author: Hoover, P.J.

text:
    AMERICAN EXPRESS BANK, FSB, Plaintiff-Appellee, v. Klaas OLSMAN, et al., Defendants-Appellants.
    No. 17CA3800
    Court of Appeals of Ohio, Fourth District, Scioto County.
    RELEASED February 7, 2018
    Klaas Olsman, Portsmouth, Ohio, pro se Appellant.
    Christopher J. Arlinghaus and Rachel Pearson, Zwicker & Associates, P.C., Hebron, Kentucky, for appellee.
    DECISION AND JUDGMENT ENTRY
   Hoover, P.J.

{¶ 1} This appeal arises from two actions to collect a debt filed in the Portsmouth Municipal Court. Plaintiff-appellee, American Express Bank, FSB ("AMEX"), sued defendant-appellant, Klaas Olsman ("Olsman") and defendant Holland Investment Inc., to collect the debt owing on two business credit card accounts. Ultimately, the actions were consolidated and AMEX was awarded summary judgment in its favor. For the following reasons, we affirm the judgment of the trial court.

I. Facts and Procedural Posture

{¶ 2} On some unknown date, Olsman, and/or defendant Holland Investment Inc., applied for business credit card accounts with AMEX. Olsman is a "representative" of Holland Investment Inc. An AMEX SimplyCash Business Credit Card with account number ending in 2000 lists Holland Investment Inc., and Olsman's name individually on billing statements. An AMEX Business Green Card with account number ending in 4003 lists Holland Investment Inc., and Olsman's name individually on billing statements.

{¶ 3} On May 11, 2016, AMEX filed a complaint against Olsman (original Case Number CVF 1600511) alleging default, and to collect the sum of approximately $4,871.68 due on the credit card with account number ending in 2000. Shortly thereafter, on May 19, 2016, AMEX sued Olsman and Holland Investment Inc. (original Case Number CVF 1600544) alleging default, and to collect the sum of approximately $8,438.93 due on the credit card with account number ending in 4003.

{¶ 4} The defendants filed an answer in each case denying the allegations. The trial court eventually consolidated the two cases, with consolidated proceedings being conducted in Case Number CVF 1600511.

{¶ 5} Following consolidation, AMEX filed a motion for summary judgment. Olsman did not file a memorandum contra to the motion for summary judgment. However, he did file an affidavit in response in which he averred that he opened the two credit card accounts as acting representative of Holland Investment Inc., that the debts were incurred for the benefit of Holland Investment Inc. only, and that he never accepted personal liability for the amounts due on either account.

{¶ 6} On April 25, 2017, the trial court rendered a written decision and judgment entry granting AMEX's motion for summary judgment. Olsman was ordered to pay AMEX the balance of the account with numbers ending in 2000 in the amount of $4,871.68; and Olsman and Holland Investment Inc. were ordered to pay, jointly and severally, the balance of the account with numbers ending in 4003 in the amount of $8,437.32. The defendants were further ordered to pay AMEX's costs in pursuing the judgment, plus any additional costs to be incurred in the execution of judgment.

{¶ 7} Olsman filed a timely notice of appeal.

II. Assignment of Error

{¶ 8} Olsman's brief contains no assignments of error as required by App.R. 16(A). Because appeals are decided on the basis of assignments of error, see App.R. 12(A)(1)(b), we technically have nothing to review in this case; and we would be justified in summarily affirming the trial court's judgment. See In re Guardianship of Freeman, 4th Dist. Adams No. 02CA737, 2002-Ohio-6386, 2002 WL 31647801, ¶ 2, fn. 1 ; King v. King , 4th Dist. Adams No. 01CA719, 2002 WL 398716, *3 (Mar. 8, 2002) ; City Loan Fin. Servs. v. Koon , 4th Dist. Hocking No. 95CA8, 1996 WL 502137, *1 (Sep. 3, 1996). Nevertheless, because this Court affords considerable leniency to pro se litigants, we believe the interests of justice are better served by reviewing the merits of this case.

{¶ 9} Generally, Olsman contends that the trial court erred by granting AMEX's motion for summary judgment. Olsman does not contest the creation of the accounts and the amount of debt incurred. He does, however, contest his personal liability for the claims. AMEX, on the other hand, asserts that Olsman is personally liable for repayment of the charges on the accounts according to the terms of the account agreements.

III. Law and Analysis

A. Standard of Review

{¶ 10} We review the trial court's decision on a motion for summary judgment de novo. Smith v. McBride , 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we afford no deference to the trial court's decision and independently review the record and the inferences that can be drawn from it to determine whether summary judgment is appropriate. Harter v. Chillicothe Long-Term Care, Inc. , 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, 2012 WL 1997821, ¶ 12 ; Grimes v. Grimes , 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, 2009 WL 1830761, ¶ 16.

{¶ 11} Summary judgment is appropriate only when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C) ; DIRECTV, Inc. v. Levin , 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion for summary judgment, the court must construe the record and all inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). The party moving for summary judgment bears the initial burden to demonstrate that no genuine issues of material fact exist and that they are entitled to judgment in their favor as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). To meet its burden, the moving party must specifically refer to "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action," that affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C) ; Dresher at 293, 662 N.E.2d 264. Moreover, the trial court may consider evidence not expressly mentioned in Civ.R. 56(C) if such evidence is incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E). Discover Bank v. Combs , 4th Dist. Pickaway No. 11CA25, 2012-Ohio-3150, 2012 WL 2832550, ¶ 17 ; Wagner v. Young , 4th Dist. Athens No. CA1435, 1990 WL 119247, *4 (Aug. 8, 1990). Once that burden is met, the nonmoving party then has a reciprocal burden to set forth specific facts to show that there is a genuine issue for trial. Dresher at 293, 662 N.E.2d 264 ; Civ.R. 56(E).

B. Olsman is Personally Liable for the Debts

{¶ 12} Generally, officers of a corporation will not be held individually liable on contracts entered into on behalf of the corporation unless they bind themselves, intentionally or inadvertently, as an individual . Wells Fargo Bank, NA v. WSW Franchising, Inc. , 10th Dist. Franklin No. 09AP-26, 2009-Ohio-3845, 2009 WL 2374559, ¶ 13 ; Heritage Bank, Inc. v. Barclay , 1st Dist. Hamilton No. C-950476, 1996 WL 194243, *1 (Apr. 24, 1996) ; J.D.S. Properties v. Walsh , 8th Dist. Cuyahoga No. 91733, 2009-Ohio-367, 2009 WL 205380, ¶ 18.

{¶ 13} To support its claims, AMEX attached several documents pertaining to each account to the complaints filed with the trial court. These documents included monthly account statements, as well as Cardmember Agreements.

{¶ 14} The Cardmember Agreement for the account ending in 2000 confirms that Olsman was the "cardmember". Holland Investment Inc. is listed as the "company" name. A nearly identical agreement for the account ending in 4003 confirms Olsman as "cardmember", and also lists Holland Investment Inc. as the "company" name.

{¶ 15} The Cardmember Agreements provide:

When you or an Additional Cardmember, as defined below, use the Account (or sign or keep a card), you and the Additional Cardmember agree to the terms of the Agreement.
* * *
You promise to pay all charges, including:
charges you make, even if you do not present your card or sign for the transaction, charges that other people make, whether or not you or an Additional Cardmember intend to let them use the Account, subject to applicable law, and charges that Additional Cardmembers make or permit others to make.

[Complaint CVF 1600511, Exhibit B, p. 5.; Complaint CVF1600544, Exhibit B, p. 1.]

{¶ 16} The Cardmember Agreements define terms used as follows:

We , us , and our mean the issuer shown on page 1 of Part 1. Except as provided below, Basic Cardmember means the person who applied for this Account or to whom we address billing statements. Company means the business for which the Account is established. You and your mean the Basic Cardmember and the Company. You agree, jointly and severally, to be bound by the terms of this Agreement.

(Emphasis sic.) [Complaint CVF 1600511, Exhibit B, p. 5.; Complaint CVF1600544, Exhibit B, p. 1.]

{¶ 17} Here, Olsman was the Basic Cardmember to whom billing statements for the credit cards were addressed. Holland Investment Inc., was the "Company" for whom the accounts were established. By using the accounts or keeping or signing the cards, Olsman and Holland Investment Inc. agreed jointly and severally to be bound by the terms of the agreement, including the promise to pay all charges. Accord In re Achtor , Bankr.W.D.Wisc. No. 14-13286-13, 2015 WL 4638503, *2 (Aug. 3, 2015) (considering credit card agreement with very similar language); In re Fairfield , 455 B.R. 849, 856 (Bankr.E.D.Pa.2011) (considering credit card agreement with very similar language); Moore v. Am. Express Bank, FSB , Bankr.M.D.Pa. No. 1:14-bk-03779-MDF, 2016 WL 1177845, *5 (Mar. 23, 2016) (considering credit card agreement with very similar language); Am. Express Bank, FSB v. Knapp , 11th Dist. Lake No. 2015-L-069, 2016-Ohio-762, 2016 WL 770967, ¶ 14 (finding cardmember personally liable on account with credit card agreement with very similar language). Thus, Olsman is personally liable for the credit card debts.

{¶ 18} On a final note, Olsman argues that because there was never any evidence produced showing that he signed a document guaranteeing any debt of Holland Investment Inc., he cannot be held personally liable. [Appellate Brief at p. 5.] The Cardmember Agreements provide that they are governed by Utah law. [Complaint CVF 1600511, Exhibit B, p. 9; Complaint CVF1600544, Exhibit B, p. 5.] "Utah law provides that a credit card agreement is binding if the cardholder is provided a written copy of the agreement, the agreement provides that use of the card constitutes acceptance, and the cardholder uses the card after receiving the agreement." Knapp at ¶ 21, citing MBNA Am. Bank, N.A. v. Goodman , 140 P.3d 589, 592 (Utah App.2006) ; see also Utah Code Ann. § 25-5-4(2)(e). Here, Olsman has not alleged that he did not receive the Cardmember Agreements. The Cardmember Agreements provide that use of the cards constitute acceptance of the terms. Finally, it is undisputed that the cards were used, and there is no allegation that they were used by an unauthorized person. Therefore, the fact that Olsman did not sign the Cardmember Agreements for each account does not preclude a finding that he is bound by their terms.

IV. Conclusion

{¶ 19} For the foregoing reasons, we find that the arguments raised by Olsman are without merit. Conversely, we conclude that Olsman is personally liable for the credit card debts under the terms of the Cardmember Agreements. Because no genuine issues of material fact exist, and because AMEX is entitled to judgment as a matter of law, we affirm the summary judgment awarded to AMEX.

JUDGMENT AFFIRMED.

Harsha, J., and McFarland, J.: Concur in Judgment and Opinion.

      In his appellate brief, Olsman contends that he is a shareholder of Holland Investment Inc. [Appellate Brief at p. 5.]

      Holland Investment Inc. did not file a notice of appeal.

      AMEX also contends that these documents were attached as exhibits to the Affidavit of Raquel Hernandez filed with the motion for summary judgment. However, the record on appeal does not include the Affidavit of Raquel Hernandez or the referenced exhibits.


source: Caselaw Access Project

author: Harsha, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Ronald GAVIN #695-919, Defendant-Appellant.
    No. 17CA3806
    Court of Appeals of Ohio, Fourth District, Scioto County.
    RELEASED: February 1, 2018
    Ronald E. Gavin, Madison Correctional Institution, London, Ohio, pro se appellant.
    Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
    DECISION AND JUDGMENT ENTRY
   Harsha, J.

{¶ 1} Ronald E. Gavin appeals the judgment denying his motion for leave to file a motion for new trial based on newly discovered evidence. First Gavin asserts that the trial court erred by denying his motion without conducting an evidentiary hearing. Gavin was aware of the existence of some of the grounds supporting his delayed motion for new trial before his trial. Likewise, he knew of the grounds supporting his motion since at least the summer of 2015, when two of the four affidavits upon which he supported his motion were executed. However, he delayed until nearly two years later, in May 2017, to seek leave to file his motion. Because Gavin did not establish by clear and convincing evidence that he was unavoidably prevented from filing a timely motion for new trial based on newly discovered evidence, the trial court did not abuse its discretion by denying his motion without holding an evidentiary hearing.

{¶ 2} Next Gavin contends that the trial court violated his right to due process by denying his renewed postconviction motion for independent testing of the heroin and the fingerprint analysis of the packaging material for the heroin. But he did not include this judgment in his notice of appeal; nor did he amend his notice of appeal to include the trial court's denial of his renewed motion; and he did not file an independent notice of appeal from the judgment. Therefore this contention is not properly part of the appeal and we cannot address its merits.

{¶ 3} We affirm the judgment of the trial court.

I. FACTS

{¶ 4} The Scioto County Grand Jury returned an indictment charging Ronald E. Gavin and an accomplice with several drug-related charges. The case proceeded to a jury trial where several witnesses, including Manual Lofton and Marcell Woods, testified that Gavin sold heroin to people on numerous occasions during the summer of 2013. Gavin obtained the heroin from Chicago sources, including his cousin.

{¶ 5} The jury convicted Gavin of multiple heroin-related offenses and in November 2013, the trial court sentenced him to prison. In State v. Gavin , 4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, 2015 WL 4549872, we reversed his conviction for tampering with evidence and remanded the cause to the trial court to vacate that conviction and sentence. But we affirmed his remaining convictions and rejected his contention that he had received ineffective assistance of counsel. On remand the trial court complied with our mandate.

{¶ 6} In April 2016, Gavin filed a petition for postconviction relief claiming that he was denied the effective assistance of trial counsel and that his convictions were obtained through fraud on the court. He attached the affidavits of several persons who collectively claimed that: (1) Lofton and Woods had framed Gavin by planting the heroin in the car that Gavin regularly drove; (2) Gavin had informed his trial attorney about his potential witnesses; and (3) his attorney failed to call them to testify on his behalf at trial. But Gavin failed to indicate how he was unavoidably prevented from discovering any of this purported newly discovered evidence. The affidavits of the potential witnesses were executed in July, August, and October 2015, and in March and April 2016. In May 2016, the trial court denied the petition for postconviction relief without conducting an evidentiary hearing.

{¶ 7} On appeal we held that Gavin did not establish that the trial court had jurisdiction to address the merits of his untimely petition. We reached this conclusion because he admitted that some of his evidence "may have been available to [him] at the time of trial," and he did "not explain how either he or his appellate counsel were unavoidably prevented from having access to the evidence attached to his petition at the time he filed his direct appeal or when he could have filed a timely petition for postconviction relief." State v. Gavin , 4th Dist. Scioto No. 16CA3757, 2017-Ohio-134, 2017 WL 168823, ¶ 14-15. We modified the judgment of the trial court to reflect the dismissal of the petition and affirmed the judgment of the trial court as modified. Id. at ¶ 16-17.

{¶ 8} In May 2017, Gavin sought leave to file a motion for a new trial based primarily on newly discovered evidence; he attached a proposed motion for new trial and a request for an evidentiary hearing. He also attached four of the affidavits, executed in July, August, and October 2015, and in April 2016, that he had filed in support of his unsuccessful petition for postconviction relief. The trial court denied the motion without an evidentiary hearing after concluding that Gavin had not established how he was unavoidably delayed from filing his motion, his motion was untimely, and he had not submitted newly discovered evidence. Gavin has appealed the denial of his motion for leave.

{¶ 9} In July 2017, Gavin filed a renewed postconviction motion for independent testing of the heroin found by the police and fingerprint analysis of the packaging material for the heroin. The trial court denied the motion, but Gavin has not properly appealed that order.

II. ASSIGNMENTS OF ERROR

{¶ 10} Gavin assigns the following errors for our review:

I. THE TRIAL COURT ERRED BY DENYING APPELLANT RONALD GAVIN AN EVIDENTIARY HEARING ON HIS MOTION FOR NEW TRIAL BECAUSE APPELLANT SUBMITTED NEW DOCUMENTARY EVIDENCE IN SUPPORT OF HIS GROUNDS FOR A NEW TRIAL. DENYING THE MOTION FOR NEW TRIAL VIOLATED THE GUARANTEES OF THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED BY DENYING APPELLANT RONALD GAVIN INDEPENDENT TESTING OF THE ALLEGED DRUG PACKAGE AND FINGERPRINT ANALYSIS OF THE PACKAGING MATERIAL IN WHICH THE ALLEGED DRUG SUBSTANCE WAS FOUND. DENYING APPELLANT GAVIN INDEPENDENT TESTING OF THE SUBSTANCE ALLEGED BY THE STATE TO "CONTAIN HEROIN" DENIED APPELLANT DUE PROCESS IN VIOLATION OF HIS RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION.

III. LAW AND ANALYSIS

A. The Motion for Leave to File a Motion for New Trial

{¶ 11} In his first assignment of error Gavin asserts that the trial court erred in denying his motion for leave to file a motion for new trial without conducting an evidentiary hearing.

{¶ 12} We apply an abuse of discretion standard in reviewing a trial court's denial of a motion for leave to file a delayed motion for new trial. See State v. Seal , 2017-Ohio-116, 75 N.E.3d 1035, ¶ 9 (4th Dist.), citing State v. Hoover-Moore , 2015-Ohio-4863, 50 N.E.3d 1010, ¶ 14 (10th Dist.) ; State v. Phillips , 2017-Ohio-7164, --- N.E.3d ----, ¶ 17 (8th Dist.). " 'A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.' " State v. Keenan , 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abuse of discretion includes a situation in which a trial court did not engage in a "sound reasoning process"; this review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court. Darmond at ¶ 34.

{¶ 13} Notwithstanding Gavin's contentions on appeal, he does not have an automatic right to an evidentiary hearing on his motion for new trial based on claims of newly discovered evidence; instead, it is within the trial court's discretion to hold an evidentiary hearing. See State v. Newton , 10th Dist. Franklin No. 14AP-20, 2015-Ohio-1972, 2015 WL 2452286, ¶ 9, citing State v. Hill , 64 Ohio St.3d 313, 333, 595 N.E.2d 884 (1992) ("It is also within the discretion of the trial court to determine whether a motion for new trial and the material submitted with the motion warrants an evidentiary hearing"); Phillips at ¶ 19, quoting State v. Peals , 6th Dist. Lucas No. L-10-1035, 2010-Ohio-5893, 2010 WL 4925807, ¶ 23 ("Thus, 'no such hearing is required, and leave may be summarily denied, where neither the motion nor its supporting affidavits embody prima facie evidence of unavoidable delay' ").

{¶ 14} A defendant must file a motion for new trial based on claims of newly discovered evidence within 120 days after the day the verdict was rendered, unless the defendant shows by "clear and convincing proof that [the defendant] was unavoidably prevented from the discovery of evidence upon which he must rely * * *." Crim.R. 33(B). Because Gavin did not file his motion within 120 days of the jury's verdict, he correctly sought leave from the trial court to file a delayed motion. Seal at ¶ 11, quoting Hoover-Moore at ¶ 13.

{¶ 15} " 'A party is "unavoidably prevented" from filing a motion for a new trial if the party had no knowledge of the existence of the ground supporting the motion and could not have learned of that existence within the time prescribed for filing the motion in the exercise of reasonable diligence.' " Seal at ¶ 10, quoting Hoover-Moore at ¶ 13. "If a defendant establishes by clear and convincing proof that he/she was unavoidably prevented from the discovery of the evidence upon which he/she must rely, the motion must be filed within seven days from the court order making such a finding. See Crim.R. 33(B). Clear and convincing proof requires more than a mere allegation that a defendant has been unavoidably prevented from discovering the evidence he seeks to introduce as support. State v. Covender , 2012-Ohio-6105, 988 N.E.2d 582, ¶ 13, quoting State v. Covender , 9th Dist. Lorain No. 07CA009228, 2008-Ohio-1453, 2008 WL 834417, ¶ 6.

{¶ 16} Courts have additionally held that a Crim.R. 33(B) motion for leave to file a motion for new trial must be filed within a reasonable time after the evidence supporting the ground was discovered. See, generally, State v. Thomas , 2017-Ohio-4403, --- N.E.3d ----, ¶ 8 (1st Dist.), and cases cited there, including Seal , 2017-Ohio-116, 75 N.E.3d 1035, ¶ 12-14. By discouraging defendants from waiting to move for leave while the evidence against him dissipates or disappears, the reasonable-time requirement is consistent with criminal rules and advances the stated objectives of the rules in securing the speedy administration of justice and eliminating unjustifiable delay. Thomas at ¶ 8 ; Seal at ¶ 13. Thus even if a defendant has demonstrated that he could not have learned of the proposed ground for a new trial within the prescribed period, a trial court has the discretion to deny leave to move for a new trial when the defendant has delayed seeking leave after discovering the evidence supporting that ground, and that delay was neither adequately explained nor reasonable under the circumstances. Id. at ¶ 9.

{¶ 17} Here, Gavin was aware of the existence of the grounds supporting his delayed motion as early as October 2013, before his trial. For example, the first affidavit he attached to his motion was by Jermaine Lawrence, whose October 2015 affidavit stated that Lofton approached Gavin and several other inmates in the Scioto County Jail and told them that he and Woods planted the heroin inside of Gavin's girlfriend's car; and that Gavin relayed this information to his trial counsel, telling him that Lawrence and the other jail inmates, who overheard the conversation, could be witnesses for him at trial. Similarly, Gavin's motion for leave attached an affidavit of another jail inmate detailing Lofton's purported admission to Gavin and other inmates. As Gavin himself admitted in the prior appeal of the denial of his petition for postconviction relief, the same evidence that he relied on in both his petition and his motion for leave to file a motion for new trial "may have been available to [him] at the time of trial." Gavin , 2017-Ohio-134, 2017 WL 168823, at ¶ 14.

{¶ 18} Moreover, Gavin was aware of the grounds supporting his delayed motion by the summer of 2015, when two of the supporting affidavits were executed on his behalf, i.e., nearly two years before he filed the delayed motion. Neither in his motion nor in his argument on appeal does he proffer any reason justifying this delay. Although one of the supporting affidavits was not executed until April 2016, " ' Crim.R. 33(B) does not allow a defendant to wait for further evidence to arise that will bolster his case.' " Seal , 2017-Ohio-116, 75 N.E.3d 1035, at ¶ 14, quoting State v. Berry , 10th Dist. Franklin No. 06AP-803, 2007-Ohio-2244, 2007 WL 1377036, ¶ 14.

{¶ 19} The trial court did not abuse its discretion in determining that Gavin had not established that he was unavoidably prevented from filing a timely motion for new trial based on newly discovered evidence, or, even assuming that he had, that he filed the delayed motion for new trial within a reasonable time after discovering the grounds for the motion. Therefore, the trial court did not erroneously deny the motion for leave without holding an evidentiary hearing. We overrule Gavin's first assignment of error.

B. The Motion for Independent Testing and Fingerprint Analysis

{¶ 20} In his second assignment of error Gavin contends that the trial court erred by denying his renewed motion for independent testing of the heroin found by the police and the fingerprint analysis of the packaging material for the heroin.

{¶ 21} Because the trial court's order denying his renewed motion was not part of Gavin's notice of appeal in this case, Gavin did not amend the notice to include this order, and Gavin did not file an independent notice of appeal from the order, this assignment of error is not properly before the court. See, e.g., McAbee v. Merryman , 7th Dist. Jefferson No. 13 JE 3, 2013-Ohio-5291, 2013 WL 6254332, ¶ 24, citing App.R. 4(A) ("in order to invoke our jurisdiction to review that order, a notice of appeal from that order must be filed or the notice of appeal had to be amended to include that order). Thus we cannot review it.

IV. CONCLUSION

{¶ 22} Having overruled the only assignment of error that is properly before us, we affirm the judgment of the trial court denying Gavin's motion for leave to file a delayed motion for new trial.

JUDGMENT AFFIRMED.

Abele, J. & McFarland, J.: Concur in Judgment and Opinion.

      We dismissed an earlier appeal by Gavin from the denial of his first postconviction motion for independent testing because he filed his notice of appeal more than 30 days after the trial court entered judgment denying the motion.


author: HENDRICKSON, P.J.

text:
    In the MATTER OF: B.L., et al.
    NOS. CA2017-09-147 CA2017-09-148
    Court of Appeals of Ohio, Twelfth District, Butler County.
    February 12, 2018
    Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
    Adolfo Olivas, 10 Journal Square, Suite 300, Hamilton, Ohio 45011, guardian ad litem
    Dawn S. Garrett, 9435 Waterstone Blvd., Suite 140, Cincinnati, Ohio 45249, for appellant
   HENDRICKSON, P.J.

{¶ 1} Father, the biological father of B.L.1 and B.L.2, appeals the decisions of the Butler County Common Pleas Court, Juvenile Division, which granted permanent custody of his children to the Butler County Department of Job and Family Services. For the reasons discussed below, this court affirms the decisions of the juvenile court.

{¶ 2} On July 14, 2014, the Butler County Department of Job and Family Services ("JFS" or "the agency") filed a complaint alleging that B.L.1, age one, and B.L.2, age six months, were neglected, abused, and dependent children. The complaint alleged that the children's parents had a history with JFS dating back to 2007 with concerns of physical abuse and neglect. The complaint alleged that B.L.1 was observed lying in a crib with feces. B.L.2 was in a "bouncy seat" or car seat and could barely move. There was no food in the home other than a few canned goods. Both parents admitted to abusing drugs and Mother appeared to be under the influence at the time police removed the children.

{¶ 3} The complaint requested that the court grant temporary custody of the children to JFS. The court held an emergency ex parte hearing on the same day and granted JFS temporary custody. JFS placed the children in foster care.

{¶ 4} JFS created a case plan for reunification. The case plan required Mother and Father to refrain from substance abuse, submit to random drug tests, and seek treatment for substance abuse. Mother and Father were also required to obtain and maintain stable housing and complete a parenting program.

{¶ 5} In August 2014, following JFS' request, the court transferred temporary custody of the children to their maternal aunt. In September 2014, the court adjudicated the children neglected, abused, and dependent. In April 2014, after the maternal aunt informed the agency she could no longer care for the children, the court placed the children back in the agency's temporary custody. JFS placed the children in foster care.

{¶ 6} The parents made some progress towards reunification. Father made some of this progress while in jail, as he was incarcerated from the time of removal through January 2015. After his release from jail, Father did not test positive for illegal narcotics and established stable housing for nine months. Eventually, the agency began to liberate the parents' visits with their children, going so far as to allow overnight unsupervised visitation and weekend visits. However, by the summer of 2016, Mother and Father relapsed. Neither parent appeared for a July 2016 hearing. After the relapse, both parents minimally participated in recommended substance abuse treatment and then ceased communication with the agency. The agency then moved to restrict visitations to supervised visits only.

{¶ 7} In October 2016, the court held a review hearing wherein it found that neither parent was participating in case plan services and both were avoiding drug screens. JFS then moved for permanent custody. In November 2016, the agency removed Mother from the case plan for failure to participate in case plan services and communicate with the agency for several months.

{¶ 8} In April 2017, Father filed a "brief on interstate placement of children when interstate home study is denied as applied to custody proceedings" ("brief on ICPC"). In the brief, Father stated that shortly after the children's removal in 2014, JFS requested that a Texas children services agency conduct an interstate home study on the children's maternal grandmother, a Texas resident. JFS made the request pursuant to Ohio's interstate compact on the placement of children ("ICPC"). The Texas agency approved the grandmother's home study. However, JFS considered the grandmother a "backup plan" legal custodian, as the children were placed locally with the maternal aunt.

{¶ 9} Sometime after the agency filed the permanent custody motion, Father's brief alleged that he and Mother requested the agency place the children with the grandmother in lieu of permanent custody. The agency then requested a second home study.

{¶ 10} The Texas agency did not approve the second home study. Of primary concern, the Texas agency indicated that the grandmother did not believe that the children should have been removed from Mother and Father. Grandmother also exhibited poor decision-making skills. Several relatives expressed concern to the Texas agency concerning the grandmother's suitability. Overall, the agency was concerned that the grandmother demonstrated an inability to provide the children with a structured environment and to protect the children.

{¶ 11} Father argued that the second home study significantly conflicted with the findings of the first home study and he therefore wished to challenge the second home study. The ICPC required Father to appeal the Texas home study decision through available appellate remedies in Texas. However, Texas did not allow appeal of failed home studies. Accordingly, Father argued that his inability to appeal the Texas agency's decision amounted to an unconstitutional denial of his due process rights. Father requested that the court permit him to present evidence as to why the grandmother was an appropriate legal custodian.

{¶ 12} The court held a hearing and denied the brief on ICPC on the basis that Ohio was an inappropriate forum to challenge a Texas policy or law. The court also indicated it would not hear any evidence on placement with the grandmother. Father did not proffer any evidence.

{¶ 13} In May 2017, the juvenile court held the hearing on permanent custody. The court heard testimony from the JFS caseworker assigned to the case and from Father. Mother did not appear for the hearing or otherwise defend against the permanent custody motion.

{¶ 14} At the hearing, the caseworker testified that she was assigned to the case in November 2014. Initially, Mother and Father made progress on their case plan for reunification. Both completed a program on "living skills" and initially maintained stable housing and employment. Father also completed an out-patient drug treatment program. However, following Mother's and Father's drug relapse in or around the summer of 2016, Father stopped participating in case services and only had sporadic communication with the caseworker, including gaps of months between communication. At the time of the permanent custody hearing, Father did not have stable housing and was living with a friend. Father exercised visitation and the visits went well, although the caseworker did not observe a bond between Father and the children.

{¶ 15} Father testified that he was in jail from the time of the children's removal in July 2014 through January 2015. Father was also incarcerated in February 2017 for a probation violation and an aggravated menacing charge. Father was released from jail in April 2017, shortly before the permanent custody hearing.

{¶ 16} Father admitted testing positive for marijuana in February 2016. Father admitted testing positive for oxycodone in June 2016 although he claimed he had a prescription for the drug. Father said he last used drugs in February 2017 and was currently seeking treatment for substance abuse and would be participating in an assessment after the hearing. Father had been speaking to someone at a counseling agency on the phone after being released from jail. Father admitted that he did not have housing but was working as a delivery driver for a subcontractor of Sears. Father conceded that he was not prepared to receive custody of his children but would be ready to do so in two to three months.

{¶ 17} After hearing the testimony and considering the exhibits that were entered into evidence, including a social summary containing the agency's progress notes on Father's participation in the case plan for reunification, the magistrate issued a decision finding that the children had been in the agency's temporary custody for 12 or more months of a consecutive 22-month period and that a grant of permanent custody to the agency was in the children's best interest. Father filed objections, which were subsequently overruled by the trial court. Father appeals, raising two assignments of error.

{¶ 18} Assignment of Error No 1.

{¶ 19} THE COURT'S REFUSAL TO PERMIT FATHER TO SUBMIT EVIDENCE ON THE APPROPRIATENESS OF A POSSIBLE RELATIVE CUSTODIAL PLACEMENT OR CONSIDER THAT PLACEMENT AND THE COURT'S SUBSEQUENT DECISION AND ORDER OF PERMANENT CUSTODY VIOLATED THE FATHER'S CONSTITUTIONAL RIGHTS BECAUSE THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN ADOPTED BY OHIO AS O.R.C. [§ 5103.20 ] IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED IN THIS [MATTER AS] IT AFFECTS SUBSTANTIAL LIBERTY RIGHTS AND PROVIDES NO DUE PROCESS VENUE OR OPPORTUNITY FOR HEARING OR APPEAL.

{¶ 20} Father challenges the constitutionality of the ICPC, codified at R.C. 5103.20. Father alleges that the ICPC violated his right to due process because he could not challenge the Texas agency's adverse decision on the grandmother's second home study. Accordingly, Father contends that the ICPC unconstitutionally infringed on his fundamental right to the care and custody of his children.

{¶ 21} The ICPC provides that when an Ohio agency requests that another state ("the receiving state") perform a local assessment or home study for a child and the receiving state does not approve the placement, there is no right to judicial review of that determination in Ohio. R.C. 5103.20, Article VI, Section (B). However, the statute further provides that any "interested party" has a right to seek judicial review through available procedures in the receiving state. Id. at Section (C)(1) through (C)(2).

{¶ 22} Father posits that there is no right to appeal a denied home study in Texas. The state did not challenge this claim. Accordingly, this court will presume, for purposes of this opinion only, that Father, or any other interested party, lacked any ability to appeal or obtain a hearing challenging the Texas home study.

{¶ 23} This court would be concerned if it were true that an Ohio law had effectively incorporated Texas law or policy precluding judicial review of an administrative agency's decision. Nonetheless, we need not address that issue today because Father's due process argument necessarily presumes that the juvenile court could have granted legal custody to the grandmother.

{¶ 24} Pursuant to R.C. 2151.353(A)(3), the juvenile court is authorized to award legal custody of a child adjudicated abused, neglected, or dependent to any person who, prior to the dispositional hearing, files a motion requesting legal custody. The court may also grant legal custody to a proposed legal custodian who is identified as such in a complaint or motion filed by a party to the proceedings if the proposed legal custodian signs a "statement of understanding for legal custody." The required statement of understanding-set forth in R.C. 2151.353(A)(3)(a) thru (d) -ensures that the legal custodian, who is not moving on their own for legal custody, understands the special responsibility and permanence involved in accepting legal custody of a child or children. The proposed legal custodian must also agree to be present at the dispositional hearing.

{¶ 25} The children's grandmother was never a party to the proceedings. She did not intervene and file a motion for legal custody. Father also did not move the juvenile court to appoint the grandmother legal custodian. Arguably, the juvenile court might construe Father's brief on ICPC as a motion to appoint grandmother custodian. Even if it did so, Father failed to attach, otherwise file, or proffer the required statement of understanding. This court has consistently held that the requirements for seeking nonparent legal custody under R.C. 2151.353(A)(3) and the Ohio Juvenile Rules of Procedure are mandatory. In re L.R.T. , 165 Ohio App.3d 77, 2006-Ohio-207, 844 N.E.2d 914, ¶ 12-13 (12th Dist.) ; In re H.M. , 12th Dist. Clinton Nos. CA2005-09-022 and CA2005-09-023, 2006-Ohio-819, 2006 WL 443463, ¶ 15 ; In re C.P. , 12th Dist. Brown No. CA2010-12-025, 2011-Ohio-4563, 2011 WL 4012400, ¶ 21 ; In re J.P. , 12th Dist. Butler Nos. CA2015-08-160 and CA2015-08-161, 2016-Ohio-7, 2016 WL 54946, ¶ 8-10.

{¶ 26} In this case, the grandmother's only connection to the case and to the court has been through out-of-state home studies. The requirement of a signed statement of understanding promotes the policy embodied throughout the child protective services statutes and regulations to expeditiously obtain permanency for a child. The statement is a confirmation that a person identified as a legal custodian is, indeed, willing to serve in that capacity and not merely a ploy asserted defensively to defeat a motion for permanent custody. The statement of understanding also informs the person of the nature of legal custody and some of the attendant responsibilities to protect against failed placements with persons who are surprised to find than they have assumed more responsibility than anticipated.

{¶ 27} This court is aware that we have previously indicated that a statement of understanding may not be a technical requirement in the context of a motion for legal custody brought under R.C. 2151.415(A). See In re E.J. , 12th Dist. Warren No. CA2014-07-098, 2015-Ohio-731, 2015 WL 871951, ¶ 9. The dispositional alternatives available to the juvenile court within that statute include placing a child in the legal custody of a relative or other interested nonparent but do not expressly require a statement of understanding. See R.C. 2151.415(A)(3). However, the state's October 2016 motion for permanent custody was necessarily brought under R.C. 2151.413 because the time for filing for dispositional alternatives under R.C. 2151.415(A) expired in July 2016, or two years from the filing date of the complaint. See R.C. 2151.353(G) ; R.C. 2151.415(A)(6) and (D). R.C. 2151.413 contains no dispositional alternatives allowing the court to grant legal custody to a nonparent. Thus, the court could only have construed Father's brief on ICPC as a motion for nonparent legal custody filed pursuant to R.C. 2151.353(A)(3).

{¶ 28} In sum, Father's due process argument with respect to the ability to appeal the adverse Texas decision, and his argument that the court erred in refusing to allow him to submit evidence of the appropriateness of placement with the grandmother fail because the juvenile court could not have granted legal custody to the grandmother in the absence of her own motion or a signed statement of understanding. This court overrules Father's first assignment of error.

{¶ 29} Assignment of Error No. 2:

{¶ 30} THE COURT'S DECISION AND ORDER OF PERMANENT CUSTODY VIOLATED THE PARENTS' CONSTITUTIONAL RIGHTS, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDINGS BECAUSE THE AGENCY FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE BEST INTEREST OF THE CHILDREN REQUIRES AN AWARD OF PERMANENT CUSTODY.

{¶ 31} Father challenges the juvenile court's decisions to award permanent custody of the children to JFS. Father argues that the evidence showed he attended visitation regularly, that he was reengaged in substance abuse treatment, that he was working, and that he would have been able to reunify with the children if allowed another two or three months to prepare.

{¶ 32} "The rights to conceive and to raise one's children have been deemed 'essential,' * * *." Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), quoting Meyer v. Nebraska , 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). "Despite the fact that we have found that parents who are suitable have a paramount right to raise and care for their children, it is equally well settled that '[t]he fundamental interest of parents is not absolute * * *.' " (Citations omitted.) In re K.H. , 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 40. "The constitutional right to raise one's children does not include a right to abuse, exploit, or neglect them, nor is there a right to permit others to do so." Id. "The state's power to terminate parental rights is circumscribed * * *." Id. at ¶ 41, citing In re Cunningham , 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979). However, "when that authority is properly invoked, it is fully proper and constitutional to remove children from their parents' care. '[S]uch an extreme disposition is nevertheless expressly sanctioned * * * when it is necessary for the "welfare" of the child.' " Id. , quoting Cunningham at 105, 391 N.E.2d 1034.

{¶ 33} The state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met before a natural parent's constitutionally protected liberty interest in the care and custody of his or her child may be terminated. In re K.W. , 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, 2015 WL 6125723, ¶ 11, citing Santosky v. Kramer , 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Clear and convincing evidence is that which will produce in the trier of fact a firm belief or conviction as to the facts sought to be established. Cross v. Ledford , 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). An appellate court's review of a juvenile court's decision granting permanent custody is generally limited to considering whether sufficient credible evidence exists to support the juvenile court's determination. In re H.D. , 12th Dist. Warren No. CA2016-11-098, 2017-Ohio-1333, 2017 WL 1316181, ¶ 14. An appellate court will not reverse a finding by the juvenile court that the evidence was clear and convincing absent sufficient conflict in the evidence. In re L.W. , 12th Dist. Warren Nos. CA2017-05-066 thru CA2017-05-069, 2017-Ohio-8433, 2017 WL 5128988, ¶ 29."However, even if the juvenile court's decision is supported by sufficient evidence, 'an appellate court may nevertheless conclude that the judgment is against the manifest weight of the evidence.' " In re H.D. at ¶ 14, quoting In re T.P. , 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, 2016 WL 116090, ¶ 19.

{¶ 34} In determining whether a decision is against the manifest weight of the evidence, an appellate court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. The presumption in weighing the evidence is in favor of the finder of fact, which we are especially mindful of in custody cases. In re S.M. , 12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-2318, 2015 WL 3741914, ¶ 10 ; In re C.Y. , 12th Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238, 2015-Ohio-1343, 2015 WL 1514059, ¶ 25. As a result, "[i]f the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment." Eastley at ¶ 21.

{¶ 35} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and award permanent custody to a children services agency if it makes findings pursuant to a two-part test. In re G.F. , 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, 2014 WL 2731792, ¶ 9. First, the court must find that the grant of permanent custody to the agency is in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D).

In re D.K.W. , 12th Dist. Clinton No. CA2014-02-001, 2014-Ohio-2896, 2014 WL 2987316, ¶ 21. Second, the court must find that any of the following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period; (4) where the preceding three factors do not apply, the child cannot be placed with either parent within a reasonable time or should not be placed with either parent; or (5) the child or another child in the custody of the parent from whose custody the child has been removed, has been adjudicated an abused, neglected, or dependent child on three separate occasions. R.C. 2151.414(B)(1)(a) thru (e) ; In re C.B. , 12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-3709, 2015 WL 5313670, ¶ 10. "Only one of those findings must be met for the second prong of the permanent custody test to be satisfied." In re A.S. , 12th Dist. Warren Nos. CA2015-12-112 and CA2015-12-113, 2016-Ohio-1580, 2016 WL 1555491, ¶ 17.

{¶ 36} With respect to the second prong of the permanent custody test, the court found that the children had been in the agency's temporary custody for at least 12 months of a consecutive 22-month period. Father does not challenge this finding, but instead argues against the juvenile court's determination that it is in the children's best interest to grant permanent custody to the agency.

{¶ 37} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a permanent custody hearing, the court shall consider all relevant factors, including, but not limited to the following:

(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

{¶ 38} In awarding permanent custody to JFS, the juvenile court considered each of the best interest factors in light of the evidence presented at the hearing. With respect to R.C. 2151.414(D)(1)(a), the juvenile court found that the agency removed the children in 2014 because of unsafe and unsanitary conditions at the home and that drug paraphernalia consistent with heroin abuse was located at the home. The parents made some progress towards reunification, including exercising visits with the children. Father's progress in his case plan was partially due to his incarceration and treatment at a correctional facility. The parents' progress collapsed in the middle of 2016 when both parents relapsed.

{¶ 39} Mother and Father then ceased participating in case plan services and stopped or reduced visiting with their children. The visits Father exercised after relapsing have gone well, and Father exhibited a loving bond with his children. However, Father had at times allowed more than 90 days to elapse since visiting with his children.

{¶ 40} The court found that the children were living together in the same foster home, where they have flourished and have been integrated into their foster family. The foster family was interested in adopting the children.

{¶ 41} As for R.C. 2151.414(D)(1)(b), the juvenile court noted that the magistrate did not interview the children but that the children's guardian ad litem recommended that the court grant custody in favor of the agency.

{¶ 42} With respect to R.C. 2151.414(D)(1)(c), the court found that the children had been in the agency's custody in excess of 900 days and were therefore in JFS' temporary custody for the requisite 12 or more months of a consecutive 22-month period.

{¶ 43} Regarding R.C. 2151.414(D)(1)(d), the court concluded that the children needed a legally secure placement and that such a placement could only be achieved through a grant of permanent custody to the agency. In this regard, the court observed that the children had been placed in substitute care nearly their entire young lives, and that both parents, through failure to maintain contact, participate in case plan services, and drug relapses, had not made themselves potential sources of permanence in their children's lives. The court noted that the only family member who indicated a desire to have custody of the children was Father, but his incarceration and lack of a relationship with his children made placement with him impossible.

{¶ 44} Finally, concerning R.C. 2151.414(D)(1)(e), the court found that both parents failed to have contact with their children for periods greater than 90 days, and thus found that both parents had abandoned their children.

{¶ 45} After thoroughly reviewing the record, we find that sufficient credible evidence supported the juvenile court's determination regarding the best interest of the children. This court does not dispute that Father loves his children. However, Father's decision to continue to abuse illegal narcotics and violate the law-decisions which repeatedly resulted in him serving jail time and being unable to visit his children or participate in his case plan for reunification-precluded him from establishing the stability necessary to regain custody. Early in the case Father made some progress towards bettering his life and possibly reunifying with his young children. He did not test positive for illegal narcotics throughout 2015 and was able to maintain stable housing when he was not incarcerated. Nonetheless, Father repeatedly demonstrated that he was incapable of maintaining his sobriety or staying out of jail even though custody of his children was in jeopardy. B.L.1 and B.L.2 were in foster care for over two years before the agency moved for permanent custody, thus Father had ample time to work his case plan. The children in this case need and deserve care and permanence. Fortunately, they are receiving stable care and support in their foster arrangement, with a foster family that wishes to adopt them.

{¶ 46} Accordingly, this court concludes that the juvenile court's findings are supported by sufficient credible evidence and are otherwise not against the manifest weight of the evidence. The juvenile court did not err in finding it was in the children's best interest to be placed in the permanent custody of JFS. Father's second assignments of error is, therefore, overruled.

{¶ 47} Judgment affirmed.

RINGLAND and M. POWELL, JJ., concur.

      Mother and Father have two older children who were also removed from the home. These children were eventually adopted by a relative and are not at issue in this case.

      The record reflects that the 2014 Texas home study was considered valid for only one year.

      Mother is not a party to this appeal.

      Father's assignment of error suggest that he is asserting both facial and as-applied constitutional challenges to the statute. However, Father's argument is limited to an as-applied challenge because he does not contend that there are no circumstances under which R.C. 5103.20 would be constitutional. See Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37, citing United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

      Father cites a webpage in support of his claim. See http://icpcstatepages.org/texas/appeals. The website appears to be affiliated with or created by the American Public Human Services Association and the Association of Administrators of the Interstate Compact on the Placement of Children. The website consists of a visual index containing state-specific data concerning the implementation of the interstate compact on the placement of children in all adopting states. Father's specific hyperlink leads to a webpage listing appellate rights concerning home studies or ICPC decisions in Texas. The webpage simply indicates that "No" appeals are permitted in Texas, but cites no legal authority or other source for this assertion.