In re T.J.W. ( 2014 )

[Cite as In re T.J.W., 2014-Ohio-4419.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: )
) CASE NO. 13 JE 12
T.J.W., DEPENDENT CHILD. )
) OPINION
)
IN THE MATTER OF: )
) CASE NO. 13 JE 13
N.A.W., ABUSED, NEGLECTED, )
DEPENDENT CHILD. ) OPINION
)
IN THE MATTER OF: )
) CASE NO. 13 JE 14
N.M.W., ABUSED, NEGLECTED, )
DEPENDENT CHILD. ) OPINION
)
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Juvenile Division,
Case Nos. 13DN00002,
13DN00003 & 13DN00004.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Attorney Sara Gasser
2012 Sunset Blvd.
Steubenville, OH 43952
For Defendant-Appellee: Attorney Amanda Abrams
P.O. Box 608
Steubenville, OH 43952
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl Waite
Dated: September 29, 2014
[Cite as In re T.J.W., 2014-Ohio-4419.]
DeGenaro, P.J.
{¶1} Appellant-Father, Adrian Wolfe, appeals the decision of the Jefferson
County Court of Common Pleas, Juvenile Division, regarding the adjudication of his three
minor children and the granting of temporary custody to the Jefferson County Department
of Job and Family Services (JCDJFS). Because Father failed to file objections to the
magistrate's decisions, and does not argue plain error on appeal, he has failed to
preserve these issues for appellate review pursuant to Juv.R. 40(D)(3)(b)(iv).
Accordingly, the judgment of the trial court is affirmed.
{¶2} There are three children involved in these consolidated appeals born to
Channe Fleischer and Adrian Wolfe. T.J.W. was born on March 4, 2011, and the twins,
N.A.W. and N.M.W. were born on December 25, 2012. The agency's involvement was
prompted by the twins' positive drug screens at birth requiring their transfer to a
Pittsburgh hospital for treatment for withdrawal from drugs. Channe admitted to snorting
pills twice prior to the birth of the twins that she believed may have been laced with
heroin. Based upon these facts, on January 3, 2013, JCDJFS filed complaints of
dependency, abuse and neglect regarding the twins, as well as a complaint of
dependency regarding, T.J.W., who lived with Channe at the time. JCDJFS requested an
adjudication of abused/neglected/dependent regarding the twins pursuant to multiple
statutory sections and an adjudication of dependency pursuant to R.C. 2151.04(c)
regarding T.J.W.; temporary custody of the children or, in the alternative, protective
supervision. On that same date the court held an informal shelter care hearing and
granted ex parte custody of the children to JCDJFS.
{¶3} On February 21, 2013, an adjudicatory hearing was held and Adrian
appeared with counsel. The magistrate's decision dated March 4, 2013 found that T.J.W.
was dependent and the twins were abused/neglected/dependent; and the children
remained in the temporary custody of JCDJFS pending the disposition hearing. On
March 20, 2013, the Juvenile Court judge adopted the magistrate's decision finding no
objections had been filed by either party. Adrian's objections, filed on March 25, 2013
were overruled by the trial court as untimely.
{¶4} On March 21, 2013, Adrian attended the disposition hearing with counsel.
The magistrate's decision of April 1, 2013, held that JCDJFS proved by clear and
-2-
convincing evidence that temporary custody of the children should be granted to JCDJFS
and that it was in the bests interests of the children, which was adopted by the Juvenile
Court on April 24, 2013. No objections were filed by either party.
{¶5} In his two assignments of error, Adrian asserts:
{¶6} "The State failed to prove by clear and convincing evidence that temporary
custody was in the best interest of the children."
{¶7} "The trial court abused its discretion in awarding temporary custody."
{¶8} On appeal Adrian argues that JCDJFS failed to prove by clear and
convincing evidence that the children were dependent and that it was in their best
interests to be placed with the agency. JCDJFS counters that Adrian has waived these
arguments as he did not file objections from the magistrate's decisions.
{¶9} Juv.R. 40(D)(3)(b)(iv) provides, "[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 of fact or conclusion of law" under this rule. An 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, 1997-Ohio-401, 679 N.E.2d 1099.
{¶10} Both magistrate's decisions contained the requisite language notifying the
parties that they "shall not assign as error on appeal the court's adoption of any finding of
fact or conclusion of law unless the party has objected to that finding of fact or conclusion
of law under Juv.R. 40". Adrian's objections from the adjudicatory hearing were untimely
and overruled by the juvenile court judge on that basis. Further, Adrian did not object to
the magistrate's decision from the disposition hearing. Thus, Adrian has waived his right
to assign as error on appeal the trial court's findings. However, an exception to this waiver
exists if plain error is found.
{¶11} "Plain error exists where there is an obvious deviation from a legal rule that
affected the defendant's substantial rights by influencing the outcome of the
proceedings." In re J.C., 2013-Ohio-2819, 994 N.E.2d 919, at ¶10 (11th Dist.) citing State
v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240 (2002). Adrian does not
allege the existence of such error of law or other defect on the face of the magistrate's
-3-
decision, and no such error or defect can be found. See Mlinarcik v. Mlinarcik, 7th Dist.
No. 04 CO 30, 2006-Ohio-1287.
{¶12} Because Adrian failed to raise the issue through objections and does not
argue plain error on appeal, he has failed to preserve the issue for appellate review. An
appellate court will not consider any error which the complainant could have called to the
trial court's attention at a time when such error could have been corrected or avoided by
the trial court. In re I.T.A. and A.A., 7th Dist. Nos. 11 BE 27, 11 BE 29, 2012-Ohio-1689,
¶17 citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d
1001(1982). Accordingly, Adrian's two assignments of error are meritless and the
judgment of the juvenile court is affirmed.
{¶13} Because Adrian failed to object to the magistrate's decisions and does not
argue plain error on appeal, he has failed to preserve the assignments he now argues for
appellate review. Accordingly, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Waite, J., concurs in judgment entry.