{¶ 2} Barbara and Michael M. married in Ohio in November 1989. In 1994, the two moved to Texas for Michael's employment. J.M., a minor child, was born to the couple on May 24, 1994. Barbara claims that she suffered physical abuse at the hands of Michael throughout the marriage. She commenced divorce proceedings in 2001 and the couple separated. Both parties separately moved back to Ohio in mid 2002. The Texas court entered a final decree of divorce in March 2003. The decree designated Barbara the custodial parent of J.M. and awarded visitation rights to Michael.
{¶ 3} In April 2005, Barbara was involuntarily hospitalized because of her mental state. J.M. was placed with his godparents at that time. The Clermont County Court of Common Pleas, Probate Division ("the probate court"), found Barbara to be a mentally ill person in need of treatment and hospitalization. Upon conducting a review hearing, the probate court ruled that Barbara could continue treatment at the Clermont Counseling Center as an outpatient. This court affirmed the decision. See In theMatter of Barbara M., Clermont App. No. CA2005-05-040,
{¶ 4} On May 9, 2005, appellee, the Clermont County Department of Job and Family Services ("Children's Services"), filed a complaint in the trial court alleging that J.M. was a dependent child. In support, the complaint cited Barbara's mental illness and emergency hospitalization and alleged that she was unstable and unable to safely provide for J.M.'s needs. The magistrate awarded emergency protective custody of J.M. to Children's Services, after which J.M. was placed with his paternal grandparents.
{¶ 5} In November 2005, Michael filed for custody of J.M. On May 12, 2006, the trial court conducted an adjudicatory hearing and concluded that J.M. was a dependent child. A dispositional hearing immediately followed and continued in progress to June 26, 2006, then *3 to August 24, 2006, then to October 12, 2006. On October 18, 2006 the trial court filed its entry finding J.M. dependent and awarding legal custody of J.M. to Michael. Barbara timely appeals, raising eleven assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO MAKE SUFFICIENT FINDINGS OF FACT AND CONCLUSIONS OF LAW UNDER CIVIL R. 52."
{¶ 8} Barbara timely requested findings of fact and conclusions of law following the trial court's October 18, 2006 decision. The trial court complied and issued its findings and conclusions on October 26, 2006. Barbara attacks the findings and conclusions issued by the court as insufficient to articulate the court's basis for adjudicating J.M. dependent and awarding legal custody to Michael.
{¶ 9} Civ.R. 52 provides that when a matter is tried without a jury, a trial court must issue separate findings of fact and legal conclusions upon the request of a party. The purpose behind the rule is to assist the appellate court in reviewing the record and establishing the validity of the basis for the trial court's judgment. Valentine v.Valentine, Butler App. No. CA2004-01-024,
{¶ 10} In issuing its findings and conclusions, the trial court referenced the fact that Barbara was adjudged mentally ill and ordered to undergo outpatient treatment. The court also noted that Barbara had repeatedly accused Michael of inappropriate sexual behavior towards, or in the presence of, J.M. The findings went on to state that both parents professed their love for J.M. and the desire to be his custodian, and that J.M. had a positive relationship with both parents. The court concluded that J.M. was a dependent child, that Children's Services made reasonable efforts to prevent J.M.'s removal from his home and to reunify him with Barbara, and that it would be contrary to J.M.'s welfare to return him to Barbara's home. Thereafter, the court concluded that legal custody should be awarded to Michael. *4
{¶ 11} On reviewing the trial court's findings and conclusions, we are unable to clearly distinguish the basis for the trial court's dependency and custody determinations. The court neglected to cite which evidence it considered in making these determinations. See, e.g., Dixon v.Garris (May 31, 1996), Perry App. No. CA-95-15,
{¶ 12} We conclude that the trial court's failure to make the necessary findings and to support its conclusions amounts to prejudicial error. Barbara's first assignment of error is sustained.
{¶ 13} Assignment of Error No. 2:
{¶ 14} "THE TRIAL COURT-ERRED [SIC] AS A MATTER OF LAW BY FAILING TO DESCRIBE IN ITS FINDINGS OF FACT THE RELEVANT SERVICES PROVIDED BY THE AGENCY TO THE FAMILY OF THE CHILD, AND WHY THOSE SERVICES DID NOT PREVENT REMOVAL OF THE CHILD FROM THE CHILD'S HOME OR ENABLE THE CHILD TO RETURN SAFELY HOME AS REQUIRED BY REVISED CODE § 2151.419(B)(1)."
{¶ 15} Barbara maintains that the trial court, in its findings of fact and conclusions of law, neglected to specify the relevant actions taken by Children's Services to prevent J.M.'s removal from his home following her hospitalization, or to describe why those services did not prevent his removal.
{¶ 16} In situations where a child services agency did not have prior contact with a child but removes the child from his home during an emergency in which the child could not safely *5
remain in the home, a trial court may determine that the agency made reasonable efforts to prevent the removal from the home or to enable the child to return safely home. R.C.
{¶ 17} A court that is required to make a "reasonable efforts" determination must issue written findings providing the reasons in support of its determination. R.C.
{¶ 18} Barbara complains that, after she returned home from her involuntary hospitalization, no one from Children's Services contacted her regarding her son's whereabouts. According to Barbara, Children's Services also failed to provide any services to prevent J.M.'s removal from home or to make it possible for him to safely return home.
{¶ 19} The trial court's failure to identify in its decision the specific efforts expended by Children's Services to prevent J.M.'s removal or to return him to his home is prejudicial error. As stated, such findings are required under Ohio law. See R.C.
{¶ 20} In its findings and conclusions, the trial court stated that "the Clermont County Children's Protective Services made reasonable efforts to prevent removal or eliminate continued removal and to reunify the child pursuant to Ohio Revised Code Section *6
2151.419(A)(1)." Nowhere in the entry is this conclusion of law supported by evidence. This conclusory statement by the trial court is insufficient to fulfill its statutory obligation to make a "reasonable efforts" determination. Rather, the law requires the court to briefly describe the relevant services provided by the agency and why they were not effective in restoring J.M. to his home. See R.C.
{¶ 21} Barbara's second assignment of error is sustained.
{¶ 22} Assignment of Error No. 3:
{¶ 23} "THE TRIAL COURT-ERRED [SIC] AS A MATTER OF LAW BY ENTERING A FINDING OF DEPENDENCY PURSUANT TO REVISED CODE §
{¶ 24} Barbara claims that the record does not contain a case plan that was made part of the disposition order, in derogation of the requirements of R.C.
{¶ 25} Barbara's third assignment of error is overruled.
{¶ 26} Assignment of Error No. 4:
{¶ 27} "THE TRIAL COURT-ERRED [SIC] AS A MATTER OF LAW BY CONTINUING THE CHILD'S PLACEMENT IN TEMPORARY CUSTODY FOLLOWING EXPIRATION OF ITS PREVIOUS ORDER OF TEMPORARY CUSTODY, AND BY FAILING TO ENTER AN *7 ORDER OF ADJUDICATION UNTIL OCTOBER 18, 2006."
{¶ 28} For the first time on appeal, Barbara raises the issue that the parties did not act within the statutory period to either request an extension or terminate the order for temporary custody. She also faults the trial court for filing its dependency adjudication and custody entry nearly 18 months after the dependency complaint was filed.
{¶ 29} Any temporary custody order issued under R.C.
{¶ 30} As stated, the complaint in this case was filed on May 9, 2005 and the adjudicatory and dispositional hearings were convened on May 12, 2006. Although this exceeds the sunset date, Barbara failed to raise any objection before the trial court. Barbara also failed to raise any objection before the trial court regarding the fact that the court did not file its dependency and custody entry until almost 18 months after the dependency complaint was filed. Consequently, with respect to both of these issues, she has waived all but plain error.
{¶ 31} A plain error is one that is "obvious and prejudicial although neither objected to nor affirmatively waived which, if permitted, would have a material adverse effect on the character and public confidence in judicial proceedings." Schade v. Carnegie Body Co. (1982),
{¶ 32} The Ohio Supreme Court has held that "the passing of the sunset date pursuant to R.C.
{¶ 33} "[W]hen the sunset date has passed without a filing pursuant to R.C.
{¶ 34} Indeed, the sunset date on the original complaint had passed in the case at bar. However, the problems that led to the granting of custody of J.M. to Children's Services were not remedied by that time. Barbara was still undergoing treatment for her mental state, and the record contains conflicting testimony regarding her recovery. The trial court had discretion to render a dispositional order in the best interests of J.M. Thus, the trial court did not err in proceeding with the dispositional hearings while J.M. remained in temporary custody, or in issuing its dispositional order. Without error, we can find no plain error warranting reversal.
{¶ 35} Barbara's fourth assignment of error is overruled.
{¶ 36} Assignment of Error No. 5:
{¶ 37} "THE TRIAL COURT-ERRED [SIC] AS A MATTER OF LAW BY CONDUCTING *9 AN IN CAMERA INTERVIEW OF THE CHILD WITHOUT MAKING A RECORD OF THE EXAMINATION."
{¶ 38} In June 2006, Barbara filed a motion to request an in camera interview of J.M. The trial court conducted an interview on August 24, 2006, but failed to make a record of it. When this omission was discovered, the court conducted a second interview on August 30, 2006 and recorded it. Barbara asserts that the court's failure to make a record of the August 24 interview mandates reversal.
{¶ 39} Juv.R. 37(A) requires a juvenile court to make a record of adjudicatory and dispositional proceedings in various types of juvenile cases, including dependency determinations. Here, once the trial court discovered its failure to record the first interview, it took remedial action by recording a second interview. Barbara insists that this error warrants reversal because J.M.'s responses at the first interview cannot be known or reviewed.
{¶ 40} We agree that the trial court erred in failing to record the first in camera interview with J.M. However, this error does not merit reversal. Although we cannot know whether precisely the same questions were asked in the first and second interviews, the record does contain a transcript of the second interview available for this court's review.
{¶ 41} Upon examination of the sealed transcript of the second in camera interview, we are satisfied that the trial court effectively questioned J.M. to determine his wishes and concerns regarding the allocation of parental rights and related issues. See R.C.
{¶ 42} Barbara's fifth assignment of error is overruled. *10
{¶ 43} Assignment of Error No. 6:
{¶ 44} "THE TRIAL COURT-ERRED [SIC] AS A MATTER OF LAW BY ADMITTING INTO EVIDENCE, OR CONSIDERING THE RESULTS OF, THE FATHER'S POLYGRAPH EXAMINATION."
{¶ 45} Throughout the course of the proceedings, Barbara repeatedly accused Michael of physically and sexually abusing J.M., emphasizing an incident where Michael allegedly masturbated in front of J.M. Michael emphatically denied these accusations and submitted to a polygraph examination. The trial court admitted the results of this polygraph over Barbara's objections. Barbara challenges the admission of these results as contrary to Ohio law in view of her refusal to stipulate to their admission.
{¶ 46} A trial court's decision to admit or exclude evidence will not be reversed absent an abuse of discretion. Beard v. Meridia HuronHosp.,
{¶ 47} In Ohio, the results of a polygraph examination are only admissible if there is a stipulation between the parties to that effect.In re D.S.,
{¶ 48} There is no evidence in the trial court's decision that it relied upon the results of the polygraph in making its custody determination. However, a number of witnesses testified as to the results of the test. Kevin Harnisch and Candice Davis, employees of Children's Services, testified that the polygraph results helped to dispel their concerns regarding Barbara's allegations of Michael's sexual misconduct with J.M. Robert Bauer, J.M.'s guardian *11 ad litem, testified that he had been informed that Michael passed a polygraph test. In light of this testimony, it is possible that the results of the polygraph examination influenced the trial court. Regardless, the results were not properly admitted.
{¶ 49} In the absence of a stipulation by both parties that the results of Michael's polygraph examination were admissible, the trial court abused its discretion in admitting the results. Barbara's sixth assignment of error is sustained.
{¶ 50} Assignment of Error No. 7:
{¶ 51} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY ADMITTING INTO EVIDENCE IN THIS JUVENILE DEPENDENCY MATTER THE TRANSCRIPTS OF THE MAY 9 AND APRIL 25, 2005, HEARINGS OF A SEPARATE PROBATE MATTER."
{¶ 52} In January 2006, Children's Services moved the trial court to admit the transcripts of the probate court hearings of May 9, 2005 and April 25, 2005. The transcripts were admitted over Barbara's objections. Barbara argues that the probate proceedings involved an entirely different issue than the dependency proceedings with J.M. The focus in questioning the witnesses in the probate proceedings was whether or not Barbara was a mentally ill person. The focus in questioning the witnesses in the dependency proceedings was whether or not J.M. was a dependent child. Accordingly, Barbara maintains that she did not have the opportunity to properly cross-examine the witnesses in the probate proceedings in the context of a child dependency determination. She opposes the trial court's admission of the transcripts as inadmissible hearsay.
{¶ 53} Former testimony from other court proceedings is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule. State v. Keairns (1984),
{¶ 54} The testimony in the probate court proceedings appears to be the basis for the trial court's dependency determination, see R.C.
{¶ 55} Assignment of Error No. 8:
{¶ 56} "THE TRIAL COURT-ERRED [SIC] AS A MATTER OF LAW BY ADMITTING AS EVIDENCE STATEMENTS OF AN EXPERT THAT WERE NOT RELIABLE, COMPETENT, OR MATERIAL."
{¶ 57} Barbara opposes the admission of testimony by Dr. Rodney Vivian, one of her attending psychiatrists, from the probate proceedings because she insists that Dr. Vivian was unable to provide his opinions to a reasonable degree of medical certainty. Barbara emphasizes that such testimony is inadmissible as expert opinion.
{¶ 58} We note that, due to our disposition of Barbara's seventh assignment of error, Barbara's eighth assignment of error has been rendered moot.
{¶ 59} Barbara's eighth assignment of error is overruled.
{¶ 60} Assignment of Error No. 9:
{¶ 61} "THE TRIAL COURT-ERRED [SIC] AS A MATTER OF LAW BY BY [SIC] FAILING TO GRANT VISITATION RIGHTS TO THE CHILD'S GRANDMOTHER, RITA [F], PURSUANT TO REVISED CODE § 3109.051(B)."
{¶ 62} J.M.'s maternal grandmother filed a motion for visitation on November 16, 2006. *13
The next day, Barbara filed her notice of appeal. Barbara urges this court to apply R.C.
{¶ 63} Grandparents may be granted visitation rights in certain cases where it is in the best interest of the child. See, e.g., R.C.
{¶ 64} Barbara's ninth assignment of error is overruled.
{¶ 65} Assignment of Error No. 10:
{¶ 66} "THE JUDGMENT OF THE TRIAL COURT IS CONTRARY TO LAW BECAUSE IT IS BASED ON INSUFFICIENT EVIDENCE TO SHOW THAT THE CHILD WAS A DEPENDENT CHILD AS DEFINED BY R.C.
{¶ 67} Assignment of Error No. 11:
{¶ 68} "THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶ 69} Barbara's tenth and eleventh assignments of error argue that there was not sufficient, credible evidence to support the trial court's decision adjudicating J.M. dependent and awarding legal custody to Michael. However, we are unable to rule on the sufficiency and weight of the evidence in support of the trial court's decision because the trial court failed to make the required findings. Barbara's tenth and eleventh assignments of error therefore have been rendered moot by our disposition of her first and second assignments of error. See App.R. 12(A)(1)(c). *14
{¶ 70} To the extent that Barbara has raised other issues on appeal, we have considered them and find them to be without merit.
{¶ 71} We reverse the trial court's dependency determination and its subsequent order granting custody of J.M. to Michael. We remand for the trial court to conduct a new hearing on the matter, in which the court is to exclude consideration of the improperly admitted polygraph results and probate court transcripts. ¶ 72} Judgment reversed and remanded.
BRESSLER and POWELL, JJ., concur.