In re E.J. ( 2024 )

[Cite as In re E.J., 2024-Ohio-2421.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: E.J. : APPEAL NO. C-240171
TRIAL NO. F20-455Z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 26, 2024
Christopher P. Kapsal, for Appellant Mother,
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Daniel Monk,
Assistant Prosecuting Attorney, for Appellee the Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Megan E. Busam,
Assistant Public Defender, for the Guardian ad Litem for the minor child.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} Appellant Mother appeals from the juvenile court’s grant of permanent
custody of her son E.J. to the Hamilton County Department of Job and Family Services
(“HCJFS”). Mother asserts that the juvenile court improperly placed the burden of
proof on her and failed to conduct an independent review of the magistrate’s decision.
She also asserts that the juvenile court’s decision is supported by insufficient evidence
and against the manifest weight of the evidence.
{¶2} Because the juvenile court repeatedly cited an appellate standard of
review and determined that the magistrate did not abuse his discretion when
discussing the merits of Mother’s objections, we hold that the juvenile court failed to
conduct an independent review of the record. Further, we hold that the juvenile court
erred by adopting the magistrate’s decision without modifying the portions of the
magistrate’s decision that shifted the burden of proof to Mother. We reverse the
juvenile court’s judgment and remand the cause for the juvenile court to
independently review the record and to consider whether HCJFS met its clear-and-
convincing burden of proof.
I. Facts and Procedure
a. Procedural History
{¶3} This parental-termination case began in April 2020, when HCJFS
obtained an ex parte emergency order for custody of Mother’s infant son E.J. The next
day, HCJFS moved for temporary custody of E.J.—the court granted that motion. The
juvenile court adjudicated E.J. dependent in August 2020 and placed him into
HCJFS’s temporary custody.
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{¶4} In March 2022, HCJFS moved for permanent custody of E.J. The
magistrate issued a decision granting HCJFS’s permanent-custody motion, to which
Mother objected. The juvenile court overruled Mother’s objections and adopted the
magistrate’s decision, finding that the magistrate “properly determined the factual
issues and appropriately applied the law.” It granted permanent custody of E.J. to
HCJFS. Mother appeals.
b. Facts
{¶5} Mother gave birth to E.J. in August 2018. (His father is unknown.)
Mother has struggled with substance-abuse issues for most of her life—her parents
gave her drugs when she was only seven years old. Mother went into the foster-care
system after her parents died from drug-related complications. She testified that she
stopped using drugs when she was six-weeks pregnant with E.J. and remained off
drugs for around 15 months while living at a residential drug-treatment facility. But
following the onset of the COVID-19 pandemic, her substance-abuse meetings were
shut down and Mother relapsed in April 2020, which is when HCJFS moved for
emergency custody of E.J.
{¶6} HCJFS placed E.J. with a foster family, where he has lived during the
entirety of this case. E.J.’s foster mother testified that E.J. is bonded with her, E.J.’s
foster father, and their extended family. E.J.’s foster mother stated that E.J. has
referred to her as “Mom” “almost since he first came to us.” E.J.’s foster family would
like to adopt him.
{¶7} E.J.’s foster mother testified that when E.J. came into her care, he was
unable to cry or express negative emotions. The foster parents placed E.J. in therapy.
E.J.’s foster mother takes him to his therapy sessions—Mother has not attended any
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OHIO FIRST DISTRICT COURT OF APPEALS
of his sessions. Recently, however, E.J. changed therapists and his new therapist’s
schedule could not accommodate Mother’s visitation times. Mother stated that she
supported E.J.’s participation in therapy and wanted him to continue being in therapy.
When asked if she had investigated potential therapy providers, Mother responded,
“Yeah Mahajan’s”—Mahajan Therapeutic (“Mahajan”) was the mental-health provider
Mother was using at the time of the hearing. Despite this testimony, the magistrate’s
decision stated that Mother had not “explored or presented options for mental health
treatment and services for E.J.”
{¶8} The magistrate found that Mother had participated in five substance-
abuse treatment programs but failed to complete any of those programs. Mother
testified that she had engaged in “six or seven” different drug-treatment programs over
five years. Before the case began, Mother completed treatment at a residential
treatment center. Then, following her relapse in April 2020, Mother received both
drug treatment and mental-health treatment at Brightview. Once Brightview stopped
providing mental-health treatment, Mother was referred to Talbert House. Mother left
Talbert House shortly after starting there and began treatment at Woodhaven
Residential Treatment Center in May 2022 (“Woodhaven”), but she was discharged
from Woodhaven in July 2022 because, according to a caseworker, Mother exhibited
hallucinations and aggressive behavior. Mother then began treatment at Cardinal
Treatment Facility (“Cardinal”) in Ironton, Ohio, in August 2022.
{¶9} Mother experienced mental-health issues during the pendency of the
case. She had two psychiatric hospital admissions at the University of Cincinnati
Medical Center (“UC Medical Center”). In November 2021, Mother presented at UC
Medical Center’s emergency room due to a mental-health episode in which she showed
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OHIO FIRST DISTRICT COURT OF APPEALS
signs of paranoia and psychosis. Medical providers prescribed Mother lithium and
Zyprexa and referred her to Talbert House at discharge, but she did not follow up with
Talbert House or take the prescribed medication. Mother was readmitted to UC
Medical Center in January 2022 again due to paranoia and psychosis. HCJFS filed its
motion for permanent custody shortly after Mother’s second admission.
{¶10} Mother left Cincinnati and moved in with her stepmother in
Chesapeake, Ohio, in April 2022. She entered an in-patient drug-treatment program
at Woodhaven. HCJFS conducted a home study of her stepmother’s home, which was
unsuccessful.
{¶11} Mother went “missing for eight months” from May 2022 through
February 2023. She did not visit or see E.J. during this period. Mother requested that
visitation resume in October 2022, and in February 2023, Mother resumed supervised
visitation. Mother’s caseworker testified that the visits went well, that Mother acted
appropriately with E.J., and that E.J. was always excited to see Mother.
{¶12} E.J.’s foster mother and Mother’s caseworker testified that Mother’s
visits and absences increased E.J.’s anxiety. E.J.’s foster mother testified that E.J.
would get very excited and anxious before Mother’s visits and that E.J. experienced an
increase in nightmares when Mother’s visits resumed in February 2023. Mother’s
caseworker testified that E.J.’s anxiety was related to uncertainty about whether visits
with Mother would continue or if Mother would leave again.
{¶13} At the time of the hearing, Mother was living at Cardinal. Mother had
successfully completed an in-patient program and was in Cardinal’s “transitional”
program in which she lived in independent housing and paid $200 a month in rent.
She participated in alcohol and drug (“AOD”) counseling at Cardinal and received
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mental-health treatment at Mahajan. Amber Fitzpatrick, Mother’s AOD counselor at
Cardinal, testified that Mother had been receiving treatment at Cardinal for 15 months
and that Mother’s participation in the program was “100 percent.” Fitzpatrick stated
that Mother had been her most successful client. Mother had passed multiple random
drug screens. Additionally, Mother obtained employment at a local restaurant through
Cardinal, worked 40-50 hours a week, and had recently been promoted.
{¶14} Fitzpatrick testified that children were permitted to live in transitional
housing at Cardinal, but no child had ever done so. The transitional-housing program
provided houses for four or fewer individuals who had completed the in-patient
program at Cardinal. Fitzpatrick testified that if Mother relapsed while in transitional
housing, she would be removed from the transitional housing and given the option of
either going back to in-patient housing—where children were not permitted—or leave
the program entirely. Mother stated that she was staying in transitional housing to
save money but did not provide a timeline for when she planned to move out.
{¶15} Mother testified that she was receiving mental-health treatment at
Mahajan and that her Mahajan treatment providers determined that Mother had been
misdiagnosed and improperly prescribed Depakote, which contributed to her mental-
health episodes and hospital admissions in 2021 and 2022. Her providers at Mahajan
did not testify and Mother did not submit any of her medical records. Mother
explained that she was taking four medications, three of which were for her mental
health.
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II. Law and Analysis
a. The juvenile court did not independently review the record
{¶16} In her first assignment of error, Mother argues that the juvenile court
abused its discretion by failing to review de novo the magistrate’s decision following
Mother’s objections.
1. Standard of review
{¶17} Appellate courts generally review juvenile courts’ parental-termination
determinations under a sufficiency-of-the-evidence or a manifest-weight-of-the-
evidence standard of review. In re Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, 230
N.E.3d 1123, ¶ 11. But when an appeal of a parental-termination decision presents
questions of law, our review is de novo. In re L.E.S., 2024-Ohio-165, 233 N.E.3d 1259,
¶ 14 (1st Dist.). Whether the trial court applied the appropriate legal standard is a legal
question that we review de novo. See State v. Williams, 1st Dist. Hamilton No. C-
190380, 2020-Ohio-5245, ¶ 5 (“We review de novo whether the trial court applied the
proper legal standard.”)
2. Objections to a magistrate’s decision under Juv.R. 40
{¶18} Juv.R. 40 mandates that upon a timely objection to a magistrate’s
decision, the juvenile court must “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). Juvenile courts must review the
facts and determine the issues de novo. In re Y.H., 1st Dist. Hamilton No. C-230132,
2023-Ohio-2272, ¶ 32, citing In re A.S., 1st Dist. Hamilton No. C-180056, 2019-Ohio-
2359, ¶ 20. Accordingly, juvenile courts may not defer to the magistrate. In re J.P.,
10th Dist. Franklin No. 16AP-61, 2016-Ohio-7574, ¶ 21.
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{¶19} This court presumes that the juvenile court complied with Juv.R.
40(D)(4)(d) when the record demonstrates that the juvenile court independently
reviewed the evidence, acknowledged the applicable statutes, and reached its
conclusions based on clear and convincing evidence. In re A.M., 166 Ohio St.3d 127,
2020-Ohio-5102, 184 N.E.3d 1, ¶ 40.
{¶20} But a juvenile court reviewing a magistrate’s decision for an abuse of
discretion constitutes error. Jones v. Smith, 187 Ohio App.3d 145, 2010-Ohio-131, 931
N.E.2d 592, ¶ 13 (4th Dist.). Magistrates are not independent officers of the court;
rather, they are subordinate officers of the trial court. In re J.P. at ¶ 21. As such,
juvenile courts should not presume a magistrate’s decision’s validity. Jones at ¶ 13.
{¶21} In Jones, the Fourth District held that the juvenile court erred in
adopting the magistrate’s decision where the trial court’s entry stated, “The Court finds
the Magistrate properly considered the issues before the Court and rendered a
decision, which did not indicate an abuse of discretion. The Magistrate’s Decision was
not unreasonable, unconscionable, or arbitrary as the focus on the decision was based
upon the best interest of the child.” Jones at ¶ 8. The Jones court could not conclude
that the trial court independently reviewed the issues without deferring to the
magistrate. It therefore reversed the trial court’s judgment and remanded the cause to
allow the juvenile court to independently review the objections. Id. at ¶ 15.
{¶22} In In re J.P., the Tenth District similarly found that the juvenile court
erred where its entry overruling objections to the magistrate’s entry contained
“numerous instances where the juvenile court unequivocally applied an appellate
standard of review.” In re J.P., 10th Dist. Franklin No. 16AP-61, 2016-Ohio-7574, at ¶
24. The court distinguished its prior cases in which it had determined that the juvenile
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court’s statements that the magistrate had not abused his discretion merely reflected
the juvenile court’s “concurrence” with the magistrate rather than the juvenile court’s
“deference” to the magistrate. Id. at ¶ 16, 24, citing In re H.D.D., 10th Dist. Franklin
Nos. 12AP-134, 12AP-135, 12AP-136, 12AP-137, 12AP-146, 12AP-147, 12AP-148 and
12AP-149, 2012-Ohio-6160, ¶ 94. While the juvenile court’s entry initially
acknowledged the requirement for an independent review, the juvenile court’s
repeated references to an appellate standard of review rendered the decision “at best,
ambiguous with regard to the standard of review” and prevented the appellate court
from “affirmatively determin[ing] whether the court conducted an independent review
as required by Juv.R. 40 and Civ.R. 53.” Id. at ¶ 31-32. The appellate court reversed
the juvenile court’s judgment and remanded the cause for the juvenile court to apply
the correct standard to the objections to the magistrate’s decision. Id. at ¶ 33.
{¶23} Here, the juvenile court initially noted the correct requirement for
independent review. But following its recitation of the independent-review
requirement, the juvenile court framed Mother’s objection to the magistrate’s
weighing of the best-interest factors as a “manifest weight argument” and reviewed
the magistrate’s decision for an abuse of discretion. The juvenile court further stated,
“Judgments supported by some competent, credible evidence going to all the essential
elements of the case will not be reversed by a reviewing court as being against the
manifest weight of the evidence.” The juvenile court also explained that, in making a
custody determination, the magistrate must consider the factors set out in R.C.
3109.04(F), rather than R.C. 2151.414(D). The court again described Mother’s
argument as a manifest-weight challenge and set out the abuse-of-discretion standard.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} The guardian ad litem (“GAL”) asserts the juvenile court did not fail to
independently review the record but instead addressed the argument raised in
Mother’s objections. The GAL argues that “abuse of discretion and weight of the
evidence * * * are not exclusively appellate in nature and are regularly raised on
objection, as is the case here.” While in her objections Mother stated that the
magistrate’s decision “was contrary to the manifest weight of the proceedings,”
Mother’s full objection stated, “The issue in this Case is whether the State met their
burden and if the Court properly weighed the evidence in finding Termination of
Parental Rights was proper and in the best interest of the child.” Mother specifically
cited law explaining that the juvenile court must conduct an independent review. She
never argued that the magistrate abused his discretion. Therefore, while Mother’s
objection generally asserted the magistrate improperly weighed the best-interest
factors, the GAL is incorrect in stating that the juvenile court responded to Mother’s
raising a manifest-weight challenge.
{¶25} We cannot determine whether the juvenile court independently
reviewed the magistrate’s decision when it overruled Mother’s objections. While the
juvenile court started and ended its decision with a boiler-plate recitation of the
correct standard, its substantive discussion of Mother’s objections exclusively
referenced an appellate standard of review. The court additionally cited the wrong
statute in its entry.
{¶26} We sustain Mother’s first assignment of error, reverse the juvenile
court’s judgment, and remand the case for the juvenile court to conduct an
independent review of the magistrate’s decision.
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OHIO FIRST DISTRICT COURT OF APPEALS
b. The juvenile court improperly shifted the burden of proof to Mother
{¶27} In her second assignment of error, Mother argues that the magistrate
improperly placed the burden of proof on her and that the trial court improperly
adopted the magistrate’s decision without correcting this error.
1. Burden of proof in a permanent-custody proceeding
{¶28} Before a juvenile court may grant a motion for permanent custody of a
child, it must find by clear and convincing evidence that (1) granting permanent
custody to the agency is in the child’s best interest, and (2) any one of the R.C.
2151.414(B)(1)(a)-(e) factors apply. R.C. 2151.414(B)(1). The agency moving for
permanent custody bears the burden of proving that permanent custody is in the
child’s best interest. In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308,
¶ 26. The agency’s burden of proving its case by clear and convincing evidence is
constitutionally mandated. Santosky v. Kramer, 455 U.S. 745, 747-748, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982) (“Before a State may sever completely and irrevocably the
rights of parents in their natural child, due process requires that the State support its
allegations by at least clear and convincing evidence.”).
{¶29} Clear and convincing evidence is evidence that “ ‘produce[s] in the mind
of the trier of facts a firm belief or conviction as to the facts sought to be established.’ ”
In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting
Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). If the moving party
meets its clear-and-convincing burden, the nonmoving party must produce evidence
that renders the movant’s evidence less than clear and convincing. In re Gordon, 3d
Dist. Hancock Nos. 5-04-22 and 5-04-23, 2004-Ohio-5889, ¶ 11, quoting In re
Holbert, 10th Dist. Franklin No. 83AP-704, 1984 Ohio App. LEXIS 8694, 8 (Mar. 6,
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1984). The burden of persuasion remains with the agency throughout the entire
proceeding. Id.{¶30} Here, the magistrate found that Mother had not “fully corrected
concerns related to her mental health.” The magistrate discussed HCJFS’s evidence of
Mother’s two hospital admissions for delusions and psychosis at UC Medical Center
in November 2021 and January 2022.1 The magistrate also noted Mother’s absence
from E.J.’s life from May 2022 through February 2023 during which Mother stated
she was suffering from delusions and psychotic symptoms.
{¶31} In his decision, the magistrate stated, “Some evidence was presented
through mother, which did NOT reach the level of clear and convincing evidence, and
contained unverified hearsay, which will also be addressed within.” (HCJFS did not
object to Mother’s testimony on hearsay grounds.) Later, the magistrate explained that
the only evidence Mother offered as to her mental health was her own testimony,
which included statements the juvenile court deemed hearsay. The magistrate found
that “[t]his evidence is NOT clear and convincing, and does NOT leave this magistrate
with the firm conviction in his mind that mother’s mental health is no longer a danger
or safety risk.” The juvenile court adopted the magistrate’s decision without modifying
these findings.
{¶32} The GAL argues that, when the magistrate’s decision is read in its
entirety, it shows that the magistrate simply found that HCJFS met its burden by clear
and convincing evidence and did not shift the burden of persuasion to Mother. We
disagree. The magistrate clearly stated that Mother’s evidence of her mental health
1 The magistrate’s decision stated that Mother’s hospitalization occurred in June 2020. While
Exhibit 1 does indicate that Mother presented at UC Medical Center emergency department on that
date, her chart did not indicate that Mother was suffering from any mental-health issues.
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was not clear and convincing. While the magistrate did find that HCJFS’s evidence
met the clear-and-convincing standard, he also determined that Mother failed to
present clear and convincing evidence that she had corrected her mental-health
concerns. The juvenile court did not correct this error and, at most, stated that “the
Magistrate did not find some of Mother’s testimony credible regarding her mental
health.”
{¶33} In sum, the magistrate misstated the law and improperly shifted the
burden of proof to Mother to rebut HCJFS’s case by clear and convincing evidence.
Because the juvenile court adopted the magistrate’s decision without correcting this
error, we sustain Mother’s second assignment of error.
c. Mother’s weight and sufficiency arguments are moot
{¶34} In her third assignment of error, Mother argues the trial court erred in
finding that it was in E.J.’s best interest to grant HCJFS’s motion for permanent
custody. Mother asserts that the juvenile court’s judgment was not supported by
sufficient evidence and was against the manifest weight of the evidence.
{¶35} Given our disposition of Mother’s first and second assignments of error,
Mother’s third assignment of error is moot. But we note that this case highlights how
important it is for juvenile courts to independently review the record. What is in a
child’s best interest is a “fluid concept, as it involves the child’s continually-changing
need for appropriate care.” In re M.H., 2023-Ohio-3776, 226 N.E.3d 584, ¶ 49 (1st
Dist.). A best-interest determination requires consideration of the facts as they exist
at the time of the termination hearing. While the evidence suggests that Mother has
struggled with mental-health and substance-abuse issues, this case is not as clear cut
as many other parental-termination cases. And without the juvenile court’s
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independent review, we are unable to effectively perform our role as an appellate court
in reviewing “the discretionary choice the trial court made when it adopted its
magistrate’s decision.” See Quick v. Kwiatkowski, 2d Dist. Montgomery No. 18620,
2001-Ohio-1498.
{¶36} Mother’s third assignment of error is moot, and we do not address it.
III. Conclusion
{¶37} For the foregoing reasons, we sustain Mother’s first and second
assignments of error, reverse the trial court’s judgment, and remand the cause for
further proceedings. Mother’s third assignment of error is moot, and we do not
address it.
Judgment reversed and cause remanded.
BERGERON and KINSLEY JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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