[Cite as In re C.C., 2016-Ohio-1417.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN RE: C.C. : : : C.A. CASE NO. 26864 : : T.C. NO. 2013-5270 : : (Civil appeal from Common Pleas : Court, Juvenile Division) : : ...........
OPINION
Rendered on the ___1st___ day of ____April____, 2016.
...........
ANN M. GRABER, Atty, Reg. No. 0091731, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Appellee Montgomery County Children’s Services
DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio 45459 Attorney for Appellant Mother
.............
DONOVAN, P.J.
{¶ 1} Defendant-appellant C.G. (hereinafter “Mother”) appeals a judgment of the
Montgomery County Court of Common Pleas, Juvenile Division, adopting a magistrate’s
decision which overruled her objections and granted temporary custody of the minor child, -2-
C.C., age fifteen, to the maternal grandmother, F.P., with protective supervision granted
to Montgomery County Children’s Services (hereinafter “MCCS”). The trial court’s
“Decision and Judgment Concerning Objections to the Decision of the Magistrate” was
issued on March 2, 2015.
{¶ 2} Mother filed a timely notice of with this Court on March 6, 2015. On May 5,
2015, we issued an order wherein we directed Mother to show cause why the appeal
should not be dismissed for lack of jurisdiction. Specifically, we questioned whether the
trial court’s decision issued on March 2, 2015, was a final appealable order in light of our
decision in Bennett v. Bennett, 2012-Ohio-501, 969 N.E.2d 344 (2d Dist.). On June 24,
2015, C.G. filed a motion to amend the trial court’s decision in order to conform to our
holding in Bennett. Mother filed her motion to amend in the trial court. On July 2, 2015,
the trial court filed an “Amended Decision and Judgment Concerning the Decision of the
Magistrate” which purported to be a final appealable order in line with Bennett.
Nevertheless, on July 9, 2015, we issued a decision and final judgment entry wherein we
dismissed Mother’s appeal for lack of jurisdiction. In re C.C., 2d Dist. Montgomery No.
26606, 2015-Ohio-3048. We also found that the trial court’s amended decision was a
nullity because Mother’s appeal was pending before us at the time that the trial court
issued the decision. Id.
{¶ 3} On July 21, 2015, Mother filed another notice of appeal from the trial court’s
March 2, 2015, decision adopting the magistrate’s decision. As we already held,
however, the March 2, 2015, decision was not a final appealable order. Accordingly, we
once again dismissed Mother’s appeal for lack of jurisdiction in a decision and judgment
entry issued on September 11, 2015. In re C.C., 2d Dist. Montgomery No. 26771 -3-
(September 11, 2015). Shortly thereafter on September 15, 2015, the trial court issued
its “Amended Decision and Judgment Concerning Objections to the Decision of the
Magistrate.” Mother filed a timely notice of appeal of the amended decision with this
Court on October 14, 2015.
{¶ 4} The incident which forms the basis for the instant appeal occurred on April
11, 2013, when Officer Brian Douglas of the Trotwood Police Department responded to
Mother’s residence after she reported an unruly runaway juvenile. Specifically, Mother
called the police to report that her daughter, C.C., had left without permission and was
refusing to come home. Mother informed Officer Douglas that she believed that C.C.
was with her biological father, A.C. (hereinafter “Father”). Officer Douglas testified that
he contacted Father who stated that C.C. was in his care. Officer Douglas and Father
arranged to meet at the Trotwood Police Station in order to return C.C. into Mother’s care
and also in order to address why the child initially ran away.
{¶ 5} Once at the police station, Mother demanded that C.C. be returned to her.
Officer Douglas, however, was concerned because C.C. stated that she was scared of
Mother and the punishment that would occur once they got home. Officer Douglas noted
that when C.C. was confronted with having to return home with Mother, she became
visibly upset and started crying. Officer Douglas described C.C. as “delirious.” Officer
Douglas testified that he also interviewed some of C.C.’s family members who arrived at
the police station. Based on his observations, Officer Douglas contacted MCCS and
asked them to implement a safety plan to keep C.C. from being sent back with Mother.
MCCS informed Officer Douglas that it was not going to send a caseworker but asked
him to send C.C. home with another family member besides Mother if possible. After -4-
some discussion, C.C. was placed with her godfather for the night.
{¶ 6} A short time later, Sergeant Fred Beck from the Trotwood Police Department
performed a follow up investigation into allegations of domestic violence between Mother
and C.C. Sgt. Beck testified that he located C.C. at her uncle’s residence in
Germantown, Ohio. Sgt. Beck testified that he then interviewed C.C. and her maternal
grandmother, F.P., at the Trotwood Police Station. Sgt. Beck testified that C.C.
appeared scared and upset and stated that she did not want to go back to Mother’s house.
After taking statements from C.C. and F.P., Sgt. Beck determined that he had probable
cause to arrest Mother for domestic violence and child endangering, charges which were
later dismissed without prejudice because the State’s witnesses failed to appear after
being subpoenaed. Sgt. Beck contacted MCCS and directed them to create a safety
plan for C.C. After deciding that C.C. would be temporarily placed with Father, Sgt. Beck
traveled to Mother’s residence in order to retrieve some of C.C.’s belongings. Sgt. Beck
testified that Mother appeared to be very angry, and she refused to provide him with any
of C.C.’s belongings. Sgt. Beck testified that based upon his observations, he believed
that C.C. was in danger from Mother.
{¶ 7} Shortly thereafter, MCCS filed a complaint alleging that C.C. was an abused
and dependent child. The first part of an adjudication hearing was held on September
17, 2013, after which interim temporary custody of C.C. was awarded to F.P. During the
hearing, F.P. testified that Mother hit C.C. in order to discipline the child. F.P. also
testified that Mother would often yell and scream excessively when she became upset.
F.P described Mother as anxious and intimidating. F.P. testified that C.C. had begun to
appear afraid of Mother. F.P. further testified that Mother’s threatening behavior was -5-
mainly directed at C.C., and the child genuinely feared for her safety.
{¶ 8} The second part of the adjudication hearing was held on November 13, 2013.
MCCS caseworker Sonia Dejesus-Jordan testified that she was assigned to investigate
C.C.’s abuse claims. Jordan testified that she interviewed C.C. at her school, and she
stated that she was afraid for her life if she was returned to Mother’s care. Jordan
testified that C.C. told her that Mother would often pull her hair as a form of discipline.
C.C. also reported to Jordan that as punishment, Mother slapped her, dragged her
around, made her sleep in a bed with no sheets or pillows, and hit her with a belt. C.C.
was scared that “Mother was going to come and get her.” Jordan described C.C. as very
articulate and believable. Jordan testified that Mother was reluctant to speak with her
and participate in the investigation. Jordan also interviewed Father and F.P. as part of
her investigation. Jordan testified that she was able to substantiate the allegations of
abuse through her investigation.
{¶ 9} Mother testified at the hearing and denied all of the abuse allegations.
Mother testified that she believed her parenting of C.C. was completely appropriate at all
times. Mother also testified that depending on the offense, her manner of discipline
could include verbal, physical, or a combination of both. Mother claimed that C.C. was
lying regarding her allegations of abuse. Mother, however, acknowledged that during a
conference with one of C.C.’s teachers, she did not approve of the manner in which her
daughter was speaking to the teacher. As a result, Mother testified that she hit C.C. in
the head with a folder in the presence of the teacher. Mother testified that she refused
to raise a disrespectful daughter. Mother denied being under any stress at the time C.C.
ran away in April of 2013, and testified that she was in a “kind of happy, fulfilled place.” -6-
{¶ 10} On December 13, 2013, the magistrate adjudicated C.C. abused and
dependent. On the same day, Mother filed a motion to set aside the magistrate’s
decision. The trial court denied Mother’s motion in an entry issued on January 14, 2014.
On January 22, 2014, Mother filed a motion to reconsider the trial court’s denial of her
motion to set aside which the trial court subsequently denied on January 28, 2014.
{¶ 11} Also on January 28, 2014, a dispositional hearing was held before the
magistrate, after which C.C.’s guardian ad litem (GAL) filed a report in which he
recommended that temporary custody be awarded to F.P. Thereafter, on February 5,
2014, the magistrate awarded temporary custody of C.C. to F.P., with protective
supervision granted to MCCS. Mother filed her initial objections to the magistrate’s
decision on February 19, 2014. On August 12, 2014, Mother filed supplemental
objections to the magistrate’s decision. With the permission of the trial court, Mother
supplemented her objections a second time on October 7, 2014. MCCS filed its
response to Mother’s supplemental objections on November 5, 2014.
{¶ 12} As previously discussed, the trial court issued a judgment overruling
Mother’s objections and adopting the decision of the magistrate on March 2, 2015. On
September 15, 2015, the trial court issued an amended judgment adopting the
magistrate’s decision.
{¶ 13} It is from this judgment that Mother now appeals.
{¶ 14} Mother’s first assignment of error is as follows:
{¶ 15} “THE MAGISTRATE COMMITTED REVERSIBLE ERROR WHEN SHE
ADMITTED HEARSAY STATEMENTS ALLEGEDLY MADE BY [THE] MINOR CHILD.”
{¶ 16} In her first assignment, Mother contends that the magistrate erred by relying -7-
on inadmissible hearsay when she adjudicated C.C. abused and dependent and awarded
temporary custody to F.P. Specifically, Mother argues that “the only basis for the entire
finding of abuse and dependency was the allegations made by child that were relayed to
family members and investigators.” Mother also alleges that the magistrate failed to
conduct an in camera interview of the child in order to ascertain her testimony regarding
the abuse that occurred.
{¶ 17} When a juvenile court rules on objections to a magistrate's decision, “the
court shall undertake an independent review as to the objected matters to ascertain that
the magistrate has properly determined the factual issues and appropriately applied the
law.” Juv.R. 40(D)(4)(d). R.C. 2151.23(F)(1) provides that the “juvenile court shall
exercise its jurisdiction in child custody matters in accordance” with section R.C. 3109.04,
which authorizes domestic relations courts to allocate parental rights and responsibilities
for the care of minor children. We review the juvenile court's decision for an abuse of
discretion. In re A.K., 2d Dist. Champaign No. 09–CA–32, 2010–Ohio–2913, ¶ 22.
{¶ 18} There must be strict adherence to the rules of evidence at
the adjudicatory stage and hearsay is not admissible. In re Baby Girl Baxter, 17 Ohio
St.3d 229, 233, 479 N.E.2d 257 (1985). A trial court, however, possesses broad
discretion with respect to the admission of evidence. State v. Maurer, 15 Ohio St.3d 239,
265, 473 N.E.2d 768 (1984). A trial court's determination on an evidentiary issue will only
be overturned if it evinces an abuse of discretion, signifying an unreasonable, arbitrary,
or unconscionable attitude. O'Brien v. Angley, 63 Ohio St.2d 159, 163, 407 N.E.2d 490
(1980).
{¶ 19} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, -8-
arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most
instances of abuse of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary. A decision is unreasonable if
there is no sound reasoning process that would support that decision. It is not enough
that the reviewing court, were it deciding the issue de novo, would not have found that
reasoning process to be persuasive, perhaps in view of countervailing reasoning
processes that would support a contrary result.” AAAA Enterprises, Inc. v. River Place
Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N .E.2d 597 (1990).
{¶ 20} The purported hearsay statements which Mother challenges on appeal
include: (1) statements by C.C. to the maternal grandmother, F.P., that Mother physically
and mentally abused her ; (2) statements made by the C.C. to Officer Douglas regarding
the physical abuse she suffered at the hands of Mother; (3) testimony by MCCS intake
caseworker Jordan that C.C. told her that she was “fearful of her life if she had to return
to Mother’s care” and that Mother physically abused her; and 4) the testimony of P.H. that
C.C. informed her that “I want to leave my mom” and “my mom scares me.”
{¶ 21} Mother argues that the following offered by F.P. was clearly hearsay and
should have been stricken from the record:
The State: So, you were describing – well, let’s move on. So, as a
result of the yelling and screaming that [Mother] did to [C.C.], did you ever
notice a negative impact on C.C.?
F.P: [C.C.] start to, in recent months, showing, yeah, she was afraid.
[C.C.] was talking to me about things that she felt – she felt she was on
constant punishment. She felt they were too severe. -9-
Defense Counsel: Objection, Your Honor. Hearsay.
The State: May I respond? An existing emotional condition, how
she felt.
The Court: Overruled.
The State: And so how was she explaining how she felt?
F.P.: Am I –
The Court: What did she – yeah, you can answer. What did she say
to you how she felt?
F.P.: She would tell me things that happened between her and her
mom. She said her mom would have times when she would wake her up
and be – be upset about something, something she did. She may be on
punishment. Mom may wake her up at like [sic] a crazy woman at three o’
clock in the morning and be still fussing about it. She claimed that her
mother did push her. She claimed her mom had punched her. She
claimed that her mom had just started getting worse.
***
{¶ 22} C.C.'s statements to F.P. that she was scared and was afraid of
Mother were relevant to her state of mind when she left Mother’s residence and sought
help from Father and the police. These statements were properly admitted as evidence
under Evid.R. 803(3), which permits hearsay evidence of a declarant's “then existing
state of mind, emotion, sensation * * * (such as intent, plan, motive, design, mental feeling
[or] pain).” To be sure, “testimony of state-of-mind witnesses, that the victim was fearful
and apprehensive [is] not inadmissible hearsay and [is] properly admitted.” State v. -10-
O’Neal, 87 Ohio St.3d 402, 411, 721 N.E.2d 73 (2000), citing State v. Apanovitch, 33
Ohio St.3d 19, 22, 514 N.E.2d 394 (1987).
{¶ 23} Thus, C.C.’s statements to Officer Douglas, Jordan, and P.H. that she was
scared and was afraid of Mother were properly admitted as evidence under
Evid.R. 803(3). To the extent that C.C. was describing her fearful state-of-mind caused
by Mother’s conduct, the magistrate did not err in allowing the witnesses to testify
regarding those statements made to them by C.C. However, we note that to the extent
the witnesses, namely F.P., Officer Douglas, and Jordan, were allowed to testify
regarding C.C.’s statements about the physical abuse perpetrated by Mother, their
testimony constituted inadmissible hearsay.
{¶ 24} However, we find beyond a reasonable doubt that any improperly
admitted hearsay testimony did not contribute to the adjudication of abuse and
dependency, and therefore, was harmless error. Significantly, the record establishes
that upon a motion from Mother, the magistrate conducted an in camera interview of C.C.
immediately prior to the hearing held on November 13, 2013. Thus, the magistrate was
able to directly question C.C. regarding her allegations of abuse against Mother. Mother,
however, did not request that the interview of C.C. be recorded and placed on the record.
Thus, any error in interviewing C.C. off the record is waived. In re Reed, 2d Dist. Greene
No. 95 CA 56, 1995 WL 765595, *4 (December 20, 1995).
{¶ 25} We also note that after performing their respective investigations into C.C.’s
allegations against Mother, Jordan and Ashley Stahl, C.C.’s MCCS caseworkers, both
testified that they were able to substantiate the abuse claims. Additionally, Sgt. Beck
testified that after concluding his investigation, he believed that probable cause existed -11-
to arrest Mother and charge her with domestic abuse and child endangerment. F.P.
testified that she was concerned with Mother’s mental health and that C.C. appeared to
be genuinely afraid of her. Moreover, the GAL’s report, which Mother did not challenge
on hearsay grounds, recommended that C.C. should be placed in the legal custody of
F.P. because of Mother’s repeated willful failure to work through her case plan objectives.
{¶ 26} Lastly, we note that this case was tried directly to the magistrate, not a jury,
and we presume that the magistrate considered only relevant, material, and competent
evidence unless it affirmatively appears to the contrary. In re J.S., 2d Dist. Montgomery
No. 22063, 2007-Ohio-4551, ¶ 46. Although we find that the trial court committed error
when it allowed F.P., Jordan, and Officer Douglas to testify to prior hearsay statements
by C.C., that error was harmless beyond a reasonable doubt. Accordingly, we conclude
that MCCS adduced substantial and credible evidence to support the trial court’s decision
to adopt the magistrate’s decision adjudicating C.C. abused and dependent and awarding
temporary custody to F.P.
{¶ 27} Mother’s first assignment of error is overruled.
{¶ 28} Mother’s second and final assignment of error is as follows:
{¶ 29} “THE FINDING OF ABUSE AND DEPENDENCY IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 30} In her final assignment, Mother argues that the trial court’s decision to adopt
the magistrate’s decision adjudicating C.C. abused and dependent was against the
manifest weight of the evidence.
{¶ 31} A juvenile court has broad discretion in the disposition of an abused,
neglected, or dependent child. See R.C. 2151.353(A) and Juv. R. 29(D). The -12-
dispositional options include, among other things, granting a children-services
agency temporary custody, committing the child to the permanent custody of a children-
services agency, or awarding legal custody to a relative or any other person. R.C.
2151.353(A). “In choosing among the alternatives, the best interest of the child is the
court's primary consideration.” In re L.C., 2d Dist. Clark No. 2010 CA 90, 2011–Ohio–
2066, ¶ 13.
{¶ 32} Where an award of custody is supported by substantial competent,
credible evidence in the record, that award will not be reversed as being against the
manifest weight of the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159
(1997).
{¶ 33} In the instant case, the record establishes that the trial court’s decision
finding C.C. to be abused and dependent was not against the manifest weight of the
evidence. First of all, every witness, with the exception of Mother, testified that C.C. was
afraid of Mother and did not want to live with her. Officer Douglas testified that when he
explained that she might have to go home with Mother on the night she went to Father’s
house, C.C. got very upset, started crying, and became “delirious.” F.P. testified that
she believed that C.C. would not fabricate stories regarding the mental and physical
abuse she suffered from Mother. The evidence adduced by the State established that
C.C. lived in a constant state of fear of Mother. Mother testified herself that she
“smacked” C.C. in the head with a folder at a parent/teacher conference because she
believed the child was being disrespectful. Sgt. Beck testified that based upon his own
investigation, he believed he had probable cause to arrest Mother and charge her with
domestic abuse and child endangerment. Sgt. Beck testified that the charges were -13-
dismissed without prejudice because subpoenaed witnesses “did not show.” The record
also establishes that MCCS substantiated both emotional maltreatment and physical
abuse of C.C. by Mother.
{¶ 34} In order to assist in reunification with C.C., MCCS established a case plan
for Mother to follow, to wit: 1) obtain and maintain housing and income; 2) participate in
mental health treatment, specifically individual and family counseling; 3) complete the
Parent/Teen Conflict Program; 4) complete a batterer’s intervention program; 5) complete
a parenting/psychological assessment; and 6) follow all recommendations.
{¶ 35} Stahl testified that Mother did not sign her case plan and was unwilling to
work with MCCS at the case plan meeting. Mother signed a limited release which only
allowed her counselor to disclose whether she was attending counseling, not what was
being discussed during the sessions. Stahl testified that difficulty completing the case
plan objectives was compounded by the fact that MCCS did not have any contact with
Mother since November of 2013. Stahl testified that as a result of Mother’s
noncompliance, MCCS simply does not have any information to establish any progress
with her case plan objectives. Accordingly, the record establishes that in addition to her
substantiated mental and physical abuse of C.C, Mother’s own lack of cooperation and
communication with MCCS prevented her from utilizing services which would have
assisted her in reunification with her daughter.
{¶ 36} Finally, the GAL recommended that legal custody of C.C. be awarded to
F.P. In fact, the GAL recommended an award of permanent custody of C.C. to F.P. in
light of the discoveries he made during his investigation of the case. The GAL also
reiterated in his testimony that Mother has exhibited a complete unwillingness to comply -14-
with her case plan objectives.
{¶ 37} Therefore, based upon the evidence presented in this case, we conclude
that the trial court’s decision to adopt the magistrate’s decision adjudicating C.C. abused
and dependent was not against the manifest weight of the evidence. In our view, the
trial court had before it ample evidence which supported an award of temporary custody
to F.P. with protective supervision to MCCS.
{¶ 38} Mother’s final assignment of error is overruled.
{¶ 39} Both of Mother’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
..........
FAIN, J. and FROELICH, J., concur.
Copies mailed to:
Ann M. Graber Daniel F. Getty Hon. Nick Kuntz