IN RE: K.G.
APPEAL NO. C-120772
TRIAL NO. F12-1163x
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 19, 2013
2013-Ohio-3160
Civil Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Klarysa J. Benge, for Appellee Guardian Ad Litem,
Jon R. Sinclair, for Appellant Mother.
Please note: this case has been removed from the accelerated calendar.
DeWine, Judge.
{¶1} Nine-year-old K.G. was adjudicated abused, neglected and dependent because his mother failed to insure that his asthmatic condition was properly treated, and, in fact, removed him from the hospital on two occasions while he was still receiving treatment. Appellant is K.G.’s mother. She argues that the trial court went astray by adopting a magistrate’s report that was tainted by the magistrate’s reliance upon hearsay contained in K.G.’s medical records. We have parsed through the statements relied upon by the magistrate, and determine that most of the evidence was admissible under exceptions to the hearsay rule. One statement did constitute inadmissible hearsay, but the error was harmless. We conclude that the court’s finding that K.G. was abused, neglected and dependent was supported by clear and convincing evidence, and, therefore, affirm the judgment of the trial court.
I.
{¶2} This case arose from a series of hospital visits over a three-day period made by K.G. for complications from his previously diagnosed asthmatic condition. On May 7, 2012, K.G.’s grandmother took him to the Hopple Street Health Center because he was having trouble with his asthma. He was assessed and sent via ambulance to Children’s Hospital Medical Center (“CHMC”). Appellant arrived at CHMC’s emergency room after K.G. had been brought by ambulance. After spending some time in the emergency room, appellant took K.G. from the hospital without receiving discharge papers or new prescriptions. Appellant later claimed that, despite not having spoken with medical personnel, she thought K.G. was free to leave because a nurse had given K.G.’s grandmother a form titled “Return to Work/School Statement” that acknowledged that K.G. had been in the emergency room on May 7.
{¶4} While being examined in the emergency room, K.G. told medical personnel that he had not had any asthma treatment since his mother had taken him from the hospital on May 7. K.G.’s medical records note that on May 8, he had “increased work of breathing and significant wheezing.” According to appellant, she spent a few hours in K.G.’s hospital room on May 8, and then again removed him from the hospital without K.G. having been discharged.
{¶5} On May 9, Ms. Leaman and another social worker went to appellant’s brother’s house to try to locate K.G. They were not able to see K.G., and were again subjected to name-calling and racial slurs by appellant. After appellant lunged at and tried to physically attack the social workers, Ms. Leaman called 911, but appellant sped away before the police arrived. Later that day, family members brought K.G. back to the hospital. HCJFS requested and received an emergency order of custody. HCJFS also filed a complaint seeking temporary custody of K.G., claiming that he was abused, dependent and neglected.
{¶6} A magistrate of the Hamilton County Court of Common Pleas, Juvenile Division, held an adjudication hearing. See
{¶7} Following the hearing, the magistrate adjudicated K.G. abused, dependent and neglected, and committed K.G. to the temporary custody of HCJFS. Appellant objected to the decision of the magistrate, arguing that the magistrate improperly considered hearsay in the medical records. The trial court overruled appellant’s objections and adopted the magistrate’s decision, concluding that the magistrate properly had limited her review of the medical records to nonhearsay portions, and that “[a]ny hearsay included in the medical records and not covered by a hearsay exception was harmless error and not relied upon in the decision.”
II.
{¶8} In her sole assignment of error, appellant asserts that the trial court erred by adopting the magistrate’s decision and adjudicating K.G. abused, dependent and neglected. She contends that the magistrate improperly admitted the records from CHMC because they constituted inadmissible hearsay. Absent the inadmissible portions of the records, she argues, the magistrate’s decision was not supported by clear and convincing evidence.
{¶9}
{¶10} Appellant argues that the records were not admissible because no one from the hospital testified about the records. This argument is not persuasive. Under
{¶11} Appellant also challenges the admission of the records because statements within the records were inadmissible hearsay. Even if K.G.’s medical records themselves were admissible under
{¶12} We are troubled by the magistrate’s unwillingness to allow the parties to redact hearsay statements. While we have in the past employed a presumption that in a bench trial the finder of fact “considered only properly admitted evidence,” State v. Strohm, 1st Dist. Hamilton Nos. C-060056, C-060057 and C-060058, 2006-Ohio-6161, ¶ 24, the far better course would have been to remove any hearsay from the records. See State v. Hamilton, 77 Ohio App.3d 293, 300, 602 N.E.2d 278 (12th Dist.1991). If this had been done, there would be no question about what evidence
{¶13} One category of statements relied upon by the magistrate in her adjudication decision was statements in the medical records about K.G.’s condition. For example, one doctor noted “grunting, retracting, poor air movement throughout. Scattered occasional wheeze.” Such first-hand observations by the doctor who created the record were admissible as part of the regularly recorded business records.
{¶14} The magistrate did, however, consider an inadmissible hearsay statement made by Dr. Ololade Akintoye in the medical records. According to Dr. Akintoye, she told appellant on May 8 that K.G. would be in the hospital at least overnight. This statement—“a statement, other than one made by the declarant while testifying at the trial or hearing”—was inadmissible hearsay. See
{¶15} Appellant contends that even if the magistrate’s consideration of the statements in the medical records was proper, the adjudication of K.G. as abused, neglected and dependent was not supported by clear and convincing evidence. See
Judgment affirmed.
HENDON, P.J., and DINKELACKER, J., concur.