In re Lu.B. , 2021 Ohio 4479 ( 2021 )

[Cite as In re Lu.B., 2021-Ohio-4479.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
In the Matter of: : Case No. 21CA1
Lu.B., Li.B., Le.B., La.B., :
DECISION AND
Adjudicated Dependent Children. : JUDGMENT ENTRY
RELEASED 12/17/21
______________________________________________________________________
APPEARANCES:
Kathryn Cornelius-Blume, Dagger, Johnston, Miller, Ogilvie & Hampson, LLP, Lancaster,
Ohio, for appellant.
Ryan Stickel, Hocking County Prosecutor’s Office, Logan, Ohio, for appellee State of
Ohio.
Charles A. Gerken, Logan, Ohio, for appellee T.B.
______________________________________________________________________
Hess, J.
{¶1} M.B. (“Mother”) appeals from a judgment of the Hocking County Court of
Common Pleas, Juvenile Division granting legal custody of her children, Li.B., La.B.,
Le.B., and Lu.B., to their paternal grandmother. Mother contends that the trial court erred
when it adjudicated Lu.B. a dependent child because its determination was based on the
court improperly taking judicial notice of the adjudication proceedings in her siblings’
cases. Mother also contends that the trial court’s legal custody decision was against the
manifest weight of the evidence. For the reasons that follow, we reject these contentions
and affirm the trial court’s judgment.
Hocking App. No. 21CA1 2
I. FACTS AND PROCEDURAL HISTORY
{¶2} Mother and T.B. (“Father”) have four children together: Li.B., La.B., Le.B.,
and Lu.B. On March 8, 2019, a magistrate ordered the director of South Central Ohio
Job and Family Services (the “Agency”) to take Li.B. (then age 7), La.B. (then age 4), and
Le.B. (then age 1) into protective custody. Three days later, the Agency filed complaints
in three cases alleging that Li.B., La.B., and Le.B. were abused, neglected, and
dependent and requesting a disposition of temporary custody to the Agency. The same
day, the court conducted a shelter care hearing and granted temporary custody of the
children to M.S., their paternal grandmother.
{¶3} On May 30, 2019, the court issued an entry adjudicating the children
dependent because “Father struck [Li.B.] in the eye leaving a mark,” the family home was
“deplorable [with] fecal matter, trash, dirty dishes, and clothes piles,” the home was
condemned by the health department and had a bed bug infestation, Mother had used
abusive language with a young child, and there were medical neglect issues. The court
ordered that the children remain in M.S.’s temporary custody with protective supervision
by the Agency and scheduled the matter for disposition. On June 25, 2019, the court
issued an entry ordering a disposition of temporary custody to M.S. with protective
supervision by the Agency. In August 2020, the Agency moved the court to grant M.S.
legal custody of the three children and terminate protective supervision by the Agency.
{¶4} In the meantime, in July 2019, Lu.B., was born, and the Agency filed a
complaint pertaining to her in a fourth case. At some point, the Agency had to dismiss
the complaint and refile it in October 2020 due to a scheduling issue. The complaint
Hocking App. No. 21CA1 3
alleged Lu.B. was a dependent child and requested a disposition of legal custody to M.S.
with protective supervision by the Agency.
{¶5} On December 4, 2020, the trial court conducted an adjudicatory hearing
regarding Lu.B. Marni Tucker, an Agency caseworker, testified that she had been the
assigned caseworker for the family since June 2018.1 Tucker testified that when Lu.B.
was born, the trial court had already found her siblings dependent, they were in the
temporary custody of M.S., and it was not safe to return them to Mother or Father. Tucker
testified that she visited the family home prior to becoming the assigned caseworker, and
after being assigned, she visited it every month until around August 2020, when Mother
and Father split up and moved out. Tucker testified that the home “was not acceptable
on any dates” she visited and “was actually condemned at one point.” Around the time
Lu.B. was born, the home was “deplorable” and “not fit for any children to live there.”
Tucker testified that the home was “filthy,” the kitchen floor had grease on it “that was
probably an inch thick,” there was trash all over the place, rodents could enter the home
through a crack in a door, and there was feces on the window sills. On some days, the
home was “completely trashed,” there were “dishes completely piled up,” and “the house
smelled.” Tucker testified that she is trained to evaluate homes for safety hazards and
that the rodent feces, roaches, filthy flooring, and manner in which certain items were
stored posed a safety hazard for the children.
{¶6} During cross-examination, Father’s attorney tried to elicit testimony from
Tucker about statements Mother made to another Agency employee about marks on
1 Tucker initially testified that she believed she was assigned in June 2019 but then corrected her testimony.
It appears her initial testimony may have been correct though because during the final hearing, which also
occurred on December 4, 2020, Tucker testified that she had been the assigned caseworker for “[a]bout a
year and a half.”
Hocking App. No. 21CA1 4
Li.B.’s face, and Mother’s attorney made a hearsay objection. After the trial court
sustained the objection, the Agency’s attorney asked the court to “take judicial notice of
[its] entry on May 30th, 2019 where the Court found that [F]ather struck [Li.B.] in the eye
and * * * all the things the Court found.” Mother’s attorney objected, asserting that the
court could not take judicial notice of orders in the other children’s cases or “facts that
were found in other cases.” The court granted the judicial notice request.
{¶7} The trial court orally found Lu.B. to be a dependent child and immediately
proceeded to conduct a dispositional hearing for Lu.B. and a hearing on the legal custody
motions pertaining to her siblings (the “final hearing”). Tucker testified that Father had
completed most of his case plan goals. However, he did not complete mental health
counseling or anger management treatment despite a referral being made through
Integrated Services, and he told Tucker that he felt it was in the children’s best interest to
stay with M.S. because he was “working on himself” and could not yet “take care of
himself let alone the children.” Tucker opined that Mother had not sufficiently completed
her case plan goals to get the children back. Mother completed parenting classes but did
not provide documentation to show she was engaged in mental health counseling or
anger management treatment until the final hearing. She failed to abstain from illegal
drug use. She “always tested positive for THC,” and Tucker did not believe she had a
medical marijuana card. With regard to the goal of maintaining suitable housing, Tucker
testified that the parents were evicted from the family home. Subsequently, Mother
reported that she was staying with various friends. However, the Agency received
information that she was staying with a boyfriend, and in September 2020, Tucker and
Pat Saniga went to that residence to conduct a home visit. Mother refused to let them
Hocking App. No. 21CA1 5
enter, claiming it “was not her home and that she was just staying there.” Later, Mother
gave Tucker a new address, but Tucker was not able to conduct a home visit prior to the
final hearing. She tried to visit at the end of October 2020, but Mother was not home.
Then, Tucker was out of the office for about a month due to illness. When Tucker returned
to work, Mother asked Tucker to not visit because she had been ill, and due to staffing
issues, no other caseworker was available to visit the home. Tucker testified Mother had
not been allowed to visit the children recently pursuant to a court order prohibiting visits
until she got mental health counseling. Tucker opined that Mother and Father could not
meet the children’s basic needs or provide them with a stable environment. Tucker
testified that the children were “doing great” in M.S.’s care, were doing “exceptionally well”
in school, and were excelling in counseling.
{¶8} Pat Saniga, the children’s court appointed special advocate and guardian
ad litem, opined that it was in the best interest of the children to grant M.S. legal custody
and give her discretion with regard to visitation. Father consistently told Saniga that he
was “not capable of really taking care of” the children and that the “best place for them”
is with M.S. Saniga had “very little contact” with Mother. Before Mother was evicted, they
only had contact when Saniga initiated it by going to the family home. After the eviction,
Mother “cut off all contact” with Saniga. At one point, Saniga learned where Mother was
living and went there with an Agency caseworker, but Mother said Saniga was not allowed
to enter without a warrant and could not talk to her unless her lawyer was present. The
week before the final hearing, Mother gave Saniga her current address and told Saniga
that she could visit if she took her shoes off and wore foot coverings because Mother
“keeps her house clean.” However, Saniga did not have an opportunity to visit the home
Hocking App. No. 21CA1 6
prior to the final hearing. Saniga testified that she has seen “amazing” positive changes
in the children while they have been in M.S.’s care. The children appear happy, their
educational and medical needs are being met, they are making progress in trauma
counseling, and they are loved and treated kindly in M.S.’s home.
{¶9} M.S. testified that she has had temporary custody of the children since
March 11, 2019. M.S. testified that while in her care, the children have attended all of
their medical appointments except a few which were cancelled due to illness. M.S.
testified that Li.B., La.B., and Le.B. are engaged in counseling and have done well in it.
However, after Mother calls, Li.B. typically “backslides” and needs extra counseling. M.S.
testified that the children love Father and love interacting with him, and if she received
legal custody, she would facilitate visitation between the children and both of their
parents.
{¶10} R.F., Mother’s father, testified that he is the property manager for six rental
properties, including Mother and Father’s former home and Mother’s current home, which
she shares with her boyfriend and his daughter. R.F. evicted Mother and Father from
their former home “because it was disgusting.” R.F. testified that he inspects Mother’s
current home once a month, and it has always been clean and is safe and adequate for
her children.
{¶11} The trial court issued one judgment entry for all four cases finding Lu.B. to
be a dependent child for the following reasons: “Home was deplorable and condemned.
Other children were already adjudicated dependent. Feces & trash in the home. Dishes
piled up. Grease in the kitchen. Crack in the door where rodents could enter. Unsafe
conditions for a child.” The trial court also granted M.S. legal custody of all four children.
Hocking App. No. 21CA1 7
The court found the grant of legal custody to be in the best interest of the children because
Mother did not have appropriate housing, tested positive for THC, failed to provide
“confirmation of counseling until court,” failed to provide the Agency access to her home,
and failed to visit the children recently due to her failure to complete mental health
counseling. In addition, the court found Father missed anger management treatment,
failed to follow through with Integrated Services, and agreed that M.S. should have legal
custody. The court granted Mother and Father visitation at the discretion of M.S. and
terminated protective supervision by the Agency.
II. ASSIGNMENTS OF ERROR
{¶12} Mother presents two assignments of error:
1. The trial court erred as a matter of law when it relied upon prior
proceedings to adjudicate [Lu.B.] dependent.
2. The trial court’s decision to grant legal custody of the minor children to
paternal grandmother was against the manifest weight of the evidence.
III. JUDICIAL NOTICE
{¶13} In her first assignment of error, Mother contends that the trial court erred as
a matter of law when it relied upon prior proceedings to adjudicate Lu.B. dependent.
Mother asserts that the trial court improperly took judicial notice of its May 30, 2019 entry
adjudicating Li.B., Le.B., and La.B. dependent because a court may not take judicial
notice of prior proceedings in other cases, even if they involve the same parties and court
as the present case. Mother maintains that the trial court relied on the siblings’
adjudication proceedings to adjudicate Lu.B. dependent, so we should reverse the
judgment regarding Lu.B. and remand for a new trial.
Hocking App. No. 21CA1 8
{¶14} Evid.R. 201 governs judicial notice of “adjudicative facts,” i.e., “the facts of
the case.” Evid.R. 201(A). “A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Evid.R. 201(B). “A court must take judicial
notice if requested by a party and supplied with the necessary information that would
allow it to do so. Evid.R. 201(D). Otherwise, it is within the trial court’s discretion to
take judicial notice. Evid.R. 201(C).” State v. Isaac, 4th Dist. Meigs No. 17CA9, 2018-
Ohio-5433, 127 N.E.3d 350, ¶ 12.
{¶15} Any error the trial court made in taking judicial notice of the May 30, 2019
entry constitutes harmless error which we must disregard. Civ.R. 61 provides:
No error in either the admission or the exclusion of evidence and no error
or defect in any ruling or order or in anything done or omitted by the court
or by any of the parties is ground for granting a new trial or for setting aside
a verdict or for vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.
“ ‘To find that substantial justice has not been done, a court must find (1) errors and (2)
that without those errors, the [factfinder] probably would not have arrived at
the same [decision].’ ” (Alterations sic.) Osborne v. Osborne, 4th Dist. Washington No.
13CA49, 2015-Ohio-2510, ¶ 35, quoting Hayward v. Summa Health Sys./Akron City
Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 25.
{¶16} Mother cannot show that the trial court probably would not have found Lu.B.
dependent if it had not taken judicial notice of its May 30, 2019 entry. Tucker testified to
all of the facts the trial court relied upon in finding that Lu.B. was a dependent child, i.e.,
Hocking App. No. 21CA1 9
that her siblings had been adjudicated dependent; that the family home had been
condemned, was in deplorable condition, and was unsafe for children; and information
about the home containing feces, trash, piles of dishes, grease, and a cracked doorway
through which rodents could enter. The trial court did not find Lu.B. dependent based on
any information that was exclusively in the May 30, 2019 entry, such as the court’s factual
findings that “Father struck [Li.B.] in the eye leaving a mark” or that “Mother had used
abusive language with a young child.” Accordingly, we overrule the first assignment of
error.
IV. LEGAL CUSTODY
{¶17} In her second assignment of error, Mother contends that the trial court’s
decision to grant M.S. legal custody was against the manifest weight of the evidence.
Mother maintains that by the final hearing, she had complied with her case plan. She
completed parenting education courses and attended anger management classes and
mental health counseling. Mother asserts that she was drug free except for THC and
suggests she might have had a medical marijuana card. Mother also claims that she
acquired stable housing. She asserts that the Agency was not able to evaluate her home
due to COVID-19 concerns, but her father confirmed the home is clean and has
“appropriate amenities for the children to ensure their needs and safety.” Mother asserts
that she had difficulty visiting the children “due to the mandated mental health counseling”
but still had contact with them via video.
A. Standard of Review
{¶18} “A trial court has broad discretion in proceedings involving the care and
custody of children.” In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302,
Hocking App. No. 21CA1 10
¶ 14. “Consequently, we review a trial court’s decision to award a party legal custody of
an abused, neglected, or dependent child for an abuse of discretion, and we afford its
decision ‘the utmost deference.’ ” In re E.S., 4th Dist. Pickaway Nos. 17CA16 and
17CA17, 2018-Ohio-1902, ¶ 23, quoting In re E.W., 4th Dist. Washington Nos. 10CA18,
10CA19, and 10CA20, 2011-Ohio-2123, ¶ 18. “Ordinarily, ‘[t]he term “abuse of
discretion” implies that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable.’ ” (Alteration sic.) Id., quoting In re H.V., 138 Ohio St.3d 408, 2014-
Ohio-812, 7 N.E.3d 1173, ¶ 8. However, in Davis v. Flickinger, 77 Ohio St.3d 415, 418-
419, 674 N.E.2d 1159 (1997), the Supreme Court of Ohio explained the abuse of
discretion standard that applies in child custody proceedings as follows:
The standard for abuse of discretion was laid out in the leading case
of C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d
261, 376 N.E.2d 578, but applied to custody cases in Bechtol v.
Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus:
“Where 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. (Trickey v.
Trickey [1952], 158 Ohio St. 9, 47 O.O. 481, 106 N.E.2d 772, approved and
followed.)”
The reason for this standard of review is that the trial judge has the
best opportunity to view the demeanor, attitude, and credibility of each
witness, something that does not translate well on the written page. As we
stated in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80-81,
10 OBR 408, 410-412, 461 N.E.2d 1273, 1276-1277:
“The underlying rationale of giving deference to the findings of the
trial court rests with the knowledge that the trial judge is best able to view
the witnesses and observe their demeanor, gestures and voice inflections,
and use these observations in weighing the credibility of the proffered
testimony. * * *
“***
Hocking App. No. 21CA1 11
“ * * * A reviewing court should not reverse a decision simply
because it holds a different opinion concerning the credibility of the
witnesses and evidence submitted before the trial court. A finding of an
error in law is a legitimate ground for reversal, but a difference of opinion on
credibility of witnesses and evidence is not. The determination of credibility
of testimony and evidence must not be encroached upon by a reviewing
tribunal, especially to the extent where the appellate court relies on
unchallenged, excluded evidence in order to justify its reversal.”
This is even more crucial in a child custody case, where there may
be much evident in the parties’ demeanor and attitude that
does not translate to the record well.
(Emphasis and omissions sic.) “While we might be ‘perplexed’ by this hybrid abuse-of-
discretion-manifest-weight standard, the Ohio Supreme Court has not overruled,
modified, or clarified the standard set forth in Bechtol or Davis.” E.S. at ¶ 23, quoting In
re A.L.P., 4th Dist. Washington No. 14CA37, 2015-Ohio-1552, ¶ 23 (Harsha, J.,
concurring). “We therefore continue to apply this standard when reviewing child custody
matters.” Id.B. Legal Principles
{¶19} Once a court adjudicates a child dependent, R.C. 2151.353(A)(3)
authorizes it to make an order of disposition awarding “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 or is identified as a proposed legal custodian in a
complaint or motion filed prior to the dispositional hearing by any party to the
proceedings.” In addition, the court “may terminate or modify a prior dispositional order
and award legal custody to a nonparent if doing so serves the child’s best interest.” E.S.,
4th Dist. Pickaway Nos. 17CA16 and 17CA17, 2018-Ohio-1902, at ¶ 27.
Hocking App. No. 21CA1 12
{¶20} “R.C. 3109.04 specifies the best interest factors courts must consider when
determining whether to award legal custody to a nonparent.” Id. at ¶ 28. The court must
consider
all relevant factors, including, but not limited to:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers * * * regarding the
child’s wishes and concerns as to the allocation of parental rights and
responsibilities concerning the child, the wishes and concerns of the child,
as expressed to the court;
(c) The child’s interaction and interrelationship with the child’s parents,
siblings, and any other person who may significantly affect the child’s best
interest;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the situation;
(f) The parent more likely to honor and facilitate court-approved parenting
time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support payments,
including all arrearages, that are required of that parent pursuant to a child
support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any criminal offense
involving any act that resulted in a child being an abused child or a
neglected child; whether either parent, in a case in which a child has been
adjudicated an abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful act that is the
basis of an adjudication; whether either parent or any member of the
household of either parent previously has been convicted of or pleaded
guilty to a violation of section 2919.25 of the Revised Code or a sexually
oriented offense involving a victim who at the time of the commission of the
offense was a member of the family or household that is the subject of the
current proceeding; whether either parent or any member of the household
of either parent previously has been convicted of or pleaded guilty to any
offense involving a victim who at the time of the commission of the offense
was a member of the family or household that is the subject of the current
proceeding and caused physical harm to the victim in the commission of the
Hocking App. No. 21CA1 13
offense; and whether there is reason to believe that either parent has acted
in a manner resulting in a child being an abused child or a neglected child
(i) Whether the residential parent or one of the parents subject to a shared
parenting decree has continuously and willfully denied the other parent’s
right to parenting time in accordance with an order of the court;
(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
R.C. 3109.04(F)(1).
C. Analysis
{¶21} The trial court did not abuse its discretion when it granted legal custody to
M.S. because a substantial amount of credible and competent evidence supports the
conclusion that it is in the children’s best interest for M.S. to have legal custody. With
respect to the parents’ wishes, Mother wanted the children returned to her, but Father
wanted them to remain with M.S. The record does not reflect that the trial court
interviewed the children in chambers about their wishes and concerns. There is evidence
that the children have some relationship with Mother and have a good relationship with
M.S. and Father. There is evidence that the children are well-adjusted to M.S.’s home
and school, that M.S. takes care of their medical needs, and that they have done well in
counseling even though Li.B. requires additional counseling after phone calls with Mother.
In addition, there is evidence Mother did not meet all of her case plan goals. She tested
positive for THC, and there is no evidence she had a prescription for it. There is evidence
she delayed going to anger management treatment and mental health counseling, which
impacted her ability to visit the children. Although Mother claims she acquired appropriate
housing for the children, the trial court was free to disbelieve her father’s testimony to that
Hocking App. No. 21CA1 14
effect. Accordingly, we conclude that the trial court did not err when it granted legal
custody to M.S., and we overrule the second assignment of error.
V. CONCLUSION
{¶22} Having overruled the assignments of error, we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Hocking App. No. 21CA1 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.