[Cite as In re J.J., 2019-Ohio-1063.]


                                            COURT OF APPEALS
                                         RICHLAND COUNTY, OHIO
                                        FIFTH APPELLATE DISTRICT



                                                       JUDGES:
IN THE MATTER OF:                                      Hon. William B. Hoffman, P. J.
                                                       Hon. John W. Wise, J.
        J.J.                                           Hon. Earle E. Wise, Jr., J.

        DEPENDENT CHILD                                Case No. 18 CA 107

                                                       OPINION




CHARACTER OF PROCEEDING:                           Civil Appeal from the Court of Common
                                                   Pleas, Juvenile Division, Case No. 2016
                                                   DEP 00148


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                             March 26, 2019



APPEARANCES:

For Appellant Mother                               For Appellee

JEFFEREY R. STIFFLER                               EDITH A. GILLILAND
THE HECK LAW OFFICES, LTD                          RCCSB
One Marion Avenue, Suite 215                       731 Scholl Road
Mansfield, Ohio 44903                              Mansfield, Ohio 44907
Richland County, Case No. 18 CA 107                                                         2

Wise, John, J.

        {¶1}   Appellant Angel K. appeals the decision of the Richland County Court of

Common Pleas, Juvenile Division, which granted permanent custody of her daughter,

J.J., to Appellee Richland County Children Services ("RCCS”). The relevant procedural

facts leading to this appeal are as follows.

        {¶2}   On November 9, 2016, Appellee RCCS filed a complaint alleging that J.J.,

born in 2015, was a dependent child under R.C. 2151.04. Initial concerns included

appellant-mother’s mental health issues, suicidal ideations, alcohol abuse, and

inadequate parenting skills, as well as certain untreated medical needs of J.J.’s sibling,

B.J. The agency also set forth concerns about J.J.’s father, Billy J.1

        {¶3}   Emergency shelter care was thereupon maintained by the trial court.

        {¶4}   On or about February 6, 2017, J.J. was adjudicated dependent and placed

in the temporary custody of RCCS by the trial court.

        {¶5}   A case plan was filed and approved by the trial court on May 1, 2017.

        {¶6}   SCJFS filed a motion for permanent custody on April 17, 2018. The matter

proceeded to an evidentiary hearing before a magistrate on August 8, 2018.

        {¶7}   On September 12, 2018, the magistrate issued a ten-page decision

recommending a grant of permanent custody of J.J. to RCCS. The trial court adopted the

decision on October 5, 2018.

        {¶8}   However, on October 5, 2018, Billy J., J.J.’s father, filed untimely objections

to the decision of the magistrate. The trial court issued a judgment entry on October 15,

2018, overruling Billy J.’s objections as not timely filed under Juv.R. 40.



1   Billy J. has separately appealed in this matter.
Richland County, Case No. 18 CA 107                                                        3


        {¶9}   Despite the court’s aforesaid decision of October 15, 2018, appellant-

mother on October 23, 2018 filed untimely objections to the magistrate’s September 12,

2018 decision. The trial court thus issued another judgment entry on October 30, 2018,

this time overruling appellant’s objections as not timely filed under Juv.R. 40.

        {¶10} In the meantime, on October 23, 2018, appellant filed a notice of appeal.2

She herein raises the following three Assignments of Error:

        {¶11} “I. THE MAGISTRATE’S DECISION FINDING IT WAS IN THE BEST

INTEREST OF THE MINOR CHILD TO BE PLACED IN THE PERMANENT CUSTODY

OF RCCSB WAS PLAIN ERROR.

        {¶12} “II.   THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT

ACCEPTING APPELLANT’S AGREEMENT TO VOLUNTARILY TERMINATE HER

PARENTAL RIGHTS AND CONSENT TO THE MINOR CHILD BEING PLACED IN THE

PERMANENT CUSTODY OF RCCSB.

        {¶13} “III. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF HER SIXTH AND FOURTEENTH AMENDMENT RIGHTS

AND HER RIGHTS UNDER THE OHIO CONSTITUTION.”

                                                 I.

        {¶14} In her First Assignment of Error, appellant-mother contends the trial court’s

determination that permanent custody to the agency was in the child’s best interest

constituted plain error. We disagree.

        {¶15} In determining the best interest of a child for purposes of a permanent

custody disposition, the trial court is required to consider all relevant factors, including,



2   Appellant-mother has also appealed in two cases regarding the child’s siblings.
Richland County, Case No. 18 CA 107                                                          4


but not limited to, the factors contained in R.C. 2151.414(D)(1). These statutory factors

are as follows:

                (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.
Richland County, Case No. 18 CA 107                                                         5

        {¶16} In the case sub judice, appellant concedes her trial counsel did not timely

object to the decision of the magistrate.3 We note Juv.R. 40(D)(3)(b)(iv) states as follows:

“Except 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).” To constitute

plain error in a civil case, the error must be “obvious and prejudicial” and “if permitted,

would have a material adverse effect on the character and public confidence in judicial

proceedings.” Friedland v. Djukic, 191 Ohio App.3d 278, 2010–Ohio–5777, ¶ 37 (8th

Dist.). Plain error analysis is limited and is to be applied with the utmost caution. State v.

Tart, 8th Dist. Cuyahoga No. 76223, 2000 WL 739518.

        {¶17} In addition, this Court has held on numerous occasions that where an

appellant fails to provide a transcript of the original hearing before the magistrate for the

trial court's review, the magistrate's findings of fact are considered established. See, e.g.,

Moton v. Ford Motor Credit Co., 5th Dist. Richland No. 01 CA 74, 2002-Ohio-2857

(additional citations omitted). The transcript in the case sub judice is time-stamped

October 29, 2018, and appellant concedes it was not available in time for review by the

trial court, notwithstanding the tardiness of the Juv.R. 40 objection.

        {¶18} The magistrate’s decision in this instance is well-organized and detailed,

and points out inter alia that appellant has been noncompliant with her medications

despite diagnoses of schizoaffective disorder, borderline personality disorder, and PTSD.

She has experienced visual and auditory hallucinations of being directed to kill herself.



3   Appellant’s present counsel on appeal did not represent her at the trial court level.
Richland County, Case No. 18 CA 107                                                       6


The magistrate also found that appellant has no comprehension of the child’s medical

needs, and that she had difficulty understanding parenting skills being taught at her

meetings. J.J has a number of behavioral problems and a “failure to thrive” diagnosis;

however, her foster parents are able to provide the required “intensely high level of

supervision” for her. J.J.’s custodial history with the agency exceeded the “12 of 22” rule

reiterated in R.C. 2151.414(D)(1)(c). RCCS has been unable to identify any suitable

relatives for placement of the child, and the guardian ad litem prepared a written report

recommending permanent custody to the agency. See Magistrate’s Decision at 3-6; 8-9.

       {¶19} Under our present limited analysis, we are not persuaded upon review that

the grant of permanent custody of J.J., recommended by the magistrate and subsequently

approved by the trial court, equates to plain error.

       {¶20} Appellant's First Assignment of Error is therefore overruled.

                                                 II.

       {¶21} In her Second Assignment of Error, appellant maintains the trial court

committed plain error by not accepting her proposed agreement to “voluntarily terminate”

her parental rights and thereby consent to permanent custody. We disagree.

       {¶22} At the close of RCCSB’s case before the magistrate, appellant stated on

the record that she was “willingly giving up,” essentially proposing a voluntary agreement

on her part that J.J be placed into permanent custody with the agency. See Tr. at 134. As

the magistrate subsequently memorialized in her decision, after further inquiry, “it was

apparent that Mother’s admission and agreement was not knowingly, freely, and

voluntarily made and [the magistrate] did not accept same.” Magistrate’s Decision at 2.
Richland County, Case No. 18 CA 107                                                       7


       {¶23} Appellant admits her present argument sounds “counterintuitive,” but she

urges that under Ohio’s statutory scheme for permanent custody, an involuntary

termination might become a detriment in future cases. See, e.g., R.C. 2151.414(E)(11);

2151.419(A)(2)(e).

       {¶24} We first recognize that when a party objecting to a magistrate's decision has

failed to provide the trial court with the evidence and documents by which the trial court

could make a finding independent of the report, the appellate court is precluded from

considering the transcript of the hearing submitted with the appellate record. Matter of

B.O., 5th Dist. Richland No. 18CA64, 2019-Ohio-608, ¶ 12, citing State ex rel. Duncan v.

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 1995–Ohio–272, 654 N.E.2d 1254.

       {¶25} Furthermore, R.C. 5103.15(B)(1) states in part as follows: “Subject to,

except as provided in division (B)(2) of this section, juvenile court approval, the parents,

guardian, or other persons having custody of a child may enter into an agreement with a

public children services agency or private child placing agency surrendering the child into

the permanent custody of the agency. ***.” (Emphasis added).

       {¶26} R.C. 5103.15 has no application to cases in which the child has been

adjudicated neglected or dependent and is under the jurisdiction of the juvenile court. In

re D.C.H., 9th Dist. Summit No. 22648, 2005-Ohio-4257, ¶ 17, citing In re Miller (1980),

61 Ohio St.2d 184, 189, 399 N.E.2d 1262; Kozak v. Lutheran Children's Aid Society

(1955), 164 Ohio St. 335, 341, 130 N.E.2d 796. In other words, R.C. 5103.15 is not

available to a parent when a children services agency already has temporary custody of

the child. See In re A.D.C.L., 2nd Dist. Darke No. 2015-CA-19, 2016-Ohio-1415, ¶ 46. Cf.

In re Young, 11th Dist. Ashtabula No. 2006-A-0025, 2006-Ohio-4537, ¶ 24.
Richland County, Case No. 18 CA 107                                                       8


       {¶27} As there is no specific legislative guidance on the requirements for a

voluntary surrender of parental rights in juvenile court where the child has already been

adjudicated neglected or dependent (see In re B.Y., 9th Dist. Wayne No. 16AP0071,

2017-Ohio-833, ¶ 10), such a decision must be left to the broad discretion of the finder of

fact, with due consideration of the child’s best interest, not the parent’s. Accordingly, we

find no demonstration of plain error in the trial court’s rejection of appellant’s mid-trial

proposal to voluntarily surrender J.J. into permanent agency custody.

       {¶28} Appellant's Second Assignment of Error is therefore overruled.

                                                III.

       {¶29} In her Third Assignment of Error, appellant argues that she was denied

effective assistance of counsel in the permanent custody proceedings. We disagree.

       {¶30} We have recognized “ineffective assistance” claims in permanent custody

appeals. See, e.g., In re Utt Children, 5th Dist. Stark No. 2003CA00196, 2003–Ohio–

4576. Our standard of review for an ineffective assistance claim in such a situation applies

the rule of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). See In re Fell, 5th Dist. Guernsey No. 05 CA 8, 2005–Ohio–5790, ¶ 11. The

Strickland standard is also applied pursuant to State v. Bradley (1989), 42 Ohio St.3d

136, 538 N.E.2d 373.

       {¶31} These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's assistance

was ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not
Richland County, Case No. 18 CA 107                                                        9


the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing that there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id. However, “[t]here are countless ways to provide effective assistance in

any given case.” Strickland, 466 U.S. at 689. Trial counsel is entitled to a strong

presumption that all decisions fall within the wide range of reasonable professional

assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267.

       {¶32} But even if an appellant initially shows that counsel was ineffective, he or

she must then satisfy the second prong of the Strickland test. In other words, it is well-

established that a reviewing court “need not determine whether counsel's performance

was deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiencies.” State v. Bradley at 143, quoting Strickland at 697.

       {¶33} As indicated supra, this Court has held on numerous occasions that where

an appellant fails to provide a transcript of the original hearing before the magistrate for

the trial court's review, the magistrate's findings of fact are considered established. See

Moton v. Ford Motor Credit Co., supra.

       {¶34} However, Juv.R. 40(D) contemplates objections to a magistrate's findings

of facts or conclusions of law, not arguments relating to ineffective assistance of trial

counsel. Therefore, an appellant's arguments in regard to claims of ineffective assistance

of counsel in the context of a magistrate’s hearing are not waived by trial counsel's failure

to raise such objections at the trial court level. See In re S.K.H., 12th Dist. Clinton No.

CA2012-10-020, 2013-Ohio-2863, ¶ 22 (internal citations omitted). By extension, in cases

where an appellant seeks a Strickland review on the grounds that his or her trial counsel
Richland County, Case No. 18 CA 107                                                          10


failed to object under Juv.R. 40 and failed to timely obtain a transcript of the magistrate’s

hearing for the trial court judge to review, an appellate court may, in the interest of justice,

examine the evidence presented to the magistrate via the transcript and exhibits, despite

the fact that they were not available below. See In re Oliver, 5th Dist. Licking No. 2005-

CA-40, 2005-Ohio-5792, ¶¶ 21-24.

       {¶35} Appellant first focuses on trial counsel’s failure to timely object to the

magistrate’s decision on the basis that appellant’s proposal to voluntarily surrender J.J.

to agency custody was erroneously rejected. However, in light of our analysis in the

Second Assignment of Error, supra, we find no demonstration of prejudice in this regard

under the Strickland/Bradley standard.

       {¶36} Appellant secondly makes a generalized claim that her trial counsel’s failure

to timely object to the magistrate’s decision prevented the trial court from reviewing the

“best interest” criteria with the benefit of a full record of the evidence. In the interest of

justice, we have reviewed the transcript and exhibits related to the magistrate’s hearing

of August 8, 2018, including the testimony of Early Head Start family visitor Rita Moore,

Family Life Counseling social worker Anna Hairston, Family Life Counseling counselor

Carol Sgambellone, Catalyst Life Services therapist Sara Bates, RCCS ongoing

caseworker Jennifer Conley, GAL Melissa Tommelleo, father Billy J., and appellant

herself.

       {¶37} Clearly, “[t]he discretion which the juvenile court enjoys in determining

whether an order of permanent custody is in the best interest of a child should be

accorded the utmost respect, given the nature of the proceeding and the impact the

court's determination will have on the lives of the parties concerned.” In re Mauzy
Richland County, Case No. 18 CA 107                                                11

Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, quoting In re Awkal

(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424. Upon review, we find no basis to

conclude appellant was prejudiced under Strickland by the lack of a timely Juv.R. 40

objection filing to the magistrate’s thorough decision recommending permanent custody.

       {¶38} Appellant's Third Assignment of Error is therefore overruled.

       {¶39} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Richland County, Ohio, is hereby affirmed.



By: Wise, John, J.

Hoffman, P. J., and

Wise, Earle, J., concur.



JWW/d 0227
