[Cite as In re A.C., 2018-Ohio-2687.]


                                       wCOURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                  JUDGES:
                                                  Hon. John W. Wise, P. J.
IN THE MATTER OF:                                 Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.

        A.C.                                      Case No. CT2017-0086

                                                  OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No.
                                               21630115


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        July 9, 2018



APPEARANCES:

For Appellant Mother                           For Appellee MCACPS

VALERIE WIGGINS                                D. MICHAEL HADDOX
WIGGINS LAW OFFICE                             PROSECUTING ATTORNEY
107 South Main Street                          GERALD V. ANDERSON II
New Lexington, Ohio 43764                      ASSISTANT PROSECUTOR
                                               27 North Fifth Street, P.O. Box 189
                                               Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0086                                                   2

Wise, P. J.

       {¶1}   Appellant-Mother Tosha Mayle appeals the decision of the Muskingum

County Court of Common Pleas, Juvenile Division, which granted legal custody of her

minor child, A.C., to a third party as a dispositional order in an action commenced by

Appellee Muskingum County Adult and Child Protective Services (“MCACPS”). The

relevant procedural facts leading to this appeal are as follows.

       {¶2}   Appellant is the mother of A.C., born in 2009. A.C.’s alleged father, Curtis

C., did not participate in the case planning and is not a party to the present appeal.

       {¶3}   MCACPS filed a complaint in the Muskingum County Court of Common

Pleas, Juvenile Division on August 17, 2016, alleging that A.C. and her sister, C.C., were

neglected and/or dependent.1 The agency’s numerous concerns with appellant-mother at

that time included allegations that she and her older daughter, C.C., had been living in a

Jeep parked next to the house of an alleged drug dealer in Zanesville, that appellant was

using crack cocaine, and that C.C. did not have sufficient food. Appellant at that time had

purportedly left A.C. with the girl’s aunt. The agency further stated concerns that

appellant, who had been the subject of prior MCACPS involvement, had been the victim

of domestic violence and that C.C. had tested positive for marijuana.

       {¶4}   The matter proceeded to adjudication and disposition on October 16, 2016.

At that time, appellant admitted to the dependency allegation. MCACPS dismissed the

neglect allegation. Via a judgment entry issued October 27, 2016, the trial court found




1  Appellant’s older sister, C.C., is the subject of a related appeal in this Court, under
case number CT2017-0085.
Muskingum County, Case No. CT2017-0086                                                 3


C.C. and A.C. to be dependent. Both C.C. and A.C. were placed into the temporary

custody of Anna and Andrew P.2 Protective supervision was also granted.

      {¶5}   On April 18, 2017, the trial court granted party status to Anna P. and her

husband on its own motion.

      {¶6}   On April 26, 2017, the guardian ad litem filed an amended report

recommending suspending or reducing appellant's unsupervised visitation time because

of appellant’s cell phone usage during previous visits and her discussions with the

children about the case.

      {¶7}   On May 8, 2017, Anna P., filed a motion seeking legal custody of both

children. An evidentiary hearing on the matter was conducted by the trial court on

September 26, 2017. The child’s alleged father, Curtis C., did not appear. After hearing

the testimony, the court ordered the parties to submit proposed findings of fact and

conclusions of law.

      {¶8}   On October 13, 2017, the trial court issued a four-page decision granting

legal custody of both children to Anna P. The court additionally terminated protective

supervision, but granted appellant supervised visitation at Anna P.’s discretion.3

      {¶9}   On November 13, 2017, appellant-mother filed a notice of appeal. She

herein raises the following five Assignments of Error:




2  Anna P. is the mother-in-law of appellant’s brother. For reasons apparently related to
a marital separation, her husband Andrew eventually dropped out of legal participation in
the case.
3  Appellant did not include or attach with her brief a copy of the judgment entry under
appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original document in
the record.
Muskingum County, Case No. CT2017-0086                                                   4


      {¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE

MOTHER'S FUNDAMENTAL CONSTITUTIONAL RIGHTS WHEN IT TERMINATED

THE CASE AND GRANTED LEGAL CUSTODY TO A THIRD PARTY WHILE THE

MOTHER WAS ACTIVELY WORKING HER CASE PLAN, WAS ENGAGED IN

SERVICES, AND WAS MAKING SUBSTANTIAL PROGRESS. FURTHER, THE TRIAL

COURT'S DECISION TO GRANT LEGAL CUSTODY TO A THIRD PARTY WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

      {¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND

THAT THE AGENCY HAD MADE REASONABLE EFFORTS TO PREVENT

CONTINUED REMOVAL OF THE CHILDREN FROM THE HOME.

      {¶12} “III.   THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT

GRANTED LEGAL          CUSTODY       OF THE          CHILDREN TO     A   THIRD     PARTY

IRRESPECTIVE OF THE AGENCY'S CLEAR VIOLATION OF R.C. 5153.16.

      {¶13} “IV. COUNSEL FOR THE MOTHER WAS INEFFECTIVE.

      {¶14} “V. THE GUARDIAN AD LITEM FAILED TO COMPETENTLY PERFORM

HER DUTIES PURSUANT TO SUPERINTENDENCE RULE 48[.] THUS THE COURT

ERRED AS A MATTER OF LAW IN TAKING HER UPDATED REPORT INTO EVIDENCE

AND ALLOWING HER TO SUBMIT TESTIMONY AND A BEST INTEREST

RECOMMENDATION.”

                                                I.

      {¶15} In her First Assignment of Error, appellant argues the trial court’s decision

to grant legal custody of A.C. to Anna P., the mother-in-law of appellant’s brother, was an
Muskingum County, Case No. CT2017-0086                                                    5


abuse of discretion, a violation of her constitutional parental rights, and against the

manifest weight of the evidence.

       {¶16} In Ohio, the statutorily permissible dispositional alternatives in dependency,

neglect, or abuse cases are enumerated in R.C. 2151.353(A). See, e.g., In re S.Y., 5th

Dist. Tuscarawas No. 2011AP04 0018, 2011–Ohio–4621, ¶ 31. In particular, R.C.

2151.353(A)(3) provides in pertinent part: “If a child is adjudicated an abused, neglected,

or dependent child, the court may make any of the following orders of disposition: * * *

Award legal custody of the child to either parent or to any other person who, prior to the

dispositional hearing, files a motion requesting legal custody of the child or is identified

as a proposed legal custodian in a complaint or motion filed prior to the dispositional

hearing by any party to the proceedings. * * *.”

       {¶17} It is axiomatic that in proceedings involving the custody and welfare of

children, the power of the trial court to exercise discretion is peculiarly important. See

Thompson v. Thompson (1987), 31 Ohio App.3d 254, 258, 511 N.E.2d 412, citing Trickey

v. Trickey (1952), 158 Ohio St. 9, 13, 106 N.E.2d 772. A trial court “must have wide

latitude in considering all the evidence” and a custody decision will not be reversed absent

an abuse of discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260. As

an appellate court, we neither weigh the evidence nor judge the credibility of the

witnesses. Our role is to determine whether there is relevant, competent, and credible

evidence upon which the finder of fact could base its judgment. Cross Truck Equip. Co.

v. Joseph A. Jeffries Co., 5th Dist. Stark No. CA5758, 1982 WL 2911. Unlike a permanent

custody proceeding where a juvenile court's standard of review is by clear and convincing

evidence, the standard of review in legal custody proceedings is a preponderance of the
Muskingum County, Case No. CT2017-0086                                                        6

evidence. In re S.D., 5th Dist. Stark Nos. 2013CA0081 & 2013CA0082, 2013–Ohio–5752,

¶ 32 (citations omitted).

       {¶18} Despite the differences between a disposition of permanent custody and

legal custody, some Ohio courts have recognized “the statutory best interest test

designed for the permanent custody situation may provide some ‘guidance’ for trial courts

making legal custody decisions.” In re A.F., 9th Dist. No. 24317, 2009–Ohio–333 at ¶ 7,

citing In re T.A., 9th Dist. No. 22954, 2006–Ohio–4468 at ¶ 17. The test would thus

encompass a consideration of factors including, but not limited to: (1) the child's

interaction with his or her parents, siblings, relatives, foster caregivers, and others, (2) the

child's wishes, which may be expressed by the guardian ad litem, (3) the child's custodial

history, and (4) the need for a legally secure permanent placement. See R.C.

2151.414(D)(1).

       {¶19} Before proceeding further into the merits of the present appeal, it is

incumbent that we address the status of the record before us. While a trial court may

choose to record its proceedings through the use of an audio-recording device,

“[r]egardless of the method of recording the proceedings, a transcript is required for the

record on appeal * * *.” See In re Adoption of Z.A., 5th Dist. Licking No. 16–CA–05, 2016–

Ohio–3159, ¶ 15, quoting 2011 Staff Note to App.R. 9. It is well-settled that when portions

of the transcript necessary to resolve issues are not part of the record on appeal, we must

presume regularity in the trial court proceedings. In re Craig, 5th Dist. Tuscarawas No.

2008 AP 05 0030, 2008–Ohio–4251, ¶ 9, citing Knapp v. Edwards Laboratories (1980),

61 Ohio St.2d 197, 400 N.E.2d 384. The Appellate Rules require an appellant’s brief to
Muskingum County, Case No. CT2017-0086                                                    7


support the arguments therein “with citations to the authorities, statutes, and parts of the

record on which appellant relies.” App.R. 16(A)(7)

       {¶20} Appellant herein concedes that the recording of the legal custody hearing

in the case sub judice, except for closing arguments, was not preserved for transcription.

See Appellant’s Brief at 8. In appellant’s brief, appellant’s counsel somewhat cryptically

states that she “had to recreate the record from other sources.” Id. Furthermore, although

appellant’s counsel has put together an extensive statement of facts section in her brief,

albeit without transcript citations, we find the record does not demonstrate a proper

alternative to a transcript as set forth under App.R. 9(C) or 9(D).

       {¶21} However, in the interest of justice, we would at least observe that the trial

court heard the evidence and made findings regarding appellant's history of drug abuse,

her failure to seek mental health treatment absent a court order, lack of electricity in her

housing, unemployment, lack of transportation, and incidents of reduced supervised visits

due to her behavior. The court found, based on Dr. Wolfgang’s psychological report, that

an increased risk of dependency and neglect would likely occur if C.C. and A.C. were to

be returned to appellant's care. Notably, documentation was provided to the trial court

that out of a total of 105 drugs screens, appellant tested positive for illegal narcotics 58

times and failed to test 12 times. See Exhibit A, 2-4. The court also noted the agency’s

concerns that appellant would not protect A.C.’s sister, C.C., from sexual abuse reported

by the child against her alleged father. The court also cited the progress C.C. and A.C.

had made academically since their removal, specifically in moving up in reading

comprehension from a “below kindergarten level.” Lastly, the guardian ad litem ("GAL")

filed a final report recommending that legal custody be granted to Anna P. The court found
Muskingum County, Case No. CT2017-0086                                                       8


that it was in the best interest of the children to grant legal custody to Anna P., and ordered

closure of the case.

       {¶22} Appellant, among other things, urges that the trial court made erroneous

findings of fact or made findings based on issues that had been remedied or addressed,

and it “severely downplayed [her] accomplishments.” Appellant’s Brief at 8. However,

under the circumstances of our present limited review, we presume regularity in the

proceedings and conclude the trial court’s decision to grant legal custody of A.C. to Anna

P. was made in the consideration of the child's best interests and did not constitute

reversible error or an abuse of discretion.

       {¶23} Appellant’s First Assignment of Error is therefore overruled.

                                                II., III.

       {¶24} In her Second and Third Assignments of Error, appellant challenges the trial

court’s conclusion that MCACPS made reasonable efforts to prevent continued removal

of A.C. from the home, and correspondingly contends the trial court committed plain error

by granting legal custody of A.C. to Anna P.

       {¶25} Appellant largely relies upon R.C. 5153.16(A)(18), which requires a public

children services agency to “[m]ake reasonable efforts to prevent the removal of an

alleged or adjudicated abused, neglected, or dependent child from the child's home,

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

the child to return home safely, except that reasonable efforts of that nature are not

required when a court has made a determination under division (A)(2) of section 2151.419

of the Revised Code.”
Muskingum County, Case No. CT2017-0086                                                   9


       {¶26} In essence, appellant charges that MCACPS failed to provide her with

adequate mental health services during the pertinent time frames so that she could have

made more progress on her overall case plan. However, as discussed previously, the

absence of an adequate transcript in this instance compels us to presume regularity in

the trial court proceedings addressing this issue. See Knapp, supra.

       {¶27} Appellant’s Second and Third Assignments of Error are therefore overruled.

                                               IV.

       {¶28} In her Fourth Assignment of Error, appellant contends she received

ineffective assistance of trial counsel during the proceedings leading to the trial court's

decision to award legal custody of A.C. to Anna P.

       {¶29} A parent has a fundamental liberty interest in the care, custody, and

management of his or her child. See In re Gower/Evans Children, 5th Dist. Tuscarawas

No. 06AP060034, 2006–Ohio–5676, ¶ 28, citing Santosky v. Kramer (1982), 455 U.S.

745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. This Court has thus recognized “ineffective

assistance” claims in permanent custody appeals. See, e.g., In re Utt Children, 5th Dist.

Stark No. 2003CA00196, 2003–Ohio–4576. However, we have not expanded the doctrine

of ineffective assistance of counsel beyond criminal cases and those involving permanent

custody. See In re Logwood, 5th Dist. Guernsey No. 2004–CA–38, 2005–Ohio–3639, ¶

26.

       {¶30} Legal custody to a third party and permanent custody to a children services

agency are alternative dispositional choices. See In re Fell, 5th Dist. Guernsey No. 2004–

CA–39, 2005–Ohio–2415, ¶ 17; R.C. 2151.353(A)(3); R.C. 2151.353(A)(4). The matter
Muskingum County, Case No. CT2017-0086                                                    10

presently before us did not result in an order of permanent custody to MCACPS. See,

also, R.C. 2151.011(B)(31).

       {¶31} We therefore will not further address appellant's Fourth Assignment of

Error. Accord In re W.A., 5th Dist. Muskingum No. CT2013–0002, 2013–Ohio–3444.

                                                V.

       {¶32} In her Fifth Assignment of Error, appellant argues the trial court erred in

relying on the recommendations of the guardian ad litem, Attorney Bonnie Vangeloff, who

appellant claims did not sufficiently perform her duties under Sup.R. 48. We disagree.

       {¶33} Sup.R. 48(F) states that “[a] guardian ad litem shall prepare a written final

report, including recommendations to the court, within the times set forth in this division.”

Subsection (F)(1)(c) specifically states: “Unless waived by all parties or unless the due

date is extended by the court, the final report shall be filed with the court and made

available to the parties for inspection no less than seven days before the dispositional

hearing. Written reports maybe [sic] accessed in person or by phone by the parties or

their legal representatives. A copy shall be provided to the court at the hearing.” Also,

Sup.R. 48(D)(13) requires a guardian ad litem to make reasonable efforts “to become

informed about the facts of the case and to contact all parties.”

       {¶34} In the case sub judice, appellant alleges that GAL in this case failed to stay

sufficiently informed and updated on the facts involving the children, made erroneous

statements in her report, and twice failed to comply with timely report filing requirements.

Appellant also charges that the GAL's final report does not indicate that she had

conducted a proper home visit.
Muskingum County, Case No. CT2017-0086                                                    11


       {¶35} However, we have recognized that Sup.R. 48 is a general guideline that

does not have the force of statutory law, and therefore an appellant does not have any

substantive right to enforce it. Rice v. Rice, 5th Dist. Delaware No. 10 CAF 11 0091,

2011–Ohio–3099, ¶ 40 (additional citation omitted). Furthermore, it is well-established

that the trial court in a bench trial is in the best position to determine the credibility of

witnesses. See, e.g., In re Brown, 9th Dist. Summit No. 21004, 2002–Ohio–3405, ¶ 9,

citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212.

       {¶36} Our limited review of the record under Knapp, supra, does not indicate that

appellate reversal would be warranted in this instance against the trial judge who

observed the evidentiary proceedings firsthand and weighed the testimony and reports of

the GAL.

       {¶37} Appellant's Fifth Assignment of Error is therefore overruled.

       {¶38} For the reasons stated in the foregoing, the decision of the Court of

Common Pleas, Juvenile Division, Muskingum County, Ohio, is hereby affirmed.


By: Wise, P. J.

Hoffman, J., and

Baldwin, J., concur.


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