[Cite as In re R.K., 2012-Ohio-2739.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
IN RE:       R.K. and        M.N.              :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                                               :       Hon. John W. Wise, J.
                                               :
                                               :
                                               :       Case No. CT2012-0006
                                               :
                                               :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Muskingum County
                                                   Court of Common Pleas, Juvenile Division,
                                                   Case No. 21130123 & 21130124

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            June 14, 2012

APPEARANCES:

For Appellee                                       For Appellant

MOLLY MARTIN                                       JEANETTE M. MOLL
Assistant Prosecuting Attorney                     P.O. Box 461
Muskingum County Children Services                 803B Market Street
22 North Fifth Street                              Zanesville, OH 43701
Zanesville, OH 43701


BARBARA CAFFARATTI                                 For Father
Guardian Ad Litem                                  Kevin Van Horn
45 North Fourth Street                             715 Adair Ave.
Zanesville, OH 43701                               Zanesville, OH 43702
[Cite as In re R.K., 2012-Ohio-2739.]


Gwin, P.J.

        {¶1}     Appellant Stephanie H. appeals a judgment of the Court of Common

Pleas, Juvenile Division, of Muskingum County, Ohio, which granted legal custody of

her minor child, R.K. to his biological father appellee Shawn K. and legal custody of her

minor child M.N. to Cheryl N., the child’s paternal grandmother. Appellant assigns four

errors to the trial court:

        {¶2}     “I. THE MUSKINGUM COUNTY JUVENILE COURT COMMITTED

REVERSIBLE ERROR IN CONDUCTING A DISPOSITIONAL HEARING PRIOR TO

THE CONCLUSION OF THE ADJUDICATORY HEARING SUCH THAT IT FAILED TO

BIFURCATE AS REQUIRED BY LAW.

        {¶3}     “II. THE MUSKINGUM COUNTY JUVENILE COURT COMMITTED

REVERSIBLE ERROR IN GRANTING THE DISPOSITION OF LEGAL CUSTODY AS

THE COURT LACKED JURISDICTION.

        {¶4}     “III. THE MUSKINGUM COUNTY JUVENILE COURT COMMITTED

REVERSIBLE ERROR DUE TO THE FAILURE OF THE GUARDIAN AD LITEM.

        {¶5}     “IV. THE MUSKINGUM COUNTY JUVENILE COURT COMMITTED

REVERSIBLE ERROR DUE TO THE INEFFECTIVE ASSISTANCE OF MOTHER’S

TRIAL COUNSEL.”

        {¶6}     The record indicates appellee Muskingum County Children’s Services filed

complaints on August 1, 2011, alleging both children were dependent, neglected, and/or

abused children. The court placed M.N., then approximately 20 months old, in the

temporary custody of Cheryl N., her paternal grandmother. The court placed R.K., then

aged six, with Shirley K., his paternal grandmother.
Muskingum County, Case No. CT2012-0006                                                      3


       {¶7}    The trial court conducted a hearing for adjudication and disposition

commencing on September 27, 2011. The hearing was completed on January 10,

2012. In the interim, on October 5, 2011, Cheryl N. filed a motion for legal custody of

M.N.    On January 10, 2012, the court adjudicated the children neglected and

dependent, and awarded legal custody of R.K. to his father and legal custody of M.N. to

the grandmother.

                                                  I.

       {¶8}    In her first assignment of error, appellant argues the trial court erred in not

bifurcating the adjudicatory hearing and the dispositional hearing.

       {¶9}    R.C. 2151.35 (B)(1) provides that if the court in a adjudicatory hearing

determines that a child is abused, neglected or dependent, the court shall not issue a

dispositional order until after the court holds a separate dispositional hearing. The court

may hold the dispositional hearing for an adjudicated, abused or dependent child

immediately after the adjudicatory hearing. Juv. R. 34 substantially mirrors the statutory

requirement.

       {¶10} The Supreme Court has held it is reversible error to fail to bifurcate the

adjudicatory and dispositional hearings. In Re: Baby Girl Baxter, 17 Ohio St. 3d 229,

479 N.E. 2d 257 (1985).       The court explained the proceedings must be bifurcated

because the issues raised and the procedures used at each hearing differ. The issue in

the adjudicatory stage is whether the petitioner has proven by clear and convincing

evidence that the child is dependent, neglected, or abused, while the issue at the

dispositional stage involves a determination of the child’s best interest. There must be

strict adherence to the Rules of Evidence at the adjudicatory stage, but any material
Muskingum County, Case No. CT2012-0006                                                 4


and relevant evidence, including hearsay, opinion, and documentary evidence, is

admissible at the dispositional stage pursuant to Juv. R. 34.   Baxter at 260-261. The

Court of Appeals for Marion County subsequently found that another rationale for

bifurcating the hearing is to accord all persons the opportunity to present evidence on

each issue. In Re: Malone, 178 Ohio App. 3d 219, 2008-Ohio-4412, 897 N.E. 2d 672 ¶

20, citations deleted.

       {¶11} At the hearing the trial court properly began by hearing appellee Children’s

Services’ evidence and testimony as to adjudication. After Children’s Services stated it

had completed its evidence for the adjudication stage, the court called a short recess.

When the court resumed, counsel for appellant asked the court to wait because one of

appellant’s witnesses had not yet returned to the courtroom. In addition, appellee’s

counsel indicated appellee had subpoenaed Dr. Howard Beazel, a psychologist who

had examined appellant. Appellee intended to present Dr. Beazel’s testimony in the

dispositional stage of the case, but during the recess the doctor had informed counsel

that he needed to conclude his testimony before noon because he had a plane to catch.

       {¶12} The court inquired whether anyone had an objection to the doctor

testifying out of order and appellant’s counsel indicated appellant did object because

any testimony on the issue of disposition might taint the adjudicatory portion of the

hearing. Counsel noted the court could not include or weigh the doctor’s testimony in

the adjudicatory hearing.    The court discussed with all parties the timing of the

upcoming lunch break and how the afternoon time would be spent, and eventually

appellant’s counsel withdrew his objection to the court receiving Dr. Beazel’s testimony

out of order. The doctor then testified and was cross-examined by appellant’s counsel
Muskingum County, Case No. CT2012-0006                                                  5


as well as counsel for each child’s father and by the guardian ad litem. Then the court

excused Dr. Beazel and recessed for lunch.

       {¶13} When the court returned from the lunch recess, the appellant was not

present in the courtroom.     The court noted for the record appellant’s attorney had

attempted to call her on her cell phone, but it was turned off. Appellant’s attorney had

no explanation for appellant’s absence.         Because appellant was the only party

remaining who had any evidence to present with regard to adjudication, the court

announced it would move to disposition with the understanding that if appellant returned

she could present any evidence as to adjudication. The court then accepted testimony

from appellee Children’s Services regarding disposition.

       {¶14} After the State’s third disposition witness, counsel for appellant called

appellant’s friend to testify regarding the issue of adjudication. At some point appellant

returned to the court and also testified as to adjudication. Subsequently, appellant’s

attorney called her to testify on disposition and appellee Shawn K. called two witnesses

on behalf of his request for legal custody of his son.

       {¶15} Certainly the progress of the two hearings was atypical. However, some

of the disruption was obviously caused by appellant’s failure to return promptly to the

courtroom after the lunch recess. The trial court chose to accommodate the various

witnesses and not to delay the hearings unnecessarily. After appellant’s counsel

withdrew his objection to Dr. Beazel’s testifying out of order, counsel did not object

further to the proceedings.

       {¶16} In a dependency neglect or abuse case, the matter is tried to the bench

rather than to a jury. In the case of State v. Fautenberry, 72 Ohio St. 3d 435, 1995-
Muskingum County, Case No. CT2012-0006                                                 6


Ohio-209, 650 N.E. 2d 878, the Ohio Supreme Court reviewed a capital murder case

wherein it found the admission of improper evidence was not reversible error absent an

indication that the three-judge panel was influenced by or considered inappropriate

evidence in arriving at its sentencing decision. The court reminded us that in a bench

trial in a criminal case the court is presumed to consider only relevant, material, and

competent evidence in arriving at its judgment unless it affirmatively appears on the

record to the contrary. Id., at 439, citations deleted.

       {¶17} Here we find the record demonstrates the court clearly understood which

evidence was offered on the issue of adjudication and which on the issue of disposition.

There is no indication in the record the court, or any party, counsel, or witness, became

confused as to the purpose for which evidence was being offered. Each time the focus

changed between adjudication and disposition, the court announced the change in

focus before receiving the evidence. None of the parties requested findings of fact and

conclusions of law, and the court made none, and there is no indication the court

considered any of the disposition evidence in adjudicating the children neglected and

dependent, and lacking adequate parental care.

       {¶18} On the particular facts and circumstances of this case, we find the court

did in fact bifurcate the two hearings.

       {¶19} The first assignment of error is overruled.

                                                  II.

       {¶20} In her second assignment of error, appellant argues the court lacked

jurisdiction to grant legal custody to R.K.’s father and M.N.’s grandmother.
Muskingum County, Case No. CT2012-0006                                               7


     {¶21} R.C. 2151.353 provides:

     (A) If a child is adjudicated an abused, neglected, or dependent child, the

     court may make any of the following orders of disposition:* * *

           (3) 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. A person

           identified in a complaint or motion filed by a party to the

           proceedings as a proposed legal custodian shall be awarded legal

           custody of the child only if the person identified signs a statement of

           understanding for legal custody that contains at least the following

           provisions:

             (a) That it is the intent of the person to become the legal

             custodian of the child and the person is able to assume legal

             responsibility for the care and supervision of the child;

             (b) That the person understands that legal custody of the child in

             question is intended to be permanent in nature and that the

             person will be responsible as the custodian for the child until the

             child reaches the age of majority. Responsibility as custodian for

             the child shall continue beyond the age of majority if, at the time

             the child reaches the age of majority, the child is pursuing a

             diploma granted by the board of education or other governing
Muskingum County, Case No. CT2012-0006                                                 8


              authority, successful completion of the curriculum of any high

              school, successful completion of an individualized education

              program developed for the student by any high school, or an age

              and schooling certificate. Responsibility beyond the age of

              majority shall terminate when the child ceases to continuously

              pursue such an education, completes such an education, or is

              excused from such an education under standards adopted by the

              state board of education, whichever occurs first.

              (c) That the parents of the child have residual parental rights,

              privileges, and responsibilities, including, but not limited to, the

              privilege of reasonable visitation, consent to adoption, the

              privilege to determine the child's religious affiliation, and the

              responsibility for support;

              (d) That the person understands that the person must be present

              in court for the dispositional hearing in order to affirm the person's

              intention to become legal custodian, to affirm that the person

              understands the effect of the custodianship before the court, and

              to answer any questions that the court or any parties to the case

              may have.

      {¶22} Addressing first R.K. and his father, appellee father Shawn K. did not file a

motion for legal custody and did not complete a statement of understanding. We find

appellee Shawn K. was not required to do so.
Muskingum County, Case No. CT2012-0006                                                   9


         {¶23} We read the statute as providing for a grant of legal custody to either

parent, or, in the alternative, to any other person who files a motion for legal custody

and a statement of understanding.

         {¶24} Furthermore, the right of a parent to the custody of his or her child is one

of the oldest fundamental liberty interests recognized by the American courts. In Re:

Thompkins, 115 Ohio St. 3d 409, 2007-Ohio- 5238, 875 N.E.2d 582, ¶10, citing Troxel

v. Grandville 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Particularly in light of

this fundamental interest, we find appellee Shawn K. was not required to file a motion in

order for the court to consider him as a potential legal custodian for his own biological

child.

         {¶25} We also find appellee Shawn K. was not required to complete a statement

of understanding. The statement is intended to acknowledge and distinguish between

the rights and obligations of the legal custodian and the residual rights retained by the

parent. Further, all parties were on notice that Shawn K. was requesting custody of his

son because he and his wife participated in a home study, the results of which were

made a part of the record.

         {¶26} Regarding M.N. and her grandmother, the record shows the grandmother

filed a motion for legal custody, and completed the required statement of understanding.

She was present at the dispositional hearing and testified on January 10, 2011. She

was cross examined by the guardian ad litem and by appellant’s attorney.

         {¶27} The second assignment of error is overruled.
Muskingum County, Case No. CT2012-0006                                                  10


                                                 III.

       {¶28} In her third assignment of error, appellant argues the court should not

have proceeded with the hearing because the guardian ad litem failed to comply with

Sup. R. 48 requiring her to prepare a final written report to be filed with the court and

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

dispositional hearing.

       {¶29} The record indicates the guardian ad litem filed a report on September 21,

2011, six days before the hearing on the matter. No party objected to the report being

one day late. The guardian ad litem report is captioned “Initial Report”, but it is in fact

the only report filed under these case numbers by the guardian ad litem. We find the

fact it was captioned “initial” does not affect the content of the report.

       {¶30} The third assignment of error is overruled.

                                                 IV.

       {¶31} In her fourth assignment of error, appellant argues she did not receive the

effective assistance of trial counsel because her counsel failed to object to the

presentation of evidence regarding a civil protection order which protected appellant

from M.N’s biological father, failed to subpoena records, failed to object to legal

conclusions offered by various witnesses as to the best interest of the children, and

failed to object to Exhibit 8, for lack of proper foundation. Appellee Shawn K. was

unable to identify the exhibit, which was apparently from the school his step-children

attended. Appellant does not explain how any of the omissions could have changed the

outcome of the case.
Muskingum County, Case No. CT2012-0006                                                 11


      {¶32} To demonstrate ineffective assistance of counsel, a defendant must

satisfy both prongs of a two-prong test articulated in the case of Strickland v.

Washington,    466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).             First, the

defendant must show trial counsel engaged in a substantial violation of an essential

duty to his client, and secondly must show the trial counsel’s ineffectiveness resulted in

prejudice.    State v. Bradley, 42 Ohio St. 3d 136, 141-142,538 N.E.2d 373

(1989), citations deleted.    Prejudice is demonstrated when there is a reasonable

probability that the result would have been different but for the alleged deficiencies of

counsel. Id., paragraph 3 of the syllabus. A court need not address both Strictland

prongs if the defendant fails to prove either one. State v. Ray, Ninth District No. 22459,

2005-Ohio-4941 at ¶ 10.

      {¶33} Appellee Children’s Services asserts ineffective assistance of counsel is

not an appealable issue in the case because it did not seek permanent custody of the

children. Appellee argues because the matter is a legal custody matter, the appellant

retains residual parental rights, and she may ask the court to modify the custody order

at any time. In the alternative, appellee argues, even if it were an appealable issue,

appellant cannot meet the two-prong test because appellant’s counsel participated in

the trial and advocated vigorously on her behalf.       We agree assuming arguendo

appellant can raise this issue, she cannot meet either prong of Strickland. The evidence

that appellant was unable to provide for her children and that the best interest of the

children lay in granting legal custody to other parties was overwhelming.

      {¶34} The fourth assignment of error is overruled.
Muskingum County, Case No. CT2012-0006                                        12


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

Juvenile Division, of Muskingum County, Ohio, is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur




                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            _________________________________
                                            HON. JOHN W. WISE
WSG:clw 0524
[Cite as In re R.K., 2012-Ohio-2739.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN RE:       R.K.     M.N.                     :
                                               :
                                               :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. CT2012-0006




    For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Juvenile Division, of Muskingum County, Ohio, is affirmed.

Costs to appellant.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. WILLIAM B. HOFFMAN


                                                   _________________________________
                                                   HON. JOHN W. WISE
