In re J.P. , 2019 Ohio 1619 ( 2019 )

[Cite as In re J.P., 2019-Ohio-1619.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: :
No. 18AP-834
J.P., : (C.P.C. No. 15JU-11854)
(M.P. : (REGULAR CALENDAR)
Appellant). :
D E C I S I O N
Rendered on April 30, 2019
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
On brief: Jinx S. Beachler, for appellant M.P.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch.
KLATT, P.J.
{¶ 1} Appellant, M.P., the father of J.P., appeals a judgment of the Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, that granted
permanent custody of J.P. to appellee, Franklin County Children Services ("FCCS"). For
the following reasons, we affirm that judgment.
{¶ 2} J.P. was born on September 11, 2015. At the time of J.P.'s birth, both she and
her mother, J.G., tested positive for opiates. J.G. also tested positive for cocaine. J.P.
exhibited symptoms of drug withdrawal, so she remained in the hospital for treatment.
When M.P. visited J.P. at the hospital, he slurred his words, fell asleep, and ran into a wall.
Both M.P. and J.G. had criminal histories that included charges related to drug use. Neither
No. 18AP-834 2
parent would communicate with FCCS, thus stymieing FCCS' attempts to evaluate the
parents' ability to care for J.P. upon her discharge from the hospital.
{¶ 3} On September 25, 2015, FCCS filed a complaint that alleged that J.P. was an
abused, neglected, and dependent child, and sought custody of J.P. In response to the
complaint, the trial court issued an emergency custody order for J.P. to FCCS. On
December 14, 2015, the trial court held an adjudicatory hearing regarding J.P. Neither
parent attended the hearing. In a decision dated December 16, 2015, the trial court issued
a judgment finding J.P. to be an abused, neglected, and dependent child, and committing
J.P. to the temporary custody of FCCS.
{¶ 4} FCCS developed a case plan for J.P.'s parents that required them to
participate in a drug and alcohol assessment and follow all treatment recommendations,
complete random drug screens, sign all necessary releases, attend parenting classes, visit
J.P. consistently on a weekly basis, obtain and document a legal source of income, and
secure safe and stable housing. Neither parent complied with the requirements of the case
plan. After the annual review conducted September 23, 2016, the trial court found that J.G.
had only completed one of 35 drug screens, and that screen was positive for illegal
substances. M.P. did not complete any of the 17 drug screens requested of him. Neither
J.G. nor M.P. had completed a drug and alcohol assessment or parenting classes. Also,
neither parent had maintained consistent contact with J.P. or secured stable housing.
Finally, at the time of the review, M.P. had criminal charges pending against him. As a
result of these findings, the trial court issued a decision extending FCCS' temporary custody
over J.P.
{¶ 5} On January 13, 2017, FCCS moved for permanent custody of J.P. pursuant to
R.C. 2151.413(D)(1), which requires a public children services agency to move for
permanent custody if a child has been in the agency's temporary custody for "twelve or
more months of a consecutive twenty-two-month period." FCCS' motion alleged that J.P.
had been in the temporary custody of FCCS for 13 of the previous 22 months. Additionally,
the motion stated that both of J.P.'s parents suffered from severe chemical dependency and,
at the time the motion was filed, both parents were incarcerated.
{¶ 6} On August 21, 2017, Teresa Babb, the FCCS caseworker assigned to J.P.'s
family, met with M.P. while he was confined in the Franklin County jail. During that
No. 18AP-834 3
meeting, M.P. told Babb that his sister, W.P., might be willing to take custody of J.P. Babb
spoke with W.P. on the telephone and, in that call, W.P. confirmed her interest in accepting
custody of J.P.
{¶ 7} Ultimately, FCCS decided not to pursue placing J.P. with W.P. When M.P.
disclosed W.P. as a potential placement, J.P. had been in FCCS' temporary custody for
almost two years. By that time, J.P. had spent approximately one year in the care of foster
parents who had already adopted J.P.'s older biological half-brother. The household
included J.P.'s older half-sister, who was also a foster child. J.P. shared a close bond with
her two siblings and her foster parents, who could be prospective adoptive parents. Because
J.P. resided in a stable, potentially permanent home with her siblings, FCCS did not believe
it was in J.P.'s best interest to uproot her and place her with a caregiver who J.P. had never
met.
{¶ 8} On February 23, 2018, a hearing on FCCS' motion for permanent custody was
scheduled to occur before a magistrate. Although neither parent showed up for the hearing,
W.P. did. When the magistrate asked if the parties had any preliminary matters, M.P.'s
attorney made an oral motion to make W.P. a party to the custody proceedings. W.P.,
however, had not previously filed any written motion seeking party status or the legal
custody of J.P. Due to the absence of a properly filed and served motion, the magistrate
denied M.P.'s motion.
{¶ 9} M.P.'s attorney then moved for a continuance because J.P.'s guardian ad
litem had not filed a report at least seven days prior to the hearing date. The magistrate
granted the continuance and rescheduled the permanent custody hearing for March 6,
2018. In response, M.P. stated that an 11-day continuance would not give W.P. enough time
to file and serve a motion for legal custody of J.P. The magistrate replied:
I'm not continuing [the hearing] for the relative to file a motion.
I'm continuing it for an updated [guardian ad litem's] report,
that's it.
***
[The] relative has been out there. You've known about the
relative. You've said you've known about it. You could've filed
[a motion identifying the relative as a potential legal custodian]
on father's behalf. There is nothing before the Court. That is
not the reason for the continuance.
No. 18AP-834 4
***
It's a year in. You can call [W.P.] as a witness.
(Feb. 23, 2018 Tr. at 18-19.)
{¶ 10} M.P.'s attorney then asked the magistrate if W.P. could immediately testify
as a witness instead of returning on March 6 to testify. The magistrate denied the attorney's
request, telling the attorney, "I'm not go[ing to] allow [W.P.] to * * * testify when you're
saying you're not ready. You're either ready or you're not." Id. at 19. M.P.'s attorney then
proffered W.P.'s testimony into the record.
{¶ 11} J.P.'s guardian ad litem filed a report on February 27, 2018. The hearing on
FCCS' motion for permanent custody began a week later, on March 6, 2018. Again, neither
parent attended. Like J.P.'s parents, W.P. was also absent from the hearing. Due to W.P.'s
absence, M.P. could not call her as a witness. Additionally, W.P. did not file a motion for
legal custody either before or after the hearing.
{¶ 12} Two witnesses testified at the hearing: Babb, the FCCS caseworker, and
Michelle Martin, J.P.'s guardian ad litem. Babb testified as to her experience with M.P.,
J.G., J.P., and W.P. According to Babb, neither M.P. nor J.G. had visited with J.P. from
October 2016 through March 6, 2018. At the time of the hearing, M.P. was in prison serving
a sentence for offenses that included possession of cocaine and heroin. M.P. had not
completed a drug and alcohol assessment or parenting classes.
{¶ 13} Babb testified that she first met J.G. in December 2016 when J.G. was an
inmate of the Delaware County jail. J.G. received drug treatment and attended parenting
classes while incarcerated. However, J.G. stopped communicating with Babb soon after
her release from jail in May 2017. By February 2018, J.G. was once again incarcerated.
Both Babb and Martin recommended that the juvenile court award FCCS permanent
custody of J.P.
{¶ 14} In a decision dated March 21, 2018, the magistrate granted FCCS permanent
custody of J.P. The magistrate found by clear and convincing evidence that J.P. had been
in FCCS' temporary custody for over 12 months of a consecutive 22-month period and that
it was in J.P.'s best interest for FCCS to receive permanent custody of her. When
determining whether permanent custody was in J.P.'s best interest, the magistrate
considered the factors set out in R.C. 2151.414(D)(1).
No. 18AP-834 5
{¶ 15} M.P. objected to the magistrate's decision. In a judgment dated October 24,
2018, the juvenile court denied each of M.P.'s objections and adopted the magistrate's
decision. M.P. now appeals the October 24, 2018 judgment to this court.
{¶ 16} Before considering the merits of M.P.'s arguments, we must address two
fundamental deficiencies in M.P.'s appellate brief. First, the brief contains no assignments
of error. Pursuant to App.R. 16(A)(3), an appellant's brief must contain "[a] statement of
the assignments of error presented for review, with reference to the place in the record
where each error is reflected." Assignments of error are particularly important because
appellate courts determine each appeal "on its merits on the assignments of error set forth
in the briefs under App.R. 16." App.R. 12(A)(1)(b). Consequently, without assignments of
error, an appellate court has nothing to review. Luke v. Roubanes, 10th Dist. No. 16AP-
766, 2018-Ohio-1065, ¶ 16.
{¶ 17} Appellate courts have discretion to dismiss appeals that fail to set forth
assignments of error. CitiMortgage, Inc. v. Asamoah, 10th Dist. No. 12AP-212, 2012-Ohio-
4422, ¶ 5; Tonti v. Tonti, 10th Dist. No. 06AP-732, 2007-Ohio-2658, ¶ 2. Many times,
however, appellate courts instead review the appealed judgment using the appellant's
arguments in the interest of serving justice. Asamoah at ¶ 6; Tonti at ¶ 2. We will follow
that path in this permanent child custody case.
{¶ 18} Although M.P. failed to assign any errors, he did present issues for review.
We will treat those issues as assignments of error. Therefore, M.P. assigns as error:
There is not competent and credible evidence supports [sic] the
trial court's finding that:
1. There was clear and convincing evidence that shows the
granting of Franklin County Children Services' request
for permanent custody is in child's best interest.
2. The Magistrate did not err in refusing to hear the
testimony of the paternal aunt, [W.P.], as an alternative
placement.
3. It was not error to not consider the Father's sister's
testimony that included her willingness to provide
placement of the child and take legal custody of said
child.
No. 18AP-834 6
4. FCCS did not violated [sic] its duty to investigate
alternative relative placements, which did not violate
the due process rights of the Father, as well as statutory
and/or legal procedures.
5. The [guardian ad litem] did not violate her duty to said
child as the [guardian ad litem] and to the trial court,
since the trial court found that she substantially
discharged her duties.
6. The Magistrate did not err by denying [W.P.] a
continuance.
{¶ 19} Having resolved the first deficiency in M.P.'s brief, we turn to the second
deficiency; namely, M.P.'s failure to argue each assignment of error separately. An
appellant's brief must include "[a]n argument containing the contentions of the appellant
with respect to each assignment of error presented for review and the reasons in support of
the contentions." App.R. 16(A)(7). A court of appeals "may disregard an assignment of
error presented for review if the party raising it * * * fails to argue the assignment separately
in the brief, as required under App.R. 16(A)." App.R. 12(A)(2). Thus, if an appellant fails
to argue each assignment of error individually and specifically, a court of appeals may set
aside the assignments of error and summarily affirm the trial court's decision. Wigal v.
Wigal, 4th Dist. No. 06CA70, 2008-Ohio-747, ¶ 28; Cook v. Wilson, 165 Ohio App.3d 202,
2006-Ohio-234, ¶ 16 (10th Dist.).
{¶ 20} M.P.'s brief contains a single argument section that fails to correlate the
arguments made with any particular assignment of error. In the interest of justice, we will
address those arguments we can connect to an assignment of error. However, we cannot
discern any argument supporting M.P.'s fourth assignment of error. By that assignment of
error, M.P. asserts that FCCS failed to fulfill its duty to investigate relative placements for
J.P., and FCCS' failure violated legal procedure and M.P.'s due process rights. In his
argument section, M.P. does not identify the legal basis for FCCS' alleged duty to investigate
relative placements or explain how FCCS' supposed dereliction of its duty deviated from
legal procedure or deprived M.P. of due process. We will not make M.P.'s arguments for
him. See In re P.A., 10th Dist. No. 17AP-728, 2018-Ohio-2314, ¶ 16 ("An appellant has the
duty to construct the arguments necessary to support the assignments of error; an appellate
No. 18AP-834 7
court will not construct those arguments for the appellant."). Accordingly, we overrule
M.P.'s fourth assignment of error.
{¶ 21} All of M.P.'s remaining assignments of error relate to the trial court's
determination that a grant of permanent custody to FCCS was in J.P.'s best interest. As we
stated above, a public children services agency must file a motion seeking permanent
custody of a child if the child has been in the temporary custody of the agency for 12 or more
months of a consecutive 22-month period. R.C. 2151.413(D)(1). When an agency files a
motion seeking permanent custody of a child pursuant to R.C. 2151.413(D)(1), the juvenile
court must follow the procedures and make the findings required by R.C. 2151.414 before
granting the motion. In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26; In re C.F., 113
Ohio St.3d 73, 2007-Ohio-1104, ¶ 22-23.
{¶ 22} R.C. 2151.414(A)(1) requires the juvenile court to conduct a hearing on the
motion for permanent custody. The juvenile court must hold the hearing no later than 120
days after the agency files the motion for permanent custody, except that, for good cause
shown, the juvenile court may continue the hearing. R.C. 2151.414(A)(2). The juvenile
court must file a judgment disposing of the motion for permanent custody no later than
200 days after the agency files the motion. Id.{¶ 23} The juvenile court may grant permanent custody of a child to the agency "if
the court determines at the hearing * * *, by clear and convincing evidence, that it is in the
best interest of the child to grant permanent custody of the child to the agency * * * and that
any of the following apply:
"(a) * * * [T]he 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 * * *.
No. 18AP-834 8
"(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) through (e).
{¶ 24} Once the juvenile court decides that one of the circumstances in R.C.
2151.414(B)(1) applies, the court turns to R.C. 2151.414(D) to decide if a grant of permanent
custody is in the child's best interest. Pursuant to R.C. 2151.414(D)(1), in determining a
child's best interest, the juvenile court "shall consider all relevant factors, including, but not
limited to, the following:
"(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
"(b) The wishes of the child, as expressed directly by the child
or through the child's guardian ad litem, with due regard for
the maturity of the child;
"(c) The custodial history of the child, including whether 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 * * *;
"(d) 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;
"(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child."
R.C. 2151.414(D)(1)(a) through (e).
{¶ 25} An appellate court will not reverse a juvenile court's determination in a
permanent custody case unless that determination is against the manifest weight of the
evidence. In re A.N.F., 10th Dist. No. 17AP-905, 2018-Ohio-3689, ¶ 15; In re J.R., 10th
Dist. No. 17AP-698, 2018-Ohio-1474, ¶ 34; In re T.G., 10th Dist. No. 17AP-411, 2018-Ohio-
502, ¶ 9. In reviewing the juvenile court's decision, an appellate court makes every
reasonable presumption in favor of the judgment and the juvenile court's findings of fact.
No. 18AP-834 9
In re A.N.F. at ¶ 15; In re J.R. at ¶ 35; In re T.G. at ¶ 9. If the evidence is susceptible of more
than one construction, an appellate court must give it that interpretation that is consistent
with the judgment. In re A.N.F. at ¶ 15; In re J.R. at ¶ 35; In re T.G. at ¶ 9.
{¶ 26} M.P.'s main contention in this appeal is that the juvenile court should not
have granted FCCS permanent custody of J.P. when W.P. could potentially assume legal
custody of J.P. "Permanent custody" is "a legal status that vests in a public children services
agency * * * all parental rights, duties, and obligations * * * and divests the natural parents
* * * of all parental rights, privileges, and obligations, including all residual rights and
obligations." R.C. 2151.011(B)(31). "Legal custody" is
a legal status that vests in the custodian the right to have
physical care and control of the child and to determine where
and with whom the child shall live, and the right and duty to
protect, train, and discipline the child and to provide the child
with food, shelter, education, and medical care, all subject to
any residual parental rights, privileges, and responsibilities.
R.C. 2151.011(B)(21). A grant of legal custody of a child is intended to be permanent in
nature. R.C. 2151.42(B).
{¶ 27} The possibility that a relative could provide a permanent placement for a
child by assuming legal custody is relevant to the consideration of the R.C.
2151.414(D)(1)(d) best-interest factor. See R.C. 2151.414(D)(1)(d) (requiring a juvenile
court to consider whether a legally secure permanent placement could be achieved without
a grant of permanent custody to an agency).1 That factor, in turn, helps determine whether
a court should grant permanent custody to an agency and terminate a parent's rights.
Consequently, a parent has standing to raise arguments regarding the possibility of a
relative assuming legal custody of a child, but only to the extent that those arguments
challenge the decision to terminate the parent's rights. See In re S.C., 8th Dist. No. 106701,
2018-Ohio-2523, ¶ 16 (holding that a parent has no standing to assert that a juvenile court
1 By acknowledging this relevance, we do not in any way depart from earlier precedent holding that nothing
in R.C. 2151.414 requires a juvenile court to consider granting legal custody of a child to a relative prior to
granting permanent custody to an agency. See In re K.L.D., 10th Dist. No. 12AP-652, 2013-Ohio-610, ¶ 37;
In re J.C., 10th Dist. No. 09AP-1112, 2010-Ohio-2422, ¶ 17; see also In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, ¶ 62-64 (concluding that the juvenile court satisfied its statutory duty under R.C.
2151.414(D)(1)(d) when it found that a legally secure permanent placement could be found by placing the
child in the legal custody of a relative, although the juvenile court ultimately granted permanent custody to
a public children services agency because it was in the child's best interest).
No. 18AP-834 10
abused its discretion by failing to grant a relative legal custody; rather, the challenge is
limited to how the court's decision impacted the parent's rights); In re S.G., 3d Dist. No. 4-
16-13, 2016-Ohio-8403, ¶ 52 (same); In re R.V., 6th Dist. No. L-10-1278, 2011-Ohio-1837,
¶ 15 (same); In re Pittman, 9th Dist. No. 20894, 2002-Ohio-2208, ¶ 70 (same). M.P.,
therefore, has standing to pursue this appeal. However, as we review M.P.'s assignments
of error, we will construe them in a manner consistent with the limitation on his standing.
{¶ 28} We will begin our analysis with M.P.'s second and third assignments of error,
which are interrelated. By these two assignments of error, M.P. argues that the juvenile
court erred in not considering W.P.'s testimony when determining whether a grant of
permanent custody was in J.P.'s best interest. We are not persuaded by this argument.
{¶ 29} First, M.P. never asked the magistrate to consider W.P.'s proffered testimony
as evidence. After the magistrate continued the permanent custody hearing to March 6,
2018, she rejected M.P.'s request to prematurely present W.P.'s testimony. Essentially, the
magistrate told M.P. that he could call W.P. as a witness during the hearing, but not prior
to the hearing.2 When W.P. did not appear at the hearing, M.P. could not call her to the
stand. Thus, if M.P. wanted the magistrate to consider W.P.'s earlier-recorded testimony,
he had to ask the magistrate to admit it as evidence at the hearing. M.P. did not do so. In
the absence of such a request, no error occurred in disregarding the testimony.
{¶ 30} Second, even without W.P.'s testimony, the hearing record contains evidence
regarding the matters W.P. testified about and the juvenile court considered that evidence.
The FCCS caseworker testified at the hearing that W.P. had expressed willingness to
assume custody of J.P. The magistrate acknowledged W.P.'s amenability to taking custody
when discussing the R.C. 2151.414(D)(1)(d) best-interest factor, i.e., "[t]he 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." The magistrate concluded that W.P.
could not offer J.P. a legally secure placement because, even though she was willing to take
2 Notably, the magistrate did not exclude W.P. from testifying at the hearing. The purpose of a proffer is to
assist a reviewing court in determining if an exclusion of evidence prejudiced the complaining party, thus
warranting a reversal. State v. Eytcheson, 2d Dist. No. 27650, 2018-Ohio-2036, ¶ 46. Because the
magistrate did not exclude W.P.'s testimony, a proffer was inappropriate. Additionally, even if we were to
construe the magistrate's ruling as an exclusion of evidence, M.P. never argued to the juvenile court or this
court that the magistrate ruled wrongly. Thus, neither the juvenile court nor this court have reason to
consider the substance of the proffer.
No. 18AP-834 11
custody of J.P., W.P. had never filed a motion seeking legal custody of the child. Thus, the
magistrate found that no relatives were available for a permanent placement. The juvenile
court concurred, stating that because W.P. did not file a motion for legal custody, the court
could not consider her as a permanent placement for J.P.
{¶ 31} M.P. concedes that W.P. never filed a motion for legal custody of J.P.
Additionally, M.P. does not contend that the juvenile court erred in rejecting W.P. as a
legally secure permanent placement due to W.P.'s failure to file a motion for legal custody.
M.P., instead, challenges the juvenile court's refusal to grant a continuance so W.P. could
file a motion for legal custody. This challenge is the basis of M.P.'s sixth assignment of
error.
{¶ 32} A juvenile court has broad discretion to grant or deny a continuance. In re
J.C., 10th Dist. 10AP-766, 2011-Ohio-715, ¶ 37. In evaluating a request for a continuance,
a court considers: (1) the length of the delay requested; (2) whether the parties have
requested and received other continuances; (3) the inconvenience to the parties, witnesses,
opposing counsel, and the court; (4) whether the reason for the requested delay is
legitimate or merely dilatory, purposeful, or contrived; (5) whether the movant contributed
to the circumstances giving rise to the request for a continuance; and (6) and any other
relevant factors. Id. at ¶ 38; In re K.J., 10th Dist. No. 17AP-457, 2018-Ohio-471.
{¶ 33} During the February 23, 2018 proceeding, the magistrate refused to continue
the hearing for the length of time W.P. needed to file and obtain service of a motion for legal
custody. The magistrate insisted on only a short continuance because FCCS' motion for
permanent custody had been pending for over a year.
{¶ 34} M.P. advances only one reason why the denial of a longer continuance
constituted an abuse of discretion; namely, that it unfairly impacted him. The focus of
permanent custody proceedings, however, is on the best interest of the child, not the impact
on the parent. Additionally, two factors militated heavily against a continuance. First, a
ruling on the motion for permanent custody was past due. As we stated above, R.C.
2151.414(A)(2) directs juvenile courts to resolve permanent custody motions within 200
days. By the time of W.P.'s first appearance in court on February 23, 2018, FCCS' motion
for permanent custody had been pending for over a year. Given the lapse of the 200-day
deadline, the juvenile court was justified in denying any further continuance of the hearing.
No. 18AP-834 12
See In re K.J. (finding no abuse of discretion in denying a continuance of a permanent
custody hearing when FCCS' motion had been pending for more than 200 days).
{¶ 35} Second, both M.P. and W.P. had ample time in which to file a motion
regarding legal custody but chose not to do so. Once a child is adjudicated an abused,
neglected, or dependent child, a juvenile court may award legal custody of the child to a
person who, pursuant to R.C. 2151.353(A)(3), has filed a motion requesting legal custody
or is identified as a proposed legal custodian in a complaint or motion filed by a party. In
re J.C., 10th Dist. No. 09AP-1112, 2010-Ohio-2422, ¶ 17. Thus, either M.P. or W.P. could
have filed a legal custody motion any time after December 16, 2015, the date on which the
juvenile court issued the judgment adjudicating J.P. an abused, neglected, and dependent
child. Neither M.P. nor W.P. acted until February 23, 2018. Thus, M.P.'s and W.P.'s
inaction contributed to the circumstances giving rise to the need for a continuance. Given
the time constraints at issue and M.P.'s and W.P.'s procrastination, we find no abuse of
discretion in the denial of a continuance to allow W.P. to file and serve a motion for legal
custody.
{¶ 36} In sum, we conclude that the juvenile court had no obligation to consider
W.P.'s testimony because it was not evidence adduced during the permanent custody
hearing. Nevertheless, the court factored W.P.'s willingness to take custody of J.P. into its
best-interest review and found that willingness irrelevant because W.P. had not filed a
motion for legal custody of J.P. The juvenile court did not abuse its discretion in denying
W.P. a continuance to file such a motion. Finding no error in the juvenile court's actions,
we overrule M.P.'s second, third, and sixth assignments of error.
{¶ 37} We now return to M.P.'s first assignment of error. By that assignment of
error, M.P. argues that the trial court erred in finding that a grant of permanent custody to
FCCS was in J.P.'s best interest. M.P. asserts that the juvenile court (1) improperly applied
the R.C. 2151.414(D)(2) best-interest test, and (2) failed to consider W.P.'s interaction and
interrelationship with J.P. when considering the R.C. 2151.414(D)(1)(a) best-interest factor.
We find that no error occurred.
{¶ 38} First, M.P. asserts that the juvenile court erred in finding that this case met
the criteria set forth in R.C. 2151.414(D)(2)(b) and (d). M.P., however, is focused on the
wrong division of R.C. 2151.414(D).
No. 18AP-834 13
{¶ 39} In determining the best interest of a child, a juvenile court may apply one of
two different tests. Under R.C. 2151.414(D)(1), the juvenile court weighs multiple factors
(quoted above) to decide whether granting an agency permanent custody of a child is in
that child's best interest. On the other hand, under R.C. 2151.414(D)(2), if the juvenile court
makes the four enumerated findings, permanent custody is per se in the child's best interest
and the court "shall" commit the child to the permanent custody of the agency. In re J.R.,
10th Dist. No. 17AP-698, 2018-Ohio-1474, ¶ 41; accord In re M.P., 10th Dist. No. 10AP-
478, 2010-Ohio-5877, ¶ 35 ("R.C. 2151.414(D)(2) sets forth the circumstances under which
a trial court is required to grant permanent custody, while the court employing the factors
in R.C. 2151.414(D)(1) considers them to determine whether the best interests of the
children are served in granting the permanent custody motion.").
{¶ 40} R.C. 2151.414(D)(1) and 2151.414(D)(2) are alternative means for reaching
the best-interest determination. In re M.K., 10th Dist. No. 09AP-1141, 2010-Ohio-2194,
¶ 22. Where a juvenile court employs the R.C. 2151.414(D)(1) method of determining the
child's best interest, the court need not also conduct the R.C. 2151.414(D)(2) analysis. In re
T.P., 11th Dist. No. 2018-A-0001, 2018-Ohio-1330, ¶ 27-28.
{¶ 41} Here, the juvenile court employed the factor test of R.C. 2151.414(D)(1) to
decide that granting permanent custody to FCCS was in J.P.'s best interest. Therefore, the
fact that the circumstances of this case do not satisfy all the criteria of R.C. 2151.414(D)(2)
is irrelevant.
{¶ 42} Next, M.P. asserts that the juvenile court improperly failed to consider W.P.
when weighing the R.C. 2151.414(D)(1)(a) factor, i.e., "[t]he interaction and
interrelationship of the child with the child's parents, siblings, relatives, foster caregivers
and out-of-home providers, and any other person who may significantly affect the child."
While the juvenile court did not mention W.P. in its discussion of the R.C. 2151.414(D)(1)(a)
factor, the court was aware of W.P. and her relationship with J.P. The juvenile court
identified W.P. as J.P.'s paternal aunt and found, based on W.P.'s own admission, that she
and J.P. had never met. Because W.P. had no interactions with J.P. and her
interrelationship with J.P. was limited to their blood connection, we cannot fault the
juvenile court for omitting W.P. from its discussion of the R.C. 2151.414(D)(1)(a) factor.
No. 18AP-834 14
{¶ 43} In sum, we reject both of M.P.'s arguments under the first assignment of
error. Consequently, we overrule that assignment of error.
{¶ 44} By his fifth assignment of error, M.P. argues that the guardian ad litem failed
to fully perform her duties. Even if M.P. is correct, he has failed to show how the guardian's
failings prejudiced him.
{¶ 45} With certain inapplicable exceptions, a juvenile court must appoint a
guardian ad litem to protect the interest of any alleged abused, neglected, or dependent
child. R.C. 2151.281(B). A guardian ad litem 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
provided the child" by a public children services agency. R.C. 2151.281(I). A guardian ad
litem's failure to comply with his or her duties is not a basis for reversal of a permanent
custody determination unless the parent demonstrates prejudice. In re K.R., 12th Dist. No.
CA2017-02-015, 2017-Ohio-7122, ¶ 22; In re W.H., 3d Dist. No. 9-16-19, 2016-Ohio-8206,
¶ 79; In re J.C., 4th Dist. No. 07CA833, 2007-Ohio-3781, ¶ 13.
{¶ 46} M.P. asserts that J.P.'s guardian ad litem failed to fulfill her duties because
she did not visit W.P.'s home to assess its appropriateness for J.P or review the FCCS
activity logs relevant to J.P. However, we are not persuaded that either alleged failing
affected the juvenile court's decision, thus prejudicing M.P. W.P.'s failure to file a motion
for legal custody of J.P. rendered the guardian's assessment of W.P.'s home unnecessary.
Thus, the lack of a visit to W.P.'s home could not influence the juvenile court's best-interest
determination. Likewise, the guardian ad litem's failure to review the FCCS activity logs
resulted in no prejudice. M.P. points to no information contained in an activity log of which
the guardian ad litem was unaware. In the sole activity log report admitted into evidence
at the permanent custody hearing, the FCCS caseworker related a telephone conversation
with W.P. in which W.P. expressed interest in taking J.P. into her home. The guardian ad
litem, however, knew of W.P.'s interest and incorporated it into her report to the court.
M.P., therefore, has not demonstrated that the alleged failings of the guardian ad litem
prejudiced him. Consequently, we overrule M.P.'s fifth assignment of error.
No. 18AP-834 15
{¶ 47} For the foregoing reasons, we overrule all of M.P.'s six assignments of error,
and we affirm the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile Branch.
Judgment affirmed.
SADLER and BEATTY BLUNT, JJ., concur.