In re J.M. , 2019 Ohio 520 ( 2019 )

[Cite as In re J.M., 2019-Ohio-520.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: J.M. : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
: Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
:
: Case Nos. 18-CA-25
: 18-CA-30
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from Court of Common
Pleas, Juvenile Division, Case No.
2016 AB 0146
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 11, 2019
APPEARANCES:
For Appellant H.H. For Appellee
CHRISTINA A. MCGILL ANDREW KAGEN
127 West Wheeling Street 239 West Main Street, Suite 101
Lancaster, OH 43130 Lancaster, OH 43130
For Appellant J.M. Guardian ad Litem
DARREN MEADE WILLIAM J. HOLT
3010 Hayden Road 117 West Main Street, Suite 104
Columbus, OH 43235 Lancaster, OH 43130
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 2
Wise, Earle, P.J.
{¶ 1} Appellant-child, J.M., (18-CA-25) and appellant-mother, H.H., (18-CA-30),
appeal the May 31, 2018 judgment entry of the Court of Common Pleas of Fairfield
County, Ohio, Juvenile Division, denying their objections and granting legal custody of
J.M. to the maternal grandfather and step-grandmother.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 19, 2016, the Fairfield County Child Protective Services filed a
complaint alleging J.M., born February 8, 2007, to be a dependent child. Mother is H.H.;
father via an affidavit of paternity is C.M.
{¶ 3} An adjudicatory hearing was held on October 26, 2016. By judgment entry
filed same date, the trial court found child to be dependent, and placed child in the
temporary custody of the paternal grandmother with protective supervision to the agency.
{¶ 4} On May 9, 2017, child was placed in the agency's temporary custody
following an emergency shelter care hearing. On May 16, 2017, the agency filed a motion
seeking the temporary custody of child. The trial court granted the motion on September
19, 2017.
{¶ 5} On October 10, 2017, the agency filed a motion to terminate its temporary
custody of child and place child in the legal custody of the maternal grandfather and step-
grandmother. A hearing before a magistrate was held on February 14, 2018. Father did
not oppose the motion. By decision filed May 10, 2018, the magistrate granted the motion
and placed child in the legal custody of the maternal grandfather and step-grandmother.
{¶ 6} On May 24, 2018, both child and mother filed objections. On same date,
mother also filed a motion for legal custody which was stayed pending a ruling on the
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 3
objections. By judgment entry filed May 31, 2018, the trial court overruled the objections
and upheld the magistrate's decision. The trial court ordered reasonable supervised
visitation of child for both mother and father.
{¶ 7} Child filed an appeal and assigned the following errors:
I
{¶ 8} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DETERMINING
THAT IT WAS IN THE CHILD'S BEST INTEREST TO BE PLACED IN THE LEGAL
CUSTODY OF THE MATERNAL GRANDPARENTS, AS SUCH A DETERMINATION
WAS AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED."
II
{¶ 9} "THE TRIAL COURT'S GRANTING LEGAL CUSTODY OF J.M. TO HER
MATERNAL GRANDPARENTS CONTRARY TO THE GUARDIAN AD LITEM'S
RECOMMENDATION CONSTITUTED AN ABUSE OF DISCRETION."
{¶ 10} Mother filed an appeal and assigned the following errors:
I
{¶ 11} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
AFFIRMING THE MAGISTRATE'S DECISION GRANTING LEGAL CUSTODY OF J.M.
TO THE MATERNAL GRANDATHER AND STEP-GRANDMOTHER WITHOUT AN
INDEPENDENT REVIEW OF THE TRANSCRIPT OF THE PROCEEDINGS."
II
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 4
{¶ 12} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
FAILING TO CONSIDER ADDITIONAL EVIDENCE OR TO RETURN THE MATTER TO
THE MAGISTRATE FOR FURTHER PROCEEDINGS PRIOR TO AFFIRMING THE
MAGISTRATE'S DECISION GRANTING LEGAL CUSTODY OF J.M. TO THE
MATERNAL GRANDFATHER AND STEP-GRANDMOTHER."
III
{¶ 13} "THE TRIAL COURT’S FINDING THAT LEGAL CUSTODY TO MATERNAL
GRANDFATHER AND STEP-GRANDMOTHER WAS IN THE BEST INTEREST OF J.M.
IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
IV
{¶ 14} "THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING MOTHER
MINIMAL SUPERVISED VISITATION WITH J.M."
V
{¶ 15} "MOTHER WAS DEPRIVED OF HER CONSITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL."
MOTHER I
{¶ 16} In mother's first assignment of error, mother claims the trial court failed to
conduct an independent review of the transcript of the proceedings. We disagree.
{¶ 17} Juv.R. 40(D)(3)(b)(iii) states the following in pertinent part:
The objecting party shall file the transcript or affidavit with the court
within thirty days after filing objections unless the court extends the time in
writing for preparation of the transcript or other good cause. If a party files
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 5
timely objections prior to the date on which a transcript is prepared, the party
may seek leave of court to supplement the objections.
{¶ 18} Juv.R. 40(D)(4)(d) states the following in pertinent part: "In ruling on
objections, the court shall undertake an independent review as to the objected matters to
ascertain that the magistrate has properly determined the factual issues and appropriately
applied the law."
{¶ 19} Mother timely filed objections on May 24, 2018. The trial court ruled on the
objections and entered judgment on May 31, 2018. Mother argues the trial court could
not have conducted an independent review of the proceedings before the magistrate
because the trial court ruled before the thirty day time limit for the filing of the transcript.
{¶ 20} There is no indication in the record that mother ordered a transcript of the
magistrate's hearing around the time she filed her objections. The trial court was never
asked to extend the time for the filing of the transcript or to supplement the objections
with the transcript pursuant to Juv.R. 40(D)(3)(b)(iii). The transcript was simply never
ordered for the trial court's review of the objections.
{¶ 21} Mother indicated in her docketing statement to this court that a full transcript
"has been ordered." Mother filed her notice on June 28, 2018, beyond the thirty day time
limit for filing the transcript for objections. The transcript was ordered for appellate review,
not trial court review.
{¶ 22} In its judgment entry, the trial court specifically stated it "conducted an
independent review of the facts presented in this case including the transcript if filed and
exhibits that may have been submitted." The trial court acknowledged that "no transcript
or affidavit were filed with the Court." A trial court cannot review what has not been filed
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 6
as required by the objecting party, and the objecting party cannot come running to this
court to argue error he/she invited.
{¶ 23} Upon review, we find the trial court did not fail to conduct an independent
review.
{¶ 24} Mother's Assignment of Error I is denied.
MOTHER II
{¶ 25} In mother's second assignment of error, mother claims the trial court erred
in failing to consider additional evidence or to return the matter to the magistrate for further
proceedings. We disagree.
{¶ 26} Juv.R. 40(D)(4)(d) states in pertinent part: "Before so ruling [on objections],
the court may hear additional evidence but may refuse to do so unless the objecting party
demonstrates that the party could not, with reasonable diligence, have produced that
evidence for consideration by the magistrate."
{¶ 27} In its judgment entry, the trial court specifically stated: "The Court has
determined that it shall not hear additional evidence as the Court finds that the objecting
parties have failed to demonstrate that the parties could not, with reasonable diligence,
produce that evidence for consideration of the Magistrate pursuant to Juv R 40(D)(4)(d)."
{¶ 28} In requesting that the trial court take additional evidence or return the matter
to the magistrate for further proceedings, mother argued her counsel was ineffective and
in the three month period between the magistrate's hearing and the filing of the
magistrate's decision, mother progressed and complied with her case plan as follows:
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 7
a. By the time the decision was issued on May 10th, 2018, Mother
had been regularly and consistently exercising unsupervised visitations
each and every weekend with the minor child. This is inconsistent with the
Magistrate's decision that her visitation be supervised in an increments (sic)
of three hours a week.
b. The now legal custodians have failed to adequately provide
medical care and support for the minor child in their care. They have
allowed Mother to come to their home, remove the child and take her for
medical care of an emergency nature.
c. Mother is traveling to take the minor child to counseling sessions
and has engaged in family sessions since this Court's hearing on February
14th, 2018.
{¶ 29} Statements (a) and (b) address what the legal custodians were doing, which
under the court order at the time was being lax and permitting mother unsupervised time
with child contrary to court order. Statement (c) claims that mother has engaged in family
counseling sessions since the hearing on February 14, 2018. Mother did not address the
magistrate's concerns of the lack of stable housing and income, protecting child from
father in light of mother's violation of a civil protection order, engaging in mental health
and substance abuse services including drug and alcohol screening, demonstrating a
consistency of sobriety, and failing to remedy the conditions that caused child to be placed
outside the home. Mother simply objected to these magistrate's findings without
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 8
reference to transcript pages to refute the findings because a transcript was not provided
for the trial court's review.
{¶ 30} As for her ineffective assistance of counsel claims, mother argued for further
proceedings because her counsel failed to call any witnesses or present any evidence on
her behalf, should have filed for a continuance to show her consistency of compliance
over time, and failed to advise her of her rights to ask for a continuance or present
evidence at trial.
{¶ 31} The trial court did not have the benefit of a transcript to review appellant's
claims of ineffective assistance of counsel. The trial court was unable to determine if trial
counsel's failure to call witnesses or present evidence was clear trial strategy or a
deficiency on counsel's part. We note the case had already been pending for a year and
a half as appellant attempted to meet the objectives of the case plan, and therefore do
not see how appellant was prejudiced by counsel not requesting a continuance.
{¶ 32} We concur with the trial court that mother did not meet her burden under
Juv R 40(D)(4)(d) for additional evidence or further proceedings.
{¶ 33} Upon review, we find the trial court did not err in refusing to entertain
additional evidence or return the matter to the magistrate for further proceedings.
{¶ 34} Mother's Assignment of Error II is denied.
MOTHER III, CHILD I and II
{¶ 35} In mother's third assignment of error and child's first assignment of error,
they claim the trial court's decision to grant legal custody of child to the maternal
grandfather and step-grandmother was against the manifest weight of the evidence. In
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 9
child's second assignment of error, child claims the trial court abused its discretion in
ruling contrary to the guardian ad litem's recommendation. We disagree.
{¶ 36} R.C. 2151.353(A)(3) states the following in pertinent part:
(A) If a child is adjudicated an abused, neglected, or dependent child,
the court may make any of the following orders of disposition:
(3) Award legal custody of the child to either parent or to any other
person who, prior to the dispositional hearing, files a motion requesting legal
custody of the child or is identified as a proposed legal custodian in a
complaint or motion filed prior to the dispositional hearing by any party to
the proceedings.
{¶ 37} We agree with the following analysis set forth by our colleagues from the
Eighth District in In re D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-
4818, ¶ 19-22:
Legal custody is significantly different than the termination of
parental rights in that, despite losing legal custody of a child, the parent of
the child retains residual parental rights, privileges, and responsibilities. In
re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14, citing R.C.
2151.353(A)(3)(c). In such a case, a parent's right to regain custody is not
permanently foreclosed. In re M.J.M. [8th Dist. Cuyahoga No. 94130, 2010-
Ohio-1674] at ¶ 12. For this reason, the standard the trial court uses in
making its determination is the less restrictive "preponderance of the
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 10
evidence." Id. at ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455, 751
N.E.2d 552 (7th Dist.2001). "Preponderance of the evidence" means
evidence that is more probable, more persuasive, or of greater probative
value. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7.
Unlike permanent custody cases in which the trial court is guided by
the factors outlined in R.C. 2151.414(D) before terminating parental rights
and granting permanent custody, R.C. 2151.353(A)(3) does not provide
factors the court should consider in determining the child's best interest in
a motion for legal custody. In re G.M. at ¶ 15. We must presume that, in
the absence of best interest factors in a legal custody case, "the legislature
did not intend to require the consideration of certain factors as a predicate
for granting legal custody." Id. at ¶ 16. Such factors, however, are
instructive when making a determination as to the child's best interest. In
re E.A. [8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193] at ¶ 13.
The best interest factors include, for example, the interaction of the
child with the child's parents, relatives, and caregivers; the custodial history
of the child; the child's need for a legally secure permanent placement; and
whether a parent has continuously and repeatedly failed to substantially
remedy the conditions causing the child to be placed outside the child's
home. R.C. 2151.414(D).
Because custody determinations " 'are some of the most difficult and
agonizing decisions a trial judge must make,' " a trial judge must have broad
discretion in considering all of the evidence. In re E.A. at ¶ 10, quoting
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 11
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We
therefore review a trial court's determination of legal custody for an abuse
of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
An abuse of discretion implies that the court's attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
Accord, In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-3214; Stull v. Richland
County Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48, 2012-Ohio-738.
{¶ 38} On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). In Thompkins, supra, at 387, quoting Black's
Law Dictionary 1594 (6th Ed.990), the Supreme Court of Ohio explained the following:
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
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 12
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." (Emphasis sic.)
{¶ 39} In weighing the evidence, however, we are always mindful of the
presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio St
.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.
{¶ 40} Because neither mother nor child filed a transcript as required by Juv.R.
40(D)(3)(b)(iii), " 'the magistrate's findings of fact are considered established and may not
be attacked on appeal.' " J.S. v. T.S., 5th Dist. Knox No. 16CA18, 2017-Ohio-1042, ¶ 22,
quoting Murray v. Miller, 5th Dist. Richland No. 15CA02, 2015-Ohio-3726, ¶ 35. "Without
a transcript of the hearing, a trial court is required to accept all the magistrate's findings
of fact as true and only review the legal conclusions drawn from those facts." Bahgat v.
Kissling, 10th Dist. Franklin No. 17AP-641, 2018-Ohio-2317, ¶ 21, citing JPMorgan
Chase Bank, N.A. v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 14, fn. 1. Even
though a transcript was filed with this court, on appellate review, we cannot review the
factual findings because we cannot consider the transcript that the trial court did not have
the benefit of when it made its decision. State ex rel. Pallone v. Ohio Court of Claims,
143 Ohio St.3d 493, 2015-Ohio-2003, 39 N.E.3d 1220, ¶ 11.
{¶ 41} During the hearing, the magistrate heard from mother, the caseworker,
mother's counselor, and the guardian ad litem. The magistrate also conducted an in
camera interview with child.
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 13
{¶ 42} In her decision filed May 10, 2018 at ¶ 32, the magistrate noted the initial
concerns regarding child's care were "illegal substance abuse by both Mother and Father;
concerns regarding intimate partner violence between Mother and Father and witnessed
by [child]; and unstable living environment for [child]." The magistrate indicated at ¶ 34
and 35 that the agency filed several case plans over the course of the proceedings,
requiring mother to complete the following:
[D]emonstrate ongoing sobriety by screening regularly for drugs and
alcohol; maintain stable housing and stable income; submit to a substance
use disorder assessment and follow all recommendations; submit to a
mental health assessment and follow all recommendations; take medication
as prescribed; participate in family counseling with the child; participate in
parent education; and participate in visitation.
{¶ 43} The magistrate found the following in pertinent part:
45. Mother has not complied with the aspect of her case plan with
respect to maintaining stable housing and stable income.
46. Mother did not demonstrate that she had stable, appropriate
housing for a significant period after the child was removed. Additionally,
although she currently has housing, concern remains for her ability to
maintain her current housing as she had to rely on a friend to afford the
apartment on a long-term basis.
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 14
47. Mother has failed to remedy the concerns associated with this
aspect of her case plan.
50. The Court finds that Mother has not yet completed parenting
education.
56. Also during the time Mother was visiting the child without the
knowledge of FCCPS, a civil protection order was in place between Mother
and Father. Mother knew this and still had contact with Father regarding
visitation and Father was present during her entire visitation with the child.
59. This Court finds that Mother has been more compliant in recent
months with regard to visitation. However, concern remains for Mother's
ability to protect the child from Father in light of Mother's violation of court
orders regarding visitation and the civil protection order.
62. Mother was diagnosed with anxiety and depression. However,
she is not currently in any mental health counseling. Her current counselor
is not addressing her mental health issues.
65. Mother was asked to do a psychological evaluation. Mother has
not completed a psychological evaluation.
67. Mother participated with the call and screen program about 50%
of the time until December 2016. At that time, she stopped calling and
screening.
69. Mother re-engaged in the call and screen program in August
2017. Mother tested positive for marijuana on a screen. Mother has
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 15
recently screened on a more consistent basis and has provided negative
screens.
70. Although Mother has made some progress on her case plan,
Mother has not demonstrated a pattern to the court of sobriety and/or
consistency.
71. Mother began engaging in services at the end of 2017 and this
case has been pending since July 2016.
72. Mother does not have stable housing and continues to struggle
financially.
73. In addition, Mother testified that she has had several legal issues
through the pendency of this case which have resulted in warrants being
issued for her arrest. Mother did spend some time in jail and she does not
have a valid driver's license.
92. Mother has failed continuously and repeatedly to substantially
remedy the conditions causing the child to be placed outside the home.
93. The Court finds that for the child to remain with or be unified with
Mother would be contrary to the welfare of the child, and therefore, removal
continues to be in the best interest of the child.
94. Court finds Fairfield County Child Protection Services has made
reasonable efforts to reunify the child.
{¶ 44} As to best interests, the magistrate found child has expressed a desire to
live with her maternal grandfather and step-mother, as well as expressing a desire to live
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 16
with mother. Child was removed from her parents' home in August 2016; child "is not
able to find a legally secure placement with either biological parent at this time and this
case has been pending for over 18 months. Mother is not receiving any mental health
counseling, and has failed to follow court orders regarding visitation with child. Mother
did not have stable housing, and there were concerns that mother acted more of a friend
to child rather than a parent. The magistrate concluded, by a preponderance of the
evidence, that it was in child's best interest to be placed in the legal custody of the
maternal grandfather and step-grandmother.
{¶ 45} Taking the magistrate's findings as true, the trial court determined the
magistrate properly applied the law in considering the best interest of child. Given the
findings, we cannot find the trial court's decision to be against the manifest weight of the
evidence.
{¶ 46} The magistrate noted the guardian ad litem did not support the granting of
the motion for legal custody to the maternal grandfather and step-grandmother. Finding
No. 31. In his report filed February 14, 2018, the guardian stated he had just been
appointed as successor guardian ad litem in December 2017. He indicated he met with
the legal custodians for one hour, child for one hour, and mother for about an hour and a
half before writing his report. He opined in the best interest of child, the motion for legal
custody to maternal grandfather and step-grandmother should be denied and child should
be reunified with mother. However, he noted his report was a "preliminary opinion"
pending the evidence submitted during the hearing. In his report, he acknowledged
mother "is a work in progress." His most compelling question was "whether it is likely that
[mother] is committed to this effort and likely that it will be successful." Again, we note
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 17
the trial court did not have the benefit of the transcript to review the guardian's testimony
during the hearing.
{¶ 47} As explained by our colleagues from the Second District in In re P.T.P., 2d
Dist. Greene No. 2005 CA 148, 2006-Ohio-2911, ¶ 24:
A trial court is not required to follow the recommendation of a
guardian ad litem. In re P.P., Montgomery App. No. 19582, 2003-Ohio-
1051, ¶ 24, citing In re Haywood, Allen App. Nos. 1-99-93, 1-99-94, 1-99-
95, 2000-Ohio-1740. The function of a guardian ad litem is to consider the
best interests of a child and to make a recommendation to the court, but the
ultimate decision in any proceeding is for the judge, and the trial court does
not err in making an order contrary to the recommendation of the guardian
ad litem. In re Howard (1997), 119 Ohio App.3d 201, 206, 695 N.E.2d 1.
{¶ 48} Given the magistrate's findings taken as true and the extent of the
guardian's involvement with the family, we cannot find the trial court abused its discretion
in ruling contrary to the guardian's recommendation.
{¶ 49} Upon review, we find the trial court did not err or abuse its discretion in
granting legal custody of child to the maternal grandfather and step-grandmother under
the preponderance of the evidence.
{¶ 50} Mother's Assignment of Error III and child's Assignments of Error I and II
are denied.
MOTHER IV
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 18
{¶ 51} In mother's fourth assignment of error, mother claims the trial court abused
its discretion in granting her minimal supervised visitation with child. We disagree.
{¶ 52} Mother did not object to the magistrate's decision on visitation. "Except for
a claim of plain error, a party shall not assign as error on appeal the court's adoption of
any factual finding or legal conclusion, whether or not specifically designated as a finding
of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to
that finding or conclusion as required by Juv.R. 40(D)(3)(b)." Juv.R. 40(D)(3)(b)(iv).
{¶ 53} In Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997),
syllabus, the Supreme Court of Ohio explained the following:
In appeals of civil cases, the plain error doctrine is not favored and
may be applied only in 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. (Citations omitted.)
{¶ 54} The Goldfuss court explained at 121:
The plain error doctrine originated as a criminal law concept. In
applying the doctrine of plain error in a civil case, reviewing courts must
proceed with the utmost caution, limiting the doctrine strictly to those
extremely rare cases where exceptional circumstances require its
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 19
application to prevent a manifest miscarriage of justice, and where the error
complained of, if left uncorrected, would have a material adverse effect on
the character of, and public confidence in, judicial proceedings.
{¶ 55} Mother has not alleged a claim of plain error.
{¶ 56} The magistrate/trial court ordered reasonable supervised visitation between
mother and child at the discretion of the legal custodians. "Reasonable" was defined as
a minimum of three hours per week. The magistrate/trial court stated the visitation
amount "may be expanded upon Mother demonstrating that she is consistently attending
and engaging in drug and alcohol and mental health treatment, remaining clean and sober
and has stable housing."
{¶ 57} As discussed above, mother consistently attending and engaging in
drug/alcohol and mental health treatment and remaining clean and sober were valid
concerns. Furthermore, according to mother's own arguments under her second
assignment of error and footnotes 1 and 2 in her appellate brief, she has enjoyed
unsupervised visitation with child well beyond the three hour minimum.
{¶ 58} Upon review, we do not find any plain error regarding the visitation order.
{¶ 59} Mother's Assignment of Error IV is denied.
MOTHER V
{¶ 60} In mother's fifth assignment of error, mother claims she was denied the
effective assistance of counsel. We disagree.
{¶ 61} Appellant argues because ineffective assistance of counsel claims are
permitted in permanent custody cases, this court should find that legal custody is akin to
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 20
permanent custody and extend the application of these claims in this case. In her
appellate brief at 20, appellant argues, "[a] loss of legal custody of one's child is equally
permanent and involuntary." This argument lacks merit. As noted above, mother retains
residual parental rights, privileges, and responsibilities; she is not precluded from
regaining custody. R.C. 2151.353(A)(3)(c). If "legal custody" was permanent, it would
be called "permanent custody."
{¶ 62} This court will not expand the doctrine of ineffective assistance of counsel
beyond criminal cases and those involving permanent custody. See Matter of C.C., 5th
Dist. Muskingum No. CT2017-0085, 2018-Ohio-2686, ¶ 29, citing In re Logwood, 5th Dist.
Guernsey No. 2004-CA-38, 2005-Ohio-3639, ¶ 26; Accord In re W.A., 5th Dist.
Muskingum No. CT2013–0002, 2013–Ohio–3444.
{¶ 63} Mother's Assignment of Error V is denied.
Fairfield County, Case Nos.18-CA-25 and 18-CA-30 21
{¶ 64} The judgment of the Court of Common Pleas of Fairfield County, Ohio,
Juvenile Division is hereby affirmed.
By Wise, Earle, P.J.,
Wise, John, J. and
Delaney, J. concur.
EEW/db 125