{¶ 3} Starting in 1998, Appellee offered and provided Appellant with multiple counseling and treatment services, including parental education and drug and alcohol treatment. Despite these programs, Appellant's drug abuse continued. She was twice dismissed from programs for not following through with out-patient treatment which consisted of counseling and random drug screens. During the dispositional hearing, Appellant testified that she has attempted to participate in some treatment programs on her own.
{¶ 4} Appellant has lost temporary custody of M.M. and H.M. numerous times. In November of 2002, M.M. was removed from her custody for approximately six months due to substance abuse and the fact that she left the child with inappropriate caregivers. In August of 2003, M.M was removed from Appellant's custody for an additional six months due to a positive drug screen. In November of 2004, M.M. and H.M. were removed from her custody, due to leaving the children with an inappropriate *3 caregiver, and not returned to Appellant's care until October of 2005. Less than two weeks later, the children were once again removed from her custody due to drug use and the fact that Appellant left the children in a homeless shelter, where she was residing at the time, in the care of another woman. Appellant has not had custody of the children since that time. On November 16, 2005, Appellee filed a motion for permanent custody.
{¶ 5} After several continuances, the dispositional hearing was finally held before a Magistrate in December of 2006. During the hearing, a Scioto County Children Services caseworker testified that, after M.M. and H.M. were removed from Appellant's custody for the final time, her drug abuse continued. In November of 2005 she was charged with possession of crack cocaine. She spent four months in jail and was released in August of 2006. Within days of her release, during a mandated drug screen, she again tested positive for cocaine. In September of 2006, Appellant refused to submit to an additional drug screening. The case worker also testified that, after her release from jail, Appellant attended nine, but missed or canceled four of her scheduled visitations with M.M. and H.M. When directly asked whether Appellant was able to assume custody of her children, Appellant's caseworker stated: "No." When asked whether more treatment services should have been provided to Appellant, the caseworker stated: "There are *4 no services that haven't already been provided." "There are no new services to offer to her. The services have already been utilized by [Appellant]."
{¶ 6} The Magistrate also heard testimony from the children's guardian ad litem, who recommended that permanent custody be vested in the Children Services Board. When asked why he arrived at that conclusion, the guardian ad litem stated: "Because of the number of opportunities [Appellant] has had to stop the course of conduct that creates the problem for her. It seems that she has a long history of drug abuse and each time that she gets heavily involved in drugs she loses her children for a period of time. It seems, most recently, she was well aware of what would happen if she continued to use drugs but she continued to use drugs."
{¶ 7} In January of 2007, the Magistrate entered his decision declaring it was in the best interests of the children to award permanent custody to Appellee. Appellant filed a motion objecting to the Magistrate's findings and moved to set aside the decision. In July of 2007, The trial court overruled Appellant's objection and Appellant subsequently appealed the decision to this court.
{¶ 8} In October of 2007, we sua sponte dismissed Appellant's appeal for failure to prosecute the case. Appellant had realized the trial court's ruling (which overruled her objection to the Magistrate's decision *5 without setting forth the trial court's own judgment) did not constitute a final appealable order.
{¶ 9} In November of 2007, the trial court entered it's own judgment and findings, sustaining in part and overruling in part Appellant's objections to the Magistrate's findings and decision, and awarding permanent custody of M.M. and H.M. to Appellee. Appellant then filed the current appeal.
decision to award permanent custody. An appellate court will not overrule a trial court's decision regarding permanent custody if there is competent and credible evidence to support the judgment. In reMcCain, 4th Dist. No. 06CA654,
{¶ 12} "An agency seeking permanent custody bears the burden of proving its case by clear and convincing evidence." In re Perry, 4th Dist. Nos. 06CA648, 06CA649,
{¶ 14} As previously stated, R.C.
{¶ 15} Under the second part of the R.C.
{¶ 16} Further, to determine, under R.C.
{¶ 17} In our analysis, we start with the second part of the permanent custody test. In the case sub judice, pursuant to R.C.
{¶ 18} The trial court properly found by clear and convincing evidence that the second part of the permanent custody test was satisfied. It is uncontested that Appellant's drug use has caused her to loose custody of her children on multiple occasions, M.M. at least four times and H.M. at least twice. Each time the children were placed back in her custody, Appellant resumed abusing drugs. Further, the trial court could easily conclude that her drug abuse was severe enough to prevent her from *10 providing an adequate home. Finally, there was evidence that though Appellee had made repeated attempts to provide treatment, Appellant's drug abuse continued. Even in the four months immediately preceding the dispositional hearing, Appellant failed one drug screen and refused to take another. In light of the forgoing, we find there was competent and credible evidence for the trial court's conclusion that the children could not or should not be placed with Appellant.
{¶ 19} We next turn to the other prong of the permanent custody test, the best interests of the children. Appellant argues the trial court failed to adequately consider all five of the best interest factors listed in R.C.
{¶ 20} We have previously held that though trial courts are required to consider all the factors of R.C.
{¶ 21} In the case sub judice, the trial court affirmatively indicated that it considered the factors listed in R.C.
{¶ 22} In light of the forgoing, we find competent and credible evidence for the decision that placing M.M. and H.M. in the permanent custody of Appellee was in the children's best interests. Because Appellant did not request findings of fact and conclusions of law, the trial court was not obligated to expressly recite the factual findings of each relevant factor listed in R.C.
{¶ 23} In her brief, Appellant also raises an "Argument II," concerning the guardian ad litem's failure to submit a written report to the court prior to or at the time of the dispositional hearing. Though this argument was not properly assigned as error as required by App.R. 16(A)(3), we will address it in the interests of justice.
{¶ 24} R.C.
{¶ 25} In the case at hand, the guardian ad litem testified as to his custody recommendation during the hearing. At the time, no party objected to the lack of a written report. Further, it was Appellant's counsel who called and examined the guardian during the hearing. At the close of the hearing, the Magistrate indicated he would take the matter under advisement in order to review the report. Two days later, the guardian submitted his report to the court. Under these circumstances, we find there was no prejudicial error which would require reversal. "When no prejudice results from the late filing of the guardian ad litem's report, it generally is harmless error. (Internal citation omitted.) In instances where the parties were presented with the report at the time of hearing or where proper testimony was elicited at thehearing, no error has been found. In re Kangas, 11th Dist. No. 2006-A-0010,
*16JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. and Kline, J.: Concur in Judgment and Opinion. McFarland, J.: Not Participating.