[Cite as In re C.E, 2010-Ohio-4410.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
IN THE MATTER OF: CASE NO. 9-10-32
C.E.
ALLEGED DEPENDENT CHILD OPINION
[SARAH ESCANDON, APPELLANT].
IN THE MATTER OF: CASE NO. 9-10-33
E.E.
ALLEGED DEPENDENT CHILD OPINION
[SARAH ESCANDON, APPELLANT].
IN THE MATTER OF: CASE NO. 9-10-34
G.E.
ALLEGED DEPENDENT CHILD OPINION
[SARAH ESCANDON, APPELLANT].
IN THE MATTER OF: CASE NO. 9-10-35
P.E.
ALLEGED DEPENDENT CHILD OPINION
[SARAH ESCANDON, APPELLANT].
Case No. 9-10-32, 33, 34, 35, 36
IN THE MATTER OF: CASE NO. 9-10-36
I.E.
ALLEGED DEPENDENT CHILD OPINION
[SARAH ESCANDON, APPELLANT].
Appeals from Marion County Common Pleas Court
Trial Court Nos. 2007-AB-0075, 2007-AB-0078, 2007-AB-0079,
2007-AB-0076, 2007-AB-0077
Judgments Affirmed
Date of Decision: September 20, 2010
APPEARANCES:
Kevin P. Collins, for Appellant Sarah Escandon
John A. Minter, for Appellee Marion County Children Services
SHAW, J.
{¶1} Mother-appellant, Sarah Escandon (“Sarah”), appeals the April 21,
2010 judgments of the Common Pleas Court, Juvenile Division, of Marion
County, Ohio, granting permanent custody of her five children, C.E., P.E., I.E.,
-2-
Case No. 9-10-32, 33, 34, 35, 36
E.E., and G.E., to Marion County Children Services (“MCCS”) and terminating
her parental rights to these children.1
{¶2} The facts relevant to this appeal are as follows. On July 9, 2007, a
complaint was filed in the Juvenile Court of Marion County, Ohio, alleging that
C.E., who was six years old at the time, was an abused and dependent child. The
complaint stated that MCCS obtained pictures of C.E. that showed him wearing
makeup in one and a diaper on his head in another. According to the complaint,
C.E. appeared visibly distressed in the photographs and had reported that his
mother, Sarah, took the pictures and that his parents were making fun of him. The
complaint also stated that Sarah admitted to shoving a sock in C.E.’s mouth in an
effort to stop his crying. Based on these same allegations, four other complaints
were filed that same day, alleging that each of the other children were dependent.
{¶3} MCCS submitted a case plan to the court, which was approved on
August 3, 2007. That plan identified several concerns, including providing for the
children’s basic needs such as appropriate housing, proper medical and dental
care, and regular school attendance. The plan also required that the parents obtain
counseling and learn new disciplinary techniques through Marion Area
Counseling Center and that they keep a journal of C.E.’s behaviors and their
1
The father, Cruz Escandon, was not present at the permanent custody hearing because he was being held
by federal authorities for deportation proceedings as he was an illegal immigrant from Mexico. Father did
not appeal the grants of permanent custody.
-3-
Case No. 9-10-32, 33, 34, 35, 36
responses to each behavior. MCCS was to provide assistance to the family
through case counseling and case management.
{¶4} A hearing was held on these matters in August of 2007, and on
October 9, 2007, all five children were adjudicated dependent and placed in the
protective supervision of MCCS. However, on February 13, 2008, C.E. was
removed from his parents’ home and placed in foster care. The following day,
MCCS filed an ex parte motion for emergency temporary custody of C.E. In this
motion, MCCS alleged that C.E. had significant bruising on his arm from being hit
by an electrical cord. The motion was granted, and C.E. was removed from his
parents’ home. A full hearing on this matter was conducted on March 18, 2008,
MCCS was granted temporary custody of C.E., and an amended case plan was
adopted.
{¶5} The amended case plan stated that the reason C.E. was removed
from the home was due to him being struck by an electrical cord by Sarah. More
specifically, the amended case plan indicated that both C.E. and his sister, P.E.,
reported to their caseworker that Sarah had struck C.E. with the extension cord but
that they changed their story once they were home with Sarah, stating that P.E.
struck C.E. with the cord. However, once C.E. was removed from the home, he
once again told the caseworker that it was his mother, rather than P.E., who had
struck him. In addition to the previously noted concerns and requirements of the
case plan, this amendment included provisions that Sarah would not administer
-4-
Case No. 9-10-32, 33, 34, 35, 36
corporal punishment to C.E., would work with C.E.’s counselor to learn how to
handle C.E. more appropriately, and that the MCCS caseworker would work with
the parents to learn more appropriate disciplinary techniques that would not
physically harm the children. The amended case plan also identified Sarah’s
untreated mental health as a concern. Consequently, the plan required Sarah to
undergo an intake at the Marion Area Counseling Center, to comply with any and
all treatment plans established by the doctors and/or counselors, including taking
any prescribed medications, and to maintain contact with the caseworker regarding
her treatment. In addition, the caseworker was to follow up with Sarah to obtain a
report from her regarding her treatment, to provide case management and
casework counseling to Sarah, and to make recommendations when necessary for
Sarah regarding her treatment.
{¶6} In January of 2009, MCCS received a report that Sarah had
physically abused the four children that remained in her home and had sexually
abused the youngest child. These children were removed from the home, and
emergency temporary custody of the children was given to MCCS. However,
these allegations were unsubstantiated by MCCS and the children were returned to
their parents’ custody in February of 2009, but were still in MCCS’ protective
supervision. In March of 2009, the parents separated, and the father moved out-
of-state to find work.
-5-
Case No. 9-10-32, 33, 34, 35, 36
{¶7} On April 28, 2009, the case plan was again amended. This time the
plan noted that the need for the amendments were because the parents did not
comply with key portions of the previous case plan and that the amendments were
made to “make things more clear [sic] and easier for them to follow.” These
amendments included that the parents would obtain and maintain legal, gainful
employment to support the family and would utilize local agencies, such as Job
and Family Services and W.I.C., for services that would support the family. They
were also to maintain caseworker-approved housing at all times, to maintain
utilities, make efforts to pay off outstanding debts to utility companies, and to
report any changes in residence to the caseworker within 72 hours. Sarah was also
required to ensure that the children had healthy meals and healthy snack options
and would keep a food log and menus for the caseworker to show what the
children were eating. The plan further required that the children not be given soda
pop except under limited circumstances, that the caseworker would check the
home’s refrigerator for the presence of milk and juice for the children, that the
parents would establish a regular routine for the children, and that the caseworker
would visit the home every other week. Once again, the plan required Sarah to
attend all counseling appointments, to follow all recommended treatment, and to
report to the caseworker regarding her counseling and how she was using it in her
every day life with the children.
-6-
Case No. 9-10-32, 33, 34, 35, 36
{¶8} On Monday, May 4, 2009, the caseworker received a call from
Margo Hazlett, Sarah’s mother, to report that she had the children. Hazlett
reported that Sarah left the children in her care the preceding Friday and was
supposed to return that same night but failed to do so. Hazlett was unable to care
for the children any longer. In addition, Hazlett received text messages from
Sarah, which caused her to be concerned for Sarah’s mental well being. Hazlett
also showed these messages to the caseworker. At that point, MCCS removed the
children from Hazlett’s home, placed them in foster homes, and filed motions for
emergency temporary custody of the four children, which were granted. A full
hearing on these motions was held on June 3, 2009, and neither parent attended.
Temporary custody to MCCS was continued.
{¶9} On November 16, 2009, MCCS filed for permanent custody of all
five children. A hearing on these motions was conducted on March 23 and April
6, 2010. Thereafter, the trial court granted permanent custody of all five children
to MCCS. This appeal followed, and Sarah now asserts five assignments of error.
ASSIGNMENT OF ERROR I
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
PROVE CLEARLY AND CONVINCINGLY THAT THE
AGENCY MADE DILIGENT EFFORTS TO ASSIST
MOTHER TO REMEDY THE PROBLEMS THAT CAUSED
THE CHILDREN TO BE REMOVED AND THE CHILDREN
COULD NOT BE PLACED WITH MOTHER WITHIN A
REASONABLE TIME.
-7-
Case No. 9-10-32, 33, 34, 35, 36
ASSIGNMENT OF ERROR II
THE FAMILY COURT ERRED TO MOTHER’S PREJUDICE
BY ALLOWING THE CASEWORKER TO TESTIFY ABOUT
WHAT C.E. TOLD HIM.
ASSIGNMENT OF ERROR III
THE FAMILY COURT ERRED TO MOTHER’S PREJUDICE
BY ADMITTING EXHIBIT CSB2.
ASSIGNMENT OF ERROR IV
THE FAMILY COURT ERRED TO MOTHER’S PREJUDICE
BY ADMITTING EXHIBIT CSB7.
ASSIGNMENT OF ERROR V
THE COMBINATION OF THE AFOREMENTIONED
ERRORS ARE SUFFICIENT TO CALL INTO QUESTION
THE VALIDITY OF THE FAMILY COURT’S
CONCLUSIONS, DEPRIVING THE APPELLANT OF DUE
PROCESS AND A FAIR TRIAL, AND AMOUNTING TO
STRUCTURAL ERROR.
First Assignment of Error
{¶10} In Sarah’s first assignment of error, she asserts that the evidence did
not sufficiently demonstrate that the children could not be placed with her within a
reasonable time or should not be placed with her. More specifically, she contends
that the evidence did not show that MCCS made diligent efforts to assist her in
remedying the conditions that caused the children’s removal, that she
demonstrated a lack of commitment toward her children, or that she was unwilling
to provide for her children’s basic needs or prevent them from suffering neglect.
-8-
Case No. 9-10-32, 33, 34, 35, 36
{¶11} Initially, we note that “[i]t is well recognized that the right to raise a
child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3rd Dist. Nos. 9-06-
12, 9-06-13, 2006-Ohio-4841, citing In re Hayes (1997), 79 Ohio St.3d 46, 48,
679 N.E.2d 680. The Supreme Court of Ohio has held that a parent “must be
afforded every procedural and substantive protection the law allows.” In re
Hayes, supra, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45.
Thus, it is with these constructs in mind that we proceed to determine whether the
trial court erred in granting permanent custody of the children to the Agency.
{¶12} The Revised Code states that a trial court
may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to division (A) of this
section, by clear and convincing evidence, that it is in the best
interest of the child to grant permanent custody of the child to
the agency that filed the motion for permanent custody and that
any of the following apply:
(a) The child is not abandoned or orphaned, has not
been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period * * *
and the child cannot be placed with either of the child’s parents
within a reasonable time or should not be placed with the child’s
parents.
R.C. 2151.414(B)(1)(a). In making a determination pursuant to R.C.
2151.414(B)(1)(a), “the court shall consider all relevant evidence.” R.C.
2151.414(E). However, a court must enter a finding that the child cannot be
placed with either parent within a reasonable time or should not be placed with
-9-
Case No. 9-10-32, 33, 34, 35, 36
either parent if the court finds by clear and convincing evidence that any one of
sixteen enumerated factors is present. R.C. 2151.414(E)(1-16).
{¶13} The Supreme Court of Ohio has held that “[c]lear and convincing
evidence is that measure or degree of proof which will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be
established.” Cross v. Ledford (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118.
Further, “[i]t is intermediate; being more than a mere preponderance, but not to the
extent of such certainty as is required beyond a reasonable doubt as in criminal
cases. It does not mean clear and unequivocal.” Id., citing Merrick v. Ditzler
(1915), 91 Ohio St. 256, 110 N.E. 493. In addition, when “the degree of proof
required to sustain an issue must be clear and convincing, a reviewing court will
examine the record to determine whether the trier of facts had sufficient evidence
before it to satisfy the requisite degree of proof.” Cross, supra (citations omitted);
see, also, In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481 N.E.2d
613. Thus, we are required to determine whether the evidence was sufficient for
the trial court to make its findings by a clear and convincing degree of proof.
{¶14} In this case, the trial court found by clear and convincing evidence
that the children could not be placed with either parent within a reasonable time
and should not be placed with either parent. In so doing, the trial court made three
specific findings pursuant to R.C. 2151.414(E)(1), (4), and (14).
-10-
Case No. 9-10-32, 33, 34, 35, 36
{¶15} These sections state:
(1) Following the placement of the child outside the child’s
home and notwithstanding reasonable case planning and diligent
efforts by the agency to assist the parents to remedy the
problems that initially caused the child to be placed outside the
home, the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the
parents have substantially remedied those conditions the court
shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and
material resources that were made available to the parents for
the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward
the child by failing to regularly support, visit, or communicate
with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the
child.
***
(14) The parent for any reason is unwilling to provide food,
clothing, shelter, and other basic necessities for the child or to
prevent the child from suffering physical, emotional, or sexual
abuse or physical, emotional, or mental neglect.
{¶16} In regards to R.C. 2151.414(E)(1), the Revised Code imposes a duty
on the part of children services agencies to make reasonable efforts to reunite
parents with their children where the agency has removed the children from the
home. R.C. 2151.419; see, also, In re Brown (1994), 98 Ohio App.3d 337, 344,
648 N.E.2d 576. Further, the agency bears the burden of showing that it made
-11-
Case No. 9-10-32, 33, 34, 35, 36
reasonable efforts. R.C. 2151.419(A)(1). “Case plans are the tools that child
protective service agencies use to facilitate the reunification of families who * * *
have been temporarily separated.” In re Evans, 3rd Dist. No. 1-01-75, 2001-Ohio-
2302. To that end, case plans establish individualized concerns and goals, along
with the steps that the parties and the agency can take to achieve reunification. Id.
Agencies have an affirmative duty to diligently pursue efforts to achieve the goals
in the case plan. Id. “Nevertheless, the issue is not whether there was anything
more that [the Agency] could have done, but whether the [Agency’s] case
planning and efforts were reasonable and diligent under the circumstances of this
case.” In re Leveck, 3rd Dist. Nos. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269, at
¶ 10.
{¶17} In the case sub judice, the testimony at the permanent custody
hearing revealed that this family had the same caseworker, Brent Middleton, for
nearly the entire length of their cases. Middleton testified that he provided case
management and casework counseling and completed monthly home visits with
the family to insure that the children were safe and having their needs met.
Middleton also referred Sarah to the Marion Area Counseling Center to obtain a
psychological assessment and for treatment recommendations for her mental
health needs after C.E. was removed from the home because of being hit with an
extension cord. On March 5, 2008, Sarah did an intake at the counseling center.
Eight days later, Sarah submitted to a psychological evaluation by Dr. Diana
-12-
Case No. 9-10-32, 33, 34, 35, 36
Wilkerson, a psychologist. Dr. Wilkerson prepared a written evaluation, which
was admitted into evidence at the permanent custody hearing, and she testified at
the hearing as well.
{¶18} Dr. Wilkerson testified that she diagnosed Sarah with bipolar
disorder, post-traumatic stress disorder (“PTSD”), adjustment disorder with
anxiety, and mixed personality disorder. Dr. Wilkerson explained that the
diagnosis of PTSD and mixed personality disorder were largely based on Sarah’s
history of how she was raised, having been abused and in foster care from the age
of nine to the age of eighteen. Further, her mixed personality disorder resulted
because “in order to survive in the world she had to – in a very threatening
environment from a lot of different directions – she had to learn maladaptive ways
of interacting with other people.” (Trial Trans., 3/23/10, at p. 126.) Over time,
these became strongly imbedded and “very, very difficult to change.” (id.) Dr.
Wilkerson testified that this disorder requires intensive treatment to change the
maladaptive features and that a person has to be really committed and understand
that they have these problems in order to change them. As for the diagnosis of
adjustment disorder with anxiety, Dr. Wilkerson testified that this is a transient
diagnosis based upon the removal of C.E. but that it is not a disorder someone can
overcome without counseling to resolve the issues.
{¶19} Based on her evaluation and the diagnoses that she made, Dr.
Wilkerson recommended in her 2008 evaluation that Sarah receive a psychiatric
-13-
Case No. 9-10-32, 33, 34, 35, 36
assessment to determine what medications were appropriate for her bipolar
disorder and PTSD. She also recommended that Sarah receive therapy from a
therapist who is certified in Dialectical Behavior Therapy, which is designed for
individuals with personality disorders, because she opined that it “is the only
therapy currently available that truly improves the functioning and personal
relationships of these individuals.” (CSB Exhibit 8.) She also did not recommend
placing C.E. in Sarah’s care at that time because Sarah was under extreme
emotional distress and the likelihood of abuse occurring would increase if C.E.
was in Sarah’s care because of the mental problems from which she suffered.
{¶20} Dr. Wilkerson further explained Sarah’s evaluation at the permanent
custody hearing. In particular, she testified that a person with Sarah’s issues
cannot improve on her own, particularly someone with bipolar disorder because it
is a biochemical issue that can only be managed through medication. Thus, with
no medication for her bipolar disorder and her personality disorder compounding
that issue, Sarah would “have a very difficult time coping with the stresses of
raising young children.” (Trial Trans., 3/23/10, at p. 131.) In addition, Dr.
Wilkerson testified that Sarah would need a minimum of a year of intensive
therapy before her children could be returned to her care.
{¶21} After being evaluated by Dr. Wilkerson, Sarah returned to the
counseling center and a treatment plan was created for her. Sarah saw a nurse
practitioner at the counseling center and was prescribed two medications: Seroquel
-14-
Case No. 9-10-32, 33, 34, 35, 36
XR, a mood stabilizer, and Buspar for depression. She saw the nurse practitioner
on three occasions, but she did not return to the counseling center after May 8,
2008. Sarah also informed Middleton that she stopped taking the medications
prescribed to her because of the way they made her feel.
{¶22} At the permanent custody hearing, Sarah testified that she stopped
taking the Seroquel because it made her tired and she had an infant at the time.
She also testified that she did not take the Buspar because she had taken it when
she was twelve and “it just makes me crazier[.]” (Trial Trans., 3/23/10, at p. 172.)
Because the counseling center would not stop prescribing those medications for
her, she elected to stop going there. However, she did go to the We Care Center in
Hardin County, Ohio, for counseling while living there with her mother in May or
June of 2009, but she only went to two counseling sessions because she moved
back to Marion after her mother no longer permitted her to live with her. Sarah
further testified that she was not currently on any type of medication, was not
receiving any type of therapy, and had not complied with the treatment
recommendations given to her.
{¶23} In addition to the referral for a mental health assessment and
treatment recommendations, Middleton testified he discussed other issues of
concern with Sarah and the children’s father and made recommendations to them.
For instance, when they had marital issues and problems with domestic violence,
Middleton discussed these issues with them and expressed to them the need for
-15-
Case No. 9-10-32, 33, 34, 35, 36
marital counseling and how to properly address their anger problems. In addition,
Sarah testified that Middleton counseled her on disciplinary techniques, such as
time-outs, to use with the children rather than physical discipline.
{¶24} Middleton also discussed the case plan and its subsequent
amendments with the parents and stressed to them the importance of complying
with the case plan because the children could be permanently removed from them.
In fact, when the youngest four children were removed from the home based on
the physical and sexual abuse allegations, which were later found to be
unsubstantiated, Middleton decided to amend the case plan to make it more
detailed and clearer for the parents to understand because the parents had been
non-compliant with several areas of the plan. He then discussed the amended case
plan with the parents, who were both in agreement with the plan.
{¶25} He further testified that if there were any issues or if the family
needed anything, he would try to assist them in getting whatever it was they
needed. For instance, MCCS provided the family with four beds for the children
while they were in their mother’s care. Middleton advised Sarah of the existence
and whereabouts of food pantries in the Kenton area when she lived in Kenton to
ensure that the children had food. He assisted Sarah in obtaining funds through
MCCS to help purchase a refrigerator, to purchase gas cards, and to get an
apartment. He also provided her with several bus passes to assist her when she
needed transportation.
-16-
Case No. 9-10-32, 33, 34, 35, 36
{¶26} When the father moved to another state and did not provide
sufficient financial support for the children, Middleton discussed the issue with the
parents and advised them that the father could establish a payee who he trusted so
that he could send the payee money to provide housing and maintain utilities for
the family. However, the father informed Middleton that there was no one who he
trusted to do that for him. Middleton also counseled the family on proper nutrition
for the children, including advising Sarah that the children were too young to drink
soda pop, and discussed the need to ensure that the children were receiving proper
medical and dental care.
{¶27} Despite all of this assistance, Sarah did not substantially comply
with the case plan. She had at least six different residences during the pendency of
these cases. Many times she did not report these changes to Middleton although
the case plan required that she do so, including a period of time from July to
September of 2008, wherein Middleton had no idea where the family was living.
At the time of the permanent custody hearing, Sarah lived in a friend’s apartment,
a friend whom she had known for approximately six months. Although Sarah
testified that the apartment had adequate room for the children, Middleton stated
that it was not adequate for five children and two adults because it had only two
bedrooms. Further, Sarah admitted that she had no transportation, no home, was
living from home to home, and could not put her children through that. Notably,
Sarah did not testify that she sought further assistance from MCCS to obtain
-17-
Case No. 9-10-32, 33, 34, 35, 36
housing, although she would have known that this was a possibility given the fact
that MCCS previously provided the family with funds to help obtain housing. In
addition, the father did not have stable housing for the children because he was
being detained by the federal authorities for possible deportation to Mexico.
{¶28} Sarah also never obtained and maintained any type of gainful
employment despite Middleton discussing the requirements of the case plan and
informing her of the consequences of not complying with the case plan. She
testified that she could not get a job because she did not drive and did not have a
diploma or GED. However, she stated that she never attempted to obtain a
driver’s license. Although she attended GED classes, she never took the GED
examination. Sarah testified that she did not take the GED examination because
she had no one to watch the children. Yet, she offered no explanation as to why
she did not take the examination after May 4, 2009, when the children were no
longer in her care. Also, while the father had periods of employment, by March of
2009, he refused to provide adequate support for his children.
{¶29} The parents also failed to send P.E., who was the only child in their
home of school age at the time, to school regularly or even enroll her in school
until a number of weeks after school started. The failure to send P.E. to school
resulted in criminal charges against Sarah for which she was found guilty in
December of 2008. Shortly thereafter, the children were temporarily removed by
MCCS. Once they were returned, P.E. began missing school again, resulting in a
-18-
Case No. 9-10-32, 33, 34, 35, 36
contempt action against Sarah. When she failed to show to the contempt hearing,
a bench warrant was issued and Middleton and Gary Braun, the truancy officer for
the Ridgemont School District where P.E. was enrolled, attempted to locate Sarah
and the children but were unsuccessful. Eventually, Braun found Sarah living in a
subsidized housing unit in Kenton, Ohio, which is in Hardin County. He informed
Sarah that she should enroll P.E. in the Kenton School District and that the bus
would pick up P.E. at their housing unit. Braun also filled out a withdrawal form
for Ridgemont and an enrollment form for Kenton for P.E., gave the enrollment
form to Sarah, and asked her to take it to the Kenton Board of Education the
following day. Sarah never did, and a week or two later, she left her children with
Hazlett, resulting in the removal of the children from Sarah’s care.
{¶30} Further, the case plan required that the parents ensure the physical
well-being, including dental health, of their children. I.E. and P.E. had severe
dental problems, requiring extensive treatment at Children’s Hospital. However,
Sarah cancelled multiple appointments with their dentist and neither parent
followed-up with a dentist, leaving them untreated and experiencing pain when
eating and drinking for quite a while. The children went without dental care until
MCCS actually received temporary custody of them and got them back into the
dentist for treatment. By then, I.E.’s abscesses were so extended that she was
placed ahead of a number of other patients because of the dentist’s concern that
the infection could be fatal if left untreated for too long. In the end, sixteen of
-19-
Case No. 9-10-32, 33, 34, 35, 36
I.E.’s twenty baby teeth and nine of P.E.’s twenty baby teeth had to be treated.
Included in the treatment of I.E., who was five at the time, and P.E., who was
seven at the time, were multiple teeth extractions and several crowns.
{¶31} In addition, visitation was regularly scheduled with the parents and
the children. However, Sarah missed a large number of visits with her children
when they were in MCCS’ custody despite the fact that Middleton provided gas
cards and bus passes to her. The father also missed a number of visits when he
was out-of-state and had no contact with the children after being detained for
possible deportation.
{¶32} Given all of this evidence, we cannot conclude that the trial court
erred in finding that MCCS made diligent efforts to assist the parents in remedying
the problems that caused the children to be removed. To the contrary, MCCS’
case planning, particularly the referral to counseling for Sarah’s mental health
issues and the April 2009 amended case plan that was done in an effort to more
specifically detail the concerns and requirements of the plan in order to better
assist the parents in complying with it so that the children could be returned to
them, and Middleton’s efforts to achieve the goals of the case plan were more than
reasonable and diligent under the circumstances of this case.
{¶33} Additionally, we find that the record provided ample evidence for
the trial court to find by clear and convincing evidence that despite the efforts of
MCCS, Sarah failed continuously and repeatedly to remedy the conditions that
-20-
Case No. 9-10-32, 33, 34, 35, 36
caused the children’s removal. For example, MCCS first became involved with
the family due to the emotional abuse of C.E. by the parents. He was subsequently
removed because of physical abuse by Sarah. Throughout this case, Sarah’s
mental health and how it relates to her behavior towards her children has been a
major concern, which is why she was given a psychological evaluation and told to
follow the recommended treatment. In fact, as previously discussed, Dr.
Wilkerson did not believe it was safe to return C.E. to his mother’s care until her
mental disorders were under control, which she opined would take, at minimum, a
year of intensive therapy to accomplish. Instead of seeking help and following the
advice of the trained and educated mental health professionals, Sarah elected not
to comply with the case plan because she did not like the way the medication
made her feel. A little over a year after Dr. Wilkerson’s evaluation, during which
time Sarah received little to no treatment due to her own unwillingness, the other
children were then removed from the home after Sarah left them with her mother
and sent text messages that caused concern over her mental stability.
{¶34} The trial court found and the record supports that it was necessary
for Sarah to participate in mental health treatment where she could be educated
about why she behaves the way she does and learn to behave differently as well as
be provided with the medication necessary to improve her condition. Further, the
court found and the record supports that her failure to submit to treatment renders
it both unsafe and not in the children’s best interests to return them to her. Thus,
-21-
Case No. 9-10-32, 33, 34, 35, 36
Sarah’s behavior in this regard alone demonstrates that the she failed continuously
and repeatedly to remedy the conditions that caused the children’s removal.
{¶35} Moreover, the trial court did not err in finding that the parents
demonstrated a lack of commitment toward the children by not regularly visiting
them (having missed a substantial amount of scheduled visits with the children
even though Middleton provided her with bus passes and gas cards), by not
providing stable housing, and by not caring for their physical and emotional needs.
Furthermore, the record amply supports the trial court’s finding that the parents
were unwilling to provide for the basic needs of their children. For example, the
parents did not send P.E. to school on a regular basis, did not provide stable
housing for the children, and did not take care of the children’s dire dental needs,
which could have resulted in the death of two of the children due to the extensive
infections they had.
{¶36} Any one of the aforementioned findings supported the trial court’s
determination that the children could not be placed with the parents within a
reasonable time or should not have been placed with the parents. Therefore, we do
not find that the trial court erred in making such a finding, and the first assignment
of error is overruled.
Second, Third, and Fourth Assignments of Error
{¶37} In her next three assignments of error, Sarah contends that the trial
court erroneously admitted certain evidence, which should not have been
-22-
Case No. 9-10-32, 33, 34, 35, 36
permitted because it was hearsay and did not qualify under any of the exceptions
to the hearsay rule. The evidence at issue consisted of testimony by Middleton as
to what C.E. told him regarding being struck with an extension cord and two
exhibits: the children’s visitation log and a compilation of school attendance
information for P.E.
{¶38} Initially, we note that the decision as to whether to admit evidence is
left to the discretion of the trial court, and we will not disturb such a decision
absent an abuse of discretion. State v. Awkal (1996), 76 Ohio St.3d 324, 667
N.E.2d 960. An 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, 219, 450
N.E.2d 1140.
{¶39} Sarah’s first contention in this regard is that Middleton should not
have been allowed to testify about C.E.’s statements to him concerning the
extension cord incident. Our review of the record reveals that Middleton did
testify about what C.E. told him, and counsel for Sarah objected to this testimony
based on the hearsay rule. “Hearsay” is defined as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Evid.R. 801(C). Generally, hearsay is not
admissible. Evid.R. 802. There are, however, a number of exceptions to the
hearsay rule. See Evid.R. 803-807.
-23-
Case No. 9-10-32, 33, 34, 35, 36
{¶40} In the case sub judice, this evidence was not used for the truth of the
matter asserted, i.e. that Sarah hit C.E. with an extension cord. That matter had
previously been litigated when C.E. was removed in February of 2008. This
testimony served to explain MCCS’ actions of removing C.E. from the home,
which is necessary in order to determine the reasonableness of some aspects of the
case plan and whether diligent efforts were made by MCCS to remedy the
problems that caused C.E. to be removed. Thus, it was not hearsay, and we do not
find that the trial court abused its discretion in admitting this evidence.
{¶41} In addition, even if this testimony was admitted for the truth of the
matter asserted, rendering it inadmissible hearsay, any error in its admission was
harmless. The trial court already had this information because of the court action
that occurred in February and March of 2008, when it granted temporary custody
of C.E. to MCCS. Further, this information was also contained in the amended
case plan that the court adopted and made a part of the record in March of 2008.
Accordingly, the second assignment of error is overruled.
{¶42} In regards to the two exhibits Sarah maintains were erroneously
admitted into evidence, we first address the visitation logs of MCCS that showed
the dates on which visitation was scheduled, who attended, and whether those who
did not attend provided any type of reason for their absence or simply did not
show. Sarah asserts that this exhibit, CSB 2, was inadmissible because it was
hearsay and that Middleton should not have been permitted to testify about its
-24-
Case No. 9-10-32, 33, 34, 35, 36
contents because he did not have personal knowledge about the assertions
contained in those logs.
{¶43} One exception to the hearsay rule allows for the admission of
records of regularly conducted activity. Evid.R. 803(6). Evidence Rule 803, in
relevant part, states:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
***
(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any form,
of acts, events, or conditions, 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.
Evid.R. 803(6).
{¶44} Middleton testified that the visitation log was a document kept by
MCCS, that the case aids who work in the visitation center prepared and
maintained the log, and that a visitation log is kept in every case that MCCS has
with a family. Middleton further testified that although he did not keep the actual
logs in his case files, each is always accessible to him on the agency computers
and that he uses them when working with a family so that he can determine
-25-
Case No. 9-10-32, 33, 34, 35, 36
whether the parents are visiting their children and how those visits are going.
Although Middleton testified that he was not the custodian of the visitation records
of MCCS, as the caseworker for the children throughout the time that the children
were in MCCS’ temporary custody he was qualified to discuss these records and
to provide the testimony necessary to have the logs deemed “records of regularly
conducted activity.” Thus, this exhibit was admissible as an exception to the
hearsay rule, and the trial court did not abuse its discretion in admitting them.
{¶45} Further, Middleton’s testimony also established that he did have
personal knowledge on the matter. He used the records as a resource to determine
whether the parents were visiting their children. He also discussed visitation and
the lack of attendance by the parents with them. In fact, his discussion with Sarah
about missed visitations by her led to him providing her with bus passes. Thus, he
was intimately familiar with the parents’ exercise of visitation with their children.
{¶46} Given Middleton’s role with this family and that he had the
responsibility of monitoring when and if the parents were visiting their children,
we do not find that the trial court’s decision to admit the visitation logs or to
permit Middleton to testify about the parents’ visitation with the children was an
abuse of discretion. Moreover, Sarah testified about her attendance at visitation
and was free to dispute the accuracy of those logs and/or the testimony provided
by Middleton. Instead, she acknowledged the accuracy of those records and chose
to explain her reasons for missing a number of visits. Her explanations for non-
-26-
Case No. 9-10-32, 33, 34, 35, 36
attendance at multiple visitation times consisted mostly of issues related to
transportation. In addition, she also confirmed Middleton’s testimony that he gave
her bus passes so that this would no longer be an issue. Therefore, even assuming
arguendo that this evidence was inadmissible, any such error was harmless as
Sarah provided largely the same testimony and confirmed the trustworthiness of
the information contained in the log. Moreover, as previously discussed, the trial
court had ample evidence, even without this information, to grant MCCS’ motions
for permanent custody. Accordingly, the third assignment of error is overruled.
{¶47} Lastly, Sarah maintains that the trial court erred in admitting CSB
Exhibit 7 because it was hearsay. This exhibit consisted of a number of
documents in support of the testimony of Gary Braun, the truancy officer, such as
court documents and attendance records of P.E. from the Ridgemont School
District. Our review of the record indicates that counsel for MCCS requested that
this exhibit be admitted, opposing counsel objected, and counsel for MCCS
withdrew the exhibit. (Trial Trans., 3/23/10, at pp. 161-163.) This exhibit never
having been admitted, the fourth assignment of error is moot and, consequently, is
overruled.
Fifth Assignment of Error
{¶48} In Sarah’s fifth assignment of error she contends that the trial court’s
failure “to apply the Rules of Evidence is so egregious that it rises to the level of a
structural error.” In light of our discussion in the previous three assignments of
-27-
Case No. 9-10-32, 33, 34, 35, 36
error and our holding that the trial court did not err in its admission of evidence in
the three instances raised by Sarah, the fifth assignment of error is also overruled.
{¶49} For all of these reasons, the judgments of the Common Pleas Court,
Juvenile Division, of Marion County, Ohio, are affirmed.
Judgments Affirmed
WILLAMOWSKI, P.J., and PRESTON, J., concur.
/jnc
-28-
In re C.E
Combined Opinion