Court of Appeals of Ohio, Twelfth District, Butler
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.
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
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. 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
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
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
12} However, Mother did not object to the
magistrate's decision. 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. ...