In re H.D.D.
Rendered on December 27, 2012
Giorgianni Law LLC, and Paul Giorgianni, for appellant A.E.
Axelrod Todd Laliberte LLP, and Zachary M. Swisher, for appellant M.D.
Robert J. McClaren, for appellee Franklin County Children Services.
Ron O‘Brien, Prosecuting Attorney, and Jeanne M. Newkirk, for appellee State of Ohio.
APPEALS from the Franklin County Court of Common Pleas Division of Domestic Relations, Juvenile Branch
DORRIAN, J.
{¶ 1} Appellants, A.E. (“Mother“) and M.D. (“Father“) (collectively “parents“), are the parents of five children whose custody is at issue in this consolidated appeal from judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations,
{¶ 2} In its judgments, the juvenile court adopted identical magistrate decisions issued in each of the cases. The magistrate adjudicated the youngest of the children, H.D.D., as an abused, neglected, and dependent child, and awarded temporary custody of him to appellee Franklin County Children Services (“FCCS“). The magistrate also awarded temporary custody of the four older children to FCCS. We consolidated the parents’ appeals for briefing and oral argument, and both FCCS and the State of Ohio have filed appellee briefs. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} Appellants’ five children as relevant to this appeal2 are:
- M.E., a boy born November 6, 2001, who was adjudicated to be a dependent child on December 2, 2008;
- S.D. and D.D., twin girls born August 9, 2003, who were adjudicated to be dependent children on December 2, 2008;
- A.D., a boy born September 16, 2006, who was adjudicated to be a dependent child in February 2009; and
- H.D.D., a boy born June 16, 2009, who was adjudicated to be an abused, neglected, and dependent child on September 7, 2010.
{¶ 4} The adjudications of the four older children as dependent are final. As to them, the sole issue in this appeal is whether the trial court erred in awarding temporary custody to FCCS. As to the youngest child, H.D.D., the parents challenge the court‘s order adjudicating him to be an abused, neglected, and dependent child, as well as its order of temporary custody to FCCS.
Case histories of the four older children, M.E., S.D., D.D., and A.D.
{¶ 5} We begin by addressing the facts concerning the four older children.
{¶ 7} In the years that followed, the children3 cycled between living with Mother while under the protective supervision of FCCS and living in foster care pursuant to orders of emergency custody and temporary custody to FCCS. This was the result of FCCS receiving repeated referrals concerning the family, followed by temporary removal of the children, followed once again by return of the children to Mother. Among the referrals received by FCCS were the following: (1) the oldest child, M.E., then two, was observed to be barefoot in a Meijer store, and one of the twins, then five months of age, had been left home alone at the time, resulting in Mother being charged with two counts of child endangering (January 2004); (2) police had stopped Mother for erratic driving while M.E. was in the car and had taken the child to FCCS (January 2005); (3) Mother, accompanied by M.E., had been arrested in an adult entertainment club after appearing there only partially dressed and intoxicated (October 2005); (4) one of the twins, then two years of age, was observed alone in the street and was returned to the parents, who hadn‘t realized she was missing (June 2006); (5) Mother had, while in a Kohl‘s department store, asked an associate to take the twins, then three years of age, to the restroom and then left the store for approximately 15 minutes and, on her return, Mother appeared to be under the influence of an unknown substance (January 2007); (6) police were called after a report that one of the twins had been observed outside, unsupervised, and that a physical altercation had ensued between Mother and the person who contacted police (January
{¶ 8} During this period of court involvement, FCCS and an associated managed care contractor, the Ohio Youth Advocate Program4 (“OYAP“), prepared and filed with the court numerous case plans and other documents describing steps the parents were required to take to ensure the safety and welfare of their children. For example, upon adjudicating M.E. and the twins dependent in December 2003, the court left the children in the custody of their Mother but issued court orders of protective services to FCCS. It ordered Mother to undergo four random urine drug tests; to undergo a mental health assessment and follow through with resulting recommendations; to participate in an alcohol and drug assessment and follow through with resulting recommendations; to ensure that her children were protected against abuse and neglect while in her care; to attend parenting classes; to allow an infant protocol nurse to assess the twins and to follow any recommendations the nurse might make; and to only use the drugs that were prescribed to her and to take the recommended dosage.
{¶ 9} In June and again in July 2006, the parents agreed to follow safety plans stating that the children would be supervised at all times and not be allowed to play in the street. Similarly, on February 15, 2007, the parents executed a memorandum of agreement
{¶ 10} On April 24, 2009, after granting multiple continuances, the court held a hearing on pending motions for temporary custody that had been filed by the agency in August and November of 2008. At the hearing, however, FCCS agreed to withdraw their motions for temporary custody based on the parents’ agreement to comply with yet another amended case plan. The parents agreed to follow recommendations made after alcohol and drug assessments were completed on February 2, 2009. Specifically, Mother agreed to be linked to level IA, non-intensive drug counseling; attend at least four 12-step meetings weekly until that treatment was facilitated; and allow the agency‘s case manager to contact her physicians regarding her prescribed medications and drug levels. The case plan required both Mother and Father to take random urine screens upon request of the agency.
{¶ 11} In addition, the parents once again agreed to provide for the children‘s basic needs, protect them from abuse and neglect, and supervise them in a manner described in the plan. More specifically, the parents agreed that the children, while away from their residence, would remain in the immediate physical presence and control of a parent or the maternal or paternal grandmother and could play in their fenced backyard if they were under direct supervision and within sight and sound of a parent or other adult relative. In addition, the parents agreed to cooperate with the agency‘s caseworkers, participate in all recommended services, and work to address concerns relative to the home environment. The agency agreed to provide a home-based worker on a biweekly basis. Moreover, the plan called for the three older children to participate in family counseling and receive mental-health assessments, and for the parents to follow the recommendations that followed. Based on the parents’ agreement to comply with these conditions, the children remained in Mother‘s home under the protective supervision of the agency.
{¶ 12} On June 16, 2009, approximately two months after the four older children were once again returned to Mother, the fifth child at issue in this appeal, H.D.D., was born. Upon arriving at the hospital, Mother provided a medical history that reflected inadequate prenatal care. Mother tested positive in the hospital for cocaine, barbiturates, and opiates. After H.D.D.‘s birth, hospital staff ordered tests of the baby‘s urine and meconium and sent H.D.D. to the hospital‘s special-care nursery for evaluation of possible intrauterine drug exposure. H.D.D.‘s urine tested positive for cocaine and barbiturates. His meconium tested negative for cocaine but positive for opiates. H.D.D. was treated for drug withdrawal and remained in the hospital approximately 30 days until July 17, 2009.
Legal Proceedings After Birth of H.D.D.
{¶ 13} On June 19, 2009, three days after H.D.D.‘s birth, the agency moved the court to grant temporary custody of the four older children to FCCS. On June 25, 2009, the magistrate issued a temporary order of temporary custody to FCCS, which thereafter placed the four older children in foster care.
{¶ 14} On July 17, 2009, contemporaneously with H.D.D.‘s release from the hospital, FCCS filed a complaint alleging that H.D.D. was an abused, neglected, and/or dependent child. On that same day, the magistrate issued an emergency care order authorizing FCCS to place the baby in the home of either a relative or non-relative, and H.D.D. was placed in foster care. On July 20, 2009, the magistrate replaced the emergency order with a temporary order of temporary custody of H.D.D. to FCCS.
The Evidentiary Hearing—June-July, 2010
{¶ 15} The magistrate conducted an evidentiary hearing on eight days in June and July, 2010. The hearing encompassed both the pending temporary custody motions as to the older children and the complaint alleging that H.D.D. was an abused, neglected, and/or dependent child.
{¶ 16} The family‘s caseworker since January 2009 testified. He stated that he had reviewed the agency‘s records concerning the family dating back to 2004 and that the parents had not complied with all of the requirements of the court-ordered case plans. Specifically, Mother had never participated in a drug and alcohol treatment program, although she had consulted with a psychologist, Dr. William Friday. Mother had, at one
{¶ 17} The caseworker testified that he asked Mother to undergo urine drug tests on 58 occasions between March 31, 2009 and June 4, 2010. Mother failed to appear for the tests 30 times. Of the 28 times she did provide samples, she tested positive for opiates or morphine 23 times. She tested negative five times. The caseworker described the Mother‘s cooperation with him as “minimal.” Mother had not enrolled her children in Head Start, participated in family counseling, nor obtained psychiatric services.
{¶ 18} The caseworker further acknowledged that Mother had provided him with copies of prescriptions for morphine, oxycodone, and diazepam issued to her between 2008 and 2010. He stated that he was aware that, in January 2009, Mother had been prescribed oxycodone, an opiate. He testified that it alarmed him that some of Mother‘s test results were negative for opiates, as Mother had reported that she had been prescribed a regular regimen of opiates, and a negative test result would therefore be inconsistent with the Mother taking her medications as prescribed. The caseworker testified that Mother had informed him that she had undergone psychological and psychiatric evaluations, but she had not provided him with written reports of those evaluations.
{¶ 19} The caseworker requested that Father undergo urine drug testing 48 times. The Father took tests 12 times, producing two results that were positive for marijuana. He further testified that, based on the parents’ failure to comply with the case plan, FCCS continued to have concerns regarding the adequacy of the parents’ supervision of the children.
{¶ 20} An FCCS intake worker testified that the agency had been contacted on June 18, 2009 by staff members of the hospital where H.D.D. was born, reporting that Mother had told the staff that she had not received prenatal care. The hospital also advised FCCS that Mother had tested positive for drugs and that the baby had tested positive for cocaine and barbiturates. The FCCS worker testified that she interviewed Mother in the hospital and that Mother admitted that she had not received prenatal care but denied having used cocaine during her pregnancy.
{¶ 21} H.D.D.‘s treating physician, neonatologist and certified pediatrician Dr. Erehab Ahmed, testified at the hearing. He described H.D.D. in his first days of life as
{¶ 22} Dr. Ahmed had “no doubt” that H.D.D. was in withdrawal based on the Mother‘s positive drug test results for both illegal and prescription drugs; the baby‘s positive test results for cocaine and barbiturates; Mother‘s admitted history of inadequate prenatal care; and the baby‘s physical symptoms. Dr. Ahmed described neonatal abstinence syndrome as being a very serious condition, potentially leading to severe convulsion, seizures or even death. The doctor prescribed methadone treatment of H.D.D. in the hospital over the course of the next 29 days to wean the baby from the addictive effects of the drugs in his system.
{¶ 23} Dr. Ahmed further testified that prescription drugs such as Vicodin and Percocet are opiates and that their use while Mother was pregnant could negatively affect the baby. He also opined that a doctor monitoring the prenatal care of a pregnant woman who was taking prescription opiates for pain might be able to treat the mother‘s pain in a manner that would reduce the baby‘s risk of experiencing withdrawal at birth.
{¶ 24} Dr. Ahmed acknowledged that the drug test of H.D.D.‘s meconium produced a negative test result for cocaine. But the fact that only the urine test produced a positive result for cocaine did not affect Dr. Ahmed‘s determination that the baby needed to be treated for withdrawal, and he did not believe that the test results were inconsistent. He testified that it was very unlikely that the baby‘s positive urine test result for cocaine was a false positive as false negative drug test results are more common than false positives. He further testified that a positive result from a test of a baby‘s urine reflects drugs or medications used by the mother within the last two to three days before administration of the test and that the meconium test might reflect drug use by the mother during a different period of time.
{¶ 25} Mother testified at the hearing. She stated that Father did not live in her home but was present every day to help in parenting the children when they were in her
{¶ 26} Mother testified that she suffered from anxiety disorder. She acknowledged that prior case plans had required her to undergo a psychological evaluation and to participate in recommended services after that evaluation. She testified that she did undergo an evaluation in August 2008 by Clinical Psychologist Dr. Grady Baccus at the agency‘s request. She acknowledged that she was aware of Dr. Baccus‘s report, which stated his belief that Mother suffered from bipolar disorder and had experienced long episodes of mania, and included a recommendation that Mother receive a psychiatric consultation regarding the advisability of medication to control her disordered mood and thought processes. Mother testified, however, that she “basically * * * blew that off” and instead consulted psychologist Dr. Friday, who provided her with drug and alcohol counseling, family counseling, parenting counseling, and individual counseling. (June 24 Tr. 56.) Mother denied that she suffered from bipolar disorder.
{¶ 27} Dr. Friday, however, testified that Mother had only been an irregular client of his since 2004. He testified that he consulted with Mother “a little more than once a month” during 2007 and not “very much in 2008.” (July 14 Tr. 16.) Dr. Friday met with Mother four times in 2009, twice after H.D.D. was removed from the home, and twice in 2010. His most recent consultation with Mother took place on February 1, 2010, approximately five months prior to his testimony. He described Mother as suffering from anxiety and depression and suggested that accountability was “very, very hard for her.”
{¶ 28} At the conclusion of the hearing, the appointed guardian ad litem advised the court of her belief that H.D.D. was an abused, neglected, and dependent child and that the children should not be returned to the parents. On September 29, 2009, the guardian ad litem for all five children filed a written report, again recommending that the children remain in foster care.
The Magistrate‘s Decisions
{¶ 29} On September 7 and 8, 2010, the magistrate filed an identical written decision in each of the four cases. He concluded that the agency had “proven by clear and convincing evidence that it is in the best interests of the [four older] children to grant their motion requesting temporary custody.” (Mag. Dec., at 5.) He therefore ordered, effective July 14, 2010, temporary custody of those children to the agency.
{¶ 30} In addition, the magistrate found by clear and convincing evidence that H.D.D., the youngest child, was “an abused minor as defined in section
{¶ 31} In his decision, the magistrate referenced Mother‘s failure to comply with the April 2009 case plan, e.g., her failure to complete non-intensive drug counseling and attend individual counseling; her failure to complete approximately 30 requested drug screens; and her failure to demonstrate that she had been issued current prescriptions for the medications reflected in her positive drug screens. He cited Dr. Ahmed‘s testimony that H.D.D.‘s addiction and suffering as a result of drug withdrawal could have been avoided had Mother obtained proper prenatal care. He concluded that neither Mother nor Father had complied with the obligations imposed by the court-ordered case plan concerning drug
The Juvenile Court Decision
{¶ 32} The juvenile court conducted a hearing on the parents’ objections to the magistrate‘s decision, after which, on January 23, 2012, it entered in each case a nine-page written judgment entry adopting the magistrate‘s decision as its own. In so doing, the court made final the adjudication of H.D.D. as an abused, neglected, and dependent child, as well as the magistrate‘s orders awarding temporary custody of all five children to FCCS.
II. LEGAL ANALYSIS OF ASSIGNMENTS OF ERROR
{¶ 33} Mother and Father have raised multiple assignments of error, which we summarize and enumerate as follows:
- The magistrate erred in admitting hearsay evidence, specifically: (1) toxicology reports concerning drug testing of H.D.D.‘s urine and meconium; (2) hearsay testimony of Dr. Ahmed; and (3) Father‘s positive marijuana tests.
- The magistrate erred in not granting a continuance to allow the parents to obtain a second toxicologist as an expert witness, when their intended toxicologist could not testify due to health issues.
- The parents did not receive effective assistance of counsel.
- The court erred in finding that H.D.D. was abused, neglected, and dependent.
- The magistrate should not have consolidated into a single hearing: (1) adjudication of H.D.D., i.e., whether he was an abused, neglected, or dependent child; and (2) determination of the agency‘s motion to terminate Mother‘s legal custody of the four older children and replace it with an order of temporary custody to FCCS.
The court erred in awarding temporary custody of the five children to FCCS. - The court failed to make factual findings consistent with the requirements of
R.C. 2151.419(B)(1) . - The juvenile court improperly deferred to the magistrate rather than performing the requisite independent review of the evidence.
{¶ 34} We address each of these arguments below.
Alleged Evidentiary Error
{¶ 35} The parents assert that the magistrate erred in admitting into evidence: (1) toxicology reports reporting that H.D.D. tested positive for cocaine, barbiturates and opiates; (2) testimony by Dr. Ahmed that Mother had tested positive for drugs and lacked prenatal care; and (3) testimony by the caseworker that Father had twice tested positive for marijuana.
{¶ 36} In considering this assignment of error, we are guided by the well-established principle that “[t]he admission of evidence is generally within the sound discretion of the trial court, and a reviewing court may reverse only upon the showing of an abuse of that discretion. [Citation omitted.] To warrant reversal, therefore, the trial court‘s discretionary evidentiary ruling must be unreasonable, arbitrary, or unconscionable.” Jefferson v. CareWorks of Ohio, Ltd., 193 Ohio App.3d 615, 2011-Ohio-1940, ¶ 6 (10th Dist.).
H.D.D. Toxicology Reports
{¶ 37} Admissibility of H.D.D.‘s toxicology test reports is dependent upon those records having been both (1) properly authenticated and (2) admissible as nonviolative of the rule against hearsay.
{¶ 38} Mother has conceded in her brief that the parties stipulated as to the authenticity of the test results. She nevertheless argues that the laboratory test results were not admissible as business records falling within the exception to the hearsay rule established by
{¶ 39} This court has found, however, that laboratory test results contained in authenticated records do fall within the business records exception to the hearsay rule when supported by testimony that the laboratory report was kept in the course of regularly
{¶ 40} Similarly, the Sixth District Court of Appeals has considered a temporary custody case similar to that now before us where both the urine and meconium of a newborn were tested, and a positive result for illegal drugs was obtained in only one of the two tests. In re Kenn B., III, 6th Dist. No. OT-08-006, 2008-Ohio-5033. The court observed that, “[p]ursuant to
{¶ 41} Additionally, Father argues that the magistrate should not have admitted H.D.D.‘s test results without testimony from a toxicologist who could explain possible reasons for the fact that the baby‘s urine produced a positive result for cocaine, while its meconium produced a negative result for cocaine. But, as established in Belcher, once the appellees provided testimony that the laboratory report was kept in the course of regularly conducted business, the burden of producing substantial credible evidence that the laboratory procedures and results were untrustworthy was on the parents. The parents failed to offer, or even proffer, any evidence that the test results were wrong. Significantly, as observed in In re Kenn B., the admission of even one test result showing the presence of illegal drugs within a newborn‘s system justifies the trial court‘s adjudication of H.D.D. as a per se abused child. See In re Blackshear, at syllabus (“When a newborn child‘s toxicology screen yields a positive result for an illegal drug due to prenatal maternal drug abuse, the newborn is, for purposes of
{¶ 42} In the case before us, Dr. Ahmed, a neonatologist and certified pediatrician,
Dr. Ahmed‘s Testimony
{¶ 43} Mother argues that the magistrate erred in allowing Dr. Ahmed to testify that Mother had failed to obtain adequate prenatal care and had taken illegal drugs while pregnant. Mother concedes that this testimony was admissible as non-hearsay to explain why he made the treatment decisions he did concerning H.D.D. but contends that it was not admissible for the purpose of proving that Mother had, in fact, failed to obtain adequate prenatal care and had taken illegal drugs while pregnant.
{¶ 44} Mother does not, however, explain how this alleged error prejudiced her. A trial court sitting as the finder of fact in a criminal case is presumed to have considered only relevant, material, and competent evidence in weighing evidence and making findings of fact, unless it affirmatively appears to the contrary. State v. Abdullah, 10th Dist. No. 05AP-1316, 2006-Ohio-5412, ¶ 38. The same presumption applies in cases in which a juvenile court finds facts in cases involving alleged abused, neglected or abandoned children. In re W.R. II, 12th Dist. No. CA2011-08-016, 2012-Ohio-382, ¶ 16, citing In re Fair, 11th Dist. No. 2007-L-166, 2009-Ohio-683, and In re Adoption of Linder, 3d Dist. No. 11-04-07, 2004-Ohio-6962, ¶ 6.
{¶ 45} Moreover, “the erroneous admission or exclusion of hearsay, cumulative to properly admitted testimony, constitutes harmless error.” State v. Hogg, 10th Dist. No. 11AP-50, 2011-Ohio-6454, ¶ 46. In this case, the agency‘s intake worker testified that Mother had admitted to her in the hospital that she had not received prenatal care. That statement by Mother was admissible. See In re C.C., 10th Dist. No. 04AP-883, 2005-Ohio-5163, ¶ 35 (pursuant to
{¶ 46} Accordingly, we reject Mother‘s contention that the trial court abused its discretion in allowing Dr. Ahmed to testify that Mother had not received prenatal care and had used cocaine during pregnancy.
Caseworker‘s Testimony
{¶ 47} Mother further argues that the trial court erred in allowing the caseworker to testify that Father twice tested positive for marijuana. But again, that testimony was cumulative to Father‘s own testimony that he had “smoked it since [he] was twelve,” had in the past smoked it “[m]aybe once a month or every couple months,” and had chosen to give it up “the last time [he] tested dirty for marijuana.” (June 30 Tr. 91.) As such, the admission of similar testimony by the caseworker was harmless.
{¶ 48} Accordingly, we reject Mother‘s contention that the trial court‘s judgment should be reversed based on trial court error in allowing the caseworker to testify that Father had tested positive for marijuana.
Alleged Error in Denying Continuance
{¶ 49} Mother moved for a continuance on the last day of trial on the grounds that an intended expert witness, toxicologist Dr. Staubus, was unavailable to testify, as he was recovering from surgery and would not be available for three to four weeks. The magistrate denied the motion. The trial court overruled Mother‘s objection asserting that a continuance should have been granted.
{¶ 50} As this court stated in Foley v. Foley, 10th Dist. No 05AP-242, 2006-Ohio-946, ¶ 15:
[T]he decision to grant or deny a continuance lies within the sound discretion of the trial court. State v. Unger (1981), 67 Ohio St.2d 65, 67, 423 N.E.2d 1078. Thus, the decision of a trial court regarding a motion for a continuance will not be reversed on appeal unless the trial court has abused its discretion. Fiocca v. Fiocca, 10th Dist. No. 04AP-962, 2005-Ohio-2199, at ¶ 6. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218, 450 N.E.2d 1140,
1142. In determining whether a trial court has abused its discretion, a court of appeals may not substitute its judgment for that of the trial court. Id.
{¶ 51} In deciding a motion for a continuance, a court should consider, among other relevant considerations, the length of the delay requested; whether other continuances have been requested and received; the inconveniences to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful or contrived; and whether the defendant contributed to the circumstances which give rise to the request for a continuance. Id. at ¶ 16.
{¶ 52} The court observed in this case that Mother‘s trial counsel had been aware of the expert‘s medical condition for some time yet never provided an expert witness report to any party or proffered one to the court. It noted that counsel did not specify the length of continuance it was requesting but, instead, urged the court to hold the record open indefinitely. The court further noted that H.D.D.‘s case had been dismissed and re-filed a number of times and that numerous continuances had already been granted. Moreover, Mother‘s counsel made the motion after the trial had been ongoing for almost one month.
{¶ 53} In light of these circumstances, we reject Mother‘s contention that the trial court abused its discretion in concluding the evidentiary hearing rather than indefinitely continuing it.
Alleged Deprivation of Effective Assistance of Counsel
{¶ 54} Mother argues that the failure of her counsel to produce Dr. Staubus or another expert toxicologist constituted ineffective assistance of counsel. She contends that, faced with the unavailability of Dr. Staubus, her counsel should have either: (1) retained another expert to testify; (2) obtained an expert report from Dr. Staubus to proffer at trial; (3) prepared a video deposition of Dr. Staubus to be played at trial; or (4) sought a continuance earlier than the final day of trial. Mother contends that counsel thereby deprived her of expert testimony concerning the “most significant and most contested issue in the case,” presumably the validity of the results of H.D.D.‘s urine test. (Mother‘s brief, at 23.)
{¶ 55} A parent who is a party in juvenile court proceedings has a right to effective assistance of counsel.
{¶ 56} ” ‘The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result.’ ” In re C.P. at ¶ 58, quoting Strickland at 686. Moreover, the ” ‘burden of showing ineffective assistance of counsel is on the party asserting it.’ ” Id. at ¶ 57, quoting State v. Smith, 17 Ohio St.3d 98 (1985). ” ‘Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance.’ ” Id., quoting State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
{¶ 57} To succeed on her claim of ineffective assistance of counsel, Mother must therefore satisfy the two-pronged test established in Strickland. She must first demonstrate that her trial counsel‘s performance was deficient. In re C.P. at ¶ 58. If she can show deficient performance, she must next also demonstrate that there exists a reasonable probability that, but for her counsel‘s errors, the result of the trial would have been different.
{¶ 58} Mother has not provided any information either in the trial court, or in this court, as to what Dr. Staubus‘s testimony might have been. Accordingly, there is no basis to conclude that Dr. Staubus would have offered testimony that invalidated the positive cocaine result of H.D.D.‘s urine test, or that would otherwise have changed the results of this case. It is true that the urine test produced a positive result for cocaine, while the meconium test did not. But Dr. Ahmed testified that such a circumstance did not cause him to doubt that the urine test was accurate. Mother has produced in this appeal nothing to rebut that testimony or to support the conclusion that Dr. Staubus, or another toxicologist, might have testified otherwise.
{¶ 59} Mother has accordingly failed to satisfy her burden of showing prejudice as a result of her counsel‘s failure to produce the testimony of a toxicologist and has not
{¶ 60} We therefore reject Mother‘s contention that she was deprived of the effective assistance of counsel, as she has failed to satisfy her burden of showing that the results of the trial would have been different had an expert toxicologist testified.
Adjudication of H.D.D. as Abused, Neglected, and Dependent
{¶ 61} Mother and Father both acknowledge that the controlling standard the trial court must apply in determining whether a child is abused, neglected or dependent is whether the record contains clear and convincing evidence of that status. Accord
{¶ 62} Mother and Father both argue that the record lacked clear and convincing evidence that H.D.D. was an abused, neglected, and dependent child. They contend that there is substantial doubt as to the accuracy of H.D.D.‘s urine test, which produced a positive result for cocaine and barbiturates, pointing to the fact that his meconium test results did not produce results positive for cocaine. They argue that the record does not support the conclusion that H.D.D. was born with cocaine in his system.
{¶ 63} As discussed above, however, the Supreme Court of Ohio has held that, “[w]hen a newborn child‘s toxicology screen yields a positive result for an illegal drug due to prenatal maternal drug abuse, the newborn is, for purposes of
{¶ 64} Under the controlling precedent of In re Blackshear, the trial court did not err in adjudicating H.D.D. to be an abused child as defined in
{¶ 65} In addition to entering judgment that H.D.D. was abused, the juvenile court also adjudicated H.D.D. to be both neglected and dependent. Pursuant to
{¶ 66} Having found H.D.D.‘s adjudication as an abused child to have been appropriate pursuant to In re Blackshear, it is unnecessary for us to review the further findings of the court that H.D.D. was dependent and also neglected. H.D.D.‘s adjudication as abused independently supports the court‘s dispositional order concerning him, as well as its exercise of continued jurisdiction over him.
{¶ 67} We note, however, that the Fourth District Court of Appeals has held that a record containing evidence that a mother received no prenatal care and that her baby tested positive for illegal drugs at birth is a record that contains some competent, credible evidence sufficient to affirm a baby‘s adjudication by the trial court as both neglected and dependent. In re Barnhart, 4th Dist. No. 05CA8, 2005-Ohio-2692, ¶ 21.
{¶ 68} Accordingly, we affirm the trial court‘s judgment finding H.D.D. to be an abused child and find moot issues relative to his further adjudication as both neglected and dependent.
{¶ 69} Father argues that the magistrate erred in trying the issues of whether H.D.D. was abused, neglected or dependent at the same hearing at which he heard evidence in support of the agency‘s motions to change the custodial status of the four older children. He contends that this procedure allowed the court to hear evidence that would not otherwise have been admissible in H.D.D.‘s adjudicatory hearing. But he fails to identify any such nonadmissible evidence.
{¶ 70} It is true that a wider range of evidence is admissible in a dispositional hearing than in an adjudication hearing. “There must be strict adherence to the Rules of Evidence at the adjudicatory stage.” In re Baby Girl Baxter, 17 Ohio St.3d 229, 233 (1985).5 In contrast, at the dispositional stage, “any evidence that is material and relevant, including hearsay, opinion and documentary evidence,” is admissible, pursuant to
{¶ 71} Moreover, it is also well-established that, in the absence of plain error, failure to draw the trial court‘s attention to possible error at a time at which the error could have been corrected results in a waiver of the issue for purposes of appeal. In re Moore, 10th Dist. No. 04AP-229, 2005-Ohio-747, ¶ 8. In a civil proceeding, “plain error involves those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material, adverse effect on the character of, and public confidence in, judicial proceedings.” Id. at ¶ 8, citing Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997).
{¶ 72} In this case, the magistrate reiterated to the parties on the first day of trial that he intended to hear the agency‘s motions for temporary custody of the four older children simultaneously with the hearing on FCCS‘s complaint concerning H.D.D. Counsel for OYAP specifically asked the magistrate whether the complaint concerning H.D.D.
{¶ 73} In this case, the agency did not seek and the court did not award permanent custody, thereby terminating parental rights; the parties did not object to the magistrate‘s intended procedure, despite having a clear opportunity to object; and the court adjudicated the child‘s status as a per se abused child under the In re Blackshear doctrine. Under the circumstances, the magistrate‘s decision to hear both the complaint concerning H.D.D. and the motions to award temporary custody of the older children to FCCS did not have a material, adverse effect on the character of, and public confidence in, the judicial proceedings and did not therefore constitute plain error. Father waived any error inherent in that procedure by not objecting at the time of trial.
{¶ 74} We therefore reject Father‘s contention that the holding of a consolidated hearing in this case constituted reversible error.
Alleged Error in Awarding Temporary Custody
{¶ 75}
{¶ 76} In determining an appropriate disposition, the court must exercise a sound discretion. In re M.D., 10th Dist. No. 07AP-954, 2008-Ohio-4259, ¶ 21. Also, the court “must also consider which situation will best promote the care, protection, and mental and physical development of the child with the understanding that the court should separate a child from his family environment only when necessary for the child‘s welfare or in the interest of public safety.” In re T.P., 12th Dist. No. CA2012-02-004, 2012-Ohio-4614, ¶ 7, citing
{¶ 77} Accordingly, this court may not reverse a juvenile court‘s choice of dispositional alternatives in the absence of a finding that the court abused its discretion,
{¶ 78} In the case before us, the trial court awarded temporary custody of all five children to FCCS. This court has recognized that an award of “legal custody where parental rights are not terminated is not as drastic a remedy as permanent custody.” In re N.F., 10th Dist. No. 08AP-1038, 2009-Ohio-2986, ¶ 9. An award of temporary custody does not permanently deprive appellants of their parental rights, and parents whose children are in the temporary custody of an agency or other person may petition the court for modification of the custody award. In re M.D. at ¶ 16. See also
{¶ 79} In this case, the trial court did not abuse its discretion in awarding temporary custody to FCCS. This court has previously recognized that “[v]arious sections of the Revised Code refer to the agency‘s duty to make reasonable efforts to preserve or reunify the family unit.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28-29. But the long history of this case clearly demonstrates that both the agency and the court repeatedly provided opportunities and offered services to Mother and Father to enable them to establish a safe environment for their children. The parents repeatedly failed to comply with the responsibilities imposed on them in numerous court-ordered case plans dating back to at least 2003.
{¶ 81} In this temporary custody case, however, there is ample evidence that the parents have consistently failed to comply with the obligations imposed upon them by court-ordered case plans—many of which they expressly agreed to satisfy—including the obligations to participate in family and drug and alcohol counseling and to obtain mental-health evaluation and treatment. The record supported the agency‘s contentions that the parents had not addressed the conditions that caused the children‘s repeated removals, e.g., failure to assure their basic safety through adequate supervision.
{¶ 82} Moreover, the fact that H.D.D. was addicted to drugs at birth is evidence of Mother‘s unwillingness or inability to either properly manage her use of prescription drugs or avoid the use of illegal drugs, or both. “A child does not first have to be put into a particular environment before the court can determine that the environment is unhealthy or unsafe.” In re Barnhart at ¶ 24, citing In re Bishop, 36 Ohio App.3d 123, 124 (5th Dist.1987). “The unfitness of the parent, guardian or custodian can be predicted by past history.” In re Bishop at 126.
{¶ 83} In short, the trial court did not abuse its discretion or act unreasonably in finding that the best interests of the children were served by placement other than in Mother‘s home. Accordingly, we affirm the trial court‘s judgment awarding temporary custody of the children to FCCS.
R.C. 2151.419(B)(1) Factual Findings
{¶ 84} Subsection (A)(1) of
{¶ 85} In this case, the magistrate observed in his decision that “[e]ven with home based services in the home, the agency was unable to allay concerns regarding the supervision of the children, the use of illicit and non prescribed drugs, and compliance with the case plan which was ordered by the court.” (Mag. Dec., at 4.) He noted that neither parent had followed the recommendations of a psychologist following a court-ordered examination; nor had they followed though with drug and alcohol counseling nor individual and family counseling as they had agreed to do. He concluded that “continuation in the [children‘s] own home would be contrary to [their] welfare and reasonable efforts have been made to prevent or eliminate the need for removal[.] * * * [P]lacement and caseworker services were provided by the agency to the family of the [children], but the removal of [the
{¶ 86} The magistrate thereby specifically referenced in his written decision that the agency had provided home-based services, placement, and caseworker services to the family. He noted the failure or inability of the parents to comply with the requirements of the case plan and stated that the concerns that originally prompted agency involvement had not been ameliorated.
{¶ 87} In a recent legal custody case, the Fifth District Court of Appeals determined that a magistrate‘s decision it described as “vague”7 met the minimum statutory mandate of
{¶ 88} Further, Mother did not challenge the magistrate‘s compliance with
{¶ 89} Accordingly, on both substantive and procedural grounds, we reject Mother‘s assignment of error challenging the trial court‘s judgment based on alleged non-compliance with
Independent Review by Juvenile Court
{¶ 90} A trial court considering a party‘s objections to a magistrate‘s decision must independently assess the facts and conclusions contained in the magistrate‘s decision, thereby undertaking the equivalent of a de novo determination in light of any filed objections.
{¶ 92} In response, appellee State of Ohio observes that the trial court clearly acknowledged the appropriate de novo standard of review and noted its obligations to refrain from deferring to the magistrate and to conduct a de novo review. Moreover, the state correctly notes that the judgment entry includes numerous references to facts relied upon by the trial court in adopting the magistrate‘s decision that were not cited by the magistrate in its decision. The state concludes that, “while the trial court may have used terminology that could suggest otherwise, a review of the January 23, 2012 Judgment Entry makes clear that the trial court both cited the correct standard of review and conducted an independent assessment of the evidence and testimony presented.” (Appellee State of Ohio‘s brief, at 8-9.) We agree.
{¶ 93} On review of a trial court‘s ruling on objections to a magistrate‘s decision “[a]n appellate court presumes that a trial court performed an independent analysis of a magistrate‘s decision.” Jones v. Smith, 187 Ohio App.3d 145, 2010-Ohio-131, ¶ 10 (4th Dist.); see also Alessio v. Alessio, 10th Dist. No. 05AP-988, 2006-Ohio-2447, ¶ 36. Therefore, a party asserting error must affirmatively demonstrate that the trial court failed to conduct the independent analysis. Id. Further, simply because a trial court adopted a magistrate‘s decision does not mean that the court failed to exercise independent judgment. Id.
{¶ 94} The excerpts quoted above from the trial court‘s written decision do not overcome the presumption of regularity to which the trial court is entitled. We read those excerpts not as statements of deference to the magistrate but, rather, as statements of concurrence with the magistrate. The court stated, for instance, that it “agree[d] that the
{¶ 95} We therefore overrule Mother‘s argument contending that the trial court failed to conduct an independent de novo review.
III. CONCLUSION
{¶ 96} For the foregoing reasons, all of the assignments of error raised by the appellants are overruled, and the judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, are affirmed.
Judgments affirmed.
KLATT and CONNOR, JJ., concur.