[Cite as Whitson v. Whitson, 2019-Ohio-4235.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                        JUDGES:
DOLLY WHITSON                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. Patricia A. Delaney, J.
                        Plaintiff-Appellee      :       Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :       Case No. 19CA32
ELIZABETH WHITSON                               :
                                                :
                    Defendant-Appellant         :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Richland County Court of
                                                    Common Pleas, Domestic Relations
                                                    Division, 2018PCU0699


JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             October 10, 2019



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

RICHLAND COUNTY PROSECUTOR                          ELIZABETH WHITSON #W-099514
38 S. Park Street – 2nd Floor                       Northeast Reintegration Center
Mansfield, OH 44902-1717                            2675 East 30th Street
                                                    Cleveland, OH 44115
[Cite as Whitson v. Whitson, 2019-Ohio-4235.]


Gwin, P.J.

        {¶1}    Defendant-appellant Elizabeth Whitson [“Mother”] appeals the April 1, 2019

Judgment Entry of the Richland County Court of Common Pleas, Domestic Relations

Division’s decision that dismissed her Counterclaim and certified Plaintiff- Appellee Dolly

Whitson’s [“Paternal Grandmother”] Complaint for Legal Custody to the Richland County

Court of Common Pleas, Juvenile Division pursuant to R.C. 3109.04(D)(2)1.

                                        Facts and Procedural History

        {¶2}    Mother has been in prison since October 2017 on three felony drug

convictions. Father and Mother have three children, S.W. (b. Nov. 27. 2001); L.W. (b.

Dec. 11, 2000); and G.W. (b. Jan. 6, 2004). Father and Mother are married but separated

since approximately 2015.

        {¶3}    Paternal Grandmother filed a Complaint for temporary legal custody and

legal custody of the children on September 7, 2018; and an Amended Complaint for

temporary legal custody and legal custody of the minor children on September 20, 2018.

This case was initiated because father and grandmother became aware that Mother was

incarcerated and had left the children in the care of friends.

        {¶4}    Paternal Grandmother was granted temporary legal custody of the minor

children pursuant to an Ex Parte Order filed on September 7, 2018. Mother filed an

Answer and Counterclaim for Legal Custody on October 2, 2018, stating in relevant part,

                4. The children have visited with me regularly during my term of

        incarceration. I am requesting this court to allocate parental right and

        responsibilities, such that I can maintain my visitation and parenting time


        1 Appellee did not file a Brief in this Court. The father of the children did not appear in the lower
court proceedings either in person or through counsel.
Richland County, Case No. 19CA32                                                         3


      with my children, along with telephone calls, letters, cards, email, and other

      forms of permitted communication.

             5. I do not want the court to grant Permanent Custody of my children

      to Dolly Whitson. Prior to my incarceration the Plaintiff, Dolly Whitson, lived

      in Columbus, Ohio.       My husband, James Scott Whitson, the other

      defendant, and I were separated prior to my incarceration. After I came to

      prison Dolly Whitson and James Scott Whitson moved into the house I lived

      in with my children and have lived there to maintain the status quo for the

      children's living arrangements. I desire to participate in the proceedings

      regarding the custody of my children and have filed along with this

      Answer/Counterclaim a Motion to Convey for the Court's consideration.

      {¶5}   Prior to their separation, Father and Mother, along with their children,

resided together in the home located on Reed Street, Mansfield, Ohio.              Paternal

Grandmother owns the home. She purchased it approximately 11 years ago specifically

so that her son and his family could reside in it. Although having lived separate and apart

for the last couple of years, Mother and Father are still legally married. Soon after

becoming aware of Mother's incarceration, Father and Paternal Grandmother moved into

the Mansfield home to care for the children.

      {¶6}   On October 2, 2018, Mother filed a “Motion for Order to Convey or to Appear

by Video, Telephone, Skype and/or an Alternative Method Acceptable to the Court.” By

Judgment Entry filed October 8, 2018, the trial court overruled Mother’s request to attend

the hearings in person; however, the Court allowed Mother to participate in pre-trial

hearings by telephone. The Court noted that the Court does not have real-time video or
Richland County, Case No. 19CA32                                                        4


Skype capabilities. However, the trial court would permit Mother to conduct a videotape

deposition for admission during the trial.

       {¶7}       By Magistrate’s Order filed November 27, 2018, the court ordered that a

Home Investigation be done.

       {¶8}       By scheduling entry filed February 11, 2019, the case was set for a two-

hour trial on March 21, 20192. In the Judgment Entry filed April 1, 2019, the trial court

made the following findings,

                  The home investigator visited the home on January 23, 2019. She

       observed that the home was clean, except for one upstairs bedroom that

       houses a dying dog. The dog urinates and defecates in the room, and the

       waste is not cleaned on a regular basis. The investigator observed a strong

       odor of urine emanating from that room and feces on the floor of the room.

       Sydney and Grace have chosen to sleep in the unfinished cellar of the

       home. The space where the girls sleep is dark, damp and musty. There is

       no heat source other than small, electric space heaters.

                  Father is unemployed and does not have a valid driver's license. He

       is a habitual marijuana user and has been so since the age of 14. He

       smoked marijuana in front of the children frequently in the past but, at the

       time of the investigator's interview, stated that he only smoked marijuana

       outside of the home. The children are aware of his marijuana use and are

       able to tell when he has smoked. Recently, [G.W.], age 15, was caught

       smoking marijuana and admitted that she had been doing so for several


       2   Mother has not provided this Court with a transcript of the trial.
Richland County, Case No. 19CA32                                                          5


      months. Father states he plans to obtain employment outside of Mansfield

      and to relocate. However, at the time of the hearing, he was still residing in

      the home with the children and grandmother. Grandmother stated that she

      would force her son to move out of the home if the Court made that a

      condition of her being awarded legal custody. Father supports legal custody

      being awarded to grandmother.

             Grandmother is 70 years old and retired. She has numerous chronic

      health problems for which she takes 22 daily medications. She has had 10

      different surgical procedures since 2016.        She suffered a stroke while

      driving and failed to report it, or seek any treatment for it, until several days

      later when her son noticed her physical symptoms. She continues to have

      mobility issues and, at the time of this hearing, had an additional surgery

      scheduled.

             Mother is currently incarcerated and is expected to be released in

      October of 2019. Prior to her incarceration, she was selling illegal drugs out

      of the home and in front of the children. Grandmother testified that she

      would exclude mother from the home if the Court so required.

             The investigator is concerned that if mother returns to the home after

      her release, she might resume illegal activities in the presence of the

      children and with their knowledge.

             The Home Investigation, Interview with Children at Father's Home,

      and collateral information were admitted into evidence.             The Home

      Investigator recommended as follows:
Richland County, Case No. 19CA32                                                        6


             "After careful thought and consideration this investigator is of the

      opinion that this case has many dynamics that are of concern and that will

      continue to be of concern in the future. Because of these concerns, this

      investigator feels that this case should be considered for transfer to Juvenile

      Court. This investigator is first concerned with the overall health of Dolly

      Whitson. During the interview it was also discussed that Dolly actually

      suffered a stroke while driving from Columbus to Mansfield and she never

      told anyone about it. It was only discovered several days later when her

      son James noticed physical changes with her. The children are also very

      concerned with Dolly's health and the large amount of drugs she takes daily.

      This investigator is also very worried that James Whitson resides in the

      home, smokes marijuana, and yet continues to parent the kids and enforce

      rules. This has been very difficult for the girls to adjust to after he was

      absent from the home for almost 2 years. There is also the concern that

      once released from prison Elizabeth Whitson would return to the home and

      could possibly return to the illegal world of dealing in drugs.        Even if

      Elizabeth Whitson would avoid any illegal activities it has been reported that

      Elizabeth Whitson and her husband James Whitson would argue and fight

      without ever ceasing. It is also highly suspected that if Elizabeth Whitson

      would not return to this home, the girls including the youngest [G.W.] will do

      everything in their power to be/live with their mom Elizabeth Whitson. At

      this current time, this investigator feels that there are too many concerns
Richland County, Case No. 19CA32                                                         7


      that need follow up to assess how the family is doing and that the kids are

      safe and having their needs met."

      {¶9}   The trial court made the following findings,

             Conclusions of Law

             O.R.C. section 3109.04(D)(2) provides: If the court finds, with respect

      to any child under eighteen years of age, that it is in the best interest of the

      child for neither parent to be designated the residential parent and legal

      custodian of the child, it may commit the child to a relative of the child or

      certify a copy of its findings, together with as much of the record and the

      further information, in narrative form or otherwise, that it considers

      necessary or as the juvenile court requests, to the juvenile court for further

      proceedings, and, upon the certification, the juvenile court has exclusive

      jurisdiction.

             The second paragraph of O.R.C. section 3109.06 provides: In cases

      in which the court of common pleas finds the parents unsuitable to have the

      parental rights and responsibilities for the care of the child or children and

      unsuitable to provide the place of residence and to be the legal custodian

      of the child or children, consent of the juvenile court shall not be required to

      such certification.

             In re Perales (1977), 52 Ohio St.2d 89, provides: "[P]arents may be

      denied custody only if a preponderance of the evidence indicates

      abandonment, contractual relinquishment of custody, total inability to
Richland County, Case No. 19CA32                                                           8


      provide care or support, or that the parent is otherwise unsuitable that is,

      that an award of custody would be detrimental to the child."

             Decision

             The Court has considered all relevant factors, including those set

      forth in O.R.C. section 3109.04(F)(1), in determining the best interest of the

      children.

             The Court finds that it is in the best interest of the children for neither

      parent to be designated the residential parent and legal custodian of them.

      The Court further finds that the parents are unsuitable to have the parental

      rights and responsibilities for the care of the children, and unsuitable to

      provide the place of residence and to be the legal custodian of them. Mother

      is incarcerated. Father is unsuitable due to his drug use, and total inability

      to provide care or support for the children. An award of custody to him

      would be detrimental to the children.

             The Court declines to commit the children to grandmother. She has

      permitted the father to live in the home, and use and be under the influence

      of marijuana in the presence of the children. An award of custody to

      grandmother, without the support of the Juvenile Court, would be

      detrimental to the children.

             The children appear to be dependent, neglected or abused.

             IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that

      Defendant's Counterclaim for Legal Custody is dismissed.
Richland County, Case No. 19CA32                                                            9


              IT IS FURTHER ORDERED that all prior orders of this Court remain

       in full force and effect, until further order of Richland County Juvenile Court.

              IT IS FURTHER ORDERED that grandmother shall immediately

       obtain counseling for [G.W.]

              IT IS FURTHER ORDERED that all issues regarding the allocation

       of parental rights and responsibilities/custody of the minor children, [S.W.]

       (born November 27, 2001) and [G.W.] (born January 6, 2004), are certified

       to the Richland County Juvenile Court for further proceedings.

                                       Assignments of Error

       {¶10} Mother raises three assignments of error,

       {¶11} “I. THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS AND

EQUAL     PROTECTION         RIGHTS      UNDER      THE     FIFTH     AND    FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND THE OHIO

CONSTITUTION BY DETERMINING PARENTAL UNSUITABILITY CONTRARY TO

R.C.   3109.04,     AND WITHOUT         APPELLANT'S       PRESENCE        AND/OR      LEGAL

REPRESENTATION WITHOUT GIVING APPELLANT A RIGHT TO BE HEARD.

       {¶12} “II.   THE    TRIAL    COURT       ERRED      IN   NOT     FOLLOWING         THE

REQUIREMENTS SET OUT IN R.C. 3109.04(D)(2).

       {¶13} “III. THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE AND

VIOLATED HER RIGHTS BY IMPERMISSIBLY RELYING ON THE INVESTIGATOR'S

REPORT WITHOUT COMPLYING WITH THE REVISED CODE AND CIVIL RULES.”
Richland County, Case No. 19CA32                                                        10

       Pro se Appellants

       {¶14} We understand that Mother has filed this appeal pro se. Nevertheless, “like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).

       {¶15} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),

the Supreme Court noted, “a reviewing court cannot add matter to the record before it

that was not a part of the trial court's proceedings, and then decide the appeal on the

basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”

It is also a longstanding rule "that the record cannot be enlarged by factual assertions in

the brief.” Dissolution of Doty v. Doty, 4th Dist.No. 411, 1980 WL 350992 (Feb. 28, 1980),

citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d

227(1963). New material and factual assertions contained in any brief in this court may

not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858

N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843

N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in Mother’s brief

that are outside of the record.

       {¶16} In the interests of justice, we shall attempt to consider Appellant’s

assignments of error.

       Failure to File Transcript with the Trial Court
Richland County, Case No. 19CA32                                                            11


       {¶17} We first must address Mother’s failure to present a transcript of the March

21, 2019 hearing in the trial court.

       {¶18} Because the transcript of the proceeds has not been filed with this Court for

purposes of appeal, it does not constitute part of the record on appeal. See App.R. 9(A).

When an appeal is filed without a transcript, reviewing courts generally presume the

regularity of that proceeding. State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs.,

127 Ohio St.3d 202, 2010–Ohio–5073, 937 N.E.2d 1274, ¶ 14.

       {¶19} In the case at bar, Mother has not provided this court with a transcript of the

March 21, 2019 hearing. Absent a complete transcript, we are unable to review the facts

underlying the trial court’s decision to dismiss her Counterclaim and certify the decision

to the juvenile court.

       {¶20} In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d

384(1980), the Supreme Court of Ohio held the following,

              The duty to provide a transcript for appellate review falls upon the

       appellant. This is necessarily so because an appellant bears the burden of

       showing error by reference to matters in the record. See State v. Skaggs

       (1978), 53 Ohio St. 2d 162. This principle is recognized in App.R. 9(B),

       which provides, in part, that ‘ * * *the appellant shall in writing order from the

       reporter a complete transcript or a transcript of such parts of the

       proceedings not already on file as he deems necessary for inclusion in the

       record.* * *.’ When portions of the transcript necessary for resolution of

       assigned errors are omitted from the record, the reviewing court has nothing

       to pass upon and thus, as to those assigned errors, the court has no choice
Richland County, Case No. 19CA32                                                          12


       but to presume the validity of the lower court's proceedings, and affirm.”

       (Footnote omitted.)

Id. at 199, 400 N.E.2d 384.

       {¶21} In Robinson v. Custom Sports Cycle, this Court noted,

              While significant case law exists which would allow for a free

       transcript for an indigent criminal defendant, (see, e.g., State v. Arrington

       (1975), 42 Ohio St.2d 114, 326 N.E.2d 667; Mayer v. City of Chicago

       (1971), 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372), or a party involved in

       certain parental rights proceedings (see, e.g., State ex rel. Heller v. Miller

       (1980), 61 Ohio St.2d 6, 399 N.E.2d 66), we would concur with the wording

       of the Tenth District Court of Appeals: “While in criminal appeals a single

       copy of the transcript must be prepared at government expense and filed

       with the court for those who are demonstrated to be indigent, no similar

       responsibility must be borne by the government in the appeal of civil cases.”

       Duff v. Ohio Dept. of Rehabilitation and Correction (June 30, 1992), Franklin

       App. No. 92AP-146, unreported, at 1

5th Dist. Stark No. 1998CA00331, 1999 WL 254504 (Apr. 19, 1999). An indigent parent’s

right to a transcript at state expense is limited to cases involving the permanent

termination of parental rights; no right exists in an appeal from an order of temporary legal

custody. In the Matter of E.J., 12th Dist. Warren No. CA2014-07-098, 2015-Ohio-731, at

*5; In the Matter of A.P., 10th Dist. Franklin No. 14AP-23, 2014-Ohio-5244, ¶18.

       {¶22} If such transcripts were unavailable, other options were available to Mother

in order to supply this Court with a transcript for purposes of review. Specifically, under
Richland County, Case No. 19CA32                                                                   13


App.R. 9(C), appellant could have submitted a narrative transcript of the proceedings,

subject to objections from appellee and approval from the trial court. Also, under App.R.

9(D), the parties could have submitted an agreed statement of the case in lieu of the

record. The record in this matter indicates Mother did not attempt to avail herself of either

App.R. 9(C) or 9(D).

                                                  I., II. & III.

        {¶23} Mother’s three assignments of error evidence a confusion on her part

between “legal” custody” and “permanent custody.”

        Legal Custody.

        {¶24} In the case below, Paternal Grandmother filed a complaint requesting temporary

legal custody of the three children. Mother filed an answer and a counterclaim to the complaint.

        {¶25} Importantly, the award of legal custody is “not as drastic a remedy as permanent

custody.” In re L.D., 10th Dist. No. 12AP–985, 2013–Ohio–3214, ¶ 7 [emphasis added]. See also

In re N.F., 10th Dist. No. 08AP–1038, 2009–Ohio–2986, ¶ 9. This is because the award of legal

custody does not divest parents of their residual parental rights, privileges, and responsibilities. In

re C.R., 108 Ohio St.3d 369, 2006–Ohio–1191, 843 N.E.2d 1188, ¶ 17. Therefore, since the

granting of legal custody does not divest a parent of his or her fundamental parental rights, the

parent can petition the court for a custody modification in the future. In re L.D. at ¶ 7.

        {¶26} R.C. 2151.011(B)(19) defines “legal custody” as “a legal status that vests in

the custodian the right to have physical care and control of the child and to determine

where and with whom the child shall live, and the right and duty to protect, train, and

discipline the child and to provide the child with food, shelter, education, and medical

care, all subject to any residual parental rights, privileges, and responsibilities.” In re
Richland County, Case No. 19CA32                                                          14

C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 15(2006). “Residual

parental rights, privileges, and responsibilities” means those rights, privileges, and

responsibilities remaining with the natural parent after the transfer of legal custody of the

child, including, but not necessarily limited to, the privilege of reasonable visitation,

consent to adoption, the privilege to determine the child's religious affiliation, and the

responsibility for support. R.C. 2151.011(B)(48).

       {¶27} In addition, R.C. 2151.011(B)(52) defines “temporary custody” as “legal

custody of a child who is removed from the child's home, which custody may be

terminated at any time at the discretion of the court * * *.” In re C.R., 108 Ohio St.3d 369,

2006-Ohio-1191, 843 N.E.2d 1188, ¶ 16 (2006). The important distinction is that an

award of legal custody of a child does not divest parents of their residual parental rights,

privileges, and responsibilities. See R.C. 2151.011(B)(19) and In re Hockstok, 98 Ohio

St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 8, fn. 1. In the future, then, in this case,

either parent may petition the court for a modification of custody. In Re Hockstok. at ¶

36.

       {¶28} Hockstok did not involve an abused, neglected, or dependent child and

arose from a private custody dispute originating in the domestic relations court pursuant

to R.C. 3109.04. There, the Supreme Court said: “[A] trial court must make a parental

unsuitability determination on the record before awarding legal custody of the child to the

nonparent.” Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, syllabus.

       {¶29} A juvenile court adjudication of abuse, neglect, or dependency is a

determination about the care and condition of a child and implicitly involves a

determination of the unsuitability of the child's custodial and/or noncustodial parents. It
Richland County, Case No. 19CA32                                                           15


does not, however, permanently foreclose the right of either parent to regain custody,

because it is not a termination of all residual parental rights, privileges, and

responsibilities, and therefore a motion for a change of custody could be filed in a proper

case in accordance with law. See R.C. 2151.42. In re C.R., 108 Ohio St.3d 369, 2006-

Ohio-1191, 843 N.E.2d 1188, ¶ 23 (2006).

       {¶30} We must be mindful of the “ * * * elementary proposition of law that an

appellant, in order to secure reversal of a judgment against him, must not only show some

error but must also show that that error was prejudicial to him.” See Smith v. Flesher, 12

Ohio St. 2d 107, 233 N.E. 2d 137(1967); State v. Stanton, 15 Ohio St.2d 215, 217, 239

N.E.2d 92, 94(1968); Wachovia Mtg. Corp. v Aleshire, 5th Dist. Licking App. No. 09 CA

4, 2009-Ohio-5097 at ¶16. See, also, App.R. 12(D).

       {¶31} It is with these concepts in mind that we shall review Mother’s Assignments

of Error.

                                                 I.

       {¶32} In her First Assignment of Error, Mother contends that the trial court’s denial

of her right to be present for the final trial violated her constitutional rights. Mother also

argues the trial court denied her right to counsel.

       {¶33} Mother’s contentions are overbroad. At no time did Mother request the trial

court appoint her counsel. Whether an inmate should be brought to court to personally

argue his case in a civil matter depends upon the particular and unique facts and

circumstances of each case. Mills v. Mills, 10th Dist. No. 10AP–495, 2011–Ohio–2848,

¶ 12 citing Tolliver v. Liberty Mut. Group, 10th Dist. No. 04AP–226, 2004–Ohio–6355, ¶

8. In Mancino v. Lakewood, 36 Ohio App.3d 219, 221, 523 N.E.2d 332 (8th Dist.1987),
Richland County, Case No. 19CA32                                                          16


the Eighth District set forth the following criteria to be weighed in making this

determination:

              * * * (1) whether the prisoner’s request to be present at trial reflects

       something more than a desire to be temporarily freed from prison; (2)

       whether he is capable of conducting an intelligent and responsive argument;

       (3) the cost and convenience of transporting the prisoner from his place of

       incarceration to the courthouse; (4) any potential danger or security risk the

       prisoner’s presence might pose; (5) the substantiality of the matter at issue;

       (6) the need for an early resolution of the matter; (7) the possibility and

       wisdom of delaying the trial until the prisoner is released; (8) the probability

       of success on the merits; and (9) the prisoner’s interest in presenting his

       testimony in person rather than by deposition.

Id. at paragraph two of the syllabus.

       {¶34} In her motion filed October 2, 2018, Mother asked the Court to permit her

to attend the trial via Skype, real-time video or telephone. Mother concluded her request

with the following:

              Mother requests the Court accommodate her incarceration and allow

       her to move forward with this custody counterclaim and to participate by

       whatever method is acceptable to the Court.

       {¶35} By Judgment Entry filed October 8, 2018, the trial court permitted Mother to

participate in the pre-trial hearings by telephone. The Court noted that it did not have the

technical capabilities to permit real-time video or Skype participation. The court noted the

factors set forth in Mancino and concluded, “…no compelling reason for the [Mother’s]
Richland County, Case No. 19CA32                                                         17


testimony was present in this case.” Rather, the Court determined that her interests could

be protected by submitting a video deposition as authorized by Civ.R.30 (B)(3).

       {¶36} We find any error in not conveying Mother to the March 21, 2019 final

hearing did not affect Mother’s substantial rights and was therefore harmless beyond a

reasonable doubt.

       {¶37} The complaint filed in this case did not request permanent custody. Mother,

in her Answer and Counterclaim requested that the court not grant permanent custody to

the Paternal Grandmother. The trial court did not grant permanent custody to the Paternal

Grandmother. In the case at bar, the trial court did not permanently divest Mother of all

of her parental rights; rather the court certified the case to the juvenile court under R.C.

2151 “for further proceedings.” R.C. 3109.04(D)(2).

       {¶38} Because Mother has been incarcerated since October 2017, Mother is not

in a position to provide a home, food, medical care, schooling, clothing or any other

necessity to the children. It is beyond dispute that the children cannot presently live with

the Mother. Residual parental rights include the right to reasonable visitation. Mother

remains free to petition the juvenile court upon her release and seek a return of legal

custody of the children.

       {¶39} In short, Mother fails to indicate how she has been prejudiced by the trial

court’s actions or that the result of the proceedings would have been different had she

been permitted to attend the final hearing.

       {¶40} Mother’s First Assignment of Error is overruled.
Richland County, Case No. 19CA32                                                           18


                                              II. & III.

       {¶41} In her Second Assignment of Error, Mother argues that the trial court erred

by making a finding that she was unsuitable to retain legal custody of the children. In her

Third Assignment of Error, Mother contends that the trial court erred by relying on the

written report of the Home Investigator when the investigator failed to interview Mother

and Mother had no opportunity to cross-examine the Investigator.

       {¶42} In the case at bar, the trial court did not permanently divest Mother of all of

her parental rights; rather the court certified the case to the juvenile court under R.C. 2151

“for further proceedings.” R.C. 3109.04(D)(2).

       {¶43} Because Mother has been incarcerated since October 2017, Mother is not

in a position to provide a home, food, medical care, schooling, clothing or any other

necessity to the children. It is beyond dispute that the children cannot presently live with

the Mother. Residual parental rights include the right to reasonable visitation. Mother

remains free to petition the juvenile court upon her release and seek a return of legal

custody of the children. It is therefore beyond dispute that Mother is unsuitable at the

present time to obtain care, custody and placement of the children.

       {¶44} In short, Mother fails to indicate how she has been prejudiced by the trial

court’s finding of unsuitability. Mother has also failed to elucidate how the result of the

proceedings would have been different had she been interviewed by the home

investigator or allowed to cross-examine said investigator.

       {¶45} We find any error in the Home Investigator not interviewing Mother, Mother

not cross-examining said investigator and the trial court’s finding Mother unsuitable did
Richland County, Case No. 19CA32                                                  19


not affect Mother’s substantial rights and was therefore harmless beyond a reasonable

doubt.

         {¶46} Mother’s Second and Third Assignments of Error are overruled.

         {¶47} The judgment of the Richland County Court of Common Pleas, Domestic

Relations division is affirmed.




By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
