IN RE: I.T.
C.A. Nos. 27513, 27560, 27581
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
February 17, 2016
2016-Ohio-555
WHITMORE, Judge.
STATE OF OHIO, COUNTY OF SUMMIT. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 14-01-0011
Dated: February 17, 2016
WHITMORE, Judge.
{1} Appellant, Robert T. (“Father“), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that adjudicated his minor child, I.T., to be dependent and placed him in the temporary custody of the Summit County Children Services Board (“CSB“). This Court affirms.
I
{2} Father and Ashley H. (“Mother“) are the parents of I.T., born January 2, 2014. CSB became involved with the family based upon early concerns that (1) both parents had bipolar disorder, (2) Father had a history of sexually abusing children, and (3) Mother had not been on her bipolar medication since she became pregnant. On January 8, 2014, CSB filed a complaint alleging that I.T. was a dependent child under
{3} The adjudicatory hearing began on February 5, 2014. It was continued to March 6, 2014 solely to address the results of a John Doe posting. The account of the adjudicatory hearing thus reflects testimony from the February 2014 hearing. Following the taking of evidence, the magistrate dismissed the
{4} Father filed objections to the magistrate‘s findings. Upon consideration of the objections, the trial court dismissed the allegation under
{5} On March 5, 2014, one day before the scheduled continuation of the adjudicatory hearing, CSB sought emergency temporary custody of I.T., believing the child to be at risk of harm for several reasons that were supported by an affidavit of the caseworker. The agency was concerned that: (1) Father was staying at the home despite the court order prohibiting him from having unsupervised contact with I.T.; (2) Father recently left two abusive voice mail messages
{6} On March 6, 2014, the trial court addressed the John Doe posting and then conducted the shelter care hearing for the emergency removal of I.T. from the home. During the shelter care hearing, Caseworker Tammie Sumpter testified regarding the condition of the home. She explained that a social worker assistant had visited the home twice to supervise visits and reported a strong odor of cat urine and the presence of cat feces. As a result, Ms. Sumpter and her supervisor went to the home and found it to be “disturbing.” The caseworker described seeing a small room adjacent to the kitchen which had six overturned litter boxes and a floor covered by cat feces. She also observed a man smoking a cigarette within six feet of an oxygen tank that was used by the paternal grandmother who resided there. The caseworker informed the smoker to stop because it was very dangerous. Nevertheless, another worker visited the home within a week, and found a man, later identified as Father, to be smoking a cigarette in the home. He was advised of the safety hazard.
{7} Regarding disposition, the parents waived hearing and agreed to an order of temporary custody to the agency. At the same time, the trial court adopted a case plan with which all parties expressed agreement. Mother was to complete a mental health assessment and follow all recommendations. Father was to complete a parenting class and be able to demonstrate the knowledge and skills learned. Because Father had previously begun a parenting
II
Assignment of Error Number One
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THE MINOR CHILD DEPENDENT WHEN THE VENUE REQUIREMENTS HAD NOT BEEN MET.
{8} Father argues that the trial court erred in finding I.T. dependent because venue had not been properly established. Father claims that CSB failed to present any evidence of the location or residence of either parent or of the child at the adjudication, and there was no evidence that the acts or omissions which constituted dependency took place in Summit County. Father claims this is fatal to the trial court‘s jurisdiction.
{9} Notwithstanding the fact that Father failed to bring this matter to the attention of the trial court until he lodged objections to the magistrate‘s decision, we note that the Ohio Supreme Court has recently held that the venue provisions in
Assignment of Error Number Two
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ADMITTING [CSB] EXHIBIT 1.
{10} CSB Exhibit 1 consists of the “complaint, journal entries, and orders” from the juvenile court cases involving Father‘s two other children. (In re S.T., Summit C.P., Juv.Div., No. DN08-07-612, and In re K.T., Summit C.P., Juv.Div., No. DN12-11-732). Father asserts that Exhibit 1 was improperly admitted because it was not properly certified, contains inadmissible hearsay in the form of claims within the motion for permanent custody, and is not relevant to the present case. We will address each of these arguments in turn.
{11} First, Father claims the exhibit included documents not certified by the clerk. Specifically, Father complains of the inclusion of a motion for permanent custody of S.T., an older child of Father, within the certified materials apparently based on the fact that the exhibit was labeled as “complaint, journal entries, and orders.” However, Father does not dispute that the permanent custody motion was, in fact, filed in that case, and he does not point to any specific prejudice due to the inclusion of the document per se. Consequently, the argument is overruled.
{12} Second, Father claims the exhibit contains impermissible character evidence and does not fall within the exception of
{13} Third, Father claims that Exhibit 1 should not have been admitted because there is hearsay within the motion for permanent custody. There is no indication that the motion was offered for the truth of the statements included within it, however, but rather only to reflect the record in Father‘s other case. In addition, it does not appear that the trial court relied upon the permanent custody motion in reaching its decision, nor has Father made such a claim. Finally, while Father claims the exhibit contains hearsay, he has not identified specific statements within the document that he finds objectionable. This Court will not create an argument on Father‘s behalf. See State v. Flowers, 9th Dist. Summit No. 25841, 2012-Ohio-3783, ¶ 27, citing In re G.E.S., 9th Dist. Summit No. 23963, 2008-Ohio-2671, ¶ 53. This argument is without merit. Father‘s second assignment of error is overruled.
Assignment of Error Number Three
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ADMITTING [CSB] EXHIBIT 2.
{14} CSB Exhibit 2 is Father‘s parenting evaluation from Summit Psychological Associates that was conducted in September and October 2013 during a custody case involving another of Father‘s children. Father assigns error to the admission of Exhibit 2 for six reasons.
{15} Father first contends that CSB failed to lay a proper foundation for the admission of Exhibit 2 under the business records exception of
{16} Evidence Rule 803(6) provides for an exception of the following documents from the application of the hearsay rule:
[a] memorandum, report, record, or data compilation * * * made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
{17} In support of his argument, Father cites this Court‘s decision in Monroe v. Steen, 9th Dist. Summit No. 24342, 2009-Ohio-5163, ¶ 13, wherein we wrote:
The party seeking to admit the business records must provide the appropriate foundation for admission which indicates that the witness “possess[es] a working knowledge of the specific record-keeping system that produced the document.” State v. Aberle, 5th Dist. Fairfield No. 03CA96, 2004-Ohio-7093, ¶ 24, 26. The witness must be “‘familiar with the operation of the business and with the circumstances of the preparation, maintenance, and retrieval of the record in order to reasonably testify on the basis of this knowledge that the record is what it purports to be, and was made in the ordinary course of business.‘” State v. Baker, 9th Dist. Summit No. 21414, 2003-Ohio-4637, ¶ 11, quoting Keeva J. Kekst Architects, Inc. v. George, 8th Dist. Cuyahoga No. 70835, 2002 WL 22047697, *5 (May 15, 1997).
{18} In that decision, this Court also explained that “[t]he theory supporting the business records exception is that such records are accurate and trustworthy because they are ‘made in the regular course of business by those who have a competent knowledge of the facts recorded and a self-interest to be served through the accuracy of the entries made and kept with
{19} In the present case, Dr. Sylvia O‘Bradovich testified that she is a forensic clinician at Summit Psychological Associates and that she completed the parenting evaluation of Father after he signed a release. She indicated that Exhibit 2, the written report of the evaluation, was kept “in the ordinary course of business” and that it had been created at or near the time of the evaluation. Dr. O‘Bradovich testified that her main responsibilities are to provide individual and group therapy to clients and to conduct psychological and forensic evaluations. In addition, she supervises interns and serves on a committee to ensure that all of the paperwork is done to compliance standards. She explained to the court what goes into an assessment and the testing that is conducted. She stated that she has been providing therapy and doing evaluations since 2004 and frequently testifies regarding the evaluations and treatment she provides. Upon consideration, we conclude that a sufficient foundation for the business records exception was established in the present case. Father‘s argument is overruled.
{20} Second, Father claims that Exhibit 2 should not have been considered by the trial court because Dr. O‘Bradovich‘s reliance on collateral sources caused the exhibit to constitute inadmissible hearsay. Father has not identified specific statements within the documents that he finds objectionable, and this Court will not create an argument on his behalf. See Flowers, 2012-Ohio-3783 at ¶ 27, citing In re G.E.S., 2008-Ohio-2671 at ¶ 53. The argument is overruled.
{21} Third, Father claims that Dr. O‘Bradovich was not qualified to testify to the admission of the report because she was not a licensed psychologist, in that she had not yet taken the examination. In support of his argument, Father cites
{22} Fourth, Father claims that Dr. O‘Bradovich‘s testimony was barred by the psychologist-patient privilege as explained in
{23}
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 journalized under section 2151.412 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. (Emphasis added.)
Father cites decisional law which states that “[a]ctions in juvenile court that are brought pursuant to statute to temporarily or permanently terminate parental rights are special proceedings, as such actions were not known at common law.” In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, ¶ 43. See also
{24} The fact that custody proceedings are considered special proceedings for purposes of determining whether an order reflects finality, however, does not mean they are not considered civil cases for more general purposes. To that point, the Ohio Supreme Court and this Court have both, in fact, denominated juvenile cases as civil cases for general purposes. See, e.g., State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, ¶ 12 (“juvenile cases are civil rather
{25} In the present case, the trial court reasonably found the statute to be applicable under its plain language because the evaluation was conducted pursuant to a court-ordered case plan and is relevant to a dependency proceeding. The trial court further found that the statute specifically mentions
{26} Fifth, Father argues that the admission of Exhibit 2 is barred by the Fifth Amendment and by
{27} Father‘s third assignment of error is overruled.
Assignment of Error Number Four
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ADMITTING [CSB] EXHIBIT 3.
{28} CSB Exhibit 3 contains Mother‘s counseling records from Coleman Behavioral Health. Mother withdrew her initial objection to the admission of the exhibit because she believed it demonstrated that she was getting prenatal care and following doctor‘s orders. Father, however, asserts error in the admission of these records for two reasons.
{29} First, Father argues that the trial court erred in accepting Mother‘s medical
{30} Second, Father contends that, even if the counseling records are admissible under the business records exception, they may not be used “to prove the truth of the matters asserted therein when such statements are from an out of court declarant - the counselor.” In making this argument, Father essentially restates his claim that the report is impermissible hearsay. Having found that Father failed to demonstrate error above, we reach the same result here. Father‘s fourth assignment of error is overruled.
Assignment of Error Number Five
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THE MINOR CHILD DEPENDENT BECAUSE THE TRIAL COURT‘S JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{31} Father argues that the weight of the evidence does not support a finding that I.T. is a dependent child under
{32} Ohio case law has established that “[t]o establish dependency under
{33} At the adjudicatory hearing, the trial court heard testimony from Dr. Sylvia O‘Bradovich, a forensic clinician with a doctoral degree in psychology and clinical psychology at Summit Psychological Associates. In framing his argument on this assignment of error, Father
{34} The trial court also properly considered testimony from two CSB intake caseworkers as well as documentary evidence. The trial court reasoned that the mental health and safety concerns of Mother and Father inform the child‘s environment and that it was appropriate to consider the evidence in the record on this point. See In re J.C. at ¶ 21 (a parent‘s mental health is directly related to a child‘s environment and is relevant to a determination of whether the child‘s environment warrants state intervention).
{35} The record contains evidence regarding mental health and safety concerns for both parents. There was evidence that Mother had a diagnosis of bipolar disorder (currently untreated), suffered from severe anxiety, was experiencing current mood swings, demonstrated an inability to go anywhere outside of her home alone, and was extremely reliant on Father. Regarding Father, there were concerns regarding a diagnosis of bipolar disorder, a history of sexually offending children, cognitive delays, an alcohol use disorder, and maladaptive personality traits. Father was said to have deficits in adaptive functioning and to not be able to care for himself independently. In addition, he has a poor memory, is not able to do basic math calculations, does not understand the passage of time, and has poor sequential reasoning. In regard to his personality traits, Dr. O‘Bradovich testified that Father perceives things in a distorted or inaccurate manner. He does not accept responsibility for his behavior, exercises poor judgment, has poor impulse control, and has not shown an ability to think ahead and make
{36} The record further revealed that each parent had two children that were not in his or her care. Mother‘s other children are apparently in the care of paternal grandparents, although it is not clear if Mother surrendered custody to avoid a custody battle with her ex-husband or if the arrangement was the outcome of a children services case. One of Father‘s children, K.T., had been placed with the paternal grandmother, but that child has since been removed from her care due to allegations of inappropriate behavior. The paternal grandmother was residing in the same home where the parents planned to raise I.T.
{37} One of the intake workers explained that she was concerned about infant I.T.‘s well-being because the infant was completely dependent on his caregivers and, given Mother‘s mental health issues, she was concerned as to whether Mother had the ability to protect the infant. She explained that during the team meeting, a possible safety plan was discussed in
{38} Finally, Father claims that the trial court‘s finding of dependency is not statutorily permissible because the court “relied on some variation of a prospective dependency theory” (emphasis added) and because he believes prospective dependency is permitted under
{39} The evidence before the trial court demonstrates that I.T.‘s environment created a substantial risk to his well-being. The evidence clearly and convincingly supports a finding that I.T.‘s “condition or environment is such as to warrant the state, in the interests of the child, in assuming the child‘s guardianship” and, therefore, supports the trial court finding that I.T. is a dependent child under
III
{40} Father‘s five assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
DEREK CEK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
MARY O‘NEILL-MARNECHECK, Attorney at Law, for Appellee.
TONY PAXTON, Guardian ad Litem.