[Cite as In re F.C., 2023-Ohio-4319.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

IN RE F.C., III :

Minor Child :

No. 112617

[Appeal by I.C., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 30, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Juvenile Division

Case No. AD-20908939

Appearances:

Scott J. Friedman, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Joseph C. Young, Assistant Prosecuting 

Attorney, for appellee. 

SEAN C. GALLAGHER, J.:

Appellant I.C. (“Mother”) appeals the decision of the Cuyahoga 

County Court of Common Pleas, Juvenile Division, that awarded legal custody of her

minor child, F.C., III (“the child”), to his paternal aunt. Upon review, we affirm the 

judgment of the juvenile court.
In October 2020, the Cuyahoga County Division of Children and 

Family Services (“CCDCFS”) filed a complaint for dependency and temporary 

custody of the child to CCDCFS. At the adjudicatory hearing, Mother stipulated to 

certain allegations of the complaint that alleged in part that the child previously was 

adjudicated dependent and was committed to the legal custody of his paternal 

grandmother, but the paternal grandmother could no longer care for the child 

because she passed away; that Mother has five other children who were adjudicated 

and removed from her care; and that Mother had not fully resolved the issues that

led to the removal of her other children. 

In a journal entry issued on December 22, 2020, the juvenile court 

adjudicated the child to be dependent and committed the child to the temporary 

custody of CCDCFS. The child was placed in the care of his paternal aunt, L.B., 

where all of his basic and emotional needs were being met.

In the course of the proceedings, there were numerous continuances, 

several motions for legal custody were denied, and temporary custody to CCDCFS 

was extended. In August 2022, CCDCFS filed a motion to modify temporary custody 

to permanent custody, and it later moved to amend the dispositional prayer from 

permanent custody to legal custody to L.B. Mother requested legal custody to 

herself. 

Trial was held on February 28, 2023, approximately two and a half 

years after the complaint had been filed. On the date of trial, the parties requested

a continuance that was denied by the juvenile court. On March 28, 2023, the 
juvenile court issued a journal entry denying Mother’s motion for legal custody to 

herself and committing the child to the legal custody of L.B. Mother timely 

appealed.

Mother raises three assignments of error for our review, which we 

shall address out of order. Under her second assignment of error, Mother claims 

the juvenile court abused its discretion by denying the request for a continuance of 

trial because two witnesses were not present to testify.

Generally, the decision to grant or deny a continuance is within the 

sound discretion of the trial court and will not be reversed absent an abuse of 

discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981), citing 

Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). Relevant 

factors to consider include the length of the delay, prior continuances, 

inconvenience, and the reasons for the delay. State v. Froman, 162 Ohio St.3d 435, 

2020-Ohio-4523, 165 N.E.3d 1198, ¶ 91, citing State v. Landrum, 53 Ohio St.3d 107, 

115, 559 N.E.2d 710 (1990). Pursuant to Juv.R. 23, “[c]ontinuances shall be granted 

only when imperative to secure fair treatment for the parties.” Pursuant to 

Loc.R. 35(C) of the Cuyahoga County Court of Common Pleas, Juvenile Division, 

“[n]o case will be continued on the day of trial or hearing except for good cause 

shown, which cause was not known to the party or counsel prior to the date of trial 

or hearing * * *.”

Mother argues that the juvenile court should have granted a 

continuance because the case worker and the original guardian ad litem were not 
present to testify at trial. The record reflects that before the trial date, the guardian 

ad litem (“GAL”) filed a “Notice of substitute counsel (guardian ad litem)” indicating 

that although she was not available for the trial date, she had filed a supplemental 

report and recommendation and had arranged for substitute counsel to appear for 

the trial. No objection was filed, the substitute counsel appeared at trial, and Mother 

did not request a continuance until the trial date. Further, although the case worker 

was not present at trial due to illness, CCDCFS indicated that it could proceed with 

the assigned supervisor, who was present to testify in the case. 

The juvenile court considered relevant factors. The court stated that

nothing was brief about the case, which had been pending for approximately two 

and a half years. The court reviewed the procedural history of the case, recounted 

multiple hearings that were held and rulings that were made, noted there had been 

prior continuances and two extensions of temporary custody, and indicated that the

court had yielded multiple times in the matter. The court stated that it “does not 

find that a continuance in the matter serves the best interest of this child[,]” that 

“[t]he permanency of this child is paramount[,]” and that “[t]here would be no 

further delay.”

Our review reflects that good cause was not shown in this matter and 

that the juvenile court did not abuse its discretion in denying the motion for 

continuance. The second assignment of error is overruled.

Under the third assignment of error, Mother argues that the juvenile 

court erred and violated her due process rights by admitting the GAL’s report into 
evidence and considering the GAL’s recommendation without the GAL being 

present and subject to cross-examination at the hearing. In support of her 

argument, Mother cites to In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 

N.E.2d 485, in which the Supreme Court of Ohio has held that in a permanent 

custody proceeding in which the GAL’s report will be a factor in the trial court’s 

decision, parties “have the right to cross-examine the guardian ad litem concerning 

the contents of the report and the basis for a custody recommendation.” Id. at

syllabus. This right has been found to apply to legal custody cases. In re A.K., 9th 

Dist. Summit No. 26291, 2012-Ohio-4430, ¶ 23.

The record in this case reflects Mother never objected to the GAL’s 

notice that substitute counsel for the GAL would be appearing at trial, nor did 

Mother object to the GAL’s third supplemental report and recommendation that was 

filed prior to trial or otherwise challenge the report. Further, Mother failed to raise 

any objection at trial to the recommendation provided by substitute counsel for the 

GAL, who had reviewed the original GAL’s report and heard the testimony at trial;

and Mother never sought to cross-examine the substitute counsel for the GAL after 

she stated her recommendation at the dispositional hearing. 

By failing to object in the trial court, Mother has forfeited all but plain 

error on appeal. In re A.D., 8th Dist. Cuyahoga No. 85648, 2005-Ohio-5441, ¶ 7; In 

re S.B., 8th Dist. Cuyahoga No. 85560, 2005-Ohio-3163, ¶ 18; see also In re L.W., 

7th Dist. Jefferson Nos. 22 JE 0010 and 22 JE 0011, 2022-Ohio-3547, ¶ 24. It is 

well established that plain error in civil cases is “sharply limited to the extremely 
rare case involving exceptional circumstances where the error, left unobjected to at 

the trial court, rises to the level of challenging the legitimacy of the underlying 

judicial process itself.” (Emphasis sic.) Goldfuss v. Davidson, 79 Ohio St.3d 116, 

122, 679 N.E.2d 1099 (1997).

Generally, a GAL’s report is not considered evidence but is merely 

submitted as additional information for the court’s consideration. See In re L.W. at 

¶ 23. Although Mother claims she was deprived of the opportunity to cross-examine 

the original GAL, she does not raise any specific challenges to the information 

provided in the report and recommendation of the GAL or to the oral 

recommendation provided by the substitute counsel for the GAL, whose 

recommendation was consistent with the report. Further, much of the information 

in the report was introduced at trial through the testimony of the CCDCFS 

supervisor.

Insofar as Mother cites to Sup.R. 48.06(A)(4), which states “[a] 

guardian ad litem shall be available to testify at any relevant hearing and may orally 

supplement the report at the conclusion of the hearing[,]” the Rules of 

Superintendence do not create substantive rights and generally, noncompliance 

therewith is not grounds for reversal. See, e.g., State v. Akladyous, 12th Dist. Butler 

No. CA2021-12-164, 2023-Ohio-3105, ¶ 33; In re A.D., 3d Dist. Seneca No. 13-22-12, 

2023-Ohio-2442, ¶ 52; In re Alleged Dependent Child, 4th Dist. Jackson No. 

22CA13, 2023-Ohio-688, ¶ 37. Further, in this instance, substitute counsel for the 
GAL was present at trial, and Mother has not shown the result of the trial would 

have been different if the original GAL had been available to testify.

Under the circumstances herein, we do not find the juvenile court

committed plain error in considering the GAL’s report or the recommendation. 

Accordingly, the third assignment of error is overruled.

Under her first assignment of error, Mother claims the juvenile court 

abused its discretion and violated her due-process rights by awarding legal custody 

of the child to L.B. and denying Mother’s motion for legal custody. An award of legal 

custody vests in the custodian the physical care and control of the child while the 

natural parents retain residual parental rights, privileges, and responsibilities. In re 

E.M.B.T., 8th Dist. Cuyahoga No. 109479, 2020-Ohio-4308, ¶ 24, citing 

R.C. 2151.011(B)(21), 2151.011(B)(31), and 2151.353(A)(3)(c); see also In re C.R., 108 

Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 15, 17.

Initially, Mother claims that the juvenile court erred when it awarded 

legal custody to L.B. without first confirming that she signed a statement of 

understanding in conformance with R.C. 2151.353(A)(3), which requires that “[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 

the provisions listed in R.C. 2151.353(A)(3)(a)-(d).

The record reflects that the paternal aunt had previously filed a 

motion for legal custody in the matter with a signed statement of understanding. 
The juvenile court asked if the parties were satisfied with the statement of 

understanding from L.B. The prosecutor represented that L.B. was present at the 

court and was available to be called with questions on the statement of 

understanding. It also was represented that the previously signed statement was 

faulty, but another one was submitted for filing and the prosecutor stated he could 

“run downstairs and grab it off the top.” That statement of understanding, which 

was later processed for filing, was signed by L.B. prior to trial. The juvenile court 

did not deem it necessary to question L.B., none of the parties asked to question 

L.B., and no objection was raised. Mother has not demonstrated plain error 

occurred, and we are not otherwise persuaded by her argument. See, e.g., In re E.J., 

12th Dist. Warren No. CA2014-07-098, 2015-Ohio-731, ¶ 10-13;In re K.M.A.T., 10th 

Dist. Franklin No. 13AP-832, 2014-Ohio-2420, ¶ 29; In re W.A., 5th Dist. 

Muskingum No. CT2013-0002, 2013-Ohio-3444, ¶ 15.

Next, we address Mother’s challenge to the trial court’s decision on 

legal custody. Although parents have a fundamental interest in the care, custody, 

and control of their children, the natural rights of parents are not absolute and are 

always subject to the ultimate welfare of the child. In re B.C., 141 Ohio St.3d 55, 

2014-Ohio-4558, 21 N.E.3d 308, ¶ 19-20, citing In re Cunningham, 59 Ohio St.2d 

100, 106, 391 N.E.2d 1034 (1979). “[T]he best interests of the child are paramount 

in any custody case,” and courts are to liberally interpret the statutes under 

R.C. Chapter 2151 “to provide for the care and protection of the child * * *.” In re 
A.B., 110 Ohio St.3d 230, 2006-Ohio-4359, 852 N.E.2d 1187, ¶ 32, citing 

R.C. 2151.01(A).

“A trial court must determine the appropriateness of legal custody in 

accordance with the best interest of the child as supported by the preponderance of 

the evidence.” In re J.W., 8th Dist. Cuyahoga No. 108139, 2019-Ohio-3666, ¶ 15, 

citing In re G.W., 8th Dist. Cuyahoga No. 103706, 2016-Ohio-5242, ¶ 21. 

“‘Preponderance of the evidence’ means ‘evidence that’s more probable, more 

persuasive, or of greater probative value.’” In re C.V.M., 8th Dist. Cuyahoga 

No. 98340, 2012-Ohio-5514, ¶ 7, quoting In re D.P., 10th Dist. Franklin No. 05AP117, 2005-Ohio-5097, ¶ 52. 

The factors listed under R.C. 2151.414(D) may be instructive when 

determining the child’s best interest in a legal custody case. In re V.P., 8th Dist. 

Cuyahoga No. 109649, 2020-Ohio-5626, ¶ 32, citing In re G.M., 8th Dist. Cuyahoga 

No. 95410, 2011-Ohio-4090, ¶ 16. Those factors include the following: the 

interaction and interrelationship of the child with the child’s parents, relatives, and 

caregivers; the wishes of the child; the custodial history of the child; and the child’s 

need for a legally secure placement. R.C. 2151.414(D). There is not one element that 

is given greater weight than the others under the statute. In re Schaefer, 111 Ohio 

St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. In custody matters, a juvenile 

court has broad discretion in making dispositional orders in the best interest of the 

child. See Reynolds v. Goll, 75 Ohio St.3d 121, 124-125, 661 N.E.2d 1008 (1996).
Mother argues that she completed case plan services, was employed, 

and had appropriate housing. Also, there were little to no concerns with parenting 

or with her interactions with the child. However, despite the commendable progress 

Mother has made, the juvenile court properly considered all relevant factors in 

determining the best interest of the child, and its decision to grant legal custody to 

L.B. was supported by a preponderance of the evidence in the record.

The CCDCFS supervisor testified that the child had not been in the 

care of Mother since birth, that Mother had not always been consistent with 

visitation, that there needed to be some bonding, and that Mother needed to be able 

to care for the child along with two of her younger children. As emphasized by the 

CCDCFS supervisor, “[v]isits were crucial in this case.” Mother tested positive for 

marijuana in April 2022 and reported being overwhelmed with the care of her 

children during visits. Further, Mother had not visited with the child since October 

2022 because “Mother was not making herself available to the [a]gency” and did not 

always communicate with the agency. At the time of trial, there had been a recent 

meeting that Mother attended and there was discussion of restarting visitation. The 

CCDCFS supervisor testified that the child is bonded with L.B. and had expressed 

that he wishes to reside with L.B. This was consistent with the GAL’s report, which 

expressed the wishes of the child to remain with his paternal aunt and to maintain 

contact with his parents and siblings. The agency believed that it was in the best 

interest of the child for legal custody to be awarded to L.B., as did the GAL. 
Mother confirmed during her testimony that she had missed 

visitations in the past and that she did not always reply to communications, yet she 

understood the importance of the visitations. Mother expressed that she wanted 

custody because she wanted the chance to be with her child and to have more time 

with him. Mother agreed that the child is comfortable with L.B. because he has 

resided with L.B. for a good portion of his life.

The substitute counsel for the GAL, based upon a review of the GAL 

report and upon hearing the testimony, also believed it would be in the best interest 

of the child to grant legal custody to L.B. Other testimony and evidence were

presented and considered by the juvenile court.

The juvenile court made findings that are consistent with the record, 

and its decision reflects that it considered all the best-interest factors under 

R.C. 2151.414(D)(1) and other relevant factors. The juvenile court concluded that 

continuing the child’s current placement with L.B. is in the child’s best interest and 

that “return to the home of the parent(s) will be contrary to the child’s best interest.” 

The juvenile court also observed that “the child has been living in a stable home 

environment with the child’s current relative caregiver for the past twelve 

consecutive months; that the relatives continue to express a desire to provide 

permanency for the child; and that the removal of the child from the relatives would 

be detrimental to the child’s well-being.” The juvenile court committed the child to 

the legal custody of L.B. and ordered the parents to have parenting time by 

agreement of the parties.
Upon our review, we find the juvenile court did not err in awarding 

legal custody to L.B. and denying Mother’s motion for legal custody. The first 

assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of 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, juvenile division, 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.

__________

SEAN C. GALLAGHER JUDGE

FRANK DANIEL CELEBREZZE III, P.J., CONCURS;

MICHAEL JOHN RYAN, J., CONCURS IN JUDGMENT ONLY (WITH 

SEPARATE OPINION)

MICHAEL JOHN RYAN, J., CONCURRING IN JUDGMENT ONLY:

I concur in judgment only and write separately to touch upon two 

recent decisions from this court and to share concerns over the use of a substitute 

GAL during a custody trial.

Best practice dictates that trial courts require the attendance at trial 

of the GAL of record if the court intends to rely on the GAL report or GAL testimony 

in making a custody determination. A substitute GAL cannot testify to firsthand 
knowledge of the case and should not be giving a recommendation that relies solely 

on trial testimony and a review of the original GAL’s report, as was done in this case. 

In M.K. v. R.K., 8th Dist. Cuyahoga No. 112291, 2023-Ohio-3475, the 

trial court issued its ruling before the parties had a chance to cross-examine the 

GAL. Although the parties did not have the opportunity to object before the court 

issued its ruling (the court issued its ruling mid-trial), this court held that the trial 

court’s reliance on the GAL’s report without having afforded the parties the 

opportunity to cross-examine the GAL was an abuse of discretion. Id. at ¶ 33.

In In re D.M., 8th Dist. Cuyahoga No. 112215, 2023-Ohio-3874, a 

substitute GAL appeared on behalf of the GAL of record. Appellee’s counsel tried to 

call the substitute GAL as a witness, but the court would not let the substitute GAL 

testify, stating that the substitute was “not a fact witness for what you assert.” 

Despite the original GAL’s nonappearance at the hearing, the trial court relied on 

his report. This court concluded that the trial court improperly relied on the GAL’s 

report in making a custody determination because the GAL was not present for 

cross-examination. Id. at ¶ 35. 

In this case, after the testimony of the witnesses, the substitute GAL 

put his opinion regarding the child’s placement on the record, which he said was 

based on his review of the GAL report and “the testimony heard today.” (Tr. 69). I 

am concerned that a trial court would rely on the statements of a substitute GAL 

who has no firsthand knowledge of the case. Although a GAL report is not evidence, 

when the trial court relies on the report in making custody decisions, the proponent 
of the report should be available for cross-examination as provided for in the Rules 

of Superintendence.