In re V.H.

[Cite as In re V.H., 2019-Ohio-3097.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE V.H., ET AL. :
: No. 107599
Minor Children :
:
[Appeal by A.H., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 1, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD18905130, AD18905131, AD18905132, and AD18905133
Appearances:
Nee Law Firm, L.L.C., and Leigh S. Prugh, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Michelle A. Myers, Assistant Prosecuting
Attorney, for appellee C.C.D.C.F.S.
Mark A. Stanton, Cuyahoga County Public Defender, and
Britta A. Barthol, Assistant Public Defender, for appellee
B.M.
RAYMOND C. HEADEN, J.:
Appellant A.H. (Mother) appeals a decision of the Cuyahoga County
Court of Common Pleas, Juvenile Division, that adjudicated child V.H. was abused
and children R.S., M.S., and T.M. were neglected. For the reasons that follow, we
reverse and remand the case to the trial court for further proceedings consistent with
this opinion.
Statement of the Facts
Appellant A.H. (“Mother”) and T.H. (“Father”) are married and are
the parents of V.H. who was six months old at the time of the emergency custody
hearing. Mother also has three children from prior relationships, R.S., M.S., and
T.M., aged eight, six, and three respectively. R.S. and M.S. are the children of
Mother and Ro.S., and T.M. is the child of Mother and B.M. At all relevant times,
Mother had custody of R.S., M.S., and T.M.
On April 17, 2018, Mother left V.H. and T.M. at home with Father
while Mother took R.S. to a doctor’s appointment. M.S. was at school. Conflicting
evidence was introduced whether Father worked the night shift the day before.
When Mother left the house, Father was awake, six-month-old V.H. was sleeping in
the parents’ bed, and three-year-old T.M. was asleep in his bedroom situated across
the hall. Father was tired and since both children were asleep, he returned to sleep
in the bed with V.H.
Father awoke to crying from V.H. and T.M. Father found the children
on the floor at the foot of his bed, with T.M. holding V.H. It was soon apparent that
V.H.’s arm was injured. V.H. was treated immediately at an emergency room for a
fractured arm. While Mother, who was not home when the incident occurred, and
Father did not know the exact cause of V.H.’s broken arm, they surmised T.M.
attempted to pull her off the bed and V.H. fell to the ground, breaking her arm.
Although the hospital records were not included as part of the record,
testimony referenced those medical documents. According to the testimony, the
hospital records indicated that V.H.’s broken arm was consistent with a fall. There
was also testimony from Chloe Scott, a child protection specialist with the Cuyahoga
County Department of Child and Family Services (“CCDCFS”), that states V.H.’s
injury was sustained as she was passed back and forth between her brothers, R.S.,
and T.M. However, the record indicates that R.S. was not home when V.H. was
injured which disputes the testimony of Chloe Scott. At no other time is there
mention of V.H.’s brothers passing her back and forth as an explanation offered for
V.H.’s injury.
CCDCFS was informed of V.H.’s injury. Chloe Scott initiated an
investigation and met with Mother and Father on April 17, 2018. Father initially
refused Ms. Scott entry into the house until Mother arrived home; Father was not
T.M.’s parent and felt Mother needed to be present for discussions regarding T.M.
Mother and Father were not receptive to CCDCFS’s suggestion of
placing V.H. in a location inaccessible to the three year old, T.M., or making
alternate sleeping arrangements for V.H. The couple stated sleeping with an infant
was not illegal and V.H. slept best in a shared bed with her parents. CCDCFS
attempted to adopt a safety plan, but Mother and Father were unwilling to
cooperate. The parents agreed Father should not watch the children after working
a third shift, although this was not typically an issue since Mother was usually home
during the day. Ms. Scott noted the house was cluttered and full of dog fur from the
family’s three dogs. V.H. slept in the parents’ room while the three older children
slept in the room across the hallway. The children’s bedroom contained two beds
for the three children.
Ms. Scott also discussed with Mother and Father an open
investigation dating from March 2018. At that time, R.S., self-reported that he put
a toy in V.H.’s crib causing her an injury and, as a result, Father disciplined him by
“punching” R.S. in the back. CCDCFS reported to their home in March 2018, but
was not permitted to speak independently to R.S. The parents denied such
discipline occurred and the social worker did not observe any cuts or bruises on R.S.
The social worker did not lift the child’s shirt to examine his back. That complaint
was left open within CCDCFS’s system, but no further follow-up occurred.
Ms. Scott attempted to schedule a staffing meeting with Mother and
Father regarding V.H. Mother and Father informed Ms. Scott they were not
available the next morning, April 18, 2018, because of a previously scheduled
doctor’s appointment. Due to Father’s aggressive behavior towards Ms. Scott, she
found it necessary to leave the home without scheduling a subsequent meeting.
A staffing meeting was held by CCDCFS the morning of April 18,
2018. Ms. Scott left a voicemail message for Mother notifying her about the date
and time of the staffing meeting, even though she had been told Mother and Father
were unavailable at that time due to a previously scheduled doctor’s appointment.
Ms. Scott later realized that message was left at the wrong phone number and
attempted to schedule another staffing meeting with Mother and Father. Mother
and Father provided no amenable dates due to their busy schedules.
Ms. Scott felt the parents were not taking the situation seriously
because they did not appear willing to change their sleeping patterns and she
discontinued any attempt to schedule a second staffing meeting. Ms. Scott
attempted to notify the parents about a scheduled emergency temporary custody
hearing via telephone but Mother would not take the information and hung up on
Ms. Scott. A coworker of Ms. Scott left a voicemail for Mother with information
relevant to the emergency hearing. Mother returned the coworker’s call, but Ms.
Scott did not know the details of the conversation.
Mother and Father recalled a different version of the facts. Because
of previously scheduled doctor’s appointments for R.S. and V.H., Ms. Scott and the
parents agreed to hold a staffing meeting on April 20, 2018, at 9:00 a.m. by phone.
The parents received a call from Ms. Scott at 10:00 a.m. stating she had called the
wrong phone number and the staffing meeting was held without the parents. A
subsequent meeting was to be held, via phone, that afternoon, after V.H.’s 12:30
p.m. doctor’s appointment. Mother and Father received two voicemail messages the
afternoon of April 20, 2018, stating an emergency custody hearing was scheduled at
2:00 p.m. and the parents must be present.
An emergency temporary custody hearing on April 20, 2018,
addressed CCDCFS’s emergency complaint alleging V.H. was abused and neglected.
CCDCFS sought temporary custody of V.H. Ms. Scott testified removal of V.H. was
necessary to alleviate any risk to the child — the basis for removal was lack of
parental supervision, the concern of V.H. sleeping with her parents, and the
possibility that she may fall out of bed. The guardian ad litem also recommended
removal based upon the family’s uncooperative attitude; the different stories relayed
as to how V.H. injured her arm; and the young age of V.H. The court determined
CCDCFS made reasonable efforts to prevent removal, including safety planning, but
more services were required to alleviate risks to V.H. A motion for predispositional
temporary custody for V.H. was granted and a case plan was to be filed within thirty
days. Mother and Father attempted to attend the emergency temporary custody
hearing, but went to the wrong address. The couple arrived at the correct location
after the hearing had concluded and were confronted by CCDCFS employees and
police officers who immediately took custody of V.H.
A magistrate then held a predispositional temporary custody hearing
on May 21, 2018, to determine whether the removal of R.S., M.S., and T.M. from
Mother’s home was in their best interest. Ro.S., the father of R.S. and M.S., and
B.M., the father of T.M., were present at the hearing. Ro.S., B.M., and CCDCFS all
stated it was not in the best interest of the children to remove them from Mother’s
custody.
Ms. Scott testified about the children. Ms. Scott determined R.S.’s
school attendance was poor at the start of the year, but he was currently doing well.
R.S. had an IEP for behavior, but no evidence was introduced regarding any
problems. Ms. Scott had not spoken with the school regarding M.S. Some of Ms.
Scott’s statements were not well supported: “There [were] some concerns raised
about the physical discipline. I’m not sure to what extent but there [were] some
concerns in the way of her treatment of the children.” Ms. Scott further stated the
children’s fathers and school staff reported concerns regarding Mother’s physical
discipline; her yelling and screaming at the children; and an incident where Mother
allegedly “whipped” the children in a store. Testimony stated the three children
were bonded with one another. Mother and Father’s home was appropriate because
the family was provided with heat, food, and electricity. Ro.S. had some concern
regarding Mother’s physical discipline but supported placement of his children with
Mother and did not believe they were in immediate harm. Similarly, B.M. was
concerned that Mother would yell and scream at T.M., but he did not believe his son
was at immediate risk. Ro.S. and B.M.’s homes had not been investigated by
CCDCFS, nor were the fathers included in the April 18, 2018 staffing meeting.
CCDCFS felt Mother lacked adequate parenting skills as
demonstrated by her general lack of knowledge about the hazards of sleeping with
an infant and leaving Father in charge of the children after he had worked a third
shift. However, CCDCFS recommended it was in the best interests of R.S., M.S., and
T.M. to remain with Mother because the disciplinary concerns could be addressed
through agency-provided services; Mother and Father were willing to avoid Father
caring for the children after working a third shift; the biological fathers of the three
children were involved and had regular contact with their children; and R.S. and
M.S. were in school providing them with regular contact with nonfamilial adults.
The agency had presented a case plan to Mother and Father
approximately one week after CCDCFS took custody of V.H. The agency ordered
both a drug screen and mental-health assessment because the parents were angry
and the agency was concerned about their anger management. The parents seemed
willing to comply with the parenting courses and mental-health and drug
screenings, but wanted to confer with their attorney prior to committing to the case
plan. CCDCFS found Mother and Father’s response to the proposed case plan
reasonable. However, at the close of the predispositional temporary custody
hearing, counsel for Mother and Father indicated the parents were unwilling to
attend parenting classes and felt no case plan was necessary.
The court determined that because the parents refused agency
services, it could not say it was in the children’s best interest to remain with the
parents. The children were placed in the predispositional temporary custody of
CCDCFS. R.S. and B.M. were to be considered first for placement of their children.
The court ordered Mother and Father to undergo mental-health assessments and
drug screenings.
Trial was held on July 6, 2018, to determine the disposition of all four
children. CCDCFS continued to attempt implementation of a case plan for Mother
and Father. CCDCFS testified the parents were very argumentative during weekly
visitations with V.H., focusing on their anger toward the agency rather than working
to reach the agency’s requested goals. CCDCFS wanted Mother and Father to
complete the case plan objectives. Mother and Father underwent mental-health and
substance-abuse assessments with Recovery Resources on June 19, 2018. A letter
from Recovery Resources indicated no treatment was recommended for Mother
while a follow-up letter regarding Father requested he contact the facility. CCDCFS
was concerned with this care provider since the assessment was based upon
information provided exclusively by the parents. The agency preferred an agency-
recommended provider that accepted information from both the parents and
CCDCFS. The parents refused to sign a release of information; this document was
required before CCDCFS could refer the parents to agency services.
The children had adapted to their various placements — V.H. in foster
care, R.S. and M.S. with Ro.S., and T.M. with B.M. There was no concern about the
children’s safety. Mother and Father had visitation with V.H. and Mother had
visitation with her other three children. Mother was difficult facilitating visitation
times with Ro.S. Mother raised allegations about Ro.S., Ro.S.’s girlfriend, and B.M.
The basis of the allegations is unknown and the record does not reflect whether any
claims were filed with CCDCFS. Mother and Father had changed their residence
and lived in a two-bedroom trailer with Mother’s parents that would not be suitable
if Mother had custody of her four children. The permanency plan for all four
children continued to be reunification with Mother.
At the trial, CCDCFS requested temporary custody of the four
children with the agency; Ro.S. sought custody of R.S. and M.S.; B.M. requested
custody of T.M.; and the guardian ad litem recommended temporary custody to the
agency since she had not completed an investigation of Ro.S. and B.M. to make an
appropriate recommendation of them as custodial parents. Mother and Father
requested placement of the children with the agency rather than with either Ro.S. or
B.M.1
The court found (1) it was in the best interest of V.H. to grant
temporary custody to CCDCFS with approval of the permanency plan for
reunification with Mother and Father; (2) it was in the best interest of R.S. and M.S.
to be in the legal custody of their father, Ro.S., with protective supervision and
approval of the permanency plan of reunification; and (3) it was in the best interest
of T.M. to be in the legal custody of his father, B.M., with an order of protective
supervision and approval of the permanency plan of reunification. Mother and
Father were ordered to comply with the court diagnostic clinic’s evaluation. The
temporary custody order and two protective supervision orders are still in effect.
On July 6, 2018, an adjudicatory hearing was held before a
magistrate, and evidence was submitted. The magistrate found it was contrary to
the best interest of the four children to be returned to the home of Mother. The
1 On May 21, 2018, Mother and Father filed an answer to magistrate’s pretrial order
and findings of fact and emergency temporary custody. The answer was in response to
the magistrate’s orders implemented on April 20, 2018, regarding V.H. On May 30, 2018,
Mother and Father filed a motion to set aside the magistrate’s order stating an objection
to removal of R.S., M.S, and T.M. from Mother and Father’s home. The motion to set
aside the magistrate’s order was subsequently withdrawn on June 28, 2018, and
journalized on July 3, 2018. The request on July 6, 2018, was Mother and Father’s first
request to place R.S., M.S., and T.M. with the agency rather than with their biological
fathers.
magistrate further found CCDCFS made reasonable efforts to prevent removal of the
children, to eliminate the continued removal of the children from the home, and to
make it possible for the children to return home. The magistrate’s decision and
findings of fact found relevant services were provided to the family in the case of
V.H. but Mother and Father refused to cooperate with referrals to the court
diagnostic clinic and for parenting classes at the Westside Collaborative. V.H. was
adjudicated abused, the case plan was approved, and the permanency plan
remained reunification.
In the cases of R.S., M.S., and T.M., Mother refused to cooperate with
the same referrals to court diagnostic clinic and for parenting classes at the Westside
Collaborative. The three children were adjudicated neglected and legal custody was
granted to the biological fathers with protective supervision of CCDCFS. The case
plans were approved and the permanency plans remained reunification.
Subsequently, an order journalized on July 26, 2018, indicated the trial court
adopted the magistrate’s decisions related to the adjudicatory and dispositional
recommendations.
Mother filed this timely appeal on August 27, 2018.
Law and Analysis
In the first assignment of error, Mother argues the trial court’s
adoption of the magistrate’s decisions related to the adjudicatory and dispositional
recommendations for V.H., R.S., M.S., and T.M. were against the manifest weight of
the evidence.
“The decision to adopt, reject, or modify a magistrate’s decision by a
trial court will not be reversed on appeal unless the trial court’s decision amounts to
an abuse of discretion, which has been defined as an error of law or judgment that
implies the trial court’s attitude is unreasonable, arbitrary, or unconscionable.” In
re S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476, ¶ 7, citing Fackelman v.
Micronix, 8th Dist. Cuyahoga No. 98320, 2012-Ohio-5513, ¶ 5. However, this
standard does not apply where an appellant fails to object to the magistrate’s
decision and fails to file a transcript of the hearing for the court’s review.
Mother and Father failed to object to the magistrate’s decision.
“When a party has failed to file objections to a magistrate’s decision, an appellate
court’s review of the trial court’s decision is limited to review for plain error.” S.J. v.
J.T., 6th Dist. Lucas No. L-11-1011, 2011-Ohio-6316, ¶ 8, citing Goldfuss v.
Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997). Plain error is not favored and
is only applicable in rare cases where the error “seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the
legitimacy of the underlying judicial process itself.” In re S.J. at ¶ 8, quoting
Goldfuss at syllabus.
Mother and Father also failed to file a transcript of the magistrate’s
proceedings with the trial court. A party objecting to a magistrate’s factual finding
is required to support the objection with a transcript of all the evidence submitted
to the magistrate relevant to that finding. Juv.R. 40(D)(3)(b)(iii). “If the objecting
party fails to provide the court with a transcript of the magistrate’s hearing, the trial
court may properly adopt a magistrate’s factual findings without further
consideration.” In re S.H. at ¶ 13. Under those circumstances, an appellate court is
precluded from considering the transcript when it is submitted with the appellate
record. In re A.L., 8th Dist. Cuyahoga No. 99040, 2013-Ohio-5120, ¶ 12. Without
the transcript properly before it, an appellate court has no basis to conclude that the
trial court erred in adopting the magistrate’s decision.
In the case sub judice, Mother and Father did not object to the
magistrate’s decision so our review of the trial court’s decision is limited to plain
error. Additionally, even though a transcript of the magistrate’s hearing is before
this court, because the transcript was not filed with the trial court, we may not
consider it when reviewing factual findings. See In re S.H., 8th Dist. Cuyahoga No.
100911, 2014-Ohio-4476, at ¶ 16. Based upon our review of the limited record, we
are unable to conclude the trial court’s order of temporary custody constitutes plain
error.
At this court’s request, the parties submitted supplemental briefs
addressing whether trial counsel was ineffective when he failed to object to the
magistrate’s decision. Mother’s second assignment of error argues trial counsel’s
failure to object to the magistrate’s decisions constituted ineffective assistance of
counsel.
An initial issue is whether we can review the transcript in evaluating
this assignment of error. Typically, where the transcript of the magistrate’s decision
was not filed with the trial court, the transcript is not part of the trial court’s record
and an appellate court cannot review the transcript, upon appeal, to address factual
findings. See In re S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476. See also
In re Comer, 10th Dist. Franklin No. 96APF11-1571, 1997 Ohio App. LEXIS 4348, 5
(Sep. 23, 1997). However, appellate courts have reviewed transcripts for the purpose
of determining whether the appellant was prejudiced by counsel’s ineffective
assistance, despite the fact that the transcript was not available to the trial judge:
First, we presume that the failure to file a transcript for review by the
trial judge is associated with the failure to request findings of fact and
the failure to object to the magistrate’s report. Second, because of the
nature of the alleged errors, it would be impossible to apply the second
prong of the Strickland test without considering the evidence
presented to the magistrate.
In re Comer at 5-6, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). See also In re P.D.R., 5th Dist. Stark No. 2010-CA-00268,
2011-Ohio-1036, ¶ 22. In the interest of justice, this court will examine the transcript
of the magistrate’s hearings, despite the fact that it was not available to the trial
judge. In re Oliver, 5th Dist. Licking No. 2005-CA-40, 2005-Ohio-5792, ¶ 24.
In order to establish a claim of ineffective assistance of counsel, a
defendant must demonstrate: (1) his counsel was deficient in some aspect of his
representation, and (2) the deficient performance prejudiced the defendant. In re
J.G., 8th Dist. Cuyahoga No. 100681, 2014-Ohio-2652, ¶ 32. This standard of review
is applicable in custody proceedings and is applied below when assessing Mother’s
claim of ineffective counsel. Id. at ¶ 32. Moreover, when a reviewing court considers
an ineffective assistance of counsel claim, the reviewing court should not consider
what, in hindsight, may have been a more appropriate course of action. See State v.
Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). Rather, the reviewing court
“must be highly deferential.” Strickland at 689. As the Strickland court stated, a
reviewing court “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’” Id., quoting Michel v. Louisiana,
350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
A reviewing court must evaluate the allegations of ineffective counsel
on a case-by-case basis and satisfy both prongs of the Strickland analysis. Here,
trial counsel’s failure to file objections to the magistrate’s decision or order impacted
the temporary custody of Mother’s children and, outside of an appeal, was the
Mother’s only opportunity to attempt to reverse the magistrate’s decision. Trial
counsel’s failure to object to the magistrate’s report constituted deficient
performance under the first prong of the Strickland test. In re Comer at 5. We must
also assess whether the failure to file objections prejudiced Mother to such an extent
that she was deprived a fair trial, thereby satisfying the second prong of the
Strickland test. To show prejudice, the appellant must demonstrate that there is a
reasonable probability that but for counsel’s errors, the result of the proceeding
would have been different. In re A.G., 8th Dist. Cuyahoga No. 105254, 2017-Ohio-
6892, ¶ 59.
CCDCFS alleged V.H. was abused and R.S., M.S., and T.M. were
neglected. If there is a reasonable probability that Mother’s filing objections would
have resulted in the trial court not adopting the magistrate’s decision and findings
of fact, the second Strickland prong is met. To make this determination, we must
complete an analysis similar to that applied by the trial court.
To adjudicate a child as “abused” we look to R.C. 2151.031 and
determine if V.H. meets the statutory definition:
As used in this chapter, an “abused child” includes any child who:
(A) Is the victim of “sexual activity” as defined under Chapter 2907 of
the Revised Code, where such activity would constitute an offense
under that chapter, except that the court need not find that any person
has been convicted of the offense in order to find that the child is an
abused child;
(B) Is endangered as defined in section 2919.22 of the Revised Code,
except that the court need not find that any person has been convicted
under that section in order to find that the child is an abused child;
(C) Exhibits evidence of any physical or mental injury or death,
inflicted other than by accidental means, or an injury or death which is
at variance with the history given of it. Except as provided in division
(D) of this section, a child exhibiting evidence of corporal punishment
or other physical disciplinary measure by a parent, guardian,
custodian, person having custody or control, or person in loco parentis
of a child is not an abused child under this division if the measure is not
prohibited under section 2919.22 of the Revised Code.
(D) Because of the acts of his parents, guardian, or custodian, suffers
physical or mental injury that harms or threatens to harm the child’s
health or welfare.
(E) Is subjected to out-of-home care child abuse.
R.C. 2151.031(A) is inapplicable because there were no allegations of sexual activity.
R.C. 2151.031(B) requires clear and convincing evidence that the child was
endangered as defined in R.C. 2919.22.
R.C. 2919.22 reads, in pertinent part:
(A) No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child under eighteen
years of age or a mentally or physically handicapped child under
twenty-one years of age, shall create a substantial risk to the health or
safety of the child, by violating a duty of care, protection, or support. It
is not a violation of a duty of care, protection, or support under this
division when the parent, guardian, custodian, or person having
custody or control of a child treats the physical or mental illness or
defect of the child by spiritual means through prayer alone, in
accordance with the tenets of a recognized religious body.
(B) No person shall do any of the following to a child under eighteen
years of age or a mentally or physically handicapped child under
twenty-one years of age:
(1) Abuse the child.
“[T]o support a conviction for child endangering under R.C. 2919.22(A), it must be
established, beyond a reasonable doubt, that [parent] (1) recklessly (2) created a
substantial risk to the health or safety of one or more of his children (3) by violating
a duty of care, protection or support.” Cleveland Hts. v. Cohen, 2015-Ohio-1636, 31
N.E.3d 695, ¶ 25 (8th Dist.).
The evidence does not support a finding that V.H. was endangered.
Mother left the house to take R.S. to the chiropractor. Mother left Father in charge
of both V.H. and T.M. Both children were sleeping when Mother left the home.
Father went back to sleep. He and Mother commonly slept with V.H. and Father
did so on the morning of April 17, 2018. Father and Mother believe T.M. awoke that
morning and entered the bedroom where Father and V.H. were sleeping. Father
awoke to the children’s cries and found T.M. seated on the floor at the foot of the
bed, holding V.H. A thorough review of the record supports Mother and Father’s
version of the facts that T.M. attempted to pick up or move V.H. and she fell to the
ground injuring her arm. The parents maintained this story throughout the
proceedings. The alternate suggestion that V.H. was injured while being passed
back and forth between R.S. and T.M. was unsubstantiated. A doctor’s note
confirmed R.S. was not home at the time of the injury and this version of events was
mentioned only in the emergency records.
While V.H. was injured under Father’s watch, Father’s behavior did
not rise to being “reckless” or creating “substantial risk.” Ms. Scott of CCDCFS
focused on Mother and Father’s sleeping with V.H. as the source of abuse. However,
sleeping did not satisfy the definitions of “reckless” or “substantial risk.” The
parents testified their doctor was aware of this sleeping arrangement and never
voiced any concerns and did not indicate the practice was comparable to abuse.
Ms. Scott also alleged negligent supervision because Mother left the
children in Father’s care after he worked a night shift and he was sleeping when
Father was in charge of V.H. and T.M. Conflicting evidence was introduced whether
Father worked a night shift the day prior to V.H.’s injury. Father testified he was
awoken by Mother when she left the house and she did not know he went back to
sleep. Regardless, it seems unreasonable to state V.H. was endangered because
Father slept at the same time as she and T.M. Typically, parents sleep at night at the
same time as their children; children wake up and can move about the house. Such
behavior is neither reckless nor placing a child at a substantial risk. A baby gate on
the parents’ bedroom doorway could have remedied T.M. and the other children
having access to V.H. while she slept and such a solution would have been a far less
disruptive resolution in comparison to removing V.H. from her parents’ custody.
Father testified he and Mother initially were hesitant to change their sleeping habits
with V.H., but subsequently told CCDCFS via telephone that they were willing to
sleep separately from V.H.
Lastly, CCDCFS referenced the March 2018 incident that was self-
reported by R.S. R.S. alleged Father “punched” him in the back as a form of
discipline. Ms. Scott spoke with Father and R.S. about the incident and there was
no testimony substantiating the allegations. While R.S. was interviewed in front of
both his Mother and Father, he did not state he had been punched. R.S. goes to
school each day where he interacts with teachers and adults. Presumably, R.S. could
have reported any complaints in his school setting yet no such reports were relayed
to CCDCFS. The record could be viewed, within a reasonable probability, not to
support an allegation that V.H. was an endangered child in accordance with
R.C. 2151.031(B).
R.C. 2151.031(C) defines an abused child as one who “[e]xhibits
evidence of any physical or mental injury or death, inflicted other than by accidental
means, or an injury or death which is at variance with the history given of it.” As
stated previously, Mother and Father stated V.H. sustained a broken arm when her
brother, T.M., pulled her off of the bed or attempted to pick her up from the bed. A
different version of the facts was reflected in the emergency records where it was
written R.S. and T.M. were passing V.H. back and forth when she fell to the floor.
That account did not factually make sense since Mother and R.S. were not at home
when the incident occurred. Also, subsequent to the emergency room visit, Mother
and Father consistently stated V.H. was injured when T.M. attempted to move her
from bed. While V.H.’s injury was unfortunate and measures should have been
taken to avoid a repeat occurrence, the event could have been categorized as an
accident. The facts could have been interpreted, within a reasonable probability, as
showing V.H. was not an abused child under R.C. 2151.031(C).
No facts were presented to suggest Mother and/or Father undertook
acts causing V.H. to suffer a physical or mental injury or that harm or threaten to
harm V.H.’s health or welfare. Additionally, no facts were introduced supporting an
allegation of out-of-home care child abuse. Absent such evidence, the record, within
a reasonable probability, can be seen as not supporting an allegation of abuse under
R.C. 2151.031(D) or (E). Based upon the foregoing, there is a reasonable probability
that but for counsel’s failure to object to the magistrate’s decision and findings of
fact, the trial court would not have found V.H. abused.
The record also reflected a reasonable probability that the trial court
would not have adopted the magistrate’s decision and findings of fact to adjudicate
R.S., M.S., and T.M. as neglected. In the instant case, neglect could have been
argued under R.C. 2151.03(A)(2) or (A)(3):
(A) As used in this chapter, “neglected child” includes any child:
***
(2) Who lacks adequate parental care because of the faults or habits of
the child’s parents, guardian, or custodian;
(3) Whose parents, guardian, or custodian neglects the child or refuses
to provide proper or necessary subsistence, education, medical or
surgical care or treatment, or other care necessary for the child’s health,
morals, or well being;
***
The initial complaint against Mother and Father presented these
allegations:
(1) Mother lacked adequate parenting skills which placed the children
at risk of harm. Specifically, Mother left V.H. and T.M. in the care
of Father after Father had worked a night shift and as a result,
Father was sleeping when he was supposed to be caring for the
children.
(2) Mother failed to adequately supervise the children based upon an
allegation that V.H. was injured during play with R.S. and T.M.
(3) Father inappropriately disciplined R.S. by punching him in the
back.
Mother left two sleeping children, V.H. and T.M., under the care of Father. Mother
and Father’s behavior towards R.S., M.S., and T.M. exhibited adequate parental care
and the provision of proper and necessary care as required under R.C. 2151.03(A)(2)
and (A)(3). R.S. was allegedly struck once by Father. CCDCFS became aware of this
self-reported incident, completed an investigation, and filed no complaint on the
allegations. The magistrate voiced her displeasure that the investigating social
worker was unable to talk with R.S. away from Mother and Father and did not
examine under R.S.’s shirt to ensure there was no bruising or visible marks.
However, the conversation between the social worker and the family did not support
any allegation against Mother and/or Father. R.S. attended school daily and had
regular visits with his biological father, Ro.S. R.S. presumably, could have shared
any abuse or neglect with those caregivers yet no such behavior was reported. The
father, Ro.S., voiced concerns about Mother and Father’s discipline and yelling, but
he supported keeping his children, R.S. and M.S., in Mother’s custody rather than
removing them to CCDCFS’s temporary custody.
The only testimony introduced regarding M.S. was that she initially
missed a number of days of kindergarten, but her attendance improved by the end
of the year. And the only evidence regarding T.M. was that Mother left him in the
care of Father on a morning after Father allegedly worked a night shift. Father
denies working a night shift on the night in question. On the day V.H. was injured,
T.M. was sleeping when his mother left the house. Mother was normally home
during the day to care for T.M. There was a reasonable probability that the trial
court would not have adjudicated the three children neglected if Mother and
Father’s counsel had filed objections to the magistrate’s decision.
But for the ineffective assistance of counsel provided to Mother and
Father, the above objections would have been raised in response to the magistrate’s
decision and there is a substantial probability that the trial court would not have
adopted the magistrate’s decision and findings of fact. For the foregoing reasons,
we find merit in Mother’s second assignment of error and remand the case so
Mother has an opportunity to file objections to the magistrate’s order and file a
transcript of the proceedings with the trial court.
Judgment reversed and remanded to the trial court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of appellees the costs herein taxed. Costs
waived.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, 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.
RAYMOND C. HEADEN, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY