[Cite as In re D.S., 2016-Ohio-79.]


                                          COURT OF APPEALS
                                       FAIRFIELD COUNTY, OHIO
                                      FIFTH APPELLATE DISTRICT



                                                     JUDGES:
IN THE MATTER OF:                                    Hon. Sheila G. Farmer, P. J.
                                                     Hon. John W. Wise, J.
        D.S.                                         Hon. Patricia A. Delaney, J.

                                                     Case No. 15 CA 30

                                                     OPINION




CHARACTER OF PROCEEDING:                         Civil Appeal from the Court of
                                                 Common Pleas, Juvenile Division,
                                                 Case No. 2013 AB 243


JUDGMENT:                                        Affirmed



DATE OF JUDGMENT ENTRY:                           January 11, 2016



APPEARANCES:

For Appellee                                     For Appellant Mother

GREGG MARX                                       SHERRIE L. HUSTEAD
PROSECUTING ATTORNEY                             1998 Refugee Street NE
BRITTANY J. KAROCKI                              Millersport, Ohio 43046
ASSISTANT PROSECUTOR
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 15 CA 30                                                         2

Wise, J.

       {¶1}   Appellant Ashley Clarkson appeals the decision of the Fairfield County

Court of Common Pleas, Juvenile Division, which, subsequent to a dependency

determination, granted a dispositional order of legal custody of her minor daughter, D.S.,

to a non-relative of the child. Appellee is Fairfield County Child Protective Services

(“FCCPS”). The relevant facts leading to this appeal are as follows:

       {¶2}   Appellant is the mother of A.S. (born in 2006), A.S. (born in 2010) and D.S.

(born in 2011). The present appeal centers on D.S., the youngest child. Her biological

father is deceased.

       {¶3}   FCCPS became involved with appellant and the children on a non-court

basis in June 2013. However, on August 30, 2013, the agency filed a complaint in

dependency under R.C. 2151.04(C), alleging concerns including appellant’s failure to

supervise the children, behaviors by an adult male residing in the household, failure by

appellant to visit during a “safety plan” placement, and appellant’s failure to follow through

with medical care regarding D.S., who has a number of medical needs. Appellant was at

that time living with her mother, her boyfriend, her three children, and her three adopted

siblings. The adopted siblings were also of concern to the agency based on prior sexual

abuse issues.

       {¶4}   On November 26, 2013, the trial court found all three children to be

dependent under the statute, and FCCPS was ordered to maintain temporary custody.

       {¶5}   On May 28, 2014, the agency filed a motion requesting a disposition of legal

custody concerning D.S. to Nicole Roby.
Fairfield County, Case No. 15 CA 30                                                    3


        {¶6}    The trial court issued a judgment entry regarding annual review on August

25, 2014.

        {¶7}    On November 21, 2014, appellant filed a motion requesting a return of

custody to her.

        {¶8}    On January 13, 2015, and January 27, 2015, following several

continuances, a trial court magistrate conducted a hearing on the agency's legal custody

motion regarding D.S., as well as other motions pertaining to her siblings.

        {¶9}    On February 26, 2015, the magistrate recommended via a twenty-page

decision that temporary custody by the agency of D.S. and her two siblings be terminated.

The magistrate further recommended inter alia an order of legal custody of D.S. to Ms.

Roby.

        {¶10}    On March 11, 2015, appellant filed an objection to the magistrate's

decision.

        {¶11} On May 12, 2015, the trial court, following a non-oral hearing, issued a

judgment entry overruling the objections and adopting the magistrate's decision.

        {¶12} Appellant filed a notice of appeal on May 29, 2015. She herein raises the

following four Assignments of Error:

        {¶13} “I. THE MOTHER CONTENDS THAT THE TRIAL COURT ERRED IN

AWARDING LEGAL CUSTODY OF HER CHILDREN TO THREE SEPARATE

CAREGIVERS BASED UPON THE MOTHER RESOLVING OR SUBSTANTIALLY

MITIGATING THE PROBLEMS THAT LED TO THE NECESSITY FOR THE

TEMPORARY CUSTODY. THE TRIAL COURT'S DECISION IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.
Fairfield County, Case No. 15 CA 30                                                       4


       {¶14} “II. THE COURT ERRED BY NOT FIRST DETERMINING THAT THE

MOTHER WAS UNSUITABLE TO PARENT HER CHILDREN.

       {¶15} “III. THE AWARDING OF LEGAL CUSTODY TO THREE SEPARATE

CAREGIVERS IS NOT IN THE CHILDREN'S BEST INTEREST AND IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY CLEAR

AND CONVINCING EVIDENCE.

       {¶16} “IV. THE MOTHER CONTENDS THE TRIAL COURT ERRED IN ITS

RELIANCE ON THE REPORTS OF THE GUARDIAN AD LITEM FOR [THE OLDER A.S.]

AND A.S. BASED UPON HER NOT FULFILLING THE REQUIREMENTS OF A

GUARDIAN AD LITEM AS OUTLINED IN THE SUPREME COURT RULES OF

SUPERINTENDENCE FOR COURTS OF OHIO, RULE 48(D).”

                                             I.

       {¶17} In her First Assignment of Error, appellant challenges the trial court’s award

of legal custody of D.S. to Nicole Roby, asserting that she has “resolv[ed] or substantially

mitigat[ed]” the problems leading to agency intervention.

       {¶18} Appellant first directs us to the following factor for consideration under R.C.

2151.414(E)(1):

       {¶19} “Following the placement of the child outside the child's home and

notwithstanding reasonable case planning and diligent efforts by the agency to assist the

parents to remedy the problems that initially caused the child to be placed outside the

home, the parent has failed continuously and repeatedly to substantially remedy the

conditions causing the child to be placed outside the child's home. ***.”
Fairfield County, Case No. 15 CA 30                                                           5

       {¶20} Appellant further points us to In re C.J.L., 4th Dist. Scioto No. 13CA3545,

2014-Ohio-1766, for the proposition that where the original problems have been resolved

or sufficiently mitigated, a trial court may not make further dispositional orders based upon

the original complaint. Id. at ¶ 22, citing In re Young Children, 76 Ohio St.3d 632, 638,

669 N.E.2d 1140 (1996).

       {¶21} However, our reading of the relevant statutory sections reveals the General

Assembly put the R.C. 2151.414(E) factors in place for purposes of permanent custody

hearings held pursuant to R.C. 2151.414(A) and R.C. 2151.353(A)(4). As such,

consideration of subsection (E)(1), supra, is outside the scope of the present R.C.

2151.353(A)(3) legal custody issues. Furthermore, both C.J.L. and Young Children were

written in the context of trial court jurisdiction following the expiration of the “sunset date”

under R.C. 2151.353(F), which does not impact the case sub judice.

       {¶22} Accordingly, appellant’s First Assignment of Error is overruled.

                                              II.

       {¶23} In her Second Assignment of Error, appellant contends the trial court erred

in not finding her unsuitable prior to making its decision to change legal custody. We

disagree.

       {¶24} This Court has recognized that once a child has been adjudicated

dependent, it is no longer necessary to find the parent unsuitable since this is already a

determination via the dependency hearing; the focus must be on the best interest of the

child. See In re Burnette, 5th Dist. Licking No.2007CA00076, 2007–Ohio–6269, ¶ 28,

citing In re C.R., 108 Ohio St.3d 369, 843 N.E.2d 1188, 2006–Ohio–1191, ¶ 10–¶ 12

(additional citations omitted).
Fairfield County, Case No. 15 CA 30                                                          6

       {¶25} In the case sub judice, all three children at issue were found to be

dependent via judgment entry on November 26, 2013. As such, it is not incumbent herein

to focus on the issue of parental unsuitability; we will instead analyze the issue of best

interests, as set forth infra.

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

                                              III.

       {¶27} In her Third Assignment of Error, appellant argues the trial court’s award of

legal custody of D.S. to Nicole Roby was not in the child’s best interest. We disagree.

       {¶28} In considering the best interest issue, we first note that as an appellate

court, we are not fact finders; we neither weigh the evidence nor judge the credibility of

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

evidence upon which the fact finder could base his or her judgment. Cross Truck v.

Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911. A reviewing court must determine

whether the finder of fact, in resolving conflicts in the evidence, clearly lost his or her way

and created such a manifest miscarriage of justice that the judgment must be reversed

and a new trial ordered. See Hunter v. Green, 5th Dist. Coshocton No. 12–CA–2, 2012–

Ohio–5801, 2012 WL 6094172, ¶ 25, citing Eastley v. Volkman, 132 Ohio St.3d 328, 972

N.E.2d 517, 2012–Ohio–2179. It is well-established that the trial court 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.

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

disposition of legal custody, some Ohio courts have recognized that “the statutory best
Fairfield County, Case No. 15 CA 30                                                           7


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. Summit No. 24317,

2009–Ohio–333, ¶ 7, citing In re T.A., 9th Dist. Summit No. 22954, 2006–Ohio–4468, ¶

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).

       {¶30} As indicated previously herein, D.S. has a number of medical issues,

including scoliosis, hip dysplasia, and placement of a shunt on her brain. She was

previously diagnosed as a “failure to thrive” child. The ongoing agency caseworker in the

case sub judice, Heather Stoneburner, testified that she was aware that Nicole Roby had

recently dealt with her own teenage daughter’s removal from her home in an ongoing

domestic relations matter. However, Stoneburner indicated no concerns about Ms.

Roby’s ability to care for D.S. In fact, Ms. Roby had been very consistent in participating

in numerous medical appointments for D.S., while failure to attend such appointments

has been a recurrent problem for appellant. See Tr. at 206, 222-224, 465. D.S. is bonded

with Ms. Roby and appears happy. Tr. at 206. Appellant nonetheless points out that Ms.

Roby recently had to change residences and move in with her mother, where Ms. Roby

and D.S. are sharing a bedroom. See Tr. at 477.

       {¶31} Regarding appellant’s most recent activity on the case plan, Stoneburner

testified in part as follows:
Fairfield County, Case No. 15 CA 30                                                           8


       {¶32} “I had asked that she attend counseling. She hasn't been able to do that.

And I had asked for [appellant’s boyfriend] Mark not to be around the children. She wasn't

able to do that. She's maintained housing and employment. She did complete parent

education and continues to visit and have a bond with the children. The concern regarding

her ability to protect the children from unhealthy persons is still there.”

       {¶33} Tr. at 200.

       {¶34} Appellant further emphasizes that all three children were allowed extended

visitation time with appellant for a time, and Stoneburner indicated that on her

unannounced checks on the children, they were doing well. See Tr. at 220-221. However,

appellant concedes the agency stopped these visits because of an incident where

appellant kept A.S. (the middle child) overnight after the caregiver left to attend an activity.

Appellant’s Brief at 38. Appellant nonetheless maintains she is prepared and willing to

give D.S. a secure home, despite the trial court’s conclusion that the Nicole Roby is an

appropriate caregiver who is able to a safe home for D.S., and the guardian ad litem’s

assessment that appellant continues to have difficulty prioritizing her children over her

relationships. It appears undisputed that appellant has struggled with a dependent

personality disorder impacting her parenting role.

       {¶35} Appellant also abruptly adds an ancillary argument, not separately assigned

as described in App.R. 16(A), that the trial court should have reviewed evidence that

allegedly arose after the magistrate issued her decision. Upon review, we find no

reversible error or abuse of discretion by the trial court in this regard.

       {¶36} In analyzing the difficult decisions that must be made in these situations, we

remain mindful that unlike in a permanent custody proceeding where a juvenile court's
Fairfield County, Case No. 15 CA 30                                                         9


standard of review is by clear and convincing evidence, the standard of review in legal

custody proceedings is a preponderance of the evidence. See In re A.C., 12th Dist. Butler

No. CA2006–12–105, 2007–Ohio–3350 ¶ 14. In a similar vein, a juvenile court's

disposition of legal custody to a relative or third party is different from permanent custody

to an agency because, among other things, it leaves intact residual parental rights,

privileges, and responsibilities. In re: N.P. 9th Dist. Summit No. 21707, 2004–Ohio–110,

¶ 23 (additional citations and internal quotations omitted). In this instance, upon review of

the record and the findings of fact and conclusions of law therein, we find no basis to alter

the decision of the trier of fact, and we conclude the grant of legal custody D.S. to Ms.

Roby was made in the consideration of the child's best interests and did not constitute an

error or an abuse of discretion.

       {¶37} Accordingly, appellant's Third Assignment of Error is overruled.

                                             IV.

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

relying on the recommendations of the guardian ad litem, Attorney Alyssa Parrott, who

appellant claims did not properly perform her duties under Sup.R. 48(D). We disagree.

       {¶39} Rule 48(D) of the Ohio Rules of Superintendence is a lengthy statement of

the basic responsibilities of a guardian ad litem serving in an Ohio court, which are to be

performed “unless impracticable or inadvisable to do so.” These responsibilities include

representing the best interest of the child for whom the guardian is appointed, maintaining

independence, objectivity, and fairness, acting as an officer of the court, participating in

pertinent hearings, resolving any conflicts of interest that may arise, meeting qualifications

and training requirements, making reasonable efforts to become informed about the case
Fairfield County, Case No. 15 CA 30                                                      10


and to contact the parties, maintaining necessary confidentiality, and numerous other

considerations.

       {¶40} 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, citing In re E.W., 4th Dist. Washington Nos. 10CA18, 10CA19, 10CA20. 2011–Ohio–

2123, ¶ 15. In general, the Ohio Rules of Superintendence are “purely internal

housekeeping rules which do not create substantive rights in individuals or procedural

law.” Elson v. Plokhooy, 3rd Dist. Shelby No. 17–10–24, 2011–Ohio–3009, ¶ 40.

       {¶41} The record indicates that the GAL, Attorney Parrott, eventually resigned

after a conflict developed, but only as to the case of D.S., not A.S. and A.S. On December

12, 2014, appellant filed a motion to continue the legal custody evidentiary hearing,

setting forth a number of claimed failures by Parrott to carry out her responsibilities. The

trial court denied appellant’s motion to continue; however, appellant continues to assert

that Parrott inter alia failed to make adequate contact with the children, neglected

requisite visits to the caregivers’ homes, and did not meet with appellant’s witnesses or

appellant’s boyfriend outside of court.

       {¶42} We emphasize that the trial court, as trier of fact, is permitted to assign

weight to the guardian ad litem's testimony and recommendation and to consider it in the

context of all the evidence before the court. In re T.C., 6th Dist. Lucas No. L-15-1106,

2015-Ohio-3665, ¶ 23, citing In re M.Z., 9th Dist. Lorain No. 11CA010104, 2012–Ohio–

3194. The decision of whether to consider a guardian ad litem report, even when the
Fairfield County, Case No. 15 CA 30                                                          11

guardian did not fully comply with Sup.R. 48(D), is within a trial court's discretion. See

Corey v. Corey, 2nd Dist. Greene No. 2013–CA–73, 2014–Ohio–3258, ¶ 9.

       {¶43} Upon review of the record, we are unpersuaded that the trial court abused

its discretion in utilizing the participation of Attorney Parrott as the guardian ad litem prior

to her resignation from that role in the present case.

       {¶44} Appellant's Fourth Assignment of Error is therefore overruled.

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

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


By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.



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