.” After McCue’s testimony,

appellee rested.

{¶24} Appellant presented testimony from his 18-year-old

daughter who stated that appellant obtained custody of her when

she was around 10 or 11 years of age, and she lived with him

until she completed high school. The daughter reported that

appellant was a great father and provided for all of her needs.

{¶25} The daughter additionally indicated that she

interacted with the child until appellee removed him from Scioto 25CA4149 9

appellant’s home. She stated that she was with the child “all

the time” “until he was like one.” The daughter further

asserted that, after appellee removed the child from the

mother’s home, she and appellant visited the child when the

child visited the mother at her home. The daughter testified

that appellant helped the child with anything that he needed or

wanted. She believed that appellant could provide proper care

for the child.

{¶26} Appellant testified that he and the mother were in a

relationship until December 2019. A month or two later, he

heard that the mother was pregnant. Appellant asked the mother

about the pregnancy, and she “swore up and down” that the baby

was not his baby. Appellant nevertheless thought that he might

be the child’s father.

{¶27} In April 2022, the mother told appellant that he was

the child’s father. Appellant informed the mother that he

“pretty much already knew” and “was just waiting for it to come

out.” Appellant explained that because he and the mother ended

their relationship in December 2019, he suspected that the

child, who was born in August 2020, is his child.

{¶28} In October 2023, appellant started to have supervised

visits with the child. Before then, he had visited the child

when the child visited the mother’s home. Scioto 25CA4149 10

{¶29} When on cross-examination appellee’s counsel asked

appellant why he did not more vigorously pursue custody of the

child after he learned in April 2022 that he likely was the

child’s father, appellant explained that he thought that he

needed “to go through the proper procedures” to see the child.

Appellant agreed, however, that, after he first contacted Secoy

in June 2022, he did not again contact Secoy to inquire about

the status of the case until June 2023.

{¶30} The child’s guardian ad litem (GAL) testified and

recommended that the court place the child in appellee’s

permanent custody. She observed the child in his foster home

and stated that he is “thriving.”

{¶31} The GAL expressed concerns about appellant’s lack of

follow-through once he learned that he is the child’s father.

She further indicated that appellant “knew at conception that

[the child] could have been his child.” The GAL believed that

appellant could have been “more aggressive in making things

happen to see his son.” The GAL thought that appellant had

missed “very formative years” with the child.

{¶32} After the hearing, appellant filed a written closing

statement. He asked the trial court to deny appellee’s

permanent custody motion due to its alleged failure to make

reasonable efforts to place the child in his care. Appellant

argued that appellee failed to explain why the child could not Scioto 25CA4149 11

be placed with him.

{¶33} On July 9, 2025, the trial court granted appellee

permanent custody of the child. The trial court found that the

child had been in appellee’s temporary custody for 12 or more

months of a consecutive 22-month period and that placing him in

appellee’s permanent custody is in his best interest. The court

noted that the child had been in appellee’s continuous,

temporary custody for more than two years and that neither

parent appeared to dispute this fact.

{¶34} Regarding the parents’ involvement in the case, the

trial court found that, although the mother attempted to obtain

treatment for her substance abuse, she continued to test

positive for methamphetamines, amphetamines, oxycodone,

buprenorphine, and THC. The court additionally noted that the

mother failed to maintain suitable housing or stable employment.

{¶35} The trial court observed that, in June 2022, appellant

contacted appellee to ask about becoming involved in the case.

At that time, the caseworker spoke with appellant and gave him

instructions so that appellee could add him as a party to the

case. The caseworker did not, however, hear from appellant

until about one year later, on June 27, 2023. Shortly

thereafter, the caseworker visited appellant’s home for a safety

audit. The audit indicated that some minor repairs needed to be

made. After appellant made the repairs, appellee started the Scioto 25CA4149 12

process to begin visits.

{¶36} The trial court determined that appellant “was aware

of this case and the needs of [the child]. He just ignored them

until permanent custody became an issue.” The court stated that

appellant “knew there was a possibility that I.R. was his

biological son because [he] had contact with [the mother] and

the minor child informally before I.R. was removed.”

{¶37} With respect to the child’s interaction and

interrelationship with others, the trial court noted that the

caseworker testified that the child had not developed a bond

with appellant. The court further observed that (1) on October

23, 2023, appellant had his first visit with the child, (2) over

the next year, appellant’s visits with the child “were

sporadic,” and (3) as of July 16, 2024, appellant had attended

about eight visits with the child.

{¶38} The trial court next considered the child’s

interaction and interrelationship with the foster family. The

court pointed out that the child’s foster mother stated that the

child has been placed in her home since the end of October 2021.

The court found that the child “has flourished” while in the

foster home and “has a strong bond with her husband and her

mother.” The court also indicated that the foster mother

“shares a strong and loving bond with the minor child.” The

court additionally recognized that I.R.’s therapist likewise Scioto 25CA4149 13

testified that he had a strong bond with the foster parents.

{¶39} The trial court next considered the child’s wishes.

The court noted that the child’s GAL recommended that the court

place the child in appellee’s permanent custody.

{¶40} The trial court next reviewed the child’s custodial

history and observed that the child has been in appellee’s

month period.

{¶41} The trial court further determined that the child

needs a legally secure permanent placement and that he cannot

achieve this type of placement without granting appellee

permanent custody. The court found the following facts

supported its conclusion: (1) the mother failed to complete

substance abuse treatment and failed to maintain sobriety; (2)

appellant “has failed to build a meaningful bond with his son”;

and (3) the child has “stabilized” while living with the foster

family.

{¶42} The trial court concluded that continuing the child

“in a state of uncertainty is contrary to [his] best

interest[].” The court emphasized that the child had been in

foster care for an “extensive length of time” and has developed

“evident bond[s] with [his] foster famil[y].” The court thus

determined that placing the child in appellee’s permanent

custody would serve his best interest and granted appellee Scioto 25CA4149 14

permanent custody of the child. This appeal followed.

I {¶43} In his first assignment of error, appellant asserts

that the trial court erred by failing to conduct an adjudicatory

hearing within 30 days after the date on which appellee filed

the complaint.3

{¶44} R.C. 2151.28 contains the time guidelines for

adjudicatory hearings. The statute provides as follows:

(A) No later than seventy-two hours after the complaint is filed, the court shall fix a time for an adjudicatory hearing. The court shall conduct the adjudicatory hearing within one of the following periods of time: . . . . (2) If the complaint alleged that the child is an abused, neglected, or dependent child, the adjudicatory hearing shall be held no later than thirty days after the complaint is filed, except that, for good cause shown, the court may continue the adjudicatory hearing for either of the following periods of time: (a) For ten days beyond the thirty-day deadline to allow any party to obtain counsel; (b) For a reasonable period of time beyond the thirty-day deadline to obtain service on all parties or any necessary evaluation, except that the adjudicatory hearing shall not be held later than sixty days after the date on which the complaint was filed.

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

proceedings, appellant did not object to the trial court’s

alleged failure to comply with the time period set forth in R.C.

2151.28(A). “Ohio courts have routinely held that a party may

3 We observe that appellant’s brief does not comply with App.R. 19(A),

which requires briefs to use “double spacing between each line of text except quoted matter which shall be single spaced.” Scioto 25CA4149 15

implicitly or expressly waive the right to an adjudication

hearing within the time period stated in R.C. 2151.28(A)(2) . .

. .” In re J.J., 2007-Ohio-535, ¶ 23 (8th Dist.). For

instance, a party implicitly waives the issue if the party fails

to object to the lack of a timely hearing. See In re A.P.,

2006-Ohio-2717, ¶ 13 (12th Dist.) (stating that a party

implicitly waives the issue if the party “fails to move for

dismissal when it becomes the party’s right to do so”).

{¶46} In the case at bar, appellant’s failure to object to

the trial court’s alleged noncompliance with the time periods

set forth in R.C. 2151.28(A)(2) means that he implicitly waived,

i.e., forfeited, the issue for purposes of appeal. See

generally In re T.D.S., 2024-Ohio-595, ¶ 36, quoting State v.

Wintermeyer, 2019-Ohio-5156, ¶ 10 (“a party ordinarily may not

present an argument on appeal that it failed to raise below”);

State v. Rogers, 2015-Ohio-2459, ¶ 21 (“In contrast to waiver,

forfeiture is the failure to timely assert a right or object to

an error . . . .”). We thus do not believe that appellant

preserved the issue for purposes of appeal.

{¶47} Appellate courts may, however, in certain

circumstances, consider a forfeited argument using a plain-error

analysis. See Risner v. Ohio Dept. of Nat. Resources, Ohio Div.

of Wildlife, 2015-Ohio-3731, ¶ 27 (reviewing court has

discretion to consider forfeited constitutional challenges); Scioto 25CA4149 16

State v. Pyles, 2015-Ohio-5594, ¶ 82 (7th Dist.), quoting State

v. Jones, 2008-Ohio-1541, ¶ 65 (7th Dist.) (the plain-error

doctrine “‘is a wholly discretionary doctrine’”); see also

Rosales-Mireles v. United States, 585 U.S. 129, 135 (2018)

(court has discretion whether to recognize plain error).

{¶48} For the plain-error doctrine to apply, the party

claiming error must establish (1) that “‘an error, i.e., a

deviation from a legal rule” occurred, (2) that the error was

“‘an “obvious” defect in the trial proceedings,’” and (3) that

this obvious error affected substantial rights, i.e., the error

“‘must have affected the outcome of the trial.’” Rogers, 2015-

Ohio-2459, at ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21,

27 (2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209

(1982) (“A ‘plain error’ is obvious and prejudicial although

neither objected to nor affirmatively waived which, if

permitted, would have a material adverse [e]ffect on the

character and public confidence in judicial proceedings.”).

{¶49} The plain-error doctrine is not, however, readily

invoked in civil cases. Instead, an appellate court “must

proceed with the utmost caution” when applying the plain-error

doctrine in civil cases. Goldfuss v. Davidson, 79 Ohio St.3d

116, 121 (1997). The Ohio Supreme Court has set a “very high

standard” for invoking the plain-error doctrine in a civil case.

Perez v. Falls Financial, Inc., 87 Ohio St.3d 371, 375 (2000). Scioto 25CA4149 17

Thus, “the doctrine is sharply limited to the extremely rare

case involving exceptional circumstances where the error,” to

which no objection was made at the trial court, seriously

affects the basic fairness, integrity, or public reputation of

the judicial process, thereby “challenging the legitimacy of the

underlying judicial process itself.” (Emphasis in original.)

Goldfuss, 79 Ohio St.3d at 122-23; accord Jones v. Cleveland

Clinic Found., 2020-Ohio-3780, ¶ 24. Moreover, appellate courts

“‘should be hesitant to decide [forfeited errors] for the reason

that justice is far better served when it has the benefit of

briefing, arguing, and lower court consideration before making a

final determination.’” Risner, 2015-Ohio-3731, at ¶ 28, quoting

Sizemore v. Smith, 6 Ohio St.3d 330, 332, fn. 2 (1983); accord

Mark v. Mellott Mfg. Co., Inc., 106 Ohio App.3d 571, 589 (4th

Dist. 1995) (“Litigants must not be permitted to hold their

arguments in reserve for appeal, thus evading the trial court

process.”). Additionally, courts “should never” apply the

plain-error doctrine “to reverse a civil judgment . . . to allow

litigation of issues which could easily have been raised and

determined in the initial trial.” Goldfuss, 79 Ohio St.3d at

122.

{¶50} In the case sub judice, appellant did not argue plain

error. Furthermore, appellant has not cited any authority to

support the proposition that a trial court’s failure to comply Scioto 25CA4149 18

with the R.C. 2151.28(A)(2) time periods warrants a reversal of

a trial court’s judgment granting a children services agency

permanent custody of a child. Indeed, R.C. 2151.28(K) states,

The failure of the court to hold an adjudicatory hearing within any time period set forth in division (A)(2) of this section does not affect the ability of the court to issue any order under this chapter and does not provide any basis for attacking the jurisdiction of the court or the validity of any order of the court.

Consequently, assuming, arguendo, that the trial court erred by

failing to hold the adjudicatory hearing within the time period

set forth in R.C. 2151.28(A)(2), appellant cannot establish that

the error affected his substantial rights.

{¶51} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

{¶52} In his second assignment of error, appellant asserts

that the trial court erred by granting appellee permanent

custody of the child when it did not hold the permanent custody

hearing within 120 days after appellee filed its permanent

custody motion. He further complains that the court did not

issue its permanent custody decision within 200 days after

appellee filed its motion.

{¶53} R.C. 2151.414(A)(2) states that a trial court “shall”

hold a hearing regarding a permanent custody motion no later

than 120 “days after the agency files the motion for permanent Scioto 25CA4149 19

custody, except that, for good cause shown, the court may

continue the hearing for a reasonable period of time beyond the

one-hundred-twenty-day deadline.” The statute further provides

that the trial court “shall issue an order that grants, denies,

or otherwise disposes of the motion for permanent custody, and

journalize the order, not later than [200] days after the agency

files the motion.”

{¶54} In the case at bar, we note that, during the trial

court proceedings, appellant did not object to the trial court’s

alleged failure to comply with these time requirements. We

therefore do not believe that appellant preserved the issue for

purposes of appeal.

{¶55} Moreover, appellant has not argued plain error, or

cited any authority to support the proposition that a trial

court’s failure to comply with these time periods warrants a

reversal of a trial court’s judgment granting a children

services agency permanent custody of a child. In fact, R.C.

2151.414(A)(2), like R.C. 2151.28(A)(2), states that a court’s

failure to comply with the time periods set forth above “does

not affect the authority of the court to issue any order under

this chapter and does not provide any basis for attacking the

jurisdiction of the court or the validity of any order of the

court.” Thus, even if the trial court obviously erred by

failing to hold the adjudicatory hearing within the time period Scioto 25CA4149 20

set forth in R.C. 2151.28(A)(2), appellant cannot establish that

{¶56} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶57} In his third assignment of error, appellant asserts

that the trial court erred by failing to record the adjudicatory

and dispositional hearings.

{¶58} Juv.R. 37(A) requires a juvenile court to “make a

record of adjudicatory and dispositional proceedings in abuse,

neglect, dependent, unruly, and delinquent cases; permanent

custody cases; and proceedings before magistrates.”

{¶59} As with his previous two assignments of error,

however, appellant did not raise this argument during the trial

court proceeding. He therefore forfeited the issue for purposes

of appeal. Moreover, appellant has not made any argument, or

cited any authority to support an argument, that a trial court’s

failure to record adjudicatory or dispositional hearings

warrants a reversal of a trial court’s judgment modifying a

disposition from temporary custody to permanent custody.4

4 We further observe that an appellant generally waives any argument

regarding a trial court’s failure to comply with the recording requirement when the appellant fails to (1) “invoke the procedures of App.R. 9(C) or 9(E)” or (2) “attempt to reconstruct the missing portions of the record.” In re B.E., 2004-Ohio-3361, ¶ 15. Scioto 25CA4149 21

{¶60} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error.

IV.

{¶61} In his fourth assignment of error, appellant asserts

that the trial court “erred and abused its discretion” by

determining that granting appellee permanent custody of the

child would be in the child’s best interest.

A

{¶62} Generally, a reviewing court will not disturb a trial

court’s permanent custody decision unless the decision is

against the manifest weight of the evidence.5 E.g., In re B.E.,

2014-Ohio-3178, ¶ 27 (4th Dist.); In re R.S., 2013-Ohio-5569, ¶

29 (4th Dist.); accord In re Z.C., 2023-Ohio-4703, ¶ 1.

“Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’”

Eastley v. Volkman, 2012-Ohio-2179, ¶ 12, quoting State v.

5 We observe that appellant’s assignment of error states that the court “abused its discretion” when it determined that placing the child in appellee’s permanent custody would serve his best interest. As we have noted in the past, however, the abuse-of-discretion standard of review does not apply to an appellate court’s review of a trial court’s permanent custody judgment. See In re B.S., 2024-Ohio-5183, ¶ 38 (4th Dist.), citing In re Z.C., 2023-Ohio-4703, ¶ 18. Scioto 25CA4149 22

Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Black’s Law

Dictionary 1594 (6th Ed.1990).

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

court’s permanent custody decision is against the manifest

weight of the evidence, the court “‘“weighs the evidence and all

reasonable inferences, considers the credibility of witnesses

and determines whether in resolving conflicts in the evidence,

the [fact finder] clearly lost its way and created such a

manifest miscarriage of justice that the [judgment] must be

reversed and a new trial ordered.”’” Eastley, 2012-Ohio-2179,

at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115

(9th Dist. 2001), quoting Thompkins, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.

1983); accord In re Pittman, 2002-Ohio-2208, ¶ 23-24 (9th

Dist.). We further observe, however, that issues that relate to

the credibility of witnesses and the weight to be given the

evidence are primarily for the trier of fact. As the court

explained in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80

(1984):

The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. Scioto 25CA4149 23

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

credibility is “crucial in a child custody case, where there may

be much evident in the parties’ demeanor and attitude that does

not translate to the record well.” Davis v. Flickinger, 77 Ohio

St.3d 415, 419 (1997); accord In re Christian, 2004-Ohio-3146, ¶

7 (4th Dist.).

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

reviewing a permanent custody decision under the manifest weight

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

findings . . . were supported by clear and convincing evidence.”

In re K.H., 2008-Ohio-4825, ¶ 43.

“Clear and convincing evidence” is

the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.

In re Estate of Haynes, 25 Ohio St.3d 101, 103-04 (1986). In

determining whether a trial court based its decision upon clear

and convincing evidence, “a reviewing court will examine the

record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.”

State v. Schiebel, 55 Ohio St.3d 71, 74 (1990); accord In re

Holcomb, 18 Ohio St.3d 361, 368 (1985), citing Cross v. Ledford,

161 Ohio St. 469 (1954) (“Once the clear and convincing standard Scioto 25CA4149 24

has been met to the satisfaction of the [trial] court, the

reviewing court must examine the record and determine if the

trier of fact had sufficient evidence before it to satisfy this

burden of proof.”); In re Adoption of Lay, 25 Ohio St.3d 41, 42-

43 (1986); compare In re Adoption of Masa, 23 Ohio St.3d 163,

165 (1986) (whether a fact has been “proven by clear and

convincing evidence in a particular case is a determination for

the [trial] court and will not be disturbed on appeal unless

such determination is against the manifest weight of the

evidence”).

{¶66} Thus, if a children services agency presented

competent and credible evidence upon which the trier of fact

reasonably could have formed a firm belief that permanent

custody is warranted, the court’s decision is not against the

manifest weight of the evidence. In re R.M., 2013-Ohio-3588, ¶

62 (4th Dist.); see also In re R.L., 2012-Ohio-6049, ¶ 17 (2d

Dist.), quoting In re A.U., 2008-Ohio-187, ¶ 9 (2d Dist.) (“A

reviewing court will not overturn a court’s grant of permanent

custody to the state as being contrary to the manifest weight of

the evidence ‘if the record contains competent, credible

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

conviction that the essential statutory elements . . . have been

established.’”). Scioto 25CA4149 25

{¶67} Once a reviewing court finishes its examination, the

judgment may be reversed only if it appears that the fact

finder, when resolving the conflicts in evidence, “‘clearly lost

its way and created such a manifest miscarriage of justice that

the [judgment] must be reversed and a new trial ordered.’”

Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d

at 175. A reviewing court should find a trial court’s permanent

custody judgment against the manifest weight of the evidence

only in the “‘exceptional case in which the evidence weighs

heavily against the [decision].’” Id., quoting Martin, 20 Ohio

App.3d at 175; see Black’s (12th ed. 2024) (the phrase “manifest

weight of the evidence” “denotes a deferential standard of

review under which a verdict will be reversed or disregarded

only if another outcome is obviously correct and the verdict is

clearly unsupported by the evidence”).

B

{¶68} Courts must recognize that “parents’ interest in the

care, custody, and control of their children ‘is perhaps the

oldest of the fundamental liberty interests recognized by th[e

United States Supreme] Court.’” In re B.C., 2014-Ohio-4558, ¶

19, quoting Troxel, 530 U.S. at 65. Indeed, “the right to raise

one’s children is an ‘essential’ and ‘basic’ civil right.” In

re Murray, 52 Ohio St.3d 155, 157 (1990), quoting Stanley v.

Illinois, 405 U.S. 645, 651 (1972); accord In re Hayes, 79 Ohio Scioto 25CA4149 26

St.3d 46, 48 (1997); see Santosky v. Kramer, 455 U.S. 745, 753

(1982) (“natural parents have a fundamental right to the care

and custody of their children”). Thus, “parents who are

‘suitable’ have a ‘paramount’ right to the custody of their

children.” B.C. at ¶ 19, quoting In re Perales, 52 Ohio St.2d

89, 97 (1977), citing Clark v. Bayer, 32 Ohio St. 299, 310

(1877); Murray, 52 Ohio St.3d at 157.

{¶69} A parent’s rights, however, are not absolute. In re

D.A., 2007-Ohio-1105, ¶ 11. Rather, “‘it is plain that the

natural rights of a parent . . . are always subject to the

ultimate welfare of the child, which is the polestar or

controlling principle to be observed.’” In re Cunningham, 59

Ohio St.2d 100, 106 (1979), quoting In re R.J.C., 300 So.2d 54,

58 (Fla. App. 1974). Thus, the State may terminate parental

rights when a child’s best interest demands such termination.

D.A. at ¶ 11.

{¶70} Before a court may award a children services agency

permanent custody of a child, R.C. 2151.414(A)(1) requires the

court to hold a hearing. The primary purpose of the hearing is

to allow the court to determine whether the child’s best

interests would be served by permanently terminating the

parental relationship and by awarding permanent custody to the

agency. Id. Additionally, when considering whether to grant a

children services agency permanent custody, a trial court should Scioto 25CA4149 27

consider the underlying purposes of R.C. Chapter 2151: “to care

for and protect children, ‘whenever possible, in a family

environment, separating the child from the child’s parents only

when necessary for the child’s welfare or in the interests of

public safety.’” In re C.F., 2007-Ohio-1104, ¶ 29, quoting R.C.

2151.01(A).

C

{¶71} A children services agency may obtain permanent

custody of a child by (1) requesting it in the abuse, neglect,

or dependency complaint under R.C. 2151.353, or (2) filing a

motion under R.C. 2151.413 after obtaining temporary custody.

In this case, appellee sought permanent custody by filing a

motion under R.C. 2151.413. When an agency files a permanent

custody motion under R.C. 2151.413, R.C. 2151.414 applies. R.C.

2151.414(A).

{¶72} R.C. 2151.414(B)(1) permits a trial court to grant

permanent custody of a child to a children services agency if

the court determines, by clear and convincing evidence, that the

child’s best interest would be served by the award of permanent

custody and that any one of the following factors applies:

(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or has not been in the Scioto 25CA4149 28

temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents. (b) The child is abandoned. (c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody. (d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period . . . . (e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.

{¶73} In the case at bar, appellant challenges the trial

court’s finding under R.C. 2151.414(B)(1)(a) through (e).

Appellant recognizes that the court found that the child had

been in appellee’s temporary custody for 12 or more months of a

consecutive 22-month period, but he claims that it is “quite

hypocritical to consider this time frame while ignoring the

statutory time frame which the agency and the Court ignored

repeatedly.” He further contends that the trial court failed to

consider “that the child could be placed with [him] within a

reasonable period of time.”

{¶74} Appellant apparently believes that the trial court

should have found that, even if R.C. 2151.414(B)(1)(d) applied, Scioto 25CA4149 29

it nonetheless could have placed the child with him within a

reasonable time; and thus, the court should not have found that

one of the R.C. 2151.414(B)(1)(a) through (e) factors applied.

Appellant, however, cites no authority to support this

proposition. Additionally, his argument conflicts with the

plain language of the statute. We therefore reject this

assertion.

{¶75} Appellant next contends that the trial court did not

properly analyze the best interest factors. He asserts that his

daughter testified that appellant possessed the ability to

parent the child. Appellant further argues that he can provide

the child with a legally secure permanent placement.

{¶76} R.C. 2151.414(D) lists the factors that a trial court

considers when determining whether permanent custody will serve

a child’s best interest. The statute directs a trial court to

consider “all relevant factors,” as well as specific factors, to

determine whether a child’s best interest will be served by

granting a children services agency permanent custody. The

listed factors include: (1) the child’s interaction and

interrelationship with the child’s parents, siblings, relatives,

foster parents and out-of-home providers, and any other person

who may significantly affect the child; (2) the child’s wishes,

as expressed directly by the child or through the child’s Scioto 25CA4149 30

guardian ad litem, with due regard for the child’s maturity; (3)

the child’s custodial history; (4) the child’s need for a

legally secure permanent placement and whether that type of

placement can be achieved without a grant of permanent custody

to the agency; and (5) whether any factors listed under R.C.

2151.414(E)(7) to (11) apply.

{¶77} Courts that must determine whether a grant of

permanent custody to a children services agency will promote a

child’s best interest must consider “all relevant [best

interest] factors,” as well as the “five enumerated statutory

factors.” C.F., 2007-Ohio-1104, at ¶ 57, citing In re Schaefer,

2006-Ohio-5513, ¶ 56; accord In re C.G., 2008-Ohio-3773, ¶ 28

(9th Dist.); In re N.W., 2008-Ohio-297,¶ 19 (10th Dist.).

However, none of the best interest factors is entitled to

“greater weight or heightened significance.” C.F. at ¶ 57.

Instead, the trial court considers the totality of the

circumstances when making its best interest determination. See

Schaefer at ¶ 63-64 (endorsing the trial court’s “totality of

the circumstances” approach to evaluating the best interest

factors); In re K.M., 2017-Ohio-1336, ¶ 51 (4th Dist.), citing

In re K.M.S., 2017-Ohio-142, ¶ 24 (3d Dist.). In general, “[a]

child’s best interest is served by placing the child in a

permanent situation that fosters growth, stability, and

security.” In re C.B.C., 2016-Ohio-916, ¶ 66 (4th Dist.), Scioto 25CA4149 31

citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 324

(1991). Indeed, “‘[t]here is little that can be as detrimental

to a child’s sound development as uncertainty over whether he is

to remain in his current “home,” under the care of his parents

or foster parents, especially when such uncertainty is

prolonged.’” B.C., 2014-Ohio-4558, at ¶ 20, quoting Lehman v.

Lycoming Cty. Children's Servs. Agency, 458 U.S. 502, 513-14

(1982).

{¶78} We further observe that the statutory best interest

factors focus upon the child, not the parent. See id.

(“parental interests are subordinate to the child’s interest

when determining the appropriate resolution of a petition to

terminate parental rights”). Indeed, R.C. 2151.414(C)

specifically prohibits a court from “consider[ing] the effect

the granting of permanent custody to the agency would have upon

any parent of the child.”

{¶79} As we explain below, we do not agree with appellant

that the trial court’s best interest determination is against

the manifest weight of the evidence.

Child’s Interactions and Interrelationships

{¶80} The evidence indicates that the child shares a

positive relationship with his foster family. The child’s

therapist indicated that he is doing well in the foster home,

and the foster mother testified that the child is bonded to her Scioto 25CA4149 32

and to the remaining members of the family.

{¶81} Appellant has not been involved in the child’s life

for a significant period of time and has thus not developed a

strong bond with the child. In April 2022, when the child was

about a year and a half old, the child’s mother informed

appellant that he is the father. At that point, appellant

attempted to become involved in the case. To that end, he

contacted the caseworker, and the caseworker advised appellant

of the steps that he needed to take to be added to the case,

including obtaining a DNA test and requesting an attorney.

After appellant’s initial contact with the caseworker, appellant

allowed approximately 11 months to elapse before he next

contacted the caseworker.

{¶82} In October 2023, appellant started supervised visits

with the child. The caseworker described appellant’s

interaction with the child as “very hit and miss.” He explained

that appellant “[s]ometimes [was] attentive” to the child, but

“other times,” he was “very standoffish” and did not seem to

“know how to appropriately interact.” Furthermore, appellant

did not appear to have any bond with the child.

{¶83} We additionally observe that the child’s GAL reported

that appellant had “not been invested in his son’s visits until

Oct/Nov of 2023.” The GAL further indicated that appellant “has

known since the conception of [the child] that he could be [the Scioto 25CA4149 33

child]’s father, but he has allowed his child to live in foster

care during some of his most formative years.”

{¶84} Appellant’s daughter testified and claimed that

appellant would be able to properly parent the child. The trial

court, however, apparently did not find the daughter’s testimony

to be persuasive in light of current circumstances.

Children’s Wishes

{¶85} The child was too young to be able to express his

wishes directly. The GAL recommended that the court place the

child in the agency’s permanent custody. See C.F., 2007-Ohio-

1104, at ¶ 55 (R.C. 2151.414 “unambiguously gives the trial

court the choice of considering the child’s wishes directly from

the child or through the guardian ad litem”); In re S.M., 2014-

Ohio-2961, ¶ 32 (4th Dist.) (recognizing that R.C. 2151.414

permits juvenile courts to consider a child’s wishes as child

directly expresses or through the GAL).

Custodial History

{¶86} The child lived with the mother until his October 2021

removal. Since that time, he has remained in appellee’s

temporary custody. Thus, when appellee filed its February 2024

permanent custody motion, the child had been in its temporary

custody for more than two years. We further note that, at the

time of the January 2025 hearing, the child had been in

appellee’s temporary custody for more than three years. See Scioto 25CA4149 34

R.C. 2151.415(D)(4) (prohibiting a court from continuing “an

existing temporary custody order to continue beyond two years

after the date on which the complaint was filed or the child was

first placed into shelter care, whichever date is earlier”); see

also In re Adams, 2007-Ohio-4840, ¶ 22 (“no more than two

extensions of a temporary-custody order may be given”).

Legally Secure Permanent Placement

{¶87} “Although the Ohio Revised Code does not define the

term, ‘legally secure permanent placement,’ this court and

others have generally interpreted the phrase to mean a safe,

stable, consistent environment where a child’s needs will be

met.” In re M.B., 2016-Ohio-793, ¶ 56 (4th Dist.), citing In re

Dyal, 2001 WL 925423, *9 (4th Dist. Aug. 9, 2001) (“legally

secure permanent placement” means a “stable, safe, and nurturing

environment”); see also In re K.M., 2015-Ohio-4682, ¶ 28 (10th

Dist.) (legally secure permanent placement requires more than a

stable home and income, but also requires an environment that

will provide for a child’s needs); In re J.H., 2013-Ohio-1293, ¶

95 (11th Dist.) (mother was unable to provide legally secure

permanent placement when she lacked physical and emotional

stability and father was unable to do so when he lacked grasp of

parenting concepts); In re J.W., 2007-Ohio-2007, ¶ 34 (10th

Dist.) (Sadler, J., dissenting) (legally secure permanent

placement means “a placement that is stable and consistent”); Scioto 25CA4149 35

Black's (6th Ed. 1990) (defining “secure” to mean, in part, “not

exposed to danger; safe; so strong, stable or firm as to insure

safety”); id. (defining “permanent” to mean, in part,

“[c]ontinuing or enduring in the same state, status, place, or

the like without fundamental or marked change, not subject to

fluctuation, or alteration, fixed or intended to be fixed;

lasting; abiding; stable; not temporary or transient”). Thus,

“[a] legally secure permanent placement is more than a house

with four walls. Rather, it generally encompasses a stable

environment where a child will live in safety with one or more

dependable adults who will provide for the child’s needs.”

M.B., 2016-Ohio-793, at ¶ 56 (4th Dist.).

{¶88} In the case at bar, we believe that the evidence

presented at the hearing supports the trial court’s finding that

the child needs a legally secure permanent placement and that

the mother could not provide the child with this type of

placement. The mother lacked independent housing and failed to

maintain sobriety. Thus, she could not provide the children

with a legally secure permanent placement.

{¶89} The evidence regarding appellant’s ability to provide

the child with a legally secure permanent placement is less

clear. Appellant appears to have a physically appropriate home

for the child, and appellee did not identify any safety concerns

that the home posed. However, the child’s caseworker did not Scioto 25CA4149 36

observe a bond between appellant and the child and reported that

appellant sometimes appeared detached and disengaged during

visits with the child. Furthermore, the trial court expressed

concern that appellant allowed approximately 11 months to elapse

between his first and second contacts with the child’s

caseworker. Given these findings, the trial court reasonably

could have determined that appellant may not have demonstrated

the resolve needed to provide the child with a legally secure

permanent placement.

{¶90} Additionally, even if appellant could provide a

legally secure permanent placement for the child, the trial

court was not required to conclude that any ability that

appellant had to provide the child with a legally secure

permanent placement meant that denying appellee’s permanent

custody motion would serve the child’s best interest. See

Schaefer, 2006-Ohio-5513, at ¶ 56 (the statute does not give

“heightened importance” to R.C. 2151.414(D)(4), and a trial

court need not “credit evidence in support of maintaining the

parental relationship when evidence supporting termination

outweighs it clearly and convincingly”).

R.C. 2151.414(E)(7) to (11)

{¶91} R.C. 2151.414(D)(1)(e) requires a trial court to

consider whether any of the factors listed in R.C.

2151.414(E)(7) through (11) apply. Those provisions list Scioto 25CA4149 37

parental conduct that may lead a court to conclude that placing

a child in a children services agency’s permanent custody would

be in a child’s best interest. The parental conduct listed in

R.C. 2151.414(E)(7) through (11) includes situations in which

the parent (1) had been convicted of or pleaded guilty to

certain criminal offenses against the child, the child’s

sibling, or another child who lived in the parent’s household,

(2) withheld medical treatment or food from the child, (3)

repeatedly placed the child at substantial risk of harm because

of alcohol or drug abuse, (4) abandoned the child, and (5) had

parental rights involuntarily terminated with respect to a

sibling of the child.

{¶92} In the case sub judice, the trial court did not make

any R.C. 2151.414(E)(7) through (11) finding with respect to

appellant.

{¶93} Based upon all of the foregoing factors, the trial

court could have formed a firm belief that placing the children

in appellee’s permanent custody was in their best interest. As

the trial court recognized, the child, who was about 14 months

of age at the time of his removal, spent more than two years

living with the same foster family. At the time of the July

2024 permanent custody hearing, the child had been in appellee’s

temporary custody for nearly three years. By the time that the

trial court issued its July 2025 judgment, the child had been in Scioto 25CA4149 38

appellee’s temporary custody—and the same foster home—for nearly

four years. Thus, the child has spent the majority of his young

life with the foster family. Moreover, the child has developed

a bond with the foster family, and the trial court rationally

could have determined that uprooting the child from the foster

home would not be in the child’s best interest. Although

appellant does not appear to have the same problems that plague

other parents facing the termination of their parental rights,

appellant has not established that the evidence weighs heavily

against the trial court’s judgment. Given all of these

circumstances and those outlined above, we do not believe that

the trial court’s judgment is against the manifest weight of the

evidence.

{¶94} Appellant next asserts that the trial court erred by

“granting permanent custody, pursuant to R.C. 2151.414(2)(e)

[sic].” Appellant contends that the court “failed to identify

by clear and convincing evidence that one or more of the factors

exist [and] the child cannot be placed with one of the parents

within a reasonable time or should not be with either parent.”

{¶95} Appellant’s argument appears to be based upon R.C.

2151.414(D)(2). That provision reads as follows:

If all of the following apply, permanent custody is in the best interest of the child, and the court shall commit the child to the permanent custody of a public Scioto 25CA4149 39

children services agency or private child placing agency: (a) The court determines by clear and convincing evidence that one or more of the factors in division (E) of this section exist and the child cannot be placed with one of the child’s parents within a reasonable time or should not be placed with either parent. (b) The child has been in an agency’s custody for two years or longer, and no longer qualifies for temporary custody pursuant to division (D) of section 2151.415 of the Revised Code. (c) The child does not meet the requirements for a planned permanent living arrangement pursuant to division (A)(5) of section 2151.353 of the Revised Code. (d) Prior to the dispositional hearing, no relative or other interested person has filed, or has been identified in, a motion for legal custody of the child.

{¶96} R.C. 2151.414(D)(2) thus specifies the circumstances

that require a trial court to commit a child to an agency’s

permanent custody. This provision provides an alternative to

R.C. 2151.414(D)(1), and, therefore, a trial court need not find

that both R.C. 2151.414(D)(1) and (2) apply before it may place

a child in an agency’s permanent custody. See In re A.P., 2025-

Ohio-2125, ¶ 33 (4th Dist.); see, e.g., In re C.W., 2024-Ohio-

4987, ¶ 50 (1st Dist.) (a trial court need not “make both a

discretionary and a mandatory best-interest determination”).

Instead, either best interest finding suffices. See In re K.M.,

2024-Ohio-2137, ¶ 44 (10th Dist.) (“the best interest of the

child finding under R.C. 2151.414(D)(2) is sufficient to support

granting [a permanent custody] motion alone”).

{¶97} In the case at bar, the trial court applied R.C.

2151.414(D)(1), not R.C. 2151.414(D)(2). We therefore disagree Scioto 25CA4149 40

with appellant that the trial court also was required to find

that the circumstances listed in R.C. 2151.414(D)(2) applied.

{¶98} Accordingly, based upon the foregoing reasons, we

overrule appellant’s fourth assignment of error.

V

{¶99} In his fifth assignment of error, appellant asserts

that the trial court erred by determining that the child could

not be placed with him within a reasonable time or should not be

placed with him.

{¶100} We first note that appellant does not cite the

statute that he claims required the trial court to assess

whether the child could be placed with him within a reasonable

time or should not be placed with him. Nevertheless, his

argument appears to be based upon the circumstance specified in

R.C. 2151.414(B)(1)(a). As we indicated above, that provision

permits a trial court to place a child in an agency’s permanent

custody if doing so is in the child’s best interest and

[t]he child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies . . . for twelve or more months of a consecutive twenty-two-month period, . . . and the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child's parents.

{¶101} We observe that R.C. 2151.414(B)(1) requires the

trial court to find the existence of only one of the factors

listed in R.C. 2151.414(B)(1)(a) to (e). See In re W.W., 2011- Scioto 25CA4149 41

Ohio-4912, ¶ 54 (1st Dist.) (if one of R.C. 2151.414(B)(1)

factors exists, a court need not find that other (B)(1) factors

apply). Consequently, if the court finds that R.C.

2151.414(B)(1)(d) applies, then it need not also find that the

child cannot be placed with either parent or should not be

placed with either parent. See In re A.P., 2022-Ohio-1577, ¶ 36

(4th Dist.). Moreover, R.C. 2151.414(B)(1)(a), by its terms, is

inapplicable if a child has been in an agency’s temporary

custody for 12 or more months of a consecutive 22-month period.

See In re B.S., 2024-Ohio-5183, ¶ 54 (4th Dist.), quoting In re

N.S.N., 2015-Ohio-2486, 2015 WL 3856558, ¶ 52 (4th Dist.)

(“‘under the plain language of R.C. 2151.414(B)(1)(d), when a

child has been in a children services agency’s temporary custody

for [12] or more months of a consecutive [22]-month period, a

trial court need not find that the child cannot or should not be

placed with either parent within a reasonable time’”).

{¶102} In the case at bar, the trial court found that

2151.414(B)(1)(d) applied because the child had been in

appellee’s temporary custody for more than 12 months of a

consecutive 22-month period. The court did not determine that

any other factor under R.C. 2151.414(B)(1)(a) through (e)

applied. Thus, contrary to appellant’s argument, the trial

court did not find, and was not required to find, that the child

could not be placed with him within a reasonable time or should Scioto 25CA4149 42

not be placed with him. See generally In re C.W., 2004-Ohio-

6411, ¶ 21 (under “the ‘12 of 22’ provision to R.C. 2151.414, an

agency need no longer prove that a child cannot be returned to

the parents within a reasonable time or should not be returned

to the parents, so long as the child has been in the temporary

custody of an agency for at least 12 months”).

{¶103} Accordingly, based upon the foregoing reasons, we

overrule appellant’s fifth assignment of error.

VI

{¶104} In his sixth assignment of error, appellant asserts

that the trial court erred by concluding that appellee made

reasonable efforts to reunify him with the child.

{¶105} When a trial court “removes a child from the child’s

home or continues the removal of a child from the child’s home,”

R.C. 2151.419(A)(1) requires a trial court to determine whether

a children services agency “made reasonable efforts to prevent

the removal of the child from the child’s home, to eliminate the

continued removal of the child from the child’s home, or to make

it possible for the child to return safely home.” “In

determining whether reasonable efforts were made, the child’s

health and safety shall be paramount.” R.C. 2151.419(A)(1). The

agency bears the burden to prove that it has made reasonable

efforts. R.C. 2151.419(A)(1). Scioto 25CA4149 43

{¶106} However, R.C. 2151.419(A)(1) applies only at

“adjudicatory, emergency, detention, and temporary-disposition

hearings, and dispositional hearings for abused, neglected, or

dependent children . . . .” In re C.F., 2007-Ohio-1104, ¶ 41;

accord In re C.B.C., 2016-Ohio-916, ¶ 72 (4th Dist.). Thus,

“‘[b]y its plain terms, the statute does not apply to motions

for permanent custody brought pursuant to R.C. 2151.413, or to

hearings held on such motions pursuant to R.C. 2151.414.’” C.F.

at ¶ 41, quoting In re A.C., 2004-Ohio-5531, ¶ 30 (12th Dist.).

Nonetheless, “[t]his does not mean that the agency is relieved

of the duty to make reasonable efforts” before it seeks

permanent custody. Id. at ¶ 42. Instead, at prior “stages of

the child-custody proceeding, the agency may be required under

other statutes to prove that it has made reasonable efforts

toward family reunification.” Id. Additionally, “[if] the

agency has not established that reasonable efforts have been

made prior to the hearing on a motion for permanent custody,

then it must demonstrate such efforts at that time.” Id. at ¶

43.

{¶107} In the case sub judice, appellant’s appeal does not

originate from one of the types of hearings specifically listed

in R.C. 2151.419(A): “adjudicatory, emergency, detention, and

temporary-disposition hearings, and dispositional hearings for

abused, neglected, or dependent children.” Appellee, therefore, Scioto 25CA4149 44

did not have the burden to prove at the permanent custody

hearing that it used reasonable efforts to reunify the family,

unless it had not previously done so.

{¶108} Our review of the record reflects that, before the

agency filed its permanent custody motion, the trial court made

multiple reasonable efforts findings. Thus, the court did not

need to again find that the agency used reasonable efforts

before it could grant the agency permanent custody of the child.

E.g., In re M.H.–L.T., 2017-Ohio-7825, ¶ 64 (4th Dist.); In re

S.S., 2017-Ohio-2938, ¶ 168 (4th Dist.).

{¶109} We also observe that appellant does not cite any

authority to support his argument that a trial court must enter

a finding that an agency used reasonable efforts to place a

child with a parent who was not living in the home from which

the child was removed. “Appellate courts should not perform

independent research to create an argument for a litigant.”

State v. Sims, 2023-Ohio-1179, ¶ 109 (4th Dist.), citing State

v. Quarterman, 2014-Ohio-4034, ¶ 19, quoting State v. Bodyke,

2010-Ohio-2424, ¶ 78 (O’Donnell, J., concurring in part and

dissenting in part), quoting Carducci v. Regan, 714 F.2d 171,

177 (D.C. Cir. 1983) (“‘“appellate courts do not sit as self-

directed boards of legal inquiry and research, but [preside]

essentially as arbiters of legal questions presented and argued

by the parties before them”’”); accord State v. Lykins, 2019- Scioto 25CA4149 45

Ohio-3316, ¶ 57 (4th Dist.). “[W]e cannot write a party’s

brief, pronounce ourselves convinced by it, and so rule in the

party’s favor. That’s not how an adversarial system of

adjudication works.” Xue Juan Chen v. Holder, 737 F.3d 1084,

1085 (7th Cir. 2013).

{¶110} Because appellant did not cite authority to support

his sixth assignment of error, we are unable to agree with

appellant’s assertion. See In re Application of Columbus S.

Power Co., 2011-Ohio-2638, ¶ 14 (failing to cite legal authority

or present argument that a legal authority applies is grounds to

reject a claim); Robinette v. Bryant, 2015-Ohio-119, ¶ 33 (4th

Dist.) (“It is within our discretion to disregard any assignment

of error that fails to present any citations to cases or

statutes in support”).

{¶111} Furthermore, as we noted in In re C.B.C.,

[I]n C.F., at ¶ 4, the Ohio Supreme Court held that “except for some narrowly defined statutory exceptions, the state must make reasonable efforts to reunify the family before terminating parental rights.” However, the reasonable efforts statute, R.C. 2151.419, does not use the phrase “reunify the family.” Instead, it requires the agency to use reasonable efforts “to prevent the removal of the child from the child's home, to eliminate the continued removal of the child from the child's home, or to make it possible for the child to return safely home.” This raises a question as to what is meant by “family,” what is meant by “home,” and whether the C.F. duty “to reunify the family” extends to all family members, including a parent with whom the child was not living at the time of removal, or just to the family member from whose care the child was removed. See generally In re M.R., 3rd Dist. Defiance No. 4–11– Scioto 25CA4149 46

12, 2011–Ohio–6528, ¶¶ 15 and 17; In re A.P., 9th Dist. Medina No. 12CA0022–M, 2012–Ohio–3873, ¶¶ 28–29; R.C. 2151.419(B) (stating that trial court’s reasonable efforts finding shall briefly describe the services provided to “the family of the child”). None of the parties, however, have raised any of these issues. We therefore do not address them now. See Risner, supra, at ¶ 28.

2016-Ohio-916, ¶ 82 (4th Dist.). Likewise, in the case at bar,

none of the parties has raised these issues, so we do not

address them.

{¶112} Accordingly, based upon the foregoing reasons, we

overrule appellant’s sixth assignment of error.

VII

{¶113} In his seventh assignment of error, appellant asserts

that the trial court abused its discretion by considering the

GAL’s report. Appellant asserts that the GAL “failed to

competently perform her duties.”

{¶114} A GAL’s primary duty in a permanent custody

proceeding is “to protect the interest of the child.” R.C.

2151.281(B)(1); accord In re C.B., 2011-Ohio-2899, ¶ 14 (a GAL’s

“purpose is to protect the interest of the child”). The GAL

must “perform whatever functions are necessary to protect the

best interest of the child, including, but not limited to,

investigation, mediation, monitoring court proceedings, and

monitoring the services” that the agency provided the child,

“and shall file any motions and other court papers that are in Scioto 25CA4149 47

the best interest of the child.” R.C. 2151.281(I). If the GAL

fails “to faithfully discharge the guardian ad litem’s duties,”

the court “shall discharge the guardian ad litem and appoint

another guardian ad litem.” R.C. 2151.281(D).

{¶115} Additionally, Sup.R. 48.03(D) contains a

nonexhaustive listing of a GAL’s duties:

(1) Become informed about the facts of the case and contact all relevant persons; (2) Observe the child with each parent, foster parent, guardian or physical custodian; (3) Interview the child, if age and developmentally appropriate, where no parent, foster parent, guardian, or physical custodian is present; (4) Visit the child at the residence or proposed residence of the child in accordance with any standards established by the court; (5) Ascertain the wishes and concerns of the child; (6) Interview the parties, foster parents, guardians, physical custodian, and other significant individuals who may have relevant knowledge regarding the issues of the case. The guardian ad litem may require each individual to be interviewed without the presence of others. Upon request of the individual, the attorney for the individual may be present. (7) Interview relevant school personnel, medical workers, and court personnel and obtain copies of relevant records; (8) Review pleadings and other relevant court documents in the case; (9) Obtain and review relevant criminal, civil, educational, mental health, medical, and administrative records pertaining to the child and, if appropriate, the family of the child or other parties in the case; (10) Request that the court order psychological evaluations, mental health substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court; (11) Review any necessary information and interview other persons as necessary to make an informed recommendation regarding the best interest of the child. Scioto 25CA4149 48

{¶116} In the case at bar, even if the GAL failed to comply

with any of the foregoing responsibilities, “this court, along

with other Ohio appellate courts, has refused to recognize

purported Sup.R. 48.03(D) violations as reversible error.” In

re C.H., Jr., 2026-Ohio-81, ¶ 94 (4th Dist.); e.g., In re A.A.,

2024-Ohio-224, ¶ 50 (10th Dist.); In re S.W., 2023-Ohio-793, ¶

45 (4th Dist.). Therefore, even if the GAL failed to comply

with some of the duties listed in Sup.R. 48.03(D), the failure

to comply with this superintendence rule does not constitute

reversible error.

{¶117} We further observe that, at the permanent custody

hearing, appellant’s counsel questioned the GAL regarding the

extent of her investigation and made the trial court well-aware

of appellant’s belief that the GAL did not adequately

investigate the child’s situation. As the trier of fact, the

trial court’s role is “to assign weight to the guardian ad

litem’s testimony and recommendation.” In re C.W., 2025-Ohio-

282, ¶ 46 (10th Dist.). Thus, a trial court has discretion to

consider a GAL’s report and recommendation, even if the GAL

fails to comply with Sup.R. 48.03. C.H., Jr., 2026-Ohio-81, at

¶ 74 (4th Dist.); see also In re K.A., 2021-Ohio-1773, ¶ 47 (5th

Dist.) (“the trial court, as the trier of fact, is permitted to

assign weight to the GAL’s testimony and recommendation and to Scioto 25CA4149 49

consider it in the context of all the evidence before the

court”). Therefore, in the case sub judice, even if the GAL

failed to fully comply with Sup.R. 48.03, we do not find

anything in the record to suggest that the trial court abused

its discretion by considering the GAL’s recommendation.

{¶118} Accordingly, based upon the foregoing reasons, we

overrule appellant’s seventh assignment of error.

VIII

{¶119} In his eighth assignment of error, appellant asserts

that he did not receive the effective assistance of counsel. He

claims that trial counsel was ineffective because “no one had

the capacity to see what occurred at the adjudication or

disposition hearing since it had not been recorded.” Appellant

further states that trial counsel was ineffective for failing to

(1) “file the closing argument brief to the Court,” (2) object

to the timing of the adjudication, (3) object to appellee’s

failure to file a case plan, and (4) object to appellee’s

failure to add him to the case plan.

{¶120} The right to counsel, guaranteed in permanent custody

proceedings by R.C. 2151.352 and by Juv.R. 4, includes the right

to the effective assistance of counsel. In re Wingo, 143 Ohio

App.3d 652, 666 (4th Dist.2001), citing In re Heston, 129 Ohio

App.3d 825, 827 (1st Dist.1998); e.g., In re J.P.B., 2013-Ohio-

787, ¶ 23 (4th Dist.). “‘Where the proceeding contemplates the Scioto 25CA4149 50

loss of parents’ ‘essential’ and ‘basic’ civil rights to raise

their children, . . . the test for ineffective assistance of

counsel used in criminal cases is equally applicable to actions

seeking to force the permanent, involuntary termination of

parental custody.’” Wingo, 143 Ohio App.3d at 666, quoting

Heston.

{¶121} To establish constitutionally ineffective assistance

of counsel, a defendant must show (1) that his counsel’s

performance was deficient and (2) that the deficient performance

prejudiced the defense and deprived the defendant of a fair

trial. E.g., Strickland v. Washington, 466 U.S. 668, 687

(1984); State v. Obermiller, 2016-Ohio-1594, ¶ 83. “Failure to

establish either element is fatal to the claim.” State v.

Jones, 2008-Ohio-968, ¶ 14 (4th Dist.). Therefore, if one

element is dispositive, a court need not analyze both. State v.

Madrigal, 87 Ohio St.3d 378, 389 (2000) (stating that a

defendant’s failure to satisfy one of the elements “negates a

court’s need to consider the other”).

{¶122} “In order to show deficient performance, the

defendant must prove that counsel’s performance fell below an

objective level of reasonable representation.” (Citations

omitted.) State v. Conway, 2006-Ohio-2815, ¶ 95; accord Hinton

v. Alabama, 571 U.S. 263, 272 (2014). Furthermore, “‘[i]n any

case presenting an ineffectiveness claim, the performance Scioto 25CA4149 51

inquiry must be whether counsel’s assistance was reasonable

considering all the circumstances.’” Hinton, 571 U.S. at 273,

quoting Strickland, 466 U.S. at 688. Additionally, “[a]

properly licensed attorney is presumed to execute his duties in

an ethical and competent manner.” State v. Taylor, 2008-Ohio-

482, ¶ 10 (4th Dist.), citing State v. Smith, 17 Ohio St.3d 98,

100 (1985). Therefore, a defendant bears the burden to show

ineffectiveness by demonstrating that counsel’s errors were “so

serious” that counsel failed to function “as the ‘counsel’

guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S.

at 687; e.g., Obermiller at ¶ 84; State v. Gondor, 2006-Ohio-

6679, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156 (1988).

{¶123} To establish prejudice, a defendant must demonstrate

that a reasonable probability exists that “‘but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Hinton,

571 U.S. at 275, quoting Strickland, 466 U.S. at 694; e.g.,

State v. Short, 2011-Ohio-3641, ¶ 113; State v. Bradley, 42 Ohio

St.3d 136 (1989), paragraph three of the syllabus. Furthermore,

courts ordinarily may not simply presume the existence of

prejudice but must require the defendant to affirmatively

establish prejudice. State v. Clark, 2003-Ohio-1707, ¶ 22 (4th

Dist.). As we have repeatedly recognized, speculation is Scioto 25CA4149 52

insufficient to demonstrate the prejudice component of an

ineffective assistance of counsel claim. E.g., State v.

Jenkins, 2014-Ohio-3123, ¶ 22 (4th Dist.); State v. Simmons,

2013-Ohio-2890, ¶ 25 (4th Dist.); accord State v. Powell, 2012-

Ohio-2577, ¶ 86 (an argument that is purely speculative cannot

serve as the basis for an ineffectiveness claim).

{¶124} With respect to appellant’s assertion that trial

counsel was ineffective for failing to file a written closing

argument, we observe that the record shows that, on February 10,

2025, appellant’s counsel filed a written closing argument

(entitled “Conclusory Statement”). We therefore reject

appellant’s argument that trial counsel was ineffective for

failing to file a written closing argument.

{¶125} Regarding appellant’s remaining ineffectiveness

claims, we do not believe that appellant has established that a

reasonable probability exists that, but for counsel’s alleged

deficiencies, the result of the proceeding would have been

different. We note that the trial court did not appoint counsel

to represent appellant until March 2024, after appellee had

filed its permanent custody motion. At that time, the child had

been in appellee’s temporary custody for more than two years.

As we explained above, the record contains competent and

credible evidence to support the trial court’s decision that

placing the child in appellee’s permanent custody would serve Scioto 25CA4149 53

the child’s best interest. Thus, even if appellant’s trial

counsel had raised every argument or objection that appellant

now states that counsel should have raised, we do not believe

that the outcome of the proceeding would have been different.

{¶126} We further observe that appellant did not cite any

authority, beyond general authority regarding the standard for

establishing ineffective assistance of counsel, to support his

assertions that trial counsel was ineffective for failing to

raise the above arguments or objections. Because appellant has

not cited any authority that supports his claimed instances of

ineffective assistance of counsel, we are unable to agree with

appellant’s conclusory arguments. See In re Application of

Columbus S. Power Co., 2011-Ohio-2638, at ¶ 14; Robinette, 2015-

Ohio-119, at ¶ 33 (4th Dist.).

{¶127} Accordingly, based upon the foregoing reasons, we

overrule appellant’s eighth assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED. Scioto 25CA4149 54

JUDGMENT ENTRY

It is ordered that the judgment be affirmed. Appellee shall recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court, Juvenile Division, to carry this judgment into execution.

If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.