In re A.P.

[Cite as In re A.P., 2020-Ohio-5131.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
IN RE:
CASE NO. 8-20-17
A.P.,
DEPENDENT CHILD. OPINION
[C.O. - APPELLANT]
IN RE:
CASE NO. 8-20-18
An.O.,
DEPENDENT CHILD. OPINION
[C.O. - APPELLANT]
[D.O. - APPELLANT]
IN RE:
CASE NO. 8-20-19
H.P.,
DEPENDENT CHILD. OPINION
[C.O. - APPELLANT]
IN RE:
CASE NO. 8-20-20
Ni.O.,
DEPENDENT CHILD. OPINION
[C.O. - APPELLANT]
[D.O. - APPELLANT]
Case Nos. 8-20-17 to 8-20-25
IN RE:
CASE NO. 8-20-21
J.O.,
DEPENDENT CHILD. OPINION
[C.O. - APPELLANT]
[D.O. - APPELLANT]
IN RE:
CASE NO. 8-20-22
C.O.,
DEPENDENT CHILD. OPINION
[C.O. - APPELLANT]
[D.O. - APPELLANT]
IN RE:
CASE NO. 8-20-23
Z.O.,
DEPENDENT CHILD. OPINION
[C.O. - APPELLANT]
[D.O. - APPELLANT]
IN RE:
CASE NO. 8-20-24
Na.O.,
DEPENDENT CHILD. OPINION
[C.O. - APPELLANT]
[D.O. - APPELLANT]
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Case Nos. 8-20-17 to 8-20-25
IN RE:
CASE NO. 8-20-25
Az.O.,
DEPENDENT CHILD. OPINION
[C.O. - APPELLANT]
[D.O. - APPELLANT]
Appeals from Logan County Common Pleas Court
Family Court Division
Trial Court Nos. 20 CS 21 A, B, C, D, E, F, G, H and I
Judgments Reversed Causes Remanded
Date of Decision: November 2, 2020
APPEARANCES:
Alison Boggs for Appellant-Mother
Matthew Langals for Appellant-Father
Chelsea R. Brown for Appellee, Logan County Children’s Services
SHAW, P.J.
{¶1} Appellant-Mother, C.O. (“Mother”), and Appellant-Father, D.O.
(“Father”), appeal the May 13, 2020 judgments of the Logan County Court of
Common Pleas, Family Court Division, adjudicating their children dependent under
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Case Nos. 8-20-17 to 8-20-25
R.C. 2151.04(C). On appeal, Mother and Father challenge several aspects of the
trial court’s dependency adjudication on both procedural and substantive grounds.
{¶2} On March 17, 2020, Plaintiff-Appellee, Logan County Children’s
Services (the “Agency”), filed a Motion for Issuance of Emergency Temporary
Orders and complaints alleging that A.P., An.O., H.P., Ni.O., J.O., C.O., Z.O.,
Na.O., and Az.O were dependent children under R.C. 2151.04(C). The Agency also
alleged in the complaints that A.P. and An.O. were abused children under R.C.
2151.031(D). The allegations underlying the complaints involved reports of
domestic violence perpetrated by Father against Mother, A.P., and An.O. in the
home where the family resides. The next day, the trial court granted the Agency’s
motion for temporary custody, designated the children’s maternal grandparents as
their temporary legal custodians, and ordered Father to have no contact with the
children until further notice by the court. The trial court also appointed a guardian
ad litem (“GAL”) to the case.
{¶3} On May 7, 2020, the trial court conducted an adjudication hearing on
the Agency’s complaints. The trial court heard testimony from the Agency’s
caseworker regarding the investigation of the allegations contained in the complaint.
At the close of the proceedings, the trial court found on the record that the Agency
had proved its case by clear and convincing evidence with regard to the dependency
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Case Nos. 8-20-17 to 8-20-25
allegations relating to all nine children. However, the trial court determined that the
evidence did not support the Agency’s allegations of abuse against A.P. and An.O.
{¶4} On May 13, 2020, the trial court issued a judgment entry journalizing
its dependency adjudication in the cases involving all nine children. On the same
day, the Agency filed an emergency motion requesting alteration of the children’s
placement with maternal grandparents. The trial court conducted a hearing on the
emergency motion, where it was revealed that the maternal grandparents were
overwhelmed with providing care for the children, who ranged in ages from fifteen
years to five months. The trial court designated Mother as the legal custodian of the
children, with Father having parenting time supervised by the Agency. Notably, the
record indicates that Father had vacated the family home during the proceedings.
{¶5} On May 28, 2020, the trial court conducted a dispositional hearing. The
trial court designated both Mother and Father as the legal custodians of the children
under the protective supervision of the Agency. The trial court further permitted
Father to return to the family home. The trial court’s dispositional orders were
journalized in its June 15, 2020 Judgment Entry.
{¶6} On June 11, 2020, Mother and Father each filed notices of appeal from
the trial court’s judgment adjudicating the children dependent. Mother’s and
Father’s appeals with respect to the seven children they share were consolidated for
purposes of appeal. Mother filed notices of appeal from the trial court’s judgments
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Case Nos. 8-20-17 to 8-20-25
of adjudication relating to the two older children, A.P. and H.P., which were also
consolidated with the cases involving the seven other children on appeal.1
{¶7} Mother and Father assert the following assignments of error for our
review on appeal.
ASSIGNMENT OF ERROR NO. 1
THE JUVENILE COURT VIOLATED APPELLANTS’ DUE
PROCESS RIGHTS WHEN IT DID NOT PERMIT
APPELLANTS TO PRESENT WITNESSES OR EVIDENCE
DURING THE ADJUDICATORY HEARING AND CUT
APPELLANT-MOTHER’S ATTORNEY OFF DURING HER
CROSS-EXAMINATION.
ASSIGNMENT OF ERROR NO. 2
THE JUVENILE COURT ERRED WHEN IT FAILED TO
MAKE ANY FINDINGS OF FACT AND CONCLUSIONS OF
LAW IN ITS JUDGMENT ENTRY TO SUPPORT ITS
DECISION FINDING THAT THE CHILDREN ARE
DEPENDENT.
ASSIGNMENT OF ERROR NO. 3
THE JUVENILE COURT’S DECISION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND
SUFFICIENCY OF THE EVIDENCE. APPELLEE DID NOT
PROVE BY CLEAR AND CONVINCING EVIDENCE THAT
THE CHILDREN WERE DEPENDENT.
1
The father of A.P. and H.P. did not participate in the proceedings nor did he file an appeal of the trial court’s
dependency adjudication, despite being properly served with notice. Mother (with respect to all nine
children) and Father (with respect to the seven they share) filed a combined brief for purposes of appeal and
have asserted assignments of error raising issues relevant to the cases involving all nine children.
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Case Nos. 8-20-17 to 8-20-25
ASSIGNMENT OF ERROR NO. 4
THE JUVENILE COURT ERRED WHEN IT ALLOWED, ON
MULTIPLE OCCASIONS, IMPERMISSIBLE HEARSAY
DURING THE ADJUDICATORY HEARING.
First Assignment of Error
{¶8} In their first assignment of error, Mother and Father claim that the trial
court violated their procedural due process rights when it limited their counsels’
opportunities to cross-examine the Agency’s witness, and when it made its decision
before Mother had an opportunity to present witnesses, thereby precluding Mother’s
counsel from presenting any evidence in support of her position. Notably, the
Agency concedes that the trial court erred in this regard.
Legal Authority
{¶9} The right to procedural due process is required by the Fourteenth
Amendment to the United States Constitution and Article I, Section 16 of the Ohio
Constitution. State ex rel. Plain Dealer Publishing Co. v. Floyd, 111 Ohio St.3d 56,
2006-Ohio-4437, ¶ 45. At a minimum, due process of law requires notice and
opportunity for a hearing, that is, an opportunity to be heard. Mathews v. Eldridge,
424 U.S. 319 (1976). The opportunity to be heard must occur at a meaningful time
and in a meaningful manner. Floyd at ¶ 45. It is well settled that “parents are
entitled to due process during the adjudicatory stage of the proceedings * * *.” In
re L.F., 9th Dist. Summit Nos. 27218 and 27228, 2014-Ohio-3800, ¶ 22.
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Case Nos. 8-20-17 to 8-20-25
Adjudication Proceedings
{¶10} At the adjudication hearing, the Agency presented one witness, the
caseworker involved in the investigation. Periodically, throughout the Agency’s
direct examination the trial court directed the prosecutor to streamline her questions
for the witness and stated, “I would just like to hear facts * * * So, I—we can’t be
here all day, folks. So, let’s focus on that.” (May 7, 2020 Hrg. at 33).
{¶11} Once direct examination of the Agency’s caseworker was complete
the trial court informed the three other attorneys present, which included Mother’s
counsel, Father’s counsel and the GAL, “For cross-examination, I don’t want you
to ask duplicate questions so I know you’re trying to think of your questions but
listen at the same time so we don’t have repetitive ones. So I’ll just shut you down
for saving time.” (May 7, 2020 Hrg. at 53). Shortly after Mother’s attorney began
cross-examination of the Agency’s caseworker, the trial court interrupted, “Let’s do
this, [Mother’s counsel]. We’ll come back to you. I just want because of time I
want to get cross-examination finished, give everybody an opportunity. Do you
(Father’s Counsel) have to any additional questions for cross?” (Id. at 66). Father’s
counsel indicated that Mother’s counsel’s questions for the witness were sufficient
and did not cross-examine the witness. The GAL indicated to the court that she had
additional questions on cross-examination and hurriedly tried to finish her cross-
examination in an expedient fashion.
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Case Nos. 8-20-17 to 8-20-25
{¶12} The trial court then proceeded to ask few follow-up questions and then
informed to the parties, “Okay. Okay. All right. Okay. Do you have any redirect?
I’m ready to rule.” (May 7, 2020 Hrg. at 78). The prosecutor replied, “Your Honor,
I just want to be sure that [Mother’s counsel] is finished with her cross before I
continue.” (Id.). Mother’s counsel indicated on the record that she had finished
questioning the Agency’s witness. The prosecutor then conducted a brief redirect
examination of the caseworker. Immediately after the prosecutor finished redirect
examination the trial court announced its decision adjudicating the children
dependent.
{¶13} After the decision on adjudication was announced, the following
exchange occurred between the trial court and Mother’s counsel:
The Court: Does counsel have any question?
Mother’s Counsel: Your Honor, we had a number of witnesses
here.
The Court: Well, we have to finish the case today, and I’ve heard
enough evidence that I can make findings that that’s what I’m
doing. So if we go—we’ll go to deposition, and at that point you’ll
have time to file an appeal. Any questions?
(May 7, 2020 Hrg. at 83).
{¶14} The trial court subsequently explained to Mother’s Counsel on the
record, “So when you ask for a continuance of a hearing and my assignment
commissioner—who doesn’t understand this stuff, that’s not her job—gives you an
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Case Nos. 8-20-17 to 8-20-25
hour, you have to live within that hour or you have to make sure you ask for more
time based on the witnesses you’re presenting, ok? Is that fair? [The assignment
commissioner] just can’t handle that piece * * *.” (May 7, 2020 Hrg. at 84).
Analysis
{¶15} At the outset, we are cognizant that a court has discretion to control
the mode and order of witness examination. Likewise, we recognize that the scope
and limitation of cross-examination are matters within the sound discretion of the
trial court. However, as previously noted, the fundamental tenants of due process
require that parties to a dependency proceeding be given an opportunity to be heard
in a meaningful manner during the adjudicatory stage.
{¶16} “ ‘Due process of law implies, in its most comprehensive sense, the
right of the person affected thereby to be present before the tribunal * * * to be
heard, by testimony or otherwise, and to have the right of controverting, by proof,
every material fact which bears on the question of right in the matter involved.’ ” In
re L.R., 5th Dist. Holmes No. 13CA004, 2013-Ohio-3104, ¶ 72, quoting Williams
v. Dollison, 62 Ohio St.2d 297, 299 (1980).
{¶17} In the instant cases, we agree with the parties that Mother was deprived
of a meaningful opportunity to be heard when the trial court precluded Mother from
presenting any evidence in support of her case at the adjudication hearing. Under
her basic due process rights, Mother was entitled to present her defense, absent any
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Case Nos. 8-20-17 to 8-20-25
indication in the record of a valid waiver of that right, which is not present in this
case. See In re E.J.M., 5th Dist. Stark No. 2010CA00171, 2011-Ohio-977, ¶ 18;
Juv.R. 29. Accordingly, we find that the trial court erred when it adjudicated the
children dependent without permitting Mother to offer evidence in support of her
case.
{¶18} The first assignment of error is sustained.
Second Assignment of Error
{¶19} In their second assignment of error, Mother and Father claim that the
trial court’s judgment entries finding the children dependent failed to comply with
R.C. 2151.28(L).
{¶20} R.C. 2151.28 governs the adjudicatory hearing. Subsection (L) states
the following:
If the court, at an adjudicatory hearing held pursuant to division
(A) of this section upon a complaint alleging that a child is an
abused, neglected, dependent, delinquent, or unruly child or a
juvenile traffic offender, determines that the child is a dependent
child, the court shall incorporate that determination into written
findings of fact and conclusions of law and enter those findings of
fact and conclusions of law in the record of the case. The court
shall include in those findings of fact and conclusions of law
specific findings as to the existence of any danger to the child and
any underlying family problems that are the basis for the court's
determination that the child is a dependent child.
{¶21} Mother and Father argue that the trial court failed to make these
requisite findings. On appeal, the Agency concedes that “the Juvenile court failed
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Case Nos. 8-20-17 to 8-20-25
to make written findings of fact in the Judgment Entry finding that the Minor
Children were Dependent.” (Appe. Br. at 9). Notably, the record clearly establishes
that these judgment entries are devoid of any findings of fact and conclusions of
law, including “specific findings as to the existence of any danger to the child and
any underlying family problems that are the basis for the court’s determination that
the child is a dependent child.” R.C. 2151.28(L).
{¶22} We have previously addressed this issue and have determined that the
proper remedy is to remand the cases to the trial court to issue judgment entries of
dependency with these written findings of fact and conclusions of law in compliance
with R.C. 2151.28(L). See In re P.C., 3d Dist. Logan Nos. 8-19-45, 8-19-46, 8-19-
47, 8-19-54, 8-19-55, 8-19-56, 2020-Ohio-2889, ¶ 25; In re S.L., 3d Dist. Union
Nos. 14-15-07, 14-15-08, 2016-Ohio-5000, ¶ 9; see also e.g., In the matters of T.J.,
5th Dist. Knox Nos. 19CA02, 19CA03, 19CA04, 2019-Ohio-3626; In re E.Z., 8th
Dist. Cuyahoga No. 103728, 103966, 2016 WL 4399394.
{¶23} However, due to our resolution of the first assignment of error, it will
be necessary for the trial court to conduct a new adjudication hearing. Accordingly,
the trial court will be given the opportunity to comply with R.C. 2151.28(L) upon
the issuance of its new judgment ruling on the Agency’s complaints alleging
dependency in these cases.
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Case Nos. 8-20-17 to 8-20-25
{¶24} Accordingly, to this extent only, the second assignment of error is
sustained.
Third and Fourth Assignments of Error
{¶25} Due to our resolution of the first assignment of error, the third and
fourth assignments of error are rendered moot. On this basis, this Court declines to
address these assignments of error.
{¶26} For all these reasons, the judgments are reversed and the causes are
remanded for proceedings consistent with this opinion.
Judgments Reversed and
Causes Remanded
PRESTON and ZIMMERMAN. J.J., concur.
/jlr
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