In re H.A.I. , 2012 Ohio 3816 ( 2012 )

[Cite as In re H.A.I., 2012-Ohio-3816.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97771
IN RE: H.A.I., ET AL.
(MINOR CHILDREN)
[APPEAL BY FATHER]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD 07900116 and AD 04902623
BEFORE: Kilbane, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: August 23, 2012
APPELLANT/FATHER
A.H.I., Pro Se
8209 Force Avenue
Cleveland, Ohio 44105
APPELLEE/MOTHER
D.B., Pro Se
3355 West 30th Street
Cleveland, Ohio 44109
ATTORNEY FOR APPELLEE/CCDCFS
Yvonne C. Billingsley
CCDCFS
3955 Euclid Avenue, Room 305E
Cleveland, Ohio 44115
GUARDIAN AD LITEM
Stephen DeJohn
1054 Nicholson Avenue
Lakewood, Ohio 44107
MARY EILEEN KILBANE, J.:
{¶1} Pro se appellant-father, A.H.I. (“appellant”), appeals from the order of the
juvenile court that awarded legal custody of his children, H. I. and A. I., to their mother,
D.B. For the reasons set forth below, we affirm.
{¶2} A.I. was born on September 14, 2004, in New York while the mother was
visiting relatives. A.I. and her mother both tested positive for cocaine. Thereafter,
officials in Monroe County, New York took emergency custody of A.I. and the mother’s
two other children, L.W., born in 1991, and E.W., born in 1995.1 On December 17,
2004, the children were placed in the custody of CCDCFS. On December 21, 2004, A.I.
was placed in the emergency care and custody of appellant. On August 11, 2005, the
court awarded legal custody of A.I. to appellant.
{¶3} The mother entered drug treatment in January 2005. She later relapsed in
2006 while pregnant with H.I. In May 2006, the mother pled guilty to robbery and
having a concealed weapon.2 H.I. was born prematurely on August 3, 2006. At the time
of H.I.’s birth, the mother tested positive for cocaine, methadone, and opiates, and H.I.
was removed from her mother’s care. At that time, appellant was alleged to be her
father, but he had not established paternity. The Cuyahoga County Department of
1E.W. later resided with her father, but by the November 2011 trial, she was
living with her mother.
2She was sentenced to five years of probation in that matter.
Children and Family Services (“CCDCFS”) was awarded temporary custody of H.I. on
May 16, 2007, and she was placed in foster care.
{¶4} On November 14, 2007, CCDCFS filed a motion to modify, seeking an
award of permanent custody of H.I., alleging that the mother had chronic drug
dependency issues, appellant had not visited with H.I. since her placement with the
county, and appellant had not established paternity. At the time of CCDCFS’s
November 20, 2008 review of the matter, the agency noted that the mother had served six
months in jail for passing bad checks and faced additional jail time in connection with the
charges noted above. The report additionally noted, however, that the mother had been
sober for approximately six weeks, had started drug treatment, attended weekly
Alcoholics Anonymous meetings, was making progress in counseling, and was working.
This report additionally noted that appellant had established paternity of the child and
passed a drug screening, but had not been consistent with taking the child to speech
therapy.
{¶5} On April 28, 2009, CCDCFS filed a motion to terminate the award of
temporary custody of H.I. and to award legal custody to the mother, with protective
supervision by CCDCFS for a period of six months. CCDCFS asserted that the mother
has substantially complied with the case plan and “reduced the risk that caused the child
to be removed.” In a review dated May 18, 2009, CCDCFS noted that the mother had
made “significant progress,” and she has undergone random drug screenings that have
been negative for drug use. On June 4, 2009, the guardian ad litem, Stephen DeJohn
(“GAL”), advised the court that H.I. was doing well in foster care, but “mom is aware of
and capable of providing for” H.I.’s needs, and “[m]om appears up to the task of being
reunified with her child.” The GAL recommended reunification of H.I. with her mother,
“with protective supervision to the agency.”
{¶6} A hearing was held on June 11, 2009, on CCDCFS’s motion to modify
temporary custody to an order vesting legal custody to mother with protective supervision
by CCDCFS for six months. The magistrate’s decision granting CCDCFS’s motion was
filed on June 18, 2009, and affirmed and adopted by the trial court on July 9, 2009.
{¶7} On August 16, 2009, a review of H.I.’s placement by social worker,
Rebecca Botchway, noted phone calls to the father for a case plan update had not been
returned.
{¶8} The record indicates that the mother was incarcerated for a short time
following the August 16, 2009 review, and on February 22, 2010, appellant filed a motion
to modify custody of H.I. On March 4, 2010, the magistrate awarded appellant
temporary custody of H.I.
{¶9} On August 29, 2010, the mother moved to modify custody of A.I., arguing
that appellant had denied her visitation with the child, and he has neglected A.I.’s health,
educational, and emotional needs.
{¶10} On January 24, 2011, the GAL issued a report in which he noted that father
has legal custody of A.I. and temporary custody of H.I., and the mother had weekly
visitation with the girls. In relevant part, the GAL noted:
I met with my wards, two delightful and happy young girls. H.I., the
younger, is well bonded with her older sister. She exhibits signs of a
speech impediment which was dealt with in the past and she was released
from care. * * * A.I. has always been in the legal custody of dad. She
attends a charter school in downtown Cleveland, [and] appears bright and
knowledgeable for her age.
Short of ensuring that mom obtains a standard visitation as is customary in
this county, I see no reason to change custody of A. I. As to H.I., I
recommend joint custody to both parents, with dad as residential parent.
{¶11} Following a hearing on June 1, 2011, the magistrate ordered appellant to
“cooperate with [CCDCFS’s] investigation to allow [CCDCFS] to interview child and
visit his home.” The parties also agreed to an interim visitation schedule whereby each
parent had weekly alternating visitation with the two girls.
{¶12} On August 31, 2011, the GAL issued a follow-up report that provided in
relevant part as follows:
Currently, dad has legal custody of A.I. and temporary custody of H. I.
This matter has been pending for a long time, as the case numbers indicate.
There have been many ups and downs, mostly because of the hostility
between the biological parents. Mom is single; dad is married under
Islamic law. * * *
Dad is residential parent for both of my wards. Mom has weekly visitation
on Saturdays. At my last report visitation was working out; since that time,
mother has filed two Motions to Show Cause because Dad has failed to turn
over the children for visitation. Mother had gone to his home with police
and dad was non-responsive to the police inquiry.
The regular contentiousness that is exhibited between the parents is a source
of grave concern for my wards, in view of psychologist Dr. Ezzo’s recent
evaluation and report. He cites studies that show less stress on children in
shared parenting situations than those with sole custody to one parent. As
a result, I recommend strongly a shared parenting arrangement for my
wards. While I do not advocate changing the children’s living site every
week, which would create its own set of new stresses, perhaps the solution
to this dilemma is one month at a time with each parent. School
arrangements will have to be worked out between the parents[.]
{¶13} Both parents’ motions for legal custody of H.I. and A.I. proceeded to trial
before a magistrate on November 2, 2011. Jeanette Morris, H.I.’s foster parent from
2006 to 2009, testified that when the mother was released from incarceration in 2007, she
told Morris that she wanted to turn her life around and asked Morris for her support.
Since that time, according to Morris, the mother has gotten her “life together.”
{¶14} Morris further testified that, in the summer of 2010, she assisted the mother
with picking up the girls for visitation. On the first visit, she stated that it was just H.I.,
who was then four years old. She was missing a tooth, and her clothes were soaked in
urine. Morris also described the mother’s visit with both A.I. and H.I. that summer.
She stated that A.I. “knew that [H.I.] was her sister, but she did not know how they were
connected,” and that family members told A.I. that she did not have a mother because her
mother was dead.
{¶15} According to Morris, H.I. “has been dirty ever since she’s been with
[Appellant]” and wore the same jeans, shirt, and dirty coat each time her mother has
picked her up for visitation. She further stated that A.I. is “a bit more cleaner,” and that
mother “keeps the kids immaculate.”
{¶16} During a visit with the girls in January 2011, Morris and the mother
purchased toys for H.I., but the child later told Morris that appellant’s new wife threw the
toys into a dumpster near their house.
{¶17} Morris also testified that H.I. told her that she had gotten suspended from
school, and that appellant punished her by beating her with a cane. Morris stated that
A.I. is “afraid” of appellant and “dry heaves” if she does anything wrong.
{¶18} On cross-examination, Morris denied that she deprived appellant of
visitation with H.I. during the time that she was in her care. She also admitted that she
has no direct knowledge of whether appellant has multiple wives, but she testified that the
girls informed her that he has three wives.
{¶19} The CCDCFS social worker, Rebecca Botchway, testified that she has been
working with this family since 2004, after A.I. was born, and that the mother has had
parenting issues because of her drug use and past criminal history. Over time, however,
the mother has made significant progress. She has been sober for 18 months, cooperates
with all recommendations for herself and H.I., and is employed.
{¶20} In addition, according to Botchway, H.I.’s teachers have expressed concerns
for her cleanliness, and have reported that she does not complete school work, and does
not receive assistance with her homework in appellant’s home. She is failing social
studies and Spanish, and she is at risk of failing. The teachers also informed Botchway
that they had met appellant only a week earlier, and that he has not provided them with
information concerning her medical and dental coverage. Botchway further testified that
she learned that H.I. threatened a boy at school with a pair of scissors and was suspended.
For her punishment, appellant hit her with a bamboo stick. She also testified that both
girls appear disheveled and unkempt while with appellant, and that H.I.’s teacher stated
that she usually comes to school in dirty clothing. Botchway did not speak with A.I.’s
teacher.
{¶21} Botchway acknowledged that, after A.I. was removed from the mother’s
custody, the mother was referred to drug court; however, she did not successfully
complete her treatment. She further acknowledged that appellant was awarded legal
custody of A.I., and that CCDCFS obtained temporary custody of H.I. after she was born.
At that time, appellant denied paternity, and the child lived in foster care with Morris.
After paternity was established through a DNA test, appellant filed a motion for custody
of H.I., but he has refused numerous requests to complete the required Kinship Care
Packet, which entails having all adults in the home fingerprinted and having the home
inspected for safety issues. For that reason, CCDCFS cannot support his efforts to obtain
custody of H.I. Botchway was not certain whether completion of the packet was not
required when appellant obtained custody of A.I. Appellant also informed Botchway
that the girls receive medical care at MetroHealth Hospital, but after checking there,
Botchway received no information about their care. CCDCFS has received allegations
that appellant had neglected to obtain medical treatment for H.I. who has asthma.
{¶22} Botchway also testified that the mother was initially unemployed but in the
last few months has been hired to clean apartments and show them to prospective tenants.
According to Botchway, the mother “made a remarkable change and turnaround in her
behaviors, and she is sober today.”
{¶23} Tahirah Mujahid testified that he is the lead wrap-around specialist for the
Hough/Heights Community. He works in partnership with CCDCFS and teaches
parenting classes. He provided assistance to the mother in meeting the goals of the
parenting plan. Mujahid stated that the mother was compliant with that plan, participates
in sobriety meetings, has volunteered with his organization, and even received an award
for her volunteer work.
{¶24} Appellant presented the testimony of his wife, Shirley Dancy (“Dancy”).
Dancy stated that she married appellant in 2007 under Islamic law but did not obtain a
marriage license. She testified that A.I. has resided with her and appellant since she was
a baby, and that she takes care of H.I. and her husband’s other children. Dancy testified
that she cooks for the children, washes their clothes, braids their hair, helps them with
their homework, and engages in various recreational activities with them. She denied
that they are unkempt, attend school in dirty clothing, and that school officials had
complained about the girls’ cleanliness. She admitted, however, that A.I. still “has
accidents,” and that H.I. once had an accident at school and her mother brought her clean
clothing. Dancy further testified that she and appellant discipline the children through
time outs and sometimes spank them.
{¶25} Appellant testified that he married the mother of A.I. and H.I. under Islamic
law, but it was not a state-sanctioned marriage. He stated that A.I. was born in New
York, and that New York authorities took custody of the child immediately after her birth
because of a positive drug test for the infant. Several months later, he was awarded
custody of A.I. He stated that mother did have visits with A.I., and he wanted her to
have a relationship with the child, but that she had drug-related issues.
{¶26} Appellant next testified that he did not immediately comply with the request
of CCDCFS to establish paternity of H. I. because he was unsure if he was her father, and
he did not know that the county had taken custody of her. He established paternity after
learning that the foster mother was going to adopt H.I. He testified that he completed the
fingerprinting required under the Kinship Care package, but he claimed that the county
then lost this portion of the package and his attorney informed him that he did not need to
provide this information because he is H.I.’s biological father. He also testified that he
did not refuse to provide the county with his address, but that he did not want the mother
to know where he lived because she had previously made false allegations against him
and he feared that she may cause problems for him.
{¶27} Appellant also stated that H.I. lost a tooth because of a fall that occurred at
Morris’s house. He denied that the girls are dirty or unkempt and stated that he buys her
clothing and also gives the mother money for her clothing. He admitted that there had
been problems in arranging visits with H.I., but he stated that they were the result of the
mother not being available at the appointed time and the foster mother refusing to
transport H.I. He denied telling A.I. that her mother is dead, and also denied that he has
multiple wives. He did acknowledge that the children refer to another adult woman in
the home as “mother,” that he has had four Muslim marriages, it is permissible to be
married to more than one woman at the same time, and one may obtain a divorce by
simply writing or announcing it. He acknowledged that the forms he provided to the
school do not identify the mother, but he stated that this was because the mother is not the
residential parent of the girls.
{¶28} Appellant also claimed that the girls were molested while with the mother,
but that “this has been swept under the rug” by the county. He stated that he has five
children and that he takes them to MetroHealth Hospital when they are ill or need a
dentist. He denies treating A.I. differently than H.I., but he explained that he responds to
them differently based upon their different temperaments. He admitted that H.I. initially
did well in school, but then began to do poorly. He stated that this was the result of the
suspension.
{¶29} On November 4, 2011, the magistrate conducted in camera interviews of the
girls with the GAL present. The GAL informed the court that he met with the girls’
teachers on the previous day. He stated that A.I. is in first grade, and H.I. is in
kindergarten. He further stated that A.I. is getting decent grades, but that she has
behavioral issues and is coming to school dirty. H.I.’s teacher informed him that her
clothes do not appear to have been laundered, and on one occasion, the teacher “found
fleas on her[.]” The girl “comes to school dirty all the time [and] smells * * *. [H]er
lunches are inadequate . * * * It was a sandwich. * * * [T]here’s no vegetable, there’s no
drink.” Her teachers also informed the GAL that for two months, H.I. ate her lunch on
the way to school in the morning and, therefore, she had nothing to eat at lunchtime. H.I.
does not know her numbers, and forms provided by appellant listed the stepmother’s
information but did not identify the mother. The GAL stated that he was concerned that
the girls were not getting proper care at appellant’s house.
{¶30} The GAL stated that appellant explained that H.I. generally arrives at school
in time to eat breakfast there, but while on the bus, she has eaten the lunch sent with her.
Her brother now takes the lunch and gives it directly to the teacher. Appellant also
acknowledged that she has soiled herself, but he explained that it happened while she was
on the bus and not at his home. He also explained his efforts in dealing with the fleas
carried by the family’s pets.
{¶31} On November 8, 2011, the magistrate issued a decision finding that it is in
the best interest of H.I. and A.I. that the mother be designated residential parent and
legal custodian, and that appellant have visitation every other weekend. In relevant part,
the magistrate found:
Results of In-Camera Interview with the child, information received from
the child’s teacher and school officials, specifically mother’s allegations
that the child is unclean were substantiated by school officials. Further
concerns were raised as to the child being properly fed and having sufficient
lunch. The school official also advised Social Worker that they do not
have updated medical and dental information for the child. School
officials had never met the father prior to October 21, 2011. Further, on
the morning of the In-Camera Interview, the Court learned the child had not
been given breakfast and that her lunch that she takes to school consists of a
sandwich only, there is no drink, fruit or vegetable included in the lunch.
The Court also gave consideration to each parents’ living arrangement and
the number of people in each household interacting with the child on a daily
basis. Father was not forthcoming when asked about his marriages and
how many children he has. * * * Social Worker learned from the child that
she had been hit with a bamboo stick. When interviewed separately,
sibling confirmed that account. Father acknowledged [administering such
punishment and] believes such discipline is acceptable. * * * Father has
not been cooperative with the worker in completing her ongoing
investigation. CCDCFS Worker was not able to gain access to the father’s
home to speak with the child. CCDCFS Worker has investigated the
mother’s home and found it to be appropriate as the mother is able to meet
the child’s basic needs. Mother has been clean and sober for more than
eighteen (18) months. Social Worker does not believe the mother is a
threat to the health and safety of the child. The foregoing demonstrates to
the Court that the child’s basic needs are better met in the custody of the
mother.
{¶32} On November 28, 2011, the trial court approved and adopted the
magistrates’ decision.
{¶33} Appellant now appeals, assigning six errors for our review.3
{¶34} The following assignments of error are interrelated as they challenge the
award of legal custody of A.I. and H.I. to the mother and provide:
ASSIGNMENT OF ERROR ONE
The trial court abused its discretion in giving residential parenting and legal
custody to defendant [D.B.] due to [her] vast criminal activity.
ASSIGNMENTS OF ERROR TWO AND THREE
The trial court erred [and committed] an abuse of discretion by naming an
habitual drug user residential parent and legal custodian not in the best
interest of the [children].
ASSIGNMENT OF ERROR FOUR
3Appellantraises seven assignments of error, however, the second and third
assignments of error are identical, and therefore, we recite it only once herein.
The trial court erred and abused its discretion in assessing
defendant-appellee’s ability to care for the children.
ASSIGNMENT OF ERROR SEVEN
The trial court erred and abused its discretion when it did not give
residential parenting and legal custody to the father appellant.
{¶35} Within these assignments of error, appellant asserts that the trial court erred
in awarding the mother legal custody of A.I. and H.I. in light of the mother’s history of
drug dependency, her criminal record, and her limited income. He maintains that it is in
the children’s best interest for him to be designated their legal custodian.
{¶36} “Legal custody” is defined by R.C. 2151.011(B)(21) as follows:
[A] legal status that vests in the custodian the right to have physical care
and control of the child and to determine where and with whom the child
shall live, and the right and duty to protect, train, and discipline the child
and to provide the child with food, shelter, education, and medical care, all
subject to any residual parental rights, privileges, and responsibilities.
See In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971.
{¶37} Thus, unlike permanent custody, when a parent loses legal custody of a
child, he or she retains certain residual parental rights and also retains the right to request
return of legal custody in the future. In re Nice, 141 Ohio App.3d 445, 455,
2001-Ohio-3214, 751 N.E.2d 552 (7th Dist.).
{¶38} Once a child is adjudicated abused, neglected or dependent, a juvenile court
may award legal custody of the child to any parent or person who files a motion
requesting legal custody. R .C. 2151.353(A)(3). A trial court must determine the
appropriateness of legal custody in accordance with the best interest of the child as
supported by the evidence presented at the dispositional hearing. R.C. 2151.415; In re
C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188.
{¶39} R.C. 2151.414(D) sets forth the following factors to be considered in
making a best-interest-of-the-child determination:
(1) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home providers, and
any other person who may significantly affect the child;
(2) The wishes of the child, as expressed directly by the child or through the
child’s guardian ad litem, with due regard for the maturity of the child;
(3) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies
or private child placing agencies for twelve or more months of a
consecutive twenty-two month period ending on or after March 18, 1999;
(4) The child’s need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent
custody to the agency;
(5) Whether any of the factors in divisions (E)(7) to (11)[4] of this section
apply in relation to the parents and child.
4 These additional factors include: whether a parent has continuously and
repeatedly failed to substantially remedy the conditions causing the child to be
placed outside the child’s home, and has utilized available resources; whether a
parent has chronic chemical dependency that is so severe that it makes the parent
unable to provide an adequate permanent home for the child at the present time;
whether the parent has been convicted of or pleaded guilty to certain listed offenses
(which are offenses of violence, sex offenses or offenses against children); whether
the parent has repeatedly withheld medical treatment or food from the child when
the parent has the means to provide the treatment or food; whether the parent has
placed the child at substantial risk of harm two or more times due to alcohol or drug
abuse and has rejected treatment two or more times; whether the parent is
repeatedly incarcerated, and the repeated incarceration prevents the parent from
providing care for the child; whether the parent for any reason is unwilling to
provide food, clothing, shelter, and other basic necessities for the child.
{¶40} On appeal, we will not reverse an award of legal custody absent an abuse
of discretion. In re Nice, 141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d 552(7th Dist.). If the court’s decision on the children’s best interests regarding legal custody
is not supported by competent, credible evidence, then it is unreasonable and may be
reversed. Id.; Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus
(“[w]here an award of custody is supported by a substantial amount of credible and
competent evidence, such an award will not be reversed as being against the weight of the
evidence by a reviewing court”).
{¶41} In this matter, appellant raises concerns about the mother’s prior criminal
record. The record indicates that she tested positive for cocaine, methadone, and opiates,
has a drug problem, and her three other children have been removed from her care. In
addition, in May 2006, the mother pled guilty to robbery and having a concealed weapon.
The mother was forthright about her history and her offenses were not of such a
magnitude that they disqualified her from obtaining legal custody. See In re S.D., 8th
Dist. No. 97322, 2012-Ohio-2299 (father’s aggravated murder and other offenses
disqualified him from obtaining legal custody, and he and his family deceived the agency
about the father’s record in order to obtain legal custody of the child). Also, these
offenses, though extremely relevant to the consideration of the best interest of the child,
do not disqualify the mother from having legal custody of her daughter pursuant to R.C.
2151.414(D).
{¶42} Significantly, the record further indicates that at the time of the hearing, the
mother had made significant progress in turning her life around. Although the mother
unsuccessfully entered drug treatment prior to the birth of H.I., and relapsed during the
pregnancy, as of the date of the hearing, the mother had been sober for 18 months and
was in compliance with her case plan. She was employed, and she also received an
award for volunteering at Mujahid’s Hough/Heights Community facility.
{¶43} Moreover, although the mother had drug-related and other issues in the past,
she has shown remarkable progress. The record presented at the hearing also indicated
that the mother provides consistent care for the girls, gives them sufficient food, clean
clothes, appropriate medical care, and help with schoolwork. The record establishes that
the trial court conducted in camera interviews with A.I. and H.I., and carefully considered
their relationships with their parents, siblings, other parental figures, and teachers. The
court noted longstanding and serious concerns about the children’s meals, cleanliness,
clothing, and schoolwork while in the care of appellant. The record clearly indicates that
appellant has not completed the required Kinship Packet, which involves fingerprinting
the adults in the home and a safety inspection, and there were unanswered questions about
his living arrangements.
{¶44} With regard to the issue of the mother’s finances, appellant complains that
she has insufficient means to care for the girls because she receives $674 per month in
Social Security and pays $600 for rent. There is no evidence in the record as to these
sums. The record clearly indicates, however, that the mother receives public assistance
for food and housing, and has begun part-time employment.
{¶45} Based on the evidence presented, there is substantial competent and credible
evidence to support the judgment of the trial court. Therefore, the trial court did not
abuse its discretion in rendering its award of legal custody herein.
{¶46} These assignments of error are overruled.
ASSIGNMENT OF ERROR FIVE
The trial court erred [and abused] its discretion by leaning heavily on a very
vague report by the guardian ad litem and not adhering to the initial and
specific custody recommendation in favor of the father * * *.
{¶47} Pursuant to R.C. 2151.281, a trial court must appoint a GAL “to protect the
interest of a child in any proceeding concerning an alleged abused or neglected child and
in any [permanent custody proceeding].” R.C. 2151.281(B)(1). The GAL is an
investigator for the court. In re A.L., 6th Dist. No. L-10-1355, 2011-Ohio-2569.
Pursuant to R.C. 2151.281(I), the GAL must “perform whatever functions are necessary
to protect the best interest of the child.” Those functions include: “investigation,
mediation, monitoring court proceedings, and monitoring the services provided the child”
by the public or private agency having custody of the child and filing “any motions and
other court papers that are in the best interest of the child.” Id.{¶48} Ohio courts have held that a trial court may consider the report of a
court-appointed investigator despite the hearsay inherent in such a report. In re A.L. To
protect the parties’ due process rights, however, the trial court must make the guardian ad
litem available for direct and cross-examination. Id.{¶49} Finally, we note that the admission of evidence lies within the broad
discretion of the trial court. In re M.B., 8th Dist. No. 96724, 2011-Ohio-4645. A
reviewing court will uphold an evidentiary decision absent an abuse of discretion that has
affected the substantial rights of the adverse party or is inconsistent with substantial
justice. Id.{¶50} In this matter, we conclude that the trial court did not abuse its discretion in
considering the report and statement from the GAL. In his role as the investigator for the
court, the GAL investigated the girls’ condition, functioning at school, and the care
provided by the parents. The GAL advised the court on June 4, 2009, that H.I. was doing
well in foster care, but “mom is aware of and capable of providing for” H.I.’s needs, and
“[m]om appears up to the task of being reunified with her child.” The GAL
recommended reunification of H.I. with her mother, “with protective supervision to the
agency.” On November 4, 2011, the GAL informed the court that on the previous day,
he met with teachers at the girls’ school who expressed concerns about A.I.’s behavior,
H.I.’s cleanliness, and meals provided by appellant. School officials also informed him
that forms provided to the school by appellant did not identify the mother in school
documentation, and H.I.’s teachers stated that she does not know numbers. The GAL
stated that he was concerned that the girls were not getting proper care at appellant’s
house. In short, the GAL fulfilled his proper function in advising the court of the best
interest of the children.
{¶51} This assignment of error is without merit.
ASSIGNMENT OF ERROR SIX
The trial court erred [and abused] its discretion by falsely depicting Rebecca
Botchway as the social worker falsely factoring in her personal opinion as
that of a professional opinion.
{¶52} Initially, we note that a trial court has broad discretion in admitting or
excluding evidence and, absent an abuse of discretion and a showing of material
prejudice, a trial court’s ruling on the admissibility of evidence will be upheld. State v.
Martin, 19 Ohio St.3d 122, 129, 483 N.E.2d 1157 (1985).
{¶53} Evid.R. 602 provides as follows:
A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge of
the matter. Evidence to prove personal knowledge may, but need not,
consist of the witness’ own testimony. This rule is subject to the
provisions of Rule 703, relating to opinion testimony by expert witnesses.
{¶54} In addition, this court has specifically recognized that a social worker is
competent to testify to the contents of the agency’s case file pursuant to Evid.R. 803(6)
(hearsay exception for records kept in the ordinary course of business) and Evid.R.
803(8)(hearsay exception for public records and reports that set forth the activities of an
agency or office and contain matters observed which, pursuant to a duty of law, i.e., R.C.
5153.17, the agency has a duty to report). In re J.T., 8th Dist. Nos. 93240 and 93241,
2009-Ohio-6224. Here, the record reveals that the social worker has been working
with the family since 2004, and that she has participated in the many CCDCFS reviews of
this matter. She testified that the mother has made significant progress, has been sober
for 18 months, cooperates with all recommendations, and is employed. Botchway also
testified that she has met with H.I.’s teachers and they have expressed concerns about the
meals provided by appellant as well as his disciplinary methods. She learned that H.I. is
frequently unkempt, does not complete school work, and is at risk of failing. Botchway
also informed the court that the appellant did not complete the services requested by
CCDCFS and has refused numerous requests to complete the required Kinship Care
Packet. From all of the foregoing, the record clearly demonstrates that Botchway had
first-hand knowledge about H.I. and her parents, and she was competent to testify about
the case file and the matters on which she had a duty to report. The trial court did not
abuse its discretion in accepting her testimony.
{¶55} This assignment of error is without merit.
{¶56} Finally, insofar as appellant additionally complains that the trial court
abused its discretion in awarding him every-other weekend visitation, we find no abuse of
discretion. Berger v. Lu-Jean Feng, 8th Dist. No. 96513, 2012-Ohio-1041 (every other
weekend visitation not an abuse of discretion).
{¶57} Judgment affirmed.
It is ordered that appellant pay costs herein taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas - Juvenile 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.
MARY EILEEN KILBANE, JUDGE
MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR