In re P.C.

[Cite as In re P.C., 2022-Ohio-2720.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY

IN RE:
CASE NO. 8-21-39
P.C.,

ADJUDICATED DEPENDENT CHILD.
OPINION
[DANIEL C. - APPELLANT]

IN RE:
CASE NO. 8-21-40
A.C.,

ADJUDICATED DEPENDENT CHILD.
OPINION
[DANIEL C. - APPELLANT]

IN RE:
CASE NO. 8-21-41
C.C.,

ADJUDICATED DEPENDENT CHILD.
OPINION
[DANIEL C. - APPELLANT]

Appeals from Logan County Common Pleas Court
Family Court Division
Trial Court Nos. 18 CS 0037 B, 18 CS 0037 C and 18 CS 0037 D

Judgments Affirmed

Date of Decision: August 8, 2022
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APPEARANCES:

Alison Boggs for Appellant

Stacia L. Rapp for Appellee

Linda MacGillivray, Guardian Ad Litem

ZIMMERMAN, P.J.

{¶1} Appellant, Daniel C. (“Daniel”), appeals the November 2, 2021

decisions of the Logan County Court of Common Pleas, Family Court Division,

granting legal custody of his minor children, P.C., A.C., and C.C., to Noah C.

(“Noah”) and Mary C. (“Mary”), the children’s paternal grandfather and step-

grandmother. For the reasons that follow, we affirm.

{¶2} P.C., born in 2007, and A.C., born in 2010, are the children of Daniel

and Danielle F. (“Danielle”), and C.C., born in 2013, is the minor child of Daniel

and Amy C. (“Amy”). This case commenced after Logan County Job and Family

Services (the “agency”) filed complaints on August 6, 2018 alleging P.C., A.C., and

C.C. to be dependent children.1

1
Much of the factual and procedural background of the cases is recited in previous appeals, and we will not
duplicate those efforts here. See In re P.C., 3d Dist. Logan No. 8-20-39, 2021-Ohio-1238; In re P.C., 3d
Dist. Logan No. 8-19-45, 2020-Ohio-2889.

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{¶3} The facts relevant to the resolution of this appeal are as follows. Daniel

filed motions requesting that the trial court grant him legal custody of P.C., A.C.,

and C.C. on November 22, 2019. On January 23, 2020, the agency filed motions

for custody under R.C. 2151.353 and 2151.42, requesting that the trial court grant

legal custody of P.C., A.C., and C.C. to Noah and Mary.23

{¶4} After the trial court adjudicated P.C., A.C., and C.C. dependent children

on August 20, 2020, and this court affirmed the decisions of the trial court on April

12, 2021, the trial court proceeded to a custody hearing on August 16-17, 2021. On

November 2, 2021, the trial court granted the agency’s motions requesting that it

grant legal custody of P.C., A.C., and C.C. to Noah and Mary. (Doc. No. 431).

{¶5} Daniel filed his notices of appeal on November 22, 2021. He raises four

assignments of error for our review. For ease of our discussion, we will review

Daniel’s first and third assignments of error together, followed by his second

assignment of error, then his fourth assignment of error.

Assignment of Error No. I

The Trial Court’s Decision is Against the Manifest Weight and
Sufficiency of the Evidence.

2
Noah and Mary filed a statement of understanding on August 16, 2021.
3
Even though Amy filed a motion requesting that the trial court grant her legal custody of C.C. on October
7, 2019, she withdrew her motion prior to the custody hearing and consented to the agency’s motion
requesting the trial court award legal custody of C.C. to Noah and Mary. Danielle also consented to the
agency’s motion requesting that the trial court award legal custody of P.C. and A.C. to Noah and Mary.

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Assignment of Error No. III

The Guardian Ad Litem Failed to Perform Necessary Duties
Pursuant to Ohio Revised Code Section 2151.28 and Superindent
[sic] Rule 48, When She Failed to Interview Appellant at Any
Time During the Entire Case.

{¶6} In his first and third assignments of error, Daniel argues that the trial

court abused its discretion by awarding legal custody of P.C., A.C., and C.C. to

Noah and Mary. In particular, in his first assignment of error, Daniel contends that

the trial court’s dispositional determinations are not supported by a preponderance

of the evidence and are against the manifest weight of the evidence. In his third

assignment of error, Daniel specifically argues that the trial court improperly

weighed the guardian ad litem’s (“GAL”) recommendations.

Standard of Review

{¶7} “The trial court’s decision to grant or deny a motion for legal custody

is within its sound discretion and will not be reversed absent an abuse of discretion.”

In re J.B., 3d Dist. Allen No. 1-15-79, 2016-Ohio-2670, ¶ 35. An abuse of discretion

suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

Analysis

{¶8} Following the adjudication of a child alleged to be abused, neglected,

or dependent, R.C. 2151.353(A) provides the juvenile court’s dispositional options

for the child. “Among the trial court’s dispositional options is granting legal

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custody of the minor child to [a parent] or a person identified in the complaint or in

a motion filed prior to the dispositional hearing.” In re J.R., 3d Dist. Allen No. 1-

14-22, 2015-Ohio-643, ¶ 17. See also R.C. 2151.353(A)(3).

{¶9} Because a legal-custody award “does not divest parents of their residual

parental rights, privileges, and responsibilities,” it “is ‘not as drastic a remedy as

permanent custody.’” In re J.B. at ¶ 32, quoting In re L.D., 10th Dist. Franklin No.

12AP-985, 2013-Ohio-3214, ¶ 7. “In such a case, a parent’s right to regain custody

is not permanently foreclosed.” In re B.P., 3d Dist. Logan No. 8-15-07, 2015-Ohio-

5445, ¶ 19. See also In re J.B. at ¶ 32 (“Since the granting of legal custody does not

divest a parent of his or her fundamental parental rights, the parent can generally

petition the court for a custody modification in the future.”).

{¶10} “For this reason, unlike in a permanent custody proceeding where a

juvenile court’s standard of review is by clear and convincing evidence, the standard

the trial court uses in making its determination in a legal custody proceeding is the

less restrictive “‘preponderance of the evidence.’” In re B.P. at ¶ 19, quoting In re

M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 9. “‘Preponderance of

the evidence’ means evidence that is more probable, more persuasive, or of greater

probative value.” In re J.B. at ¶ 33, quoting In re C.V.M., 8th Dist. Cuyahoga No.

98340, 2012-Ohio-5514, ¶ 7. “In a dispositional hearing involving legal custody,

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the focus is on the best interest of the child.” Id., citing In re C.R., 108 Ohio St.3d

369, 2006-Ohio-1191, ¶ 10.

{¶11} When “considering a disposition of legal custody, R.C.

2151.353(A)(3) does not list specific factors a court should consider in deciding

what is in the child’s best interest.” Id. at ¶ 34. See also R.C. 2151.42(A). “While

not required, to determine the best interest of a child for purposes of R.C.

2151.353(A)(3), trial courts may be guided by the factors listed in R.C.

3109.04(F)(1) or 2151.414(D).” In re M.H., 3d Dist. Seneca No. 13-13-45, 2014-

Ohio-1485, ¶ 13.

{¶12} The R.C. 2151.414(D) “factors include the interaction and

interrelationships of the child, the child’s wishes, the custodial history of the child,

the child’s need for permanence, and whether any of the factors in R.C.

2151.414(E)(7)-(11) are applicable.” In re B.D., 9th Dist. Summit No. 30194, 2022-

Ohio-1832, ¶ 15, citing R.C. 2151.414(D)(1)(a)-(e) and In re B.C., 9th Dist. Summit

Nos. 26976 and 26977, 2014-Ohio-2748, ¶ 16. Furthermore, “[w]hile some [of the

R.C. 3109.04(F)(1)] factors overlap with those above, others include the child’s

adjustment to his or her environment; the mental and physical health of all persons

involved; the parents’ history of providing support and honoring companionship

orders; certain indicia of violence, abuse, or neglect in any household involved; and

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whether a parent plans to or has established a residence outside of Ohio.” Id., citing

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

{¶13} In this case, Daniel argues that the trial court’s conclusion that it was

in P.C.’s, A.C.’s, and C.C.’s best interest to grant the agency’s motion requesting

that it award legal custody of the children to Noah and Mary is based on insufficient

evidence and is against the manifest weight of the evidence. We disagree.

{¶14} First, based on our review of the record, we conclude that the agency

presented a preponderance of evidence that it was in P.C.’s, A.C.’s, and C.C.’s best

interest that the trial court award legal custody of them to Noah and Mary.

Specifically, the trial court considered the best-interest factors provided under R.C.

2151.414(D) and 3109.04(F)(1).

{¶15} Regarding R.C. 3109.04(F)(1)(a), the trial court considered the wishes

of the children’s parents regarding their care and found that “both Mothers of the

minor children desire for the children to be placed in the legal custody of Mary and

Noah” even though Daniel “wishes to regain custody of” the children. (Doc. No.

432).

{¶16} Similarly, as to R.C. 2151.414(D)(1)(b) and 3109.04(F)(1)(b)—the

children’s wishes—the trial court found that (during a June 14, 2019 in camera

interview with the trial court) P.C. and A.C. expressed a desire to stay with Noah

and Mary. Furthermore, the trial court found that P.C., A.C., and C.C. expressed a

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desire (during separate interviews with the GAL) for the trial court to grant legal

custody to Noah and Mary. The GAL also recommended that the trial court grant

the agency’s motions requesting that it award legal custody of the children to Noah

and Mary.

{¶17} However, Daniel contends that the trial court improperly weighed the

GAL’s recommendation that the trial court grant the agency’s motions requesting

that it award legal custody of the children to Noah and Mary. Yet, the GAL’s

recommendation is only one factor for the trial court to weigh along with the other

factors outlined in R.C. 2151.414(D) and 3109.04(F)(1). See In re K.M., 3d Dist.

Crawford No. 3-18-11, 2018-Ohio-3711, ¶ 27. Indeed, “‘“a trial court is not bound

to follow a [GAL’s] recommendation.”’” Merriman v. Merriman, 3d Dist. Paulding

No. 11-15-10, 2016-Ohio-3385, ¶ 19, quoting Bomberger-Cronin v. Cronin, 2d

Dist. Greene, No. 2014-CA-4, 2014-Ohio-2302, ¶ 27, quoting Lumley v. Lumley,

10th Dist. Franklin No. 09AP-556, 2009-Ohio-6992, ¶ 46. Stated another way,

whether the GAL interviewed Daniel or investigated his concerns regarding Noah

and Mary prior to issuing her reports to the trial court is a matter of credibility for

the trial court to assess when considering its best-interest analysis. See Merriman

at ¶ 19 (“‘“As the fact finder, the trial court determines the [GAL’s] credibility and

the weight to be given to the [GAL’s] recommendation.”’”), quoting Bomberger-

Cronin at ¶ 27, quoting Lumley at ¶ 46. Consequently, because the “‘“assessment

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of the credibility and weight of the evidence is reserved for the trial court, we will

not second guess the court’s”’” decision to accept or reject the GAL’s

recommendation. Id., quoting Bomberger-Cronin at ¶ 27, quoting Lumley at ¶ 46.

{¶18} Concerning R.C. 3109.04(F)(1)(c) and 2151.414(D)(1)(a)—the

children’s relationship with their parents, siblings, relatives, and other caregivers—

the trial court found that the children “are bonded” and that their relationship with

Noah and Mary “is very positive.” (Doc. No. 432). Nevertheless, the trial court

further analyzed that “[t]he children’s interaction and interrelationship with [Daniel]

is strained for the children and [Daniel]” because Daniel “has not seen the children

since August of 2019, roughly two (2) years ago” as of the date of the dispositional

hearing. (Doc. No. 432). Compare In re B.D., 2022-Ohio-1832, at ¶ 26 (finding

that “the children had had no contact with Mother for a significant period of time as

of the date of the hearing”). Importantly, when weighing the evidence under R.C.

2151.414(D)(1)(a), “[c]ourts have considered the consistency of a party’s visitation

with a child * * * .” In re K.R., 10th Dist. Franklin No. 18AP-633, 2019-Ohio-2192,

¶ 82, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 59 and In re

S.C., 9th Dist. Lorain No. 04CA008469, 2004-Ohio-4570, ¶ 36. Consequently, the

court weighed these factors in favor of granting the agency’s motion requesting that

it award legal custody of the children to Noah and Mary.

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{¶19} As to R.C. 3109.04(F)(1)(d) and (e)—the children’s adjustment to

home, school, and community and the mental and physical health of all persons

involved in the situation—there is a preponderance of the evidence in the record

supporting the trial court’s findings that Noah and Mary “provide the children with

stability and structure” and “provide for the minor children’s mental and physical

well-being.” (Doc. No. 432). Accord In re B.D. at ¶ 28. Specifically, the record

reflects that the children are well adjusted to their home, school, and community.

{¶20} Prior to their removal, the record reflects that the children were

chronically absent from school, infested with lice and bed-bug bites, exhibited poor

behavior, and suffered other untreated-medical issues. However, the record reflects

that the children’s mental and physical health improved following their removal. In

particular, Lee Ann Claypool (“Claypool”), A.C. and C.C.’s elementary school

principal, testified that A.C. and C.C. made significant progress with their reading

and math aptitude following their removal. Moreover, the GAL testified that the

children have adjusted to living in Noah and Mary’s home and are thriving in their

care. Likewise, Mary testified that prior to their removal, the children “were pretty

mean to one another,” but they do not “have that issue now.” (Aug. 16, 2021 Tr.,

Vol. I, at 91). Mary further testified to the children’s improved school attendance

and grades and testified that the children obtained the necessary medical care that

they had been lacking.

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{¶21} Furthermore, Krista Bray (“Bray”), the children’s mental-health

therapist, testified that P.C. was diagnosed with ADHD and PTSD because of “food

insecurities” and because, according to P.C., Daniel “had hit her.” (Aug. 16, 2021

Tr., Vol. I, at 54). Similarly, Bray testified that C.C. was diagnosed with PTSD.

Bray testified that P.C. expressed “a lot of anxiety about returning to [Daniel’s]

custody” because “[s]he is scared of [him].” (Id. at 55). She testified that P.C. “has

made some progress,” is “able to verbalize her feelings a lot better now,” “not

reporting as many nightmares [or] flashbacks,” and “talks to Mary a lot * * * .” (Id.

at 59). Likewise, Bray testified that C.C. “has made a lot of progress” since he is

“very happy” without “a lot of anger” and that he is “[n]ot destroying property

anymore,” “not a lot of lying,” [a]nd following rules better.” (Id. at 65).

Importantly, Bray testified that P.C. and C.C.’s “environment” contributed the most

to their progress. (Id. at 59, 65). Bray testified that she began treating A.C. but that

she transferred her care to another therapist due to confidentiality issues between

P.C.’s and A.C.’s treatment. Nevertheless, she testified that A.C. exhibited

“sexualized behaviors” following her removal, but that A.C. was working with Bray

on improving her general behavior. (Id. at 56).

{¶22} Nonetheless, even though the record reflects that Noah and Mary are

able and willing to provide a safe and stable home for the children, the record

reflects by a preponderance of the evidence that Daniel cannot. Indeed, the record

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reflects that Daniel is living in metropolitan housing with his mother (who is “on

probation * * * for treatment in lieu of conviction for Trafficking Cocaine”) but the

record reflects that the children would not be able to live in that home. (Id. at 202).

Likewise, neither the agency nor the GAL were able to observe Daniel’s home since

Daniel refused to communicate with them. See In re B.D. at ¶ 23 (noting that

“Mother moved multiple times during the case, always refusing to allow the

caseworker or guardian ad litem access to her various homes”).

{¶23} Similarly, as to R.C. 2151.414(D)(1)(d)—the children’s need for a

legally secure permanent placement—the trial court found that “[t]he children are

in need of permanency and the most secure placement for the minor children is

remaining with Mary and Noah * * * .” (Doc. No. 432). Indeed, at the time of the

hearing, this case had been pending for three years. See In re A.D., 9th Dist. Summit

No. 29976, 2022-Ohio-777, ¶ 28. Furthermore, “‘[a] legally secure permanent

placement is more than a house with four walls. Rather, it generally encompasses

a stable environment where a child will live in safety with one or more dependable

adults who will provide for the child’s needs.’” In re K.M., 2018-Ohio-3711, at ¶

29, quoting In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56.

{¶24} Here, Daniel alleges that the evidence that he “completed the case

plan, [but] he did not see any benefit to his hard work” weighs against granting the

agency’s motion requesting that it award legal custody of the children to Noah and

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Mary. (Appellant’s Brief at 7). However, it is generally accepted that a trial court

is not limited to considering only compliance with case plan objectives in its

analysis of a child’s need for a legally secure permanent placement. See, e.g., In re

T.A., 10th Dist. Franklin No. 18AP-943, 2020-Ohio-815, ¶ 29. Thus, even though

the record reflects that Daniel substantially complied with the case-plan

requirements early in the case, Cynthia Smith (“Smith”), Logan County Children

Services’ caseworker, testified that Daniel ceased communicating with the agency

in January 2020. See In re C.T., 2d Dist. Montgomery No. 29208, 2021-Ohio-4023,

¶ 72.

{¶25} Regarding R.C. 3109.04(F)(1)(f), the trial court found that “Noah and

Mary are likely to honor and facilitate Court approved parenting time rights or

visitation and companionship rights with the minor children and their parents”

because “[t]hey have honored the court orders before and have never had any

issues.”4 (Doc. No. 432).

{¶26} Finally, with respect to R.C. 2151.414(D)(1)(e)—whether any of the

factors in R.C. 2151.414(E)(7)-(11) apply—the trial court did not specifically find

that any of the factors applicable to the facts of this case. Nevertheless, the trial

court noted that Daniel “has not seen or spoken to the minor children in two (2)

years” as of the date of the dispositional hearing and that “[h]e tested positive for

4
The trial court found that there is no evidence that R.C. 3109.04(F)(1)(g), (h), (i), or (j) apply to the facts of
this case.

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alcohol on the morning of the hearing when the case plan specifically says he will

refrain from using alcohol.” (Doc. No. 432). See R.C. 2151.414(E)(9), (10).

{¶27} Therefore, based on our review of the record, we conclude that the

record supports the trial court’s best-interest findings. Accord In re K.B., 3d Dist.

Hancock No. 5-20-37, 2021-Ohio-3273, ¶ 46. Consequently, the trial court’s

decision granting the agency’s motion requesting that it award legal custody of the

children to Noah and Mary is supported by a preponderance of the evidence.

{¶28} Nevertheless, Daniel maintains that the trial court’s decision

designating Noah and Mary as the children’s legal custodians is against the manifest

weight of the evidence. “[A] manifest weight challenge 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.”’ ” (Emphasis sic.) In re K.B. at ¶ 24, quoting Eastley

v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12, quoting State v. Thompkins,

78 Ohio St.3d 380, 387 (1997). “In a manifest weight challenge ‘a reviewing court

weighs the evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether, in resolving conflicts in the evidence, the finder

of fact clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered.’” Id., quoting In re C.A., 12th

Dist. Butler No. CA2014-07-165, 2015-Ohio-1410, ¶ 16. “‘[E]very reasonable

presumption must be made in favor of the judgment and the finding of facts.’” Id.,

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quoting Eastley at ¶ 21. “‘If the evidence is susceptible of more than one

construction, the reviewing court is bound to give it that interpretation which is

consistent with the verdict and judgment * * * .’” Id., quoting Eastley at ¶ 21.

{¶29} Here, Daniel contends that the trial court’s dispositional placements of

P.C., A.C., and C.C. are against the manifest weight of the evidence because the

trial court incorrectly believed the agency’s witnesses over his witnesses’ testimony.

Specifically, Daniel contends that the trial court should have weighed more heavily

Annette Deao’s, the trial court’s substance-abuse counselor, testimony that Daniel

“did not have a substance abuse problem.” (Appellant’s Brief at 7). Similarly,

Daniel contends that the trial court should have more critically weighed the GAL’s

credibility “when she never offered * * * to engage in a real dialogue with him about

the change in attitude by his children” from the time that they were removed and

placed with Mary and Noah. (Id. at 9). Furthermore, Daniel contends that the trial

court inappropriately weighed Smith’s credibility “instead of seeing the

unreasonableness of the attitude toward [him]” “even when he completed all the

objectives” of the case plan. (Id. at 13).

{¶30} However, the trial court in this case issued 35-page decisions, which

provide synopses of the relevant testimony of the agency’s seven witnesses and

Daniel’s six witnesses in addition to the factual and procedural history of the cases.

Accord In re M.H., 2014-Ohio-1485, at ¶ 16. Relevant to Daniel’s witnesses’

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testimony, the trial court found Terry Grubb’s “credibility was lacking due to the

conflicts in his testimony” and that Daniel’s mother, Donna Whetsel, was recently

convicted of trafficking in cocaine. (Doc. No. 432). Likewise, the trial court

recounted the remainder of Daniel’s witnesses’ testimony but ultimately concluded

that testimony did not outweigh the testimony provided by the agency. Compare In

re C.B., 9th Dist. Summit No. 30150, 2022-Ohio-1929, ¶ 24-25 (noting that mother

alleged “that there was ongoing alcohol abuse and domestic violence in

Grandmother’s home” but that mother’s allegations were belied by the evidence

presented at the dispositional hearing). As with all arguments involving credibility

determinations lodged on appeal, it is not the duty of this court to insert itself in

second-guessing the trial court’s credibility assessments. Accord In re D.R., 12th

Dist. Butler No. CA2005-06-150, 2006-Ohio-340, ¶ 12.

{¶31} Importantly, while Daniel’s efforts are commendable, the record

reflects that the children are thriving in Noah and Mary’s care and that Daniel is

unable to provide a safe and stable home for the children. Thus, “it is clear that * *

* the trial court appropriately weighed the evidence presented both in favor of and

against [Daniel].” In re M.H. at ¶ 20. Consequently, based on our thorough review

of the record before us, we conclude that there is competent, credible evidence

supporting the trial court’s decision granting the agency’s motions requesting that

it award legal custody of P.C., A.C., and C.C. to Noah and Mary. Id. (“Because the

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record contains competent, credible evidence supporting the trial court’s disposition

of M.H., we cannot find that its disposition of M.H. was against the manifest weight

of the evidence.”), citing In re C.W., 3d Dist. Wyandot No. 16-09-26, 2010-Ohio-

2157, ¶ 11. Therefore, we cannot conclude that the trial court’s disposition of P.C.,

A.C., and C.C. is against the manifest weight of the evidence.

{¶32} In sum, because “[c]hild custody determinations are some of the most

difficult and agonizing decisions a trial court must make,” appellate courts must

provide trial courts with wide latitude in its consideration of the evidence. In re

A.C., 3d Dist. Allen No. 1-19-20, 2020-Ohio-980, ¶ 88, citing Carr v. Kaiser, 3d

Dist. Defiance No. 4-11-11, 2012-Ohio-2688, ¶ 25, citing Davis v. Flickinger, 77

Ohio St.3d 415 (1997), paragraph two of the syllabus. Accordingly, based on the

evidence presented in these cases, we conclude that the trial court did not abuse its

discretion by granting the agency’s motions requesting that it award legal custody

of P.C., A.C., and C.C. to Noah and Mary. Importantly, because Daniel maintains

residual rights, he “may ‘petition the court for a modification of custody’ in the

future.” Id., quoting In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 17, citing

In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, ¶ 36.

{¶33} For these reasons, Daniel’s first and third assignments of error are

overruled.

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Assignment of Error No. II

The Trial Court Erred When it Did Not Require the Paternal
Grandparents to Submit to the Random Drug Test Prior to the
Hearing.

{¶34} In his second assignment of error, Daniel argues that the trial court

erred by failing to order Noah and Mary to submit to drug screens prior to the

dispositional hearing.

Standard of Review

{¶35} A trial court’s decision “whether to order a party to submit to drug

testing is reviewed for an abuse of discretion.” In re L.W., 12th Dist. Preble No.

CA2020-12-019, 2021-Ohio-2461, ¶ 21, citing Raney v. Raney, 12th Dist. Warren

CA98-07-084, 1999 WL 58162, *3 (Feb. 1, 1999) and In re Daum, 3d Dist.

Auglaize No. 2-94-28, 1995 WL 141508, *2 (Mar. 31, 1995). As we previously

stated, an abuse of discretion suggests the trial court’s decision is unreasonable,

arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.

Analysis

{¶36} In cases involving the care and custody of children, Ohio’s courts of

appeal have determined that “‘[d]rug testing may be ordered or agreed to when the

best interest of a child is at stake.’” Hatfield v. Cornell, 12th Dist. No. CA2017-05-

011, 2018-Ohio-798, ¶ 17, quoting Raney at *3. Here, Daniel contends that the trial

court abused its discretion by failing to order Noah and Mary to submit to a drug

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screen even though they “were being considered for legal custody of the minor

children” and “[t]he issue of [their] prior drug use was raised in multiple hearings

prior to the start of the hearing for legal custody.” (Appellant’s Brief at 15).

{¶37} Importantly, Daniel did not object to the trial court’s failure to order

Noah and Mary to submit to a drug screen prior to the dispositional hearing. Accord

Raney at *3. “A party’s failure to object forfeits review for all but plain error, which

appellate courts will invoke when the error is of such seriousness that it affects ‘the

basic fairness, integrity, or public reputation of the judicial process.’” In re I.W.,

1st Dist. Hamilton No. C-180095, 2019-Ohio-1515, ¶ 14, quoting McNeil v.

Kingsley, 178 Ohio App.3d 674, 2008-Ohio-5536, ¶ 24 (3d Dist.). “However,

invocation of the plain-error doctrine in civil cases is rare and is only employed by

the court in instances in which ‘the error complained of “would have a material

adverse [e]ffect on the character and public confidence in judicial proceedings.”’”

Id., quoting Reichert v. Ingersoll, 18 Ohio St.3d 220, 223 (1985), quoting Schade v.

Carnegie Body Co., 70 Ohio St.2d 207, 209 (1982). Indeed, the “use of this doctrine

‘is to be taken with utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” In re C.N., 2d Dist. Montgomery No.

27119, 2016-Ohio-7322, ¶ 55, quoting Reichert at 223.

{¶38} This case does not present exceptional circumstances that would

require reversal to prevent a manifest miscarriage of justice. That is, there is no

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evidence in the record that the trial court had any reason to believe that Noah or

Mary were currently using, or had recently been using, drugs, prior to the

dispositional hearing. See In re L.W., 2021-Ohio-2461, at ¶ 24 (noting that a

juvenile court “may order a party to undergo drug testing in a legal custody

proceeding where the juvenile court has a reasonable suspicion that a party is

currently using, or has recently been using, drugs”). Furthermore, to the extent that

Daniel presented testimony at the dispositional hearing alleging drug use by Noah

and Mary, the trial court did not find that testimony to be credible, which was its

prerogative to do. See Hatfield at ¶ 17. Consequently, it was not error, let alone

plain error, for the trial court not to order Noah and Mary to submit to a drug screen.

{¶39} Daniel’s second assignment of error is overruled.

Assignment of Error No. IV

Appellant Received Ineffective Assistance of Counsel.

{¶40} In his fourth assignment of error, Daniel argues that his trial counsel

was ineffective. Specifically, Daniel asserts that his trial counsel was ineffective

for failing to “introduce crucial evidence that would have put the credibility of every

witness in question.” (Appellant’s Brief at 20).

Standard of Review

{¶41} “‘In permanent custody proceedings, where parents face losing their

children, we apply the same test as the test for ineffective assistance of counsel in

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criminal cases.’” In re V.G., 3d Dist. Logan No. 8-20-57, 2021-Ohio-3554, ¶ 62,

quoting In re E.C., 3d Dist. Hancock No. 5-15-01, 2015-Ohio-2211, ¶ 40.

Therefore, a petitioner asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the petitioner. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). See also In re V.G. at ¶ 62. In order to show counsel’s

conduct was deficient or unreasonable, the petitioner must overcome the

presumption that counsel provided competent representation and must show that

counsel’s actions were not trial strategies prompted by reasonable professional

judgment. Strickland at 687.

{¶42} “Prejudice results when ‘“there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.”’” In re V.G. at ¶ 63, quoting Bradley at 142, quoting Strickland at 694.

“‘“A reasonable probability is a probability sufficient to undermine confidence in

the outcome.’” Id., quoting Bradley at 142, quoting Strickland at 694.

Analysis

{¶43} Here, Daniel argues that his trial counsel was ineffective for failing “to

present the recordings [he] made * * * of his time with his time with his children.”

(Appellant’s Brief at 21). Daniel specifically alleges that the recordings would have

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revealed “how he acted with his children and how the children acted with him”;

“how jaded and wrong the agency’s representations were about what took place

during [his] parenting time”; and “call[ed] into question Mary Castle’s credibility *

* * .” (Id.).

{¶44} However, Daniel cannot demonstrate that he was prejudiced by his

trial counsel’s failure to present those recordings at the August 16-17, 2021

dispositional hearing. Importantly, the record reveals that the recordings were

admitted into the record at a prior stage of the case. (See Aug. 22, 2019 Tr. at 69).

Likewise, Daniel testified at the dispositional hearing that the recordings were

admitted into record at a prior stage of the case and invited the trial court to review

them as part of his case. (See Aug. 17, 2021 Tr., Vol. II, at 339-340). In other

words, because those recordings were already before the trial court, Daniel cannot

demonstrate that the recordings would have changed the outcome of the trial court’s

dispositional designations. Therefore, we cannot conclude that Daniel’s trial

counsel was ineffective for failing to present the recordings depicting his parenting

time with his children.

{¶45} Accordingly, Daniel’s fourth assignment of error is overruled.

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{¶46} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

Judgments Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

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