IN RE: THE S CHILDREN
APPEAL NOS. C-170624, C-170653
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 27, 2018
[Cite as In Re: The S Children, 2018-Ohio-2961.]
MILLER, Judge.
TRIAL NO. F-16-2167z
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: July 27, 2018
Raymond T. Faller, Hamilton County Public Defender, and Klarysa Benge, Assistant Public Defender, Guardian ad Litem for Appellants C.S. and N.S.,
Kacy Eaves for Appellants C.S. and N.S.,
Kroener, Hale & Penick and Angela Penick for Appellee Mother,
Stagnaro, Hannigan, Koop and Chad G. Koop for Appellee Father.
{1} This is an appeal from the juvenile court‘s dismissal—at the close of the state‘s case—of the Hamilton County Department of Job and Family Services’ (“HCJFS“) complaint seeking permanent custody of C.S. and N.S. We affirm that part of the trial court‘s judgment finding that the state failed to prove C.S. and N.S. were abused or neglected, reverse the holding that the dependency statute,
{2} HCJFS removed N.S., C.S., and multiple other siblings from their parents’ home after their brother, A.S., died from injuries allegedly inflicted at home while in the parents’ care. A.S.‘s death was ruled a homicide. HCJFS subsequently filed for permanent custody of all of the children, claiming that all were abused, neglected, and dependent. The matter proceeded to trial.
{3} In part, the state alleged that C.S. and N.S. were neglected under
{4} The state‘s complaint also alleged that the children were dependent under
{5} At the close of the state‘s case, parents moved for summary judgment. Because of the timing of the motion, the trial court appropriately recast the motion as a motion to dismiss.
{6} Regarding the neglect allegations, the court informed C.S. and N.S.‘s guardian ad litem (“GAL“) during arguments on the motion that it had not “had an opportunity to review every single page in those medical records,” and asked the GAL to “point * * * to something that involves the parent‘s actions?” The GAL cited a number of exhibits that were admitted into evidence without expert testimony, and argued that these documents showed that the parents were not adequately meeting C.S.‘s and N.S.‘s medical needs.
{7} Regarding the dependency allegations, a significant portion of arguments focused on whether the state could proceed under
{8} In its decision entering judgment, the court wrote that C.S.‘s and N.S.‘s “medical records are in evidence which show multiple special needs, but no evidence was introduced at any time of parents’ inability or unwillingness to meet those needs.” The court also indicated that the state had proceeded under the incorrect
Our Jurisdiction
{9} This court has “such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *.”
{10} Substantial Right in a Special Proceeding. It is well-settled that a permanent custody action is a special proceeding. In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, ¶ 43. In the context of
{11} Immediate Review is Necessary. The fact that the GAL and the children have had substantial rights affected in a special proceeding does not end our analysis. The Ohio Supreme Court has recently made clear that yet another step, absent in the C.B. decision, is necessary to determine our jurisdiction under
{12} Here, we hold that immediate review is necessary to ensure that, if the trial court indeed erred in returning the children to their parents, the children are protected from harm. The allegations in this case are that the mother inflicted fatal injuries to A.S. while both parents were in the home, by beating A.S.‘s head on the ground. The infliction of death or injury on the children would obviously be
{13} App.R. 4(B)(5) Applies. C.S. and N.S.‘s siblings have not been dismissed from the state‘s permanent custody complaint. We therefore must determine the effect of the fact that the judgment appealed from determines fewer than all the claims as to all the parties.
Partial Final Judgment or Order. If an appeal is permitted from a judgment or order entered in a case in which the trial court has not disposed of all claims as to all parties, other than a judgment or order entered under
Civ.R. 54(B) , a party may file a notice of appeal within thirty days of entry of the judgment or order appealed or the judgment or order that disposes of the remaining claims. Division (A) of this rule applies to a judgment or order entered underCiv.R. 54(B) .
{14} In this special proceeding, there are final judgments for two, but not all parties—making the judgment appealed from a partial judgment. And there is no
{15} On appeal, the GAL and children focus their arguments on whether the trial court erred when it found that the state had failed to prove neglect under
Juv.R. 45, Civ.R. 41, and Our Standard of Review
{16} The juvenile rules do not provide for a dispositive motion at the close of the state‘s case. However,
{17} Although their assignment of error states otherwise, the children assert that the court decided the motion to dismiss under
{18} The children also contend that the court‘s judgment was against the weight of the evidence, but do not cite a specific standard. The GAL asserts that the trial court erroneously failed to weigh the evidence presented, and that the court was required to determine if the state had clearly and convincingly proven its case. Presumably, the GAL and children argue that the court should have proceeded as if the parents’ motion was brought under
{19} We note that the GAL, the parents, and the children, in part, argue standards inconsistent with their desired outcome. Parents argue that the trial court reviewed for sufficiency, and urge us to do the same. Sufficiency is a test for adequacy, and asks if evidence exists on each element. Eastley v. Volkmann, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 11. In contrast, the GAL and the children assert that the state had to satisfy the burden of persuasion on each element
{20} There were different evidentiary standards elucidated by the parties as they argued the motion to the juvenile court—at times the parties appeared to be arguing sufficiency as in a
{21} Because it was appropriate for the court to weigh the evidence presented, instead of merely reviewing for sufficiency, and because custody actions are civil in nature, we treat the trial court‘s judgment as one akin to a ruling on a
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff‘s evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment
against the plaintiff or may decline to render any judgment until the close of all the evidence * * *.
{22} We cannot set aside the court‘s judgment under
Trial Court‘s Review of the Medical Records
{23} As an initial matter, the GAL and the children argue that the trial court erred in holding that there was not clear and convincing evidence of neglect or dependency without first reviewing all of the medical records submitted into evidence. They point to the following exchange during arguments on the parent‘s motion as displaying reversible error:
THE COURT: In those medical records—and it‘s clear that I haven‘t had an opportunity to review every single page in those medical records, but what has been brought to light in evidence. In those medical records standing alone as to * * * [C.S. and N.S.], can you point me to something that involves the parent‘s actions? There‘s no question every one of these children could produce reams of medical records.
MS. BENGE [GAL]: I think if you look at the growth charts, there are weight issues with * * * [C.S. and N.S.] * * *. I think if you look at the narratives in the doctors’ appointments, it‘s there.
{24} We have found reversible error in a trial court‘s failure to consider all exhibits before ruling. See Higgins v. Buehrer, 1st Dist. Hamilton No. C-160288, 2016-Ohio-7214.
Neglect and Manifest Weight of the Evidence
{25} The GAL claims that the trial court‘s judgment that the state failed to prove “neglect” as alleged under
{26}
{27} The GAL argues that medical records made by a Dr. Galloway show C.S. was neglected. The records state that C.S.‘s nutritional status was “poor” and that an unrepaired heart defect she suffered would likely require additional calories “above baseline for age.” Dr. Galloway‘s notes stated that “ideally patient needs supplemental tube feeds but given mom‘s resistance in her other children in the past, this may not be feasible.” Another doctor‘s notes, Dr. Kocoshis, provide that “we made a case” for tube feeding C.S. as an inpatient, but that “mother does not want her admitted and will try to re-nourish by mouth.”
{29} The GAL argues, without the benefit of expert testimony, that these records clearly and convincingly proved that the children “were not receiving the nutrition or the developmental assessments they required to thrive.” The trial court saw it differently. During trial, the parties were warned by the court several times that, without expert testimony, the children‘s medical records could be used only for limited purposes. The court also specifically ruled that a lay witness was not competent to explain the parents’ treatment options, or interpret physician‘s notes. Despite this, neither the GAL, the children, nor the state called a witness competent to testify concerning how the information in these records demonstrated that the parents’ treatment choices constituted a lack of adequate parental care of C.S. and N.S.
{30} In affording little weight to these records pertaining to the state‘s neglect allegation, the trial court did not so lose its way as to create a manifest miscarriage of justice warranting a reversal. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus (“On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.“).
Dependency, R.C. 2151.04(C) and (D), and an Error of Law
{32} The state alleged that C.S. and N.S. were dependent under
{33}
To whom both of the following apply:
(1) The child is residing in a household in which a parent, guardian, custodian, or other member of the household committed an act that was the basis for an adjudication that a sibling of the child or any other child who resides in the household is an abused, neglected, or dependent child.
(2) Because of the circumstances surrounding the abuse, neglect, or dependency of the sibling or other child and the other conditions in
the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household.
{34} We hold that the trial court erred as a matter of law in finding the state‘s dependency claim failed because subsection (D), and not subsection (C), applied. Aside from the fact that these provisions are not mutually exclusive, the plain language of subsection (D)(1) indicates that a prior adjudication is necessary for a dependency adjudication. See In re N.J., 12th Dist. Warren Nos. CA2016-10-086, CA2016-10-090 and CA2016-10-091, 2017-Ohio-7466 (analyzing the plain language of
{35} We note that the parents contend that the trial court applied subsection (C), and came to the proper conclusion. This is inaccurate. In arguments leading up to the trial court‘s ruling, the court expressed multiple times that it found the facts of the case did not fit within subsection (C), and that subsection (D) should have been alleged by the state. The court wrote in its entry that it had given the state the opportunity to amend the allegations in its complaint, but the state had declined to do so. The court also wrote that it was “critical to note that subsection (D)(1) and (2) was [sic] NOT alleged in the complaint.”
{36} It is evident from the record that the trial court misunderstood subsection (C) as requiring evidence of direct harm, and not mere presence in a home where abuse had occurred. But circumstances giving rise to a legitimate risk of harm may suffice to support a dependency adjudication under
Conclusion
{37} The parties’ assignments of error are sustained to the extent they argue that the trial court erred in failing to apply
{38} Thus, we affirm the potion of the trial court‘s judgment determining that the state failed to prove by clear and convincing evidence that C.S. and N.S. were neglected children. We reverse the trial court‘s holding that
Judgment accordingly.
CUNNINGHAM, P.J., and MYERS, J., concur
The court has recorded its own entry on the date of the release of this opinion.