In re J.R.P.

[Cite as In re J.R.P., 2018-Ohio-3938.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

IN THE MATTER OF:

J.R.P.

and

J.A.P.,

ALLEGED DEPENDENT CHILDREN

OPINION AND JUDGMENT ENTRY
Case No. 17 MA 0169

Civil Appeal from the
Court of Common Pleas, Juvenile Division, of Mahoning County, Ohio
Case Nos. 2013 JC 972; 2013 JC 973

BEFORE:
Cheryl L. Waite, Gene Donofrio, Kathleen Bartlett, Judges.

JUDGMENT:
Affirmed.

Atty. Matthew C. Giannini, 1040 South Commons Place, Suite 200, Youngstown, Ohio
44514 and
Atty. Louis E. Katz, 70 West McKinley Way, Suite 16, Poland, Ohio 44514, for
Appellants

Atty. David S. Barbee, Roth, Blair, Roberts, Strasfeld & Lodge, 100 East Federal Street,
Suite 600, Youngstown, Ohio 44503-1893, for the Court Appointed Special Advocate
Program (CASA)

Atty. Christopher A. Maruca, The Maruca Law Firm, LLC, 201 East Commerce Street
Suite 200, Suite 316 Youngstown, Ohio 44503, for Appellees.
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Dated: September 27, 2018

WAITE, J.

{¶1} Appellants husband and wife appeal the Mahoning County Court of Common

Pleas, Juvenile Division’s order granting custody of minor children, J.R.P. and J.A.P. to

Appellees, the children’s maternal grandfather and his husband. Appellants are distant

paternal cousins of the children. Appellants raise multiple issues on appeal including the

application of the appropriate statute; consideration of the guardian ad litem’s testimony;

and whether the trial court abused its discretion in granting custody to the maternal

grandfathers. This record reflects that the trial court applied the appropriate statute in a

custodial matter between two nonparent parties and that the testimony of the guardian ad

litem was properly admitted and considered by the trial court. Applying the appropriate

statutory factors, the trial court did not abuse its discretion in granting custody of the minor

children to the maternal grandfathers. Based on the following, the judgment of the trial

court is affirmed.

Procedural History

{¶2} This matter originated as a result of an abuse, dependency and neglect case

filed by the Mahoning County Children Services Board (“CSB”). Minor child, J.A.P., born

5/10/2013, suffered serious injuries at the hands of his Father when Father stuffed baby

wipes down the child’s throat when the child was eight weeks of age. Mother admitted she

was unable to care for the children. Consequently, J.A.P. and his sister, J.R.P., born

5/21/2012, were removed from the home. On July 8, 2013, CSB filed an ex parte motion

for custody of the minor children. Criminal charges were filed against Father and he has

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remained incarcerated throughout these proceedings. The trial court granted the ex parte

motion. On July 9, 2013, a shelter care hearing was held. After hearing, the trial court

found that it was in the children’s best interest for CSB to be granted protective custody.

{¶3} On September 9, 2013, the trial court determined that the children were

abused, dependent and neglected. Temporary custody was granted to their maternal

grandmother, (“Grandmother”). On January 21, 2014, CSB filed a motion to terminate

court ordered protective supervision. A hearing was held before a magistrate on March 17,

2014. At the conclusion of the hearing, it was determined that protective supervision would

be terminated. Due to health problems, Grandmother was no longer able to care for the

children at this point. CSB filed a motion to transfer custody to Appellants, who were

present at the hearing. The trial court adopted the magistrate’s decision on April 14, 2014.

{¶4} On July 10, 2014, Mother filed a motion seeking custody of the children. A

guardian ad litem (“GAL”) was appointed in the matter and it was set for hearing on

November 9, 2014, however, this hearing was continued at Appellants’ request. On

December 2, 2014, Appellees filed a motion to intervene in the matter and filed a motion for

custody. A hearing was held on December 19, 2014. Mother withdrew her complaint for

custody and Appellees’ motion to intervene was granted. On March 26, 2015, a hearing

was held to determine Appellees’ motion for custody. While the GAL had recommended

Appellees be given custody, the trial court, applying R.C. 3109.04(E), concluded Appellees

had not met their burden of proof and denied the motion for custody. Neither Mother nor

Father were present at that hearing.

{¶5} Due to an error by the trial court, the magistrate’s March 26, 2015 decision

was not filed until October 30, 2015. The trial court adopted it on October 30, 2015.

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However, on November 12, 2015, Appellees filed objections to the magistrate’s decision

and the matter was set for January 6, 2016. At this hearing, the trial court concluded that

the transcript of the hearing to the magistrate that was filed with the court was only a partial

transcript. This was due to a technological error at the court, and not an error caused by a

party. The court elected to set the matter for a trial de novo and ordered a visitation

schedule between the parties. On January 12, 2016, Appellants filed a motion in

opposition to third party visitation and requested either child support or transportation

expenses. Appellants secured new counsel and filed a motion to continue the pretrial

hearing that had been set for February 24, 2016. This motion was granted and pretrial was

set for April 28, 2016. At the pretrial, the court set the matter for trial on August 3, 2016.

On August 2, 2016 Appellants filed a motion for a continuance and trial was continued to

October 10, 2016. On October 10, 2016, as trial was set to commence, the court

determined that service had not been perfected on either Mother or Father. The trial was

continued to January 6, 2017 and the court again set a visitation schedule for the parties.

{¶6} On November 14, 2016, Appellants filed a motion to dismiss on the basis that

they had filed a petition for adoption of the children in the Mahoning County Probate Court.

Appellees filed a motion in opposition. On December 22, 2016, Appellants filed a writ of

prohibition in this Court, challenging the trial court’s jurisdiction over custody proceedings

because the children were also the subject of adoption proceedings. (Case No. 16 MA

0195). On January 26, 2017, Appellants voluntarily dismissed their request for writ of

prohibition, stating that the parties had reconciled their differences and the adoption matter

would not proceed.

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{¶7} On February 8, 2017, Appellants filed a motion seeking to be granted legal

custody of the children. On February 17, 2017, the trial court, yet again, ordered a

visitation schedule and set a new trial date of May 3, 2017.

{¶8} On March 15, 2017, Appellants filed another petition in this Court, now

seeking a writ of mandamus. Appellants sought to compel the trial court judge to act on

their motion for legal custody. The juvenile court, as Respondent, filed a motion to dismiss.

On September 7, 2017, we dismissed Appellants’ petition, concluding that it had been filed

prematurely and that the filing of the petition itself was now causing delay in the

proceedings below. (7th Dist. Case No. 17 MA 0047). In fact, because of the pending

petition, the trial dates which were originally set for May had to be continued to October of

2017.

{¶9} On May 15, 2017, Appellants filed yet another writ with this Court. This time

they sought a writ of procedendo. We again dismissed the writ, noting that the proceedings

below had not been unduly delayed and that the writ itself, again, was the cause of delay.

{¶10} A trial on the merits was held October 16 – 20, 2017. Both parties presented

testimony from several witnesses and a number of exhibits were admitted into evidence.

The court-appointed GAL also testified. Five written reports drafted by the guardian ad

litem, spanning a period of approximately three years of investigation, were offered. The

trial court took judicial notice of the reports and they were made part of the trial court record

under seal. The trial court issued its judgment entry on November 22, 2017, granting legal

custody of the minor children to Appellees.

Factual History

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{¶11} We note again that this arose in a dependency case involving two minor

children, J.A.P. and J.R.P. Abuse occurred in July of 2013 when J.A.P. was eight weeks

old that caused significant injury to the child. Father was criminally charged as a result and

has been incarcerated throughout these proceedings. Mother has been unable to care for

the children. Appellants are distant cousins of Father and live in Mahoning County.

Appellees are the children’s maternal grandfather and his husband; they live in

Massachusetts. Appellees have adopted an older sibling of the minor children at issue and

also have custody of the children’s younger sibling.

{¶12} Temporary custody was originally granted to Grandmother after the children

were removed from their home by CSB. Appellants had no relationship with the minor

children prior to this, but began visiting Grandmother and the children at that time. Also at

that time, Appellees contacted CSB expressing a desire to have custody of the children, but

were informed that obtaining a long distance custody arrangement would take an extended

period of time. Hence, Appellees were in agreement that Grandmother be appointed

temporary custodian of the children. They did not pursue custody at that time, but did

contact Grandmother weekly to discuss the children. Mother lived with Appellees for

approximately one year before returning to Mahoning County shortly before trial, and had

daily interaction with her other two children. Mother maintained regular visitation with the

two children at issue in this case while they were under Grandmother’s care.

{¶13} This temporary custody arrangement lasted until Grandmother became

terminally ill and was unable to care for the children. Although CSB was aware of

Appellees’ desire to obtain custody of the children because of their previous call to CSB,

Appellees were not contacted about the transfer of temporary custody from Grandmother,

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and temporary custody of the children went from Grandmother to Appellants. Appellees did

not learn Appellants had custody of the children until they attended Grandmother’s funeral

in October of 2014. Appellees visited with the children at that time and, the following

month, met with the GAL and hired counsel in order to pursue a change of custody with the

trial court.

{¶14} During the pendency of the matter, the parties have had a contentious

relationship. Visitation was an ongoing concern. Appellants were not cooperative in

allowing Appellees to have visitation with the children, necessitating several visitation

orders be ordered by the trial court once Appellees’ motion to intervene was granted.

Initially, Appellants insisted that all visits with the children occur only in the presence of the

guardian ad litem and in the lobby of the hotel where Appellees stayed on visits to

Youngstown. Appellants habitually monitored Appellees’ visits. During one visit when the

children were staying at a local hotel with Appellees, Appellant husband drove around the

parking lot looking for Appellees’ vehicle. When he could not find it, he contacted the local

police department, alleging that Appellees had kidnapped the children. Testimony at trial

revealed several such contentious interactions. Eventually, the court granted extended

visitation, permitting Appellees to return to Massachusetts with the children and ordering

the parties to meet in Pennsylvania for the exchange, or that Appellees were to be

responsible for all of the transportation. Appellants never permitted Appellees into their

home and Appellees had limited contact with Appellants due to Appellants’ refusal to

engage meaningfully while they had the children.

{¶15} Another major area of contention was in providing the appropriate level of

physical, occupational and speech therapy for both children. J.R.P. was born prematurely.

Case No. 17 MA 0169
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As a result, the child has undergone various forms of therapy. J.A.P. experienced

significant injury as a result of his Father’s abuse and has required therapy as a result. The

child has other physical restrictions; for instance a thickener must be added to any fluids he

ingests due to a danger of aspiration. Both children have exhibited developmental delays

since birth and attended Easter Seals while under Grandmother’s care. Once the children

were placed in Appellants’ custody, consistent physical, occupational and speech therapy

was not provided and any therapy that was provided was only that which was available in

their respective preschools, but never on a consistent basis. The record also reveals a gap

of over a year where the children did not receive any therapy while under Appellants’ care.

Appellants have been inconsistent with their stance on whether the children even require

therapy. For example, J.A.P. requires more assistance for his disabilities than J.R.P., but

according to Appellant wife, there was a discontinuation of therapy for J.A.P. from March of

2014 through September of 2016. (Tr., p. 787.) Moreover, Appellants argue both that

therapy is not needed and, to the contrary, that J.A.P. qualifies for several services through

the county. (Tr., pp. 704, 787). Testimony from Appellants’ witnesses at trial

acknowledged that the Head Start program in which they were enrolled was merely for

Appellants’ “convenience,” since Appellant wife was employed there, but that this program

did not provide adequate therapy services for the children or prepare J.R.P. for

kindergarten. (Tr., pp. 680, 788, 790-791.)

{¶16} Appellees testified that Appellants never told them that the children required

any special accommodations originally, including failing to provide Appellees with the

“thickener” for J.A.P.’s drinks or to even tell them that this was necessary because he had

difficulty swallowing liquids as a result of his injuries. Appellants failed to inform Appellees

Case No. 17 MA 0169
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that J.A.P. had tubes placed in his ears when Appellees were planning on swimming with

the children in the hotel pool. (Tr., pp. 190-192; 875, 876-877.) The GAL also testified that

Appellants never informed her of any of the therapies necessary for the children, even up to

the day of trial. (Tr., pp. 894-895.) The GAL found out about the ear tubes from Appellees

and learned of the physical, occupational and speech therapies by visiting the children’s

preschool to talk with their teachers. (Tr., pp. 895-895.) Appellees and the GAL all testified

that Appellants consistently denied them access to the children’s medical records and

repeatedly indicated that everything was fine when asked about the children’s health. (Tr.,

pp. 49, 878.) Once Appellees were able to have long-term visits with the children in

Massachusetts beginning in January of 2016, they sought medical care and obtained

physical, occupational and speech therapy screenings on the children. The children

attended therapy approximately two to three times weekly during their six-week visit with

Appellees. (Tr., pp. 73, 200.)

{¶17} This record reveals that the matter of determining legal custody was pending

for an extended period of time. We note that Appellees sought a continuance at the

beginning of the proceedings because they had recently obtained counsel, which was

denied. This was the only continuance sought by Appellees. However, Appellants have

sought and obtained multiple continuances for several reasons, including their multiple

filings to this Court, which caused additional delays. The trial court acknowledged that a

seven-month delay in filing the first magistrate’s decision also contributed to the extended

period of time in which the matter remained unresolved. Finally, at the conclusion of the

multi-day trial, the trial court awarded custody to Appellees. Appellants now file this timely

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appeal presenting eleven assignments of error. The assignments of error will be

addressed out of numerological order for ease of analysis.

ASSIGNMENT OF ERROR NO. 1

THE JUVENILE COURT ERRED AS A MATTER OF LAW IN PROVIDING

A SUMMARY OF TESTIMONY INSTEAD OF MAKING FINDINGS OF

FACT.

{¶18} In their first assignment of error, Appellants contend the trial court erred in

providing only a summary of the evidence rather than making actual findings of fact in this

case.

{¶19} Citing Buzinski v. Buzinski, 5th Dist. No. CA-9304, 1993 WL 544358,

Appellants claim that in its decision, the trial court merely recited all of the evidence that

was presented instead of setting out only those facts the trial court deemed important, and

that the judgment of the trial court should be reversed on this basis. Appellants also rely on

Werden v. Crawford, 70 Ohio St.2d 122, 435 N.E.2d 424, 426 (1982), to urge that we

cannot adequately review this matter absent the trial court’s findings of fact. In Buzinski,

the judgment of the trial court was reversed and remanded where the one page judgment

entry failed to provide any factual basis for its conclusion. In Werden, the Ohio Supreme

Court concluded that in custody proceedings, Civ.R. 52 requires separate findings of fact

and conclusions of law only on a party’s timely request. Werden, syllabus. Neither case

applies in the instant matter.

{¶20} To be sure, the Ohio Supreme Court has noted “that a trial court has a

mandatory duty under Civ. R. 52 to issue findings of fact and conclusions of law upon

request timely made.” In re Adoption of Gibson, 23 Ohio St.3d 170, 173, 492 N.E.2d 146

Case No. 17 MA 0169
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(1986). However, we have held that there is no mandatory requirement for such findings in

the absence of a timely request. In re D.D.D., 7th Dist. No. 12 JE 7, 2012-Ohio-5254, ¶ 35.

No request was made by Appellants in this matter.

{¶21} Notwithstanding this determination, there are statutory provisions that require

the trial court to issue findings of fact and conclusions of law in certain circumstances. R.C.

2151.28(L) requires the trial court to issue findings of fact and conclusions of law in a

hearing on a complaint alleging a child is abused, neglected and dependent pursuant to

R.C. 2151.28(A). The instant trial was not held for this purpose, but instead was for the

purpose of determining legal custody of the children following this determination. While

these facts show the trial court was not required to set forth its findings of fact and

conclusions of law, the court was certainly permitted to provide the extensive fifteen-page

judgment entry detailing the facts presented at trial. Under a heading entitled, “Statement

of Facts” the trial court sets forth facts which were derived from the trial testimony and

evidentiary materials. Not merely a complete recitation of each witness’s testimony as

alleged by Appellants, the judgment entry discusses pertinent factual information which,

after having an opportunity to judge the demeanor and determine the credibility of each

witness, the trial court clearly found credible and relevant to its legal conclusions.

Appellants’ contention that the trial court failed to provide findings of fact is without merit

and their first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO

APPLY R.C.3109.04 IN THIS CASE.

ASSIGNMENT OF ERROR NO. 3

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THE JUVENILE COURT ERRED BY FAILING TO PROVIDE ANY

ANALYSIS OF THE STATUTORY FACTORS SET FORTH IN R.C.

3109.04(F).

ASSIGNMENT OF ERROR NO. 5

THE JUVENILE COURT ERRED AS A MATTER OF LAW BY

CHANGING CUSTODY WITHOUT A FINDING (OR EVEN MENTIONING)

THAT “THE HARM LIKELY TO BE CAUSED BY A CHANGE OF

ENVIRONMENT IS OUTWEIGHED BY THE ADVANTAGES OF THE

CHANGE OF ENVIRONMENT TO THE CHILD” AS REQUIRED BY R.C.

3109.04(E)(1)(a).

{¶22} Appellants’ second, third and fifth assignments of error all relate to the trial

court’s application of R.C. 2151.42 rather than R.C. 3109.04 in making its custody

determination in the instant matter. Appellants contend the trial court failed to apply the

appropriate statute, requiring reversal.

{¶23} A determination of legal custody by the juvenile court will only be reversed

for an abuse of discretion. In re D.D.D., 7th Dist. No. 12 JE 7, 2012-Ohio-5254.

Appellants argue that the trial court misinterpreted the statutory framework applicable in

this matter and failed to apply the relevant statutory provision when awarding custody to

Appellees.

{¶24} A trial court’s interpretation and application of a statute is an issue of law,

which we review de novo. In re A.K., 7th Dist. No. 08 MA 193, 2009-Ohio-5074, ¶ 18

citing Skirvin v. Kidd, 174 Ohio App.3d 273, 2007-Ohio-7179, 881 N.E.2d 914, ¶ 14 (4th

Dist.). A de novo review by the appellate court necessitates an independent

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consideration of the trial court’s judgment without any deference to the trial court’s

determination. Matasy v. Youngstown Ohio Hospital Company, LLC, 7th Dist. No. 16

MA 0136, 2017-Ohio-7159, 95 N.E.3d 744, ¶ 17, citing Mayhew v. Massey, 2017-Ohio-

1016, 86 N.E.3d 758, ¶ 12 (7th Dist.).

{¶25} Appellants rely on In re D.D., 7th Dist. No. 17 CA 0914, 2017-Ohio-8392,

100 N.E.3d 141 for the proposition that before the trial court could award legal custody

to Appellees, it was required to apply the factors enumerated in R.C. 3109.04(E)(1)(a)

and determine not only whether the award was in the best interest of the child, but first,

whether a change in the children’s or the current custodian’s circumstances had

occurred. The trial court rejected Appellants’ argument and relied on R.C. 2151.42(A)

to modify an award of temporary custody which was granted in a dependency

proceeding. (11/22/17 J.E., p. 13.) In re D.D. involved a custody dispute between a

father and a maternal uncle. We held that the trial court did not err in awarding custody

to the maternal uncle over the father after a finding that the father was unsuitable under

the standard set forth in In re Perales, 52 Ohio St.2d 89, 96, 369 N.E.2d 1047 (1977).

We specifically noted that the trial court in In re D.D. did not apply R.C. 3109.04. In a

footnote in In re D.D. we opined that, should the parent seek custody from the

nonparent in the future, the change in circumstance/best interest factors found in R.C.

3109.04 would apply to this change in custody rather than the Perales unsuitability

standard.

{¶26} Appellants’ reliance on In re D.D. is misplaced. We agree that “custody of

a child is a ‘fundamental liberty interest’ of a parent,” Id., at ¶ 12 quoting Santosky v.

Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d. 599 (1982). However, where

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there is a custody dispute between two nonparents, no such fundamental liberty interest

exists. Moreover, the instant matter involves children who were adjudicated abused,

neglected and dependent. No such adjudication occurred in In re D.D. The court in In

re D.D. was making a final determination of custody in a matter that involved charges of

unsuitability of a parent. This determination was between the parent and a nonparent.

Certainly, where final custody determinations are made and involve parents, R.C.

3109.04 is applicable should the parent seek to change this final custody award.

However, as we will explain, R.C. 2151.42(A) applies in cases where children were

previously adjudicated abused, neglected and dependent, were removed from the

home, and the trial court is faced with making a final custody award, even when no

person seeking legal custody is a parent. Our holding in In re D.D. is not relevant in the

instant matter.

{¶27} Appellants also cite our decision in Allison v. McCune, 7th Dist. No. 15 MA

0208 for the proposition that the juvenile court must exercise jurisdiction in accordance

with R.C. 3109.04. Id. at ¶ 31. In Allison, we cited R.C. 2151.23(F)(1) which indicates

the juvenile court should exercise its jurisdiction in custody matters in accordance with

R.C. 3109.04. Allison is also factually inapplicable, because it involved a custody

determination between two parents. This distinction is crucial, however, because it is

readily apparent that R.C. 3109.04, in both title and substance, solely regards matters

involving parents and the final decrees of custody. The matter now before us, on the

other hand, involves a dispute where both parties seeking legal custody are nonparents,

the children have previously been adjudicated abused, neglected and dependent

pursuant to R.C. 2151.353(A)(2)(d) and were removed from the parental home and

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placed in temporary custody. R.C. 2151.42(A) provides for the modification of an award

of temporary custody which was granted in a dependency proceeding. While this

section anticipates that a parent will seek such modification, it appears all the more

relevant when the issue of modification of legal custody is between nonparents.

{¶28} The trial court relied on the Ohio Supreme Court’s decision in In re C.R.,

108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, which held:

2. A juvenile court adjudication of abuse, neglect, or dependency is a

determination about the care and condition of a child and implicitly

involves a determination of the unsuitability of the child’s custodial and/or

noncustodial parents.

3. When a juvenile court adjudicates a child to be abused, neglected, or

dependent, it has no duty to make a separate finding at the dispositional

hearing that a noncustodial parent is unsuitable before awarding legal

custody to a nonparent.

Id., at paragraphs two and three of the syllabus.

{¶29} In its judgment entry dated November 22, 2017, the trial court thoroughly

addressed the applicable law, concluding:

The magistrate initially applied ORC Section 3109.04 to the facts of the

case. On review, this Court found said application was erroneous as the

best interest standard applies. [Appellants’] Counsel asserts that the ORC

Section 3109.04 is the prevailing standard however this Court disagrees.

This matter arose on the abuse, dependency, and neglect docket and at

the time of the Maternal Grandfather and husband’s Motion for Custody,

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[Appellants] had temporary custody under ORC Section 2151.42. The

Court relies on Ohio Revised Code Section 2151.42(A) when modifying an

award of temporary custody which was granted in a dependency

proceeding. The Court finds In re C.R., at ¶ 16, 108 Ohio St.3d 369

(2005) controlling. Ohio Revised Code Section 2151.011(B)(2) defines

“temporary custody” as “legal custody of a child who is removed from the

child’s home, which custody may be terminated at any time at the

discretion of the court.” Additionally, the case facts show the Minor

Children were previously adjudicated abused and dependent, and were

placed in the temporary custody first with the Maternal Grandmother and

then the [Appellants]. The Ninth Appellant [sic] District ruled that “once a

court has exercised jurisdiction over a child, the court has continuing

jurisdiction to determine what is in the best interests of the child.

Furthermore, O.R.C. Section 3109.04 applies to situations between

parents since the philosophy of requiring a change of circumstances in

custody issues is based on the presumption that parents are equals and

must be treated as such.” See In re A.M., 2017 Ohio 7690 [sic] at ¶ 20,

CA 28285, 2017 Ohio App. LEXIS 4024. In a juvenile proceeding where

the parties are not on equal footing, the change of circumstances standard

does not apply. See In re A.M., 2017 Ohio 7690 [sic] at ¶ 17 O.R.C.

Section 3109.04 is relevant to a modification of a prior decree allocating

parental rights and responsibilities and hence, is not applicable to the case

at bar. Importantly, the Ohio Supreme Court has recognized the flexibility

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provided in O.R.C. Section 2151, and has eschewed the general rule that

“permanency of final orders is a paramount principle.” In re Hockstock,

[sic] at ¶¶ 35and [sic] 98, Ohio St.3d 238, 2002.

(11/22/17 J.E., pp. 13-14.)

{¶30} The trial court correctly noted that when children have been adjudicated

abused, neglected or dependent, a previous determination as to the unsuitability of the

parents has been made and legal custody may be awarded to a nonparent if it is in the

child’s best interest. In re Ray, 7th Dist. Nos. 07 BE 14, 07 BE 15, 2008-Ohio-3250,

¶ 48. On removal from the home, the children in this matter were placed in

Grandmother’s care. This custody was, by law, “temporary.” R.C. 2151.011(B)(2).

Once Grandmother was unable to continue caring for the children, new guardians were

required and the court used its discretion to discontinue custody in Grandmother and

change temporary custody to Appellants. Since Mother filed, but withdrew a motion for

custody, not until Appellees sought legal custody was this temporary custody

challenged. Because the Appellants had obtained custody pursuant to R.C. 2151.42,

any change to that custody is to be considered pursuant to R.C. 2151.42(A), as

discussed by the trial court.

{¶31} Appellants essentially seek to have the magistrate’s decision reinstated.

The magistrate utilized the standard set forth in R.C. 3109.04(E)(1)(a) which provides,

in relevant part:

The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children unless it finds, based on facts that

have arisen since the prior decree or that were unknown to the court at the

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time of the prior decree, that a change has occurred in the circumstances

of the child, the child's residential parent, or either of the parents subject to

a shared parenting decree, and that the modification is necessary to serve

the best interest of the child.

{¶32} R.C. 3109.04(E)(1)(a) also requires that the trial court should “retain the

residential parent designated by the prior decree” unless certain other factors exist. A

plain reading of these provisions leads us to the unescapable conclusion that these

apply only when deciding “parental” rights – the rights and duties at stake when at least

one of the parties is the child’s actual parent. In this case, there has been no previous

“decree allocating parental rights and responsibilities,” because the children have been

removed from their parents, who have been deemed unsuitable. On its face, then, R.C.

3109.04 does not apply when making a custody determination by and between

nonparents, especially when any earlier custody decision can only be called temporary

and discretionary with the court and did not involve any allocation of “parental rights and

responsibilities.”

{¶33} R.C. 2151.42(A) is applicable in cases where children who were

previously adjudicated abused, neglected and dependent were placed in the legal

custody of nonparents. The custody of the children at issue in the instant matter was

undeniably adjudicated pursuant to R.C. 2151.353(A)(2)(d). Therefore, R.C. 2151.42(A)

provides instruction:

At any hearing in which a court is asked to modify or terminate an order of

disposition issued under section 2151.353, 2151.415, or 2151.417 of the

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Revised Code, the court, in determining whether to return the child to the

child's parents, shall consider whether it is in the best interest of the child.

{¶34} In this matter, Mother sought to regain custody and then withdrew her

request. At this juncture, Appellees and Appellants all sought legal custody. This

request is clearly a modification of the earlier, temporary award and relies simply on the

“best interests” standards. We realize that, on its face, this section applies when a

parent seeks the return of his or her children, which is clearly not the case, here. The

trial court cited In re C.R., supra, where the Ohio Supreme Court held that when a

juvenile court adjudicates a child abused, neglected, or dependent, it has inherently

made a determination as to the unsuitability of the child’s parents and has no duty to

make a separate finding of unsuitability at a dispositional hearing. Id., at paragraphs 2

and 3 of the syllabus. The trial court also cited In re A.M., 9th Dist. No. 28285, 2017-

Ohio-7690, 97 N.E.3d 1036, wherein a mother who had previously relinquished custody

to nonparents later sought to regain custody of her child. Even though custody was

sought by the actual parent, R.C. 2151.42(A) controlled because the Ninth District held

that the standard set forth in R.C. 3109.04 only applies where there is a custody matter

between a residential and nonresidential parent or parents who are subject to a shared

parenting decree. Id. at ¶ 14.

{¶35} In applying the principles set forth in In re D.D. and In re C.R., once a child

is adjudicated abused, neglected and dependent a determination regarding the

unsuitability of a parent is considered to be inherently part of that proceeding and no

further inquiry remains other than the best interest standard. A party seeking legal

custody who is a nonparent obviously does not possess the same rights a parent has to

Case No. 17 MA 0169
 – 20 –

his or her own children. However, Appellants seek to have this temporary custody

conflated to a parental right. These children have had their parents deemed unsuitable.

The trial court, using its statutorily-granted discretion, placed them with Grandmother as

an emergency, stopgap measure. When Grandmother became ill, another emergency,

stopgap measure was necessarily taken and custody was given to Appellants.

Appellants do not rise to the level of parents, however, and do not step into their shoes

and usurp parental rights. Appellants themselves acknowledge this in filing their own

motion seeking legal custody (as opposed to the temporary custody granted them) and

in briefly seeking adoption. Once Appellees also sought custody, the decision before

the trial court was not yet another emergency, stopgap measure for the children, but

was more akin to a determination of final custody. For the first time, the trial court was

faced with making an award based, not on whether guardians were available, but on

which guardians would best provide care for the children: the best interests of the

children. The trial court, in accordance with R.C. 2151.42(A), was required to only

conduct a best interest determination between two nonparents with respect to the

instant matter. A plain reading of all relevant statutes can only lead to this conclusion;

to rule otherwise would be to elevate Appellants’ interests here to that of the children’s

actual parents. We recognize that not only do the statutes clearly state otherwise, but

Mother in this case has not lost her parental rights to her children, she has simply lost

custody. The trial court did not err in applying R.C. 2151.42. Appellants’ second

assignment of error is without merit and is overruled.

{¶36} In Appellants’ third and fifth assignments they also contend that R.C.

3109.04 should apply in this case. Specifically, Appellants rely on the factors

Case No. 17 MA 0169
 – 21 –

enumerated in R.C. 3109.04(F) and R.C. 3109.04(E)(1)(a) to argue that the trial court

did not undertake a thorough analysis prior to giving custody to Appellees. Again, the

language of R.C. 3109.04 is directed, in virtually all sections, specifically to “parents.”

The General Assembly did not utilize the word “custodian” or “temporary custodian,” but

intentionally used “parent” in drafting the factors set forth in R.C. R.C. 3109.04(F). That

said, and despite the inapplicability of R.C. 3109.04(F) to the matter at issue, the record

reveals that the court provided an exhaustive analysis of similar concerns, including

Appellants’ inability to foster communication with both Mother and Appellees;

Appellants’ failure to provide consistent therapies for the children; and continued and

repeated dishonesty and evasiveness with both Appellees and the GAL, among other

issues. Thus, although we conclude the trial court applied the appropriate statute, the

record reveals the trial court conducted a meaningful analysis that provides a basis for

its determination. See McCune at ¶ 46. Appellants’ third assignment of error is without

merit and is overruled.

{¶37} We also conclude that R.C. 3109.04(E)(1)(a) does not apply in this matter.

It is apparent from the language of the statute that it provides an analysis to be

conducted, not as part of a custody determination between two nonparent parties after

an adjudication of abuse, neglect and dependency, but between two parents after a final

custody decree has been issued:

The court shall not modify a prior decree allocating parental rights and

responsibilities for the care of children unless it finds, based on facts that

have arisen since the prior decree or that were unknown to the court at the

time of the prior decree, that a change has occurred in the circumstances

Case No. 17 MA 0169
 – 22 –

of the child, the child's residential parent, or either of the parents subject to

a shared parenting decree, and that the modification is necessary to serve

the best interest of the child. In applying these standards, the court shall

retain the residential parent designated by the prior decree or the prior

shared parenting decree, unless a modification is in the best interest of the

child and one of the following applies:

(i) The residential parent agrees to a change in the residential parent or

both parents under a shared parenting decree agree to a change in the

designation of residential parent.

(ii) The child, with the consent of the residential parent or of both parents

under a shared parenting decree, has been integrated into the family of

the person seeking to become the residential parent.

(iii) The harm likely to be caused by a change of environment is

outweighed by the advantages of the change of environment to the child.

R.C. 3109.04(E)(1)(a).

{¶38} Appellants claim that R.C. 3109.04(E)(1)(a) creates a strong presumption

that the trial court should retain the status quo in all change of custody matters. Again,

no persons seeking custody, here, are parents and a review of the statute and caselaw

in this area reveals that the juvenile court’s inquiry was limited to whether the transfer of

legal custody of the children from Appellants to Appellees was in the best interest of the

children. Appellants’ fifth assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 6

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THE JUVENILE COURT ERRED AS A MATTER OF LAW IN USING THE

GUARDIAN AD LITEM'S TESTIMONY IN DETERMINING CUSTODY

WHEN THE GUARDIAN WAS UNAWARE OF THE STATUTORY

FACTORS AS TO BEST INTERESTS SET FORTH UNDER R.C.

3109.04(F).

ASSIGNMENT OF ERROR NO. 8

THE JUVENILE COURT ERRED BY IMPROPERLY ALLOWING THE

GUARDIAN AD LITEM TO GIVE HEARSAY TESTIMONY AND TO

TESTIFY TO MATTERS BEYOND HER KNOWLEDGE.

ASSIGNMENT OF ERROR NO. 10

THE JUVENILE COURT ERRED IN TAKING JUDICIAL NOTICE OF THE

FIVE GUARDIAN REPORTS, ONE OF WHICH RELATED TO A PRIOR

PROCEEDING AND NONE OF WHICH WERE ADMITTED INTO

EVIDENCE.

{¶39} In Appellants’ sixth, eighth and tenth assignments of error they take issue

with inclusion of the CASA/guardian ad litem’s testimony and written reports.

{¶40} Appellants first contend the trial court erred, as a matter of law, in

permitting the GAL to testify and in relying on that testimony in making its custody

determination when the guardian ad litem was not able to recite all of the factors found

in R.C. 3109.04(F)(1).

{¶41} R.C. 3109.04(F)(1) sets forth the factors to be considered by a trial court

when making a determination in an original decree allocating the rights and

responsibilities of parents, or in modifying the original decree. As earlier discussed,

Case No. 17 MA 0169
 – 24 –

R.C. 3109.04(E)(1)(a), which governs the modification of a prior order allocating

parental rights and responsibilities, applies only to the modification of a final custodial

order between two parents of a child, or a parent and a nonparent. It does not apply in

temporary custodial proceedings involving two nonparents. However, R.C. 2151.42(A)

does require the trial court to consider the best interest of the child. Although that

statute does not specifically enumerate factors to be considered, the Ohio Supreme

Court has held that the best interest standard is the appropriate standard for the juvenile

court to apply in a proceeding modifying custody. In re Hockstok, 98 Ohio St.3d 238,

2002-Ohio-7208, 781 N.E.2d 971, at ¶ 38. Therefore, in considering the totality of the

circumstances, a trial court does not err in utilizing R.C. 3109.04(F) best interest factors

when determining the best interest of the child.

{¶42} In the instant matter, the GAL had been appointed early in the

proceedings, in July of 2014. The GAL is not an attorney, but a retired educator, and a

foundation listing her qualifications was properly before the trial court during her

testimony. Appellants do not contest the GAL’s general qualifications or abilities.

Instead, they claim that because she was unable to recite the statutory factors found in

R.C. 3109.04(F) verbatim during her trial testimony, the trial court erred in relying on

any part of her testimony. The trial court provided Appellants’ counsel with the

opportunity to inquire whether the GAL’s recommendations aligned with these factors,

but Appellants’ counsel refused, determined in its position that the GAL be able to recite

the language of the statute verbatim. (Tr., p. 962.)

Case No. 17 MA 0169
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{¶43} It is the duty of the guardian ad litem to protect the interests of the child.

In re Pryor, 86 Ohio App.3d 327, 339, 620 N.E.2d 973 (4th Dist.1993). R.C. 2151.281

governs the duties of a guardian ad litem in juvenile cases. It reads, in pertinent part:

The guardian ad litem for an alleged or adjudicated abused, neglected, or

dependent child shall perform whatever functions are necessary to protect

the best interest of the child, including, but not limited to, investigation,

mediation, monitoring court proceedings, and monitoring the services

provided the child by 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.

R.C. 2151.281(I).

{¶44} Sup.R. 48 further outlines a guardian ad litem’s duties, including those

who are not attorneys. It provides in part:

5) A non-attorney guardian ad litem must avoid engaging in conduct that

constitutes the unauthorized practice of law, be vigilant in performing the

guardian ad litem’s duties and request that the court appoint legal counsel,

or otherwise employ the services of an attorney, to undertake appropriate

legal actions on behalf of the guardian ad litem in the case.

***

(13) A guardian ad litem shall make reasonable efforts to become

informed about the facts of the case and to contact all parties. In order to

provide the court with relevant information and an informed

Case No. 17 MA 0169
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recommendation as to the child’s best interest, a guardian ad litem shall,

at a minimum, do the following, unless impracticable or inadvisable

because of the age of the child or the specific circumstances of a

particular case:

(a) Meet with and interview the child and observe the child with each

parent, foster parent, guardian or physical custodian and conduct at least

one interview with the child where none of these individuals is present;

(b) Visit the child at his or her residence in accordance with any standards

established by the court in which the guardian ad litem is appointed;

(c) Ascertain the wishes of the child;

(d) Meet with and interview the parties, foster parents and other

significant individuals who may have relevant knowledge regarding the

issues of the case;

(e) Review pleadings and other relevant court documents in the case in

which the guardian ad litem is appointed;

(f) Review criminal, civil, educational and administrative records

pertaining to the child and, if appropriate, to the child’s family or to other

parties in the case;

(g) Interview school personnel, medical and mental health providers, child

protective services workers and relevant court personnel and obtain

copies of relevant records;

(h) Recommend that the court order psychological evaluations, mental

health and/or substance abuse assessments, or other evaluations or tests

Case No. 17 MA 0169
 – 27 –

of the parties as the guardian ad litem deems necessary or helpful to the

court; and

(i) Perform any other investigation necessary to make an informed

recommendation regarding the best interest of the child.

{¶45} As noted by Appellees, there is no requirement that a GAL operate with

“legal precision” but, rather, that they adhere to the statutory requirements. Pryor at

339.

{¶46} The GAL in the instant matter provided lengthy testimony regarding her

years-long investigation of all parties in this action, including several trips to the

children’s preschool and school, sitting in on visitations with Appellees at Appellants’

request and even visiting Appellees’ home during one of her personal vacations to

Massachusetts. Her testimony reflected that she had taken several factors into

consideration before making her recommendation to the court, many of which

encompass the factors enumerated in R.C. 3109.04(F). She testified that Mother

wanted Appellees to have custody. She testified about the relationship each child had

with both parties and their other siblings; the adjustment of the children to their schools;

the physical and mental health of the children; and which party was more likely to honor

and facilitate visitation. Appellants’ counsel is adamant that the GAL could not fulfill her

duties without the ability to recite the statutory factors set forth in R.C. 3109.04(F). To

insist on such a stringent standard imposes demands on a non-attorney guardian ad

litem that simply is not required either under the law or within the Rules of

Superintendence. Further, Appellants have not demonstrated that the inability of the

GAL to recite the language of the statute has in any way affected her ability to conduct a

Case No. 17 MA 0169
 – 28 –

thorough investigation of the matter. Appellants’ sixth assignment of error is without

merit and is overruled.

{¶47} In their eighth assignment of error, Appellants contend the trial court erred

in allowing the GAL to give hearsay testimony. Appellants cite to four instances in the

testimony as evidence of impermissible hearsay, including a statement by Mother to the

GAL that Appellants would not allow her to visit with the children. (Tr., p. 911.)

Appellants also objected to the GAL’s testimony about a statement made by one of the

children. On review, the statement cited by Appellants was made to her by one of the

children’s teachers. (Tr., p. 948.) Appellants take issue with testimony regarding

Appellant husband’s opinion as to Appellees’ sexual orientation. (Tr., pp. 925-927.)

Finally, Appellants object to testimony regarding one Appellee’s fear that the police

were going to be called to their hotel during a visitation period. (Tr., p. 919.)

{¶48} A reviewing court will not disturb a trial court’s determination on

admissibility of evidence absent an abuse of discretion. State v. Sage, 31 Ohio St.3d

173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. In order to find an abuse of

discretion, the reviewing court must find that the trial court’s decision was arbitrary,

unconscionable or unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

{¶49} The testimony regarding Mother’s statement on visitation and Appellee’s

statement regarding the hotel incident are statements made by parties to the action, and

the trial court properly overruled Appellants’ objection. See Evid.R. 801(D)(2)(a). The

testimony from the child’s teacher that the child’s stubbornness may have contributed to

her learning difficulties was not being offered to prove that the child was stubborn, but

Case No. 17 MA 0169
 – 29 –

only in regard to a number of issues related to the child’s learning disabilities. Even if

the statement was impermissible, there is no evidence in the record indicating that the

trial court relied on this particular testimony in making its determination. Thus,

Appellants have demonstrated no prejudice. In re Vickers Children, 14 Ohio App.3d

201, 206, 470 N.E.2d 438 (12th Dist.1983). The statement made by the GAL regarding

whether Appellant husband had a problem with Appellees’ sexual orientation is

permissible lay opinion testimony gleaned over the course of her investigation into the

hostility exhibited by Appellant husband toward the Appellees. Evid.R. 701; Hugh v.

Wills, 7th Dist. No. 05 MO 8, 2006-Ohio-1282, ¶ 73.

{¶50} Appellants have not cited to any testimony by the guardian ad litem that

runs afoul of the evidence rules. Moreover, Appellants have not demonstrated that any

of the statements to which they object affected the outcome of the proceedings. The

GAL’s testimony reflected her investigation over the course of several years in a

complicated situation involving several witnesses, and involved inquiry into the needs of

the children. Appellants’ eighth assignment of error is without merit and is overruled.

{¶51} In their tenth assignment of error, Appellants contend the trial court erred

in taking judicial notice of the five guardian ad litem reports issued over the course of

the proceedings while pending.

{¶52} As noted above, R.C. 2151.281(I) requires that the GAL “file other court

papers that are in the best interest in accordance with the rules adopted by the supreme

court.” Sup.R. 48(F) requires that a guardian ad litem “shall prepare a written final

report, including recommendations to the court.” That report must provide a detailed

analysis of all activities undertaken by the GAL including all hearings, interviews,

Case No. 17 MA 0169
 – 30 –

documents reviewed and experts consulted and is intended to inform the court about

how the final recommendation was reached. Id.

{¶53} Appellants’ attempt to discredit the mandatory reports filed by the GAL,

under seal, flies in the face of statute. The GAL was required to detail her investigation

and the activities she undertook in order to reach her recommendation to the court. The

court may consider a guardian ad litem’s report even if it contains impermissible

hearsay so long as the GAL is available to testify and to be questioned regarding the

reports. In re C.D.M., 4th Dist. No. 13CA1, 2013-Ohio-3792, ¶ 25. The GAL in the

instant matter demonstrated that she conducted a thorough investigation and had

generated a number of written reports over the tenure of her investigation. She was

cross-examined by both parties on all issues. Appellants’ tenth assignment of error is

without merit and is overruled.

ASSIGNMENT OF ERROR NO. 7

THE JUVENILE COURT ABUSED ITS DISCRETION BY AWARDING

CUSTODY TO AN OUT OF STATE NON-PARENT THEREBY MAKING

ANY CHANCE OF REUNIFICATION UNLIKELY AND PROBLEMATIC.

{¶54} Appellants contend the trial court’s decision is detrimental to potential

reunification of the children with Mother because Appellees reside outside of Ohio.

Appellants’ argument fails both legally and factually.

{¶55} Once a child is adjudicated abused, neglected or dependent, a juvenile

court may award legal custody of the child to any parent or person who files a motion for

custody. R.C. 2151.353(A)(3). In making a determination on custody, the juvenile court

must comply with R.C. 2151.42, which requires a court to conduct a best interest

Case No. 17 MA 0169
 – 31 –

analysis in making that determination. R.C. 2151.42(A). See In re Bouska, 5th Dist.

No. 2007AP090063, 2008-Ohio-3277, ¶ 37. An award of legal custody does not divest

parents of their residual parental rights, privileges and responsibilities. In re C.R., 108

Ohio St.3d 369, 2006-Ohio-1191, ¶ 17. Parents are generally able to seek a custody

modification in the future. In re L.D., 10th Dist. No. 12AP-985, 2013-Ohio-3214, ¶ 7.

Hence, while Appellees were granted legal custody of the minor children, Mother retains

her parental status and is able to file a motion seeking custody at some future time,

contrary to Appellants’ assertions. Reunification is not precluded where Mother retains

her parental status and her ability to seek custody of her children. Testimony from CSB

Executive Director, Randy Muth, indicated that reunification is “the goal.” (Tr., p. 513.)

The award of legal custody to Appellees does not divest Mother of her parental status

nor does it legally preclude potential reunification with Mother should she seek custody

at some future date.

{¶56} Appellants’ contention the trial court’s award of legal custody to Appellees

makes reunification “unlikely and problematic” is also not supported by the facts in the

record. Mother testified that Appellants allowed her to visit the children when they

initially gained custody of them, but that gradually they began to ignore her telephone

calls and text messages seeking visitation with her children. (Tr., p. 399.) Moreover,

Mother testified that she wanted the children to live with her father. (Tr., p. 404.) The

record shows that Mother lived with Appellees for an extended period of time in

Massachusetts where she had extended visitation with her other children on a daily

basis before her return to Mahoning County shortly before trial in this matter.

Case No. 17 MA 0169
 – 32 –

{¶57} Appellant wife testified that Mother had weekly visits with the children for

the first year Appellants had custody, but that afterward contact diminished and

Appellants had no address or working telephone number for Mother. (Tr., pp. 716-717.)

Multiple witnesses, including Appellant wife, testified that Appellants referred to

themselves as “mommy” and “daddy” with the children. (Tr., pp. 310, 353, 575, 841.) In

contrast, Appellants encouraged the children to refer to their Mother as “Mommy

Miranda.” (Tr., p. 841.) Finally, and most telling, Appellants filed a petition for adoption

with the Mahoning County Probate Court and filed a petition for a writ of prohibition with

this Court seeking to enjoin the juvenile court from exercising jurisdiction in the custody

matter while an adoption petition was pending. These facts seem most troubling when

looked at from the view that reunification is the goal. Appellants’ seventh assignment of

error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 9

THE JUVENILE COURT ERRED BY ADJUDICATING THE MERITS OF

THIS CASE WITHOUT A NECESSARY PARTY.

{¶58} In their ninth assignment of error Appellants contend that the judgment of

the trial court should be reversed, because CSB was never made a party to the action.

The matter originated in an abuse, dependency and neglect case arising from a filing by

CSB pursuant to R.C. 2151.27. After the shelter care hearing, interim custody was

granted to CSB. Once the children were adjudicated abused, dependent and

neglected, temporary custody was transferred to Grandmother. At that time, CSB no

longer had protective supervision of the children and the matter proceeded in the

juvenile court. Temporary custody was transferred from Grandmother to Appellants

Case No. 17 MA 0169
 – 33 –

pursuant to R.C. 2151.353(A)(2)(d). Subsequent motions for custody were filed by

Mother, Appellants and Appellees. CSB was never served as a party in any of those

filings because the children were no longer under the protective supervision of CSB. As

such, CSB was not a necessary party in this action. Appellants’ argument to the

contrary is belied by Appellants themselves, because they never attempted service on

CSB throughout any of the proceedings or filings below, proceedings which spanned

several years. We also note that, as Appellees have legal custody and there has been

no termination of parental rights, the juvenile court retains jurisdiction in the matter.

Appellant’s ninth assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 11

THE JUVENILE COURT ERRED BY FAILING TO FOLLOW THE

REQUIREMENTS OF R.C. 2151.353(A)(3).

{¶59} Appellants argue the trial court erred in failing to execute a signed

statement of understanding and that this failure is indicative of a “systemic failure to

follow proper protocol and procedures” by the trial court. (Appellants’ Brf., p. 23.)

{¶60} R.C. 2151.353(A)(3) allows that the trial court may:

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. A person identified in a complaint or motion filed by a

party to the proceedings as a proposed legal custodian shall be awarded

legal custody of the child only if the person identified signs a statement of

Case No. 17 MA 0169
 – 34 –

understanding for legal custody that contains at least the following

provisions:

(a) That it is the intent of the person to become the legal custodian of the

child and the person is able to assume legal responsibility for the care and

supervision of the child;

(b) That the person understands that legal custody of the child in question

is intended to be permanent in nature and that the person will be

responsible as the custodian for the child until the child reaches the age of

majority. Responsibility as custodian for the child shall continue beyond

the age of majority if, at the time the child reaches the age of majority, the

child is pursuing a diploma granted by the board of education or other

governing authority, successful completion of the curriculum of any high

school, successful completion of an individualized education program

developed for the student by any high school, or an age and schooling

certificate. Responsibility beyond the age of majority shall terminate when

the child ceases to continuously pursue such an education, completes

such an education, or is excused from such an education under standards

adopted by the state board of education, whichever occurs first.

(c) That the parents of the child have residual parental rights, privileges,

and responsibilities, including, but not limited to, the privilege of

reasonable visitation, consent to adoption, the privilege to determine the

child's religious affiliation, and the responsibility for support;

Case No. 17 MA 0169
 – 35 –

(d) That the person understands that the person must be present in court

for the dispositional hearing in order to affirm the person's intention to

become legal custodian, to affirm that the person understands the effect of

the custodianship before the court, and to answer any questions that the

court or any parties to the case may have.

{¶61} Appellees contend the statute requires a statement of understanding to be

signed prior to the dispositional hearing. The R.C. 2151.353 dispositional hearing in this

matter occurred on March 17, 2014 and resulted in an award of temporary custody to

Appellants on April 14, 2014. The custody order at issue was the product of Appellees’

motion to intervene and competing motions seeking legal custody, to which this section

does not apply. Hence, a statement of understanding was not required.

{¶62} More importantly, even assuming the trial court erred in this regard,

Appellants failed to preserve this issue for appellate review. Appellants did not raise an

objection to the lack of a statement of understanding by Appellees at the time when the

alleged error could have been addressed. Appellants failed to object during the entire

four-year time period in which this matter was pending, and did not object at hearing.

See Juv.R. 40(D)(3)(b)(iv). In failing to raise a timely objection, Appellants waive all but

plain error.

{¶63} To establish plain error, Appellants must demonstrate that the trial court’s

failure to require the proposed legal custodian to submit a written statement of

understanding affected, “the basic fairness, integrity, or public reputation of the judicial

process, thereby challenging the legitimacy of the underlying judicial process itself.”

Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus. Appellants

Case No. 17 MA 0169
 – 36 –

have failed to show the absence of this statement by Appellees affected “the basic

fairness, integrity, or public reputation” of the proceedings. In their brief to this Court,

Appellants concede that “standing alone, this may not be significant,” and instead

suggest that this was the first of many cumulative errors on the part of the trial court.

{¶64} There appears to be a lack of consensus among appellate districts as to

the interpretation of R.C. 2151.353(A)(3). We have previously held that failure to file a

statement of understanding pursuant to R.C. 2151.353(A)(3) is not plain error when the

party seeking legal custody has provided testimony at a hearing reflecting their intention

to provide a home for the children, and the testimony further demonstrates an

understanding of, and commitment to, being the children’s legal custodian. In re D.T.,

7th Dist. No. 14 JE 29, 2015-Ohio-2333, ¶ 29.

{¶65} In the instant matter, Appellees testified extensively regarding their desire

to act as legal custodians of the children, and their ability to adjust their work schedules

in order to work from home to care for the children. Additionally, they addressed their

commitment to maintaining treatments for the children’s special needs and ensuring the

children maintain a relationship with Mother and extended family members. This

testimony clearly demonstrates Appellees’ commitment to their roles as legal

custodians. Appellants’ eleventh assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 4

THE JUVENILE COURT'S RULING “... THAT A SIGNIFICANT CHANGE

IN CIRCUMSTANCES OCCURRED SINCE THE MINOR CHILDREN

HAVE NOT MADE SIGNIFICANT PROGRESS WHILE IN

Case No. 17 MA 0169
 – 37 –

[APPELLANTS'] CARE” IS CONTRARY TO AND AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶66} In their fourth assignment of error, Appellants contend the trial court’s

determination that a significant change in circumstances occurred in the matter is

against the manifest weight of the evidence.

{¶67} The trial court recognized that it was not necessary to demonstrate a

change in circumstances occurred in order to grant legal custody of the children to

Appellees. In re Ray, 7th Dist. Nos. 07 BE 14, 07 BE 15, 2008-Ohio-3250, ¶ 48.

However, in its judgment entry the trial court also stated:

Borrowing from Ohio Revised Code Section 3109.04, the Court finds that

a significant change in circumstances occurred since the Minor Children

have not made significant progress while in [Appellants’] care. Minor Child

[J.R.P.] still struggles and is having difficulty in kindergarten. [Appellant

wife] noted that the preschool did not adequately prepare [the child] for the

transition. It appears that the Minor Children attended the selected

preschool due to convenience for [Appellants] and not for the Minor

Children’s benefit. [Appellants] did not advise the Guardian ad Litem and

the Maternal Grandfather and husband about the Minor Children’s health

needs whereby forcing the Guardian and the Maternal Grandfather and

husband to guess and learn on their own. Maternal Grandfather testified

that he did not know Minor Child [J.A.P.] required a thickener for his

liquids, had ear infections, or therapies. Clearly, [Appellants’] thwarts

were not in the Minor Children’s best interest. The fact that [Appellants]

Case No. 17 MA 0169
 – 38 –

were not forthcoming with the Guardian was also concerning. As an

example, the Guardian was never alerted that Minor Child [J.A.P.] was no

longer attending preschool at Lockwood.

(11/22/17 J.E., p. 16.)

{¶68} In their brief, Appellants reiterate selected passages from the nearly dozen

teachers and counselors who provided testimony about the children’s progress and

disabilities. Appellants have highlighted testimony favorable to them and disregarded

unfavorable testimony. Notably, the record contains testimony from Appellant wife

indicating that therapy was allowed to lapse for over a year before being reinstituted,

which would certainly support the trial court’s finding that a significant change of

circumstances had occurred. (Tr., p. 787.)

{¶69} However, as earlier discussed, the trial court was not required to conduct

a two-part analysis, first to determine whether there was a change of circumstances,

followed by a best interest analysis. Again, we have determined that R.C. 3109.04(E)

was not applicable, here. Notwithstanding, the trial court did not err in determining a

change of circumstances regarding these children had occurred, as both parties

presented testimony from several teachers and counselors indicating that the children

had difficulties resulting from the premature birth of J.R.P. and the abuse suffered by

J.A.P. at the hands of his Father. The children had attended Easter Seals while under

Grandmother’s care. Once Appellants were granted temporary custody, the children

received therapy only occasionally, and this occurred only at their Head Start program

rather than at a more focused therapy program, for the sake of Appellants’ convenience.

Appellees reinstituted therapy in Massachusetts when they took the children for long-

Case No. 17 MA 0169
 – 39 –

term visitation over the summer. Appellants only began therapy for the children again

shortly before trial. Therefore, although the trial court need not have conducted a

change of circumstances analysis, it was not an abuse of discretion to find such a

change existed and the finding is supported by the record. Appellants’ fourth

assignment is without merit and is overruled.

{¶70} Based on the foregoing, Appellants’ assignments of error are without merit

and the judgment of the trial court is affirmed.

Donofrio, J., concurs.

Bartlett, J., concurs.

Case No. 17 MA 0169
[Cite as In re J.R.P., 2018-Ohio-3938.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas, Juvenile Division, of Mahoning County, Ohio, is affirmed.

Costs to be taxed against the Appellants.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.