OPINION

I THE STATE FAILED TO PRODUCE CLEAR AND CONVINCING EVIDENCE TO JUSTIFY THE COURT'S AWARDING PERMANENT CUSTODY TO FAIRFIELD COUNTY CHILDREN SERVICES.

II THE TRIAL COURT FAILED TO PROVIDE THE PARENTS OF THE RELATORS WITH DUE PROCESS WHEN IT FAILED TO PROVIDE A RECORD HEARING OF THE PROCEEDINGS FOR PERMANENT CUSTODY.

Appellant's counsel argues to this court because he was not the trial attorney and upon his belief he could not rely on the memory of the trial attorney, he could not ethically attempt to formulate an App. R. 9(C) statement for the trial court's review. Normally we would find the absence of a trial transcript should be handled pursuant to said rule and we would affirm on the presumption of regularity in the proceedings under the authority of Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. However, because this is reported to be the third incident of this nature, we feel compelled to elaborate further on the rules governing courts of record. Pursuant to R.C. 2151.01(D), the juvenile court is "[t]o provide judicial procedures through which Chapter 2151. of the Revised Code is executed and enforced, and in which the parties are assured of a fair hearing, and their constitutional and other legal rights are recognized and enforced." Juv.R. 37(A) states as follows: The juvenile court shall make a record of adjudicatory and dispositional proceedings in abuse, neglect, dependent, unruly, and delinquent cases; permanent custody cases; and proceedings before magistrates. * * * The record shall be taken in shorthand, stenotype, or by any other adequate mechanical, electronic, or video recording device.

The Rules of Superintendence for the Courts of Ohio provide the custody of any "[e]lectronically recorded transcripts of proceedings shall be maintained and transcribed in the manner directed by the trial court." See, Sup.R. 11(C). Permanent custody records "shall be retained for two years after the child who is the subject of the case obtains the age of majority." See, Sup.R. 26.03(H)(3). A "record" is defined as "any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of a court that serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the court." See, Sup.R. 26(B)(6). We note "termination of parental rights is the family law equivalent of the death penalty in a criminal case. The parties to such an action must be afforded every procedural and substantive protection the law allows." In re Smith (1991), 77 Ohio App.3d 1, 16; see also, In re Hayes (1997),79 Ohio St.3d 46. Based upon the above cited requirements, including the obligation to assure parents their constitutional rights (R.C. 2151.01), and the absence of some testimony relied upon by the trial court, we reluctantly reverse and remand the case for a new hearing. At the very least, we reverse and remand for an App. R. 9(C) statement under the trial court's guidance. If said statement cannot be generated, a new hearing is ordered. Assignment of Error II is granted.

The judgment of the Court of Common Pleas of Fairfield County, Ohio, Juvenile Division is hereby reversed and remanded.

Farmer J. Wise, P.J. concur. Hoffman, J. dissents.

I respectfully, albeit reluctantly, dissent from the majority opinion. I empathize with appellants' counsel's difficulty in preparing an App. R. 9(C) statement. Nonetheless, I believe an attempt to do so must be completed before this Court orders a reversal based upon the unavailability of a complete record. Noticeably absent in the majority's analysis and appellants' brief to this Court is an allegation appellants themselves are unable to assist their appellate counsel in preparing a Rule 9(C) statement from their recollection. In such absence, I am compelled to affirm the trial court's judgment based upon the presumption of regularity articulated in Knapp v. Edwards Laboratories (1980),61 Ohio St.2d 197. I hasten to note I find the result reached by the majority to be a just one. I am as reluctant to affirm the trial court's decision as the majority is to reverse given the fundamental right of parents to raise their child. Although I know of no case that holds a parent in a termination of parental rights case is entitled to effective assistance of counsel or appellate counsel, I find no good reason not to so hold given the fact an indigent parent is entitled to appointed counsel and, as aptly noted by the majority, termination of parental rights is the family law equivalent of the death penalty in a criminal case.