[Cite as Whitson v. Whitson, 2019-Ohio-4235.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
DOLLY WHITSON : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 19CA32
ELIZABETH WHITSON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Domestic Relations
Division, 2018PCU0699
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 10, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RICHLAND COUNTY PROSECUTOR ELIZABETH WHITSON #W-099514
38 S. Park Street – 2nd Floor Northeast Reintegration Center
Mansfield, OH 44902-1717 2675 East 30th Street
Cleveland, OH 44115
[Cite as Whitson v. Whitson, 2019-Ohio-4235.]
Gwin, P.J.
{¶1} Defendant-appellant Elizabeth Whitson [“Mother”] appeals the April 1, 2019
Judgment Entry of the Richland County Court of Common Pleas, Domestic Relations
Division’s decision that dismissed her Counterclaim and certified Plaintiff- Appellee Dolly
Whitson’s [“Paternal Grandmother”] Complaint for Legal Custody to the Richland County
Court of Common Pleas, Juvenile Division pursuant to R.C. 3109.04(D)(2)1.
Facts and Procedural History
{¶2} Mother has been in prison since October 2017 on three felony drug
convictions. Father and Mother have three children, S.W. (b. Nov. 27. 2001); L.W. (b.
Dec. 11, 2000); and G.W. (b. Jan. 6, 2004). Father and Mother are married but separated
since approximately 2015.
{¶3} Paternal Grandmother filed a Complaint for temporary legal custody and
legal custody of the children on September 7, 2018; and an Amended Complaint for
temporary legal custody and legal custody of the minor children on September 20, 2018.
This case was initiated because father and grandmother became aware that Mother was
incarcerated and had left the children in the care of friends.
{¶4} Paternal Grandmother was granted temporary legal custody of the minor
children pursuant to an Ex Parte Order filed on September 7, 2018. Mother filed an
Answer and Counterclaim for Legal Custody on October 2, 2018, stating in relevant part,
4. The children have visited with me regularly during my term of
incarceration. I am requesting this court to allocate parental right and
responsibilities, such that I can maintain my visitation and parenting time
1 Appellee did not file a Brief in this Court. The father of the children did not appear in the lower
court proceedings either in person or through counsel.
Richland County, Case No. 19CA32 3
with my children, along with telephone calls, letters, cards, email, and other
forms of permitted communication.
5. I do not want the court to grant Permanent Custody of my children
to Dolly Whitson. Prior to my incarceration the Plaintiff, Dolly Whitson, lived
in Columbus, Ohio. My husband, James Scott Whitson, the other
defendant, and I were separated prior to my incarceration. After I came to
prison Dolly Whitson and James Scott Whitson moved into the house I lived
in with my children and have lived there to maintain the status quo for the
children's living arrangements. I desire to participate in the proceedings
regarding the custody of my children and have filed along with this
Answer/Counterclaim a Motion to Convey for the Court's consideration.
{¶5} Prior to their separation, Father and Mother, along with their children,
resided together in the home located on Reed Street, Mansfield, Ohio. Paternal
Grandmother owns the home. She purchased it approximately 11 years ago specifically
so that her son and his family could reside in it. Although having lived separate and apart
for the last couple of years, Mother and Father are still legally married. Soon after
becoming aware of Mother's incarceration, Father and Paternal Grandmother moved into
the Mansfield home to care for the children.
{¶6} On October 2, 2018, Mother filed a “Motion for Order to Convey or to Appear
by Video, Telephone, Skype and/or an Alternative Method Acceptable to the Court.” By
Judgment Entry filed October 8, 2018, the trial court overruled Mother’s request to attend
the hearings in person; however, the Court allowed Mother to participate in pre-trial
hearings by telephone. The Court noted that the Court does not have real-time video or
Richland County, Case No. 19CA32 4
Skype capabilities. However, the trial court would permit Mother to conduct a videotape
deposition for admission during the trial.
{¶7} By Magistrate’s Order filed November 27, 2018, the court ordered that a
Home Investigation be done.
{¶8} By scheduling entry filed February 11, 2019, the case was set for a two-
hour trial on March 21, 20192. In the Judgment Entry filed April 1, 2019, the trial court
made the following findings,
The home investigator visited the home on January 23, 2019. She
observed that the home was clean, except for one upstairs bedroom that
houses a dying dog. The dog urinates and defecates in the room, and the
waste is not cleaned on a regular basis. The investigator observed a strong
odor of urine emanating from that room and feces on the floor of the room.
Sydney and Grace have chosen to sleep in the unfinished cellar of the
home. The space where the girls sleep is dark, damp and musty. There is
no heat source other than small, electric space heaters.
Father is unemployed and does not have a valid driver's license. He
is a habitual marijuana user and has been so since the age of 14. He
smoked marijuana in front of the children frequently in the past but, at the
time of the investigator's interview, stated that he only smoked marijuana
outside of the home. The children are aware of his marijuana use and are
able to tell when he has smoked. Recently, [G.W.], age 15, was caught
smoking marijuana and admitted that she had been doing so for several
2 Mother has not provided this Court with a transcript of the trial.
Richland County, Case No. 19CA32 5
months. Father states he plans to obtain employment outside of Mansfield
and to relocate. However, at the time of the hearing, he was still residing in
the home with the children and grandmother. Grandmother stated that she
would force her son to move out of the home if the Court made that a
condition of her being awarded legal custody. Father supports legal custody
being awarded to grandmother.
Grandmother is 70 years old and retired. She has numerous chronic
health problems for which she takes 22 daily medications. She has had 10
different surgical procedures since 2016. She suffered a stroke while
driving and failed to report it, or seek any treatment for it, until several days
later when her son noticed her physical symptoms. She continues to have
mobility issues and, at the time of this hearing, had an additional surgery
scheduled.
Mother is currently incarcerated and is expected to be released in
October of 2019. Prior to her incarceration, she was selling illegal drugs out
of the home and in front of the children. Grandmother testified that she
would exclude mother from the home if the Court so required.
The investigator is concerned that if mother returns to the home after
her release, she might resume illegal activities in the presence of the
children and with their knowledge.
The Home Investigation, Interview with Children at Father's Home,
and collateral information were admitted into evidence. The Home
Investigator recommended as follows:
Richland County, Case No. 19CA32 6
"After careful thought and consideration this investigator is of the
opinion that this case has many dynamics that are of concern and that will
continue to be of concern in the future. Because of these concerns, this
investigator feels that this case should be considered for transfer to Juvenile
Court. This investigator is first concerned with the overall health of Dolly
Whitson. During the interview it was also discussed that Dolly actually
suffered a stroke while driving from Columbus to Mansfield and she never
told anyone about it. It was only discovered several days later when her
son James noticed physical changes with her. The children are also very
concerned with Dolly's health and the large amount of drugs she takes daily.
This investigator is also very worried that James Whitson resides in the
home, smokes marijuana, and yet continues to parent the kids and enforce
rules. This has been very difficult for the girls to adjust to after he was
absent from the home for almost 2 years. There is also the concern that
once released from prison Elizabeth Whitson would return to the home and
could possibly return to the illegal world of dealing in drugs. Even if
Elizabeth Whitson would avoid any illegal activities it has been reported that
Elizabeth Whitson and her husband James Whitson would argue and fight
without ever ceasing. It is also highly suspected that if Elizabeth Whitson
would not return to this home, the girls including the youngest [G.W.] will do
everything in their power to be/live with their mom Elizabeth Whitson. At
this current time, this investigator feels that there are too many concerns
Richland County, Case No. 19CA32 7
that need follow up to assess how the family is doing and that the kids are
safe and having their needs met."
{¶9} The trial court made the following findings,
Conclusions of Law
O.R.C. section 3109.04(D)(2) provides: If the court finds, with respect
to any child under eighteen years of age, that it is in the best interest of the
child for neither parent to be designated the residential parent and legal
custodian of the child, it may commit the child to a relative of the child or
certify a copy of its findings, together with as much of the record and the
further information, in narrative form or otherwise, that it considers
necessary or as the juvenile court requests, to the juvenile court for further
proceedings, and, upon the certification, the juvenile court has exclusive
jurisdiction.
The second paragraph of O.R.C. section 3109.06 provides: In cases
in which the court of common pleas finds the parents unsuitable to have the
parental rights and responsibilities for the care of the child or children and
unsuitable to provide the place of residence and to be the legal custodian
of the child or children, consent of the juvenile court shall not be required to
such certification.
In re Perales (1977), 52 Ohio St.2d 89, provides: "[P]arents may be
denied custody only if a preponderance of the evidence indicates
abandonment, contractual relinquishment of custody, total inability to
Richland County, Case No. 19CA32 8
provide care or support, or that the parent is otherwise unsuitable that is,
that an award of custody would be detrimental to the child."
Decision
The Court has considered all relevant factors, including those set
forth in O.R.C. section 3109.04(F)(1), in determining the best interest of the
children.
The Court finds that it is in the best interest of the children for neither
parent to be designated the residential parent and legal custodian of them.
The Court further finds that the parents are unsuitable to have the parental
rights and responsibilities for the care of the children, and unsuitable to
provide the place of residence and to be the legal custodian of them. Mother
is incarcerated. Father is unsuitable due to his drug use, and total inability
to provide care or support for the children. An award of custody to him
would be detrimental to the children.
The Court declines to commit the children to grandmother. She has
permitted the father to live in the home, and use and be under the influence
of marijuana in the presence of the children. An award of custody to
grandmother, without the support of the Juvenile Court, would be
detrimental to the children.
The children appear to be dependent, neglected or abused.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
Defendant's Counterclaim for Legal Custody is dismissed.
Richland County, Case No. 19CA32 9
IT IS FURTHER ORDERED that all prior orders of this Court remain
in full force and effect, until further order of Richland County Juvenile Court.
IT IS FURTHER ORDERED that grandmother shall immediately
obtain counseling for [G.W.]
IT IS FURTHER ORDERED that all issues regarding the allocation
of parental rights and responsibilities/custody of the minor children, [S.W.]
(born November 27, 2001) and [G.W.] (born January 6, 2004), are certified
to the Richland County Juvenile Court for further proceedings.
Assignments of Error
{¶10} Mother raises three assignments of error,
{¶11} “I. THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS AND
EQUAL PROTECTION RIGHTS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AND THE OHIO
CONSTITUTION BY DETERMINING PARENTAL UNSUITABILITY CONTRARY TO
R.C. 3109.04, AND WITHOUT APPELLANT'S PRESENCE AND/OR LEGAL
REPRESENTATION WITHOUT GIVING APPELLANT A RIGHT TO BE HEARD.
{¶12} “II. THE TRIAL COURT ERRED IN NOT FOLLOWING THE
REQUIREMENTS SET OUT IN R.C. 3109.04(D)(2).
{¶13} “III. THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE AND
VIOLATED HER RIGHTS BY IMPERMISSIBLY RELYING ON THE INVESTIGATOR'S
REPORT WITHOUT COMPLYING WITH THE REVISED CODE AND CIVIL RULES.”
Richland County, Case No. 19CA32 10
Pro se Appellants
{¶14} We understand that Mother has filed this appeal pro se. Nevertheless, “like
members of the bar, pro se litigants are required to comply with rules of practice and
procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-
3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11.
We also understand that “an appellate court will ordinarily indulge a pro se litigant where
there is some semblance of compliance with the appellate rules.” State v. Richard, 8th
Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶15} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),
the Supreme Court noted, “a reviewing court cannot add matter to the record before it
that was not a part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”
It is also a longstanding rule "that the record cannot be enlarged by factual assertions in
the brief.” Dissolution of Doty v. Doty, 4th Dist.No. 411, 1980 WL 350992 (Feb. 28, 1980),
citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227(1963). New material and factual assertions contained in any brief in this court may
not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858
N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843
N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in Mother’s brief
that are outside of the record.
{¶16} In the interests of justice, we shall attempt to consider Appellant’s
assignments of error.
Failure to File Transcript with the Trial Court
Richland County, Case No. 19CA32 11
{¶17} We first must address Mother’s failure to present a transcript of the March
21, 2019 hearing in the trial court.
{¶18} Because the transcript of the proceeds has not been filed with this Court for
purposes of appeal, it does not constitute part of the record on appeal. See App.R. 9(A).
When an appeal is filed without a transcript, reviewing courts generally presume the
regularity of that proceeding. State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs.,
127 Ohio St.3d 202, 2010–Ohio–5073, 937 N.E.2d 1274, ¶ 14.
{¶19} In the case at bar, Mother has not provided this court with a transcript of the
March 21, 2019 hearing. Absent a complete transcript, we are unable to review the facts
underlying the trial court’s decision to dismiss her Counterclaim and certify the decision
to the juvenile court.
{¶20} In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d
384(1980), the Supreme Court of Ohio held the following,
The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the burden of
showing error by reference to matters in the record. See State v. Skaggs
(1978), 53 Ohio St. 2d 162. This principle is recognized in App.R. 9(B),
which provides, in part, that ‘ * * *the appellant shall in writing order from the
reporter a complete transcript or a transcript of such parts of the
proceedings not already on file as he deems necessary for inclusion in the
record.* * *.’ When portions of the transcript necessary for resolution of
assigned errors are omitted from the record, the reviewing court has nothing
to pass upon and thus, as to those assigned errors, the court has no choice
Richland County, Case No. 19CA32 12
but to presume the validity of the lower court's proceedings, and affirm.”
(Footnote omitted.)
Id. at 199, 400 N.E.2d 384.
{¶21} In Robinson v. Custom Sports Cycle, this Court noted,
While significant case law exists which would allow for a free
transcript for an indigent criminal defendant, (see, e.g., State v. Arrington
(1975), 42 Ohio St.2d 114, 326 N.E.2d 667; Mayer v. City of Chicago
(1971), 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372), or a party involved in
certain parental rights proceedings (see, e.g., State ex rel. Heller v. Miller
(1980), 61 Ohio St.2d 6, 399 N.E.2d 66), we would concur with the wording
of the Tenth District Court of Appeals: “While in criminal appeals a single
copy of the transcript must be prepared at government expense and filed
with the court for those who are demonstrated to be indigent, no similar
responsibility must be borne by the government in the appeal of civil cases.”
Duff v. Ohio Dept. of Rehabilitation and Correction (June 30, 1992), Franklin
App. No. 92AP-146, unreported, at 1
5th Dist. Stark No. 1998CA00331, 1999 WL 254504 (Apr. 19, 1999). An indigent parent’s
right to a transcript at state expense is limited to cases involving the permanent
termination of parental rights; no right exists in an appeal from an order of temporary legal
custody. In the Matter of E.J., 12th Dist. Warren No. CA2014-07-098, 2015-Ohio-731, at
*5; In the Matter of A.P., 10th Dist. Franklin No. 14AP-23, 2014-Ohio-5244, ¶18.
{¶22} If such transcripts were unavailable, other options were available to Mother
in order to supply this Court with a transcript for purposes of review. Specifically, under
Richland County, Case No. 19CA32 13
App.R. 9(C), appellant could have submitted a narrative transcript of the proceedings,
subject to objections from appellee and approval from the trial court. Also, under App.R.
9(D), the parties could have submitted an agreed statement of the case in lieu of the
record. The record in this matter indicates Mother did not attempt to avail herself of either
App.R. 9(C) or 9(D).
I., II. & III.
{¶23} Mother’s three assignments of error evidence a confusion on her part
between “legal” custody” and “permanent custody.”
Legal Custody.
{¶24} In the case below, Paternal Grandmother filed a complaint requesting temporary
legal custody of the three children. Mother filed an answer and a counterclaim to the complaint.
{¶25} Importantly, the award of legal custody is “not as drastic a remedy as permanent
custody.” In re L.D., 10th Dist. No. 12AP–985, 2013–Ohio–3214, ¶ 7 [emphasis added]. See also
In re N.F., 10th Dist. No. 08AP–1038, 2009–Ohio–2986, ¶ 9. This is because the 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, 843 N.E.2d 1188, ¶ 17. Therefore, since the
granting of legal custody does not divest a parent of his or her fundamental parental rights, the
parent can petition the court for a custody modification in the future. In re L.D. at ¶ 7.
{¶26} R.C. 2151.011(B)(19) defines “legal custody” as “a legal status that vests in
the custodian the right to have physical care and control of the child and to determine
where and with whom the child shall live, and the right and duty to protect, train, and
discipline the child and to provide the child with food, shelter, education, and medical
care, all subject to any residual parental rights, privileges, and responsibilities.” In re
Richland County, Case No. 19CA32 14
C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 15(2006). “Residual
parental rights, privileges, and responsibilities” means those rights, privileges, and
responsibilities remaining with the natural parent after the transfer of legal custody of the
child, including, but not necessarily limited to, the privilege of reasonable visitation,
consent to adoption, the privilege to determine the child's religious affiliation, and the
responsibility for support. R.C. 2151.011(B)(48).
{¶27} In addition, R.C. 2151.011(B)(52) 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 * * *.” In re C.R., 108 Ohio St.3d 369,
2006-Ohio-1191, 843 N.E.2d 1188, ¶ 16 (2006). The important distinction is that an
award of legal custody of a child does not divest parents of their residual parental rights,
privileges, and responsibilities. See R.C. 2151.011(B)(19) and In re Hockstok, 98 Ohio
St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 8, fn. 1. In the future, then, in this case,
either parent may petition the court for a modification of custody. In Re Hockstok. at ¶
36.
{¶28} Hockstok did not involve an abused, neglected, or dependent child and
arose from a private custody dispute originating in the domestic relations court pursuant
to R.C. 3109.04. There, the Supreme Court said: “[A] trial court must make a parental
unsuitability determination on the record before awarding legal custody of the child to the
nonparent.” Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, syllabus.
{¶29} 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. It
Richland County, Case No. 19CA32 15
does not, however, permanently foreclose the right of either parent to regain custody,
because it is not a termination of all residual parental rights, privileges, and
responsibilities, and therefore a motion for a change of custody could be filed in a proper
case in accordance with law. See R.C. 2151.42. In re C.R., 108 Ohio St.3d 369, 2006-
Ohio-1191, 843 N.E.2d 1188, ¶ 23 (2006).
{¶30} We must be mindful of the “ * * * elementary proposition of law that an
appellant, in order to secure reversal of a judgment against him, must not only show some
error but must also show that that error was prejudicial to him.” See Smith v. Flesher, 12
Ohio St. 2d 107, 233 N.E. 2d 137(1967); State v. Stanton, 15 Ohio St.2d 215, 217, 239
N.E.2d 92, 94(1968); Wachovia Mtg. Corp. v Aleshire, 5th Dist. Licking App. No. 09 CA
4, 2009-Ohio-5097 at ¶16. See, also, App.R. 12(D).
{¶31} It is with these concepts in mind that we shall review Mother’s Assignments
of Error.
I.
{¶32} In her First Assignment of Error, Mother contends that the trial court’s denial
of her right to be present for the final trial violated her constitutional rights. Mother also
argues the trial court denied her right to counsel.
{¶33} Mother’s contentions are overbroad. At no time did Mother request the trial
court appoint her counsel. Whether an inmate should be brought to court to personally
argue his case in a civil matter depends upon the particular and unique facts and
circumstances of each case. Mills v. Mills, 10th Dist. No. 10AP–495, 2011–Ohio–2848,
¶ 12 citing Tolliver v. Liberty Mut. Group, 10th Dist. No. 04AP–226, 2004–Ohio–6355, ¶
8. In Mancino v. Lakewood, 36 Ohio App.3d 219, 221, 523 N.E.2d 332 (8th Dist.1987),
Richland County, Case No. 19CA32 16
the Eighth District set forth the following criteria to be weighed in making this
determination:
* * * (1) whether the prisoner’s request to be present at trial reflects
something more than a desire to be temporarily freed from prison; (2)
whether he is capable of conducting an intelligent and responsive argument;
(3) the cost and convenience of transporting the prisoner from his place of
incarceration to the courthouse; (4) any potential danger or security risk the
prisoner’s presence might pose; (5) the substantiality of the matter at issue;
(6) the need for an early resolution of the matter; (7) the possibility and
wisdom of delaying the trial until the prisoner is released; (8) the probability
of success on the merits; and (9) the prisoner’s interest in presenting his
testimony in person rather than by deposition.
Id. at paragraph two of the syllabus.
{¶34} In her motion filed October 2, 2018, Mother asked the Court to permit her
to attend the trial via Skype, real-time video or telephone. Mother concluded her request
with the following:
Mother requests the Court accommodate her incarceration and allow
her to move forward with this custody counterclaim and to participate by
whatever method is acceptable to the Court.
{¶35} By Judgment Entry filed October 8, 2018, the trial court permitted Mother to
participate in the pre-trial hearings by telephone. The Court noted that it did not have the
technical capabilities to permit real-time video or Skype participation. The court noted the
factors set forth in Mancino and concluded, “…no compelling reason for the [Mother’s]
Richland County, Case No. 19CA32 17
testimony was present in this case.” Rather, the Court determined that her interests could
be protected by submitting a video deposition as authorized by Civ.R.30 (B)(3).
{¶36} We find any error in not conveying Mother to the March 21, 2019 final
hearing did not affect Mother’s substantial rights and was therefore harmless beyond a
reasonable doubt.
{¶37} The complaint filed in this case did not request permanent custody. Mother,
in her Answer and Counterclaim requested that the court not grant permanent custody to
the Paternal Grandmother. The trial court did not grant permanent custody to the Paternal
Grandmother. In the case at bar, the trial court did not permanently divest Mother of all
of her parental rights; rather the court certified the case to the juvenile court under R.C.
2151 “for further proceedings.” R.C. 3109.04(D)(2).
{¶38} Because Mother has been incarcerated since October 2017, Mother is not
in a position to provide a home, food, medical care, schooling, clothing or any other
necessity to the children. It is beyond dispute that the children cannot presently live with
the Mother. Residual parental rights include the right to reasonable visitation. Mother
remains free to petition the juvenile court upon her release and seek a return of legal
custody of the children.
{¶39} In short, Mother fails to indicate how she has been prejudiced by the trial
court’s actions or that the result of the proceedings would have been different had she
been permitted to attend the final hearing.
{¶40} Mother’s First Assignment of Error is overruled.
Richland County, Case No. 19CA32 18
II. & III.
{¶41} In her Second Assignment of Error, Mother argues that the trial court erred
by making a finding that she was unsuitable to retain legal custody of the children. In her
Third Assignment of Error, Mother contends that the trial court erred by relying on the
written report of the Home Investigator when the investigator failed to interview Mother
and Mother had no opportunity to cross-examine the Investigator.
{¶42} In the case at bar, the trial court did not permanently divest Mother of all of
her parental rights; rather the court certified the case to the juvenile court under R.C. 2151
“for further proceedings.” R.C. 3109.04(D)(2).
{¶43} Because Mother has been incarcerated since October 2017, Mother is not
in a position to provide a home, food, medical care, schooling, clothing or any other
necessity to the children. It is beyond dispute that the children cannot presently live with
the Mother. Residual parental rights include the right to reasonable visitation. Mother
remains free to petition the juvenile court upon her release and seek a return of legal
custody of the children. It is therefore beyond dispute that Mother is unsuitable at the
present time to obtain care, custody and placement of the children.
{¶44} In short, Mother fails to indicate how she has been prejudiced by the trial
court’s finding of unsuitability. Mother has also failed to elucidate how the result of the
proceedings would have been different had she been interviewed by the home
investigator or allowed to cross-examine said investigator.
{¶45} We find any error in the Home Investigator not interviewing Mother, Mother
not cross-examining said investigator and the trial court’s finding Mother unsuitable did
Richland County, Case No. 19CA32 19
not affect Mother’s substantial rights and was therefore harmless beyond a reasonable
doubt.
{¶46} Mother’s Second and Third Assignments of Error are overruled.
{¶47} The judgment of the Richland County Court of Common Pleas, Domestic
Relations division is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
Whitson v. Whitson
Combined Opinion