In re S.W. , 2023 Ohio 793 ( 2023 )

[Cite as In re S.W., 2023-Ohio-793.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
IN THE MATTER OF: S.W. & K.W. :
:
: Case Nos. 22CA9
: 22CA10
Adjudicated Dependent Children. :
:
: DECISION AND JUDGMENT
: ENTRY
:
:
APPEARANCES:
Robert W. Bright, Middleport, Ohio, for Appellant.
James Holdren, Gallia County Prosecuting Attorney, Emily VanSickle,
Assistant Prosecuting Attorney, and Randy Dupree, Assistant Prosecuting
Attorney, Gallipolis, Ohio, for Appellee.
Smith, P.J.
{¶1} Appellant, S.F., appeals the trial court’s decision that granted
permanent custody of his two children, S.W. and K.W., to Gallia County Job
and Family Services (“the agency”). Appellant raises two assignments of
error and argues that (1) the trial court’s finding that the children cannot be
placed with him or should not be placed with him is against the manifest
weight of the evidence and (2) the trial court should not have credited the
guardian ad litem’s (GAL) report due to purported inadequacies. For the
Gallia App. Nos. 22CA9 and 22CA10 2
reasons that follow we do not find any merit to Appellant’s assignments of
error. Therefore, we overrule his assignments of error and affirm the trial
court’s judgment.
FACTS
{¶2} On January 8, 2020, the agency filed a complaint that alleged
seven-month-old S.W was a dependent child. On February 20, 2020, the
court adjudicated the child a dependent child. The trial court later placed the
child in the agency’s temporary custody.
{¶3} On December 16, 2020, the agency filed a complaint that alleged
S.W.’s newborn sibling, K.W., is a dependent child. The agency alleged that
the child is dependent based upon S.W. being in the agency’s temporary
custody. The agency initially sought and was granted a protective
supervision order but later requested temporary custody of the child. The
parties subsequently agreed to place the child in the agency’s temporary
custody. Thus, on January 5, 2021, the court placed the child in the
agency’s temporary custody. On January 26, 2021, the trial court
adjudicated the child dependent and continued the child in the agency’s
temporary custody. On March 18, 2021, the court entered a dispositional
order that placed the child in the agency’s temporary custody.
Gallia App. Nos. 22CA9 and 22CA10 3
{¶4} On November 18, 2021, the agency filed motions that asked the
court to place the children in its permanent custody. The agency alleged that
S.W. has been in its temporary custody for 12 or more months of a
consecutive 22-month period and that the child cannot be placed with either
parent within a reasonable time or should not be placed with either parent.
With respect to K.W., the agency alleged that the child cannot be placed
with either parent within a reasonable time or should not be placed with
either parent.
{¶5} On June 14 and 15, 2022, the court held a permanent custody
hearing. Caseworker Jessica McCoy testified that the agency’s initial
concerns about the parents included the mother’s drug use, a lack of proper
parenting, and domestic violence between the parents. The agency
developed a case plan that required the mother to complete parenting
classes, a mental health evaluation, alcohol and drug treatment, and any
recommended counseling. The case plan also required the mother to
consistently visit the children. The case plan required Appellant to complete
parenting classes and a mental health evaluation. It also required Appellant
to maintain appropriate housing and consistently visit the children.
{¶6} McCoy stated that Appellant completed parenting classes, but
she is uncertain whether Appellant completed a mental health evaluation.
Gallia App. Nos. 22CA9 and 22CA10 4
She explained that the agency did not have a signed release so the agency
was unable to obtain documentation. McCoy does not know whether
Appellant currently is employed but he was not regularly employed
throughout the pendency of the case.
{¶7} McCoy indicated that Appellant has lived in the same residence
since S.W.’s removal. However, she stated that she was unable to regularly
enter the residence to determine whether it was suitable for the children.
McCoy explained that agency caseworkers made three attempts each month
to visit Appellant’s residence.
{¶8} McCoy stated that when she was able to enter Appellant’s home,
it was not appropriate. McCoy reported that the bathroom floor was caving
in, the door had cracks that allowed bugs inside, and one of the windows
was broken. She also found roaches. McCoy explained that the agency
provided ways that Appellant could obtain assistance to make the repairs and
that each month when the agency caseworkers visited Appellant’s home they
would tell Appellant what he needed to fix in order to make the residence
appropriate for the children. Appellant usually stated that his landlord
would make the repairs.
{¶9} McCoy indicated that she last was in Appellant’s residence in
the latter part of 2021 and that the repairs had not been made. In January
Gallia App. Nos. 22CA9 and 22CA10 5
and February 2022, she tried to evaluate the residence but Appellant “denied
access into the home.” McCoy reminded Appellant that part of the case plan
required him to maintain appropriate housing and that she was unable to
determine the appropriateness of Appellant’s residence without being
permitted inside.
{¶10} McCoy further testified that Appellant did not regularly visit
the children. The agency offered Appellant two visits each week but
Appellant never attended two visits within one week. She stated that
Appellant attended 12 visits and missed 58 available visits.
{¶11} One of the children’s foster parents testified that S.W. has lived
in the foster home since January 2020, and that K.W has lived in the home
since January 2021. He explained that he and his wife have bonded with the
children and that they are interested in adopting the children.
{¶12} Appellant testified that he has completed two mental health
evaluations: one at Hopewell and one at Integrated Services. He also stated
that he remained employed at various times during the pendency of the case.
He worked at Speedway for a little more than one year, Electrocraft for
about two or three months, and Taco Bell for about two months.
{¶13} Appellant explained that he currently receives income from (1)
a business that he operates with his younger brother, (2) Integrated Services,
Gallia App. Nos. 22CA9 and 22CA10 6
and (3) Patreon (“a site for content creators to get money from the people
that um, use their content”). Appellant stated that he operates “a ministry
through Twitter, Facebook, and YouTube.” He claimed that he has enough
money to pay his bills, purchase food to eat, and provide for the children’s
needs.
{¶14} Appellant indicated that he had “two major issues” with
visitation. He explained that when he worked at Speedway his visits were
scheduled early in the day and the agency would not schedule them for a
later time in the day. Appellant stated that he worked the nightshift
unloading trucks and he needed to sleep at the time designated for his visits.
{¶15} Appellant testified that he also had a medical condition that left
him unable to comply with the visitation center’s mask requirement. He
stated that he gave medical documentation to the agency and to the visitation
center to establish his inability to wear a mask. He claimed that at first he
was allowed to visit without wearing a mask. The policy later changed and
he was required to wear a mask. Appellant stated that he missed around
75% of the visits due to the mask requirement. Appellant explained that he
tried to wear a mask a few times but he “could only make it about 10
minutes” before he became “so lightheaded” that he thought that he “was
about ready to pass out.”
Gallia App. Nos. 22CA9 and 22CA10 7
{¶16} Appellant agreed that the visitation center permitted some
outdoor visits. He stated that some visits were canceled due to weather and
explained that he canceled outdoor visits if the weather report showed “a
high chance of rain.” Appellant stated that he also participated in a few
virtual visits but he had some internet connectivity issues. Appellant
testified that the visitation center later stopped doing virtual visits and told
Appellant that he “either had to suck it up and wear the mask or [he] had to
get weekly or bi-weekly tests for Covid, which sometimes takes two or three
hours just sitting and waiting.” He also stated that taking Covid tests gave
him migraines that lasted “two to three days afterwards.” He thinks “that the
pandemic is the number one reason that [he] wasn’t able to participate in
visits” and that he would have attended “over 90% of the visits if the
pandemic was not an issue.” After the visitation center ended the mask
requirement, however, Appellant agreed that he did not attend over 90% of
the visitations.
{¶17} Appellant further testified that his residence is appropriate for
the children. He has one bedroom that he uses as his own and the children’s
beds are in the living room. Appellant claimed that he has fixed the
bathroom floor and that the “broken window” is nothing more than a crack
on the outside portion of a double-paned window. Appellant also denied
Gallia App. Nos. 22CA9 and 22CA10 8
that bugs enter the residence through a hole in the door and stated he
occasionally sees a roach. Appellant does not believe that his residence has
any “major issues.”
{¶18} On cross-examination Appellant stated that he was not aware
that the agency caseworkers had been at his residence: “They have not uh,
contacted me besides knocking.” Appellant indicated that he was aware that
the caseworker needed to see his home in order to determine its
appropriateness and stated that he has “not stopped it.” He stated that one
time he was sick and “not in any condition to let anyone in [his] home.”
{¶19} On June 30, 2022, the trial court granted the agency permanent
custody of the children. The trial court noted that Appellant has lived in the
same one-bedroom apartment since the beginning of the case and that the
home study identified two primary concerns: (1) the cleanliness of the home
and (2) the condition of the bathroom floor. The bathroom floor “was
noticeably weak and needed to be replaced and/or reinforced,” and roaches
and mice were found in the home. The court recognized Appellant’s
assertion at the permanent custody hearing that he has remedied the concerns
with his residence but further pointed out that Appellant has not allowed the
agency caseworkers into the home to inspect his progress and has refused to
communicate with the caseworkers except through his attorney. The court
Gallia App. Nos. 22CA9 and 22CA10 9
also observed that Appellant introduced photographs of his residence, but he
did not submit photos of the kitchen or the bathroom, which were the
primary areas of concern. The court thus found that Appellant’s “residence
remains unacceptable and unsafe for [the] children.”
{¶20} The court additionally determined that Appellant “has a dismal
visitation record.” The caseworker stated that Appellant has attended a total
of 12 in-person and virtual visits over the past two-and-a-half years.
Appellant offered many reasons why he could not visit, one of which was
that his job interfered. The court thus offered additional visitation times.
Appellant then stated that he could not visit due to an inability to comply
with the agency’s requirement to wear a face covering. Appellant’s mental
health provider submitted a letter that stated that Appellant could not wear a
face covering. The agency thus offered Appellant visits if he tested negative
at each visit. Appellant stated that he could not take the tests because they
gave him migraine headaches. The agency also allowed Appellant to visit
the children outside when the weather permitted and offered virtual visits.
Appellant had three virtual visits with the children, but he stated that the
internet service was poor and made virtual visits difficult. Appellant thus
stopped participating in virtual visits. The court noted, however, that
Appellant “successfully use[d] his internet service to post numerous videos
Gallia App. Nos. 22CA9 and 22CA10 10
on social media platforms such as Twitter, You Tube [sic], and Facebook,
where he claims to have thousands of followers.”
{¶21} The court additionally found that Appellant’s visitation record
remained dismal even after the visitation center no longer required masks.
Once masks no longer were required, Appellant still missed over half of his
twice-weekly visits, “even though his case manager was willing to provide
transportation and he was unemployed.”
{¶22} The trial court found it “undisputed that the children have been
in” the agency’s custody “for more than 12 months in a consecutive twenty-
two-month period.” The court also found that the parents failed to remedy
the conditions that caused the children’s removal. The court stated that
neither parent satisfactorily completed the case plan requirements. The court
further noted that the mother told the caseworker that she would not be
attending the permanent custody hearing and that she would like the children
to remain with the foster parents.
{¶23} The court next found that placing the children in the agency’s
permanent custody is in their best interests. The court noted that S.W. has
been in foster care for over two-and-a-half years, the children are bonded
with the foster parents, the foster parents are eager to adopt the children, and
the guardian ad litem recommended that the court grant the agency
Gallia App. Nos. 22CA9 and 22CA10 11
permanent custody of the children. The court thus granted the agency
permanent custody of the two children. This appeal followed.
ASSIGNMENTS OF ERROR
I. THE JUVENILE COURT DID NOT FOLLOW AND/OR
MISAPPLIED THE FACTORS FOUND IN R.C.
2151.414.
II. THE REPORT OF THE GUARDAIN AD LITEM DOES
NOT COMPLY WITH SUPERINTENDENCE RULE
48.06 AND THE GUARDAIN AD LITEM DID NOT
TESTIFY.
ANALYSIS
{¶24} In his first assignment of error, Appellant essentially argues
that the trial court’s permanent custody decision is against the manifest
weight of the evidence because clear and convincing evidence does not
support the court’s finding that the children cannot be placed with him
within a reasonable time or should not be placed with him. More
particularly, Appellant contends that the trial court incorrectly determined
that he failed to remedy the problems that caused the children’s removal
from the home. Appellant also challenges the court’s finding that he
demonstrated a lack of commitment toward the children by failing to
consistently visit them. He argues that he was not able to regularly visit the
children due to the pandemic and the visitation center’s mask mandate.
Gallia App. Nos. 22CA9 and 22CA10 12
Appellant contends that his lack of visitation was due to “inability, not
unwillingness.”
{¶25} The agency asserts that the trial court found that the children
had been in its temporary custody for 12 or more months of a consecutive
22-month period and that the court’s alternate finding that the children
cannot or should not be placed with either parent is superfluous.
STANDARD OF REVIEW
{¶26} A reviewing court generally will not disturb a trial court’s
permanent custody decision unless the decision is against the manifest
weight of the evidence. See In re R.M., 2013-Ohio-3588, 997 N.E.2d 169,
¶ 53 (4th Dist.). When an appellate court reviews whether a trial court’s
permanent custody decision is against the manifest weight of the evidence,
the court “ ‘ “ ‘weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in
the evidence, the [finder of fact] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed and a
new trial ordered.’ ” ’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141 Ohio
App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting State v.
Gallia App. Nos. 22CA9 and 22CA10 13
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶27} In a permanent custody case the ultimate question for a
reviewing court is “whether the juvenile court’s findings * * * were
supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d
538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. In determining whether a trial
court based its decision upon clear and convincing evidence “a reviewing
court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” State v.
Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). “Thus, if the children
services agency presented competent and credible evidence upon which the
trier of fact reasonably could have formed a firm belief that permanent
custody is warranted, then the court’s decision is not against the manifest
weight of the evidence.” R.M. at ¶ 55.
{¶28} Once the reviewing court finishes its examination, the court
may reverse the judgment only if it appears that the factfinder, 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 at 387, 678 N.E.2d 541, quoting Martin at
175, 485 N.E.2d 717. A reviewing court should find a trial court’s
Gallia App. Nos. 22CA9 and 22CA10 14
permanent custody decision against the manifest weight of the evidence only
in the “ ‘exceptional case in which the evidence weighs heavily against the
[decision].’ ” Id., quoting Martin at 175, 485 N.E.2d 717.
PERMANENT CUSTODY FRAMEWORK
{¶29} R.C. 2151.414(B)(1) specifies that a trial court may grant a
children services agency permanent custody of a child if the court finds by
clear and convincing evidence that (1) the child’s best interest would be
served by the award of permanent custody, and (2) any of the following
conditions 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 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 22-month period, or the child has been in the
temporary custody of one or more public children services
Gallia App. Nos. 22CA9 and 22CA10 15
agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period
and, as described in division (D)(1) of section 2151.413 of
the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another
state.
(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.
R.C. 2151.414(B)(1)(a)-(d)
{¶30} In the case at bar, the trial court found that the children cannot
be placed with either parent within a reasonable time or should not be placed
with either parent and that the children have been in the agency’s temporary
custody for 12 or more months of a consecutive 22-month period. On
appeal, Appellant has not challenged the court’s 12-out-of-22 finding under
R.C. 2151.414(B)(1)(d). Instead, Appellant challenges the trial court’s
alternate R.C. 2151.414(B)(1)(a) finding and its corresponding findings
under R.C. 2151.414(E).
{¶31} As we have noted in previous cases, R.C. 2151.414(B)(1)(a),
by its terms, is inapplicable when a child has been in a children services
agency’s temporary custody for 12 or more months of a consecutive 22-
month period. In re S.S., 4th Dist. Jackson No. 16CA7, ¶ 126, citing In re
Damron, 10th Dist. Franklin No. 03AP-419, 2003-Ohio-5810, ¶ 9 (“The
Gallia App. Nos. 22CA9 and 22CA10 16
plain language of R.C. 2151.414(B)(1)(a) reveals that this subsection is only
triggered when none of the remaining * * * subsections are triggered.”).
Consequently, 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. See e.g., In re C.W., 104 Ohio St.3d
163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 21; In re A.M.1, 4th Dist. Athens
Nos. 10CA21-10CA31, 2010-Ohio-5837, ¶ 31; In re T.F., 4th Dist.
Pickaway No. 07CA34, 2008-Ohio-1238, ¶ 23; In re Williams, 10th Dist.
Franklin No. 02AP-924, 2002-Ohio-7205.
{¶32} R.C. 2151.414(B)(1)(e) specifies that “a child shall be
considered to have entered the temporary custody of an agency on the earlier
of the date the child is adjudicated pursuant to section 2151.28 of the
Revised Code or the date that is sixty days after the removal of the child
from home.” R.C. 2151.414(B)(1)(e). Additionally, when calculating
whether a child has been in an agency’s temporary custody for 12 or more
months, “the time that passes between the filing of a motion for permanent
custody and the permanent-custody hearing does not count.” In re C.W.,
104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 26. Instead, the
child must have been in the agency’s temporary custody for 12 or more
Gallia App. Nos. 22CA9 and 22CA10 17
months of a consecutive 22-month period at the time that the agency files its
permanent custody motion. Id.{¶33} In the case at bar, S.W. was removed from the home in January
2020, and the court adjudicated the child dependent on February 20, 2020.
Thus, when the agency filed its November 18, 2021 permanent custody
motion, S.W. had been in the agency’s temporary custody for 12 or more
months of a consecutive 22-month period. On the other hand, K.W. was
removed from the home on January 5, 2021, and the court adjudicated the
child dependent on January 26, 2021. Thus, when the agency filed its
November 18, 2021 permanent custody motion, K.W. had not yet been in its
temporary custody for 12 or more months of a consecutive 22-month period.
{¶34} In previous decisions, we typically have recognized that a trial
court’s R.C. 2151.414(B)(1)(a) finding is superfluous when the record
shows that a child has been in an agency’s temporary custody for 12 or more
months of a consecutive 22-month period or when a parent does not dispute
that a child has been in an agency’s temporary custody for 12 or more
months of a consecutive 22-month period. See e.g., In re A.P., 4th Dist.
Gallia No. 21CA14, 2022-Ohio-1577, ¶ 36. In the case before us, however,
the record does not establish that K.W. has been in the agency’s temporary
custody for 12 or more months of a consecutive 22-month period. And
Gallia App. Nos. 22CA9 and 22CA10 18
although Appellant does not specifically challenge the court’s R.C.
2151.414(B)(1)(d) finding, he also does not explicitly agree that K.W. has
been in the agency’s temporary custody for 12 or more months of a
consecutive 22-month period. However, the agency argued in its brief that
the court’s alternate finding is superfluous and Appellant did not file a reply
brief that disputed the agency’s argument. Nevertheless, in the interest of
justice and because the agency’s permanent custody motion pertaining to
K.W. does not allege that the child had been in its temporary custody for 12
or more months of a consecutive 22-month period, we will consider whether
the court’s R.C. 2151.414(B)(1)(a) finding, as it relates to K.W., is against
the manifest weight of the evidence,
{¶35} R.C. 2151.414(E) requires a court that is determining whether a
child cannot be placed with either parent within a reasonable period of time
or should not be placed with the parents to consider all relevant evidence.
The statute further specifies that if one or more of the following conditions
exist “as to each of the child’s parents, the court shall enter a finding that the
child cannot be placed with either parent within a reasonable time or should
not be placed with either parent:”
(1) Following the placement of the child outside the
child’s home and notwithstanding reasonable case
planning and diligent efforts by the agency to assist the
parents to remedy the problems that initially caused the
Gallia App. Nos. 22CA9 and 22CA10 19
child to be placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the
child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall
consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services
and material resources that were made available to the
parents for the purpose of changing parental conduct to
allow them to resume and maintain parental duties.
****
(4) The parent has demonstrated a lack of commitment
toward the child by failing to regularly support, visit, or
communicate with the child when able to do so, or by other
actions showing an unwillingness to provide an adequate
permanent home for the child;
****
{¶36} A trial court may base its decision that a child cannot or should
not be placed with either parent within a reasonable time upon the existence
of any one of the R.C. 2151.414(E)(1) factors. The existence of one factor
alone will support a finding that the child cannot be placed with either parent
within a reasonable time or should not be placed with either parent. See In
re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 50; In re
William S., 75 Ohio St.3d 95, 661 N.E.2d 738 (1996); e.g., In re L.R.B., 2nd
Dist. Montgomery No. 28826, 2020-Ohio-6642, ¶ 52; In re Hurlow, 4th
Dist. Gallia No. 98CA6 (Sept. 21, 1998).
{¶37} Here, the trial court determined that Appellant failed to
substantially remedy the conditions that led to K.W.’s removal and that he
demonstrated a lack of commitment to K.W. We do not believe that the
Gallia App. Nos. 22CA9 and 22CA10 20
court’s findings are against the manifest weight of the evidence. The record
shows that Appellant’s visitation history with the children was dismal.
Although Appellant faults the pandemic and the visitation center’s mask
mandate, the trial court found that the center made efforts to accommodate
Appellant’s inability to wear a mask by offering outdoor visits. The center
also offered virtual visits, which Appellant claimed posed difficulties due to
poor internet connection. Furthermore, we observe that the GAL’s closing
argument indicates that she gave Appellant time to demonstrate that he could
remedy some of the more pressing problems (the condition of the home and
lack of consistent visitation) before issuing her final recommendation. She
explained that even after the visitation center lifted its mask mandate,
Appellant still did not consistently visit the children. The GAL expressed
concern that Appellant’s “lackadaisical” attitude throughout the pendency of
the case foretold a future in which the children’s well-being would remain at
risk. Moreover, Appellant (1) did not allow the agency caseworkers into his
home so that they could assess its suitability for the children and (2) did not
give the agency satisfactory evidence that he had sufficient income to
support the children. The trial court reasonably could have determined that
Appellant’s lackadaisical attitude and failure to cooperate with the agency
demonstrated that he lacked a commitment to the children. Therefore, the
Gallia App. Nos. 22CA9 and 22CA10 21
record contains ample clear and convincing evidence to support the court’s
finding that K.W. cannot be placed with Appellant within a reasonable time
or should not be placed with Appellant.
Best Interest
{¶38} Appellant has not argued on appeal that the trial court’s best-
interest findings are against the manifest weight of the evidence. Therefore,
we do not address this issue. Instead, we simply note that the record
contains plenty of clear and convincing evidence to support the court’s
decision that placing the children in the agency’s permanent custody is in
their best interests.
{¶39} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s first assignment of error.
SECOND ASSIGNMENT OF ERROR
{¶40} In his second assignment of error, Appellant asserts that the
guardian ad litem’s report does not comply with Sup.R. 48.06.1 He contends
1
Sup.R. 48.06 contains general guidelines for a guardian ad litem’s report and provides as follows:
(A) General Report Requirements.
(1) A guardian ad litem shall prepare a written final report, including recommendations to the court, within the times set forth in this
division. The report shall affirmatively state that responsibilities have been met and shall detail the activities performed, hearings
attended, persons interviewed, documents reviewed, experts consulted, and all other relevant information considered by the guardian
ad litem in reaching the recommendations and in accomplishing the duties required by statute, by court rule, and in the order of
appointment from the court.
(2) All reports shall include the following warning: “The guardian ad litem report shall be provided to the court, unrepresented
parties, and legal counsel. Any other disclosure of the report must be approved in advance by the court. Unauthorized disclosure of
the report may be subject to court action, including the penalties for contempt, which include fine and/or incarceration.”
(3) Oral and written reports shall address relevant issues but shall not be considered determinative.
(4) A guardian ad litem shall be available to testify at any relevant hearing and may orally supplement the report
at the conclusion of the hearing.
(5) A guardian ad litem may provide an interim written or oral report at any time.
Gallia App. Nos. 22CA9 and 22CA10 22
that the GAL’s report does not outline “the activities performed, hearings
attended, persons interviewed, documents reviewed, experts consulted, and
all other relevant information considered by the guardian ad litem,” as set
forth in Sup.R. 48.06(A)(1). Appellant alleges that without this information,
the trial court lacked a sufficient foundation to rely upon the GAL’s report
and recommendation. Appellant additionally summarily argues that trial
counsel was ineffective for “failing to more extensively examine the GAL in
order to gain more detail about her investigation.”
GAL Report
{¶41} We first observe that Appellant did not object to any purported
inadequacies in the GAL’s report during the trial court proceedings. As a
general rule, appellate courts “ ‘will not consider any error which could have
been brought to the trial court’s attention, and hence avoided or otherwise
corrected.’ ” Cline v. Rogers Farm Ents., LLC, 2017-Ohio-1379, 87 N.E.3d
637, ¶ 47 (4th Dist.), quoting Schade v. Carnegie Body Co., 70 Ohio St.2d
(B) Guardian Ad Litem Reports in Abuse, Neglect, Dependency, Unruly, and Delinquency Reports.
(1) A guardian ad litem in abuse, neglect, dependency, unruly, and delinquency cases and actions to terminate
parental rights shall provide a written report to the court, unrepresented parties, and legal counsel not less than
seven days prior to any initial dispositional hearing, permanent custody hearing, and any hearing upon a motion
requesting a change in disposition. The court may alter the seven-day period as may be necessary for the
administration of justice.
(2) A court shall review all guardian ad litem reports, written or oral, to ensure that the guardian ad litem has
performed those responsibilities required by R.C. 2151.281.
(C) Guardian Ad Litem Reports in Allocation of Parental Rights and Responsibilities Cases.
(1) A guardian ad litem in proceedings involving the allocation of parental rights and responsibilities, custody,
and visitation shall provide a report to the court, unrepresented parties, and legal counsel not less than seven
days before the final hearing date, unless the due date is modified by the court.
(2) The court shall consider the recommendation of the guardian ad litem in determining the best interest of the
child only when the report or a portion of the report has been admitted as an exhibit.
Gallia App. Nos. 22CA9 and 22CA10 23
207, 210, 436 N.E.2d 1001 (1982). “Thus, a party forfeits, and may not
raise on appeal, any error that arises during trial court proceedings if that
party fails to bring the error to the court’s attention, by objection or
otherwise, at a time when the trial court could avoid or correct the
error.” Id., citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d
1099 (1997), and 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).
{¶42} Moreover, parties may not raise any new issues or legal
theories for the first time on appeal. Stores Realty, 41 Ohio St.2d at 43.
Thus, a litigant who fails to raise an argument before the trial court forfeits
the right to raise that issue on appeal. Independence v. Office of the
Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d
1182, ¶ 30 (stating that “an appellant generally may not raise an argument on
appeal that the appellant has not raised in the lower courts”); State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 21
(explaining that defendant forfeited his constitutional challenge by failing to
raise it during trial court proceedings); Gibson v. Meadow Gold Dairy, 88
Ohio St.3d 201, 204, 724 N.E.2d 787 (2000) (concluding that party waived
arguments for purposes of appeal when party failed to raise those arguments
during trial court proceedings); State ex rel. Gutierrez v. Trumbull Cty. Bd.
Gallia App. Nos. 22CA9 and 22CA10 24
of Elections, 65 Ohio St.3d 175, 177, 602 N.E.2d 622 (1992) (explaining
that an appellant cannot “present * * * new arguments for the first time on
appeal”); accord State ex rel. Jeffers v. Athens Cty. Commrs., 4th Dist.
Athens No. 15CA27, 2016-Ohio-8119, fn.3 (stating that “[i]t is well-settled
that failure to raise an argument in the trial court results in waiver of the
argument for purposes of appeal”); State v. Anderson, 4th Dist. Washington
No. 15CA28, 2016-Ohio-2704, ¶ 24 (explaining that “arguments not
presented in the trial court are deemed to be waived and may not be raised
for the first time on appeal”).
{¶43} Appellate courts may, however, consider a forfeited argument
using a plain-error analysis. See Risner v. Ohio Dept. of Nat. Resources,
Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718,
¶ 27 (stating that reviewing court has discretion to consider forfeited
constitutional challenges); see also Hill v. Urbana, 79 Ohio St.3d 130, 133-
34, 679 N.E.2d 1109 (1997), citing In re M.D., 38 Ohio St.3d 149, 527
N.E.2d 286 (1988), syllabus (stating that “[e]ven where [forfeiture] is clear,
[appellate] court[s] reserve[ ] the right to consider constitutional challenges
to the application of statutes in specific cases of plain error or where the
rights and interests involved may warrant it”). For the plain error doctrine to
apply, the party claiming error must establish (1) that “ ‘an error, i.e., a
Gallia App. Nos. 22CA9 and 22CA10 25
deviation from a legal rule’ ” occurred, (2) that the error was “ ‘an “obvious”
defect in the trial proceedings,’ ” and (3) that this obvious error affected
substantial rights, i.e., the error “ ‘must have affected the outcome of the
trial.’ ” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d
1001, 1003 (1982) (“A ‘plain error’ is obvious and prejudicial although
neither objected to nor affirmatively waived which, if permitted, would have
a material adverse affect [sic] on the character and public confidence in
judicial proceedings.”). For an error to be “plain” or “obvious,” the error
must be plain “ ‘under current law.’ ” Johnson v. United States, 520 U.S.
461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), quoting United
States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508(1993). Accord Barnes, supra, at 27; State v. G.C., 10th Dist. Franklin No.
15AP-536, 2016-Ohio-717, ¶ 14. Thus, the error must be plain “at the time
of appellate consideration.” Johnson at 467.
{¶44} The plain error doctrine is not, however, readily invoked
in civil cases. Instead, an appellate court “must proceed with the utmost
caution” when applying the plain error doctrine in civil cases. Goldfuss v.
Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The Supreme
Gallia App. Nos. 22CA9 and 22CA10 26
Court of Ohio has set a “very high standard” for invoking
the plain error doctrine in a civil case. Perez v. Falls Financial, Inc., 87
Ohio St.3d 371, 721 N.E.2d 47 (2000). Thus, “the doctrine is sharply
limited to the extremely rare case involving exceptional circumstances
where error, to which no objection was made at the trial court, seriously
affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial
process itself.” Goldfuss, 79 Ohio St.3d at 122, 679 N.E.2d
1099; accord Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719,
816 N.E.2d 1049, ¶ 43. Moreover, appellate courts “ ‘should be hesitant to
decide [forfeited errors] for the reason that justice is far better served when it
has the benefit of briefing, arguing, and lower court consideration before
making a final determination.’ ” Risner at ¶ 28, quoting Sizemore v. Smith, 6
Ohio St.3d 330, 332, 453 N.E.2d 632 (1983), fn. 2; accord Mark v. Mellott
Mfg. Co., Inc., 106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th Dist.1995)
(“Litigants must not be permitted to hold their arguments in reserve for
appeal, thus evading the trial court process.”). Additionally,
“[t]he plain error doctrine should never be applied to reverse
a civil judgment * * * to allow litigation of issues which could easily have
been raised and determined in the initial trial.” Goldfuss, 79 Ohio St.3d at
Gallia App. Nos. 22CA9 and 22CA10 27
122, 679 N.E.2d 1099. Furthermore, we “ordinarily will not craft a plain-
error argument for an appellant who fails to do so.” Eichenlaub v.
Eichenlaub, 2018-Ohio-4060, 120 N.E.3d 380, ¶ 24 (4th
Dist.); accord Redmond v. Wade, 4th Dist. Lawrence No. 16CA16, 2017-
Ohio-2877, ¶ 34, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d
266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in
part and dissenting in part), quoting Carducci v. Regan, 714 F.2d 171, 177
(D.C. Cir. 1983) (stating that appellate courts “are not obligated to search the
record or formulate legal arguments on behalf of the parties, because ‘
“appellate courts do not sit as self-directed boards of legal inquiry and
research, but [preside] essentially as arbiters of legal questions presented and
argued by the parties before them” ’ ”); Coleman v. Coleman, 9th Dist.
Summit No. 27592, 2015-Ohio-2500, ¶ 9 (explaining that reviewing court
will not craft plain error argument for an appellant who fails to raise one).
{¶45} In the case before us, Appellant did not argue that the trial court
obviously erred by considering the GAL’s recommendation due to its
alleged inadequacies. We further point out that this court, along with other
Ohio appellate courts, has refused to recognize purported Sup.R. 48.06
violations as reversible error. See In re K.L., 11th Dist. Portage No. 2021-P-
Gallia App. Nos. 22CA9 and 22CA10 28
0022, 2021-Ohio-3080, ¶ 63 (“the failure to comply with the Rules of
Superintendence, even if a technical error, is not reversible”); In re E.W., 4th
Dist. Washington No. 10CA18, 2011-Ohio-2123, ¶ 12
(superintendence rules are internal housekeeping rules that do not create any
substantive rights); Pettit v. Pettit, 12th Dist. Fayette No. CA2011-08-018,
2012-Ohio-1801, ¶ 12 (superintendence rules are “administrative directives
only, and are not intended to function as rules of practice and
procedure”); accord In re R.P., 2021-Ohio-4065, 181 N.E.3d 594, ¶ 31 (10th
Dist.); State v. Clark, 9th Dist. Medina No. 20CA0020-M, 2021-Ohio-3397,
¶ 39; State v. Klayman, 4th Dist. Hocking No. 17CA13, 2018-Ohio-3580, ¶
17; see State ex rel. Parker Bey v. Byrd, 160 Ohio St.3d 141, 2020-Ohio-
2766, 154 N.E.3d 57, ¶ 41, quoting Singer, 50 Ohio St.2d at 110, 362 N.E.2d
1216 (“ ‘[t]he Rules of Superintendence are not designed to alter basic
substantive rights’ ”) (Kennedy, J., concurring in part and dissenting in part).
{¶46} Moreover, Appellant has not shown that the result of the trial
court proceedings would have been different if the GAL’s report had been
more detailed. Appellant has not argued, for example, that the trial court
would have decided not to place the children in the agency’s permanent
custody if the GAL’s report did not suffer from the alleged inadequacies.
Gallia App. Nos. 22CA9 and 22CA10 29
{¶47} We also observe that at the end of the permanent custody
hearing, the parties and the GAL presented closing arguments. During her
closing argument, the GAL recognized the seriousness of the life-altering
decision that she had to make and detailed her observations, reasoning
process, and ultimate recommendation. The GAL explained that she had
some “reservations” about the case and contacted both the court and the
attorneys for the parties to explain “why [she] was having * * * problems.”
She stated that her concerns involved (1) the unsuccessful visitations, (2) the
lack of proof that Appellant earned sufficient income to be able to provide
for the children, and (3) the agency’s inability to inspect Appellant’s
residence. The GAL indicated that she delayed issuing her final report to
give the parties adequate time to resolve those concerns. She stated that if
these “easily remedied” concerns were resolved, then she “might make a
different suggestion.” The GAL related that she gave “the parents the
absolute benefit of every doubt that [she] had” to allow them “one last
chance to show [her] that they cared enough to get these things done.” She
stated, however, that as of the date of the permanent custody hearing,
Appellant still had not allowed the agency to inspect the home to determine
its suitability for the children, had not produced evidence of stable income
via paycheck stubs, and had not demonstrated consistent visitation.
Gallia App. Nos. 22CA9 and 22CA10 30
{¶48} The GAL noted that she had given Appellant time to
demonstrate consistent visitation after the visitation center lifted its mask
mandate, yet his visitation record remained dismal. She stated that after the
center lifted its mask mandate, “there had been no improvement.” The GAL
indicated that she had hoped that she would have “seen some effort being
made” so that Appellant’s visits could be increased and so that he could
become more involved in the children’s lives.
{¶49} The GAL explained that when reaching her decision to
recommend that the court place the children in the agency’s permanent
custody, she considered all of the foregoing factors, as well as the children’s
stability with the foster family, the length of time that they had spent in the
foster home, and their young age. She related her belief that she has “gone
beyond * * * to try to get [the parents] to do some compliance so that [she
could] make a different recommendation.” The GAL stated that she gave
her decision “hours and hours of thought and prayer” and considered
“everyone involved.” She further recognized, however, that her primary
duty was to act in the children’s best interests. The GAL concluded that due
to the parents’ “lackadaisical attitude,” she does not believe that either
parent has demonstrated that they would provide the children with “a
Gallia App. Nos. 22CA9 and 22CA10 31
suitable, stable, [and] healthy environment.” She thus recommended that the
court place the children “with the foster family for permanent placement.”
{¶50} For all of the above reasons, we do not agree with Appellant
that the trial court erred, plainly or otherwise, by relying upon the GAL’s
report and recommendation.
Ineffective Assistance of Counsel
{¶51} Appellant next asserts that trial counsel was ineffective for
failing to ask the GAL more questions about her investigation.
{¶52} 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,
758 N.E.2d 780 (4th Dist.2001), citing In re Heston, 129 Ohio App.3d 825,
827, 719 N.E.2d 93 (1st Dist.1998); e.g., In re J.P.B., 4th Dist. Washington
No. 12CA34, 2013-Ohio-787, ¶ 23; In re K.M.D., 4th Dist. Ross No.
11CA3289, 2012-Ohio-755, ¶ 60; In re A.C.H., 4th Dist. Gallia No. 11CA2,
2011-Ohio-5595, ¶ 50. “ ‘Where the proceeding contemplates the 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
Gallia App. Nos. 22CA9 and 22CA10 32
of parental custody.’ ” Wingo at 666, 758 N.E.2d 780, quoting Heston at
827, 719 N.E.2d 93.
{¶53} A parent who seeks to overturn a permanent custody decision
on the basis of ineffective assistance of counsel must establish “(1) deficient
performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have
been different.” State v. Madison, 160 Ohio St.3d 232, 2020-Ohio-3735,
155 N.E.3d 867, ¶ 20, citing Strickland v. Washington, 466 U.S. 668, 687-
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord State v. Myers,
154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85.
{¶54} When considering whether trial counsel’s representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Thus,
a party challenging counsel’s effectiveness “must overcome the presumption
that, under the circumstances, the challenged action might be considered
sound trial strategy.” Id. Additionally, “[a] properly licensed attorney is
presumed to execute his duties in an ethical and competent manner.” State
Gallia App. Nos. 22CA9 and 22CA10 33
v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10,
citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
Therefore, a party challenging counsel’s effectiveness 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, 104 S.Ct. 2052; e.g.,
Obermiller at ¶ 84; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,
860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d
476 (1988).
{¶55} To establish prejudice, the party must demonstrate that a
reasonable probability exists that “ ‘but for counsel’s errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine the outcome.’ ” Hinton v. Alabama, 571
U.S. 263, 275, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014),
quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also State v.
Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of
the syllabus. Furthermore, courts may not simply assume the existence of
prejudice, but must require the challenger to affirmatively establish
prejudice. See State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707,
Gallia App. Nos. 22CA9 and 22CA10 34
¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002). As we
have repeatedly recognized, speculation is insufficient to demonstrate the
prejudice component of an ineffective assistance of counsel claim. See State
v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22; State v.
Simmons, 4th Dist. Highland No. 13CA4, 2013-Ohio-2890, ¶ 25; State v.
Halley, 4th Dist. Gallia No. 10CA13, 2012-Ohio-1625, ¶ 25; State v.
Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 68; accord State
v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86
(stating that an argument that is purely speculative cannot serve as the basis
for an ineffectiveness claim).
{¶56} “Failure to establish either element is fatal to the claim.” State
v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14. Therefore,
if one element is dispositive, a court need not analyze both. State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a
defendant’s failure to satisfy one of the ineffective-assistance-of-counsel
elements “negates a court's need to consider the other”).
{¶57} In the case at bar, even if Appellant could establish that trial
counsel’s decision not to question the GAL’s investigative efforts was
deficient, Appellant has not demonstrated that the result of the proceeding
would have been different if counsel had asked the GAL about her
Gallia App. Nos. 22CA9 and 22CA10 35
investigative efforts. Instead, as we noted in our plain-error discussion, the
GAL outlined some of her efforts and detailed her reasoning process during
her closing argument. Appellant has not asserted that additional questioning
of the GAL would have produced inadequate efforts or a faulty reasoning
process that would have led the court to question the GAL’s
recommendation. Consequently, we do not believe that appellant has
established that trial counsel failed to provide effective assistance of counsel.
{¶58} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s second assignment of error.
CONCLUSION
{¶59} Having overruled Appellant’s two assignments of error, we
affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Gallia App. Nos. 22CA9 and 22CA10 36
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and Appellant
shall pay costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Gallia County Juvenile Court 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.
Abele, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding 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.