In re D.K.

[Cite as In re D.K., 2024-Ohio-1149.]

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

:

IN THE MATER OF: : Case No. 23CA1177

D.K. :

DECISION & JUDGMENT
ENTRY
:

________________________________________________________________
APPEARANCES:

Brian T. Goldberg, Cincinnati, Ohio, for Appellant.

Ariana Bowles Norris, Adams County Assistant Prosecutor, West
Union, Ohio, for Appellee.
________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED:3-20-24
ABELE, J.

{¶1} This is an appeal from an Adams County Common Pleas

Court, Juvenile Division, judgment that granted Adams County

Children Services (ACCS), appellee herein, permanent custody of

11-year-old D.K.

{¶2} William Ishmael, appellant herein, and the child’s

former legal custodian, raises the following assignment of error

for review:

“THE TRIAL COURT ERRED IN TERMINATING THE
ISHMAEL’S [SIC] LEGAL CUSTODY OF D.K.”
 2
ADAMS, 23CA1177

{¶3} On April 24, 2015, appellee filed a complaint that

alleged D.K. is a dependent child. The complaint averred that

on April 23, 2015, law enforcement arrested the child’s mother

for felony drug possession. Appellee asked the court to place

the child in its temporary custody. On that same date, appellee

sought, and received, an ex parte order of temporary custody.

{¶4} On June 12, 2015, the trial court adjudicated the

child a dependent child and continued her in appellee’s

temporary custody. On March 28, 2016, Terry Ishmael (the

child’s great aunt) and William Ishmael (her husband) asked the

court to grant them legal custody of the child. The court

subsequently placed the child in the Ishmaels’ legal custody and

granted appellee protective supervision. On August 26, 2016,

the court entered a final judgment that granted the Ishmaels

legal custody of the child and that terminated appellee’s (ACCS)

involvement.

{¶5} On May 6, 2021, appellee filed a motion to modify the

disposition that placed the child in the Ishmaels’ legal custody

and asserted that “new allegations concerning the safety and

well-being of the child have been made.” Appellee stated that,

on May 5, 2021, it received a report “concerning alleged

physical abuse and neglect of the child.” Appellee indicated
ADAMS, 23CA1177 3

that the child had reported that the Ishmaels permitted two

alleged sexual perpetrators, Laura Dryden and Chris Conn, to be

around the child, even though appellee instructed the Ishmaels

that Conn and Dryden should not be permitted in their home and

should have no contact with the child. Appellee thus asked the

trial court to place the child in its temporary custody. On

that same date, appellee filed a motion for ex parte temporary

custody, which the trial court granted.

{¶6} On November 7, 2022, appellee filed a motion for

permanent custody. At the February 28, 2023 hearing to consider

appellee’s permanent-custody motion, Caseworker Michael Tomlin

testified that appellee most recently sought temporary custody

of the child due to allegations that the Ishmaels allowed the

child to have contact with her alleged abusers. Tomlin

indicated that appellee conducted a 2022 home study, and the

Ishmaels’ home did not pass.

{¶7} Appellant testified that the child lived in his home

from 2016 until May 2021, when the court placed the child in

appellee’s temporary custody. He agreed that the court removed

the child from his home due to allegations that involved Conn

and Dryden.

{¶8} The child’s guardian ad litem testified that the child

did not appear to be “protected from harm” at the Ishmaels’ home
ADAMS, 23CA1177 4

due to their inability to control Conn’s and Dryden’s contact

with the child, even after the child’s sexual abuse allegations.

The child reported that when she lived with the Ishmaels, she

was in charge of making appellant lunch and she also rubbed

lotion on his feet. The child also reported being struck with a

dog leash. The guardian ad litem explained that she is not

certain exactly what happened in the Ishmaels’ home, but the

doctor who evaluated the child recommended that she not have any

contact with them. The guardian ad litem further indicated that

the child is “very happy” in the foster home and the foster

parents are considering adopting the child if the court grants

appellee permanent custody. The guardian ad litem recommended

that the court grant appellee permanent custody of the child.

{¶9} On March 7, 2023, the magistrate entered a decision to

place the child in appellee’s permanent custody. The magistrate

noted that the Ishmaels had legal custody of the child until the

court placed the child in appellee’s temporary custody in May

2021, but terminating the Ishmaels’ legal custody was proper due

to “a change in circumstance in the legal custodian’s home.”

The magistrate additionally determined that terminating the

Ishmaels’ legal custody is in the child’s best interest. The

magistrate further stated that a nonparent cannot be awarded

custody unless that nonparent files a written motion with the
ADAMS, 23CA1177 5

court and here no one had filed a written motion that requested

legal custody. The magistrate further determined that, even if

the Ishmaels had filed a motion for legal custody of the child,

“the minor child would be at risk” if the court returned her to

their home. The magistrate explained: “During the period of

time the child was in the home, she lacked socialization, was

edxposed [sic] to abuse, and is only now demonstrating improved

behavior and stability.”

{¶10} The magistrate also observed that on May 11, 2022, the

court terminated visitation between the child and the Ishmaels

based upon the outcome of her pediatric assessment. The

magistrate noted that the child’s doctor “recommended no contact

with [the Ishmaels] as it would have a negative effect on her

progress made.” The magistrate thus concluded that it “cannot

find that placing the child in the legal custody of [the

Ishmaels] would be in the best interest of the minor child.”

With respect to appellee’s permanent-custody motion, the court

found that the child’s mother (and father, who remains unknown)

has abandoned her, the child has been in appellee’s temporary

custody for 12 or more months of a consecutive 22-month period,

and permanent custody is in the child’s best interest. On that

same date, the trial court adopted the magistrate’s decision.

{¶11} On March 17, 2023, appellant objected to the
ADAMS, 23CA1177 6

magistrate’s decision and asserted that (1) the decision is

against the manifest weight of the evidence; (2) the “decision

fails to establish facts on which a decision may be based”; (3)

the magistrate failed to consider his “testimony indicating that

he had complied with and completed the case plan”; (4) the

magistrate failed to consider the case worker’s testimony that

he “complied with and completed all case plan goals”; (5) the

magistrate failed to consider that he maintained contact with

the agency throughout the case; and (6) the magistrate failed to

consider the child’s best interest.

{¶12} On September 19, 2023, the trial court overruled

appellant’s objections to the magistrate’s decision. In doing

so, the court applied the permanent-custody statute and stated

that it does “not address whether legal custodians, past or

present, are to be given consideration in termination of rights

[cases].” The court found that the parents had abandoned the

child and that the child has been in appellee’s custody for more

than 12 out of the past 22 months.

{¶13} The trial court noted that the child’s guardian ad

litem reported the following:

A. [The child] reported sexual abuse by Christopher
Conn and/or Lora Dryden. Terry Ishmael denied that
said sexual abuse could have happened and does not
believe the allegations by [the child].
ADAMS, 23CA1177 7

B. There were several instances of contact between
Conn, Dryden and [the child] and they were routinely
allowed in the home by Terry Ishmael and hid Conn and
Dryden in the bedroom when the Agency conducted an
investigation.

C. [The child] exhibited behavior issues after removal
from the Ishmaels and reported occurrences of strange
behavior by the Ishmaels. [The child] was not
protected in the home of the Ishmaels.

D. After [the child]’s evaluation by Dr. Wagner, it
was recommended by Dr. Wagner that [the child] have no
further contact with the Ishmaels, for the physical
and mental safety of [the child].

{¶14} The trial court thus overruled appellant’s objections

and found that granting appellee permanent custody of the child

is in her best interest. This appeal followed.

{¶15} In his sole assignment of error, appellant asserts

that the trial court erred by terminating the legal-custody

order that had placed the child with him. He contends that (1)

no change in circumstances occurred sufficient to warrant the

removal of the child from his legal custody, and (2) the removal

of the child from his legal custody is not in the child’s best

interest.

{¶16} Appellee asserts that appellant lacks standing to

challenge the trial court’s decision to place the child in its

permanent custody because appellant did not file a motion for

legal custody of the child.

A
ADAMS, 23CA1177 8

{¶17} Before we consider the merits of appellant’s

assignment of error, we first consider appellee’s argument that

appellant lacks standing to appeal the trial court’s permanent-

custody decision. “Standing is a threshold question for the

court to decide in order for it to adjudicate the action.”

State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d

1002 (1998). Thus, a person “who attempts to appeal a judgment

must meet standing requirements to invoke the jurisdiction of

the appellate court.” In re S.G.D.F., 10th Dist. Franklin No.

16AP-123, 2016-Ohio-7134, ¶ 11, citing Ohio Contract Carriers

Assn. v. Public Util. Comm. of Ohio, 140 Ohio St. 160, 161, 42

N.E.2d 758 (1942). “[L]ack of standing vitiates the party’s

ability to invoke the jurisdiction of a court” to hear an

action. Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-

Ohio-4275, 21 N.E.3d 1040, ¶ 22.

{¶18} As a general matter, an “‘[a]ppeal lies only on behalf

of a party aggrieved by the final order appealed from.’” State

ex rel. Gabriel v. Youngstown, 75 Ohio St.3d 618, 619, 665

N.E.2d 209 (1996), quoting Ohio Contract Carriers Assn., Inc. v.

Pub. Util. Comm., 140 Ohio St. 160, 42 N.E.2d 758 (1942),

syllabus; accord Goodman v. Hanseman, 132 Ohio St.3d 23, 2012-

Ohio-1587, 967 N.E.2d 1217, 1218, ¶ 1. “Aggrieved means

deprived of legal rights or claims.” Snodgrass v. Testa, 145
ADAMS, 23CA1177 9

Ohio St.3d 418, 2015-Ohio-5364, 50 N.E.3d 475, ¶ 27, quoting

Cononi v. Mikhail, 2d Dist. Montgomery No. 8161, 1984 WL 5419,

*6 (Jan. 10, 1984), citing In re Annexation in Mad River Twp.,

Montgomery Cty., 25 Ohio Misc. 175, 176, 266 N.E.2d 864 (C.P.

1970); see also Black’s Law Dictionary 80 (10th Ed.2014)

(defining “aggrieved” as “having legal rights that are adversely

affected”); accord Midwest Fireworks Mfg. Co. v. Deerfield Twp.

Bd. of Zoning Appeals, 91 Ohio St.3d 174, 177, 743 N.E.2d 894

(2001).

{¶19} In order to have standing to appeal, a person must be

“‘able to demonstrate a present interest in the subject matter

of the litigation which has been prejudiced’” by the judgment

appealed from. Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd.

of Zoning Appeals, 91 Ohio St.3d 174, 177, 743 N.E.2d 894

(2001), quoting Willoughby Hills v. C.C. Bar’s Sahara, Inc., 64

Ohio St.3d 24, 26, 591 N.E.2d 1203 (1992). Consequently, “a

party [ordinarily] does not have standing to prosecute an appeal

in order to protect the rights of a third party.” USB Financial

Services, Inc. v. Lacava, 8th Dist. Cuyahoga No. 106256, 2018-

Ohio-3165, ¶ 42 (citation omitted). Instead, to have standing

to appeal, a party must “assert [his] own rights, not the

[rights] of third parties.” North Canton v. Canton, 114 Ohio

St.3d 253, 2007-Ohio-4005, 871 N.E.2d 586, ¶ 14. Thus,
ADAMS, 23CA1177 10

“[a]ppeals are * * * allowed * * * only to correct errors

injuriously affecting the appellant.’” State ex rel. Gabriel v.

Youngstown, 75 Ohio St.3d 618, 619, 665 N.E.2d 209 (1996),

quoting Ohio Contract Carriers Assn. at syllabus.

{¶20} When a trial court grants a children services agency

permanent custody, the decision “divests the natural parents or

adoptive parents of any and all parental rights, privileges, and

obligations, including all residual rights and obligations.”

Juv.R. 2(CC). In the case sub judice, appellant is not the

child’s natural or adoptive parent. Thus, the trial court’s

permanent-custody decision did not divest him of any parental

rights, privileges, or obligations. The decision did, however,

effectively confirm the trial court’s earlier decision that

removed the child from appellant’s legal custody and placed the

child in appellee’s temporary custody. Consequently, although

appellant’s parental rights were not at stake, appellant

previously had been named one of the child’s legal custodians.

Thus, we must determine whether the trial court’s permanent-

custody decision adversely affected any of appellant’s rights as

the child’s former legal custodian.

{¶21} R.C. 2151.011(B)(21) defines “[l]egal 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
ADAMS, 23CA1177 11

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.” See also Juv.R. 2(X). Additionally, legal

custody “is intended to be permanent in nature.” R.C.

2151.42(B).

{¶22} Nonparents who seek to obtain legal custody of a child

must follow the procedure set forth in R.C. 2151.353(A)(3).

This statute provides that a trial court may award legal custody

of a child to “either parent or to any other person who, prior

to the dispositional hearing, files a motion requesting legal

custody of the child or is identified as a proposed legal

custodian in a complaint or motion filed prior to the

dispositional hearing by any party to the proceedings.” See

also Juv.R. 34(D)(3).

The statute also provides:

A person identified in a complaint or motion filed
by a party to the proceedings as a proposed legal
custodian shall be awarded legal custody of the child
only if the person identified signs a statement of
understanding for legal custody that contains at least
the following provisions:
(a) That it is the intent of the person to become
the legal custodian of the child and the person is able
to assume legal responsibility for the care and
supervision of the child;
(b) That the person understands that legal custody
ADAMS, 23CA1177 12

of the child in question is intended to be permanent in
nature and that the person will be responsible as the
custodian for the child until the child reaches the age
of majority. Responsibility as custodian for the child
shall continue beyond the age of majority if, at the
time the child reaches the age of majority, the child is
pursuing a diploma granted by the board of education or
other governing authority, successful completion of the
curriculum of any high school, successful completion of
an individualized education program developed for the
student by any high school, or an age and schooling
certificate. Responsibility beyond the age of majority
shall terminate when the child ceases to continuously
pursue such an education, completes such an education,
or is excused from such an education under standards
adopted by the department of education and workforce,
whichever occurs first.
(c) That the parents of the child have residual
parental rights, privileges, and responsibilities,
including, but not limited to, the privilege of
reasonable visitation, consent to adoption, the
privilege to determine the child’s religious
affiliation, and the responsibility for support;
(d) That the person understands that the person
must be present in court for the dispositional hearing
in order to affirm the person's intention to become legal
custodian, to affirm that the person understands the
effect of the custodianship before the court, and to
answer any questions that the court or any parties to
the case may have.

{¶23} Courts have held that a legal custodian does not have

standing to appeal a trial court’s permanent-custody decision to

the extent that it terminates the biological parents’ parental

rights. E.g. In re Ez.D., 8th Dist. Cuyahoga No. 110447, 2021-

Ohio-3041, ¶ 117; In re B.C.-1, 4th Dist. Athens No. 14CA43,

2015-Ohio-2720, ¶ 32, citing In re Matthews, 3rd Dist. Marion

Nos. 9–07–28, 9–07–29, and 9–07–34, 2008–Ohio–276, ¶ 23 (non-
ADAMS, 23CA1177 13

biological father lacked standing to appeal permanent custody

decision pertaining to non-biological child); In re A.L.A., 11th

Dist. Lake Nos., 2011–L–20 and 2011–L–21, 2011–Ohio–3124, ¶ 2,

citing In re Neff, 3rd Dist. Allen No. 1–78–9, *2 (June 14,

1978) (step-father lacked standing to appeal trial court’s

custody decision). However, some courts have determined that

legal custodians may appeal a permanent-custody decision “as it

relates to [their] request to maintain legal custody of [the

child] and the termination of [their] rights as legal

custodian.” In re E.E.D., 2022-Ohio-4014, 200 N.E.3d 738, ¶ 49

(8th Dist.), citing In re C & C, 1st Dist. Hamilton No. C-

220358, 2022-Ohio-3751, ¶ 21. These courts thus limit a legal

custodian’s appeal of a permanent-custody decision to the trial

court’s “denial of [the custodian’s] request to maintain legal

custody of [the child] and the termination of [the custodian’s]

rights as legal custodian.” Id.

{¶24} Nonparents who do not file a motion to request legal

custody of an adjudicated abused, neglected, or dependent child

do not, however, have standing to appeal a trial court’s

decision to grant a children services agency permanent custody

of the child. E.g., In re K.F., 12th Dist. Clermont No. CA2020-

10-061, 2021-Ohio-1183, ¶ 74 (because nonparents did not file

legal-custody motions, the issue was not before the trial court
ADAMS, 23CA1177 14

and also not before the appellate court); In re A.B., 2018-Ohio-

4206, 114 N.E.3d 421, ¶ 5 (6th Dist.) (“a nonparent who never

moved to intervene nor moved for legal custody cannot appeal a

permanent custody award”), citing In re Titionna K., 6th Dist.

Lucas No. L-06-1232, 2007-Ohio-1861, ¶ 5; In re J.P., 12th Dist.

Butler Nos. CA2015–08–160 and CA2015–08–161, 2016–Ohio–7, ¶ 8

(nonparent who seeks legal custody of a child must file a motion

for legal custody pursuant to R.C. 2151.353(A)(3)); In re

L.R.T., 12th Dist. Butler Nos. CA2005-03-071 and CA2005-04-082,

2006-Ohio-207, ¶ 17 (“[b]ecause appellee failed to file a motion

requesting legal custody of L.R.T. at least seven days before

the dispositional hearing, the trial court erred as a matter of

law in awarding legal custody to her,” and noting that

compliance with procedural requirements of R.C. 2151.353 and

Juv.R. 34 “is mandatory”).

{¶25} In the case sub judice, after the child’s May 6, 2021

removal from appellant’s home and placement in the agency’s

temporary custody, appellant did not file a motion for legal

custody or a statement of understanding to ask the court to

return the child to his legal custody. Appellant’s legal status

as the child’s legal custodian effectively ended in May 2021,

when the court placed the child in appellee’s temporary custody.

{¶26} We also note that “an adjudication that a child is
ADAMS, 23CA1177 15

neglected or dependent, followed by a disposition awarding

temporary custody to a public children services agency pursuant

to R.C. 2151.353(A)(2) constitutes a ‘final order’ for purposes

of R.C. 2505.02 and is appealable to the court of appeals

pursuant to R.C. 2501.02.” In re Murray, 52 Ohio St.3d 155,

161, 556 N.E.2d 1169 (1990). Furthermore, “an appeal of an

adjudication order of abuse, dependency, or neglect of a child

and the award of temporary custody to a children services agency

pursuant to R.C. 2151.353(A)(2) must be filed within 30 days of

the judgment entry pursuant to App.R. 4(A).” In re H.F., 120

Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 18.

{¶27} In the case sub judice, the trial court’s May 2021

order that granted ACCS temporary custody does not contain any

notification that it was a final order, and the record does not

contain any other order, filed before the court’s September 19,

2023 decision, that states it is a final order. For this

reason, the trial court’s May 6, 2021 order, and its subsequent

orders that continued the child in appellee’s temporary custody,

are interlocutory orders that merged into the trial court’s

final order in the case. Navistar, Inc. v. Testa, 143 Ohio

St.3d 460, 2015-Ohio-3283, 39 N.E.3d 509, ¶ 38, quoting Grover

v. Bartsch, 170 Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547,

¶ 9 (“‘Interlocutory orders * * * are merged into the final
ADAMS, 23CA1177 16

judgment,’ with the result that ‘an appeal from the final

judgment includes all interlocutory orders merged with it’”).

{¶28} Consequently, the final order in this case is the

court’s decision to grant appellee permanent custody.

Therefore, we believe that appellant has standing to argue that

a change in circumstances did not occur to warrant the child’s

removal from his legal custody. However, because appellant did

not file a motion for legal custody of the child or a statement

of understanding, appellant lacks standing to challenge the

trial court’s decision to place the child in appellee’s

permanent custody.

B

{¶29} Additionally, we observe that although appellant filed

some objections to the magistrate’s decision, he did not object

to the magistrate’s decision based upon an alleged lack of a

change in circumstance under R.C. 2151.42(B). Instead,

appellant generally asserted that the magistrate’s decision is

against the manifest weight of the evidence and the decision

“fails to establish facts on which a decision may be based.”

The juvenile rules require an objecting party to (1) file

written objections to a magistrate’s decision within 14 days of

the decision, (2) state with specificity and particularity all
ADAMS, 23CA1177 17

grounds for objection, and (3) support objections to a

magistrate’s factual finding with a transcript of the evidence

submitted to the magistrate or an affidavit of evidence if a

transcript is unavailable. Juv.R. 40(D)(3)(b)(i)-(iii).

{¶30} Moreover, the juvenile rules prevent a party from

assigning “as error on appeal the court’s adoption of any

factual finding or legal conclusion * * * unless the party has

objected to that finding or conclusion as required by Juv.R.

40(D)(3)(b).” Juv.R. 40(D)(3)(b)(iv). This rule “embodies the

long-recognized principle that the failure to draw the trial

court’s attention to possible error when the error could have

been corrected results in a waiver of the issue for purposes of

appeal.” In re Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d 694

(1st Dist. 1998). Thus, under Juv.R. 40(D)(3)(b)(iv), a party

who does not properly object to a magistrate’s decision waives

all but plain error. See State ex rel. Neguse v. McIntosh, 161

Ohio St.3d 125, 2020-Ohio-3533, 161 N.E.3d 571, ¶ 9, quoting

Civ.R. 53(D)(3)(b)(iv) (“failure to object to the magistrate’s

decision bars [appellant] from ‘assign[ing] as error on appeal

the court’s adoption of any factual finding or legal conclusion’

of the magistrate,” and appellate review is therefore limited to

plain error); Tucker v. Hines, 10th Dist. Franklin No. 18AP-375,

2020-Ohio-1086, ¶ 6 (“party who fails to timely object to a
ADAMS, 23CA1177 18

magistrate’s decision is limited by operation of Juv.R.

40(D)(3)(b)(iv) to claims of plain error on appeal”); In re

Z.A.P., 177 Ohio App.3d 217, 2008-Ohio-3701, 894 N.E.2d 342, ¶

15 (4th Dist.).

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

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

deviation from a legal rule’” occurred, (2) the error was “‘an

“obvious” defect in the trial proceedings,’” and (3) 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.”).

{¶32} 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
ADAMS, 23CA1177 19

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; 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 v. Ohio Dept. of Nat. Resources,

144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 28, quoting

Sizemore v. Smith, 6 Ohio St.3d 330, 332, 453 N.E.2d 632 (1983),

fn. 2; 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
ADAMS, 23CA1177 20

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.

{¶33} In the case sub judice, appellant did not object to

the magistrate’s decision based upon a lack of a change in

circumstances. Thus, the trial court did not have an

opportunity to review the legal issue that appellant now raises

on appeal, i.e., the trial court erred by removing the child

from his legal custody because a change in circumstances had not

occurred. Appellant could have raised this argument at any

point after May 6, 2021, when the trial court initially removed

the child from his legal custody. He did not. Consequently,

appellant has forfeited all but plain error. Juv.R.

40(D)(3)(b)(iv). Appellant did not raise a plain-error argument

on appeal, however. This court ordinarily declines to develop a

plain-error argument for an appellant who fails to do so. State

v. Dailey, 4th Dist. Adams No. 18CA1059, 2018-Ohio-4315, ¶ 23,

citing Redmond v. Wade, 4th Dist. Lawrence No. 16CA16, 2017-

Ohio-2877, ¶ 34, citing State v. Quarterman, 140 Ohio St.3d 464,

2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke,

126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, 78

(O’Donnell, J., concurring in part and dissenting in part),

quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983)
ADAMS, 23CA1177 21

(appellate courts “are not obligated to search the record or

formulate legal arguments on behalf of the parties, because

‘“appellate courts do not sit as self-directed boards of legal

inquiry and research, but [preside] essentially as arbiters of

legal questions presented and argued by the parties before

them”’”); Coleman v. Coleman, 9th Dist. Summit No. 27592, 2015-

Ohio-2500, ¶ 9 (reviewing court will not craft plain-error

argument for an appellant who fails to raise one). Thus,

because appellant did not formulate plain-error argument, we

will not create one. Instead, we simply note that we believe

that the record contains ample evidence to support a finding

that a change in circumstance had occurred. As the trial court

noted, the child reported that sexual abuse occurred in the

Ishmaels’ home. Allegations of sexual abuse committed against

the child in the legal custodians’ home are an appropriate

consideration when a court considers whether a change in

circumstance has occurred. In re Russell, 4th Dist. Washington

No. 98CA525, 1999 WL 606781, *6 (Aug. 4, 1999) (“unsubstantiated

allegations of sexual abuse are a factor that a court may

consider when deciding whether a change in circumstances has

occurred”); accord In re N.C., 5th Dist. Richland No. 20 CA

0004, 2020-Ohio-6929, ¶ 32 (“disclosure of sexual abuse of the

child is ‘a change [that] has occurred in the circumstances of
ADAMS, 23CA1177 22

the child’ and therefore constitutes a change of

circumstances”). Additionally, in March 2022 the child

underwent a pediatric assessment. The assessment report stated

that the child should not have contact with the Ishmaels “as it

would have a negative effect on her progress made.” For these

reasons, we do not believe that the trial court erred, plainly

or otherwise, by (1) determining that a change in circumstance

had occurred, (2) terminating appellant’s status as the child’s

legal custodian, and (3) finding that placing the child in

appellee’s permanent custody is in the child’s best interest.

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

overrule appellant’s sole assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
ADAMS, 23CA1177 23

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 Adams 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.

Smith, P.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.