[Cite as In re A.M. , 2023

- Ohio

- 1523.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

IN RE:

A.M., et al. :

:

:

:

:

: CASE NO. CA 202 2

- 12

- 092

CA2022

- 12

- 093

O P I N I O N

5/ 8 /2023

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS

JUVENILE DIVISION

Case No

. 2021JC05412

Christopher Bazeley

, for appell ant

.

Sharon M. Schnelle, for appellee, Mother.

Andrew J. Helmes, for appellee, Uncle.

Mar k J. Tekulve, Clermont County Prosecutor, Nicholas A. Horton, Assistant Prosecutor,

for appell ee

, Clermont County Children Services

.

Mary Armacost, guardian ad litem.

M

. POWELL

, J.

{¶ 1} Appe llant, the maternal aunt ("Aunt") of Marc and Al fred, appeals a decisionClermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 2

- of the Clermont County Court of Common Pleas, Juvenile Division, denying her motion for

legal custody and granting permanent custody of the children to appellee, Clermont County

Department of Job and Family Services, Children's Division (the "Agency"). 1

{¶ 2} Marc was born in May 2010; Alfred was born in August 2011. The children's

mother and father are not parties to th is appeal and were generally uninvolved in the

proceedings below. Following a dependency case involving the m other and father, Marc

and Alfred were placed in the custody of A unt and her husband ("Uncle") in September

2012. Aunt contacted the Agency in 2018

, stating she could no longer care for the children.

{¶ 3} On July 3, 2018, the A gency filed a complaint in the juvenile court alleging

that the children were dependent. Marc and Alfred were adjudicated dependent and placed

in the temporary custody of the A gency as disposition

. The juvenile court appointed a

guardian ad litem ("GAL ") for the children

. In August 2018, the children were placed in a

foster home where they remained for the duration of the case. Temporary custody of the

children was extended on July 18, 2019

, and again on February 11, 2020

.

{¶ 4} On August 27, 2019, A unt filed a motion for legal custody of the children

. On

June 22, 2020, the Agency moved for permanent custody of the children

. A hearing on the

motions was held before a magistrate on October 2, 2020. The magistrate heard testimony

from a c asework er of the Agency

, Foster Mother

, and Aunt. On January 27, 2021, the

magistrate denied the Agency's motion for permanent custody and granted Aunt's motion

for legal custody

. The Agency and the GAL filed objections to the magistrate ' s decision.

On March 22, 2021, the juvenile court sustained the objections

, finding the magistrate

improperly granted legal custody to Aunt without determining whether it was in the children's

best interest. The juvenile court rem anded the matter to the magistrate "for addition al

1

. "Alfred" and "Marc" are pseudonyms, adopted in the opinion for purposes of privacy and readability.Clermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 3

- evidence to be taken as to whether granting legal custody to the maternal a unt is in the

[ child ren 's ] best interest."

{¶ 5} On remand, a hearing was held on May 21, 2021

, and continued in progress

to June 4, 2021. In the interim, it was discovered that Marc's disposition had not occurred

within the statutory time frame. Consequently, o n June 4, 2021, the juvenile court dismissed

Marc's case

, and the Agency filed a dependency complaint seeking permanent custody of

Marc as the juvenile court's original dispositional order

. 2 T he juvenile court appointed the

GAL for Marc. The June 4, 2021 custody hearing proceeded as scheduled, but concerned

only A lfred. On July 8, 2021, M arc w as adjudicated dependent

. A dispositional hearing for

M arc was held on August 27, 2021 ; t he parties stipulated that the transcript of the October

2, 2020, May 21, 2021

, and June 4, 2021 custody hearing s and additional testimony

concerning events since June 4, 2021

, would serve as the evidence for purposes of

disposition in M arc's case.

{¶ 6} On December 13, 2021, the magistrate issued two separate decisions,

den ying Aunt's motion for legal custody and grant ing the Agency permanent custody of the

children. 3 As part of each of those decisions, the magistrate found that Marc and Alfred

2

. O n March 30, 2022, the Ohio Supreme Court held that if a juvenile court fails to hold a dispositional hearing

within the 90

- day limit set forth in former R.C. 2151.35(B)(1), (1) the juvenile court is required to dismiss the

complaint after 90 days, even if no motion t o dismiss was filed, (2) the juvenile court's failure to hold the

dispositional hearing and dismiss the complaint does not divest the court of its subject

- matter jurisdiction and

its judgment granting temporary custody of the child to a children services agency is voidable, not void , and

(3) on an appeal from a judgment granting permanent custody, res judicata bars a parent from challenging

the juvenile court's jurisdiction based o n the court's failure to have held a dispositional hearing on the issue of

temporary custody within 90 days of the filing of an abuse, neglect, or dependency complaint. In re K.K.

, Slip

Opinion No. 2022

- Ohio

- 3888, ¶ 9

- 10 , 62. See also In re R.B.

, 12th Dist. Butler Nos. CA2022

- 01

- 003 and

CA2022

- 01

- 004, 2022

- Ohio

- 1705 ( overruling this court's holding in In re K.K. , 12th Dist. Butler Nos. CA2020

-

12

- 130

, CA202 1

- 01

- 002 , and CA2021

- 01

- 003, 2021

- Ohio

- 1689, that [ 1 ] a juvenile court is divested of subject

matter jurisdiction to proceed when the court does not hold the necessary dispositional hearing [ s ] within 90

days of the filing of a complaint alleging that a child is abused, neglected, or dependent as required by the

now former R.C. 2151.35 [ B ][ 1 ] , and [ 2 ] the doctrine of res judicata does not apply in such circumstances )

.

3

. In his decision regarding Marc, t he magistrate noted that Aunt did not file a motion for legal custody in

Marc's new case. Nevertheless, pursuant to Civ.R. 15(B) and because "issues relevant to [Aunt] seekingClermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 4

- had been in the temporary custody of the Agency for 12 or more months of a consecutive

2 2

- month period

. 4 Aunt filed objections to the magistrate's decisions, arguing that granting

permanent cu s tody of Marc and Alfred to the Agency and denying her motion for legal

custody was against the manifest weight of the evidence and was not in the children's best

interest.

{¶ 7} On December 7, 2022, the juvenile court overruled Aunt's objections and

adopted the magistrate's decisions

, thereby granting the Agency permanent custody of the

children and denying Aunt's motion for legal custody

. T he juvenile court properly applied

the two

- part test set forth in R.C. 2151.414 (B)(1) to the Agency's motion for permanent

custody of Alfred

, found that Alfred had been in the temporary custody of the Agency for at

least 12 months of a consecutive 22

- month period, and further found that it was in Alfred's

best interest to grant permanent custody to the Agency

. T he juvenile court properly applied

the two

- prong test set forth in R.C. 2151.353(A) (4) to the Agency's request for permanent

custody of Marc, found that Marc could not be placed with his mother or father within a

custody of [Marc] were tried without objection at [ Marc's ] PC trial," the magistrate analyzed Marc's case as if

Aunt had filed a new motion for legal custody. The parties do not challenge this ruling on appeal.

4

. We note that the magistrate incorrectly applied R.C. 2151.414 (B)(1) to the Agency's June 4, 2 021 request

for permanent custody of Marc and should have, instead, applied R.C. 2151.353(A)(4). An agency may obtain

permanent custody of a child in two ways: (1) obtain temporary custody of the child and then file a motion for

permanent custody under R.C. 2151.413 , or (2) request permanent custody as part of its original abuse,

dependency, or neglect complaint under R.C. 2151.353(A)(4)

. In re A.D. , 12th Dist. Clermont No. CA 2021

-

11

- 060, 2022

- Ohio

- 736, ¶ 18 ; In re J.F

. , 8th Dist. Cuyahoga No. 10 5504, 2018

- Ohio

- 96, ¶ 44

. " The distinction

is significant. While both statutes require the agency to show that permanent custody is in a child's best

interest, the statutes contain different predicate circumstances. " In re B.S. , 4th Dist. Pike No. 18CA890, 2018

- Ohio

- 4645, ¶ 56. Because the Agency's June 4, 2021 dependency complaint requested the juvenile court

grant it permanent custody of Marc as part of its initial disposition

, R.C. 2151.353(A)(4) applied to the Agency's

requ est for permanent custody. R.C. 2151.353(A)(4) does not allow a juvenile court to grant an agency permanent custody as the initial disposition, unless the court finds under R.C. 2151.414(E) that the child

cannot be placed with either parent within a reaso nable time or should not be placed with either parent. The

so

- called "12 of 22" provision is neither a predicate circumstance in R.C. 2151.353(A)(4) nor one of the fact o rs

set forth in R.C. 2151.414(E) . The magistrate, therefore, erred in applying R.C. 2151.414(B)(1) and the "12

of 22" provision to the Agency's June 4, 2021 request for permanent custody of Marc

. In re A.D. at ¶ 26

. However, the juvenile court properly applied the correct two

- prong test set forth in R.C. 2151.353(A)(4) to the

Agency's June 4, 2021 request for permanent custody of Marc when it grant ed the Agency permanent custody

of Marc

.Clermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 5

- reasonable time because both parents had demonstrated a lack of commitment toward

Marc and had abandoned him

, and further found that it was in Marc's best interest to grant

permanent custody to the Agency. The juvenile court further found that it was not in the

children 's best interest to grant legal custody to Aunt.

{¶ 8} Aunt now appeals, raising four assignments of error.

{¶ 9} Assignment of Error No. 1:

{¶ 10} THE TRIAL COURT ERRED WHEN IT ALLOWED THE BOYS' GAL TO

SIMULTANEOUSLY ACT AS THEIR ATTORNEY WITHOUT EXPRESSLY APPOINTING

HER TO DO SO.

{¶ 11} Assignment of Error No. 2:

{¶ 12} THE JUVENILE COURT AND THE GAL ERRED BY NOT APPOINTING A

SEPARATE ATTORNEY TO REPRESENT THE BOYS AFTER IT REALIZED THAT

[THEIR] INTERESTS DIVERGED FROM [THEIR] GAL'S.

{¶ 13} In her first assignment of error, Aunt argues that the juvenile court erred in

allowing the GAL, a licensed attorney, to also act as the children's attorney without an

express appointment from the court

. In her second assignment of error, Aunt a rgues that

the juvenile court erred by not appointing a separate counsel for the children

. Aunt asserts

that the GAL's recommendation that Marc and Alfred should be placed in the permanent

custody of the Agency conflicted with the children's wishes and that the children's wishes

were not adequately represented to the court. Th roughout the proceedings below, the

GAL's reports stated that the children wanted to live with Aunt. In support of her

assignments of error, Aunt cites Su p.R. 48.03 and Juv.R. 4(C).

{¶ 14} Generally, when an attorney is appointed as guardian ad litem, as i s the

case here

, "that attorney may also act as counsel for the child, absent a conflict of interest."Clermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 6

- In re L.W.

, 1 2 th Dist. Warren Nos. CA2017

- 05

- 066 thru CA2017

- 05

- 069, 2017

- Ohio

- 8433,

¶ 17

. Thus, because a guardian ad litem is permitted to maintain dual roles in a custody

dispute

, "a court is not required to appoint separate counsel unless the [guardian ad litem 's ]

recommendations regarding th eir best interest conflict with the children's wishes." In re

J.M.

, 12th Dist. Warren No. CA2008

- 12

- 148, 2009

- Ohio

- 4824, ¶ 52, citing In re Williams

,

101 Ohio St.3d 398, 2004

- Ohio

- 1500, ¶ 27

. To determine whether such conflict exists,

juvenile courts should make a case

- by

- case determination of whether a child needs

independent counsel, which involves consideration of the maturity of the child. In re L.W.

at ¶ 1 7. The appointment of independent counsel may be necessary when the child has

consistently and repeatedly expressed a strong desire that differs and is otherwise

inconsistent with the guardian ad litem's recommendations. Id. Because the roles of

guardian ad litem and counsel are different, courts should not presume a dual appointment

when the appointed guardian ad litem is also an attorney, absent a dual express

appointment. In re Borders

, 12th Dist. Brown No. CA 2001

- 10

- 017, 2002

- Ohio

- 2578, ¶ 23.

{¶ 15} Sup.R. 48 .03 sets forth responsibilities for guardians ad litem and provides

that "[u]pon becoming aware [his or her] recommendations differ from the wishes of the

child," the guardian ad litem shall "immediately notify the court in writing with notice to the

parties or affected agencies. The court shall take action as it deems necessary." Sup.R.

48.03(A) (5). We have held that the Super intendence Rules are " administrative directives

only and are not intended to function as rules of practice and procedure

, " and that they are

"purely internal housekeeping rules which are of concern to the judges of the several courts

but create no rights in individual defendants." Pettit v. Pettit

, 12th Dist. Fayette No. CA 2011

-

08

- 018, 2012

- Ohio

- 1801, ¶ 12. Courts have generally held that a guardian ad litem's failure

to comply with Sup.R. 48 is not grounds for reversal of a custody determination. See In reClermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 7

- Z.S.

, 4th Dist. Jackson Nos. 22CA12 and 22CA13, 2023

- Ohio

- 688; Short v. Rhodes

, 6th

Dist. Wood No. WD

- 20

- 066, 2021

- Ohio

- 1845; In re M.S.

, 8th Dist. Cuyahoga Nos. 102127

and 102128, 2015

- Ohio

- 1847. Juv.R. 4(C) provides that if a juvenile court "finds a conflict

exists between the role of the Guardian ad Litem and the interest or wishes of the child, the

court shall appoint counsel for the child[.]"

{¶ 16} During the proceedings below, Aunt failed to request that the juvenile court

appoint an attorney to represent the children in the custody proceedings

, failed to raise the

issue of the GAL's alleged dual role without express appointment

, and did not argue a

conflict existed between the children's wishes and the recommendation of the GAL

. An

appellate court will not consider any error which the complaining party could have called

but did not call to the trial court's attention at a time when such error could have been

avoided or corrected by the trial court. In re Borders

, 2002

- Ohio

- 2578 at ¶ 22. Such errors

are forfeited and may not be raised on appeal except for plain error

. Id. ; In re C. K.

, 12th

Dist. Butler No. CA2008

- 12

- 303, 2009

- Ohio

- 5638.

{¶ 17} Moreover, although Aunt filed objections to the magistrate's December 13,

2021 decisions, she did not specifically raise the issues she now raises in her first two

assignments of error. Objections to a magistrate's decision must be "specific and state with

particularity all grounds for objection." Juv.R. 40(D)(3)(b)(ii). The failure to file specific

objections is treated the same as the failure to file any objections. In re K.L .F.

, 12th Dist.

Butler No s

. CA20 20

- 08

- 083 and CA2020

- 08

- 084, 2 0 21

- Ohio

- 2290, ¶ 9. Juv.R.

40(D)(3)(b)(iv) provides that "[e]xcept for a claim of plain error, a party shall not assign as

error on appeal the court's adoption of any factual finding or legal conclusion * * * unless

the party has objected to that finding as required by Juv.R. 40(D)(3)(b)." Accordingly, we

review Aunt's first and second assignments of error only for plain error.Clermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 8

- {¶ 18} " Plain error review is not favored in civil cases and is defined in such context

as an error that ' seriously affects the basic fairness, integrity, or public reputation of the

judicial process, thereby challenging the legitimacy of the underlying judicial process itself. ' "

In re L.W.

, 2017

- Ohio

- 8433 at ¶ 18, quoting Goldfuss v. Davidson

, 79 Ohio St.3d 116, 1997

-

Ohio

- 401, syllabus. Appellate courts will only recognize plain error in extremely rare cases

with exceptional circumstances. In re A.D.

, 12th Dist. Clermont No. CA2021

- 11

- 060, 2022

-

Ohio

- 736, ¶ 1 7.

{¶ 19} Upon thoroughly reviewing the record, we find no error, plain or otherwise. A

guardian ad litem "shall perform whatever functions are necessary to protect the best

interest of the child." R.C. 2151.281(I). The role of a guardian ad litem is to investigate the

child's situation and then ask the juvenile court to do what is in the child's best interest,

while the role of an attorney is to zealously represent his client within the bounds of the law.

In re S.H.

, 12th Dist. Butler Nos. CA2014

- 12

- 259 and CA2015

- 01

- 008, 2015

- Ohio

- 1763, ¶

35, citing In re Baby Girl Baxter

, 17 Ohio St.3d 229, 232 (1985). The record shows that the

GAL has known the children before she was appointed as their GAL in 2018, having worked

with the children's siblings before 2018. The GAL's advocacy was clearly based upon her

determination of what was in the children's best interest

.

{¶ 20} Likewise, we find no error, plain or otherwise, in the juvenile court's failure to

appoint a separate counsel for the children. The record indicates that the children's wishes

to live with Aunt were inconsistent with the GAL's view of what was in their best interests

—

to grant permanent custody to the Agency. The record also plainly indicates that the

magistrate and the juvenile court were aware of the children's wishes but deemed it

unnecessary to appoint a separate counsel due to the age and immaturity of the children.

A juvenile court need only consider a child's wishes regarding a motion for permanentClermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 9

- custody after giving due regard to the child's maturity. R.C. 2151.414 (D)(1) (b). Similarly,

" [t] here is no need to consider the appointment of counsel * * * because of a statement

made by an immature child ." In re B.K.

, 12th Dist. Warren No. CA2006

- 03

- 011, 2006

- Ohio

4424, ¶ 19. The record strongly suggests that the children may not possess the necessary

maturity to provide a credible indication regarding their wishes as to custody. Although

Marc and Alfred were 11 and 10 years old at the time of the last custody hearing in August

2021 and in the proper grade for their age, they both functioned below their grade level.

Both children were diagnosed with ADHD and development delay at the time they were

placed in foster care; Marc was also diagnosed with fetal alcohol syndrome and PTSD.

Notwithstanding their continued progress, b oth children continue to have special needs

, are

in counseling

, and participate in psychiatric services at Children's Hospital. Based upon

the children's lower intellectual and emotional functioning, the juvenile court found that the

children do not have the capacity to realize the impact that instability has had on their lives

in the past

.

{¶ 21} Aunt's first and second assignments of error are overruled.

{¶ 22} Assignment of Error No. 3:

{¶ 23} THE TRIAL COURT ABUSED ITS DISCRETION BY CONSTRUING THE

JUDGE'S DECISION TO ALLOW THE STATE TO HAVE A "DO

- OVER" OF THE

OCTOBER 2, 2020 TRIAL.

{¶ 24} F ollowing the October 2, 2020 custody hearing

, the magistrate found that it

was not in the best interest of the child ren to grant permanent custody to the Agency, denied

the Agency's motion for permanent custody, and summarily granted Aunt's motion for legal

custody

. Upon ruling on the Agency's and the GAL's objections to the magistrate's decision,

t he juvenile court found that the magistrate improperly granted legal custody to Aunt withoutClermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 10

- determining whether it was in the children's best interest

, and remanded the matter to the

magistrate "for additional evidence to be taken as to whether granting legal custody to the

maternal aunt is in the [ child ren 's ] best interest."

{¶ 25} On remand, a hearing was held on May 21, 2021, and continued in progress

on June 4, 2021. During those hearings, Aunt 's counsel objected to the testimony of the

GAL's witnesses, arguing that the remand hearings were not a "do

- over" opportunity for the

GAL and that any evidence predating the October 2, 2020 hearing was inadmissible. The

magistrate advised the parties it would rule upon the objection in his decision and granted

Aunt's counsel a standing objection. In his December 13, 2021 decisions, the magistrate

overruled the objection on the basis of Juv.R. 40 (D)(4)(d)

. The magistrate further found

that given a trial court's inherent power to regulate court proceedings, the juvenile court

"had the discretion to delegate its authority to take any additional evidence to the

Magistrate, and that evidence may include evidence that could have been presented to the

Magistrate at the first trial."

{¶ 26} On appeal, Aunt argues that the magistrate erred in interpreting the juvenile

court's remand instruction to allow the Agency a "do

- over" for the "poorly litigated first trial

on October 2, 2020 ," thereby allowing the Agency and the GAL to present evidence that

was available but not presented at the October 2, 2020 hearing. Although Aunt filed

objections to the magistrate's December 13, 2021 decisions, she did not specifically object

to the magistrate's interpretation of the juvenile court's remand instruction. She has,

therefore

, forfeited all but plain error on appeal. In re A.D.

, 2022

- Ohio

- 736 at ¶ 16.

{¶ 27} In support of its remand to the magistrate for additional evidence, the juvenile

court cited Juv.R. 40(D) (4) (b) and (d). In ruling on objections to a magistrate's decision,

Juv.R. 40 (D)(4)(d ) requires a juvenile court to undertake an independent review of theClermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 11

- objected matters to determine whether the magistrate properly determined the factual

issues and appropriately applied the law. A court "may adopt or reject a magistrate's

decision in whole or in part, with or without modification. A court may hear a previously

referred matter, take additional evidence, or return a matter to a magistrate." Juv.R. 40

(D)(4)(b). Before ruling on objections, " the court may hear additional evidence but may

refuse to do so unless the objecting party demonstrates that the party could not, with

reasonable diligence, have produced that evidence for consideration by the magistrate."

Juv.R. 40(D)( 4)(d). The ultimate authority and responsibility over the magistrate's findings

and rulings is vested with the trial court, and its independent analysis may result in a

different conclusion than the one reached by the magistrate. In re C.S.

, 12th Dist. Warren

No. CA2015

- 05

- 041, 2015

- Ohio

- 3937, ¶ 23

.

{¶ 28} We find no error, plain or otherwise, in the manner the magistrate heard

additional evidence following the juvenile court's remand. Contrary to Aunt's assertion, the

May 21, 2021 and June 4, 2021 remand hearings were not a do

- over

. The case was not

concluded until the juvenile court journalized a judgment entry on the ultimate issues of

permanent custody and legal custody on December 7, 2022

. Juv.R. 40(D)(4) allows a

juvenile court to hear and take additional evidence when considering objections to a

magistrate's decision.

{¶ 29} In remanding the matter to the magistrate, the juvenile court (1) underlined

the fact the magistrate had granted legal custody to Aunt by default once he denied the

Agency's motion for permanent custody, (2) emphasized its duty to consider the totality of

the circumstances in determining the children's best interest

, (3) noted the multiple lingering

concerns regarding Aunt

, including her long history of housing instability and her continued

relationship with the abusive Uncle, (4) expressed its concern it was denied the fullClermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 12

- opportunity to hear from the GAL as the latter had not testified at the October 2, 2020

hearing, and (5) stated that f urther evidence concerning the children's best interest "would

prove beneficial to making an informed decision." On remand, t he record shows that the

witnesses mostly testified about what had happened since the October 2, 2 0 20 hearing ;

any testimony regarding pre

- October 2, 2020 evidence was limited in nature and duration.

All but one of the GAL's exhibits were excluded by the magistrate, including Foster Mother's

letter cited in Aunt's brief. Although the caseworker and Foster Mother testified in October

2020, their testimony in 2021 was not duplicative

. Furthermore, their testimony and that of

the other witnesses was essential in providing the juvenile court with the evidence needed

for the court to make an informed decision under the totality of the circumstances

.

{¶ 30} Aunt's third assignment of error is overruled.

{¶ 31} Assignment of Error No. 4:

{¶ 32} THE DECISION OF THE JUVENILE COURT WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 33} Aunt summarily argues that the juvenile court erred in denying her motion for

legal custody of the children. Aunt notes that the juvenile court considered her motion under

R.C. 3109.04 and "expressly found " that the factors in R.C. 3109.04(F)(1)( a), (b), (e), and

(f) "all fell in [her ] favor

. " Aunt then simply asserts

, " W hile the trial court found that the

remaining factors fell against [ Aunt ], the record, taken as a whole, demonstrate [s] that the

children's best interests are served by a return of permanent custody to [Aunt]." (sic).

{¶ 34} Aunt fails to offer any explanation, analysis

, or citations to the record or to

specific Ohio cases in support of her assertion. App.R. 16 governs the contents of appellate

briefs and requires that an a ppellant 's brief i nclude " [a]n argument containing the

contentions of the appellant with respect to each assignment of error presented for reviewClermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 13

- and the reasons in support of the contentions, with citations to the authorities, statutes, and

parts of the record on which appellant relies." App.R. 16(A)(7). It is not an appellate court's

duty to root out or develop an argument that can support an assigned error. See In re C .P.,

12th Dist. Brown No. CA2022

- 05

- 004, 2022

- Ohio

- 3320. When an appellant fails to comply

with the requirements of App.R. 16(A)(7), an appellate court may overrule or disregard an

assignment of error for lack of briefing on the assigned error under App.R. 12(A)(2)

, and we

have done so in the past. In re C.S.

, 12th Dist. Butler Nos. CA2005

- 06

- 152 and CA2005

-

06

- 153, 2006

- Ohio

- 5198 (declining to address a ssignment of error challenging the grant of

legal custody to a nonparent due to appellant's failure to brief the assigned error). See also

In re Robinson

, 9th Dist. Summit No. 20826, 2002

- Ohio

- 1504 ( declining to address

assignment of error challenging juvenile court 's decision denying a motion for legal custody

and grant ing agency's motion for permanent custody due to appellant's failure to brief the

assigned error ).

{¶ 35} Furthermore, even if Aunt had properly argued this assignment of error, we

find the juvenile court did not abuse its discretion in denying Aunt's motion for legal custody.

A juvenile court may award custody of an abused, neglected, or dependent child to a

nonparent only "upon a demonstration by a preponderance of the evidence that granting

legal custody to the nonparent is in the child's best interest." In re K.M.

, 12th Dist. Butler

No. CA2019

- 01

- 015, 2019

- Ohio

- 1833, ¶ 37. In order to determine the best interest of a

child in a legal custody proceeding, the juvenile court is required to consider all relevant

factors listed under R.C. 3109.04(F). Id. at ¶ 38. Re latives seeking custody of a child are

not afforded the same presumptive rights that a natural parent receives. In re E.S.K.

, 12th

Dist. Clermont No. CA20 20

- 0 6

- 02 9

, 20 20

- Ohio

- 5568, ¶ 59. An appellate court reviews a

juvenile court's legal custody determination for an abuse of discretion. In re K.M

. at ¶ 37.Clermont CA2 0 2 2

- 12

- 092

CA2022

- 12

- 093

- 14

- {¶ 36} Upon thoroughly reviewing the record, and in light of Aunt's chronic history of

housing instability, Aunt's questionable continued involvement with Uncle, a man who raped

her and subjected her to domestic violence, Aunt's minimizing her interactions with Uncle,

the children's amazing strides in regulating their former violent and destructive behaviors

and their significant improvements in speech and occupational therapy since being placed

with Foster Mother, and the fact the children are thriving together in their foster placement,

we find the juvenile court did not abuse its discretion in finding that a grant of legal custody

to Aunt would not be in the best interest of Marc and Alfred

.

{¶ 37} Aunt's fourth assignment of error is overruled.

{¶ 38} Judgment affirmed.

S. POWELL

, P.J., and PIPER

, J., concur.