In re Z.S.

[Cite as In re Z.S., 2023-Ohio-688.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY

:
IN THE MATTER OF:
: CASE
NO. 22CA12
Z.S.,
22CA13

:
Alleged Dependent
Child.1 : DECISION
& JUDGMENT ENTRY

:
________________________________________________________________

APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for Appellant
Mother.

Autumn D. Adams, Toledo, Ohio, for Appellant Father.

Justin Lovett, Jackson County Prosecuting Attorney, and William
L. Archer, Jr., Assistant Jackson County Prosecuting Attorney,
Portsmouth, Ohio, for Appellee.
_______________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED:3-1-23
ABELE, J.

{¶1} This is a consolidated appeal from a Jackson County

Common Pleas Court, Juvenile Division, judgment that granted

Jackson County Job and Family Services, appellee herein,

permanent custody of two-year-old Z.S.

1 This opinion uses the caption that appears on the trial court’s
judgment that granted appellee permanent custody of the child.
JACKSON, 22CA12, 22CA13 2

{¶2} The child’s biological mother assigns the following
error for review:

“THE TRIAL COURT’S GRANT OF PERMANENT
CUSTODY TO THE JACKSON COUNTY JOBS AND
FAMILY SERVICES CHILDREN’S DIVISION WAS
AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”

{¶3} The child’s biological father also raises the

following assignment of error:

“THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT GRANTED PERMANENT CUSTODY [OF] ZS TO
CHILD PROTECTIVE SERVICES BECAUSE THE
APPOINTED GUARDIAN AD LITEM FAILED TO
CONDUCT AN INDEPENDENT INVESTIGATION AS TO
THE BEST INTERESTS OF ZS.”

{¶4} On October 13, 2020, appellee filed a complaint that

alleged the then 11-month-old child to be neglected and

dependent. The complaint asserted that the child had been

exposed to domestic violence and the parents did not comply with

safety plans. Appellee requested temporary custody and

separately asked for emergency temporary custody, which the

court granted.

{¶5} On January 8, 2021, the trial court adjudicated the

child dependent and later entered a dispositional order that

continued the child in appellee’s temporary custody.

{¶6} On March 10, 2022, appellee filed a motion for

permanent custody and alleged that the child has been in its
JACKSON, 22CA12, 22CA13 3

temporary custody for 12 or more months out of a consecutive 22-

month period and that placing the child in its permanent custody

is in the child’s best interest. The motion alleged that (1)

the father currently is incarcerated with a November 15, 2023

scheduled release date, and (2) the mother did not complete her

case plan goals, is on probation, and has a warrant for her

arrest in Tennessee.

{¶7} On June 30, 2022, the trial court held a permanent

custody hearing. At the hearing, caseworker Kristin Butts

characterized mother’s progress throughout the case as

regressive. She explained that mother might make some progress,

but eventually slipped back into using drugs or otherwise

engaged in illicit conduct that led to multiple arrests

throughout the pendency of the case. Butts stated that mother

most recently had been terminated from a program in February

2022 and in June 2022, she was arrested. At the time of the

hearing, the mother was in jail.

{¶8} Caseworker Butts stated she did not meet the father

because he is in prison and his expected release date is in

November 2023. Butts indicated that the child is with a foster

family, doing well in the family’s home and the foster family is

interested in adoption.

{¶9} The child’s guardian ad litem (GAL) also testified and
JACKSON, 22CA12, 22CA13 4

recommended the court grant the agency permanent custody of the

child. The GAL stated that the child is too young to understand

the nature of the proceedings, but the GAL observed that the

child is “very bonded with her foster parents” and is “well

adjusted.” The GAL explained that she had been in contact with

the foster family at various times throughout the case. When

she tried to contact the family before she prepared her final

report, however, she could not reach them. The GAL indicated

that due to an internal error, the agency caseworker had not

given her the family’s current phone number, but instead gave

her the family’s old phone number. Thus, she could not reach

the foster parents before she submitted her final report.

However, the GAL stated she had been in touch with the foster

parents at other points throughout the case.

{¶10} On July 26, 2022, the trial court granted appellee

permanent custody of the child. The court found that (1) the

child has been in appellee’s temporary custody for 12 or more

months of a consecutive 22-month period, (2) placing the child

in appellee’s permanent custody is in her best interest, and (3)

the father “has utterly failed to comply with the case plan,” is

in prison until November 15, 2023, and failed to maintain

contact with the child or appellee even when he was not in

prison. The court further noted that mother has a substance-
JACKSON, 22CA12, 22CA13 5

abuse problem and continued to test positive throughout the

pendency of the case. The court additionally recognized that

the parents have unresolved issues with domestic violence and

mother currently is incarcerated for violating probation. The

court found that “[a]ccording to the GAL, the foster caregivers

have a good relationship with the child and have an interest in

adopting the child should permanent custody be granted to JFS.”

The court further determined that (1) the child is too young to

express her wishes, (2) the parties did not dispute that the

child has been in the agency’s temporary custody for 12 or more

months of a consecutive 22-month period, and (3) the child needs

a legally secure permanent placement that cannot be achieved

without a grant of permanent custody to appellee. The court

stated that “the parents are not in a position to receive

custody” and “drug abuse, various incarcerations and domestic

violence” show they cannot provide the child with a legally

secure permanent placement. The court thus granted appellee

permanent custody of the child. This appeal followed.

I

MOTHER’S APPEAL

{¶11} In her sole assignment of error, mother asserts that

the trial court’s judgment is against the manifest weight of the

evidence. In particular, she argues that clear and convincing
JACKSON, 22CA12, 22CA13 6

evidence does not support the trial court’s finding that the

foster parents have a good relationship with the child and that

they are interested in adopting the child. Because, as mother

points out, the GAL stated at the permanent custody hearing that

she could not reach the foster parents before she submitted her

final report, the GAL lacked any factual basis to support her

assertion that the foster parents share a positive relationship

with the child.

{¶12} Appellee, however, asserts that it presented ample

clear and convincing evidence to support the trial court’s

judgment. Appellee argues that the evidence presented at the

hearing shows, inter alia, that (1) father is in jail with a

November 2023 expected release date, (2) mother was in prison at

the time of the hearing and had other periods of incarceration

throughout the pendency of the case, (3) mother recently was

charged with drug possession, and (4) the mother did not

complete any of the numerous treatment programs that she had

attempted to complete. Appellee also points out that the GAL

clarified during her testimony that she had been in contact with

the foster parents at various points throughout the pendency of

the case, but had been unable to reach them before she submitted

her final report due to miscommunication. Appellee further

contends that any error that might exist would be harmless in
JACKSON, 22CA12, 22CA13 7

light of the other overwhelming evidence that supports the trial

court’s decision.

A

{¶13} Generally, a reviewing court will not disturb a trial

court’s permanent custody decision unless the decision is

against the manifest weight of the evidence. E.g., In re B.E.,

4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S.,

4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.

“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 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.’”

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594

(6th Ed.1990).

{¶14} When an appellate court reviews whether a trial

court’s permanent custody decision is against the manifest

weight of the evidence, the court “‘“weighs the evidence and all

reasonable inferences, considers the credibility of witnesses

and determines whether in resolving conflicts in the evidence,
JACKSON, 22CA12, 22CA13 8

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.”’” Eastley at ¶ 20, quoting

Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th

Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, quoting

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983); accord In re Pittman, 9th Dist. Summit No. 20894,

2002-Ohio-2208, ¶¶ 23-24. We further observe, however, that

issues relating to the credibility of witnesses and the weight

to be given the evidence are primarily for the trier of fact.

As the court explained in Seasons Coal Co. v. Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984):

The underlying rationale of giving deference to the
findings of the trial court rests with the knowledge
that the trial judge is best able to view the witnesses
and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the
credibility of the proffered testimony.

{¶15} Moreover, deferring to the trial court on matters of

credibility is “crucial in a child custody case, where there may

be much evident in the parties’ demeanor and attitude that does

not translate to the record well (Emphasis sic).” Davis v.

Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

Accord In re Christian, 4th Dist. No. 04CA 10, 2004-Ohio-3146, ¶

7.
JACKSON, 22CA12, 22CA13 9

{¶16} The question that an appellate court must resolve when

reviewing a permanent custody decision under the manifest weight

of the evidence standard is “whether the juvenile court’s

findings * * * were supported by clear and convincing evidence.”

In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809,

¶ 43. “Clear and convincing evidence” is:

the measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as
to the allegations sought to be established. It is
intermediate, being more than a mere preponderance, but
not to the extent of such certainty as required beyond
a reasonable doubt as in criminal cases. It does not
mean clear and unequivocal.

In re Estate of Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23

(1986). In determining whether a trial court based its decision

upon clear and convincing evidence, “a reviewing court will

examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of

proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54

(1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d

613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954) (“Once the clear and convincing standard has

been met to the satisfaction of the [trial] court, the reviewing

court must examine the record and determine if the trier of fact

had sufficient evidence before it to satisfy this burden of

proof.”); In re Adoption of Lay, 25 Ohio St.3d 41, 42-43, 495
JACKSON, 22CA12, 22CA13 10

N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163,

165, 492 N.E.2d 140 (1986) (whether a fact has been “proven by

clear and convincing evidence in a particular case is a

determination for the [trial] court and will not be disturbed on

appeal unless such determination is against the manifest weight

of the evidence”).

{¶17} Thus, if a children services agency presented

competent and credible evidence upon which the trier of fact

reasonably could have formed a firm belief that permanent

custody is warranted, the court’s decision is not against the

manifest weight of the evidence. In re R.M., 2013-Ohio-3588,

997 N.E.2d 169, ¶ 62 (4th Dist.); In re R.L., 2nd Dist. Greene

Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 17, quoting In re

A.U., 2nd Dist. Montgomery No. 22287, 2008-Ohio-187, ¶ 9 (“A

reviewing court will not overturn a court’s grant of permanent

custody to the state as being contrary to the manifest weight of

the evidence ‘if the record contains competent, credible

evidence by which the court could have formed a firm belief or

conviction that the essential statutory elements * * * have been

established.’”).

{¶18} Once a reviewing court finishes its examination, the

judgment may be reversed only if it appears that the fact-

finder, when resolving the conflicts in evidence, “‘clearly lost
JACKSON, 22CA12, 22CA13 11

its way and created such a manifest miscarriage of justice that

the [judgment] must be reversed and a new trial ordered.’”

Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A

reviewing court should find a trial court’s permanent custody

decision against the manifest weight of the evidence only in the

“‘exceptional case in which the evidence weighs heavily against

the [decision].’” Id., quoting Martin, 20 Ohio App.3d at 175;

accord State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995

(2000).

B

{¶19} We recognize that “parents’ interest in the care,

custody, and control of their children ‘is perhaps the oldest of

the fundamental liberty interests recognized by th[e United

States Supreme] Court.’” In re B.C., 141 Ohio St.3d 55, 2014-

Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530

U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the

right to raise one’s “child is an ‘essential’ and ‘basic’ civil

right.” In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169

(1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680

(1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.

1388, 71 L.Ed.2d 599 (1982) (“natural parents have a fundamental

right to the care and custody of their children”). Thus,
JACKSON, 22CA12, 22CA13 12

“parents who are ‘suitable’ have a ‘paramount’ right to the

custody of their children.” B.C. at ¶ 19, quoting In re

Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing

Clark v. Bayer, 32 Ohio St. 299, 310 (1877); Murray, 52 Ohio

St.3d at 157, 556 N.E.2d 1169.

{¶20} A parent’s rights, however, are not absolute. In re

D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11.

Rather, “‘it is plain that the natural rights of a parent * * *

are always subject to the ultimate welfare of the child, which

is the polestar or controlling principle to be observed.’” In

re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979),

quoting In re R.J.C., 300 So.2d 54, 58 (Fla. App. 1974). Thus,

the State may terminate parental rights when a child’s best

interest demands such termination. D.A. at ¶ 11.

{¶21} Before a court may award a children services agency

permanent custody of a child, R.C. 2151.414(A)(1) requires the

court to hold a hearing. The primary purpose of the hearing is

to allow the court to determine whether the child’s best

interests would be served by permanently terminating the

parental relationship and by awarding permanent custody to the

agency. Id. Additionally, when considering whether to grant a

children services agency permanent custody, a trial court should

consider the underlying purposes of R.C. Chapter 2151: “to care
JACKSON, 22CA12, 22CA13 13

for and protect children, ‘whenever possible, in a family

environment, separating the child from the child’s parents only

when necessary for the child’s welfare or in the interests of

public safety.’” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104,

862 N.E.2d 816, ¶ 29, quoting R.C. 2151.01(A).

C

{¶22} A children services agency may obtain permanent

custody of a child by (1) requesting it in the abuse, neglect or

dependency complaint under R.C. 2151.353, or (2) filing a motion

under R.C. 2151.413 after obtaining temporary custody. In this

case, appellee sought permanent custody by filing a motion under

R.C. 2151.413. When an agency files a permanent custody motion

under R.C. 2151.413, R.C. 2151.414 applies. R.C. 2151.414(A).

{¶23} R.C. 2151.414(B)(1) permits a trial court to grant

permanent custody of a child to a children services agency if

the court determines, by clear and convincing evidence, that the

child’s best interest would be served by the award of permanent

custody and that one of the following conditions applies:

(a) The child is not abandoned or orphaned or has
not been in the temporary custody of one or more public
children services agencies or private child placing
agencies for twelve or more months of a consecutive
twenty-two month period ending on or after March 18,
1999, and the child cannot be placed with either of the
child’s parents within a reasonable time or should not
be placed with the child’s parents.
(b) The child is abandoned.
JACKSON, 22CA12, 22CA13 14

(c) The child is orphaned, and there are no
relatives of the child who are able to take permanent
custody.
(d) The child has been in the temporary custody of
one or more public children services agencies or private
child placing agencies for twelve or more months of a
consecutive twenty-two month period ending on or after
March 18, 1999.
(e) The child or another child in the custody of
the parent or parents from whose custody the child has
been removed has been adjudicated an abused, neglected,
or dependent child on three separate occasions by any
court in this state or another state.

{¶24} Thus, before a trial court may award a children

services agency permanent custody, it must find (1) that one of

the circumstances described in R.C. 2151.414(B)(1) applies, and

(2) that awarding the children services agency permanent custody

would further the child’s best interest.

{¶25} In the case at bar, the trial court found that the

child had been in the agency’s temporary custody for more than

12 months of a consecutive 22-month period, and thus, that R.C.

2151.414(B)(1)(d) applies. The mother does not challenge this

finding.

{¶26} R.C. 2151.414(D) directs a trial court to consider

“all relevant factors,” as well as specific factors, to

determine whether a child’s best interest will be served by

granting a children services agency permanent custody. The

listed factors include: (1) the child’s interaction and

interrelationship with the child’s parents, siblings, relatives,
JACKSON, 22CA12, 22CA13 15

foster parents and out-of-home providers, and any other person

who may significantly affect the child; (2) the child’s wishes,

as expressed directly by the child or through the child’s

guardian ad litem, with due regard for the child’s maturity; (3)

the child’s custodial history; (4) the child’s need for a

legally secure permanent placement and whether that type of

placement can be achieved without a grant of permanent custody

to the agency; and (5) whether any factors listed under R.C.

2151.414(E)(7) to (11) apply.

{¶27} Courts that are determining whether a grant of

permanent custody to a children services agency will promote a

child’s best interest must consider “all relevant [best

interest] factors,” as well as the “five enumerated statutory

factors.” C.F. at ¶ 57, citing In re Schaefer, 111 Ohio St.3d

498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56; accord In re C.G.,

9th Dist. Summit Nos. 24097 and Summit Nos. 24099, 2008-Ohio-

3773, ¶ 28; In re N.W., 10th Dist. Franklin Nos. 07AP-590 and

Franklin Nos. 07AP-591, 2008-Ohio-297, ¶ 19. However, none of

the best interest factors are entitled to “greater weight or

heightened significance.” C.F. at ¶ 57. Instead, the trial

court considers the totality of the circumstances when making

its best interest determination. In re K.M.S., 3rd Dist. Marion

Nos. 9-15-37, 9-15-38, and Marion Nos. 9-15-39, 2017-Ohio-142, ¶
JACKSON, 22CA12, 22CA13 16

24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶

46. In general, “[a] child’s best interest is served by placing

the child in a permanent situation that fosters growth,

stability, and security.” In re C.B.C., 4th Dist. Lawrence Nos.

15CA18 and 15CA19, 2016-Ohio-916, ¶ 66, citing In re Adoption of

Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991).

D

{¶28} In the case sub judice, appellant disputes the trial

court’s factual finding that the GAL stated that “the foster

caregivers have a good relationship with the child and have an

interest in adopting the child should permanent custody be

granted to [appellee].” She alleges that the trial court’s

factual finding lacks support. Appellant notes that the GAL

stated that she could not contact the foster parents before she

submitted her final report to the court. Appellant thus

surmises that the GAL’s inability to contact the foster parents

before she submitted her final report establishes that the GAL

could not have known that the foster family shared a positive

relationship with the child. She likewise theorizes that

because appellee gave the GAL the incorrect phone number,

appellee also lacked any basis to suggest that the foster family

shares a positive relationship with the child.

{¶29} After our review, we do not find merit to appellant’s
JACKSON, 22CA12, 22CA13 17

argument. First, the GAL stated at the hearing that she had

been in touch with the foster family at various points

throughout the case. She explained that when she attempted to

contact the family before she submitted her final report, she

could not reach them because appellee apparently gave her the

wrong phone number. Thus, contrary to appellant’s assertion,

the record does not demonstrate that the GAL failed to contact

the foster family or failed to ascertain the family’s

suitability to serve as the child’s caregivers. Instead, the

GAL had done so at previous times throughout the case.

Moreover, the caseworker testified that the child has a positive

relationship with the foster family and that the foster family

intends to adopt the child if given the opportunity. We

therefore disagree with appellant that the trial court’s

findings that the child shares a positive relationship with the

foster family and that the family intends to adopt the child if

the court grants the agency permanent custody are against the

manifest weight of the evidence.

{¶30} Because appellant does not specifically challenge the

trial court’s findings regarding the other best-interest

factors, we will not include an extended analysis of those

factors. Instead, we simply note that the record contains ample

clear and convincing evidence to support the trial court’s
JACKSON, 22CA12, 22CA13 18

decision to place the child in appellee’s permanent custody.

{¶31} Accordingly, based upon the foregoing reasons, we

overrule the mother’s sole assignment of error.

II

FATHER’S APPEAL

{¶32} In his sole assignment of error, father asserts that

the trial court abused its discretion by granting appellee’s

request for permanent custody when the GAL did not comply with

Sup.R. 48.03. The father contends that the GAL did not

independently investigate the child’s best interest, but instead

relied upon the caseworkers’ reports. He also points out that

the GAL testified at the permanent custody hearing, she last had

contact with the child more than four months before the hearing.

The father further notes the GAL admitted she did not contact

the father even though she knew where to locate him (in prison).

{¶33} We initially observe that, during the trial court

proceedings, the father did not assert that the GAL’s report

failed to comply with Sup.R. 48.06.2 It is well-settled that a

2 Sup.R. 48.06 provides, in relevant part, as follows:

(A) General Report Requirements.
(1) A guardian ad litem shall prepare a written
final report, including recommendations to the court,
within the times set forth in this division. The report
JACKSON, 22CA12, 22CA13 19

shall affirmatively state that responsibilities have
been met and shall detail the activities performed,
hearings attended, persons interviewed, documents
reviewed, experts consulted, and all other relevant
information considered by the guardian ad litem in
reaching the recommendations and in accomplishing the
duties required by statute, by court rule, and in the
order of appointment from the court.
(2) All reports shall include the following
warning: “The guardian ad litem report shall be provided
to the court, unrepresented parties, and legal counsel.
Any other disclosure of the report must be approved in
advance by the court. Unauthorized disclosure of the
report may be subject to court action, including the
penalties for contempt, which include fine and/or
incarceration.”
(3) Oral and written reports shall address relevant
issues, but shall not be considered determinative.
(4) A guardian ad litem shall be available to
testify at any relevant hearing and may orally
supplement the report at the conclusion of the hearing.
(5) A guardian ad litem may provide an interim
written or oral report at any time.
(B) Guardian Ad Litem Reports in Abuse, Neglect,
Dependency, Unruly, and Delinquency Reports.
(1) A guardian ad litem in abuse, neglect,
dependency, unruly, and delinquency cases and actions to
terminate parental rights shall provide a written report
to the court, unrepresented parties, and legal counsel
not less than seven days prior to any initial
dispositional hearing, permanent custody hearing, and
any hearing upon a motion requesting a change in
disposition. The court may alter the seven-day period
as may be necessary for the administration of justice.
(2) A court shall review all guardian ad litem
reports, written or oral, to ensure that the guardian ad
litem has performed those responsibilities required by
R.C. 2151.281.

R.C. 2151.281(I) states as follows:

The guardian ad litem for an alleged or adjudicated
abused, neglected, or dependent child shall perform
whatever functions are necessary to protect the best
JACKSON, 22CA12, 22CA13 20

party may not raise new issues or legal theories for the first

time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St.2d

41, 43, 322 N.E.2d 629 (1975). Thus, a litigant who fails to

raise an argument before the trial court forfeits the right to

raise that issue on appeal. Independence v. Office of the

Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28

N.E.3d 1182, ¶ 30 (“an appellant generally may not raise an

argument on appeal that the appellant has not raised in the

lower courts”); State v. Quarterman, 140 Ohio St.3d 464, 2014-

Ohio-4034, 19 N.E.3d 900, ¶ 21 (defendant forfeited

constitutional challenge by failing to raise it during trial

court proceedings); Gibson v. Meadow Gold Dairy, 88 Ohio St.3d

201, 204, 724 N.E.2d 787 (2000) (party waived arguments for

purposes of appeal when party failed to raise those arguments

during trial court proceedings); State ex rel. Gutierrez v.

Trumbull Cty. Bd. of Elections, 65 Ohio St.3d 175, 177, 602

N.E.2d 622 (1992) (appellant cannot “present * * * new arguments

for the first time on appeal”); accord State ex rel. Jeffers v.

interest of the child, including, but not limited to,
investigation, mediation, monitoring court proceedings,
and monitoring the services provided the child by the
public children services agency or private child placing
agency that has temporary or permanent custody of the
child, and shall file any motions and other court papers
that are in the best interest of the child in accordance
with rules adopted by the supreme court.
JACKSON, 22CA12, 22CA13 21

Athens Cty. Commrs., 4th Dist. Athens No. 15CA27, 2016-Ohio-

8119, fn.3 (“[i]t is well-settled that failure to raise an

argument in the trial court results in waiver of the argument

for purposes of appeal”); State v. Anderson, 4th Dist.

Washington No. 15CA28, 2016-Ohio-2704, ¶ 24 (“arguments not

presented in the trial court are deemed to be waived and may not

be raised for the first time on appeal”).

{¶34} Appellate courts may, however, in certain

circumstances, consider a forfeited argument using a plain-error

analysis. See Risner v. Ohio Dept. of Nat. Resources, Ohio Div.

of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718,

¶ 27 (reviewing court has discretion to consider forfeited

constitutional challenges); see also Hill v. Urbana, 79 Ohio

St.3d 130, 133-34, 679 N.E.2d 1109 (1997), citing In re M.D., 38

Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus (“[e]ven where

[forfeiture] is clear, [appellate] court[s] reserve[] the right

to consider constitutional challenges to the application of

statutes in specific cases of plain error or where the rights

and interests involved may warrant it’”); State v. Pyles, 7th

Dist. Mahoning No. 13-MA-22, 2015-Ohio-5594, ¶ 82, quoting State

v. Jones, 7th Dist. No. 06-MA-109, 2008-Ohio-1541, ¶ 65 (the

plain error doctrine “‘is a wholly discretionary doctrine’”);

DeVan v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga,
JACKSON, 22CA12, 22CA13 22

2015-Ohio-4279, 45 N.E.3d 661, ¶ 9 (appellate court retains

discretion to consider forfeited argument); see Rosales-Mireles

v. United States, ___ U.S. ___, 138 S.Ct. 1897, 1904, 201

L.Ed.2d 376 (2018) (court has discretion whether to recognize

plain error).

{¶35} For the plain error doctrine to apply, the party

claiming error must establish (1) that “‘an error, i.e., a

deviation from a legal rule” occurred, (2) that the error was

“‘an “obvious” defect in the trial proceedings,’” and (3) that

this obvious error affected substantial rights, i.e., the error

“‘must have affected the outcome of the trial.’” State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22,

quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240

(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436

N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious and

prejudicial although neither objected to nor affirmatively

waived which, if permitted, would have a material adverse affect

on the character and public confidence in judicial

proceedings.”). For an error to be “plain” or “obvious,” the

error must be plain “under current law” “at the time of

appellate consideration.” Johnson v. United States, 520 U.S.

461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord

Barnes, 94 Ohio St.3d at 27; State v. G.C., 10th Dist. Franklin
JACKSON, 22CA12, 22CA13 23

No. 15AP-536, 2016-Ohio-717, ¶ 14.

{¶36} The plain error doctrine is not, however, readily

invoked in civil cases. Instead, an appellate court “must

proceed with the utmost caution” when applying the plain error

doctrine in civil cases. Goldfuss v. Davidson, 79 Ohio St.3d

116, 121, 679 N.E.2d 1099 (1997). The Ohio Supreme Court has

set a “very high standard” for invoking the plain error doctrine

in a civil case. Perez v. Falls Financial, Inc., 87 Ohio St.3d

371, 721 N.E.2d 47 (2000). Thus, “the doctrine is sharply

limited to 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.”

Goldfuss, 79 Ohio St.3d at 122, 679 N.E.2d 1099; accord Jones v.

Cleveland Clinic Found., 161 Ohio St.3d 337, 2020-Ohio-3780, 163

N.E.3d 501, ¶ 24; Gable v. Gates Mills, 103 Ohio St.3d 449,

2004-Ohio-5719, 816 N.E.2d 1049, ¶ 43. Moreover, appellate

courts “‘should be hesitant to decide [forfeited errors] for the

reason that justice is far better served when it has the benefit

of briefing, arguing, and lower court consideration before

making a final determination.’” Risner at ¶ 28, quoting Sizemore

v. Smith, 6 Ohio St.3d 330, 332, 453 N.E.2d 632 (1983), fn. 2;
JACKSON, 22CA12, 22CA13 24

accord Mark v. Mellott Mfg. Co., Inc., 106 Ohio App.3d 571, 589,

666 N.E.2d 631 (4th Dist.1995) (“Litigants must not be permitted

to hold their arguments in reserve for appeal, thus evading the

trial court process.”). Additionally, “[t]he plain error

doctrine should never be applied to reverse a civil judgment * *

* to allow litigation of issues which could easily have been

raised and determined in the initial trial.” Goldfuss, 79 Ohio

St.3d at 122.

{¶37} In the case sub judice, the father did not argue that

the trial court obviously erred by considering the GAL’s

recommendation. We further point out that this court, along

with other Ohio appellate courts, has refused to recognize

purported superintendence rule violations as reversible error.

E.g., In re A.P., 4th Dist. Gallia No. 21CA14, 2022-Ohio-1577, ¶

46; In re K.L., 11th Dist. Portage No. 2021-P-0022, 2021-Ohio-

3080, ¶ 63 (“the failure to comply with the Rules of

Superintendence, even if a technical error, is not reversible”);

In re E.W., 4th Dist. Washington No. 10CA18, 2011-Ohio-2123, ¶

12 (superintendence rules are internal housekeeping rules that

do not create any substantive rights); Pettit v. Pettit, 12th

Dist. Fayette No. CA2011-08-018, 2012-Ohio-1801, ¶ 12

(superintendence rules are “administrative directives only, and

are not intended to function as rules of practice and
JACKSON, 22CA12, 22CA13 25

procedure”); accord Gupta v. Sharan, 10th Dist. Franklin No.

22AP-81, 2022-Ohio-4479, ¶ 44; State v. Clark, 9th Dist. Medina

No. 20CA0020-M, 2021-Ohio-3397, ¶ 39; State v. Klayman, 4th

Dist. Hocking No. 17CA13, 2018-Ohio-3580, ¶ 17; see State ex

rel. Parker Bey v. Byrd, 160 Ohio St.3d 141, 2020-Ohio-2766, 154

N.E.3d 57, ¶ 41, quoting Singer, 50 Ohio St.2d at 110 (“‘[t]he

Rules of Superintendence are not designed to alter basic

substantive rights’”) (Kennedy, J., concurring in part and

dissenting in part).

{¶38} Moreover, the father has not shown that the result of

the trial court proceedings would have been different if the GAL

had conducted additional investigation. The father did not

argue, for example, that if the GAL met with the child shortly

before the permanent custody hearing, or had contacted the

father during his incarceration, the trial court would have

rejected appellee’s permanent custody motion and would have

granted the parents additional time to demonstrate that one of

them would be able to provide the child with proper care. As

the GAL and agency caseworkers stated at the permanent custody

hearing, the father remains incarcerated until his possible

release in November 2023. Also, the mother has been unable to

successfully complete any of the multiple drug treatment

programs that she has entered throughout the pendency of the
JACKSON, 22CA12, 22CA13 26

case, and at the time of the permanent custody hearing, she was

in jail. Nothing in the record suggests that any additional

investigation that the GAL might have been able to conduct would

change these facts. Consequently, we do not believe that the

father can establish that the trial court plainly erred by

considering the GAL’s report.

{¶39} Accordingly, based upon the foregoing reasons, we

overrule the parties’ assignments of error and affirm the trial

court’s judgment.

JUDGMENT AFFIRMED.
JACKSON, 22CA12, 22CA13 27

JUDGMENT ENTRY

It is ordered that the appeal be affirmed and that appellee

recover of appellants the costs herein taxed.

The Court finds there were reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this

Court directing the Jackson County Common Pleas Court, Juvenile

Division, to carry this judgment into execution.

A certified copy of this entry shall constitute that

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________
Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.