IN RE: A.D., et al.
CASE NO. CA2021-11-060
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
3/14/2022
[Cite as In re A.D., 2022-Ohio-736.]
S. POWELL, J.
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. 2019 JC 05200; 2019 JC 05201; and 2021 JC 05409
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.
S. POWELL, J.
{1} Appellant (“Mother“) appeals the decisions of the Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of her three children, A.D., M.D., and T.M.-E., to appellee, Clermont County Department of Job and Family Services (“CCDJFS“). For the reasons outlined below, we affirm the juvenile court‘s decisions
Facts and Procedural History
{2} This case involves Mother‘s three children: twin girls, A.D. and M.D., born on Februаry 4, 2008, and the twins’ younger half-brother, T.M.-E., born on June 5, 2011. The children‘s fathers have not been, and are not now, a part of this case.
{3} On August 29, 2019, CCDJFS received a report that T.M.-E. was being physically abused by his maternal uncle (“Uncle“) who resided in the home with Mother and T.M.-E.‘s two older half-siblings. During the subsequent investigation into this report, Mother admitted to using methamphetamine. CCDJFS also discovered that the home where the сhildren were living with Mother and Uncle had previously been through a fire and that the damage to the home had not been repaired. It was further discovered by CCDJFS that Mother and Uncle had been involved in two prior domestic violence incidents that required police intervention. Due to these discoveries, a safety plan was put into place by CCDJFS.
{4} On October 15, 2019, CCDJFS learned that the сonditions set forth in the safety plan had not been followed given that Mother, as well as other non-approved relatives, had been allowed unsupervised access to the three children. Because of this, CCDJFS filed three complaints with the juvenile court alleging A.D., M.D., and T.M.-E. were neglected children. CCDJFS filed all three complaints with the juvenile court on October 16, 2019. The juvenile cоurt gave the case involving A.D. Case No. 2019 JC 05200, the case involving M.D. Case No. 2019 JC 05201, and the case involving T.M.-E. Case No. 2019 JC 05202.
{5} Shortly after receiving these three complaints, the juvenile court awarded
{6} On March 17, 2020, the juvenile court adjudicated T.M.-E. a neglected child. Two weeks later, on March 31, 2020, the juvenile court held a disposition hearing, following which the juvenile court awarded temporary custody of T.M.-E. to CCDJFS. Temporary custody of T.M.-E. was thereafter extended on September 17, 2020, and again on March 11, 2020. CCDJFS then moved for permanent custody of T.M.-E. on April 1, 2021. However, upon discovering a scheduling issue had resulted in T.M.-E.‘s disposition taking place over 90 days after the original neglect сomplaint had been filed, the juvenile court dismissed T.M.-E.‘s case, i.e., Case No. 2019 JC 05202.
{7} On May 28, 2021, CCDJFS filed a dependency complaint seeking permanent custody of T.M.-E. as the juvenile court‘s original dispositional order. The juvenile court assigned this Case No. 2021 JC 5409. To support this new dependency complaint, CCDJFS alleged the following:
Child has been in the care of Clermont County and placed in fostеr care since 10/16/2019. His mother has not cared for him since that time. Child is dependent at this time. Mother has ongoing substance use issues, mental health, housing and income concerns. Mother has no stability. The father has not participated in the child‘s life and has had no contact with him since prior to 10-16-2019. The agency also has temporary custody of his 2 siblings that were placed on 10-16-19 and have remained in Children Services (sic) custody since removal. The agency has filed for permanent custody.
{9} As part of her testimony, Mother testified that she had “just recently” signed a lease and moved into a three bedroom apartment with a childhood friend. Mother also testified that she does “not do no type of treatment” even though she admittedly has a “really bad anxiety problem” and “used drugs throughout [her] life” because “it‘s mind over matter.” Mother further testified, however, that she was “trying to get a marijuana card” to help with her PTSD. Thereafter, when asked whether she believed “today” that she was able provide for A.D., M.D., and T.M.-E., Mоther testified:
Yes, with the help of my dad, because I just started working. But I‘m just now learning stability myself. I was never stable, for real, growing up, so I don‘t know what it is, and I‘m just now learning that. And, yeah, I probably need a little bit to learn that, but I want my kids more than anything. Throughout this whole process, I find myself going in and out of depression and battle, but I‘ve had depression since I was 16. I‘m not a bad nom but I‘m not a great mom.
{10} On September 30, 2021, the magistrаte issued three separate decisions in Case Nos. 2019 JC 05200, 2019 JC 05201, and 2021 JC 05409 recommending the juvenile court grant permanent custody of A.D., M.D., and T.M.-E. to CCDJFS. As part of each of those three decisions, the magistrate found A.D., M.D., and T.M.-E. had all been in the temporary custody of CCDJFS for 12 or more months of a consecutive 22-month period
{11} The magistrate additionally found that, despite Mother “testing positive for amphеtamines and methamphetamine several months before trial, she does not believe that she needs drug treatment.” This was in addition to the magistrate finding:
Mother does not dispute that stability would be hard for her. Due to her childhood, she has little experience with it and does not really know what stability looks like. In sum, the case plan elements were designed to help Mother achieve economic and emotional stability. Mother has not achieved those goals.
{12} Mother did not file an objection to any of the magistrate‘s three decisions recommending permanent custody to CCDJFS. Because of this, on October 18, 2021, the juvenile court issued three separate decisions in Case Nos. 2019 JC 05200, 2019 JC 05201, and 2021 JC 05409 affirming and adopting the magistrate‘s recommendations that it grant permanent custody of A.D., M.D., and T.M.-E to CCDJFS. Mother now appeals from those three decisions, raising the following single assignment of error for review.
{13} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN ADOPTING THE MAGISTRATE‘S DECISION PERMANENTLY TERMINATING APPELLANT‘S PARENTAL RIGHTS.
{14} In her single assignment of error, Mother argues the juvenile court erred by affirming and adopting the magistrate‘s decision recommending permanent custody of A.D., M.D., and T.M.-E. to CCDJFS. To support this claim, Mother argues the evidence presented in this case “does nоt rise to the level of clear and convincing [evidence] necessary to permanently sever a parent child relationship” when considering she has appropriate housing, sufficient employment, and the necessary “behavioral health support
Mother‘s Failure to Object to the Magistrate‘s Decisions
{15} “The juvenile rules require written objections to a magistrate‘s decision.” In re C.D., 12th Dist. Clermont No. CA2019-02-014, 2019-Ohio-4911, ¶ 29. In this case, however, Mothеr did not file any objections to the magistrate‘s three decisions recommending the granting of permanent custody to CCDJFS. “By failing to object to the magistrate‘s decision in a case involving termination of parental rights,” such as the case here, “an appellant waives the right to assign as error on appeal the trial court‘s adoption of any finding of fact or conclusion of law.” In re Stephens, 12th Dist. Butler Nos. CA2001-01-018 and CA2001-01-021, 2001 Ohio App. LEXIS 4451, *4 (Oct. 1, 2001). The Rules of Juvenile Procedure similarly “provides that, except for a claim of plain error, a party waives the right to assign error on appeal with respect to the juvenile court‘s adoption of any factual finding or legal conclusion ‘unless the party has objected to that finding or conclusion as required by
{16} “This rule ‘embodies the long-recognized principle that the failure to draw the trial court‘s attention to possible error when the error could have been corrected results in a waiver of the issue for purposes of appeal.‘” In re R.A., 8th Dist. Cuyahoga No. 110541, 2021-Ohio-4126, ¶ 23, quoting In re Etter, 134 Ohio App.3d 484, 492 (1st Dist.1998) (“[t]he waiver under
Plain Error Standard of Review
{17} “Invocation of the plain error doctrine in civil cases * ** is strictly limited.” In re T.J., 12th Dist. Preble No. CA2008-10-019, 2009-Ohio-1844, ¶ 34. This is because neither the plain error doctrine, nor the application of a plain error review, are favored in civil cases. In re K.R., 12th Dist. Clermont No. CA2015-06-049, 2016-Ohio-2775, ¶ 20 (“[t]he plain error doctrine is not favored in civil cases“); In re S.A., 12th Dist. Butler Nos. CA2017-07-092 thru CA2017-07-098, 2017-Ohio-8792, ¶ 43 (“[p]lain error review is not favored in civil cases“). “Plain error in the civil context is ‘extremely rare’ and this court must find that the error involves ‘exceptiоnal circumstances’ where the error ‘rises to the level of challenging the legitimacy of the underlying judicial process itself.‘” In re J.W., 12th Dist. Butler Nos. CA2017-12-183 and CA2017-12-184, 2018-Ohio-1781, ¶ 13, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 122 (1997); In re D.M., 12th Dist. Preble Nos. CA2017-12-017 and CA2017-12-018, 2018-Ohio-2260, ¶ 16 (“[a]ppellate courts will only recognize plain error in extremely rare cases with exceptional circumstances“). “The doctrine implicates errors that are ‘obvious and prejudicial although neithеr objected to nor affirmatively waived which, if permitted, would have a material adverse affect on the character and public confidence in judicial proceedings.‘” In re J.M., 12th Dist. Butler Nos. CA2018-06-124 and CA2018-06-125, 2019-Ohio-3716, ¶ 14, quoting Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209 (1982).
{18} “A public children services agency may seek permanent custody of a child in an abuse, neglect, or dependency proceeding in one of two ways.” In re S.H., 12th Dist. Butler Nos. CA2020-02-023 and CA2020-02-024, 2020-Ohio-3499, ¶ 17. “An agency may either (1) obtain temporary custody of the child and then file a motion for permanent custody, or (2) request permanent custody as part of its original abuse, neglect, or dependency complaint.” In re A.A., 12th Dist. Clermont No. CA2015-12-098, 2016-Ohio-2992, ¶ 9, citing In re T.K.K., 12th Dist. Butler No. CA2012-01-008, 2012-Ohio-3203, ¶ 22. This appeal presents instances of both; that is, in Case Nos. 2019 JC 05200 and 2019 JC 05201, CCDJFS obtained temporary custody of A.D. and M.D. prior to filing its motions for permanent custody of A.D. and M.D. with the juvenile court on April 1, 2021, whereas in Case No. 2012 JC 05409, CCDJFS requested permanent custody of T.M.-E. as part of its dependency complaint filed with the juvenile court on May 28, 2021.
R.C. 2151.414(B)(1) Applied to A.D.‘s and M.D.‘s Cases
{19} Because CCDJFS filed its motions for permanent custody of A.D. and M.D. after the juvenile court had already issued an initial disposition, it was
{20} In accordance with that two-part test, the juvenile court must first find the grant
R.C. 2151.353(A)(4) Applied to T.M.-E.‘s Case
{21} Because CCDJFS’ dependency complaint requested the juvenile court grant it permanent custody of T.M.-E. as part of its initial disposition, it is
{22} In accordance with this two-pronged test, “[t]he juvenile court must: (1) determine that the child cannot be plаced with one of the child‘s parents within a reasonable time or should not be placed with either parent by considering the factors in
Best Interest of the Children
{23} Regardless of whether it is the two-part test set forth under
Analysis
{24} After a full and thorough review of the record, we find the juvenile court properly applied the correct two-part test set forth under
Mother does not dispute that stability would be hard for her. Due to her childhood, she has little experience with it and does not really know what stability looks like. In sum, the case plan elements were designed to help Mother achieve economic and emotional stability. Mother has not achieved those goals.
{25} Given the above findings, which we note are all supported by clear and convinсing evidence in the record, the juvenile court‘s decision granting permanent custody of A.D. and M.D. was not error, plain or otherwise. The juvenile court, therefore, did not err by granting CCDJFS’ motion for permanent custody of A.D. or M.D. in Case Nos. 2019 JC 05200 and 2019 JC 05201. In so holding, we note that the only contrary evidence came from Mother herself, whom the juvenile court found not “particularly credible” given that “she did not answer questions directly” and instead “tended to ramble on with matters that were unrelated to the questions asked.” We defer to the juvenile court on matters of credibility, something that is “crucial in these types of cases since the parties’ demeanor and attitude does not translate well to the written record.” In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru CA2018-08-097, 2019-Ohio-198, ¶ 38.
{27} This is not the first time that a juvenile court, or the state, has made this mistake. See In re C.S., 2018-Ohio-4786 at ¶ 20, fn. 1 (noting that both parties, as well as the juvenile court, all applied the “wrong statutory framework” set forth under
{28} For the reasons outlined above, Mother‘s single assignment of error related to the juvenile court‘s decisions granting permanent custody of A.D. and M.D. to CCDJFS lack merit and are overruled. Mother‘s single assignment of error related to the juvenile court‘s decision granting permanent custody of T.M.-E. to CCDJFS is sustained. That is to say, the juvenile court‘s decisions granting CCDJFS’ motion for permanent custody of A.D. or M.D. in Case Nos. 2019 JC 05200 and 2019 JC 05201 are affirmed, while the juvenile court‘s decision granting CCDJFS’ request for permanent custody of T.M.-E. in Case No. 2021 JC 05409 is reversed and remanded for further proceedings consistent with this opinion.
{29} Judgments in Case Nos. 2019 JC 05200 and 2019 JC 05201 are affirmed and judgment in Case No. 2021 JC 05409 is reversed and remanded.
PIPER, P.J., and BYRNE, J., concur.