[Cite as In re S.D., 2012-Ohio-2299.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97322



                                        IN RE: S.D., JR.

                                        A MINOR CHILD

      [APPEAL BY R.D., PATERNAL GRANDMOTHER]



                                          JUDGMENT:
                                           AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Juvenile Court Division
                                    Case No. AD 10907624

        BEFORE: Kilbane, J., Blackmon, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                 May 24, 2012
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

FOR CCDCFS

William D. Mason
Cuyahoga County Prosecutor
Gregory S. Millas
Assistant County Prosecutor
CCDCFS
8111 Quincy Avenue, Room 444
Cleveland, Ohio 44104

GUARDIAN AD LITEM FOR MINOR CHILD

Beth Judge
17 South Main Street
Suite 201
Akron, Ohio 44308

FOR FATHER

Kimberly A. Showalter
28522 West Oviatt Road
Bay Village, Ohio 44140
MARY EILEEN KILBANE, J.:

      {¶1} Appellant, R.D., paternal grandmother of S.D. (referred to herein as

“paternal grandmother”), appeals from the order of the juvenile court that awarded

permanent custody of S.D. to the Cuyahoga County Department of Children and Family

Services (“CCDCFS”). For the reasons set forth below, we affirm.

      {¶2} S.D. was born on May 19, 2009, while his mother, L.S., was incarcerated

for probation violations on drug-related charges.     On March 23, 2010, following a

bifurcated hearing on the issues of neglect and dependency, S.D. was determined to be

neglected and dependent, and his father was awarded legal custody. The record indicates

that the child was placed in foster care but had extended visits with the father, who was

residing with appellant. Approximately one month later, both parents were subsequently

arrested for aggravated murder and other offenses in connection with the death of Angel

Bradley-Crockett.

      {¶3} The trial court subsequently vacated father’s award of legal custody, and on

April 29, 2010, while both parents were incarcerated, CCDCFS filed a complaint for

permanent custody of S.D. By this date, CCDCFS had learned that the father had an

extensive history of juvenile adjudications that had not been disclosed to the agency in

their investigations with regard to S.D. Specifically, the father’s adjudications included

gross sexual imposition, aggravated murder, and abuse of a corpse.
       {¶4} On May 5, 2010, the trial court awarded temporary emergency custody of

S.D. to CCDCFS.

       {¶5} The matter proceeded to an adjudicatory hearing on July 20, 2010. At this

time, the father and mother admitted various allegations in the county’s complaint for

permanent custody, including the allegations that they are presently incarcerated and do

not have custody of their other children.      In addition, social worker, Dharma Arki

(“Arki”), also testified regarding the father’s acts of domestic violence against the

mother, “intimidating” “nonverbal communication” from the father to the mother, and

the mother’s recantation of a prior domestic violence complaint against the father. At

this time, in a highly unusual and alarming pronouncement, the trial court record states:

       It’s kind of developing this weird dynamic in this courtroom, I have to tell
       you. You know I’m uncomfortable with it. I want the record to reflect
       that, the Court itself is a little nervous.

       {¶6} Following this hearing, the trial court found by clear and convincing

evidence that S.D. is a neglected child, and foster parents subsequently took custody of

S.D.

       {¶7} Paternal grandmother notified the trial court that she was seeking legal

custody of S.D. On September 7, 2010, S.D.’s guardian ad litem, Beth Judge (“the

GAL”), filed a report.     As is relevant herein, in addition to the charges involving

Bradley-Crockett and the juvenile adjudications, the GAL noted that father was “facing a

federal parole revocation hearing,” which was scheduled to occur on the day after he was

granted legal custody of the minor child. The GAL additionally reported:
       [Paternal grandmother] has a history of domestic violence charges.
       Overall, there are concerns about [paternal grandmother’s] criminal
       background, her financial stability, her cooperation with this GAL, with
       CCDCFS, as well as her impending testimony in [the father’s] impending
       criminal trial. CCDCFS has excluded [paternal grandmother] as an
       appropriate caregiver. For these reasons, [paternal grandmother] is not an
       appropriate caregiver for S.D. and should not be considered for legal
       custody.

       {¶8} The GAL then averred that two unidentified witnesses received letters from

the paternal grandmother’s family telling them not to cooperate with any investigation.

The GAL recommended that permanent custody be granted to the CCDCFS. The matter

proceeded to a dispositional hearing that began on December 16, 2010. CCDCFS

maintained that it had investigated the paternal grandmother, and it was determined that it

was in the child’s best interest to be in the permanent custody of CCDCFS.

       {¶9} Arki testified that she began a dual home study to investigate paternal

grandmother and S.D.’s father in connection with this matter. Prior to completing the

study, however, paternal grandmother informed Arki that “she wanted to pull her name

out and let [J.D.] be the care giver[.]” J.D. is the paternal aunt of S.D.

       {¶10} Arki further testified that on the 2009 “Non-Conviction Statement” of the

caregiver approval packet, the family was required to indicate whether the individual

seeking custody has been convicted of an offense, identify the offense, and sign the form.

 In this matter, the father indicated that he had been convicted of a drug offense, but did

not disclose that he had been adjudicated for aggravated murder and other offenses. No

other family members who signed the packet mentioned this information.
        {¶11} Arki admitted on cross-examination that her 2009 investigations into

paternal grandmother’s suitability for custody revealed no concerns about her

background, no concerns about her behavior with the child, and no concerns about her

home.

        {¶12} CCDCFS senior supervisor, Veronica Holloway (“Holloway”), testified that

on March 23, 2010, the father was awarded legal custody of S.D., pending the results of

the fingerprint analysis. According to Holloway, the father was specifically asked about

his juvenile record in the presence of paternal grandmother and J.D., and he mentioned

only the drug-related matter. Neither paternal grandmother nor J.D. mentioned his prior

juvenile adjudication for aggravated murder.

        {¶13} Holloway further testified on April 11, 2010, that paternal grandmother

stated in a case management meeting that the father was at her home at the time of the

murder of Angel Bradley- Crockett, and J.D. also stated that the father was “innocent” in

that matter. Holloway subsequently concluded that the child had to be removed from

paternal grandmother’s home. Holloway acknowledged, however, that in 1993, a report

of abuse in paternal grandmother’s home was deemed “substantiated,”1 but a child living

with her at that time was not removed from paternal grandmother’s care following the

agency’s investigation.




        1 Therecord suggests that this matter relates to paternal grandmother’s
arrest for domestic violence that involved a former boyfriend.
       {¶14} Social worker, Kate McBride (“McBride”), testified that, although CCDCFS

excluded the paternal relatives from taking custody of the child, they could still pursue

custody through the agency’s foster recruitment division. Paternal grandmother did not

pursue the matter through that division.

       {¶15} McBride admitted on cross-examination that S.D. appeared to enjoy being

with paternal grandmother during a visit at CCDCFS, and he has experienced “night

terrors” in foster care. However, the evidence indicated that this is not abnormal in light

of the custody background.

       {¶16} The family presented various witnesses. Hope Academy teachers Rebecca

Middea and Stephanie Talty testified that J.D. is very involved in her daughter’s

education, interacts appropriately with children, and has a good character.         These

witnesses admitted, however, that they have never seen J.D. with S.D., and that they have

no information about the county’s involvement in this matter.

       {¶17} Christopher McKinley (“McKinley”), Arki’s supervisor, testified that he

reviewed CCDCFS’s activity logs in this matter and was aware of the father’s juvenile

record, but not all of the details of that record. McKinley stated that he asked the father

for more information about the juvenile adjudications but he refused to provide it.

McKinley consented to the father having custody of S.D. because, under CCDCFS

guidelines, offenses ten years old or older do not disqualify a parent from being a

caregiver.   He acknowledged, however, that CCDCFS Director, Debra Forkas, has

authority over such issues.
       {¶18} On cross-examination, McKinley admitted that under CCDCFS governing

rules, an aggravated murder adjudication cannot be rehabilitated and that, based upon

incomplete information, CCDCFS mistakenly awarded legal custody of S.D. to the father

in March 2010. As to the delay in removing the child from the paternal grandmother’s

home following the father’s arrest, McKinley stated that the CCDCFS was attempting to

obtain additional information.

       {¶19} Paternal grandmother testified that she was seeking legal custody of S.D.,

despite her earlier request to be withdrawn from consideration. She stated that she hoped

to continue the care she had been providing while the father had legal custody of the

child. She stated that she has been at the same job for the past ten years, has the means

to take care of him, and that her home has already been deemed an appropriate location.

She stated that she has no mental health, drug, or alcohol issues, and she described a

loving and affectionate relationship between S.D. and other members of her family.

       {¶20} Paternal grandmother further testified that she discussed the father’s

juvenile adjudications with Arki and did not conceal any information. She also denied

providing an alibi for the father in the Bradley-Crockett criminal proceedings, but she

insisted that the father was in her home when that incident took place, and that she

intended to testify at that trial.

       {¶21} The GAL          elected to present evidence.   She testified that during her

meetings with the father, and in the presence of paternal grandmother, she asked the

father about his criminal convictions, and neither he nor paternal grandmother mentioned
the juvenile adjudications. The GAL explained that there had a been a delay in obtaining

the father’s fingerprints in this matter, and based upon incomplete information provided,

including the “Non-Conviction Statement,” the GAL recommended that the father be

awarded legal custody with court-ordered supervision. The GAL stated that she had

made independent efforts to ascertain the father’s complete criminal background, but the

juvenile adjudication was not accessible to her, apparently due to a prior federal court

order.

         {¶22} The GAL additionally testified that she has listened to recorded telephone

conversations between the father, paternal grandmother, and J.D. In these calls, the father

instructed them to call the municipal jail where the mother was being held and tell police

officials that they were the mother’s legal counsel, speak with the mother, and warn her

“not to talk to the homicide detectives.”

         {¶23} On March 2, 2011, the mother appeared before the court pursuant to Juv.R.

29 and admitted that it is in the best interest of S.D. for permanent custody to be awarded

to the CCDCFS.

         {¶24} On May 10, 2011, the foster family notified the trial court that they had

received a call, purportedly from the Cleveland Clinic, requesting that the child be

brought in for an appointment on the following Friday.         The foster family became

suspicious, and when they contacted the Cleveland Clinic, they learned that no

appointment for him was scheduled. However, Cleveland Clinic police made no arrests

in connection with this incident.
      {¶25} On June 3, 2011, the GAL filed a closing argument in which she noted that

paternal grandmother formally withdrew herself from consideration with CCDCFS as a

potential caregiver for the minor child. The GAL additionally provided in relevant part

as follows:




      5. Paternal relatives [paternal grandmother] and J.D. concealed [the
      father’s] extensive criminal record including his aggravated murder, abuse
      of a human corpse[,] and gross sexual imposition adjudications.

      ***

      8. [CCDCFS] Chief Holloway testified that had she known the full extent
      of [the father’s] criminal history she would not have approved his petition
      for custody.

      ***

      10. Supervisor McKinley testified that approving [the father’s] request for
      legal custody was a mistake.

      ***

      12. [The father] was residing with his mother * * * when he failed the
      February 2010 urine screen and was facing revocation of his federal parole.


      ***

      15. [Paternal grandmother] was also present during the GAL home visit
      wherein she also chose to remain silent during questions posed by this GAL
      regarding the father’s criminal background, thus failing to correct the record
      concerning untruthful information provided by the father

      16. [Paternal grandmother] intends upon testifying as a material witness in
      the capital murder case and providing her son * * * with an alibi.
       17. The GAL testified that she has listened to recorded telephone
       conversations between [the father,] [paternal grandmother] and J.D.
       wherein [the father] instructed [paternal grandmother and J.D.] to call the
       municipal jail when [the mother] was arrested and tell police officials that
       they were [the mother’s] legal counsel and to gain access to [the mother]
       and warn her “not to talk to the homicide detectives.” In a separate
       telephone conversation, J.D. expressed that she completed the task and
       called the jail.

       ***

       20. * * * [The mother] has also confided that she is afraid that the minor

       child will be used as leverage by the paternal relatives in the underlying

       criminal trial.

       {¶26} In closing, to further support the GAL’s findings justifying her decision in

favor of permanent custody, she stated that “[t]he Agency needs to trust relatives

requesting placement and there is no trust in this case,” an important, intangible quality

when deciding placement of a child.

       {¶27} In opposition, paternal grandmother submitted a closing argument in which

she reiterated that she is interested in obtaining legal custody of S.D.          She also

maintained that her home has previously been deemed an appropriate placement for him,

that she is capable of providing for S.D.’s needs, and will provide a caring and loving

placement.

       {¶28} For its closing argument, CCDCFS maintained that the paternal relatives

elevated their loyalty to the father over their concern for S.D., and that permanent custody

should be awarded to CCDCFS.
     {¶29} On August 15, 2011, the trial court awarded permanent custody of S.D. to

CCDCFS and noted:

     The Court is concerned about the safety of the child with the biological
     family.

     The Court finds that the child’s continued residence in or return to the home
     would be contrary to the child’s best interest and welfare. The Court finds
     that, in accordance with Division (D)(1) of R.C. 2151.414, permanent
     custody is in the child’s best interest. In reaching this decision, the Court
     considered the following * * *[:]

     The GAL for the child recommends a grant of permanent custody as being
     in the child’s best interest.

     [T]he facts and arguments laid out in the written closing arguments of
     CCDCFS and the GAL to be well taken. Given the particular facts of this
     case, the Court finds that it is not in the child’s best interest that the parents
     have residual rights in this matter as they would if legal custody were
     granted to the paternal relatives. See In re Awkal (1994), 95 Ohio App.3d
     309, 315, 642 N.E.2d 424.

     The Court also finds compelling the decision of the mother to change her
     plea and to stipulate that permanent custody is in her son’s best interest
     rather than the motion for legal custody of the paternal relatives.

     [T]he motions for legal custody to paternal relatives are not in the child’s
     best interest and are therefore denied. In re Schaefer, 111 Ohio St.3d 498,
     2006-Ohio-5513, 857 N.E.2d 532.

     This has been a difficult case because of the pall of violence that has

     loomed over this entire matter. The Court finds that the only safe, legally

     secure placement for this child is one away from the biological family.

     The Court further finds that the only way of accomplishing this outcome is

     by granting permanent custody to CCDCFS so that he may be placed for

     adoption.
       {¶30} Paternal grandmother now appeals, assigning two errors for our review.

       {¶31} For her first assignment of error, paternal grandmother asserts that the

judgment of the trial court is contrary to the manifest weight of the evidence.

                                Permanent Custody Motion

       {¶32}      The discretion that a trial court enjoys in custody matters should be

afforded 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 A.D., 8th Dist. No.

85648, 2005-Ohio-5441, ¶ 6. The knowledge a trial court gains through observing the

witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court

by a printed record. Id.

       {¶33} Before a juvenile court may terminate parental rights and award to a proper

moving agency permanent custody of a child, it must find clear and convincing evidence

of both prongs of the permanent custody test that (1) the child is abandoned, orphaned,

had been in the temporary custody of the agency for at least 12 months of the prior 22

months, or that the child could not be placed with either parent within a reasonable time

or should not be placed with either parent, based on an analysis under R.C. 2151.414(E);

and (2) the grant of permanent custody to the agency is in the best interest of the child,

based on an analysis under R.C. 2151.414(D).

       {¶34} As explained in In re E.M., 8th Dist. No. 79249, 2001 WL 1400022, (Nov.

8, 2001), ¶ 38:

       Clear and convincing evidence is “that measure or degree of proof which is
       more than a mere ‘preponderance of the evidence,’ but not to the extent of
       such certainty as is required ‘beyond a reasonable doubt’ in criminal cases,
       and which will produce in the mind of the trier of facts a firm belief or
       conviction as to the facts sought to be established.” A determination of
       whether something has been proven by clear and convincing evidence will
       not be disturbed on appeal unless such determination is against the manifest
       weight of the evidence. If a burden of proof must be met with clear and
       convincing evidence, a reviewing court must examine the record and
       determine if the trier of fact had sufficient evidence before it to satisfy that
       burden of proof. (Internal citation omitted.)

Accord In re M.H., 8th Dist. No. 80620, 2002-Ohio-2968, ¶ 22.

       {¶35} In applying the manifest weight standard of review, our role is to determine

whether there is relevant, competent and credible evidence upon which a factfinder could

base its judgment.    In re M.W., 8th Dist. No. 96817, 2011-Ohio-6444.             Judgments

supported by some competent, credible evidence going to all the essential elements of the

case will not be reversed as being against the manifest weight of the evidence. In re

M.W.; In re P.R., 8th Dist. No. 76909, 2002-Ohio-2029, ¶ 15.

                                    Best Interest Factors

       {¶36} In this matter, there is no dispute that S.D. cannot be placed with his parents,
therefore, we proceed to the second portion of the R.C. 2151.414 analysis. When
determining whether a grant of permanent custody is in the child’s best interest, the
juvenile court must consider the following factors:

       (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 * * *;

       (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[.] R.C. 2151.414(D)(1).

       {¶37} This court has “consistently held that only one of the factors set forth in R.C.

2151.414(D) needs to be resolved in favor of the award of permanent custody in order for

the court to terminate parental rights.” In re Z.T., 8th Dist. No. 88009, 2007-Ohio-827, ¶

56; In re L.S., 8th Dist. No. 95809, 2011-Ohio-3836, ¶ 15.

       {¶38} In the instant case, the trial court observed the witnesses directly and gained

first-hand knowledge of their interactions. In an adjudicatory hearing on July 20, 2010,

the court stated on the record:

       It’s kind of developing this weird dynamic in this courtroom, I have to tell
       you. You know I’m uncomfortable with it. I want the record to reflect
       that, the Court itself is a little nervous.

       {¶39} At the close of all of the proceedings, the court stated in its journal entry that

it had considered all the relevant factors pursuant to R.C. 2151.414(D) in determining the

best interest of the child. The record shows that the child had been in CCDCFS for

almost his entire life. Although S.D. could not express his own desires, he is entitled to

stability and a legally secure placement, and the trial court further found that this could
only be achieved through permanent custody. In light of all the evidence, the trial court

properly found that permanent custody was in the child’s best interest.

                                  Other Family Members

       {¶40} As to paternal grandmother’s contention that CCDCFS did not adequately

pursue the issue of granting her legal custody of S.D., we note an award of legal custody

does not constitute a “termination of all residual parental rights, privileges, and

responsibilities,” so the parent and the agency have the option in the future to seek a

change of custody.       See R.C. 2151.353(E)(2); In re C.R., 108 Ohio St.3d 369,

2006-Ohio-1191, 843 N.E.2d 1188, ¶ 17.

       {¶41} Moreover, the juvenile court is not required to determine by clear and

convincing evidence that “termination of appellant’s parental rights was not only a

necessary option, but also the only option” or that “no suitable relative was available for

placement.” In re Schaeffer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶

64. The Schaeffer court stated:

       The statute requires a weighing of all the relevant factors, and the trial court

       did that in this case. R.C. 2151.414 requires the court to find the best option

       for the child once a determination has been made pursuant to R.C.

       2151.414(B)(1)(a) through (d). The statute does not make the availability of

       a placement that would not require a termination of parental rights an

       all-controlling factor. The statute does not even require the court to weigh

       that factor more heavily than other factors.
       {¶42} In addition, this court has repeatedly held that the trial court is not required

to consider placing children with a relative prior to granting permanent custody to

CCDCFS, and the willingness of a relative to care for a child does not alter what the court

must consider in determining permanent custody. In re L.S., citing In re Benavides, 8th

Dist. No. 78204, 2001 WL 470177 (May 3, 2001); In re Patterson, 134 Ohio App.3d 119,

730 N.E.2d 439 (9th Dist.1999); In re A.D., 8th Dist. No. 85648, 2005-Ohio-5441, ¶ 12.

As explained in In re A.D.:

       [A]lthough the court must find by clear and convincing evidence that the
       parents are not suitable placement options, the court is not required to
       invoke the same standard with regard to a grandparent.

       {¶43} As to whether S.D.’s need for a legally secure permanent placement could

be obtained without a grant of permanent custody to the agency, we note, as an initial

matter, that during a portion of the proceedings below, paternal grandmother stated that

she did not want to be considered for placement, and deferred instead to J.D. and/or

Adriane Phillips. None of the family members completed the requirements for becoming

foster parents, despite being informed by the county that this was a prerequisite for having

legal custody of the child. Significantly, the court expressed concern for the child’s

safety with the biological family and also found compelling “the decision of the mother to

change her plea and to stipulate that permanent custody is in her son’s best interest rather

than the motion for legal custody of the paternal relatives.”

       {¶44} In addition, it is axiomatic that the court and the CCDCFS must be able to

repose trust in the individual seeking custody.       Here, however, the record contains
compelling evidence that paternal grandmother said nothing of the father’s juvenile

record, which contains adjudications for aggravated murder, abuse of a corpse, and gross

sexual imposition, during numerous instances where the CCDCFS and the GAL were

investigating paternal grandmother’s home in connection with the award of legal custody

to the father. Further, although the family reported the drug-related conviction, they

failed to disclose the father’s current revocation of federal parole.

       {¶45} In addition, Holloway’s testimony further established that paternal

grandmother stated, immediately following the father’s arrest and before full information

about the Bradley-Crockett murder was established, that the father was in her home

during the time of that murder. The GAL testified that the father requested that paternal

grandmother contact the mother and communicate with her in connection with the murder

charges.

       {¶46} Paternal grandmother’s history, including a domestic violence conviction

and prior loss of custody in connection with a fire caused by a child, apparently do not

disqualify her from obtaining legal custody of S.D. This information is entitled to some

weight, however, in determining whether she can provide a safe and legally secure

placement for the child.

       {¶47} Finally, the trial court properly noted that if it had granted legal custody of

S.D. to paternal grandmother, then the parents would have residual rights to seek a

change of custody. See R.C. 2151.353(E)(2); In re Awkal. The evidence overwhelming

indicates that this outcome is not in the child’s best interest. The trial court held, “[t]his
has been a difficult case because of the pall of violence that has loomed over this entire

matter. The Court finds that the only safe, legally secure placement for this child is one

away from his biological family.”

      {¶48} In accordance with all of the foregoing, a review of the evidence supports

the trial court’s rejection of paternal grandmother’s claim for legal custody of S.D. and

award of permanent custody to CCDCFS.          The evidence indicated that the father’s

relatives put their concern for the father above their concern with providing the court and

CCDCFS with complete and truthful information about the father, and that the

undisclosed information has a direct bearing on the safety of the child. The evidence

fully supports the trial court’s conclusion that paternal grandmother is not a suitable

custodian for the child and that permanent custody should be awarded to the CCDCFS.

The judgment of the trial court is supported by clear and convincing evidence and is not

against the manifest weight of the evidence. The first assignment of error is overruled.

      {¶49} In the second assignment of error, the paternal grandmother complains that

the trial court erred in admitting and relying upon the guardian ad litem reports that

contained hearsay information.

      {¶50} Pursuant to Juv.R. 34(I), the Rules of Evidence “shall apply” in hearings on

motions for permanent custody. Nonetheless, the admission of evidence lies within the

broad discretion of the trial court. In re M.B., 8th Dist. No. 96724, 2011-Ohio-4645. A

reviewing court will uphold an evidentiary decision absent an abuse of discretion that has
affected the substantial rights of the adverse party or is inconsistent with substantial

justice. Id.

       {¶51} Ohio courts have held that a trial court may consider the report of a

court-appointed investigator despite the hearsay inherent in such a report. In re A.L., 6th

Dist. No. L-10-1355, 2011-Ohio-2569.           To protect the parties’ due process rights,

however, the trial court must make the guardian ad litem available for direct and

cross-examination. Id.

       {¶52} In this matter, the GAL testified herein and was cross-examined by the

parties. Paternal grandmother complains that the GAL was permitted to testify that

paternal grandmother was going to be an alibi witness for the father and that her

boyfriend provided employment records for the father. Because paternal grandmother

testified directly as to these issues, we find no prejudicial error.

       {¶53} Paternal grandmother next complains that the GAL introduced hearsay

evidence that the father prevented her from speaking with the mitigation expert in his

criminal trial. We note, however, that this evidence was offered to illustrate the nature of

the GAL’s investigation herein. State v. Braxton, 102 Ohio App.3d 28, 656 N.E.2d 970

(8th Dist.1995).

       {¶54} Paternal grandmother also complains that the GAL testified to out-of-court

jail recordings from the father to his family regarding efforts at contacting the mother.

The calls were clearly business records of the jail and the father’s and paternal
grandmother’s statements are admissible as nonhearsay statements offered against a party

pursuant to Evid.R. 801(d)(2)(A).

       {¶55} Next, paternal grandmother complains that the GAL also testified to

out-of-court statements from the mother that the father’s family knew that he sold drugs

and that unidentified witnesses had received threatening letters from his family. This

evidence, though improper, did not prejudice the substantial rights of the parties as it

clearly involved speculation.

       {¶56} Moreover, we find no substantial prejudice in light of the great weight of

other evidence supporting the trial court’s ruling.

       {¶57} The second assignment of error is overruled.

       {¶58} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

PATRICIA A. BLACKMON, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
