[Cite as In re J.M., 2014-Ohio-3561.]
                            STATE OF OHIO, CARROLL COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

IN THE MATTER OF:                             )
J.M.,                                         )    CASE NO. 13 CA 889
                                              )
D.O.B. 4-13-00.                               )         OPINION
                                              )


IN THE MATTER OF:                             )
H.M.,                                         )    CASE NO. 13 CA 890
                                              )
D.O.B. 7-19-02.                               )         OPINION
                                              )


CHARACTER OF PROCEEDINGS:                          Civil Appeal from Juvenile Court,
                                                   Carroll County, Ohio,
                                                   Case Nos. 20103014 & 20103015.

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellant:                           Attorney Michael Repella, II
                                                   26 Second Street, S.E
                                                   Carrollton, OH 44615

For Defendant-Appellee:                            Attorney Donald Burns, Jr.
                                                   Prosecuting Attorney
                                                   Attorney Steven Barnett
                                                   Assistant Prosecuting Attorney
                                                   Office of Prosecuting Attorney
                                                   7 East Main Street
                                                   Carrollton, OH 44615

JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite                               Dated: August 7, 2014
[Cite as In re J.M., 2014-Ohio-3561.]
DeGenaro, P.J.
        {¶1} Appellant-Mother, Jennifer McMillen appeals the decision of the Carroll
County Court of Common Pleas, Juvenile Division, terminating her parental rights to J.M.
and H.M., her minor children. Jennifer argues that the trial court abused its discretion in
making legal and factual findings that were not properly before the court. For the
reasoning discussed below, Jennifer's argument is meritless and the judgment of the trial
court is affirmed.
                                  Facts and Procedural History
        {¶2} On January 14, 2011, J.M., D.O.B: April 13, 2000 and H.M., D.O.B: July 19,
2002, were adjudicated dependent by the Carroll County Juvenile Court. The children
were placed into the temporary custody of a close family friend and remained there until
December 30, 2011, at which time they were returned to Jennifer subject to protective
supervision. On May 18, 2012, the Carroll County Department of Job and Family Services
(CCDJFS) requested emergency removal of the children due to "exigent circumstances."
The juvenile court granted the motion finding shelter care was necessary due to the
parties’ noncompliance, and the children were placed in the temporary custody of
CCDJFS.
        {¶3} On December 14, 2012, a motion for modification of temporary custody to
permanent custody was filed by CCDJFS. The basis of the motion was that "[t]he
child[ren] should not be placed with either parent" and that permanent custody was in the
best interests of the child[ren]. Further, the motion provided a narrative outlining the
children's history with the agency, Jennifer's suicide attempts, her continued drug use, her
erratic behavior, and her untreated mental disorders.
        {¶4} Jennifer was served by certified mail with a copy of the permanent custody
motion on December 28, 2012. The hearing on the motion commenced on April 26, 2013;
CCDJFS presented its entire case and rested. Due to timing issues, the juvenile court
continued the matter until June 18, 2013, so that Jennifer could present her case in its
entirety.
        {¶5} The juvenile court’s judgment entry of July 17, 2013, found as to Jennifer a
history of drug abuse, anger management issues, mental issues, specifically bi-polar,
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depression, and impulse control; attempted suicide on several occasions, failure to follow
through with mental health treatment; unsuccessful drug treatment; failure to protect the
children from her violent outbursts; and an inability to attend to the children’s needs.
Thus, the trial court found that the children could not be returned to Jennifer within a
reasonable time. Further finding that neither parent had family or extended family that
would be an appropriate placement for the children, the judgment entry concluded that "a
grant of permanent custody to the Carroll County Department of Job and Family Services,
terminating all parental rights, was in the best interest of the child(ren)."
                                 Waiver and Actual Knowledge
       {¶6} In her sole assignment of error, Jennifer asserts:
       {¶7} "The trial court erred and/or abused its discretion in making legal and factual
findings that were not properly before the court."
       {¶8} Although her assignment of error is framed otherwise, Jennifer argues the
permanent custody motion filed by CCDJFS failed to assert any ground for the change
from temporary custody to permanent custody with sufficient definiteness to put her on
notice in order to defend. CCDJFS counters Jennifer failed to timely raise the issue of
sufficiency of notice and therefore any defect is waived, but alternatively argues that the
notice was reasonably calculated to inform Jennifer of the Agency’s desire to terminate
her parental rights.
       {¶9} This court addressed similar arguments in In re Stephens, 7th Dist. No. 00-
CO-2, 2001-Ohio-3264. Mother appeared with counsel at both the pre-trial and merit
hearing, at which evidence was presented on her behalf. On appeal, Mother contended
that because the record was silent with respect to having been served with the complaint,
the juvenile court did not have jurisdiction. This Court disagreed for multiple reasons.
First, the record contained a return receipt bearing her signature, demonstrating that she
had in fact been served with notice. Id. *3. Second, she waived raising any deficiency
regarding notice on appeal because she failed to raise it in the juvenile court. Id. Finally,
the panel held that actual knowledge satisfied the statutory notice requirement, adopting
the First District’s analysis in a similar case:
                                                                                       -3-



       "There is no question that appellant [Webb] in the instant case had actual
       notice of the proceedings, appeared, defended, and was given a full
       opportunity to be heard. Appellant does not argue that he was unaware of
       the nature of the proceedings. Further, appellant was represented by
       counsel throughout the proceedings. * * * Because the record clearly
       demonstrates that appellant had actual notice of the proceedings, fully
       understood his rights and the nature of the proceedings, and participated
       throughout, the first assignment of error is overruled."

In re Webb, 64 Ohio App.3d 280, 581 N.E.2d 570 (1st Dist.1989) (despite lack of
statutory notice, jurisdiction vests when a parent had actual notice of custody termination
proceedings); quoted in Stephens, *3.
       {¶10} Here, CCDJFS served Jennifer with a motion for modification of temporary
custody to permanent custody. The basis of the permanent custody motion was that "the
child(ren) should not be placed with either parent." A lengthy narrative follows, outlining
the children's history with the agency, Jennifer's suicide attempts, her continued drug use,
her erratic behavior and her untreated mental illness. Jennifer did not raise an objection
with the juvenile court regarding the sufficiency of notice or assert she was unable to
defend the permanent custody motion. Consistent with Stephens, Jennifer's argument
regarding notice has been waived.
       {¶11} But even if Jennifer had not waived the issue, her argument fails on the
merits. Jennifer contends that the motion indicates that CCDJFS was proceeding on the
basis that the children should not, as opposed to cannot, be placed with either parent
within a reasonable amount of time. Jennifer asserts that if she had notice CCDJFS was
proceeding under the latter, as opposed to the former, then her defense would have been
different. CCDJFS counters both of these options are contained within the same statutory
section, R.C. 2151.414(B)(1)(a), which is clearly written in the disjunctive.
       {¶12} First, at the beginning of the hearing CCDJFS stated that it was proceeding
under both prongs contained in R.C. 2151.414(B)(1)(a) and Jennifer did not object. An
                                                                                        -4-


appellant's failure to object at trial waives all but plain error, Fearer v. Humility of Mary
Health Partners, 7th Dist. No. 06 MA 84, 2008-Ohio-1181, ¶119, which is generally not
favored in civil cases. Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 679 N.E.2d 1099
(1997). Second, given the manner in which the statute is written, Jennifer's counsel had
to prepare to defend either option. Finally, CCDJFS presented testimony and evidence
consistent with the motion’s narrative; specifically, her suicide attempts, drug abuse and
mental health issues. Jennifer appeared with counsel, defended and was given a full
opportunity to be heard. Further, she had additional time, over 50 days, to prepare her
case in chief due to the continuance granted by the juvenile court.
          {¶13} Consistent with Stephens, the record demonstrates that Jennifer had actual
knowledge of the basis of the motion and how CCDJFS intended to proceed. Accordingly,
Jennifer had sufficient notice of the grounds against which she would have to defend the
permanent custody motion. There was no error, let alone plain error with respect to
notice.
          {¶14} For the foregoing reasons, Jennifer's sole assignment of error is meritless,
and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Waite, J., concurs.
