In re J.M.

[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