In re A.P.

2020 Ohio 5131

Opinion

[Cite as In re A.P., 2020-Ohio-5131.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

IN RE: CASE NO. 8-20-17 A.P.,

DEPENDENT CHILD. OPINION [C.O. - APPELLANT]

IN RE: CASE NO. 8-20-18 An.O.,

DEPENDENT CHILD. OPINION [C.O. - APPELLANT] [D.O. - APPELLANT]

IN RE: CASE NO. 8-20-19 H.P.,

IN RE: CASE NO. 8-20-20 Ni.O.,

DEPENDENT CHILD. OPINION [C.O. - APPELLANT] [D.O. - APPELLANT] Case Nos. 8-20-17 to 8-20-25

IN RE: CASE NO. 8-20-21 J.O.,

DEPENDENT CHILD. OPINION [C.O. - APPELLANT] [D.O. - APPELLANT]

IN RE: CASE NO. 8-20-22 C.O.,

DEPENDENT CHILD. OPINION [C.O. - APPELLANT] [D.O. - APPELLANT]

IN RE: CASE NO. 8-20-23 Z.O.,

DEPENDENT CHILD. OPINION [C.O. - APPELLANT] [D.O. - APPELLANT]

IN RE: CASE NO. 8-20-24 Na.O.,

DEPENDENT CHILD. OPINION [C.O. - APPELLANT] [D.O. - APPELLANT]

-2- Case Nos. 8-20-17 to 8-20-25

IN RE: CASE NO. 8-20-25 Az.O.,

DEPENDENT CHILD. OPINION [C.O. - APPELLANT] [D.O. - APPELLANT]

Appeals from Logan County Common Pleas Court Family Court Division Trial Court Nos. 20 CS 21 A, B, C, D, E, F, G, H and I

Judgments Reversed Causes Remanded

Date of Decision: November 2, 2020

APPEARANCES:

Alison Boggs for Appellant-Mother

Matthew Langals for Appellant-Father

Chelsea R. Brown for Appellee, Logan County Children’s Services

SHAW, P.J.

{¶1} Appellant-Mother, C.O. (“Mother”), and Appellant-Father, D.O.

(“Father”), appeal the May 13, 2020 judgments of the Logan County Court of

Common Pleas, Family Court Division, adjudicating their children dependent under

-3- Case Nos. 8-20-17 to 8-20-25

R.C. 2151.04(C). On appeal, Mother and Father challenge several aspects of the

trial court’s dependency adjudication on both procedural and substantive grounds.

{¶2} On March 17, 2020, Plaintiff-Appellee, Logan County Children’s

Services (the “Agency”), filed a Motion for Issuance of Emergency Temporary

Orders and complaints alleging that A.P., An.O., H.P., Ni.O., J.O., C.O., Z.O.,

Na.O., and Az.O were dependent children under R.C. 2151.04(C). The Agency also

alleged in the complaints that A.P. and An.O. were abused children under R.C.

2151.031(D). The allegations underlying the complaints involved reports of

domestic violence perpetrated by Father against Mother, A.P., and An.O. in the

home where the family resides. The next day, the trial court granted the Agency’s

motion for temporary custody, designated the children’s maternal grandparents as

their temporary legal custodians, and ordered Father to have no contact with the

children until further notice by the court. The trial court also appointed a guardian

ad litem (“GAL”) to the case.

{¶3} On May 7, 2020, the trial court conducted an adjudication hearing on

the Agency’s complaints. The trial court heard testimony from the Agency’s

caseworker regarding the investigation of the allegations contained in the complaint.

At the close of the proceedings, the trial court found on the record that the Agency

had proved its case by clear and convincing evidence with regard to the dependency

-4- Case Nos. 8-20-17 to 8-20-25

allegations relating to all nine children. However, the trial court determined that the

evidence did not support the Agency’s allegations of abuse against A.P. and An.O.

{¶4} On May 13, 2020, the trial court issued a judgment entry journalizing

its dependency adjudication in the cases involving all nine children. On the same

day, the Agency filed an emergency motion requesting alteration of the children’s

placement with maternal grandparents. The trial court conducted a hearing on the

emergency motion, where it was revealed that the maternal grandparents were

overwhelmed with providing care for the children, who ranged in ages from fifteen

years to five months. The trial court designated Mother as the legal custodian of the

children, with Father having parenting time supervised by the Agency. Notably, the

record indicates that Father had vacated the family home during the proceedings.

{¶5} On May 28, 2020, the trial court conducted a dispositional hearing. The

trial court designated both Mother and Father as the legal custodians of the children

under the protective supervision of the Agency. The trial court further permitted

Father to return to the family home. The trial court’s dispositional orders were

journalized in its June 15, 2020 Judgment Entry.

{¶6} On June 11, 2020, Mother and Father each filed notices of appeal from

the trial court’s judgment adjudicating the children dependent. Mother’s and

Father’s appeals with respect to the seven children they share were consolidated for

purposes of appeal. Mother filed notices of appeal from the trial court’s judgments

-5- Case Nos. 8-20-17 to 8-20-25

of adjudication relating to the two older children, A.P. and H.P., which were also

consolidated with the cases involving the seven other children on appeal.1

{¶7} Mother and Father assert the following assignments of error for our

review on appeal.

ASSIGNMENT OF ERROR NO. 1

THE JUVENILE COURT VIOLATED APPELLANTS’ DUE PROCESS RIGHTS WHEN IT DID NOT PERMIT APPELLANTS TO PRESENT WITNESSES OR EVIDENCE DURING THE ADJUDICATORY HEARING AND CUT APPELLANT-MOTHER’S ATTORNEY OFF DURING HER CROSS-EXAMINATION.

ASSIGNMENT OF ERROR NO. 2

THE JUVENILE COURT ERRED WHEN IT FAILED TO MAKE ANY FINDINGS OF FACT AND CONCLUSIONS OF LAW IN ITS JUDGMENT ENTRY TO SUPPORT ITS DECISION FINDING THAT THE CHILDREN ARE DEPENDENT.

ASSIGNMENT OF ERROR NO. 3

THE JUVENILE COURT’S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND SUFFICIENCY OF THE EVIDENCE. APPELLEE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILDREN WERE DEPENDENT.

1 The father of A.P. and H.P. did not participate in the proceedings nor did he file an appeal of the trial court’s dependency adjudication, despite being properly served with notice. Mother (with respect to all nine children) and Father (with respect to the seven they share) filed a combined brief for purposes of appeal and have asserted assignments of error raising issues relevant to the cases involving all nine children.

-6- Case Nos. 8-20-17 to 8-20-25

ASSIGNMENT OF ERROR NO. 4

THE JUVENILE COURT ERRED WHEN IT ALLOWED, ON MULTIPLE OCCASIONS, IMPERMISSIBLE HEARSAY DURING THE ADJUDICATORY HEARING.

First Assignment of Error

{¶8} In their first assignment of error, Mother and Father claim that the trial

court violated their procedural due process rights when it limited their counsels’

opportunities to cross-examine the Agency’s witness, and when it made its decision

before Mother had an opportunity to present witnesses, thereby precluding Mother’s

counsel from presenting any evidence in support of her position. Notably, the

Agency concedes that the trial court erred in this regard.

Legal Authority

{¶9} The right to procedural due process is required by the Fourteenth

Amendment to the United States Constitution and Article I, Section 16 of the Ohio

Constitution. State ex rel. Plain Dealer Publishing Co. v. Floyd, 111 Ohio St.3d 56,

2006-Ohio-4437, ¶ 45. At a minimum, due process of law requires notice and

opportunity for a hearing, that is, an opportunity to be heard. Mathews v. Eldridge,

424 U.S. 319 (1976). The opportunity to be heard must occur at a meaningful time

and in a meaningful manner. Floyd at ¶ 45. It is well settled that “parents are

entitled to due process during the adjudicatory stage of the proceedings * * *.” In

re L.F., 9th Dist. Summit Nos. 27218 and 27228, 2014-Ohio-3800, ¶ 22.

-7- Case Nos. 8-20-17 to 8-20-25

Adjudication Proceedings

{¶10} At the adjudication hearing, the Agency presented one witness, the

caseworker involved in the investigation. Periodically, throughout the Agency’s

direct examination the trial court directed the prosecutor to streamline her questions

for the witness and stated, “I would just like to hear facts * * * So, I—we can’t be

here all day, folks. So, let’s focus on that.” (May 7, 2020 Hrg. at 33).

{¶11} Once direct examination of the Agency’s caseworker was complete

the trial court informed the three other attorneys present, which included Mother’s

counsel, Father’s counsel and the GAL, “For cross-examination, I don’t want you

to ask duplicate questions so I know you’re trying to think of your questions but

listen at the same time so we don’t have repetitive ones. So I’ll just shut you down

for saving time.” (May 7, 2020 Hrg. at 53). Shortly after Mother’s attorney began

cross-examination of the Agency’s caseworker, the trial court interrupted, “Let’s do

this, [Mother’s counsel]. We’ll come back to you. I just want because of time I

want to get cross-examination finished, give everybody an opportunity. Do you

(Father’s Counsel) have to any additional questions for cross?” (Id. at 66). Father’s

counsel indicated that Mother’s counsel’s questions for the witness were sufficient

and did not cross-examine the witness. The GAL indicated to the court that she had

additional questions on cross-examination and hurriedly tried to finish her cross-

examination in an expedient fashion.

-8- Case Nos. 8-20-17 to 8-20-25

{¶12} The trial court then proceeded to ask few follow-up questions and then

informed to the parties, “Okay. Okay. All right. Okay. Do you have any redirect?

I’m ready to rule.” (May 7, 2020 Hrg. at 78). The prosecutor replied, “Your Honor,

I just want to be sure that [Mother’s counsel] is finished with her cross before I

continue.” (Id.). Mother’s counsel indicated on the record that she had finished

questioning the Agency’s witness. The prosecutor then conducted a brief redirect

examination of the caseworker. Immediately after the prosecutor finished redirect

examination the trial court announced its decision adjudicating the children

dependent.

{¶13} After the decision on adjudication was announced, the following

exchange occurred between the trial court and Mother’s counsel:

The Court: Does counsel have any question?

Mother’s Counsel: Your Honor, we had a number of witnesses here.

The Court: Well, we have to finish the case today, and I’ve heard enough evidence that I can make findings that that’s what I’m doing. So if we go—we’ll go to deposition, and at that point you’ll have time to file an appeal. Any questions?

(May 7, 2020 Hrg. at 83).

{¶14} The trial court subsequently explained to Mother’s Counsel on the

record, “So when you ask for a continuance of a hearing and my assignment

commissioner—who doesn’t understand this stuff, that’s not her job—gives you an

-9- Case Nos. 8-20-17 to 8-20-25

hour, you have to live within that hour or you have to make sure you ask for more

time based on the witnesses you’re presenting, ok? Is that fair? [The assignment

commissioner] just can’t handle that piece * * *.” (May 7, 2020 Hrg. at 84).

Analysis

{¶15} At the outset, we are cognizant that a court has discretion to control

the mode and order of witness examination. Likewise, we recognize that the scope

and limitation of cross-examination are matters within the sound discretion of the

trial court. However, as previously noted, the fundamental tenants of due process

require that parties to a dependency proceeding be given an opportunity to be heard

in a meaningful manner during the adjudicatory stage.

{¶16} “ ‘Due process of law implies, in its most comprehensive sense, the

right of the person affected thereby to be present before the tribunal * * * to be

heard, by testimony or otherwise, and to have the right of controverting, by proof,

every material fact which bears on the question of right in the matter involved.’ ” In

re L.R., 5th Dist. Holmes No. 13CA004, 2013-Ohio-3104, ¶ 72, quoting Williams

v. Dollison, 62 Ohio St.2d 297, 299 (1980).

{¶17} In the instant cases, we agree with the parties that Mother was deprived

of a meaningful opportunity to be heard when the trial court precluded Mother from

presenting any evidence in support of her case at the adjudication hearing. Under

her basic due process rights, Mother was entitled to present her defense, absent any

-10- Case Nos. 8-20-17 to 8-20-25

indication in the record of a valid waiver of that right, which is not present in this

case. See In re E.J.M., 5th Dist. Stark No. 2010CA00171, 2011-Ohio-977, ¶ 18;

Juv.R. 29. Accordingly, we find that the trial court erred when it adjudicated the

children dependent without permitting Mother to offer evidence in support of her

case.

{¶18} The first assignment of error is sustained.

Second Assignment of Error

{¶19} In their second assignment of error, Mother and Father claim that the

trial court’s judgment entries finding the children dependent failed to comply with

R.C. 2151.28(L).

{¶20} R.C. 2151.28 governs the adjudicatory hearing. Subsection (L) states

the following:

If the court, at an adjudicatory hearing held pursuant to division (A) of this section upon a complaint alleging that a child is an abused, neglected, dependent, delinquent, or unruly child or a juvenile traffic offender, determines that the child is a dependent child, the court shall incorporate that determination into written findings of fact and conclusions of law and enter those findings of fact and conclusions of law in the record of the case. The court shall include in those findings of fact and conclusions of law specific findings as to the existence of any danger to the child and any underlying family problems that are the basis for the court's determination that the child is a dependent child.

{¶21} Mother and Father argue that the trial court failed to make these

requisite findings. On appeal, the Agency concedes that “the Juvenile court failed

-11- Case Nos. 8-20-17 to 8-20-25

to make written findings of fact in the Judgment Entry finding that the Minor

Children were Dependent.” (Appe. Br. at 9). Notably, the record clearly establishes

that these judgment entries are devoid of any findings of fact and conclusions of

law, including “specific findings as to the existence of any danger to the child and

any underlying family problems that are the basis for the court’s determination that

the child is a dependent child.” R.C. 2151.28(L).

{¶22} We have previously addressed this issue and have determined that the

proper remedy is to remand the cases to the trial court to issue judgment entries of

dependency with these written findings of fact and conclusions of law in compliance

with R.C. 2151.28(L). See In re P.C., 3d Dist. Logan Nos. 8-19-45, 8-19-46, 8-19-

47, 8-19-54, 8-19-55, 8-19-56, 2020-Ohio-2889, ¶ 25; In re S.L., 3d Dist. Union

Nos. 14-15-07, 14-15-08, 2016-Ohio-5000, ¶ 9; see also e.g., In the matters of T.J.,

5th Dist. Knox Nos. 19CA02, 19CA03, 19CA04, 2019-Ohio-3626; In re E.Z., 8th

Dist. Cuyahoga No. 103728, 103966, 2016 WL 4399394.

{¶23} However, due to our resolution of the first assignment of error, it will

be necessary for the trial court to conduct a new adjudication hearing. Accordingly,

the trial court will be given the opportunity to comply with R.C. 2151.28(L) upon

the issuance of its new judgment ruling on the Agency’s complaints alleging

dependency in these cases.

-12- Case Nos. 8-20-17 to 8-20-25

{¶24} Accordingly, to this extent only, the second assignment of error is

sustained.

Third and Fourth Assignments of Error

{¶25} Due to our resolution of the first assignment of error, the third and

fourth assignments of error are rendered moot. On this basis, this Court declines to

address these assignments of error.

{¶26} For all these reasons, the judgments are reversed and the causes are

remanded for proceedings consistent with this opinion.

Judgments Reversed and Causes Remanded

PRESTON and ZIMMERMAN. J.J., concur.

/jlr

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