In re J.M.
APPEARANCES:
Darren L. Meade, Columbus, Ohio, for the mother-appellant.
Mаtthew P. Brady, Grove City, Ohio, for the father-appellant.
Matthew S. Schmidt, Prosecuting Attorney, and Jennifer L. Ater, Assistant Prosecuting Attorney, Chillicothe, Ohio, for Ross County Children Services.
Hoover, P.J.
{¶1} The children’s biological mother appeals the trial court’s judgments that awarded South Central Ohio Job and Family Services, Children Services Division, (“the agency”) permanent custody of her three children: six-year-old A.M.; four-year-old J.M.; and two-year-old C.M. A.M.’s and J.M.’s biological father separately appeals the trial court’s judgments that awarded the agency permanent custody of his two children.1 We consolidated the appeals for purposes of review and determination. For the reasons that follow, we affirm the trial court’s judgments.
I. FACTS
{¶3} The magistrate later adjudicated both A.M. and J.M. dependent and placed them in the agency’s temporary custody. The trial court subsеquently entered a separate judgment that placed the children in appellee’s temporary custody but that did not specifically adjudicate the children dependent.
{¶4} In June 2016, the agency filed a complaint that alleged that C.M. was a dependent child and that requested temporary custody of the child. The agency claimed that at the time of the child’s birth, the mother appeared intoxicated and tested positive for cocaine and marijuana. The magistrate subsequently adjudicated C.M. a dependent child and continued the child in the agency’s temporary custody. The trial court entered the same judgment.
{¶5} The agency later filed motions for permanent custody of all three children. The agency alleged that A.M. and J.M. had been in its temporary custody for more than twelvе out of the past twenty-two months and that placing the children in its permanent custody would be in the children’s best interests. The agency alleged that although the mother had been participating in recommended services, she continued to test positive for illegal substances and had been
{¶6} At the permanent custody hearing, the children’s first caseworker, Katlynn Pryor, testified that when the agency removed A.M. and J.M. from the home, the father was in prison for drug-related offenses; the mother had substance abuse issues; and the parents lacked stable housing. Pryor explained that when the mother gave birth to C.M., the child tested positive for cocaine and THC.
{¶7} Pryor stated that the agency developed a case plan for the parents. The case plan required the parents to maintain stable housing, complete “AOD” services,2 complete parenting classes, submit to drug screens, refrain from using illegal substances, maintain consistent visitation with the children, and refrain from criminal activity. Pryor indicated that the agency referred the parents to three different substance abuse counseling centers; but the parents did not successfully complete any recommended treatment program.
{¶8} Pryor additionally related that throughout the pendency of the case, the parents had eleven encounters with law enforcement officers and about one-half of those resulted in an arrest. Pryor tеstified that neither parent demonstrated an ability to maintain sobriety and to refrain from criminal activity. She stated that the parents did, however, complete parenting classes.
{¶9} Pryor testified that the three children live in the same foster home and seem “very happy” in the home. Pryor indicated that the agency investigated relative placements but did not deem any of them suitable. She stated that the agency did not approve the paternal grandmother for placement due to “near hoarding” conditions.
{¶11} Patricia Friel testified that the parents were referred to her for substance abuse counseling and that neither successfully completed a treatment program. Friel explained that when she first encountered the mother in April 2017, the mother’s drug screen returned positive for buprenorphine, THC, and alcohol. Friel developed a treatment plan for the mother that required her to attend three group sessions per week. Friel indicated that the mother only completed three total sessions. Friel said that the mother was terminated from the program due to noncompliance. Friel related that the father never had an assessment; therefore, she was unable to develop a treatment protocol for him.
{¶12} Greg Parks, a counselor with Prism Behavioral Health Care, stated that the parents were referred to him in February 2016 and that both parents completed an assessment. Parks explained that although the parents cоmpleted the first three steps of the program, they later relapsed and neither successfully completed a treatment program. Parks additionally indicated that after C.M.’s birth, both parents were referred for inpatient treatment, but neither complied with the recommendation. Parks testified that the parents were terminated from the program.
{¶13} Jason Rhoades, a counselor with the Recovery Council, stated that the father did not complete a treatment program and was terminated from the program in January 2017. Rhoades further explained that a week before the permanent custody hearing (in early September 2017), the father contacted Rhoades.
{¶14} The court then stood in recess until January 2018. When the permanent custody hearing resumed, Rhoades testified that the father had rе-engaged in treatment and completed an
{¶15} Several law enforcement officers testified that they had multiple contacts with the parents throughout the pendency of the case and frequently found the mother intoxicated. The reports often involved alcohol and fighting between the mother and the father.
{¶16} The parents both testified. The father stated that he left Prism due to what he perceived as inappropriate behavior from the male providers who visited the parents’ house. The father claimed that the two males watched the mother urinate in a cup. The father stated that he and the mother quit Prism and denied that they were terminated.
{¶17} The mother testified that she has done everything possible to regain custody of the children.
{¶18} The magistrate subsequently granted the agency permanent custody of the three children. The magistrate determined that the children had been in the agency’s temporary custody for more than twelve out of the past twenty-two consecutive months and that placing them in the agency’s permanent custody would be in their best interests.
{¶19} The trial court immediately adopted the magistrate’s decisions and entered judgments that placed the children in the agency’s permanent custody. The court found as follows: (1) the mother and the father have failed to complete any of the аlcohol and drug counseling programs to which they were referred; (2) the parents have had numerous contacts with law enforcement; (3) the parents’ current residence is not suitable; (4) the parents have not completed the case plan, although they did attend parenting class and Help Me Grow; (5) C.M.’s father has had no involvement; (6) no suitable relative placement exists; (7) “[t]he children are
{¶20} Shortly thereafter, the father objected to the magistrate’s decisions regarding A.M. and J.M. and requested the court to issue findings of fact and conclusions of law. The court overruled the father’s request for findings of fact and conclusions of law and explained: “Inasmuch [as] the Magistrate’s Decision includes findings of fact and conclusions of law, Father[‘s] requests for findings of facts and conclusion[s] of law [are] hereby overruled.”
{¶21} On April 27, 2018, the father filed amended objections to the magistrate’s decisions. He objected to the magistrate’s finding that no suitable relative placement exists and to the magistrate’s finding that he did not remedy the conditions that led to the children’s removal. The father claimed that the evidence presented at the hearing shows that his mother, the children’s paternal grandmother, could takе custody of A.M. and J.M. The father also asserted that the conditions that led to the children’s removal “had nothing to do with [him].”
{¶22} Later, the trial court overruled the father’s objections. The court pointed out that
II. ASSIGNMENT OF ERROR
{¶23} The mother raises one assignment of error:
The trial court erred in granting Jobs [sic] and Family Services permanent custody as said decision was not supported by clear and convincing eviden[c]e as required by
R.C. 2151.414 and was against the manifest weight of the evidence.
{¶24} The father raises four assignments of error:
First Assignment of error:
The trial court committed reversible error by granting permanent custody to South Central Ohio Job and Family Services, Children’s Division before the children were properly adjudicated to be abused, neglected, or dependent children.
Second Assignment of Error:
The trial court committed reversible error in not determining and specifically addressing the best interest factors under
R.C. 2151.414(D) when the trial cоurt overruled Appellant’s request for additional findings.Third Assignment of Error:
In the alternative to Assignment of Error No. 2, the trial court committed reversible error in overruling Appellant’s request for findings of fact and conclusions of law when it is not clear that the Magistrate’s Decision contained a complete set of findings.
Fourth Assignment of Error:
The trial court committed reversible error in finding that permanent custody was in the best interests of the minor children when the Magistrate’s findings were insufficient to establish by clear and convincing evidence that the granting of permanent custody was in the best interests of the minor children.
III. ANALYSIS
A. Father’s Appeal
1. First Assignment of Error
{¶25} In his first assignment of error, the father argues that we must reverse the trial court’s judgments granting the agency permanent custody of the children because the court entered its dispositional orders before it adopted the magistrate’s decisions that adjudicated the children dependent. The father claims that a trial court cannot enter a dispositional order unless the court first enters a separate and independent adjudicatory decision.
{¶26} The father appears to recognize that his failure to raise this issue at a time when the trial court could have corrected any alleged error means that he is limited to plain-error review on appeal. The father contends that the court’s dispositional decisions—entered before it actually adopted the magistrate’s adjudicatory decisions—constitute an obvious error that affected his substantial rights. The father argues that “[t]he outcome of the trial would have been different because the permanent custody hearing should not have occurred at all bеfore the children had been adjudicated.”
{¶27} The father’s failure to raise this issue at a time when the trial court could have avoided any error means that he forfeited the right to raise the alleged error on appeal. E.g., In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, ¶ 16; Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975) (“Ordinarily, errors which arise during the course of a trial, which are not brought to the attention of the court by objection or otherwise, are
{¶28} Before a reviewing court may consider recognizing plain error, the party claiming error must establish (1) that “ ‘an error, i.e., a deviation from a legal rule’ ” occurred, (2) that the error was “ ‘an “obvious” defect in the trial proceedings,’ ” and (3) that this obvious error affected substantial rights, i.e., the error “ ‘must have affected the outcome of the trial.’ ” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d 1001 (1982) (“A ‘plain error’ is obvious and prejudicial although neither objected to nor affirmatively waived which, if permitted, would have a material adverse affect on the character and public confidence in judicial procеedings.”).
{¶29} The plain error doctrine is not, however, readily invoked in civil cases. Instead, an appellate court “must proceed with the utmost caution” when applying the plain error doctrine in civil cases. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The Ohio
{¶30} We further note that the plain-error rule applies to voidable, but not void, judgments. State v. Snyder, 4th Dist. Pike No. 16CA881, 2017-Ohio-8091, 96 N.E.3d 833, ¶ 23, citing State v. Peeks, 10th Dist. Franklin No. 05AP-1370, 2006-Ohio-6256, ¶ 9 (stating that “[a] voidable error can be waived”); accord J.J. at ¶ 12 (concluding that appellant’s failure to timely object to procedural irregularity that rendered judgment merely voidable resulted in waiver of issue for purposes of appeal). The rule is based on the notion that a timely objection allows the trial court to correct any procedural irregularities before terminating the case. State v. Slagle, 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992), quoting State v. Craft, 52 Ohio App.2d 1, 4–5, 367 N.E.2d 1221 (1st Dist.1977) (explaining that purpose of forfeiture rule “ ‘is practical: to prevent
{¶31} Here, we do not believe that the trial court’s failure to adopt the magistrate’s decision and to adjudicate the children dependent before the court entered its dispositional decision is an error of sufficient magnitude to warrant application of the plain error doctrine. See In re H.S., 4th Dist. Ross No. 16CA3569, 16CA3570, 2017-Ohio-457, 84 N.E.3d 127, ¶ 37, citing In re G.S., 4th Dist. Ross No. 15CA3510, 2016-Ohio-5362, ¶ 17 (noting that a magistrate’s decision is not effective unless the trial court adopts it and that court cannot consider matters relating to disposition until therе has been an adjudication).
{¶32} The error—the court’s failure to comply with
{¶33} Accordingly, based upon the foregoing reasons, we overrule the father’s first assignment of error.
2. Second and Third Assignments of Error
{¶35} In his second assignment of error, the father argues that the trial court erred by failing to specifically address each of the best interest factors contained in
{¶36} In his third assignment of error, the father asserts that the trial court incorrectly determined that the magistrate’s decisions contained adequatе findings of fact and conclusions of law.
{¶37} First, we observe that although the father objected to the magistrate’s decisions and requested findings of fact and conclusions of law, he did not specifically object to the magistrate’s best-interest determination or to the lack of a factor-by-factor best-interest analysis.
{¶38} The father does not argue that the trial court plainly erred by failing to set forth a detailed analysis regarding each best-interest factor. We thus could simply disregard this assignment of error. Sarchione-Tookey at ¶ 35, citing Selbee v. Van Buskirk, 4th Dist. Scioto No. 16CA3777, 16CA3780, 2018-Ohio-1262, ¶ 34.
{¶39} The father nevertheless asserts that his request for findings of fact and conclusions of law mandated that the court—whether the magistrate or the trial court—set forth a detailed best-interest analysis. The father asserts that because he requested findings of fact and conclusions of law, our decision in In re C.S., 4th Dist. Athens No. 15CA18, 2015-Ohio-4883, required the trial court to comment on each of the
{¶40} The juvenile rules permit “a magistrate’s decision [to] be general unless findings of fact and conclusions of law are timely requested by a party or otherwise required by law.”
{¶41} Additionally,
{¶42} The purpose of findings of fact and conclusions of law is “ ‘to aid the appellate court in reviewing the record and determining the validity of the basis of thе trial court’s judgment.’ ” In re Adoption of Gibson, 23 Ohio St.3d 170, 172, 492 N.E.2d 146 (1986), quoting Werden v. Crawford, 70 Ohio St.2d 122, 124, 435 N.E.2d 424 (1982). “[T]he findings and
{¶43} Here, the father timely requested findings of fact and conclusions of law. The father specifically “request[ed] the Court to provide a Finding [sic] of Fact and Conclusion [sic] of Law supporting said Magistrate’s Decision.” The trial court overruled the father’s request. The trial court found that the magistrate adequately set forth findings of fact and conclusions of law. The trial court further noted that it had adopted the magistrate’s decisions, incorporated the magistrate’s findings, and entered judgments placing the children in the agency’s permanent custody.
{¶44} Later, when the court ruled on the father’s objections, the court again concluded that the magistrate’s decision adequately set forth findings of fact and conclusions of law. The court stated:
The Magistrate’s Decision sets forth her findings by clear and convincing evidence. The Court has reviewed the transcript and the evidence presented supports all of the findings of the Magistrate set forth in the Decision, specifically paragraphs 5, 7-10, and 12-20. The Magistrate’s Decision sets forth
in detаil the findings made by the Magistrate and complies with the requirements of Juvenile Rule 40.
{¶45} The trial court additionally found that the father had directed his request for findings of fact and conclusions of law to the trial court and not to the magistrate as
{¶46} Here, although “the court’s decision is not ideal, we nonetheless find that the trial court’s decision, combined with the transcript of the permanent custody hearing * * *, forms an adequate basis for the trial court’s ruling and for our review.” (Footnote omitted.) In re Cunningham, 4th Dist. Athens No. 03CA26, 2004-Ohio-787, ¶ 26, citing In re Lewis, 4th Dist. Athens No. 03CA12, 2003-Ohio-5262, ¶41. “Furthermore, assuming the court erred, such error is harmless.” Id., citing Dovetail Const. Co., Inc. v. Baumgartel, 4th Dist. Washington No. 00CA2, 2001 Ohio App. LEXIS 4752, *20 (Sept. 25, 2001). See
{¶47} Accordingly, based upon the foregoing reasons, we overrule the father’s second and third assignments of error.4
3. Fourth Assignment of Error
{¶48} In his fourth assignment of error, the father essentially argues that the trial court’s best-interest determination is against the manifest weight of the evidence. The father contends that the record does not contain sufficient evidence to support the court’s finding that placing the children in the agency’s permanent custody is in their best interests. He alleges that the record does not contain any evidence regarding the following best-interest factors: (1) the children’s interactions and interrelationships with their parents; (2) the children’s wishes or the guardian ad litem’s recommendation; or (3) whether the children could achieve a legally secure permanent placement with their paternal grandmother.
{¶49} We again note, however, that the father did not raise all of the foregoing issues when objecting to the magistrate’s decisions. Rather, the only best-interest factor he specifically challenged when he objected to the magistrate’s decisions was whether the children could achieve a legally secure permanent placement with the paternal grandmother. The father
{¶50} A reviewing court generally will not disturb a trial court’s permanent custody decision unless the decision is against the manifest weight of the evidence. In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶53 (4th Dist.). When an appellate court reviews whether a trial court’s permanent custody decision is against the manifest weight of the evidence, the court “ ‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clеarly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶51} In a permanent custody case, the ultimate question for a reviewing court is “whether the juvenile court’s findings * * * were supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶43. In determining whether a trial court based its decision upon clear and convincing evidence, “a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). “Thus, if the children services agency presented competent and credible evidence upon
{¶52} Once the reviewing court finishes its examination, the court may reverse the judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, “ ‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’ ” Thompkins at 387, quoting Martin at 175. A reviewing court should find a trial court’s permanent custody decision against the manifest weight of the evidence only in the “ ‘exceptional case in which the evidence weighs heavily against the [decision].’ ” Id., quoting Martin at 175.
{¶53}
{¶54} Here, we believe that the record contains substantial competent and credible evidence to support the trial court’s best-interest determination and that the court did not plainly
{¶55} With respect to the children’s interactions and interrelationships with the parents, we recognize that the agency did not present much evidence at the permanent custody hearing to show how the parents currently interact and interrelate with the children. Nevertheless, the record contains evidence that the parents did not have positive interactions with the children during the limited time that the children were in their care. Authorities found J.M. abandoned in a home without any adult supervision or supplies appropriate for a six-month-old infant. When the mother gave birth to C.M., the newborn tested positive for illegal substances. The parents have serious substance abuse issues that they have failed to successfully overcome. This evidence supports a finding that the children did not and would not share positive interactions and interrelationships with their parents.
{¶56} The evidence does establish, however, that the children are doing well in the foster home, which is an adoptive placement, and that they are bonded to the foster parents.
{¶57} The agency did not present evidence at the permanent custody hearing that specifically addressed the children’s wishes. Nor did the trial court explicitly discuss the children’s wishes. Yet, under the circumstances in the case at bar, “[w]e do not believe that the court’s failure to [discuss] this one factor constitutes plain error[.]” In re S.M., 4th Dist. Highland No. 14CA4, 2014-Ohio-2961, ¶ 36. The record contains several reports that the children’s guardian ad litem filed. The guardian ad litem noted that the children are young and do not seem to understand the nature of the permanent custody proceedings. He recommended that the court grant the agenсy permanent custody of the children. The guardian ad litem additionally wrote in his report that A.M. stated that she would like to remain in the foster home. Thus, the record
{¶58} The father does not dispute that the court considered the children’s custodial history.
{¶59} The father asserts that the evidence does not sufficiently support the court’s finding that A.M. and J.M. could not be placed with his mother. We note, however, that one of the agency’s caseworkers stated that the agency did not approve the paternal grandmother’s home due its “near hoarding” condition.
{¶60} Furthermore, a trial court need not first determine that no suitable relative placement exists before it may grant permanent custody to a children services agency. Indeed, a trial court need not determine that terminating parental rights is “the only option” or that no suitable person is available for placement. In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 64 (2006). Rather,
{¶61} In sum, we are unable to conclude that the trial court plainly erred by determining that placing the children in the agency’s permanent custody is in their best interests. As the court noted, the parents have had approximately three and one-half years to comply with the case plan requirement to successfully treat their substance abuse issues but have failed to do so. The children have been in the agency’s custody for the vast majority of their lives and are bonded to the foster family. The trial court could have quite reasonably determined that further prolonging the children’s uncertainty would not be in their best interests and that entering judgments that will secure permanency for them is in their best interests.
{¶62} Accordingly, based upon the foregoing reasons, we overrule the father’s fourth assignment of error.
B. Mother’s Appeal
{¶63} In her sole assignment of error, the mother asserts that the trial court’s decision to grant the agency permanent custody of the children is against the manifest weight of the evidence. She contends that the agency did not provide her with “the time and support necessary to comply with the case plan.” However, the mother failed to object to the magistrate’s decision. She therefore failed to preserve a challenge to the trial court’s decision that adopted the magistrate’s decision placing the children in the agency’s permanent custody.
{¶64}
{¶65} As we previously stated, appellate courts should exercise extreme caution when invoking the plain error doctrine, especially in civil cases. Goldfuss, 79 Ohio St.3d at 122–123. Moreover, plain error does not exist unless the court’s obvious deviation from a legal rule affected the outcome of the рroceeding. E.g., State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Additionally, “[b]ecause parental rights determinations are difficult to make and appellate courts accord wide latitude to the trial court’s consideration of evidence in these cases, ‘[p]lain error is particularly difficult to establish.’ ” Faulks at ¶ 20, quoting Robinette v. Bryant, 4th Dist. Lawrence No. 12CA20, 2013-Ohio-2889, ¶ 28.
{¶66} The mother does not acknowledge her failure to timely object to the magistrate’s decision; and she does not invoke the plain-error doctrine on appeal. “We generally will not craft a plain-error argument for an appellant who fails to do so.” State v. Dailey, 4th Dist. Adams No. 18CA1059, 2018-Ohio-4315, ¶ 23, citing Redmond v. Wade, 4th Dist. Lawrence No. 16CA16, 2017-Ohio-2877, ¶ 34, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, 78 (O’Donnell, J., concurring in part and dissenting in part), quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). Because the mother fails to present a plain-error argument on appeal, we will not create one for her. Instead, we simply note that the record contains nothing to
{¶67} Accordingly, based upon the foregoing reasons, we overrule the mother’s first assignment of error.
C. Conclusion
{¶68} Having overruled all of the parents’ assignments of error, we affirm the trial court’s judgments.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas, Probate Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
By: ____________________________
Marie Hoover, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.