In re D.E.P.
JUDGMENT: AFFIRMED
RELEASED: June 25, 2009
JOURNALIZED:
Kevin H. Cronin
The Brownhoist Building
4403 Saint Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.
William D. Mason
Cuyahoga County Prosecutor
BY: James M. Price
Assistant Prosecuting Attorney
8111 Quincy Avenue
Room 341
Cleveland, Ohio 44104
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant, M.P.1 (“Mother”), appeals the trial court‘s decision terminating her parental rights and granting permanent custody of her child to the Cuyahoga County Department of Children and Family Services (“CCDCFS”). After a thorough review of the record, and for the reasons set forth below, we affirm.
{¶ 2} On January 16, 2008, Mother gave birth to a son, D.E.P. On January 18, 2008, D.E.P. was remоved from Mother‘s custody,2 and CCDCFS filed a complaint for dependency and permanent custody. On May 6, 2008, the complaint was refiled because a dispositional hearing had not been held within the statutory 90-day period. On May 15, 2008, the former complaint was withdrawn, and a hearing was held. On the basis of testimony from CCDCFS staff about Mother‘s mental health3 and non-compliance with taking her prescription medication, the court determined that the child would be at risk if rеturned to Mother. The trial court ordered D.E.P. into the predispositional temporary custody of CCDCFS. See Juv. Case No. AD08932806.
{¶ 4} CCDCFS social worker Collins testified that she spoke with Mother after D.E.P.‘s birth; that Mother had trouble communicating a plan to take the baby home and care for him; and that Mother said she planned to take D.E.P. home where he would sleep in the bathtub. Ms. Collins also testified that on other occasions when she attempted to meet with Mother at Hanna Pavilion immediately after D.E.P.‘s birth, Collins was told by staff members there that Mother was heavily medicated and unable to communicate. Collins also testified she had no contact with the possible fathers and that two relatives had come forward as possible placement options for D.E.P.
{¶ 5} CCDCFS social worker Willis testified that she аttempted to review the case plan with Mother while Mother was at Northcoast Behavioral Institute; at one point, Mother told her D.E.P.‘s father was Jesus; and paternity had not
{¶ 6} During the hearing, there was testimony about whether Mother had signed a waiver for the release of her medical records. The court was unable to determine who initiated the waiver process with Mother and whether a waiver could be located. Mr. Gardner made a motion in limine to exclude the mental health and medical records from University Hospital and Northcoast Behavioral Institute which CCDCFS sought to introduce. Mr. Gardner argued that the alleged waiver for the release of records signеd by Mother was invalid because he and Ms. Arabian had not been informed of the waiver. He argued that Mother‘s mental incapacity prevents her from executing a valid waiver.
{¶ 7} Although there was no confirmation as to whether Ms. Arabian and Mr. Gardner were given notice of the waiver, the court denied the motion on the basis that the records were released in response to a court-ordered subpoena dated July 29, 2008. The contents of the medical records were never read into the record, nor was there any indication that their contents were considered by the court in reaching its determination.
{¶ 9} Mr. Hough testified that D.E.P. had been in foster care with the same family since his birth; that D.E.P. was bonding with his foster family; and that the foster family had expressed аn interest in adopting D.E.P.
{¶ 10} The court inquired about placement with relatives. Mr. Adelstein indicated that the only relatives who were available for consideration were the maternal grandmother and a maternal aunt. Both relatives suffered from diagnosed mental illnesses, and neither relative agreed to cooperate with a case plan to pursue placement.
{¶ 11} In closing, Mother‘s counsel argued that there had been no determination that Mother could not be restored or when she might be released from Northcoast Behavioral Institute. Therefore, counsel argued, the possibility that Mother could work her case plan remained open.
{¶ 13} The court announсed its findings from the bench at the conclusion of the hearing. In reliance on the testimony of the witnesses, the court concluded that placement with Mother or relatives is not possible; that Mother is diagnosed with chronic mental illness and was non-compliant with her treatment program; and that Ms. Arabian agreed Mother could not be restored. The court acknowledged that the evidence indicated that D.E.P. was thriving with his foster family. The court thus found D.E.P. to be dеpendent and that permanent custody was in the child‘s best interest.
Review and Analysis
{¶ 14} On October 9, 2008, Mother filed a notice of appeal. She asserts three assignments of error6 for our review, all of which are related to whether the court erred in admitting Mother‘s mental health and medical records into evidence. Accordingly, we discuss them together.
Introduction of Medical Records
{¶ 15} In her first and second assignments of error, Mother argues that the court erred by allowing her mental and medical health records to be introduced
{¶ 16} Once it established temporary custody of D.E.P., CCDCFS was required to maintain a case plan for D.E.P. pursuant to
{¶ 17} Communications between Mother and her physicians or the social workers are exempt from protection normally afforded to doctor-patient communications. See
{¶ 18} Mother‘s ability to provide and care for D.E.P. was the pivotal issue before the court in determining whether to find the child dependent and to grant permanent custody to CCDCFS. As such, Mother‘s medical records were critical to the cоurt‘s determination.8
{¶ 20} The subpoenaed records are not protected as privileged communications. The communications Mother sought to have withheld from the court‘s scrutiny are not privileged because they were made when Mother was subject to the case plan created by CCDCFS. Thus,
{¶ 21} To the extent the court relied on Mother‘s medical records, if at all, we find no error. Mother‘s medical records were obtained by court order and were not subject to protection under
{¶ 22} Therefore, we overrule Mother‘s three assignments of error.
{¶ 23} Despite the fact that Mother does not specifically challenge the court‘s determination that permanent custody is in the best interest of the child, we find that, even absent the introduction of Mother‘s mental and medical health records, the court properly determined dependency and terminated Mother‘s parental rights.10
{¶ 24} A parent has a “fundamental liberty interest” in the care, custody, and management of his or her child and an “essential” and “basic civil right” to raise his or her children. In re Murray (1990), 52 Ohio St.3d 155, 156, 556 N.E.2d 1169. However, a parent‘s right is not absolute. “The natural rights of a parent *** are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.” In re Cunningham (1979), 59 Ohio St.2d 100, 106, 391 N.E.2d 1034, 1038. Consequently, the state may terminate parental rights when the child‘s best interest demands it.
{¶ 25} “If the record shows some competent, credible evidence supporting the trial court‘s grant of permanent custody to the county, we must affirm that court‘s decision, regardless of the weight we might have chosen to put on the evidence.” In re P.R., Cuyahoga App. No. 79609, 2002-Ohio-2029, at ¶ 15.
{¶ 27} It is well established that when some competent, credible evidence exists to support the judgment rendered by the trial court, an appellate court may not overturn that decision unless it is against the manifest weight of the evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.
{¶ 28} The discretion that a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned. In re Satterwhite, Cuyahoga App. No. 77071, 2001-Ohio-4137. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding (i.e., observing their demeanor, gestures, and voice inflections, and using these observations in weighing the credibility of the proffered testimony) cannot be conveyed to a reviewing court by a printed record. Id., citing Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 106 N.E.2d 772. As the Ohio Supreme Court has stated, “it is for the trial court to resolve disputes of fact and weigh the testimony and credibility of the witnesses.” Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23, 550 N.E.2d 178.
{¶ 29} The standard of review for such matters is to determine whether the trial court abused its discretion in reaching its judgment. To constitute an abuse of discretion, the ruling must be more than legal error; it must be unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶ 30} The trial court must satisfy two requirements before ordering that a child be placed in the permanent custody of CCDCFS. First, the court must find that the child cannot be placed with one of his parents within a reasonable amount of time or should not be placed with either parent.
{¶ 31} If the court determines, by clear and convincing evidence, that one or more of 16 factors under
{¶ 32} Here, the court found that appellant has chronic mental illness issues that render her incapable of providing for D.E.P. This finding was
{¶ 33} Having found that the trial court properly determined that at least one of the
{¶ 34} In determining the best interest of a child, a trial court is to consider all relevant factors including, but not limited to, the five under
{¶ 36} We find that the trial court appropriately determined that D.E.P. was dependent and permanent custody was in his best interest.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and
MARY JANE BOYLE, J., CONCUR
APPENDIX
{¶ 37} Appellant‘s assignments of error:
{¶ 38} “I. The use of the University Hospital and Northcoast Behavioral Institute medical and psychiatric records tо evaluate appellant‘s capacity in trial and evaluate dependency and neglect of the child violates federal health and privacy requirements as the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) permits health facilities to disclose an individual‘s protected health information pursuant to a court-ordered subpoena, but the information disclosed may be no broader that [sic] the court order, which is not consistent with the prosecution‘s use of appellant‘s records on an unlimited basis.”
{¶ 39} “II. The use of medical records violates federal health and privacy requirements as HIPAA permits health facilities to disclose an individual‘s protected health information following a parties’ [sic] inquiries or discovery request, provided the health facility receives ‘satisfactory assurance’ from the Cuyahoga County Department of Children and Family Serviсes (CCDCFS) that reasonable efforts have been made to ensure that the appellant has been given notice of the request, which CCDCFS failed to do.”
{¶ 40} “III. The subpoena of mother‘s private medical records and reports violates the protection accorded by the Rules [sic] of Juvenile Court Procedure 17(G), which is clear that a Juvenile Court subpoena issued under Rule 17 does not authorize disclosure of privileged information.”
Notes
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(B)(1) A physician or a dentist concerning a communication made to the physician or dentist by a patient in that relation or the physician‘s or dentist‘s advice to a patient, except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, and except that, if the patient is deemed by section 2151.421 [2151.42.1] of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject.
The testimonial privilege established under this division does not apply, and a physician or dentist may testify or may be compelled to testify, in any of the following circumstances:
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(b) In any civil action concerning court-ordered treatment or services received by a patient, if the court-ordered treatment or services were ordered as part of a case plan journаlized under section 2151.412 [2151.41.2] of the Revised Code or the court-ordered treatment or services are necessary or relevant to dependency, neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151 of the Revised Code.
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(G)(1) A school guidance counselor who holds a valid educator license from the state board of education as provided for in section 3319.22 of the Revised Code, a person licensed under Chapter 4757 of the Revised Code as a professional clinical counselor, professional counselor, social worker, independent social worker, marriage and family therapist, or independent marriage and family therapist, or registered under Chapter 4757 of the Revised Code as a social work assistant concerning a confidential communication received from a client in that relation or the person‘s advice to a client unless any of the following applies:
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(g) The testimony is sought in a civil action and concerns court-ordered treatment or services received by a patient as part of a case plan journalized under section 2151.412 [2151.41.2] of the Revised Code or the court-ordered treatment or services are necessary or relevant to dependency, neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151 of the Revised Code.”