In re K.L.

[Cite as In re K.L., 2021-Ohio-3080.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
IN THE MATTER OF: CASE NO. 2021-P-0022
K.L., DEPENDENT CHILD
Civil Appeal from the
Court of Common Pleas,
Juvenile Division
Trial Court No. 2020 JCF 00647
OPINION
Decided: September 7, 2021
Judgment: Affirmed
Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (For Appellant).
Gregory T. Barton, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH
44266 (For Appellee).
Brian L. Coffman, 209 South Main Street, Suite 203, Akron, OH 44308 (Guardian ad
Litem).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, N.L. (“mother”), appeals from the judgment of the Portage County
Court of Common Pleas, Juvenile Division, granting permanent custody of her daughter,
K.L., to appellee, the Portage County Department of Job and Family Services (“JFS”).
We affirm the judgment of the trial court.
{¶2} K.L., D.O.B. February 5, 2018, was born with a complex heart defect.
According to Dr. Gerard Boyle, K.L.’s pediatric cardiologist, the child was born with a
defect referred to as pulmonary atresia; a condition which, in layman’s terms, indicates
she had only half a heart such that the “blue blood” coming into her heart was ejected
backwards into the coronary arteries. The condition is unsustainable for a long period of
time and required K.L. to have a heart transplant on August 15, 2018. As a result, K.L. is
on highly potent immunosuppressant drugs that she must take twice a day for the rest of
her life. These drugs assist suppressing the child’s immune system in order to avoid
rejecting the transplant. Dr. Boyle stated that while mother and her husband, C.L.
(“father”) were very attentive to K.L. and her medical issues, he developed concerns
regarding K.L.’s post-transplant weight loss and her parents’ hygiene. According to the
doctor, transplant patients required a pristine living environment to prevent infection. Due
to these concerns, JFS was contacted.
{¶3} K.L., along with her brother, L.R.T. were removed from the family home on
January 4, 2019.1 By way of a March 5, 2019 judgment, the children were adjudicated
dependent and, several weeks later, temporary custody was awarded to JFS. On
October 29, 2020, JFS moved for permanent custody of K.L. The matter proceeded to
final hearing on February 3, 2021. At the hearing, the following evidence was adduced:
{¶4} In December 2018, K.L. was diagnosed with a failure to thrive; she was
again diagnosed with failure to thrive in January 2019. JFS also had concerns about
K.L.’s G-Tube (“feeding tube”), which had fallen out and was not replaced. Jessica
Plymale, a JFS caseworker, testified an adjudication hearing was held and on February
21, 2019, K.L. was adjudicated dependent. The case plan required mother and father to
1. According to mother, L.R.T. also has multiple medical issues, including hydrocephalous, ADHD, ODD,
OCD, post-traumatic stress disorder, kidney problems and acid reflux; according to mother, the child
takes six medications a day. On June 24, 2019, L.R.T. was returned to mother’s legal custody with an
order of protective supervision in favor of JFS.
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keep a clean home; ensure proper administration of medications; develop an
understanding of and effectively utilize feeding equipment; as well as address parenting
and mental health concerns (mother admittedly suffered from depression).
{¶5} The family was referred to the Bair Foundation, an organization designed
to help families in various states of need, for guidance and assistance in keeping the
home clean and addressing parenting matters. According to Ms. Plymale, the parents
completed parenting and in-home therapy with Bair.
{¶6} Mother and father began receiving unsupervised visitation with K.L. in
January 2020. In April, they started week-long visits, and, in May, the visits progressed
to two weeks at a time. Following a visit with the parents in May 2020, K.L.’s foster mother
contacted Miranda Lewis, a JFS caseworker assigned to the case from April 2019 to
October 2020. According to Ms. Lewis, there were concerns that K.L.’s medication had
expired, and her feeding tube had not been properly cleaned. Both parents admitted
they failed to check and/or recognize that the medication had expired. When Ms. Lewis
left the case, in October 2020, she still had concerns regarding the cleanliness of the
home and the parents’ ability to properly administer medication. Ms. Lewis recognized
that mother was trained to medically administer medication; still, however, she was
unaware of any formal certification mother received regarding administering medication.
{¶7} Ms. Plymale was assigned as caseworker in October 2020. Ms. Plymale
noted that K.L. has a bond with her parents, brother, and her foster family. Ms. Plymale
testified that the parents attended nearly all of their visits with K.L., only absent when
someone was sick. Ms. Plymale visited the parents’ home in November 2020 and took
photographs during the visit. She found the home in disarray, with trash and old food in
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various places throughout the residence. She advised mother and father of her concerns
regarding the cleanliness of the home. Ms. Plymale also advised the parents they could
contact the Bair Foundation to address this issue and perhaps establish a cleaning
schedule. Two weeks later, on November 24, Ms. Plymale revisited the home, but found
the home in substantially the same condition. She noted, however, that some progress
had occurred in that a large trash can had been removed from the living room and mother
and father purchased a Roomba.
{¶8} On December 15, 2020, Ms. Plymale visited the home to evaluate the
parents’ progress. She was informed that L.R.T., K.L.’s brother, was ill, so the parties
rescheduled a virtual visit for December 31, 2020. Ms. Plymale sent mother the link for
the visit, but mother did not appear. Later, on January 13, 2021 and January 22, 2021,
Ms. Plymale visited the home. She heard L.R.T. inside the home and, on each occasion,
the parents’ vehicles were in the driveway. No one, however, answered the door.
{¶9} Notwithstanding the foregoing, Ms. Plymale conceded the parents
completed parenting classes and mother continues to engage in individual counseling;
further, the parents’ case record indicated the parents had been trained on administering
K.L.’s feeding tube and medication.
{¶10} Father acknowledged the case plan goals and further recognized the
importance of cleanliness in the home. He observed he and mother had been working
on improving the home for K.L.’s return. He additionally stated neither he nor mother
would ever deny the caseworkers access to their home. Also, while he conceded he had
not realized K.L.’s medication had expired in May 2020, he asserted that neither he nor
mother were made responsible for filling the prescriptions; indeed, he stated that, even if
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he and mother recognized the medication had been expired, they were unable order new
or additional medication. Instead, he claimed the foster mother, a registered nurse, was
obligated to obtain the medications.
{¶11} Mother testified she was twice medically certified to administer K.L.’s
medication: once in October 2018 and then in September 2020. She claimed the
certifications were initially necessary for K.L.’s release from rehab. Mother additionally
stated that the expired-medication problem took place over Memorial Day weekend and
that neither she nor father had any authorization to renew the prescription. She also
pointed out that the foster mother did not caution her before the two-week visit that the
medication would expire during the visit. Still, however, mother conceded she did not
independently recognize the medication’s expiration.
{¶12} Regarding Ms. Plymale’s unannounced visits, mother stated she was not in
the home often during this timeframe because she was assisting a friend attend to a
diabetic child. Mother contended that, had she known Ms. Plymale intended to visit, she
would have “gladly let her in.” Further, regarding the cleanliness of the home, mother
noted that she and father separated at one point and, during this period, the home was
unclean.
{¶13} Mother asserted she has a “medical poster” with K.L.’s feeding schedule
and all K.L.’s medications are organized in a dresser drawer. Mother claimed that JFS
had been vague regarding its expectations for her and father, and communications were
not ideal; to wit, the family had three caseworkers since the case’s inception.
{¶14} Brian Coffman, K.L.’s guardian ad litem (“GAL”), stated that, even though
mother and father loved K.L., their difficulties tending to her serious medical problems,
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including maintaining an adequately clean home, necessitated a recommendation that
permanent custody be awarded to JFS. And, on February 28, 2021, the trial court entered
judgment granting permanent custody in JFS’ favor.
{¶15} Mother now appeals and assigns three errors for our review. Her first
assigned error alleges:
{¶16} “The trial court erred to the prejudice of the appellant and against the best
interest of the child when it denied a continuance for the appellant-mother, depriving her
of her right to due process and abusing its discretion, as the mother’s attorney informed
the court she had issues with serving subpoenas on three defense witnesses, and due to
the denial of continuance mother was unable to present two of those witnesses.”
{¶17} “‘The grant or denial of a continuance is a matter that is entrusted to the
broad, sound discretion of the trial judge.’” DePizzo v. Stabile, 11th Dist. Trumbull No.
2006-T-0027, 2006-Ohio-6102, ¶7, quoting State v. Unger, 67 Ohio St.2d 65, paragraph
one of the syllabus (1981). An appellate court will not interfere unless there was a clear
abuse of discretion. DePizzo at ¶7. An abuse of discretion is the trial court’s “‘“failure to
exercise sound, reasonable, and legal decision-making.”’” Hammonds v. Eggett, 11th
Dist. Geauga No. 2010-G-2980, 2011-Ohio-6510, ¶16, quoting State v. Beechler, 2d
Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary (8
Ed.Rev.2004) 11. “‘There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons presented to the trial
judge at the time the request is denied.’” DePizzo at ¶8, quoting Unger, supra, at 67.
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{¶18} At the commencement of the hearing, counsel for mother sought a
continuance “based on service issues that we had regarding subpoenas for my client and
COVID and things like that within the past 30 days.” Counsel represented that, without a
continuance, mother would be unable to call three witnesses in her defense. The court
denied the request, stating on record:
{¶19} Okay I would indicate for the record that I will deny the continuance.
This matter has been kicked a couple of times. I think that finality for
the child is essential and in the child’s best interest. Not only that, I
have no - - in the case file I have no record of a written continuance
being filed prior to the hearing. I have no record of request for
subpoenas or subpoenas filed in the court file prior to the hearing,
and therefore I’ll deny your continuance and we’ll proceed then.
{¶20} Initially, mother’s counsel did not identify any of the purported witnesses or
attempt to proffer the substance of what their testimony would demonstrate. “The
purpose of a proffer is to assist the reviewing court in determining, pursuant to Evid.R.
103, whether the trial court’s exclusion of evidence affected a substantial right of the
appellant.” In re Walker, 162 Ohio App.3d 303, 2005-Ohio-3773, ¶37 (11th Dist.). This
court has concluded that when a continuance is requested to secure a witness’
attendance, the failure to proffer the substance of the anticipated testimony waives or
forfeits any error. In re Maciulewicz, 11th Dist. Ashtabula No. 2002-A-0046, 2002-Ohio-
4820, ¶33. Further, even if the doctrine waiver or forfeiture does not operate to prevent
appellate review, it is still not possible to evaluate whether the denial of request for
continuance prejudiced a party’s due process rights. In re K.M., 11th Dist. Trumbull No.
2017-T-0059, 2017-Ohio-8286, ¶29. (When a party fails to proffer testimony which is
allegedly critical to her case, any prejudice is, at best, speculative.)
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{¶21} We also note that various witnesses for JFS testified that the parents’ home
was never adequately clean such that it could suit K.L.’s medical needs. Mother also
conceded at the hearing that, after the parents lost unsupervised visitation in May 2020,
the home was unclean throughout the summer due to her absence; and, she also
admitted that the home becomes unclean when she feels “overwhelmed” or falls into
depression – situations that could arguably occur at any time and with repetition. The
home’s unclean character was a primary basis for the trial court’s award of permanent
custody to JFS. In light of these points and concessions, it is difficult to imagine how any
witness for mother (or the parents) could have changed the trial court’s perception
regarding the child’s best interests. Regardless, without some basic idea of who the
potential witnesses were, what their relationship to the family, or at least to the mother,
was, and what their anticipated testimony might show, we cannot conclude the trial court’s
denial of the continuance was an unreasonable or unfair exercise of sound legal decision
making.
{¶22} Moreover, even though counsel represented she had difficulty subpoenaing
the witnesses at issue, the record does not include any formal subpoenas filed by
mother’s counsel. To the contrary, the only subpoenas that were filed after counsel’s
appointment were issued by the assistant prosecutor. And, although several subpoenas
were issued by mother’s previous counsel, those were filed prior to the court’s granting
two continuances of the final hearing. Those subpoenas were not re-issued for those
witnesses to appear at the re-scheduled date of the final hearing. Under the
circumstances, we discern no abuse of discretion.
{¶23} Mother’s first assignment of error lacks merit.
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{¶24} For her second assignment of error, mother asserts:
{¶25} “The Portage County Juvenile Court erred and abused its discretion in
finding that clear and convincing evidence supported granting permanent custody of the
subject child to the Portage County Department of Child and Family Services.” (Sic.)
{¶26} Mother argues that the trial court’s decision to grant permanent custody to
JFS was not supported by the evidence because she had made progress and was still
progressing on her case plan.
{¶27} “‘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.’” In
re N.M.P., 11th Dist. Portage No. 2018-P-0056, 2018-Ohio-5072, ¶54, quoting In re
D.M., 4th Dist. Hocking No. 15CA22, 2016-Ohio-1450, ¶10. “[A]n appellate court will not
reverse a judgment as being contrary to the weight of the evidence as long as there is
some competent, credible evidence supporting the judgment.” In re Kangas, 11th Dist.
Ashtabula No. 2006-A-0084, 2007-Ohio-1921, ¶81. The manifest-weight standard of
review is the same in a civil case as in a criminal case. Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, ¶17.
{¶28} When applying the manifest-weight standard of review, the reviewing court
reviews the entire record, “‘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, supra, ¶20,
quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, (9th Dist.2001). “The finder of
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fact is entitled to believe all, part, or none of the testimony of any witness.” River Oaks
Homes, Inc. v. Twin Vinyl, Inc., 11th Dist. Lake No. 2007-L-117, 2008-Ohio-4301, ¶27.
{¶29} “Under the manifest weight standard of review, we are ‘guided by a
presumption’ that the fact-finder’s findings are correct.” Terry v. Kellstone, Inc., 6th Dist.
Erie No. E-12-061, 2013-Ohio-4419, ¶13, citing Seasons Coal Co. v. Cleveland, 10 Ohio
St.3d 77, 79-80 (1984). See also Eastley at ¶21. We must make “‘every reasonable
presumption * * * in favor of the judgment and the finding of facts.’” Id., quoting Seasons
Coal Co. at 80, fn. 3. “‘If the evidence is susceptible of more than one construction,’” we
are “‘bound to give it that interpretation which is consistent with the * * * judgment [and]
most favorable to sustaining the * * * judgment.’” Eastley, supra, quoting Seasons Coal
Co., supra.
{¶30} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency, it must find clear and convincing evidence
of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned;
has been in the temporary custody of the agency for at least 12 months of a consecutive
22-month period; the child or another child of the same parent has been adjudicated
abused, neglected, or dependent three times; or that the child cannot be placed with either
parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of permanent
custody to the agency is in the best interest of the child, based on an analysis under R.C.
2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75
Ohio St.3d 95, 98-99 (1996).
{¶31} “Clear and convincing evidence” is evidence sufficient to “produce in the
mind of the trier of fact a firm belief or conviction as to the facts sought to be
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established.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶42. We will not substitute
our judgment for that of the trial court applying a clear-and-convincing standard where
there is ample competent and credible evidence supporting the trial court’s
determination. See In re A.J.O. and M.N.O., 1st Dist. Hamilton No. C-180680, 2019-Ohio-
975, ¶6.
{¶32} In granting JFS’ motion for permanent custody, the trial court made the
following findings:
{¶33} “A.) K.L. was in the Temporary Custody of PCDJFS for more than 12
months in a 22 consecutive month period * * *;
{¶34} B.) K.L. cannot be placed with either of her parents within a reasonable time
and should not be placed with her parents;
{¶35} C.) Permanent custody is in the child’s best interest;
{¶36} D.) That K.L.’s parents [mother] and [father] did not complete their case plan
because their home was unsuitable, was a threat to K.L.’s safety and health, was never
clean or suitable for any consistent period of time. K.L. cannot reside safely in her
parents’ home without fear of infection and the parents’ home is not safe and secure;
{¶37} E.) The Court considered all relevant factors of R.C. 2151.43 in determining
best interest of K.L.;
{¶38} F.) The parents have repeatedly failed to remedy the clutter, cleanliness
and exposed food products in the home which can and will likely cause infection to K.L.,
a medically fragile child, which may lead to her physical harm, her serious physical harm
or her death. Cleanliness of the home which could lead to infection for K.L. has been a
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continuing issue since 2018 (with short breaks) until the date of the hearing on February
3, 2021;
{¶39} G.) Services were offered to the parents thru [sic] Cleveland Clinic, Bair
Foundation and Social Workers, yet the cleanliness issue continued;
{¶40} H.) K.L.’s parents have failed, for whatever reason to protect her from
infection and serious physical harm. That K.L.’s parents are unwilling and/or unable to
provide a safe and secure home for K.L. given her fragile condition;
{¶41} I.) K.L.’s Guardian Ad-litem recommends permanent custody of K.L. to
PCDJFS;
{¶42} J.) K.L needs legally secure placement which cannot occur unless PCDJFS
is granted permanent custody;
{¶43} K.) Reunification with K.L.’s parents is unlikely due to time constraints and
their failure to provide a clean and suitable home for K.L.;
{¶44} L.) The child cannot express an opinion;
{¶45} M.) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency to assist
mother and father to remedy the problems that initially caused the child to be placed
outside the home, mother and father have failed continuously and repeatedly to
substantially remedy the conditions (clean and stable home) causing the child to be
placed outside the child’s home;
{¶46} N.) Portage County Department of Job and Family Services has made
reasonable efforts in preventing the continued removal of the child from her home or to
make it possible to return the child home;
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{¶47} O.) There are no relatives or person who have been located or qualified that
have shown an interest to be a relative placement or legal custodian.
{¶48} Mother maintains the totality of the foregoing findings did not clearly and
convincingly warrant the trial court’s award of permanent custody to JFS. As such, she
contends the trial court’s judgment is against the manifest weight of the evidence.
Specifically, mother asserts she completed parenting classes and was trained in the
administration of K.L.’s medication. And, while there was evidence the court accepted
that the parents administered expired medication, mother emphasizes K.L., at that time,
suffered no harm. Mother additionally points out that it was the foster mother’s obligation
to provide the medication.
{¶49} Regarding the issue of cleanliness, mother argues K.L. was not in the home
on November 10 and 24, 2020 when the photographs that were admitted into evidence
were taken. Mother further notes that she had left the home for a period of time and her
absence significantly contributed to the uncleanliness. Moreover, mother points out that
even though Dr Boyle advised K.L. must live in a “pristine” home environment, no one,
including the doctor, was able to define what such a condition required.
{¶50} With due respect to mother’s arguments, Jennifer Waicak, mother’s
therapist with the Bair Foundation, testified that mother knew and understood what was
expected of her regarding the condition of the home. Ms. Waicak asserted that Ms. Lewis,
mother’s caseworker until October 2020, procured a letter from K.L.’s physician regarding
what was needed and mother “verbalized that she was already aware of it, and she
basically verbatim gave me what the letter said.” Still, between August and December
2020, Ms. Waicak visited the home some 12 times and observed that it was clean
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sometimes, but other times it was not. And, Ms. Waicak agreed that there was no obvious
period of time where the home was in a sustained state of cleanliness.
{¶51} Furthermore, Ms. Lewis noted that she attempted to visit the parents’
residence multiple times over the summer of 2020. And, although the parents were
ostensibly separated during this time, she was unable to gain access. Still, Ms. Lewis
asserted that, through the front door, she observed the home in a state of disarray.
Mother acknowledged the home can become messy, but “[w]hen the house gets like that
it’s due to being overwhelmed with things that are going on around me and my depression
will set in * * *.” Even though K.L. was not residing in the home during the summer and
fall months of 2020, the foregoing evidence demonstrates that mother is either unable or
unwilling to establish a consistent, suitable environment for K.L. to thrive safely in light of
her medical fragility.
{¶52} To the last point, mother’s assertion that K.L. was not residing with the
parents at the time when the photos were taken in November of 2020 is of little moment.
The photos, which were admitted into evidence, depict a home, at best, in complete
disarray. They show: garbage (some bagged, some not) and food bestrewn throughout
the house; significant amassments of clutter piled in nearly every room and, in some
cases, blocking entries and egresses; filthy furniture; a kitchen that is heaped with dirty
dishes and an abundance of other, non-descript rubbish; a bathroom with, what appears
to be an unflushed commode; and a vehicle littered with food items, used fast-food
containers, and other cast-off debris. Regardless of whether K.L. was not in the home at
the time, the photos reflect the parents’ “default” living conditions, and the court was free
to conclude that these conditions would not significantly change (especially given JFS’
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and Bair Foundation’s interventions and advice regarding the issue of cleanliness) if K.L.,
in her medically fragile condition, were returned.
{¶53} Additionally, mother’s admission that her depression, which is apparently
ongoing, (as well as the potentially tumultuous nature of the parents’ personal
relationship) fundamentally affects whether the home is adequately clean or unacceptably
dirty, there is no reasonable basis to conclude the home will ever be sufficiently clean to
meet K.L.’s heightened needs. These points are compounded by mother’s testimony that
L.R.T. is medically compromised and on six different medications daily. If mother is
psychologically strained and must administer L.R.T.’s various medications, the difficulties
inherent in keeping a consistently clean home and administering all the medications to
each child are manifest.
{¶54} Moreover, although the court did not place heavy emphasis on the episode
during which the parents administered expired medication to K.L., mother’s admission
that she was unaware it was expired and did not check the expiration also militates
against her case. While the oversight was not intentional, her recognition that she did not
check the expiration date was, at the least, unreasonable given K.L.’s extremely
vulnerable medical condition. The same observation would apply to K.L.’s unclean
feeding tube, which she had when she was returned from a visit with the parents in May
2020.
{¶55} In addition, the trial court overtly noted the GAL’s recommendation. In
recommending permanent custody to JFS, the GAL noted that the case commenced
when K.L. was in need of a heart transplant and the parents were provided housing
through the Cleveland Clinic at the Ronald McDonald House. And, due to the unsanitary
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nature of their living conditions, they were asked to leave. The GAL underscored that K.L.
will have a lifetime of being immunocompromised and he expressed his concern that,
even though the parents provided her with expired medications only once, the same error
could occur again. And, in relation to this point, the GAL pointed out that, in administering
the expired medication, he is worried that the parents do not fully understand the
importance of monitoring the expiration date. The GAL stated that the Bair Foundation
made unannounced visits on a monthly basis to the home and continued to find it
unsanitary and unacceptable for K.L.’s needs. The GAL asserted his belief that JFS had
done all it could to help the parents understand the import of K.L.’s serious medical
condition and the importance of keeping the living space extremely clean, but they have
repeatedly failed to heed the advice and directives. As a result, the GAL recommended
permanent custody to JFS.
{¶56} Given the foregoing, we conclude that, due to the severity of K.L.’s
condition, which indisputably demands an extremely clean, if not immaculate, living
environment as well as vigilant attentiveness to feeding and medication, there was clear
and convincing evidence that awarding permanent custody to JFS was in the child’s best
interest.
{¶57} A final point requires attention. Mother notes that Dr. Boyle offered an
unsolicited statement during his testimony regarding his view that he feels responsible,
not only to K.L., but also to the family of her heart donor. Mother contends this statement
was highly prejudicial. Although not entirely clear, mother seems to claim that the doctor’s
statement was an appeal to the court’s emotions which could reasonably, albeit
subconsciously, taint the court’s perception regarding K.L.’s best interest. Initially, we
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fail to see how the doctor’s observation regarding his personal and/or professional
obligations to his patients would somehow bias the trial court’s assessment of the
evidence. Further, even if the statement could be perceived as somehow inflammatory,
evidence that might inflame the passions of a jury do not necessarily have the same effect
on a judge. State v. White, 15 Ohio St.2d 146, 151 (1968). Rather, it is presumed that,
in a bench trial, “the court considered only relevant, material, and competent evidence in
arriving at its judgment unless it affirmatively appears to the contrary.” Id. Here, the
court summarized Dr. Boyle’s testimony in its judgment entry; it did not refer to the
statement at issue. Hence, there is nothing to suggest the comment was considered in
the court’s analyses and conclusions.
{¶58} Mother’s second assignment of error lacks merit.
{¶59} Mother’s third assigned error provides:
{¶60} “The Portage County Juvenile Court erred in finding that permanent custody
was in the best interests of the child when, when the guardian ad litem failed to file a
written report and his oral recommendation was based solely on a document issued by
the agency.”
{¶61} Under her final assignment of error, mother asserts that the trial court plainly
erred in granting permanent custody to JFS because the GAL failed to file a written report
in accordance with the Ohio Rules of Superintendence. She also complains that, during
the oral recommendation at the hearing, the GAL referenced a semiannual administrative
review.
{¶62} Initially, mother did not object to the lack of a written report prior to the GAL
issuing his oral recommendation. As a result, she has forfeited all but plain error. “To
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constitute plain error the alleged error must have substantially affected the outcome such
that but for the error, the outcome would have been otherwise.” In re C.H., 11th Dist.
Ashtabula No. 2018-A-0061, 2019-Ohio-4316, ¶24.
{¶63} In support of her claim of plain error, mother points to former Sup.R.
48(F)(1)(c), which provided that in actions to terminate parental rights, “[u]nless waived
by all parties or the due date is extended by the court, the final report shall be filed with
the court and made available to all parties for inspection no less than seven days before
the dispositional hearing.” Current Sup.R. 48.06(B)(1) provides a similar provision; to wit:
“[a] guardian ad litem in * * * 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 * * * permanent custody hearing * * *.” Notwithstanding this provision, this
rule does not give rise to substantive rights. In re K.V., 6th Dist. Lucas No. L-11-1087,
2012-Ohio-190, ¶27; accord In re B.K., 12th Dist. Butler No. CA2010-12-324, 2011-Ohio-
4470; In re D.C.J., 8th Dist. Cuyahoga Nos. 97681, and 97776, 2012-Ohio-4154. Indeed,
this court has held that “[t]he Rules of Superintendence are viewed as internal
housekeeping rules which do not have the force or effect of procedural rules or statutes;
accordingly, violations do not warrant reversal of a decision.” In re C.H., supra, at ¶39,
citing Allen v. Allen, 11th Dist. Trumbull No. 2009-T-0070, 2010-Ohio-475, ¶31.
Accordingly, the failure to comply with the Rules of Superintendence, even if a technical
error, is not reversible.
{¶64} Moreover, it is worth pointing out that mother’s counsel had the opportunity
to cross-examine the GAL but did not do so. In many cases, the failure to file a written
report may be problematic because a parent’s counsel may be unaware, or at least unable
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to anticipate, either the recommendation or its rationale. Because no objection was filed,
one could infer that counsel was aware of the GAL’s position and cross-examination may
have only reinforced the evidence which did not help her position. After all, throughout
the hearing there was ample evidence which supported or corroborated the rationale
supporting GAL’s oral recommendation. Thus, even had the GAL filed a written report,
we fail to see how the outcome would have been different. In this respect, we fail to find
plain error. See In re L.S., 8th Dist. Cuyahoga No. 108666, 2019-Ohio-5347, ¶17; see,
also, In re R.C., 8th Dist. Cuyahoga No. 82453, 2003-Ohio-7062, ¶ 22 (“An award of
permanent custody will not be disturbed where the guardian ad litem failed to issue a
written report and no objection was offered at the hearing.”)
{¶65} Finally, mother contends the GAL relied solely on an agency report in
making his recommendation. The record demonstrates, however, that the GAL
referenced team meetings, meetings with the parents, and the testimony at the hearing.
Mere reference to a JFS’ record document does not mean the GAL’s recommendation
was plagiarized or reflected only the points illustrated in that document. Again, we decline
to find plain error due to this reference.
{¶66} Despite the foregoing legal analysis, we are dismayed by the GAL’s failure
to file a written report with the court. The recommendation, which was entered at the end
of the hearing, did not indicate, with any depth, the nature of the GAL’s interaction with
the parents during the time the case was open. The GAL failed to assert how often, if at
all, he visited the family home and, not coincidentally, he did not comment on his own,
first-hand perception of the home’s condition. In effect, the GAL’s recommendation was
based upon a recitation of evidence previously given by prior witnesses at the hearing.
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We must emphasize that, without an objection, we cannot find reversible error.
Nevertheless, we do find the GAL’s performance was sub-par and the parties and the
court would have benefitted from a significantly more detailed rendition of GAL’s
involvement in the case. A task generally accomplished by the timely filing of a written
GAL report.
{¶67} Mother’s third assignment of error lacks merit.
{¶68} For the reasons discussed in this opinion, the judgment of the Portage
County Court of Common Pleas, Juvenile Division, is affirmed.
MARY JANE TRAPP, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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