In re Z.S.

[Cite as In re Z.S., 2023-Ohio-688.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
:
IN THE MATTER OF:
: CASE
NO. 22CA12
Z.S.,
22CA13
:
Alleged Dependent
Child.1 : DECISION
& JUDGMENT ENTRY
:
________________________________________________________________
APPEARANCES:
Steven H. Eckstein, Washington Court House, Ohio, for Appellant
Mother.
Autumn D. Adams, Toledo, Ohio, for Appellant Father.
Justin Lovett, Jackson County Prosecuting Attorney, and William
L. Archer, Jr., Assistant Jackson County Prosecuting Attorney,
Portsmouth, Ohio, for Appellee.
_______________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED:3-1-23
ABELE, J.
{¶1} This is a consolidated appeal from a Jackson County
Common Pleas Court, Juvenile Division, judgment that granted
Jackson County Job and Family Services, appellee herein,
permanent custody of two-year-old Z.S.
1 This opinion uses the caption that appears on the trial court’s
judgment that granted appellee permanent custody of the child.
JACKSON, 22CA12, 22CA13 2
{¶2} The child’s biological mother assigns the following
error for review:
“THE TRIAL COURT’S GRANT OF PERMANENT
CUSTODY TO THE JACKSON COUNTY JOBS AND
FAMILY SERVICES CHILDREN’S DIVISION WAS
AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶3} The child’s biological father also raises the
following assignment of error:
“THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT GRANTED PERMANENT CUSTODY [OF] ZS TO
CHILD PROTECTIVE SERVICES BECAUSE THE
APPOINTED GUARDIAN AD LITEM FAILED TO
CONDUCT AN INDEPENDENT INVESTIGATION AS TO
THE BEST INTERESTS OF ZS.”
{¶4} On October 13, 2020, appellee filed a complaint that
alleged the then 11-month-old child to be neglected and
dependent. The complaint asserted that the child had been
exposed to domestic violence and the parents did not comply with
safety plans. Appellee requested temporary custody and
separately asked for emergency temporary custody, which the
court granted.
{¶5} On January 8, 2021, the trial court adjudicated the
child dependent and later entered a dispositional order that
continued the child in appellee’s temporary custody.
{¶6} On March 10, 2022, appellee filed a motion for
permanent custody and alleged that the child has been in its
JACKSON, 22CA12, 22CA13 3
temporary custody for 12 or more months out of a consecutive 22-
month period and that placing the child in its permanent custody
is in the child’s best interest. The motion alleged that (1)
the father currently is incarcerated with a November 15, 2023
scheduled release date, and (2) the mother did not complete her
case plan goals, is on probation, and has a warrant for her
arrest in Tennessee.
{¶7} On June 30, 2022, the trial court held a permanent
custody hearing. At the hearing, caseworker Kristin Butts
characterized mother’s progress throughout the case as
regressive. She explained that mother might make some progress,
but eventually slipped back into using drugs or otherwise
engaged in illicit conduct that led to multiple arrests
throughout the pendency of the case. Butts stated that mother
most recently had been terminated from a program in February
2022 and in June 2022, she was arrested. At the time of the
hearing, the mother was in jail.
{¶8} Caseworker Butts stated she did not meet the father
because he is in prison and his expected release date is in
November 2023. Butts indicated that the child is with a foster
family, doing well in the family’s home and the foster family is
interested in adoption.
{¶9} The child’s guardian ad litem (GAL) also testified and
JACKSON, 22CA12, 22CA13 4
recommended the court grant the agency permanent custody of the
child. The GAL stated that the child is too young to understand
the nature of the proceedings, but the GAL observed that the
child is “very bonded with her foster parents” and is “well
adjusted.” The GAL explained that she had been in contact with
the foster family at various times throughout the case. When
she tried to contact the family before she prepared her final
report, however, she could not reach them. The GAL indicated
that due to an internal error, the agency caseworker had not
given her the family’s current phone number, but instead gave
her the family’s old phone number. Thus, she could not reach
the foster parents before she submitted her final report.
However, the GAL stated she had been in touch with the foster
parents at other points throughout the case.
{¶10} On July 26, 2022, the trial court granted appellee
permanent custody of the child. The court found that (1) the
child has been in appellee’s temporary custody for 12 or more
months of a consecutive 22-month period, (2) placing the child
in appellee’s permanent custody is in her best interest, and (3)
the father “has utterly failed to comply with the case plan,” is
in prison until November 15, 2023, and failed to maintain
contact with the child or appellee even when he was not in
prison. The court further noted that mother has a substance-
JACKSON, 22CA12, 22CA13 5
abuse problem and continued to test positive throughout the
pendency of the case. The court additionally recognized that
the parents have unresolved issues with domestic violence and
mother currently is incarcerated for violating probation. The
court found that “[a]ccording to the GAL, the foster caregivers
have a good relationship with the child and have an interest in
adopting the child should permanent custody be granted to JFS.”
The court further determined that (1) the child is too young to
express her wishes, (2) the parties did not dispute that the
child has been in the agency’s temporary custody for 12 or more
months of a consecutive 22-month period, and (3) the child needs
a legally secure permanent placement that cannot be achieved
without a grant of permanent custody to appellee. The court
stated that “the parents are not in a position to receive
custody” and “drug abuse, various incarcerations and domestic
violence” show they cannot provide the child with a legally
secure permanent placement. The court thus granted appellee
permanent custody of the child. This appeal followed.
I
MOTHER’S APPEAL
{¶11} In her sole assignment of error, mother asserts that
the trial court’s judgment is against the manifest weight of the
evidence. In particular, she argues that clear and convincing
JACKSON, 22CA12, 22CA13 6
evidence does not support the trial court’s finding that the
foster parents have a good relationship with the child and that
they are interested in adopting the child. Because, as mother
points out, the GAL stated at the permanent custody hearing that
she could not reach the foster parents before she submitted her
final report, the GAL lacked any factual basis to support her
assertion that the foster parents share a positive relationship
with the child.
{¶12} Appellee, however, asserts that it presented ample
clear and convincing evidence to support the trial court’s
judgment. Appellee argues that the evidence presented at the
hearing shows, inter alia, that (1) father is in jail with a
November 2023 expected release date, (2) mother was in prison at
the time of the hearing and had other periods of incarceration
throughout the pendency of the case, (3) mother recently was
charged with drug possession, and (4) the mother did not
complete any of the numerous treatment programs that she had
attempted to complete. Appellee also points out that the GAL
clarified during her testimony that she had been in contact with
the foster parents at various points throughout the pendency of
the case, but had been unable to reach them before she submitted
her final report due to miscommunication. Appellee further
contends that any error that might exist would be harmless in
JACKSON, 22CA12, 22CA13 7
light of the other overwhelming evidence that supports the trial
court’s decision.
A
{¶13} 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. E.g., In re B.E.,
4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S.,
4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
“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, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594
(6th Ed.1990).
{¶14} 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,
JACKSON, 22CA12, 22CA13 8
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 at ¶ 20, quoting
Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th
Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, quoting
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983); accord In re Pittman, 9th Dist. Summit No. 20894,
2002-Ohio-2208, ¶¶ 23-24. We further observe, however, that
issues relating 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, 461 N.E.2d 1273 (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.
{¶15} 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 (Emphasis sic).” Davis v.
Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
Accord In re Christian, 4th Dist. No. 04CA 10, 2004-Ohio-3146, ¶
7.
JACKSON, 22CA12, 22CA13 9
{¶16} 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., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809,
¶ 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, 495 N.E.2d 23(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, 564 N.E.2d 54(1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d
613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954) (“Once the clear and convincing standard 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, 495
JACKSON, 22CA12, 22CA13 10
N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163,
165, 492 N.E.2d 140 (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”).
{¶17} 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,
997 N.E.2d 169, ¶ 62 (4th Dist.); In re R.L., 2nd Dist. Greene
Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 17, quoting In re
A.U., 2nd Dist. Montgomery No. 22287, 2008-Ohio-187, ¶ 9 (“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.’”).
{¶18} 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
JACKSON, 22CA12, 22CA13 11
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 State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A
reviewing court should find a trial court’s 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, 20 Ohio App.3d at 175;
accord State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995(2000).
B
{¶19} We 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., 141 Ohio St.3d 55, 2014-
Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530
U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the
right to raise one’s “child is an ‘essential’ and ‘basic’ civil
right.” In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680(1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982) (“natural parents have a fundamental
right to the care and custody of their children”). Thus,
JACKSON, 22CA12, 22CA13 12
“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, 369 N.E.2d 1047 (1977), citing
Clark v. Bayer, 32 Ohio St. 299, 310 (1877); Murray, 52 Ohio
St.3d at 157, 556 N.E.2d 1169.
{¶20} A parent’s rights, however, are not absolute. In re
D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 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, 391 N.E.2d 1034 (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.
{¶21} 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
consider the underlying purposes of R.C. Chapter 2151: “to care
JACKSON, 22CA12, 22CA13 13
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., 113 Ohio St.3d 73, 2007-Ohio-1104,
862 N.E.2d 816, ¶ 29, quoting R.C. 2151.01(A).
C
{¶22} 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).
{¶23} 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 one of the following conditions applies:
(a) The child is not abandoned or orphaned 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 ending on or after March 18,
1999, 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.
JACKSON, 22CA12, 22CA13 14
(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 ending on or after
March 18, 1999.
(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.
{¶24} Thus, before a trial court may award a children
services agency permanent custody, it must find (1) that one of
the circumstances described in R.C. 2151.414(B)(1) applies, and
(2) that awarding the children services agency permanent custody
would further the child’s best interest.
{¶25} In the case at bar, the trial court found that the
child had been in the agency’s temporary custody for more than
12 months of a consecutive 22-month period, and thus, that R.C.
2151.414(B)(1)(d) applies. The mother does not challenge this
finding.
{¶26} R.C. 2151.414(D) 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,
JACKSON, 22CA12, 22CA13 15
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
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.
{¶27} Courts that are determining 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. at ¶ 57, citing In re Schaefer, 111 Ohio St.3d
498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56; accord In re C.G.,
9th Dist. Summit Nos. 24097 and Summit Nos. 24099, 2008-Ohio-
3773, ¶ 28; In re N.W., 10th Dist. Franklin Nos. 07AP-590 and
Franklin Nos. 07AP-591, 2008-Ohio-297, ¶ 19. However, none of
the best interest factors are 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. In re K.M.S., 3rd Dist. Marion
Nos. 9-15-37, 9-15-38, and Marion Nos. 9-15-39, 2017-Ohio-142, ¶
JACKSON, 22CA12, 22CA13 16
24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶
46. 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., 4th Dist. Lawrence Nos.
15CA18 and 15CA19, 2016-Ohio-916, ¶ 66, citing In re Adoption of
Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991).
D
{¶28} In the case sub judice, appellant disputes the trial
court’s factual finding that the GAL stated that “the foster
caregivers have a good relationship with the child and have an
interest in adopting the child should permanent custody be
granted to [appellee].” She alleges that the trial court’s
factual finding lacks support. Appellant notes that the GAL
stated that she could not contact the foster parents before she
submitted her final report to the court. Appellant thus
surmises that the GAL’s inability to contact the foster parents
before she submitted her final report establishes that the GAL
could not have known that the foster family shared a positive
relationship with the child. She likewise theorizes that
because appellee gave the GAL the incorrect phone number,
appellee also lacked any basis to suggest that the foster family
shares a positive relationship with the child.
{¶29} After our review, we do not find merit to appellant’s
JACKSON, 22CA12, 22CA13 17
argument. First, the GAL stated at the hearing that she had
been in touch with the foster family at various points
throughout the case. She explained that when she attempted to
contact the family before she submitted her final report, she
could not reach them because appellee apparently gave her the
wrong phone number. Thus, contrary to appellant’s assertion,
the record does not demonstrate that the GAL failed to contact
the foster family or failed to ascertain the family’s
suitability to serve as the child’s caregivers. Instead, the
GAL had done so at previous times throughout the case.
Moreover, the caseworker testified that the child has a positive
relationship with the foster family and that the foster family
intends to adopt the child if given the opportunity. We
therefore disagree with appellant that the trial court’s
findings that the child shares a positive relationship with the
foster family and that the family intends to adopt the child if
the court grants the agency permanent custody are against the
manifest weight of the evidence.
{¶30} Because appellant does not specifically challenge the
trial court’s findings regarding the other best-interest
factors, we will not include an extended analysis of those
factors. Instead, we simply note that the record contains ample
clear and convincing evidence to support the trial court’s
JACKSON, 22CA12, 22CA13 18
decision to place the child in appellee’s permanent custody.
{¶31} Accordingly, based upon the foregoing reasons, we
overrule the mother’s sole assignment of error.
II
FATHER’S APPEAL
{¶32} In his sole assignment of error, father asserts that
the trial court abused its discretion by granting appellee’s
request for permanent custody when the GAL did not comply with
Sup.R. 48.03. The father contends that the GAL did not
independently investigate the child’s best interest, but instead
relied upon the caseworkers’ reports. He also points out that
the GAL testified at the permanent custody hearing, she last had
contact with the child more than four months before the hearing.
The father further notes the GAL admitted she did not contact
the father even though she knew where to locate him (in prison).
{¶33} We initially observe that, during the trial court
proceedings, the father did not assert that the GAL’s report
failed to comply with Sup.R. 48.06.2 It is well-settled that a
2 Sup.R. 48.06 provides, in relevant part, 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
JACKSON, 22CA12, 22CA13 19
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.
(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.
R.C. 2151.281(I) states as follows:
The guardian ad litem for an alleged or adjudicated
abused, neglected, or dependent child shall perform
whatever functions are necessary to protect the best
JACKSON, 22CA12, 22CA13 20
party may not raise new issues or legal theories for the first
time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St.2d
41, 43, 322 N.E.2d 629 (1975). 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 (“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 (defendant forfeited
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) (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. of Elections, 65 Ohio St.3d 175, 177, 602
N.E.2d 622 (1992) (appellant cannot “present * * * new arguments
for the first time on appeal”); accord State ex rel. Jeffers v.
interest of the child, including, but not limited to,
investigation, mediation, monitoring court proceedings,
and monitoring the services provided the child by the
public children services agency or private child placing
agency that has temporary or permanent custody of the
child, and shall file any motions and other court papers
that are in the best interest of the child in accordance
with rules adopted by the supreme court.
JACKSON, 22CA12, 22CA13 21
Athens Cty. Commrs., 4th Dist. Athens No. 15CA27, 2016-Ohio-
8119, fn.3 (“[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 (“arguments not
presented in the trial court are deemed to be waived and may not
be raised for the first time on appeal”).
{¶34} 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, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718,
¶ 27 (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 (“[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’”); State v. Pyles, 7th
Dist. Mahoning No. 13-MA-22, 2015-Ohio-5594, ¶ 82, quoting State
v. Jones, 7th Dist. No. 06-MA-109, 2008-Ohio-1541, ¶ 65 (the
plain error doctrine “‘is a wholly discretionary doctrine’”);
DeVan v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga,
JACKSON, 22CA12, 22CA13 22
2015-Ohio-4279, 45 N.E.3d 661, ¶ 9 (appellate court retains
discretion to consider forfeited argument); see Rosales-Mireles
v. United States, ___ U.S. ___, 138 S.Ct. 1897, 1904, 201
L.Ed.2d 376 (2018) (court has discretion whether to recognize
plain error).
{¶35} 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.’” 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
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” “at the time of
appellate consideration.” Johnson v. United States, 520 U.S.
461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord
Barnes, 94 Ohio St.3d at 27; State v. G.C., 10th Dist. Franklin
JACKSON, 22CA12, 22CA13 23
No. 15AP-536, 2016-Ohio-717, ¶ 14.
{¶36} 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 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, 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 Jones v.
Cleveland Clinic Found., 161 Ohio St.3d 337, 2020-Ohio-3780, 163
N.E.3d 501, ¶ 24; 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;
JACKSON, 22CA12, 22CA13 24
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 122.
{¶37} In the case sub judice, the father did not argue that
the trial court obviously erred by considering the GAL’s
recommendation. We further point out that this court, along
with other Ohio appellate courts, has refused to recognize
purported superintendence rule violations as reversible error.
E.g., In re A.P., 4th Dist. Gallia No. 21CA14, 2022-Ohio-1577, ¶
46; In re K.L., 11th Dist. Portage No. 2021-P-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
JACKSON, 22CA12, 22CA13 25
procedure”); accord Gupta v. Sharan, 10th Dist. Franklin No.
22AP-81, 2022-Ohio-4479, ¶ 44; 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 (“‘[t]he
Rules of Superintendence are not designed to alter basic
substantive rights’”) (Kennedy, J., concurring in part and
dissenting in part).
{¶38} Moreover, the father has not shown that the result of
the trial court proceedings would have been different if the GAL
had conducted additional investigation. The father did not
argue, for example, that if the GAL met with the child shortly
before the permanent custody hearing, or had contacted the
father during his incarceration, the trial court would have
rejected appellee’s permanent custody motion and would have
granted the parents additional time to demonstrate that one of
them would be able to provide the child with proper care. As
the GAL and agency caseworkers stated at the permanent custody
hearing, the father remains incarcerated until his possible
release in November 2023. Also, the mother has been unable to
successfully complete any of the multiple drug treatment
programs that she has entered throughout the pendency of the
JACKSON, 22CA12, 22CA13 26
case, and at the time of the permanent custody hearing, she was
in jail. Nothing in the record suggests that any additional
investigation that the GAL might have been able to conduct would
change these facts. Consequently, we do not believe that the
father can establish that the trial court plainly erred by
considering the GAL’s report.
{¶39} Accordingly, based upon the foregoing reasons, we
overrule the parties’ assignments of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
JACKSON, 22CA12, 22CA13 27
JUDGMENT ENTRY
It is ordered that the appeal be affirmed and that appellee
recover of appellants 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 Jackson County Common Pleas Court, Juvenile
Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, 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.