In re T.J.

2018 Ohio 3639

• Court: Ohio Court of Appeals
• Decided: September 12, 2018
• Docket: C-170584 C-180002 C-180329
• Status: Published

Opinion

[Cite as In re T.J., 2018-Ohio-3639.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: T.J. : APPEAL NOS. C-170584 C-180002 : C-180329 : TRIAL NO. F-16-1241X

: O P I N I O N.

Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed in C-170584 and C-180002; Appeal Dismissed in C-180329

Date of Judgment Entry on Appeal: September 12, 2018

Rebecca J. Allf Co., Ltd., and Rebecca J. Allf, for Appellant Mother,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jackie O’Hara, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Laurie J. Hoppenjans, Assistant Public Defender, for Appellee Guardian ad Litem. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Appellant mother has appealed from the juvenile court’s entry

granting temporary custody of her daughter T.J. to the Hamilton County Department

of Job and Family Services (“HCJFS”).

{¶2} In four assignments of error, mother argues that the trial court erred

in determining that T.J. was abused and dependent and in granting temporary

custody of T.J. to HCJFS; that the trial court erred in overruling her motion to set

aside the magistrate’s order stating that an in camera hearing had been conducted;

that the trial court erred by approving and incorporating a case plan; and that the

trial court erred by dismissing various motions that mother had filed during the

pendency of this action.

{¶3} Finding no merit to mother’s assignments of error, we affirm the trial

court’s judgments in the appeals numbered C-170584 and C-180002. But we dismiss

the appeal numbered C-180329 because mother has advanced no separate

assignments of error in that appeal.

Factual Background

{¶4} HCJFS was granted an ex parte emergency order of custody of T.J. on

May 9, 2016. The following day, the agency filed a complaint seeking temporary

custody, alleging that T.J. was neglected, abused, and dependent. Following an

adjudication hearing, a magistrate issued a decision on April 24, 2017, determining

that T.J. was abused and dependent, but dismissing the allegation of neglect. Mother

filed objections to the magistrate’s decision, which the trial court overruled.

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{¶5} After conducting a dispositional hearing and an in camera interview

with T.J., the magistrate issued a decision granting HCJFS’s motion for temporary

custody on July 31, 2017. Mother again filed objections to the magistrate’s decision,

which the trial court overruled.

Temporary Custody

{¶6} In her first assignment of error, mother argues that the trial court

erred in adopting the magistrate’s decisions adjudicating T.J. abused and dependent

and determining that it was in T.J.’s best interest to be placed in the temporary

custody of HCJFS, because those decisions were against the manifest weight of the

evidence.

{¶7} We first consider the trial court’s determination that T.J. was an

abused and dependent child. A determination that a child is abused or dependent

must be supported by clear and convincing evidence. Juv.R. 29(E)(4); In re Walling,

1st Dist. Hamilton No. C-050646, 2006-Ohio-810, ¶ 15. Clear and convincing

evidence is that which is sufficient to produce in the mind of the trier of fact a firm

belief or conviction as to the facts sought to be established. Id. As a reviewing court,

we “must examine the record and determine if the trier of fact had sufficient

evidence before it to satisfy this burden of proof.” Id., quoting In re Adoption of

Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985); In re T.K., 5th Dist.

Richland No. 18-CA-37, 2018-Ohio-3333, ¶ 51.

{¶8} R.C. 2151.031 contains various classifications of abused children. In

this case, the complaint alleged that T.J. was abused pursuant to R.C. 2151.031(B),

(C), and (D), which provide as follows:

As used in this chapter, an “abused child” includes any child who:

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* * *

(B) Is endangered as defined in section 2919.22 of the Revised Code,

except that the court need not find that any person has been convicted

under that section in order to find that the child is an abused child;

(C) Exhibits evidence of any physical or mental injury or death,

inflicted other than by accidental means, or an injury or death which is

at variance with the history given of it. Except as provided in division

(D) of this section, a child exhibiting evidence of corporal punishment

or other physical disciplinary measure by a parent, guardian,

custodian, person having custody or control, or person in loco parentis

of a child is not an abused child under this division if the measure is

not prohibited under section 2919.22 of the Revised Code.

(D) Because of the acts of his parents, guardian, or custodian, suffers

physical or mental injury that harms or threatens to harm the child’s

health or welfare.

{¶9} HCJFS further alleged that T.J. was dependent under R.C. 2151.04(C),

which provides that a dependent child is one “[w]hose condition or environment is

such as to warrant the state, in the interests of the child, in assuming the child’s

guardianship.”

{¶10} At the adjudication hearing, Danielle Hutchinson, an intake worker

with Hamilton County Children’s Services, testified that in early May 2016, she

received an allegation that then 13-year-old T.J. had been physically abused. The

allegation stated that mother had beaten T.J. with a mirror and that T.J. was fearful

to show mother her upcoming report card because of mother’s potential reaction.

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Hutchinson made contact with both mother and T.J., and she viewed injuries on T.J.

allegedly inflicted by mother. She saw a scar that T.J. reported was caused when

mother attempted to attack her with a knife, and a cut that T.J. reported was caused

when mother threw a mirror at her shin. Because T.J. had threatened to kill herself

if taken home, she was placed at Lighthouse Youth Services and a safety plan was

initiated. Under the safety plan, mother was not to have any unsupervised contact

with T.J. T.J.’s father has no involvement with her.

{¶11} Hutchinson testified that the safety plan was disrupted several days

later, when she received a voicemail from mother stating that mother intended to get

T.J. from school. Hutchinson went to T.J.’s school and learned that T.J. had been

suspended. She saw mother, who refused to speak with her. Hutchinson testified

that mother had refused to sign a release of information and to complete a requested

diagnostic assessment. Hutchinson was concerned that mother was not willing to

address T.J.’s mental-health issues.

{¶12} John Stacy, dean of students at T.J.’s school, testified that T.J. had

extensive discipline problems and had been involved in multiple altercations with

other students, several of which were violent. Stacy testified that T.J. showed an

abnormal reaction to being disciplined. Mother consistently responded when Stacy

attempted to contact her, but when T.J.’s behavioral problems were explained,

mother always defended T.J. and blamed the other party. Amy Verkamp-Collopy, a

counselor at T.J.’s school, testified that T.J. was a very angry child who struggled to

form peer relationships. She explained that T.J. was mostly the aggressor in the

altercations she was involved in. Verkamp-Collopy offered counseling services to

mother for T.J. Mother declined the offered services, but did allow T.J. to work with

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a student intern through Family and Student Services. T.J. never presented with

visible injury to Verkamp-Collopy or expressed concerns about her home life.

{¶13} Stephanie Rowland, a social worker in the Psychiatric Residential

Program at Children’s Hospital Medical Center, testified that she had counseled T.J.

while T.J. was admitted to the hospital. She explained that T.J. had been diagnosed

with disruptive dysregulation mood disorder, ADHD, PTSD, and a language

disorder. T.J. reported to Rowland that she had a difficult time at school and that

she had suffered physical abuse from her mother, specifically that mother had

thrown a mirror at her. But she admitted that she had made up the story about her

mother stabbing her in the leg. Rowland conducted two family therapy sessions with

T.J. and mother, but was concerned with the effect of the sessions on T.J. because

the two would argue over whether abuse had occurred in the home. Rowland also

canceled several of T.J.’s visits with mother during her hospitalization because of

aggression that T.J. had expressed towards mother.

{¶14} Mother testified at the adjudication hearing and denied the allegations

of physical abuse. She further denied violating the safety plan, and explained that

she had gone to T.J.’s school after receiving a call that T.J. had been suspended.

{¶15} Following our review of the record, we find that clear and convincing

evidence supported the trial court’s determination that T.J. was abused and

dependent, and that the trial court, in adjudicating T.J. abused and dependent, did

not lose its way and create such a manifest miscarriage of justice that we must

reverse its decision. See In re K.G., 1st Dist. Hamilton No. C-120772, 2013-Ohio-

3160, ¶ 15, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 20. Regarding the trial court’s abuse determination, the court was

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presented with evidence about injury suffered by T.J. at mother’s hand, specifically

that mother had thrown a mirror at T.J. See R.C. 2151.031(C) and (D). As to the

dependency determination, the record demonstrates that T.J. suffered from mental-

health issues and had extensive behavioral problems at school, and that mother

refused to recognize T.J.’s fault in these aggressive incidents and refused offered

therapeutic services for T.J. See R.C. 2151.04(C).

{¶16} We now turn to the trial court’s determination that it was in T.J.’s best

interest to be placed in the temporary custody of HCJFS.

{¶17} Pursuant to R.C. 2151.353(A),1 after a child is adjudicated abused,

neglected, or dependent, the court may make any of the following orders of

disposition:

(1) Place the child in protective supervision;

(2) Commit the child to the temporary custody of a public children

services agency * * *;

(3) Award legal custody of the child to either parent or to any other

person who, prior to the dispositional hearing, files a motion

requesting legal custody of the child * * *.

(4) Commit the child to the permanent custody of a public children

services agency * * *.

(5) Place the child in a planned permanent living arrangement with

a public children services agency * * *.

(6) Order the removal from the child’s home * * *.

1 We apply the version of the statute that was in effect on October 7, 2016, the date that HCJFS filed the third amended complaint for temporary custody. See In re C.M., 1st Dist. Hamilton Nos. C-150365 and C-150396, 2015-Ohio-3971, ¶ 13.

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The best interest of the child is the primary consideration when choosing among

these dispositional options. In re A.W., 1st Dist. Hamilton No. C-140142, 2015-Ohio-

489, ¶ 8.

{¶18} The trial court’s decision to grant a motion for temporary custody

pursuant to R.C. 2151.353(A)(2) must be supported by a preponderance of the

evidence, and will not be reversed absent an abuse of discretion. See In re Day, 12th

Dist. Clermont No. CA2002-09-073, 2003-Ohio-3544, ¶ 22 (holding that “[u]nless a

trial court chooses one of the two most restrictive dispositions under [R.C.

2151.353](A)(4) or (5), the court need only show that it chose the appropriate

disposition by a preponderance of the evidence,” and that the court’s disposition will

not be reversed absent an abuse of discretion); In re R.E.C., 4th Dist. Washington

No. 11CA2, 2011-Ohio-3437, ¶ 12 (“A juvenile court has broad discretion in the

disposition of an abused, neglected, or dependent child.”); In re A.W. at ¶ 9-10

(holding that “[b]ecause an award of legal custody does not divest parents of their

residual parental rights, privileges, and responsibilities, appellate courts apply a

preponderance of the evidence standard to the juvenile court’s factual findings” and

review an award of legal custody under R.C. 2151.353(A)(3) for an abuse of

discretion). A trial court abuses its discretion in this context when its decision

regarding the child’s best interest is not supported by competent, credible evidence.

In re M., R., and H. Children, 1st Dist. Hamilton No. C-170008, 2017-Ohio-1431, ¶

30.

{¶19} HCJFS caseworker Rachel Butler testified at the disposition hearing

that T.J. remained fearful of mother and did not want to return home. At the time of

the hearing, T.J. was placed in a group home, but during the pendency of the action

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has had suicidal ideations and has been hospitalized multiple times. Butler testified

that mother refuses to acknowledge T.J.’s mental-health issues, and has refused to

sign a release of information, a prerequisite to undergoing a diagnostic assessment

and engaging in services.

{¶20} The magistrate conducted an in camera interview with T.J. T.J. told

the magistrate that she wanted to visit with mother, but that she did not want to

return to mother’s home.

{¶21} Mother did not testify at the dispositional hearing, but introduced

several exhibits, including a diagnostic assessment that she had privately engaged in.

{¶22} Following our review of the record, we conclude that the trial court’s

determination that a grant of temporary custody to HCJFS was in T.J.’s best interest

was not against the manifest weight of the evidence, and the trial court did not abuse

its discretion in reaching that decision. T.J., a teenager able to express her own

desires, stated to both the magistrate and her caseworker that she did not want to

return to mother’s care. T.J. has had multiple placements since entering the care of

HCJFS, including a therapeutic foster home, two group homes, and multiple

hospitalizations.

{¶23} T.J. and mother have a volatile relationship. Both their family therapy

sessions and visitation were terminated because of the effect of the therapy sessions

on T.J. and the aggression T.J. expressed towards mother. Neither family therapy

nor visitation had resumed at the time that HCJFS was granted temporary custody.

Mother participated in a private diagnostic assessment, but she has refused to sign a

release of information despite the lengthy history of this case. Without the release of

information, mother cannot participate in a diagnostic assessment to determine

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what services should be recommended. Further, T.J. has extensive mental-health

issues that mother fails to appreciate.

{¶24} The trial court did not err in determining that T.J. was abused and

dependent and in granting temporary custody of T.J. to HCJFS. Mother’s first

assignment of error is overruled.

In Camera Hearing

{¶25} In her second assignment of error, mother argues that the trial court

erred in overruling her motion to set aside the magistrate’s order which reflected that

an in camera hearing had taken place and that the case was continued for

disposition. She argues that T.J.’s testimony from the in camera hearing should be

set aside and a new in camera hearing should be ordered.

{¶26} At the dispositional hearing on July 12, 2017, mother requested that

the magistrate conduct an in camera hearing with T.J. The magistrate agreed, and

informed mother that the only persons who would be present during the in camera

would be T.J., the magistrate, and T.J.’s guardian ad litem. The hearing was

scheduled for July 25, but it was postponed because T.J. was hospitalized on that

date. On July 27, the magistrate conducted the in camera hearing with a hospitalized

T.J. via a video teleconference and issued a corresponding order stating that the

hearing had occurred. Mother filed a motion to set aside the magistrate’s order,

arguing that she had not been informed that the hearing was being held that day, and

that she would not have agreed to an in camera hearing while T.J. was hospitalized

and allegedly incompetent.

{¶27} In an entry overruling mother’s motion, the trial court stated that it

had reviewed the audio-visual recording from the in camera hearing and that the

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magistrate and T.J. had been able to effectively communicate. It specifically found

that T.J. “exhibited sufficient reasoning ability to clearly and effectively articulate

and communicate her wishes and concerns to the magistrate.”

{¶28} The trial court did not err in overruling mother’s motion to set aside

the magistrate’s order. Mother was aware that the in camera hearing would occur

and that she would not be present for it. We have independently reviewed the

recorded hearing, and we agree with the trial court’s determination that T.J. and the

magistrate were able to effectively communicate. T.J. was able to clearly articulate

her feelings regarding mother and express her desires regarding her placement.

{¶29} The second assignment of error is overruled.

Case Plan

{¶30} In her third assignment of error, mother argues that the trial court

erred by approving and incorporating a case plan filed on September 1, 2017, without

following the procedure set forth in R.C. 2151.412.

{¶31} On September 1, 2017, HCJFS filed an amended case plan detailing a

proposed change in placement for T.J. The amended case plan provided that T.J.

was being discharged from the hospital and placed at “Nella’s Place.” On September

19, 2017, the magistrate entered an order approving and incorporating the amended

case plan. Mother filed an objection to the magistrate’s order, asserting that she had

not been given notice of the case plan. The trial court overruled mother’s objection.

{¶32} Mother contends on appeal that she was not given notice of, or an

opportunity to object to, the case plan, and that HCJFS failed to obtain an agreement

between the parties as to the contents of the case plan, in violation of R.C. 2151.412.

Mother’s argument is misplaced.

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{¶33} HCJFS was not required to obtain an agreement between the parties

before filing a proposed change to the case plan. R.C. 2151.412(E) provides that

“[a]ny agency that is required by division (A) of this section to prepare a case plan

shall attempt to obtain an agreement among all parties, including, but not limited to,

the parents, guardian, or custodian of the child and the guardian ad litem of the child

regarding the content of the case plan.” This provision requires HCJFS to “attempt

to obtain an agreement among all parties” when a case plan is being prepared. Here,

T.J.’s case plan had already been prepared and journalized by the court. Mother

objected to a proposed change to that case plan, rather than to the initial case plan.

{¶34} In such cases, R.C. 2151.412(F)(2) governs proposed changes to case

plans, and it provides that:

Any party may propose a change to a substantive part of the case plan,

including, but not limited to, the child’s placement and the visitation

rights of any party. A party proposing a change to the case plan shall

file the proposed change with the court and give notice of the proposed

change in writing before the end of the day after the day of filing it to

all parties and the child’s guardian ad litem. All parties and the

guardian ad litem shall have seven days from the date the notice is sent

to object to and request a hearing on the proposed change.

(a) If it receives a timely request for a hearing, the court shall schedule

a hearing pursuant to section 2151.417 of the Revised Code to be held

no later than thirty days after the request is received by the court. The

court shall give notice of the date, time, and location of the hearing to

all parties and the guardian ad litem. The agency may implement the

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proposed change after the hearing, if the court approves it. The agency

shall not implement the proposed change unless it is approved by the

court.

(b) If it does not receive a timely request for a hearing, the court may

approve the proposed change without a hearing. If the court approves

the proposed change without a hearing, it shall journalize the case plan

with the change not later than fourteen days after the change is filed

with the court.

{¶35} The amended case plan that was filed with the court stated that both

mother and T.J.’s guardian ad litem had been notified of the proposed change via

email. Mother failed to file objections and request a hearing, and the magistrate

approved the amended case plan. Because mother had been notified of the amended

case plan and failed to file timely objections and request a hearing, we hold that the

magistrate did not err in approving the amended case plan without a hearing. See

R.C. 2141.412(F)(2)(b). And even if mother had not received notice of the case plan,

she has suffered no resulting prejudice. The trial court considered and overruled

mother’s objection to the amended case plan, and in doing so approved of the

proposed change that it contained.

{¶36} The third assignment of error is overruled.

Miscellaneous Motions

{¶37} In her fourth assignment of error, mother argues that the trial court

“erred in finding in its 12/11/17 judicial entry, that the 11/22/17 magistrate’s decision

was supported by the evidence and in accordance with the law.”

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{¶38} In a decision dated November 22, 2017, the magistrate ruled on

various motions that mother had filed during the course of this action. Mother filed

objections to that decision, which the trial court denied in an entry dated December

11, 2017. Mother specifically argues that the trial court erred in dismissing the

following motions: a motion to return child, two motions to dismiss, a motion to

dismiss and return child, a motion for a new trial, and a motion for relief from

judgment.

{¶39} As mother acknowledges, this assignment of error is a recapitulation of

her first assignment of error. Consequently, this assignment of error is overruled

based on our resolution of the first assignment of error.

Conclusion

{¶40} Having overruled mother’s assignments of error, we accordingly affirm

the trial court’s judgments in the appeals numbered C-170584 and C-180002. The

appeal numbered C-180329 is dismissed.

Judgment accordingly.

MOCK, P.J., and DETERS, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.