[Cite as In re H.W., 2017-Ohio-7391.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN THE MATTER OF: H.W.                     :       JUDGES:
                                           :       Hon. Patricia A. Delaney, P.J.
                                           :       Hon. William B. Hoffman, J.
                                           :       Hon. Earle E. Wise, Jr., J.
                                           :
                                           :
                                           :       Case No. 2016 AP 10 0050
                                           :
                                           :       OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Juvenile Division,
                                                   Case No. 15 JN 00166



JUDGMENT:                                          Affirmed in Part, Reversed in Part
                                                   and Remanded




DATE OF JUDGMENT:                                  August 28, 2017



APPEARANCES:

For Plaintiff-Appellee                             For Appellant-Mother

JEFF M. KIGGANS                                    BARABARA J. ROGACHEFSKY
Tuscarawas County JFS                              12 East Exchange Street, 5th Floor
389 16th Street, S.W.                              Akron, OH 44308
New Philadelphia, OH 44663
                                                   RYAN WHITE, Pro Se
GERRIT DENHEIJER                                   Father of H.W.
Guardian Ad Litem                                  912 Ohio Street
222 W. Main Street                                 Zanesville, OH 43701
Ravenna, OH 44266
Tuscarawas County, Case No. 2016 AP 10 0050                                              2

Wise, J.

       {¶1} Appellant-mother, Alicia Borden (Mother), appeals the trial court's grant of

legal custody of H.W to H.W’s father Ryan White (Father). Appellee is the Tuscarawas

County Department of Job and Family Services (TDJFS).

FACTS AND PROCEDURAL HISTORY

       {¶2} Mother and Father are the biological parents of H.W. H.W. lived with Mother

prior to the allegations against mother in this matter, and Father was not exercising

parenting time.

          {¶3} This case began in May 2015 when then seven year-old H.W appeared at

school with a slap mark and bruising on his face, a mark on his foot, and older bruises on

his back. H.W was seen at Akron Children’s Hospital where H.W’s account of physical

abuse by Mother was substantiated. Mother denied any abuse. Jared Giesey, who is the

father of Mother’s second child, X.G, took emergency custody of both H.W and X.G on

May 14, 2015.

       {¶4} On June 19, 2015, a shelter care hearing was held. Mother was notified of the

hearing, but failed to appear. The trial court granted temporary custody of the children to

their respective fathers – H.W to Father and X.G to Giesey.

       {¶5} On June 22, 2015, TCJFS filed a complaint of abuse, neglect and

dependency, and a proposed case plan. Mother and Father stipulated to the complaint at

the adjudication held the same day, and temporary custody of H.W was continued with

Father.

       {¶6} The case continued with H.W in Father’s custody, and with case plan services

provided to both Mother and Father. Per the case plan, Father completed a psychological
Tuscarawas County, Case No. 2016 AP 10 0050                                              3


assessment with Dr. Gary Wolfgang, and provided H.W with adequate basic needs,

medical, dental, counseling, and educational needs for more than a year. Mother also

engaged in counseling, parenting, and anger management classes as directed. In

October, 2015, Mother was granted supervised visitation.

         {¶7} On August 31, 2016, the matter proceeded to an evidentiary hearing pursuant

to TCJFS’s motion to terminate protective supervision and close the case with Father

maintaining custody of H.W. On September 19, 2016, the trial court issued its judgment

entry granting custody of H.W. to Father and terminating protective supervision by

TCJFS.

         {¶8} It is from this decision Mother now appeals. She presents four assignments of

error:

                                                  I

         {¶9} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED

CUSTODY TO FATHER WITHOUT A REPORT AND/OR TESTIMONY FROM THE GAL

AS TO HIS INVESTIGATION, WISHES OF THE CHILD AND RECOMMENDATIONS AS

TO THE CHILD'S BEST INTERESTS."

                                                 II

         {¶10} "THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

ADDRESS MOTHER'S RESIDUAL PARENTAL RIGHTS TO COMPANIONSHIP TIME."

                                                 III

         {¶11} "THE TRIAL COURT ERRED IN NOT ENTERING FINDINGS OF FACT AS

REQUIRED UNDER R.C. 2151.419(B)(1)."
Tuscarawas County, Case No. 2016 AP 10 0050                                                 4


                                                 IV

       {¶12} "THE TRIAL COURT EXHIBITED BIAS, FAILED TO ACT AS AN

IMPARTIAL ARBITER AND INTERFERED AS AN ADVOCATE DENYING THE

APPELLANT A FAIR TRIAL."

                                                  I

       {¶13} Mother first argues the trial court abused its discretion when it granted

custody to Father without a report or testimony from the guardian ad litem (GAL) as

required by Sup.R. 48. We disagree.

       {¶14} As an initial matter, Mother failed to object to the lack of a GAL report. She

has therefore forfeited all but plain error. Civil plain error is defined in Goldfuss v.

Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099, 1997-Ohio-401, syllabus, as “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.” The Goldfuss court at ¶121, explained the following:



              The plain error doctrine originated as a criminal law concept. In

       applying the doctrine of plain error in a civil case, reviewing courts must

       proceed with the utmost caution, limiting the doctrine strictly to those

       extremely rare cases where exceptional circumstances require its

       application to prevent a manifest miscarriage of justice, and where the error

       complained of, if left uncorrected, would have a material adverse effect on

       the character of, and public confidence in, judicial proceedings.
Tuscarawas County, Case No. 2016 AP 10 0050                                                5


       {¶15} Sup.R. 48 sets forth appointment procedures, report requirements, and roles

and responsibilities for GALs. As noted by Mother, the Rules of Superintendence do not

carry the force of statutory or case law, and create no substantive rights. Allen v. Allen,

11th Dist. Trumbull No.2009-T-0070, 2010-Ohio-475 ¶ 31. Because Sup.R. 48 is a

general guideline that does not have the force of statutory law, Mother does not have any

substantive right to enforce it. Rice v. Rice, 5th Dist. No. 10 CA F 11 0091, 2011-Ohio-

3099, ¶ 40.

       {¶16} Moreover, as noted by Appellee, the GAL was present at the evidentiary

hearing and questioned witnesses. Mother had every opportunity to call the GAL as a

witness, but failed to do so. Further, an examination of the record does not reveal a

situation wherein plain error should apply. At the evidentiary hearing, Father testified that

when H.W was placed with him, H.W was a year behind in school, behind on his vaccines,

and in need of $1500.00 of dental work. Father remedied each of these issues, made

sure H.W has engaged in counseling through this matter and provided stable housing for

H.W. Mother did not dispute any of Father’s testimony. TCJFS case worker Stacia

Stevens testified she met with H.W. monthly in Father’s home and found nothing

concerning in the home. T. at 5, 8-11, 22, 55-56.

       {¶17} Dr. Wolfgang, the psychologist who conducted Fathers psychological

evaluation testified that he found no evidence that Father suffered from post-traumatic

stress disorder due to Father’s military service in Iraq and Afghanistan – the TCJFS’s

main concern in placing H.W. with Father. Dr. Wolfgang further saw no “red flags” that

would indicate further psychological testing was necessary. T. at 15, 37, 43-44.
Tuscarawas County, Case No. 2016 AP 10 0050                                                  6


       {¶18} Meanwhile, while Mother complied with the TCJFS case plan, she has had

three residences in one year, and her psychological evaluation concluded she requires

long-term intensive anger management. Further, Mother continued to deny she had

abused H.W. and externalized blame for the situation she found herself in. Indeed, during

the hearing Mother alleged that the teacher who reported the abuse did so only because

“I was dating a guy she liked and she wanted him.” Because Mother’s anger issues remain

unresolved, and because her parenting skills have not been resolved to the satisfaction

of the agency, Stevens recommended it was within H.W’s best interest to remain with

Father. T. at 63,-65, 69, 77, 78, 157.

       {¶19} We find no plain error in the grant of custody to Father without a report from

the GAL. The first assignment of error is overruled.

                                                II, III

       {¶20} In her second assignment of error, Mother argues the trial court abused its

discretion when it failed to address her residual parental rights to companionship time. In

her third assignment of error, Mother argues the trial court erred by failing to enter findings

of fact as required under R.C. 2151.419(B)(1), specifically, reasonable efforts findings.

       {¶21} As to Mother’s companionship time argument, TCJFS points out that the

subject is raised briefly at the conclusion of the adjudicatory hearing. While this is

accurate, the conversation on the record does not make clear what the companionship

time arrangement is or if there is one at all. Further, reference is made to a conversation

regarding companionship time that took place off the record. T. at 158-160. The

subsequent judgment entry, however, is silent as to companionship time.
Tuscarawas County, Case No. 2016 AP 10 0050                                           7


      {¶22} As for Mother’s argument regarding a lack of reasonable efforts findings,

R.C. 2151.419 governs hearings on efforts of agencies to prevent removal of children

from homes. Subsection (A)(1) states the following:



             Except as provided in division (A)(2) of this section, at any hearing

      held pursuant to section 2151.28, division (E) of section 2151.31, or section

      2151.314, 2151.33, or 2151.353 of the Revised Code at which the court

      removes a child from the child's home or continues the removal of a child

      from the child's home, the court shall determine whether the public children

      services agency or private child placing agency that filed the complaint in

      the case, removed the child from home, has custody of the child, or will be

      given custody of the child has made reasonable efforts to prevent the

      removal of the child from the child's home, to eliminate the continued

      removal of the child from the child's home, or to make it possible for the

      child to return safely home. The agency shall have the burden of proving

      that it has made those reasonable efforts. If the agency removed the child

      from home during an emergency in which the child could not safely remain

      at home and the agency did not have prior contact with the child, the court

      is not prohibited, solely because the agency did not make reasonable efforts

      during the emergency to prevent the removal of the child, from determining

      that the agency made those reasonable efforts. In determining whether

      reasonable efforts were made, the child's health and safety shall be

      paramount.
Tuscarawas County, Case No. 2016 AP 10 0050                                                   8


       {¶23} Subsection (B)(1) states the following:



              A court that is required to make a determination as described in

       division (A)(1) or (2) of this section shall issue written findings of fact setting

       forth the reasons supporting its determination. If the court makes a written

       determination under division (A)(1) of this section, it shall briefly describe in

       the findings of fact the relevant services provided by the agency to the family

       of the child and why those services did not prevent the removal of the child

       from the child's home or enable the child to return safely home.



       {¶24} The trial court's findings in its September 19, 2016 adjudicatory dispositional

entry, although detailed, do not “briefly describe in the findings of fact the relevant services

provided by the agency to the family of the child and why those services did not prevent

the removal of the child from the child's home or enable the child to return safely home.”

The statute contains mandatory language, thus requiring these findings. In re Kyle, 5th

Dist Tuscarawas No. 2008 AP 01 0002, 2008-Ohio-5892, ¶ 35, In the Matter of B.G, P.G,

& K.G, 5th Dist. Muskingum No. CT2013–0033, 2014-Ohio-409. We therefore remand

the matter for best efforts findings, and for clarification of Mother’s residual parental rights

to companionship time.

                                                   IV

       {¶25} In her final assignment of error, Mother argues the trial court judge

demonstrated bias because it 1) questioned Mother, maternal grandmother, and maternal

aunt more harshly than it questioned Father; 2) because it referenced the psychological
Tuscarawas County, Case No. 2016 AP 10 0050                                            9


evaluations of Mother and Giesey; and 3) because it referenced matters outside the

hearing. We disagree.

      {¶26} As this court noted in State v. Johnson, 5th Dist. Stark No. 2016CA00069,

2016-Ohio-8261¶ 39: “Pursuant to R.C. 2701.03, only the chief justice of the Supreme

Court of Ohio or his or her designee has the authority to determine a claim that a common

pleas court judge is biased or prejudiced.” Citing Stanley v. Ohio State Univ. Med. Ctr.,

10th Dist. No. 12AP-999, 2013-Ohio-5140, ¶ 94. We have no jurisdiction to address

Mother's claim through this appeal.

      {¶27} Therefore, we overrule Mother's final assignment of error.

By Wise, Earle, J.

Delaney, P.J. concur and

Hoffman, J. concurs separately.




EEW/sg 724
Tuscarawas County, Case No. 2016 AP 10 0050                                              10

Hoffman, J., concurring

       {¶28} I concur in the majority’s analysis and disposition of Appellant’s first,

second, and third assignments of error.

       {¶29} I further concur in the majority’s disposition of Appellant’s fourth assignment

of error, but do so for a different reason.

       {¶30} While I agree only the Chief Justice of the Supreme Court of Ohio or his or

her designee has the authority to determine when to order the recusal of a judge, I do not

believe that relieves this Court of the responsibility to review claims of bias or prejudice

occurring during the trial court’s hearing of the case.

       {¶31} That being said, I would overrule Appellant’s fourth assignment of error on

the merits.




                                                  ________________________________
                                                  HON. WILLIAM B. HOFFMAN
