In re Z. Children , 2019 Ohio 1617 ( 2019 )

[Cite as In re Z. Children, 2019-Ohio-1617.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: Z. CHILDREN, C. CHILD : APPEAL NO. C-190026
TRIAL NO. F16-245z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 1, 2019
James A. Anzelmo, for Appellant Mother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jacqueline O’Hara,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Jessica Moss, Assistant
Public Defender, Guardian ad Litem for minor children,
Aaren Meehan, In re Williams Attorney for J.Z.1.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In this parental termination case, Mother comes before us presenting
essentially three types of challenges to the underlying result: (1) she procedurally
attacks how the hearing unfolded; (2) she raises evidentiary and related issues that
speak to the merits of the termination decision; and (3) if her rights are to be
terminated, she questions who should receive custody of her children. After a
thorough review of the record and applicable authorities, we conclude that each of
these challenges fail, and we accordingly affirm the juvenile court’s decision to
terminate Mother’s parental rights.
I.
{¶2} This case involves Mother and her three children, J.Z.1, J.Z.2, and
J.Z.3. Hamilton County Job and Family Services (“HCJFS”) first came into contact
with the family when relatives brought one of Mother’s children (not part of this
appeal) to Cincinnati Children’s Hospital and Medical Center after discovering burn
scars on the child’s face, wrists, and thighs. Mother explained that, several days
earlier, J.Z.1 had set fire to a pillow while the other child was sleeping on it, causing
the burns. Medical examiners noted that the burns required immediate medical
treatment at the time this incident occurred. In the aftermath of this event, HCJFS
received an ex parte order of emergency custody for J.Z.1 and J.Z.2 (as well as the
child not part of this appeal). Within a few months, the court adjudicated both J.Z.1
and J.Z.2 dependent and HCJFS gained temporary custody of the two children in
May 2016.
{¶3} Subsequent to these events, HCJFS offered Mother services including
a Diagnostic Assessment of Functioning (“DAF”). During the initial DAF, Mother
received a diagnosis of adjustment disorder, but she refused the recommended
individual counseling and declined to take a drug screen. Soon after, HCJFS ordered
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another DAF subsequent to Mother testing positive for cocaine while pregnant with
J.Z.3. The DAF assessor recommended random drug screens through HCJFS, yet
Mother insisted that the cocaine use was only a one-time occurrence. That turned
out to be inaccurate, however, as both Mother and J.Z.3 tested positive for cocaine at
the time of his birth in July 2016. That prompted HCJFS to secure immediate
physical custody of J.Z.3. Mother was then required to complete a third DAF, during
which the assessor diagnosed her with “major depressive disorder” and “cocaine use
disorder” and recommended outpatient substance-abuse treatment and individual
counseling.
{¶4} Following these events, Mother began counseling at the Talbert House,
parenting services at Beech Acres, supervised visits with her children at the Family
Nurturing Center, and toxicology screens. While aspects of Mother’s engagement
with these services is under dispute, the record reflects that Mother missed over half
of her scheduled appointments with her children (failing to see her children between
May 2017 and November 2017), admitted to not engaging in group therapy, refused
medication, and tested positive for cocaine on two occasions after discharge from the
Talbert House (and subsequently missing numerous drug screens).
{¶5} Moreover, although the children have extensive needs, Mother did not
attend a single one of her children’s medical appointments, including her oldest
child’s medical procedure for hearing loss. The youngest, J.Z.3, has two to three
appointments per week in physical, swim, and occupational therapy (doctors suspect
he has cerebral palsy), and J.Z.2 also must attend weekly physical therapy, both due
to medical and sensory issues. The eldest child has a diagnosis of ADHD, PTSD, and
ODD, for which he receives medication, and he has severe behavioral issues, which
often turn violent. On occasions, he has threatened to kill a foster sibling, acted
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violently towards his siblings, and set fire to his two-year-old brother’s pillow while
he was sleeping on it.
{¶6} In March 2017, J.Z.3 was adjudicated abused, neglected, and
dependent and placed in the temporary custody of HCJFS, still residing with the
same foster family since his birth. J.Z.1 and J.Z.2, between February and September
2016, lived with Carolyn Crossty, the aunt of the child not involved in this appeal,
and J.Z.2 returned to Ms. Crossty’s home in June 2017 until the trial. Because of
J.Z.2’s custodial history with Ms. Crossty, HCJFS sought a grant of legal custody of
her to Ms. Crossty at trial. After leaving Ms. Crossty’s care, J.Z.1 moved to a foster
home, where he remained until trial.
{¶7} HCJFS eventually moved for permanent custody of J.Z.1 and J.Z.3 and
legal custody of J.Z.2 to Ms. Crossty in January 2018. A few days after HCJFS’s
filing, the maternal Grandmother filed for permanent custody of J.Z.1 and J.Z.3. The
hearing extended over four days, with the magistrate entertaining testimony from a
range of individuals, including Mother’s case manager, a Fair Access to Integrated
Recovery assessment specialist, the maternal Grandmother, J.Z.3’s foster parent, Ms.
Crossty, and Mother herself.
{¶8} The magistrate heard testimony concerning Mother’s consistent
refusal to partake in group therapy at Talbert House and complete addiction services
(both of which Mother admitted to), the countless medical appointments and
supervised visits missed (despite being informed of their time and place), her
repeated positive drug screens, her current housing problems, and recent
unemployment. Moreover, witnesses testified about the children’s litany of special
needs, the numerous medical appointments the children have per week, and J.Z.3’s
potential symptoms of cerebral palsy. After the hearing, the magistrate granted
permanent custody of J.Z.1 and J.Z.3 to HCJFS and legal custody of J.Z.2 to Ms.
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Crossty. Upon reviewing the magistrate’s decision and hearing Mother and
Grandmother’s objections, the juvenile court adopted the decision. In wake of this
ruling, Mother appeals this order terminating her parental rights, presenting five
assignments of error.
II.
{¶9} On appeal, Mother first fashions a procedural argument, challenging
the court’s decision to hold both the permanent custody and legal custody hearings
simultaneously. Yet Mother cites no case law or other authority to support why a
separate hearing was necessary in these circumstances. Instead, Mother essentially
makes an evidentiary argument, concluding that since the Rules of Evidence apply in
permanent custody cases under Juv.R. 34(I) (but not in legal custody hearings), the
trial court’s decision to allow both the legal custody dispute for J.Z.2 and the
permanent custody dispute for J.Z.1 and J.Z.3 to be tried together exposed the
permanent custody hearing to the taint of prejudicial hearsay from the legal custody
proceedings. Because Mother’s fifth assignment of error challenges the admission of
hearsay during the hearing, we address her first and fifth assignments of error
together.
{¶10} While Mother is correct that, pursuant to Juv.R. 34(I), the “Rules of
Evidence shall apply in hearings on motions for permanent custody,” the magistrate
safeguarded against any potential prejudice, explicitly stating that the court would
use the stricter Rules of Evidence as “the higher standard” for both the permanent
and legal custody motions. In the absence of any rule or authority precluding
convening these proceedings together, we view this as a basic case management
decision subject to abuse of discretion review. Because the magistrate took
appropriate precautions to safeguard the permanent custody hearing from
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OHIO FIRST DISTRICT COURT OF APPEALS
prejudicial hearsay, we find no abuse of discretion in the structure of the hearing and
accordingly overrule the first assignment of error.
{¶11} Turning to Mother’s hearsay argument, she claims the trial court
permitted inadmissible hearsay in the hearing through the vehicle of reports from
Talbert House and Beech Acres, and that the court improperly relied on these reports
to make its parental termination decision. But Mother’s brief fails to develop this
argument other than simply citing the reports and Evid.R. 801 and 802. In response,
HCJFS and the guardian ad litem for the children direct our attention to the business
records exception under Evid.R. 803(6).
{¶12} For hearsay to be admissible under the business record exception, the
business record must display four essential elements: (1) it must have been kept in
the regular course of business; (2) it must stem from a source who had personal
knowledge of the acts, events, or conditions; (3) it must have been recorded at or
near the time of the transaction; and (4) a foundation must be established by the
testimony of either the custodian of the record or some other qualified person. State
v. Davis, 116 Ohio St. 3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171 (holding trial
counsel did not offer the exhibit as a business record and did not lay the necessary
foundation for doing so). A qualified person may lay a foundation if that person has
a “working knowledge of the specific record-keeping system that produced the
document” and may “vouch from personal knowledge of the record-keeping system
that such records were kept in the regular course of business.” State v. Thyot, 2018-
Ohio-644, 105 N.E.3d 1260, ¶ 22 (1st Dist.), quoting State v. Hirsch, 129 Ohio
App.3d 294, 312, 717 N.E.2d 789 (1st Dist.1998).
{¶13} In this case, Mr. Brock, the case manager, stated the records were from
MCP, a program where service providers upload progress notes, treatment
recommendations, diagnostic assessments, and discharge summaries. Yet Mr. Brock
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OHIO FIRST DISTRICT COURT OF APPEALS
did not appear to have a “working knowledge of the specific record-keeping system,”
nor is he a Talbert House or Beech Acres employee, and he did not purport to lay a
foundation for the admissibility of business records here. While HCJFS attached a
statement from a Talbert House employee asserting that the records were
maintained in the ordinary course of business, the statement was not made under
oath. Although the statement attached to the Beech Acres report was notarized, the
statement lacked proper foundation, containing nothing about the records being kept
in the regular course of business.
{¶14} While we have little doubt that these reports could have qualified as
business records, the proponents never established the necessary predicates for
admissibility, and we will not simply assume away the foundational requirements.
Nevertheless, to constitute reversible error, Mother must establish that the hearsay
was not harmless error, and here her claim falters.
{¶15} When otherwise inadmissible testimony is cumulative of other
evidence in the record, we typically will find its admission to be harmless. In re
J.G.S., 1st Dist. Hamilton Nos. C-180611 and C-180619, 2019-Ohio-802, ¶ 32
(declining to reverse based on trial court’s use of inadmissible hearsay when the
hearsay was cumulative of testimony provided by other witnesses); In re K.G., 1st
Dist. Hamilton No. C-120772, 2013-Ohio-3160, ¶ 14 (holding the magistrate’s use of
inadmissible hearsay as “harmless because it was cumulative of other evidence that
appellant knew her son was expected to remain in the hospital”).
{¶16} In this case, the trial court’s reliance on the Talbert House and Beech
Acres reports appears cumulative of other evidence provided at trial, and does not
prejudice Mother (indeed, she does not advance a prejudice argument in her brief).
Mother herself admitted that she did not attend group therapy and did not complete
addiction services. Moreover, based on personal knowledge, the case manager
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OHIO FIRST DISTRICT COURT OF APPEALS
testified that Mother declined to take urine screens, refused medication, and missed
numerous appointments at Talbert House. Regardless of the disagreement about
whether Mother completed the parenting coaching course at Beech Acres, the
admission of inadmissible hearsay at trial constitutes a harmless error, as it largely
overlaps with other testimony and evidence provided. Accordingly, we overrule
Mother’s fifth assignment of error.
III.
{¶17} Turning to the crux of the termination decision, Mother contests the
trial court’s decision to grant permanent custody of J.Z.1 and J.Z.3 to HCJFS,
claiming the decision was not supported by clear and convincing evidence. When
reviewing a trial court’s decision to grant custody, we must independently “examine
the record and determine if the juvenile court had sufficient evidence before it to
satisfy the statutory clear-and-convincing standard.” In re W.W., 1st Dist. Hamilton
Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46.
{¶18} Our review begins upon the foundation that children have a basic right
to be raised by their natural family, and because of this right, termination of parental
rights is a decision of last resort. When evaluating the propriety of the termination of
parental rights, we consider the statutory framework provided in R.C. 2151.414. A
juvenile court may grant permanent custody of a child to an agency if the court
determines by clear and convincing evidence that (1) permanent custody is in the
child’s best interest and (2) one of the circumstances provided in R.C.
2151.414(B)(1)(a) through (e) applies. In re J.G.S., 1st Dist. Hamilton Nos. C-180611
and C-180619, 2019-Ohio-802, at ¶ 34. To determine the best interests of the child,
the court must consider all relevant factors within R.C. 2151.414(D)(1).
{¶19} Regarding the best interest analysis, Mother spends little time in her
brief asserting why the best interests of the children will be served in her custody,
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OHIO FIRST DISTRICT COURT OF APPEALS
noting only in passing that she has gained control over her drug addiction and
completed portions of the services. Instead, Mother focuses much of her attention to
asserting that the best interests of the children will be served in Grandmother’s
custody. Because Mother is limited to only challenging the termination of her
parental rights, we turn first to the best interests inquiry in regards to Mother.
{¶20} The juvenile court walked through each of the best interest factors, and
documented clear and convincing evidence that granting permanent custody to
HCJFS was in the children’s best interest. To mention a few of the factors that it
identified, the juvenile court stressed Mother’s lack of commitment to her children.
Mother has missed half of her scheduled visits with her children, causing Family
Nurturing Center to suspend her visits, and did not visit any of her children between
May and November 2017. And, despite being informed of her children’s numerous
medical appointments regarding their long list of special needs—ADHD, PTSD,
sensory issues, hearing loss, and potential cerebral palsy—Mother did not attend one
medical appointment during the course of HCJFS’s involvement. Mother’s drug
abuse also causes concern, since Mother routinely tested positive for cocaine,
including while pregnant with J.Z.3, and after discharge from Talbert House. See
R.C. 2151.414(D)(1)(a).
{¶21} While J.Z.1 expressed a desire to be with his mother, he also expressed
fear of being abused if he returned home, after witnessing on multiple occasions
domestic violence between Mother and different men. And although J.Z.3 is too
young to convey his wishes, the GAL took the position that permanent custody was in
the best interests of the children. See R.C. 2151.414(D)(1)(b).
{¶22} The custodial history of the children was also considered, the juvenile
court reiterating that both J.Z.1 and J.Z.3 have been in HCJFS’s temporary custody
since February 2016, and Mother never progressed past supervised visits. The
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OHIO FIRST DISTRICT COURT OF APPEALS
juvenile court also mentioned J.Z.3’s bond with his foster parents, who wish to adopt
him, and who he has lived with nearly since birth. See R.C. 2151.414(D)(1)(c).
Further, the juvenile court emphasized the children’s need for legally secure
placement based on Mother’s little progress with services, her failure to address her
drug use, and the children’s special needs (remarking on the numerous
appointments her children have per week). See R.C. 2151.414(D)(1)(d). The juvenile
court also noted the fathers of the children have abandoned their children, as well as
Mother on multiple occasions, not seeing her children for over 90 days at time. See
R.C. 2151.414(D)(1)(e) and (E)(10).
{¶23} Turning to the second half of the analysis, clear and convincing
evidence supported that one of the circumstances provided in R.C. 2151.414(B)(1)
applied. Both J.Z.1 and J.Z.3 had been in the temporary custody of HCJFS well over
12 months of a consecutive 22-month period at the time of the filing of the relevant
motions for permanent custody. See R.C. 2151.414(B)(1)(d). Mother does not
contest that fact, and we see nothing in the record to call into question the juvenile
court’s conclusion in that respect.
{¶24} Therefore, we see no grounds to disturb the trial court’s determination
of the propriety of parental termination and its decision is supported by clear and
convincing evidence. Nor can we entertain Mother’s alternative argument, that
Grandmother should gain legal custody of J.Z.1 and J.Z.3 instead of Mother’s
parental rights being terminated, because Mother does not have standing to raise
this issue on behalf of the nonappealing Grandmother. This court previously dealt
with this issue in In re T.W., 1st Dist. Hamilton No. C-130080, 2013-Ohio-1754, ¶ 9,
holding that the father lacked standing because the father had made no arguments
challenging the trial court’s decision to terminate his parental rights, but only
challenged how the trial court’s decision affected the rights of the great-
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OHIO FIRST DISTRICT COURT OF APPEALS
grandmother. A few years later, we reiterated the point, interpreting In re T.W. to
mean that “[e]ven if the father had asserted injury to his residual parental rights, we
recognized that there was no remedy that we could provide if we found the father’s
arguments meritorious because the great-grandmother had not appealed from the
denial of her custody petition.” In re K.C., 2017-Ohio-8383, 99 N.E.3d 1061, ¶ 11 (1st
Dist.).
{¶25} In this case, while Mother did challenge the trial court’s decision
affecting her parental rights, Grandmother did not appeal from the denial of her
custody petition, and we cannot assume that she still desires to be awarded custody
of J.Z.1 and J.Z.3. If an affected party (such as Grandmother here) desires that we
consider awarding custody to her, she must appeal the decision and assert her rights.
For these reasons, Mother does not have standing to raise issues on behalf of
Grandmother, and we accordingly overrule Mother’s third assignment of error.
IV.
{¶26} In her second and fourth assignments of error, Mother presents
essentially remedial questions—who receives custody of the children if she loses. The
first part of this challenge implicates the rights of others, as Mother questions the
admissibility of the home study reports of Grandmother and Ms. Crossty, claiming
the probative value of the home study reports was “substantially outweighed by the
danger of unfair prejudice.” Evid.R. 403(A). This criticism fails on two fronts—first,
the home study reports of Grandmother and Ms. Crossty had probative value to the
court in determining whether they would be suitable custodians for the children if
the court reached a termination decision. Nor do the reports (specific to each
individual) inflict any prejudice upon Mother, which hints at the second problem for
this assignment of error.
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{¶27} Mother lacks standing to challenge the home study reports because the
reports do not emphasize her inability to parent, thereby prejudicing her, but only
affect Grandmother and Ms. Crossty’s rights—neither one of which appealed in this
case. “[A]n appellant cannot raise issues on behalf of an aggrieved third-party,
particularly when that party could have appealed the issue to protect his or her own
interests.” In re T.W., 1st Dist. Hamilton No. C-130080, 2013-Ohio-1754, at ¶ 9.
Since Mother fails to explain why the trial court’s decision to admit the home study
reports unfairly prejudiced her, she has no standing to challenge the admission of the
home study reports, and we accordingly overrule Mother’s second assignment of
error.
{¶28} Finally, in her fourth assignment of error, Mother claims the juvenile
court abused its discretion by giving Ms. Crossty legal custody of J.Z.2. Although the
appellees have suggested mootness on this point given subsequent developments in
the custodial history, on the record before us we cannot say that the matter is moot.
But we also have little hesitation in finding no abuse of discretion here.
{¶29} Pursuant to R.C. 2151.353(A)(3), if a child is adjudicated abused,
neglected, or dependent, then a trial court may grant legal custody to a parent or
another person who requests custody of the child. The court must consider the best
interests of the child, using R.C. 2151.414(D)(1) as guidance. In re A.C., 1st Dist.
Hamilton No. C-140273, 2015-Ohio-153, ¶ 6. Here, however, Mother does not
contest any of these criteria or findings. Instead, she seems to argue only that
custody should have been awarded to Grandmother, and we have already explained
above why that argument cannot succeed. Therefore, we cannot find that the juvenile
court abused its discretion in granting legal custody to Ms. Crossty, and accordingly
overrule Mother’s fourth assignment of error.
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V.
{¶30} Following our review, we overrule all five of Mother’s assignments of
error and affirm the judgment of the juvenile court.
Judgment affirmed.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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