[Cite as In re M.W., 2017-Ohio-7358.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                        BUTLER COUNTY




IN THE MATTER OF: M.W.                         :
                                                       CASE NO. CA2017-01-011
                                               :
                                                              OPINION
                                               :               8/28/2017

                                               :



             APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                             JUVENILE DIVISION
                            Case No. JN2016-0213



Carol Garner-Stark, 9435 Waterstone Boulevard, Suite 140, Cincinnati, Ohio 45249,
guardian ad litem for M.W.

Heather A. Felerski, P.O. Box 181342, Fairfield, Ohio 45018, for appellant

Jeannine C. Barbeau, 3268 Jefferson Avenue, Cincinnati, Ohio 45220, guardian ad litem for
appellant

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler
County Department of Job & Family Services



        S. POWELL, P.J.

        {¶ 1} Appellant, a mother ("Mother"), appeals from the decision of the Butler County

Court of Common Pleas, Juvenile Division, adjudicating her daughter, M.W., a dependent

child. For the reasons outlined below, we affirm.

        {¶ 2} On May 19, 2016, M.W. was born in a motel room located in Hamilton, Butler
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County, Ohio. At the time of M.W.'s birth, Mother, who resided in the motel room with her

own mother, alleged she did not know she was pregnant due to the side effects of her

seizure medication. Mother also admitted that she had not received any prenatal care during

the pregnancy. At all times relevant, it is undisputed that Mother was unemployed and relied

solely on her mother's disability income for financial support. The identity of M.W.'s father is

unknown.

       {¶ 3} On June 9, 2016, a caseworker for the Butler County Department of Job and

Family Services ("BCDJFS") filed a complaint alleging M.W. was a dependent child due to

concerns that M.W. had only gained six ounces in the three weeks since her birth while in

Mother's care. The complaint further alleged that Mother refused to "wake [M.W.] to feed her

due to her own beliefs that newborn's should not be awoken to be fed on a schedule." Later

that day, the juvenile court issued an emergency ex parte order placing M.W. in the

temporary custody of BCDJFS. The juvenile court also appointed M.W. with a guardian ad

litem. Following M.W.'s removal from Mother's care, the complaint indicates M.W. gained

eight ounces in a period of just eight days.

       {¶ 4} On November 1, 2016, an adjudication hearing was held before a juvenile court

magistrate, during which the magistrate heard testimony from M.W.'s pediatrician, Mother,

and a caseworker from BCDJFS. The next day, November 2, 2016, the magistrate issued a

decision adjudicating M.W. a dependent child in accordance with R.C. 2151.04(C), which

defines a "dependent child" as any child "[w]hose condition or environment is such as to

warrant the state, in the interests of the child, in assuming the child's guardianship[.]" In

reaching this decision, the magistrate made numerous factual findings, including, but not

limited to, the fact that M.W.'s pediatrician was concerned about M.W.'s limited weight gain

since her birth, as well as Mother's resistance to adhere to the medical advice she received

regarding the frequency she needed to feed M.W. This included references to Mother's

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refusal to wake M.W. at night to feed "because of [Mother's] need to sleep due to her

epilepsy," a condition Mother admitted causes her to have "issues with both her short-term

and long-term memory."

       {¶ 5} On November 8, 2016, Mother filed a motion to set aside the magistrate's

decision. In support of her motion, Mother argued the magistrate's decision adjudicating

M.W. a dependent child was against the manifest weight of the evidence. Mother further

indicated that "[a] transcript of the proceedings has been ordered" and that she "reserves the

right to file supplemental objections upon receipt of the transcript." The juvenile court denied

Mother's motion on November 15, 2016, specifically holding "[a]n objection can be re-filed

after disposition in this case has taken place."

       {¶ 6} On December 9, 2016, the magistrate held a disposition hearing and issued a

dispositional decision finding it would be in M.W.'s best interest for her to remain in the

temporary custody of BCDJFS. A case plan was then established for Mother that required

Mother to seek treatment for her mental health issues. Mother was also ordered to complete

a parenting education program. It is undisputed that Mother did not attend the disposition

hearing, although her court-appointed attorney did. A transcript of this hearing was not made

part of the record.

       {¶ 7} Later that day, shortly after the disposition hearing concluded, Mother re-filed

her motion to set aside the magistrate's decision. In support of this motion, Mother once

again argued that the magistrate's decision adjudicating M.W. a dependent child was against

the manifest weight of the evidence. In addition, just as she had done previously, Mother

indicated that "[a] transcript of the proceedings has been ordered" and that she "reserves the

right to file supplemental objections upon receipt of the transcript." Neither a transcript nor

supplemental objections were timely filed with the juvenile court, nor did Mother request an

extension of time for preparation of a transcript of the adjudication hearing.
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       {¶ 8} On December 21, 2016, the juvenile court issued a decision denying Mother's

motion to set aside the magistrate's decision, thereby affirming and adopting the magistrate's

decision adjudicating M.W. a dependent child. In so holding, the juvenile court stated, in

pertinent part, the following:

              After a complete review of the record, this court finds the Motion
              to Set Aside Magistrate's Decision (which this court interprets to
              be an Objection to Magistrate's Decision) to not be well taken.
              Said objection/motion shall, therefore, be overruled. The request
              for production of a transcript for the purpose of the
              objection/motion shall be denied and the decision and order of
              the magistrate as issued on December 9, 2016 shall be adopted
              as the findings and orders of the court.

Again, neither a transcript nor supplemental objections were timely filed with the juvenile

court, nor did Mother request an extension of time for preparation of the transcript of the

adjudication hearing.

       {¶ 9} Mother now appeals from the juvenile court's decision, raising two assignments

of error for review. A transcript of the adjudication hearing was subsequently prepared and

filed with the juvenile court for purposes of this appeal.

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE TRIAL COURT ERRED IN FINDING M.W. TO BE A DEPENDENT CHILD

WHEN CLEAR AND CONVINCING EVIDENCE OF DEPENDENCY WAS NOT

PRESENTED.

       {¶ 12} In her first assignment of error, Mother argues the juvenile court erred by

adjudicating M.W. a dependent child since the evidence presented at the adjudication

hearing did not support such a decision. We disagree.

       {¶ 13} Pursuant to R.C. 2151.35(A), a juvenile court's adjudication of a child as

abused, neglected, or dependent must be supported by clear and convincing evidence. In re

T.B., 12th Dist. Fayette No. CA2014-09-019, 2015-Ohio-2580, ¶ 12. An appellate court's


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review of a juvenile court's decision finding clear and convincing evidence is limited to

whether there is sufficient, credible evidence in the record supporting the juvenile court's

decision. In re L.J., 12th Dist. Clermont No. CA2007-07-080, 2007-Ohio-5498, ¶ 12. A

reviewing court will not reverse a finding by a juvenile court that the evidence was clear and

convincing unless there is a sufficient conflict in the evidence presented. In re A.F., 12th

Dist. Brown No. CA2006-09-012, 2007-Ohio-1646, ¶ 10.

       {¶ 14} As noted above, M.W. was adjudicated a dependent child in accordance with

R.C. 2151.04(C), which defines a "dependent child" as any child "[w]hose condition or

environment is such as to warrant the state, in the interests of the child, in assuming the

child's guardianship[.]" The determination that a child is dependent requires no showing of

fault on the parent's part. In re S.W., 12th Dist. Brown No. CA2011-12-008, 2012-Ohio-3199,

¶ 12. Rather, the focus is on the child's condition or environment, and whether the child was

without adequate care or support. In re W.C.H., 12th Dist. Butler No. CA2014-02-057, 2015-

Ohio-54, ¶ 14. However, a court may consider a parent's conduct insofar as it forms part of

the child's environment. In re S.J.J., 12th Dist. Butler No. CA2006-02-021, 2006-Ohio-6354,

¶ 12. "A parent's conduct is significant if it has an adverse impact on the child sufficient to

warrant intervention." In re S.W. at ¶ 12.

       {¶ 15} After a thorough review of the record, including the transcript of the adjudication

hearing, we find sufficient, credible evidence supports the juvenile court's decision to

adjudicate M.W. a dependent child. This includes testimony that, while Mother ultimately

agreed to place M.W. on a more regimented feeding schedule, albeit reluctantly, M.W. had

only gained six ounces over the three-week period she was in Mother's care. According to

M.W.'s pediatrician, this was due to M.W. "not taking in adequate nutrients" as a result of

Mother's general unwillingness to wake M.W. up at night to feed, thereby potentially



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subjecting M.W. to a diagnosis of "failure to thrive."1 There was also testimony that Mother

had been diluting M.W.'s formula "excessively" by adding too much water to the mixture. As

the juvenile court ultimately determined in affirming and adopting the magistrate's decision,

due to M.W.'s limited weight gain, as well as other concerns regarding Mother's "residence

and dependence upon her mother," M.W.'s "condition and environment is such that the state

is warranted in addressing this child's guardianship." We agree with the juvenile court.

        {¶ 16} Despite this, Mother argues M.W.'s removal from her care was "premature in

that there was no immediate danger" to the child. In support of this claim, Mother points to

the fact that M.W. had not yet been diagnosed as "failure to thrive" at the time of her

removal. However, as M.W.'s pediatrician testified, M.W. certainly would have been a

"candidate for failure to thrive" if she had not gained sufficient weight by her next

appointment. Although Mother seems to disagree, the law does not require the court to

experiment with the child's welfare to see if the child will suffer great detriment or harm before

finding the child dependent. In re W.C.H., 2015-Ohio-54 at ¶ 28. That is certainly the case

here for the record firmly establishes that M.W.'s weight increased significantly just a few

days after M.W. was removed from Mother's care and provided proper nutrition. Therefore,

because we find sufficient, credible evidence supports the juvenile court's decision to

adjudicate M.W. a dependent child, Mother's first assignment of error is without merit and

overruled.

        {¶ 17} Assignment of Error No. 2:

        {¶ 18} THE COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S

OBJECTION WITHOUT REVIEWING A TRANSCRIPT OF THE PROCEEDINGS OR

HEARING ARGUMENTS IN ORDER TO FACILITATE AN INDEPENDENT REVIEW.


1. In describing a "failure to thrive" diagnosis, M.W.'s pediatrician testified that it is the "failure to gain weight
appropriately" due to "inadequate nutritional intake."
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        {¶ 19} In her second assignment of error, Mother argues the juvenile court erred and

abused its discretion by overruling her objections to the magistrate's decision without first

holding a hearing on the matter or by reviewing the transcript of the adjudication hearing.

However, contrary to Mother's claim, the record indicates the juvenile court held a hearing on

Mother's objections, a hearing that Mother did not attend. Based on the record before this

court, Mother's claim otherwise is simply incorrect.

        {¶ 20} Moreover, pursuant to Juv.R. 40(D)(3)(b)(iii), the fact that the juvenile court did

not have the benefit of a transcript of the adjudication hearing was the result of Mother failing

to timely file a transcript of that hearing. As Juv.R. 40(D)(3)(b)(iii) states:

                 An objection to a factual finding, whether or not specifically
                 designated as a finding of fact under Juv.R. 40(D)(3)(a)(ii), shall
                 be supported by a transcript of all the evidence submitted to the
                 magistrate relevant to that finding or an affidavit of that evidence
                 if a transcript is not available. With leave of court, alternative
                 technology or manner of reviewing the relevant evidence may be
                 considered. The objecting party shall file the transcript or
                 affidavit with the court within thirty days after filing objections
                 unless the court extends the time in writing for preparation of the
                 transcript or other good cause. If a party files timely objections
                 prior to the date on which a transcript is prepared, the party may
                 seek leave of court to supplement the objections.

(Emphasis added.)

        {¶ 21} Mother claims her failure to timely file the transcript with the juvenile court was

due to the juvenile court's denial of her request for production of the transcript. However,

while we agree the juvenile court stated as part of its decision overruling Mother's objections

that "[t]he request for production of a transcript for the purpose of the objection/motion shall

be denied," the record indicates Mother never filed such a request.2 Rather, as part of both


2. It should be noted, even if Mother had made such a request, unlike a case regarding the grant of permanent
custody, this case does not involve the termination of Mother's parental rights that would entitle Mother to a
transcript of the proceedings at the state's expense. See, e.g., In re E.J., 12th Dist. Warren No. CA2014-07-098,
2015-Ohio-731, ¶ 18 (affirming a trial court's decision to deny a mother's request for a transcript of a dispositional
hearing at the state's expense in a legal custody case because the case did not involve the termination of the
mother's parental rights).
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her motions to "set aside" the magistrate's decision, which the juvenile court properly

construed as objections to the magistrate's decision, Mother explicitly stated that "[a]

transcript of the proceedings has been ordered" and that she "reserves the right to file

supplemental objections upon receipt of the transcript." Yet, as stated previously, neither a

transcript nor supplemental objections were timely filed with the juvenile court, nor did Mother

request an extension of time for preparation of the transcript of the adjudication hearing.

Therefore, in accordance with Juv.R. 40(D)(3)(b)(iii), any blame must be placed on Mother,

not the juvenile court

       {¶ 22} A transcript of the adjudication hearing was subsequently prepared and filed

with the juvenile court for purposes of this appeal. Although we ordinarily would not review

materials under these circumstances, because this case involves issues regarding the

custody of an infant child, we have independently reviewed the transcript of the adjudication

hearing and can find no error requiring this matter be reversed. Mother, therefore, cannot

demonstrate any resulting prejudice by the juvenile court's failure to review a transcript of the

adjudication hearing itself. In other words, although Mother disagrees, we find the juvenile

court's ultimate decision to adjudicate M.W. a dependent child is fully supported by the

record. This includes testimony and evidence that M.W.'s weight increased significantly after

M.W. was removed from Mother's care and provided with proper nutrition. Again, the law

does not require the court to experiment with the child's welfare to see if the child will suffer

great detriment or harm before finding the child dependent. In re W.C.H., 2015-Ohio-54 at ¶

28.   Therefore, finding no error in the juvenile court's decision to adjudicate M.W. a

dependent child, Mother's second assignment of error is without merit and overruled.

       {¶ 23} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.


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