[Cite as In re B.C., 2014-Ohio-2748.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: B.C.                                          C.A. Nos.     26976
                                                                   26977



                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
                                                     CASE No.   DN 10-1-0001

                                 DECISION AND JOURNAL ENTRY

Dated: June 25, 2014



        MOORE, Presiding Judge.

        {¶1}     Teresa D. (“Mother”) and Mark C. (“Father”) appeal from the judgment of the

Summit County Juvenile Court. We affirm in part, reverse in part, and remand this matter for

further proceedings consistent with this opinion.

                                                I.

        {¶2}     On January 5, 2010, Summit County Children Services (“CSB”) filed a complaint

in the trial court alleging that the child B.C. was abused and dependent, and requesting the trial

court to issue temporary legal custody of B.C. to CSB. Thereafter, the trial court found B.C. to

be a dependent child, and ordered that she remain in the emergency custody of CSB until further

disposition. Later, the trial court ordered that B.C. be placed in the temporary custody of CSB,

and it adopted a case plan submitted by CSB.

        {¶3}     Father and Mother each moved for legal custody of B.C., and CSB moved the

court to grant legal custody of B.C. to her maternal aunt (“Aunt”). Thereafter, the trial court
                                                 2


granted a six-month extension of temporary custody to CSB. Later, on August 30, 2011, the

magistrate issued a decision granting legal custody to Aunt, and indicating that a further hearing

would be held to “address visitation, child support, and any other residual parental rights[.]” On

the same date, the trial court adopted the magistrate’s decision and independently entered

judgment. On September 12, 2011, Mother filed objections to the magistrate’s decision. On

December 21, 2011, the trial court issued an order overruling Mother’s objections.

       {¶4}    Thereafter, the magistrate issued a decision addressing child support and

visitation, which was adopted by the trial court. Mother and Father each filed objections to the

magistrate’s decision in regard to the support determination, which the trial court found to have

merit. The trial court remanded the issue of child support to the magistrate. On May 15, 2013,

the magistrate issued a new decision setting child support.          The trial court adopted the

magistrate’s decision the same day, and independently entered judgment. Neither parent filed

objections to the magistrate’s decision. Mother and Father each filed a notice of appeal on June

14, 2013. The parents now each present four assignments of error for our review. We have

consolidated certain assignments of error to facilitate our discussion.

                                                 II.

       {¶5}    Initially, we note that CSB has argued that several of the parents’ assignments of

error are barred by res judicata because the parents were required to raise challenges to the legal

custody determination in a timely appeal from the legal custody order, and, having failed to do

so, are barred from now raising these arguments.

       {¶6}    We first address whether the legal custody order was a final order from which an

appeal could have been taken. Pursuant to Article IV, Section 3(B)(2) of the Ohio Constitution,

Ohio’s courts of appeals “have such jurisdiction as may be provided by law to review and affirm,
                                                 3


modify, or reverse judgments or final orders of the courts of record inferior to the court of

appeals within the district[.]” Under R.C. 2505.02(B)(2), a final order includes “an order that

affects a substantial right made in a special proceeding[.]”

       {¶7}      “Juvenile court proceedings under R.C. Chapter 2151 are special statutory

proceedings.” In re A.P., 196 Ohio App.3d 500, 2011-Ohio-5998, ¶ 7 (9th Dist.), citing In re

D.C., 9th Dist. Summit No. 21008, 2003-Ohio-97, ¶ 8, citing State ex rel. Fowler v. Smith, 68

Ohio St.3d 357, 360 (1994), and Polikoff v. Adam, 67 Ohio St.3d 100, 104 (1993). Legal

custody affects a substantial right. In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, ¶ 11 (“a

parent does have a substantial right in the custody of his or her child”). Therefore, an order

granting legal custody is final order from which an appeal may be taken.                See R.C.

2505.02(B)(2).

       {¶8}      Accordingly, the parents could have filed an appeal of the legal custody

determination from the August 30, 2011 order which adopted the magistrate’s decision and

independently entered judgment, and Mother also could have filed an appeal from the December

21, 2011 order overruling her objections. See Miller v. Miller, 9th Dist. Medina No. 10CA0034-

M, 2011-Ohio-4299.

       {¶9}      Next, we must determine whether the parents were required to raise any

challenges to the legal custody determination within thirty days of the entry of the legal custody

order (or, for Mother, the order overruling Mother’s objections to the legal custody order).

“Generally, an appeal of a judgment or final order must be filed within 30 days from the entry of

the judgment or order.” In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 10, citing App.R.

4(A). Although a party generally must file an appeal within thirty days of a final order pursuant

to App.R. 4(A), an exception to this rule appears in App.R. 4(B)(5), which provides:
                                                  4


        Partial final judgment or order. If an appeal is permitted from a judgment or
        order entered in a case in which the trial court has not disposed of all claims as to
        all parties, other than a judgment or order entered under Civ.R. 54(B), a party
        may file a notice of appeal within thirty days of entry of the judgment or order
        appealed or the judgment or order tha[t] disposes of the remaining claims.
        Division (A) of this rule applies to a judgment or order entered under Civ.R.
        54(B).

(Emphasis added.) The Ohio Supreme Court has addressed App.R. 4(B)(5) in the context of

orders that find a child abused, neglected, or dependent, and in which temporary custody is

granted to Children Services. In re H.F. at ¶ 12. The Court determined that “[f]or App.R.

4(B)(5) to apply, an order must meet two requirements: (1) it must be a final order that does not

dispose of all claims for all parties and (2) it must not be entered under Civ.R. 54(B).” Id. at ¶

12. The Court concluded that orders which find children abused, neglected, or dependent and

which place the children in the custody of the agency were final orders pursuant to In re Murray,

52 Ohio St.3d 155 (1990), syllabus and R.C. 2505.02. In re H.F. at ¶ 9. However, the Court

concluded that these orders were not “partial” final orders because there were no claims

remaining between the parties “following the juvenile court’s adjudication order of neglect,

abuse, and dependency and grant of temporary custody of the two children” to the agency. Id. at

¶ 12.

        {¶10} Here, CSB filed a motion for legal custody to be granted to Aunt. See R.C.

2151.415(A) (requiring children services agency to file a motion prior to expiration of its grant

of temporary custody for further disposition of the child in one of several ways, including a

request that legal custody of the child be granted to a relative).

        {¶11} In its order granting legal custody of B.C. to Aunt, the trial court specifically

indicated that an additional hearing would be held to “address visitation, child support, and any

other residual parental rights[.]”     Therefore, a discrete future action was scheduled on child
                                               5


support and visitation, issues which were left unresolved at the time the court determined legal

custody. In In re H.F., the Court declined to apply App.R. 4(B)(5) where the possibility of

future action arose from the temporary nature of the order and from the juvenile court retaining

jurisdiction over the case because such potential future action did “not involve an active

controversy or claim between the parents and the children services agency.”        Id. at ¶ 16.

However, here, the trial court’s order did not contemplate potential future action, instead it

specifically provided that a hearing would be held to resolve of the active controversy/claim of

visitation and support.

       {¶12} Based upon the foregoing, under the particular facts of this case, we conclude that

the legal custody order was a partial final order within the meaning of App.R. 4(B)(5).

Accordingly, the parents could appeal the legal custody determination “within thirty days of

entry of judgment or order appealed or the judgment or order tha[t] disposes of the remaining

claims.” (Emphasis added.) App.R. 4(B)(5). We stress that our holding is limited to the

particular facts of this case where the trial court specifically provided for a discrete future

hearing to resolve support and visitation.

       {¶13} Thus, the parents were permitted to appeal the legal custody determination within

thirty days of the May 15, 2013 order which disposed of the last active controversy, and their

arguments are not barred.

                            MOTHER’S ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       GRANTING [CSB’S] MOTION FOR LEGAL CUSTODY AND DENYING
       MOTHER’S MOTION FOR LEGAL CUSTODY.

                          MOTHER’S ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       DENYING THE MOTION FOR A 6 MONTH EXTENSION.
                                                 6


       {¶14} In the Mother’s first assignment of error, she argues that the trial court erred in

placing legal custody of B.C. with Aunt. In her second assignment of error, Mother argues that

the trial court abused its discretion in failing to order an additional six-month extension of

temporary custody. We disagree.

       {¶15} Generally, this Court reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-

5232, ¶ 9. However, “[i]n so doing, we consider the trial court’s action with reference to the

nature of the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M,

2009-Ohio-3139, ¶ 18. We review the trial court’s determination of custody for an abuse of

discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997). Moreover, “[t]he decision to

grant or deny an extension of temporary custody is a discretionary one,” and “will be reversed

only upon a finding of an abuse of discretion.” In re S.N., 9th Dist. Summit No. 23571, 2007-

Ohio-2196, ¶ 16, citing In re P.B., 9th Dist. Summit No. 23276, 2006-Ohio-5419, ¶ 38. An

abuse of discretion implies that a trial court was unreasonable, arbitrary, or unconscionable in its

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

       {¶16} In regard to the trial court’s decision to grant legal custody to Aunt, “[a]lthough

there is no specific test or set of criteria set forth in the statutory scheme” for a trial court’s

disposition of legal custody to a relative, “courts agree that the trial court must base its decision

on the best interest of the child.” In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23,

citing In re Fulton, 12th Dist. Butler No. CA2002-09-236, 2003-Ohio-5984, ¶ 11. “[T]he factors

listed in R.C. 2151.414 provide guidance in determining whether a grant of legal custody is in

the best interest of the child[].” In re T.A., 9th Dist. Summit No. 22954, 2006-Ohio-4468, ¶ 17.

R.C. 2151.414(D)(1) provides as follows:
                                                 7


       In determining the best interest of a child at a hearing held pursuant to division
       (A) of this section or for the purposes of division (A)(4) or (5) of section
       2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall
       consider all relevant factors, including, but not limited to, the following:

       (a) The interaction and interrelationship of the child with the child’s parents,
       siblings, relatives, foster caregivers and out-of-home providers, and any other
       person who may significantly affect the child;

       (b) The wishes of the child, as expressed directly by the child or through the
       child’s guardian ad litem, with due regard for the maturity of the child;

       (c) The custodial history of the child, including whether 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, or 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 and, as described in
       division (D)(1) of section 2151.413 of the Revised Code, the child was previously
       in the temporary custody of an equivalent agency in another state;

       (d) 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;

       (e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in
       relation to the parents and child.

       {¶17} In her brief, Mother first argues that she had good visits with the child, which

favored her motion for legal custody. See R.C. 2151.414(D)(1)(a). Next, she points out that

B.C. was not old enough to express an opinion as to her wishes, although the guardian ad litem

recommended legal custody be granted with Aunt. See R.C. 2151.414(D)(1)(b). She further

notes that B.C. was removed from Mother’s care at birth. See R.C. 2151.414(D)(1)(c). She then

argues that there was no proof of a need for legally secure permanent placement at the time of

the legal custody hearing. See R.C. 2151.414(D)(1)(d). Mother maintains that these factors do

not demonstrate that it was in B.C.’s best interest to be placed in Aunt’s legal custody.

       {¶18} However, Mother acknowledges in her brief that CSB focused much of its case on

Mother’s substance abuse. As part of her case plan, Mother completed urine screens which
                                                8


resulted in negative findings until a screen on March 7, 2011, when a specimen was found to be

diluted. CSB then requested a hair follicle test, which Mother completed on July 5, 2011. The

results of the hair follicle test demonstrated medium use, meaning daily or weekend use, of

cocaine during both the last 90 days and during the past 90-180 days. CSB requested Mother to

engage in outpatient treatment, but Mother refused to do so, and the CSB caseworker did not

make a referral for a substance abuse assessment. At the time of trial, Mother both indicated that

she was willing to engage in the assessment if CSB provided a referral, and she disputed the

results of the hair follicle test.

        {¶19} Mother now argues that, assuming she had engaged in illicit drug usage, there was

no evidence that her purported drug usage had an adverse impact on B.C. Therefore, she argues

that this is not a “ground for dependency” and cites In re V.R., 9th Dist. Summit No. 23527,

2008-Ohio-1457, ¶ 20. However, In re V.R. is distinguishable on its facts. In that case, as

Mother appears to recognize, this Court addressed the trial court’s adjudication of a child as

dependent where CSB failed to present clear and convincing evidence that the mother’s

purported alcohol and marijuana use while pregnant adversely affected her baby. Id. at ¶ 14-18.

Unlike In re V.R., we are not reviewing the trial court’s adjudication of the child as dependent.

Instead, we are reviewing the award of legal custody, in which the focus is the best interest of

B.C., not the unsuitability of Mother. In re D.R., 153 Ohio App.3d 156, 2003-Ohio-2852, ¶ 17

(9th Dist.).

        {¶20} Further, here, the trial court did not exclusively rely on Mother’s purported drug

usage to determine that it was in B.C.’s best interest to be placed with Aunt. The court

considered that B.C. has been placed in the home of the Aunt, with whom she has bonded, since

she was born. In addition, CSB found the home to be appropriate. Aunt also had custody of
                                                9


B.C.’s biological brother, and the children had bonded with each other. In addition, although the

parents’ visits with B.C. were appropriate, the visits consisted of only two hours of supervised

visitation per week. CSB had made efforts to increase the amount of visitation, but the parents

had provided various reasons for their inability to increase the visitation. Further, the parents

cancelled their scheduled visitation five times between February and July of 2011 for various

reasons. Also, although the guardian ad litem had testified that the parents had a bond with B.C.,

he testified that the best interest of B.C. was to be placed in Aunt’s legal custody. In addition,

the court concluded that Mother had not effectively dealt with her mental health issues. Mother

had attended counseling, but the court concluded that she had failed to address the

recommendations of the parenting evaluation, and then terminated her counseling, because she

determined that it was no longer necessary.

       {¶21} Based upon the foregoing, we cannot say that the trial court’s decision to grant

legal custody to Aunt was an abuse of discretion. Accordingly, Mother’s first assignment of

error is overruled.

       {¶22} In regard to the trial court’s decision not to provide an additional six-month

extension of temporary custody, “[w]here the trial court finds that it is in the best interest of a

child to be placed in legal custody as a permanent disposition, the trial court must necessarily

deny an extension of temporary custody.” In re C.M., 9th Dist. Summit No. 24380, 2009-Ohio-

943, ¶ 24. Accordingly, as we concluded that the trial court did not err in finding it to be in the

child’s best interest to be placed in Aunt’s legal custody, it did not err in failing to grant an

extension of temporary custody. Accordingly, Mother’s second assignment of error is also

overruled.
                                                10


                          FATHER’S ASSIGNMENT OF ERROR I

       THE JUVENILE COURT AWARD OF LEGAL CUSTODY TO A THIRD
       PARTY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶23} In the Fathers’ first assignment of error, he challenges the trial court’s decision

declining to extend temporary custody of B.C. with CSB.

       {¶24} Juv.R. 40(D)(3)(b)(iv) provides that, “[e]xcept for a claim of plain error, a party

shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion,

whether or not specifically designated as a finding of fact or conclusion of law under Juv.R.

40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Juv.R.

40(D)(3)(b).” Father failed to file objections to the magistrate’s decision pertaining to legal

custody. Therefore, Father has forfeited all but plain error. “While a [litigant] who forfeits such

an argument still may argue plain error on appeal, this [C]ourt will not sua sponte undertake a

plain [ ] error analysis if a [litigant] fails to do so.” Hendy v. Wright, 9th Dist. Summit No.

26422, 2013-Ohio-5786, ¶ 14, quoting State v. Cross, 9th Dist. Summit No. 25487, 2011-Ohio-

3250, ¶ 41, citing State v. Hairston, 9th Dist. Lorain No. 05CA008768, 2006-Ohio-4925, ¶ 11.

As Father has not argued plain error, we decline to engage in a plain error analysis.

       {¶25} Accordingly, Father’s first assignment of error is overruled.

                          FATHER’S ASSIGNMENT OF ERROR II

       THE JUVENILE COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WITH ITS LACK OF REASONABLE EFFORTS FINDINGS PROMOTING
       REUNIFICATION WITH THE FAMILY.

       {¶26} In Father’s second assignment of error, he argues that the trial court committed

reversible and plain error in failing to issue written findings of fact supporting its determination

that reasonable efforts were made to reunify B.C. with her family.
                                                 11


       {¶27} R.C. 2151.419(A)(1) provides that, at a proceeding where a court continues the

removal of a child from the child’s home, it must determine whether CSB has made reasonable

efforts to eliminate the continued removal of the child from her home or made it possible for the

child to return safely home. R.C. 2151.419(B)(1) provides “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.”

       {¶28} However, here, CSB moved the trial court to permit it to bypass the reasonable

efforts requirement as to Father. The magistrate denied the motion, and CSB objected. The trial

court sustained the objection and determined that CSB was not required to make reunification

efforts for Father because he had parental rights involuntarily terminated as to a sibling of B.C.

See R.C. 2151.419(A)(2)(e). Therefore, inasmuch as it relates to Father, the trial court was not

required to make written findings as to reunification efforts.       To the extent that Father is

attempting to argue that the trial court erred in failing to make reasonable efforts findings in

regard to Mother, we cannot discern how Father’s rights were affected by the such a failure. See

In re J.J., 9th Dist. Summit No. 21226, 2002-Ohio-7330, ¶ 36 (parent has standing to challenge

only how the trial court’s decision affected the parent’s rights).

       {¶29} Accordingly, Father’s second assignment of error is overruled.

                         MOTHER’S ASSIGNMENT OF ERROR IV

       THE TRIAL COURT COMMITTED PLAIN ERROR IN ADOPTING THE
       MAGISTRATE’S DECISION THAT CALCULATED THE CHILD SUPPORT
       DEVIATION.

                          FATHER’S ASSIGNMENT OF ERROR III

       THE JUVENILE COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WITH ITS CHILD SUPPORT ORDERS BASED ON THE TESTIMONY AND
       AGREEMENTS BEFORE IT.
                                                   12


        {¶30} In Mother’s fourth assignment of error, and in Father’s third assignment of error,

the parents argue that the trial court erred in its order of child support.

        {¶31} In part, the parties argue that the trial court failed to include in the record a child

support worksheet for Mother and failed to make the determinations and findings required by

R.C. 3119.22 in its order. When ordering child support, R.C. 3113.215 requires the trial court to

use a child support worksheet “identical in content and form to the R.C. 3113.215(E) or (F)

model worksheet[.]” Marker v. Grim, 65 Ohio St.3d 139, 142 (1992). This worksheet “must

actually be completed and made a part of the trial court’s record.” Id. Here, the trial court

attached a worksheet to the order, which identifies Father and Aunt as the parties. However,

although Mother’s name is not on the worksheet, her earnings and relevant child support

information are included on the worksheet under the column titled “Mother[.]” Her annual and

monthly support obligations are calculated along with Father’s on the worksheet. Therefore, to

the extent that the parties argue that the trial court erred in failing to include a worksheet for

Mother, their argument lacks merit.

        {¶32} Next, a calculation of child support “pursuant to the basic child support schedule

and applicable worksheet through the line establishing the actual annual obligation, is rebuttably

presumed to be the correct amount of child support due.” R.C. 3119.03.

        {¶33} Pursuant to R.C. 3119.22:

        The court may order an amount of child support that deviates from the amount of
        child support that would otherwise result from the use of the basic child support
        schedule and the applicable worksheet, through the line establishing the actual
        annual obligation, if, after considering the factors and criteria set forth in section
        3119.23 of the Revised Code, the court determines that the amount calculated
        pursuant to the basic child support schedule and the applicable worksheet, through
        the line establishing the actual annual obligation, would be unjust or inappropriate
        and would not be in the best interest of the child.
                                                13


       If it deviates, the court must enter in the journal the amount of child support
       calculated pursuant to the basic child support schedule and the applicable
       worksheet, through the line establishing the actual annual obligation, its
       determination that that amount would be unjust or inappropriate and would not
       be in the best interest of the child, and findings of fact supporting that
       determination.

(Emphasis added.) See also Irish v. Irish, 9th Dist. Lorain Nos. 09CA009577, 09CA009578,

2010-Ohio-403, ¶ 12, citing Maiorana v. Maiorana, 9th Dist. Medina No. 08CA0016-M, 2008-

Ohio-6179, ¶ 7.

       {¶34} This Court has held that “[i]t is well settled that the requirements of R.C. 3119.22

are mandatory and must be literally and technically followed.” Ohlemacher v. Ohlemacher, 9th

Dist. Lorain No. 03CA008252, 2003-Ohio-6582, ¶ 6, citing Marker at paragraphs one and two of

the syllabus, Marrero v. Marrero, 9th Dist. Lorain No. 02CA008057, 2002-Ohio-4862, ¶ 29, and

Pinchbeck v. Pinchbeck, 9th Dist. Lorain No. 03CA008227, 2003-Ohio-6125, ¶ 5. “If a trial

court fails to comply with the literal requirements of the statute, it results in reversible error.”

Ohlemacher at ¶ 6, citing Farmer v. Farmer, 9th Dist. Medina No. 03CA0001-M, 2003-Ohio-

4385, ¶ 9.

       {¶35} Further, the determinations and findings required by R.C. 3119.22 must be

contained in the trial court’s order:

       This Court will not review the rather perfunctory decision of the magistrate for
       purposes of determining whether it complies with [former] R.C. 3113.215(B)(2)
       and [former] R.C. 3113.215(B)(3) because it is clear that “[w]hat the [magistrate]
       does is not a judicial act.” Walker v. Walker, 9th Dist. Summit No. 12978, 1987
       WL 15591 (Aug. 5, 1987). What is more, the trial judge cannot elevate the
       magistrate’s decision to the status of a judicial act by adopting it. Id. The order
       of the trial court, itself, must contain the statutory findings necessary to justify
       deviations from the child support guideline.

Berthelot v. Berthelot, 9th Dist. Summit No. 22819, 2006-Ohio-1317, ¶ 22. See also Irish v.

Irish, 9th Dist. Lorain No. 10CA009810, 2011-Ohio-3111, ¶ 10.
                                                   14


        {¶36} Upon review of the record it is apparent that the trial court’s May 15, 2013 order

does not contain (1) a determination that the basic guideline amounts would be unjust or

inappropriate, or (2) findings of fact supporting the deviation.

        {¶37} We conclude that the trial court’s failure to include mandatory determinations and

findings in its order constituted reversible error. See Ohlemacher at ¶ 6. Accordingly, Mother’s

fourth, and Father’s third, assignments of error are sustained to this extent. Therefore, we

reverse and remand this matter for the trial court to make these determinations and enter the

findings. Because the findings are necessary for appellate review of a child support deviation,

we do not reach the merits of parents’ arguments that the trial court committed plain error in its

calculation of the deviation, as it is not yet ripe for review.

                          MOTHER’S ASSIGNMENT OF ERROR III

        [MOTHER] WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF TRIAL
        COUNSEL.

                           FATHER’S ASSIGNMENT OF ERROR IV

        [FATHER] WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF TRIAL
        COUNSEL.

        {¶38} In Mother’s third assignment of error, she argues that her trial counsel was not

effective because he failed to file a supplemental brief to her objections to the legal custody

determination, failed to appeal from the order overruling her objections to the legal custody

order, and failed to object to the magistrate’s decision regarding child support. In Father’s fourth

assignment of error, he maintains that his trial counsel was not effective because he failed to file

objections to the legal custody decision, failed to appeal from the legal custody order, and failed

to file objections to magistrate’s decision regarding child support.

        {¶39} This Court must analyze claims of ineffective assistance of counsel under a

standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984);
                                                 15


State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a party must show (1)

deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial [.]” Strickland at 687. The

party challenging counsel’s effectiveness must demonstrate prejudice by showing that, but for

counsel’s errors, there is a reasonable probability that the outcome of the trial would have been

different. Id. at 694. In applying this test, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance[.]” Id. at 689.

With this standard in mind, we will examine separately the respects in which the parents claim

that their trial attorneys were ineffective.

Objections to Legal Custody Order

        {¶40} Father argues that his attorney was ineffective for failing to file objections to the

magistrate’s decision regarding legal custody.        Mother argues that her trial counsel was

ineffective for failing to file a supplemental brief in support of her objections to the magistrate’s

decision regarding legal custody. In Mother’s objections, she argued that legal custody should

not have been granted to Aunt, and that the trial court should have granted an extension of

temporary custody.       Also, in her objections, Mother stated that she reserved the right to

supplement her objections after the filing of the transcript of the testimony from the legal

custody order. However, no supplemental brief was filed.

        {¶41} It is not clear what additional argument Mother believes trial counsel should have

raised in his supplemental brief. Therefore, she has not demonstrated ineffective assistance of

counsel on this basis.
                                                16


       {¶42} In regard to Father, he appears to indicate that his trial counsel should have

objected on the basis that custody to Aunt was not in the child’s best interest at that time because

he could have successfully completed his case plan with an additional six-month extension.1

However, as we discussed in regard to Mother’s first assignment of error, the trial court did not

err in finding that it was in the child’s best interest to be placed in Aunt’s legal custody.

Therefore, “the trial court must necessarily deny an extension of temporary custody.” In re

C.M., 2009-Ohio-943, at ¶ 24. Accordingly, we cannot discern how the parents were prejudiced

by Mother’s attorneys’ failure to file a supplemental brief or Father’s attorney’s failure to file

objections.

Failure to Appeal from the Legal Custody Order

       {¶43} Next, Mother and Father argue that, if we were to determine that the legal custody

order was a final, appealable order, they were deprived of effective assistance based on their

attorneys’ failure to timely file appeals from the legal custody order (or, in regard to Mother, the

order overruling her objections to the magistrate’s decision). Although we did conclude that the

legal custody order was a final, appealable order, we further determined that the parents could

also appeal the legal custody order within thirty days of the May 15, 2013 order pursuant to

App.R. 4(B)(5). Accordingly, the parents have not demonstrated prejudice.

Failure to Object to the Magistrate’s Decision Regarding Child Support

       {¶44} Next, in regard to Mother’s and Father’s arguments that their trial attorneys were

ineffective for failing to object to the magistrate’s decision regarding child support, we conclude



       1
         Father also appears to argue that Mother’s counsel was ineffective for failing to file a
supplemental brief. However, Father has cited no authority permitting him to challenge the
effectiveness of another party’s attorney, and thus we will limit our discussion to the arguments
raised by the parties as to their respective attorneys.
                                                 17


that our disposition of Mother’s fourth, and Father’s third, assignments of error renders our

review of effectiveness of trial counsel premature, as this matter must be remanded for the trial

court to make the required determinations and findings as previously discussed. Accordingly,

we decline to review this portion of the parties’ assignments of error.

       {¶45} Therefore, Mother’s third and Father’s fourth assignments of error are overruled.

                                                III.

       {¶46} Mother’s and Father’s first and second assignments of error are overruled.

Mother’s fourth, and Father’s third, assignments of error are sustained to the extent that they

argue that the trial court failed to include statutory findings in its order deviating from the child

support guideline amounts, but to the extent that the parents argue that the trial court erred in its

calculation of the deviation, we decline to review these assignments of error, as they are not yet

ripe for review. Mother’s third, and Father’s fourth, assignments of error are overruled on the

merits to the extent that they argue their trial attorneys were ineffective for failing to file a

supplemental brief and an appeal from the legal custody order. To the extent that they argue that

their trial attorneys were ineffective for failing to file objections to the May 15, 2013 order, we

conclude that our review is premature based upon our disposition of Mother’s fourth, and

Father’s third, assignments of error. Accordingly, the judgment of the trial court is affirmed in

part, reversed in part, and remanded for further proceedings consistent with this opinion.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.
                                                18


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     CARLA MOORE
                                                     FOR THE COURT



BELFANCE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

DENISE E. FERGUSON, Attorney at Law, for Appellant.

DEREK CEK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.

SALLY PRENTICE, Attorney at Law, for Appellee.

JOSEPH KERNAN, Guardian ad Litem.
