[Cite as In re C.B., 2011-Ohio-4537.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

IN RE: C.B., V.B., and D.B.                       :

                                                  :        C.A.   CASE     NOS.     24564,
                                                      24565,
                                                                                24566
                                                  :
                                                            T.C. NOS. C 2010-2258
                                                  :                         C
2010-2261

C2010-2259
                                                  :
                                                              (Civil appeal from Common
                                                  :           Pleas     Court,    Juvenile
                                                      Division)

                                                  :

                                        ..........

                                        OPINION

                         Rendered on the    9th        day of     September       , 2011.

                                        ..........

TIMOTHY J. COLE, Atty. Reg. No. 0084117, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Appellee

ANDREA G. OSTROWSKI, Atty. Reg. No. 0075318, 25 E. Central Avenue, Suite 4,
Springboro, Ohio 45066
      Attorney for Appellant

                                        ..........
                                                                                   2


DONOVAN, J.

      {¶ 1} This matter is before the Court on the Notice of Appeal of Robyn Oppy,

filed April 4, 2011.   On March 17, 2010, a Dependency Complaint was filed

regarding Oppy’s three sons, D.B., C.B. and V.B. After a hearing, the Magistrate

made an oral pronouncement from the bench that D.B was an abused and dependent

child, and that C.B. and V.B. were dependent children. The Magistrate issued an

Order of Adjudication on May 26, 2010, that found that all three children were

dependent, and failed to find that D.B. was abused. Oppy filed Objections to the

Magistrate’s Decision on June 7, 2010. On June 15, 2010, the Magistrate issued an

Amended Magistrate’s Order of Adjudication, finding that D.B. was abused,

consistent with her oral pronouncement, and finding all three children were

dependent. The Amended Order provides in part, “A party may appeal this order by

filing a Motion to Set Aside Magistrate’s Order” within 10 days. Oppy filed a Motion

to Set Aside Amended Magistrate’s Order on June 24, 2010, and she filed a Motion to

Withdraw Objections on October 21, 2010. On October 22, 2010, Oppy filed an

Amended Motion to Set Aside Amended Magistrate’s Order Dated June 15, 2010.

Therein she argued that parents have a right to employ corporal punishment, the

punishment employed against D.B. was not excessive, and D.B. was accordingly not

an abused child. Oppy further argued that the State failed to prove that the children

were dependent. On November 3, 2010, the trial court issued an Entry Denying

Amended Motion to Set Aside, determining that D.B. was an abused child and that

the three children were dependent.
                                                                                       3

       {¶ 2} On December 3, 2010, Oppy filed a Notice of Appeal. We dismissed her

appeal after ordering her to show cause why her appeal should not be dismissed for

lack of a final appealable order, since disposition in the underlying juvenile matter had

not taken place. In re Murray (1990), 52 Ohio St.3d 155, 160 (finding that an

adjudication that a child is dependent along with disposition of the matter is

necessary to constitute a final appealable order.)

       {¶ 3} On March 2, 2011, after a hearing on disposition before the Magistrate,

and consistent with Juv.R. 40(D)(4)(e)(i), which allows the court to enter a judgment

within the time permitted for filing of objections thereto, and further provides that the

timely filing of objections operates as an automatic stay, a combined Magistrate’s

Decision and Judge’s Order of Legal Custody and Protective Supervision was issued,

in which the court granted legal custody of the children to Oppy, with an order of

protective supervision until July 20, 2011.          The judge’s order adopting the

magistrate’s decision provides in part that the parties have 14 days to object to the

decision, and that a “party shall not assign as error on appeal the Court’s adoption of

any finding of fact or conclusion of law in that decision, unless the party timely and

specifically objects to that finding or conclusion as required by Juvenile Court Rule

40[(D)](3).” On April 4, 2011, Oppy filed a Notice of Appeal, and she did not file

objections to the Magistrate’s Decision and Judge’s Order of March 2, 2010.

       {¶ 4} Oppy asserts one assignment of error with subparts, as follows:

       {¶ 5} “THE TRIAL COURT’S DECISION THAT THE MINOR CHILD WAS

ABUSED WAS NOT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE.

       {¶ 6} “A. THE CHILD WAS NOT ABUSED, BUT RATHER SUBJECTED TO
                                                                                        4

CORPORAL PUNISHMENT, WHICH WAS NOT EXCESSIVE GIVEN THE

TOTALITY OF THE CIRCUMSTANCES.

       {¶ 7} “B. THE OTHER TWO CHILDREN SHOULD NOT BE ADJUDICATED

DEPENDENT.”

       {¶ 8} Juv.R. 40(D)(3)(b)(iv) provides: “(iv) Waiver of right to assign adoption by

court as error on appeal. Except 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, whether

or not specifically designated as a finding of fact or conclusion of law under Juv.R.

40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required

by Juv.R. 40(D)(3)(b).”       Juv.R. 40(D)(3)(a)(iii) requires a magistrate’s decision to

include conspicuous language informing the parties of their responsibility to object to,

rather than simply appeal, the magistrate’s decision.

       {¶ 9} The Magistrate’s Decision and Judge’s Order of Legal Custody and

Protective Supervision of March 2, 2010, complied with Juv.R. 40(D)(3)(a)(iii). Oppy

failed to file objections thereto as required by Juv.R. 40(D)(3)(b)(iv), and as the

Supreme Court of Ohio has noted, the “failure to follow procedural rules can result in

forfeiture of rights.” Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 122. Absent

a showing of plain error, Oppy’s arguments have been waived for purposes of appeal,

since she failed to object below. “‘In appeals of civil cases, the plain error doctrine is

not favored and may be applied only in the extremely rare case involving exceptional

circumstances where error, to which no objection was made at the trial court,

seriously affects the basic fairness, integrity, or public reputation of the judicial

process, thereby challenging the legitimacy of the underlying judicial process itself.’
                                                                             5

(Citation omitted).” In the Matter of A.J.S. & R.S., Miami App. No. 2007 CA 2,

2007-Ohio-3433, ¶ 16. On the record before us, plain error is not demonstrated.

Thus, the judgment is affirmed.

                                  ..........

FROELICH, J. and HALL, J., concur.




Copies mailed to:

Timothy J. Cole
Andrea G. Ostrowski
Hon. Anthony Capizzi
