[Cite as In re J.W., 2018-Ohio-1781.]



                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




 IN THE MATTER OF:                                 :     CASE NOS. CA2017-12-183
                                                                   CA2017-12-184
                     J.W., et al.                  :
                                                                  OPINION
                                                   :               5/7/2018

                                                   :



              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, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

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



        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
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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


1. Mother's three other children who were removed that day are not at issue in this appeal.
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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


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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. CA2000-01-001, 2000 Ohio App. LEXIS 4799, *3-4 (Oct. 16,

2000). However, Juv.R. 40(D)(3)(b)(iv) excepts "plain error" from this waiver rule.

        {¶ 13} Plain error in the civil context is "extremely rare" and this court must find that

the error involves "exceptional circumstances" where the error "rises to the level of

challenging the legitimacy of the underlying judicial process itself." Goldfuss v. Davidson,

79 Ohio St.3d 116, 122 (1997). Consequently, this court will consider whether the juvenile

court's decision granting permanent custody of the children to the agency constitutes civil

plain error.

        {¶ 14} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and

award permanent custody to a children services agency if the court makes findings pursuant

to a two-part test. First, the court must find that the grant of permanent custody to the

agency is in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D).

Second, the court must find that any of the following apply: (1) the child is abandoned, (2)

the child is orphaned, (3) the child has been in the temporary custody of the agency for at

least 12 months of a consecutive 22-month period, (4) where the preceding three factors


2. As noted, the juvenile court adopted the magistrate's decision on the same day it was filed as permitted by
Juv.R. 40(D)(4)(e)(i). If Mother had thereafter filed objections within the time prescribed under Juv.R. 40, the
effect would be an automatic stay of execution of the court's judgment, until the objections are ruled upon.
Juv.R. 40(D)(4)(e)(i).
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do not apply, the child cannot be placed with either parent within a reasonable time or

should not be placed with either parent, or (5) the child or another child in the custody of

the parent from whose custody the child has been removed, has been adjudicated an

abused,   neglected, or     dependent    child   on   three   separate    occasions.    R.C.

2151.414(B)(1)(a)-(e). Only one of those findings must be met to satisfy the second prong

of the permanent custody test. In re B.T.H., 12th Dist. Butler No. CA2017-06-080, 2017-

Ohio-8358, ¶ 35.

       {¶ 15} Pursuant to R.C. 2151.414(B)(1)(b), the juvenile court found that the

children's biological father abandoned them.       Mother does not challenge this finding.

Pursuant to R.C. 2151.414(B)(1)(a), the juvenile court also found that the children could not

be placed with either parent within a reasonable time or should be placed with their parents.

In so finding, the court considered the relevant statutory factors set forth under R.C.

2151.414(E)(1) through (16).

       {¶ 16} With respect to R.C. 2151.414(E)(1), i.e., whether Mother failed to

substantially remedy the problems that caused the children's removal, the juvenile court

found that Mother's case plan for reunification required her to complete a SAMI (substance

abuse/mental illness) assessment and follow its recommendations, submit to random drug

screens, participate in in-home parenting classes prior to and upon reunification, and obtain

and maintain stable housing and employment.

       {¶ 17} For several months, Mother did not appear for scheduled SAMI assessments.

Mother first completed a SAMI assessment in November 2016.                  The assessment

determined that Mother had severe opioid use disorder and major depressive disorder. The

assessment recommended residential treatment. Mother reported for residential treatment

in February 2017 but left the facility the next day and never returned.


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       {¶ 18} In April 2017, Mother completed another SAMI assessment, which resulted in

the same diagnoses as before.        However, this assessment recommended outpatient

treatment, random drug screens, Vivitrol shots, and counseling. Mother then engaged in

services through Community Behavioral Health ("CBH") and began outpatient drug abuse

treatment.   However, by August 2017, Mother was discharged from CBH for non-

attendance. As of the permanent custody hearing, Mother had not resumed drug treatment

with CBH, although she testified that she planned to do so shortly.

       {¶ 19} Mother tested positive for fentanyl in three drugs screens in 2016. Mother

tested positive for opiates and fentanyl in a January 2017 drug screen. Mother refused

other drug screens because she admitted regular heroin use. However, Mother's drug

screens from April 2017 through August 2017 were negative for all drugs tested. Then on

September 2017, Mother tested positive for amphetamines, specifically Adipex. Mother

testified that this positive result was from taking a weight-loss drug that she was prescribed

in 2015. Mother provided no proof of this prescription.

       {¶ 20} Mother has lived in five locations since commencement of the case in April

2016. She lived with her father in Hamilton, Ohio, then moved in with family in Camden,

Ohio, then with a friend in Richmond, Indiana, and then back to Hamilton, Ohio to a friend's

residence. Finally, two weeks prior to the hearing, Mother moved into her own two-bedroom

apartment in Hamilton. JFS visited the apartment and found it appropriate. The juvenile

court found that the apartment was appropriate, but that Mother had not demonstrated

housing stability because of her prior residential history and the brief time she lived in the

new apartment.

       {¶ 21} As of the hearing, Mother had not engaged in parenting classes because the

agency wanted her to demonstrate stable housing before referring her for parenting


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classes. Mother had a series of short-term employments throughout the case as well as a

three-month term of unemployment. Mother had just recently changed jobs but had not yet

received her first paycheck. The court found that Mother had also not demonstrated stable

employment.

       {¶ 22} Ultimately, the court found that Mother had not completed any of her case

plan services and, as of the time of the permanent custody hearing, was not actively

engaged in any case plan services. Accordingly, the court found that notwithstanding

reasonable case planning and efforts by the agency to assist Mother in remedying the

problems that cause the children's removal, Mother had failed continuously and repeatedly

to substantially remedy the conditions that caused removal.

       {¶ 23} With respect to R.C. 2151.414(E)(2), mental illness and drug dependency, the

court reiterated its findings concerning Mother's SAMI assessments, Mother's history of

drug abuse, and her failure to complete any case plan services. The court additionally

found that in April 2017, Mother self-referred to a hospital for suicidal ideation. Mother

received inpatient treatment for four days before being released. Nonetheless, Mother was

not currently engaged in mental health services.

       {¶ 24} With respect to R.C. 2151.414(E)(4), the court found that Mother

demonstrated a lack of commitment to the children by not completing her case plan services

and by not maintaining stable housing and income.

       {¶ 25} With regard to R.C. 2151.414(E)(7), whether Mother had been convicted of

an offense involving harm to a child, the court found that Mother was convicted of two counts

of attempted child endangering, which offenses arose from the same incident that resulted

in the children's removal.

       {¶ 26} After making a finding that grounds for granting permanent custody existed


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under R.C. 2151.414(B)(1)(a), the juvenile court went on to consider the statutory best

interest factors:

          (a) The interaction and interrelationship of the child with the child's
              parents, siblings, relatives, foster caregivers and out-of-home
              providers, and any other person who may significantly affect the
              child;

          (b) The wishes of the child, as expressed directly by the child or
              through the child's guardian ad litem, with due regard for the
              maturity of the child;

          (c) The custodial history of the child, including whether the child has
              been in the temporary custody of one or more public children
              services agencies or private child placing agencies for twelve or
              more months of a consecutive twenty-two-month period * * *;

          (d) The child's need for a legally secure permanent placement and
              whether that type of placement can be achieved without a grant
              of permanent custody to the agency;

          (e) Whether any of the factors in divisions (E)(7) to (11) of this
              section apply in relation to the parents and child.

R.C.2151.414(D)(1).

       {¶ 27} With respect to R.C. 2151.414(D)(1)(a), the juvenile court found that Mother's

visitations with the children went well and Mother was appropriate with the children. The

court additionally found that the children had adjusted well to their foster home, where they

had been for nearly 18 months.

       {¶ 28} With regard to R.C. 2151.414(D)(1)(b), the court noted that the children's

guardian ad litem recommended that permanent custody be granted to the agency.

       {¶ 29} Concerning R.C. 2151.414(D)(1)(c), the juvenile court found that the children

had not been in the temporary custody of the agency for more than 12 consecutive months.

       {¶ 30} With respect to R.C. 2151.414(D)(1)(d), the court found that the children were

removed from Mother's care in April 2016 due to lack of supervision in the home and

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because of Mother's arrest for child endangering. The children's father was out of state,

had a history of issues with children services, and had a no-contact order with the family.

      {¶ 31} The agency prepared and filed three case plans. Mother failed to complete

any case plan service and was unsuccessfully discharged from various services for lack of

attendance. Mother was not engaged in any case plan service as of the time of the

permanent custody hearing.

      {¶ 32} No other individual approached the agency with a request for a home study

and no other persons moved for legal custody.

      {¶ 33} The court noted that granting permanent custody to the agency was not the

only way to provide the children with a legally secure placement as it was "theoretically"

possible that Mother could eventually address her issues with drug abuse, mental health,

and housing and employment stability. However, based on her history and current situation,

the court found it unlikely that Mother would be able to provide the children with a safe and

stable environment in the foreseeable future. Based on the above analysis, the court found

by clear and convincing evidence that the placement of the children in the permanent

custody of JFS was in the children's best interest.

      {¶ 34} This court concludes that the juvenile court considered the relevant statutory

criteria and, given our review of the record, made the appropriate findings to grant

permanent custody to the agency. This court finds no error that challenges the legitimacy

of the judicial process and this is not one of the "exceptionally rare" cases involving civil

plain error. The evidence reflects a bond between Mother and the children and that Mother

exercised regular visitation with her children. Unfortunately, Mother's actions revealed that

she, for too long, prioritized substance abuse over her children. Mother took some steps to

finally obtain stable housing, but only weeks before the permanent custody hearing.


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Consequently, this court overrules Mother's first assignment of error.

       {¶ 35} Assignment of Error No. 2:

       {¶ 36} THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY OF

THE CHILDREN, J.W. AND K.E., TO BUTLER COUNTY DEPARTMENT OF JOB AND

FAMILY SERVICES AND IT IS NOT IN THE BEST INTEREST OF THE CHILDREN WHEN

THE BIOLOGICAL FAMILY IS BONDED, THE CHILDREN ARE NOT IN AN ADOPTIVE

PLACEMENT, AND THEIR WISHES WERE NOT CONSIDERED.

       {¶ 37} In her second assignment of error, Mother makes additional arguments

concerning the best interests of the children. We reject those argument for the same

reasons discussed in response to Mother's first assignment of error. However, Mother also

argues that error occurred because the record does not indicate that the guardian ad litem

determined the wishes of the children. Mother also argues that the guardian ad litem's

recommendation was at odds with the children's wishes, so the court should have appointed

the children a separate attorney.

       {¶ 38} Again, Mother failed to raise any of these issues with the juvenile court and is

limited to a review for civil plain error. With respect to Mother's argument that the guardian

ad litem failed by not determining the children's wishes, any error, if it occurred, would be

harmless. As of the time of the hearing, the older of the two children was five years old and

the younger child was three years old. Thus, both children were too young to express an

informed choice as to their custody.       Mother's argument that the court should have

appointed the children independent counsel relies on the premise that the children wished

for the court to grant permanent custody to Mother. However, as was just discussed, the

children were too young to express an informed choice on this subject. This court finds

nothing rising to the level of plain error. Accordingly, this court overrules Mother's second


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assignment of error.

      {¶ 39} Judgment affirmed.


      S. POWELL, P.J, and HENDRICKSON, J., concur.




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