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In re J.W.

Court of Appeals of Ohio, Twelfth District, Butler

May 7, 2018

IN THE MATTER OF: J.W., et al.

          APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. JN2016-0142 and -0145

          Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, for appellee.

          Jeannine C. Barbeau, for appellant.

          OPINION

          M. POWELL, J.

         {¶ 1} Mother, the biological mother of J.W. and K.E., appeals the decisions of the Butler County Court of Common Pleas, Juvenile Division, which terminated her parental rights and granted permanent custody of J.W. and K.E. to the Butler County Department of Job and Family Services ("JFS" or "the agency"). For the reasons described below, this court affirms the juvenile court's decisions.

         {¶ 2} In April 2016, JFS filed complaints alleging that J.W. and K.E. were neglected, abused, and dependent children and requested temporary custody. The complaints alleged that J.W.'s and K.E.'s sibling fell off a roof and was injured. When the accident occurred, Mother claimed to have left the children in the care of the children's grandfather, who fled from the home when law enforcement arrived. Police found the home unsafe and unsanitary. Law enforcement charged Mother with child endangering and removed the children from her care.[1] In an ex parte order, the court granted temporary custody of the children to the agency.

         {¶ 3} At a November 2016 hearing, Mother stipulated that the children were dependent. The children's biological father lived out of state, did not participate in the proceedings, and was found in default. The juvenile court adjudicated the children dependent. The agency then withdrew the neglect and abuse allegations.

         {¶ 4} Over the following year, Mother, a heroin addict, failed to make substantial progress on her case plan for reunification. In June 2017, the agency moved for permanent custody. The motion alleged that the children could not and should not be placed with either of their parents within a reasonable time and that granting the agency permanent custody was in the children's best interest.

         {¶ 5} Prior to the hearing, the children's guardian ad litem filed a recommendation that the court grant permanent custody to the agency. The juvenile court held the permanent custody hearing in October 2017. JFS introduced the testimony of Mother's caseworker and several documentary exhibits.

         {¶ 6} The caseworker testified that the agency placed the children with a foster family in May 2016, where they remained throughout the pendency of the case. The caseworker detailed Mother's lack of progress on the agency's case plan for reunification, which included her failure to complete any case plan service concerning her issues with substance abuse. Mother repeatedly tested positive for narcotics and, admitting continued heroin use, stopped submitting to drug tests. Mother exercised visitation with her children at a family visitation center and the visits went well. Mother and the children appeared bonded. As of the hearing, Mother was not allowed to visit with the children because she missed some scheduled visitations. However, Mother continued to see the children regularly when the foster family would let her.

         {¶ 7} Mother testified in defense of her parental rights. Mother testified that she was sober and had stopped using heroin one year after the children's removal, in April 2017. Mother testified that she obtained a vehicle in September 2017 and housing at the beginning of October 2017. She was not currently involved in counseling but agreed that she needed counseling.

         {¶ 8} A magistrate issued a decision recommending that the court grant permanent custody to the agency. The juvenile court adopted the decision the same day. Mother then appealed. Mother raises two assignments of error in this appeal.

         {¶ 9} Assignment of Error No. 1:

         {¶ 10} THE TRIAL COURT'S DECISION AND ORDER GRANTING PERMANENT CUSTODY OF J.W. AND K.E. TO BUTLER COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IT WAS CONTRARY TO THE BEST INTEREST OF THE CHILDREN, AND THERE WAS INSUFFICIENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE DECISION.

         {¶ 11} Mother argues that the decision to grant permanent custody to JFS was not supported by the evidence. Mother contends that she made some progress on her case plan, had employment, obtained a vehicle, and her visits with the children went well and displayed the bond between Mother and child. Because of these facts, Mother argues that clear and convincing evidence did not support the juvenile court's decision.

         {¶ 12} However, Mother did not object to the magistrate's decision.[2] Juv.R. 40(D)(3)(b)(iv) provides that "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 or conclusion" pursuant to the procedure set forth in the juvenile rule. The rule embodies the principle that the failure to draw the trial court's attention to potential error, where the trial court could have corrected the error, results in a waiver of that argument on appeal. In re Morris, 12th Dist. Butler No. ...


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