[Cite as In re M.A.P., 2013-Ohio-655.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
CASE NOS. CA2012-08-164
M.A.P. : CA2012-08-165
: OPINION
2/25/2013
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2009-0456
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for Butler County
Children Services
Dawn S. Garrett, 7865 Paragon Road, Suite 107, Centerville, Ohio 45459-2748, for
appellant, S.V.
Manuel Hernandez, 810 Sycamore Street, Suite 511, Cincinnati, Ohio 45202, for appellant,
G.H.
Tracy A. Washington, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, guardian ad litem
PIPER, J.
{¶ 1} Appellants, the biological parents of M.P. (Mother and Father), appeal the
decision of the Butler County Court of Common Pleas, Juvenile Division, granting permanent
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custody of their child to the Butler County Department of Job and Family Services (BCDJFS
or the Agency).
{¶ 2} On December 15, 2009, BCDJFS filed a complaint alleging abuse, neglect, and
dependency. A shelter care hearing was held two days later, and a magistrate granted an
emergency order, granting temporary custody of M.P. to BCDJFS. The magistrate also
issued a no-contact order between M.P. and her parents. Mother and Father were both
present at the hearing, and were represented by the same counsel. The magistrate
questioned the prudence of having one attorney represent both Mother and Father, but
counsel stated that no conflict was present, and that joint representation was warranted.
Mother and Father continued to be represented by the same attorney.
{¶ 3} On February 3, 2010, the magistrate held a full hearing on the Agency's
complaint of abuse, neglect, and dependency. The Agency filed the complaint after a local
hospital reported that M.P. had been brought in by her parents because of a fever and
incessant crying. X-rays revealed that M.P. had suffered multiple bone fractures that had
occurred at different times and that were healing at different intervals. At five months old,
M.P. had several broken bones, including four broken ribs, a spinal fracture, left and right
femur factures, and left and right tibia fractures. She also had a bruise on her abdomen.
Upon her placement in foster care, M.P. had to be handled in a certain manner to avoid
causing her pain when being lifted, changed, and carried. M.P.'s various injuries took four to
six weeks to heal, and the child attended physical therapy for seven months or more to fully
recover, and was developmentally delayed in areas such as crawling because of the injuries.
{¶ 4} The child also suffered other physical impairments. She was forced to wear a
helmet for several months because her head was flat from the amount of time she spent lying
down. M.P. also had a flap on her tongue that did not allow her to lift her tongue in order to
eat anything other than liquid from a bottle. Mother and Father knew about the condition
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upon the child's birth and were advised to rectify the situation immediately, but did not do
anything to remedy M.P.'s physical impairment. Instead, the foster family took the child to
have her tongue repaired so that she could begin to eat solid food.
{¶ 5} At the adjudication hearing, Mother and Father stipulated that M.P. was an
abused child, and allegations that the child was neglected and dependent were dismissed.
Although Mother and Father stipulated to the abuse, neither articulated which party was
responsible for the abuse nor indicated how the child had received such extensive injuries
while in their care. Part of the stipulation of abuse included the express statement that no
perpetrator be named.
{¶ 6} Father stated that he had no knowledge of how M.P. was injured, but did state
that on one occasion, he accidentally dropped the child onto a store parking lot while trying to
remove the child from her car seat. Although Father stated the dropping was accidental, he
admitted that he did not take the child to the hospital for several days, and finally took her
only because she cried every time they picked her up. Mother, though she knew that Father
had allegedly dropped the child, also failed to seek medical care for the child.
{¶ 7} After M.P. was adjudicated abused, Mother and Father were given a case plan
by BCDJFS in order to facilitate reunification. The case plan included counseling for both
parents, as well as parent education classes. Mother and Father worked on aspects of the
case plan in the months that followed the adjudication hearing. The magistrate also lifted the
no-contact order and Mother and Father were permitted to have supervised visits with the
child.
{¶ 8} On February 10, 2011, the Agency filed for permanent custody of M.P. During
a pretrial hearing on the permanent custody motion, the magistrate once again raised
concerns regarding a possible conflict arising from the same counsel representing both
Mother and Father. Shortly thereafter, the magistrate appointed new counsel for Mother.
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Father retained the same counsel after Mother acknowledged and waived any conflicts in
relation to counsel continuing to represent Father.
{¶ 9} Father asked the agency that his adult son and his son's girlfriend be
considered as a placement option for M.P. However, the Agency conducted a home study
and found that placement with the son would not be possible because the Agency was not
able to complete a comprehensive background check due to the son's illegal-alien status and
not having fingerprints on file. Also, the son resided with Mother and Father part of the time,
which was an unsafe environment for the child. The Agency also questioned who would care
for the child if the son or the son's girlfriend were working. None of Mother or Father's
relatives from Mexico filed any motions regarding custody of M.P., even though they were
aware that the Agency had obtained temporary custody of the child. The only help offered by
Mother's family was to advise Mother to seek assistance from the Mexican Consulate. When
Mother contacted the Consulate, they advised her that there was nothing they could do to
help.
{¶ 10} Both Mother and Father are Mexican and have issues speaking and
understanding English. The magistrate appointed interpreters before and during the
adjudication hearing and permanent custody trial, but none were requested during the shelter
care hearing, as Mother and Father's counsel indicated that neither party required an
interpreter because they agreed that the child had injuries and would require removal from
their home. However, the magistrate appointed different interpreters who aided Mother and
Father during the adjudicatory and permanent custody hearings. One interpreter appointed
during the permanent custody hearing was later replaced because there were questions as to
whether the interpreter was accurately conveying Mother and Father's testimony. However,
the other previous and subsequent interpreters all translated accurately at the various stages
of the proceedings.
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{¶ 11} During the permanent custody trial, the magistrate heard evidence of M.P.'s
injuries and the physical challenges she faced as a result. Father reiterated that he had
dropped the child on the parking lot pavement when trying to remove her from her car seat.
Mother indicated, for the first time, that Father was abusive toward her, had dropped the child
on multiple occasions, and grabbed the child from her arms during an argument. However,
Mother also testified that she never saw Father harm the child, and that she did not know
how the child received her injuries.
{¶ 12} The magistrate also heard evidence that M.P. began living with the foster family
in December 2009, has thrived since being placed there, and is bonded with the foster family.
The foster mother also testified that the family wants to adopt M.P.
{¶ 13} The magistrate heard evidence that Mother and Father worked cooperatively
with the Agency to complete the case plan, and that they participated in visits with the child.
The magistrate heard evidence that the child reacted negatively to the visits at first, such as
becoming fussy, changing the expression on her face, and even pulling away from Mother
when she tried to touch her. However, the child became more relaxed in Mother and Father's
presence as the visits progressed over the next nine to ten months. While the magistrate
heard evidence that Mother and Father complied with the case plan put in place to facilitate
reunification, several obstacles remained that hindered reunification because neither Mother
nor Father would indicate how M.P. had been injured.
{¶ 14} The Agency's caseworkers testified that reunification was too high a risk based
upon the fact that the source of the child's extensive injuries remained undetermined.
Without knowing how the injuries occurred, the Agency could not create a holistic case plan
to combat all issues that may have led to the injuries, such as Mother or Father's possible
anger management issues, psychological issues, substance abuse, or family dynamics.
Without knowing the underlying cause of the child's injuries, the originally formulated case
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plan could not address the main issue facing the child: how to protect her from future injury.
The child's guardian ad litem (GAL) also suggested that BCDJFS receive permanent custody
because of the risk of placing the child with Mother and Father without knowing that the
issues leading to the child's injuries had been addressed successfully.
{¶ 15} The magistrate granted the Agency's permanent custody motion, and Mother
and Father's parental rights were terminated. Both parents then filed objections. The
juvenile court overruled the objections and adopted the magistrate's findings and conclusions
in full. Mother and Father now appeal the juvenile court's decision granting the Agency
permanent custody. Although Mother and Father filed separate appeals, we will address the
appeals together for the purposes of writing this single opinion, and address combined
arguments whenever possible for ease of discussion.
{¶ 16} Father's Assignment of Error No. 1:
{¶ 17} THE TRIAL COURT ERRED IN GRANTING THE BUTLER COUNTY
DEPARTMENT OF JOB AND FAMILY SERVICES, CHILDREN SERVICES DIVISIONS'
MOTION FOR PERMANENT CUSTODY AS IT WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE TO GRANT IT.
{¶ 18} Mother's Assignment of Error No. 3:
{¶ 19} THE COURT ERRED AS A MATTER OF FACT AND LAW AND ABUSED ITS
DISCRETION WHEN IT FOUND TERMINATING THE PARENTAL RIGHTS OF APPELLANT
TO BE IN THE CHILD'S BEST INTERESTS AND TERMINATED THE PARENTAL RIGHTS
OF APPELLANT BECAUSE SUCH WAS NOT THE ONLY MEANS OF OBTAINING A
LEGALLY SECURE PLACEMENT FOR THE CHILD AND/OR BECAUSE PERMANENT
CUSTODY WAS NOT IN THE CHILD'S BEST INTERESTS.
{¶ 20} Mother's Assignment of Error No. 4:
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{¶ 21} THE COURT'S DECISION AND ORDER OF PERMANENT CUSTODY AND
DENIAL OF LEGAL CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S
FINDINGS AND THE EVIDENCE PRESENTED FAILED TO MEET THE REQUISITE CLEAR
AND CONVINCING STANDARD.
{¶ 22} In Father's first and Mother's third and fourth assignments of error, they argue
that the juvenile court erred in granting permanent custody to BCDJFS and in terminating
their parental rights.
{¶ 23} Before natural parents' constitutionally protected liberty interests in the care and
custody of their child may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met.
Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review
of a juvenile court's decision granting permanent custody is limited to whether sufficient
credible evidence exists to support the juvenile court's determination. In re Starkey, 150
Ohio App.3d 612, 2002-Ohio-6892, ¶16 (7th Dist.). A reviewing court will reverse a finding by
the juvenile court that the evidence was clear and convincing only if there is a sufficient
conflict in the evidence presented. In re Rodgers, 138 Ohio App.3d 510, 520 (12th
Dist.2000).
{¶ 24} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and
award permanent custody to a children services agency if it makes findings pursuant to a
two-part test. First, the court must find that the grant of permanent custody to the agency is
in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Second, the
court must find that any of the following apply: the child is abandoned; the child is orphaned;
the child has been in the temporary custody of the agency for at least 12 months of a
consecutive 22-month period; or where the preceding three factors do not apply, the child
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cannot be placed with either parent within a reasonable time or should not be placed with
either parent. R.C. 2151.414(B)(1)(a), (b), (c) and (d); In re E.B., 12th Dist. Nos. CA2009-10-
139; CA2009-11-146, 2010-Ohio-1122, ¶ 22.
{¶ 25} The juvenile court found by clear and convincing evidence, and Mother and
Father do not deny, that M.P. has been in the temporary custody of BCDJFS for more than
12 months of a consecutive 22-month period as of the date the Agency filed the permanent
custody motion because the child had been placed with the foster family for 14 months.
However, Mother and Father dispute the juvenile court's finding that granting permanent
custody of M.P. to the Agency is in the child's best interest.
{¶ 26} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a
permanent custody hearing, the court shall consider all relevant factors, including, but not
limited to the following:
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child's guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the child
has 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 * * *;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 27} With respect to the interaction of the child with her parents and foster
caregivers as set forth in R.C. 2151.414(D)(1)(a), the juvenile court found that M.P. was an
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abused child while in Mother and Father's care. The juvenile court considered that the child
had numerous skeletal injuries, that when discovered by x-ray, were in various stages of
healing. The child suffered four rib fractures, a spinal fracture, left and right femur factures,
and left and right tibia factures. The juvenile court noted that the sources of M.P.'s extensive
injuries had still not been determined. During the permanent custody hearing, Father stated
that he had dropped the child on a paved surface when he tried to remove her from her car
seat. Despite Father's testimony that he dropped the child on one occasion, her injuries
indicated that the child had been victim to several injurious occurrences that happened at
various times in her young life.
{¶ 28} The juvenile court also noted that Mother testified that Father told her that the
child had either fallen or had been dropped on more than one occasion while in his care.
Mother also testified that Father grabbed the child from her arms after he became angry that
Mother was holding the child rather than keeping her in the crib. However, Mother admitted
that she did nothing to seek medical treatment for the child, out of fear that she would be
reported to authorities or that the state would take the child from her care. However, Mother
indicated that only she and Father had provided care for the child, and neither Mother nor
Father could offer any explanation as to how the child could have been injured other than by
their own actions. As stated by the juvenile court, "once the state became involved, the
parents formed a united front that, for all intents and purposes, effectively prevented the
system from obtaining the information it needed to make a meaningful attempt at addressing
the cause of the removal of this child from their care."
{¶ 29} The juvenile court also found that M.P. has been in the foster family's custody
and care since December 2009, and that she is bonded to them and doing well in their
custody. The foster family facilitated M.P.'s healing, and has also provided for her ongoing
health concerns regarding her flattened head and impaired tongue. When M.P. first was
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placed with the foster family, she had to be held in a certain position to avoid causing her
pain. M.P.'s extensive injuries took four to six weeks to heal, and she received seven months
of physical therapy to help heal. She was also developmentally delayed in areas such as
crawling, and she had to wear a helmet because her head was flattened when she arrived in
foster care.
{¶ 30} Since her time with the foster family, M.P. has developed rapidly. She is now "a
happy, playful" two-and-one-half-year-old child, who considers her foster home to be her
own. The child has bonded with her two foster siblings, and has very close relationships with
them. The child is also doing well in the day-care program she attends while the foster
mother works part-time. The record indicates that the child is integrated into the foster
family, and the family wants to adopt the child.
{¶ 31} With respect to R.C. 2151.414(D)(1)(b), the juvenile court did not take into
consideration the child's wishes because at her age, the child is too young to indicate her
desires. However, the juvenile court noted that the child's GAL recommended placement of
the child in the permanent custody of BCDJFS.
{¶ 32} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found, and Mother
and Father agree, that M.P. has been in the custody of BCDJFS for more than 12 months of
a consecutive 22-month period, and had been with the foster family for 14 months as of the
time of the permanent custody motion. Moreover, the juvenile court noted that the child's
time in foster care has comprised "the majority of her life."
{¶ 33} With respect to R.C. 2151.414 (D)(1)(d), the juvenile court found that M.P.
needs a legally secure permanent placement and that such placement cannot be achieved
without a grant of permanent custody to BCDJFS. The juvenile court specifically found that
no relatives or nonrelatives have filed motions requesting custody of the child. The court
therefore considered whether Mother or Father could provide the child with a legally secure
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placement, and determined that they could not because either Mother or Father (or Mother
and Father both) abused the child extensively, and the child's health and safety could not be
guaranteed under the care of either of them.
{¶ 34} Although Mother and Father submitted evidence that they had abided by the
terms of the case plan and that their supervised visits with the child went well, the juvenile
court noted that R.C. 2151.412(H) states that in the review of a case plan, "the child's health
and safety shall be the paramount concern." As both Mother and Father admitted that they
were the child's only caregivers, and would not otherwise explain how the child received her
extensive injuries, placing the child with Mother or Father would be contrary to her health and
safety concerns and therefore also contrary to the overriding goal of the case plan.
{¶ 35} During a review hearing in 2010, the magistrate very clearly indicated the
importance of understanding how the child was injured. However, Mother and Father's
counsel indicated that "they would not * * * talk about what happened, what the incident was,
what did or did not happen." The court then warned the parties that without knowing how the
injuries occurred, it would be very difficult to determine whether placing the child back with
one or both of her parents was in the child's best interests, and that "having no information is
not an option." Despite the magistrate's warning early during the proceedings, neither
Mother nor Father ever gave the court the information it needed to determine that the
circumstances leading to the child's injuries would never again occur.
{¶ 36} During the permanent custody hearing, the caseworker assigned to the case
stated the reason the Agency was seeking permanent custody of the child:
Our problem is we don't know who caused the injuries to [M.P.]
We don't have a definite answer of how those injuries occurred.
The injuries were severe; there were multiple breaks, multiple
fractures, and that's alarming to the agency. We're … Not
knowing who caused the injuries, not knowing if the proper
services have been offered to the parents, if the parents caused
the injuries, if they allowed someone around the child that
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caused the injuries, there's just … there's still many unanswered
questions that the agency cannot… in the best interest of [M.P.]
does not feel comfortable putting [M.P.] back in that home.
As the juvenile court found, and we agree, returning the child to her parents would place her
in "an environment where she was seriously injured as a helpless infant."
{¶ 37} It is possible that only one parent is responsible for M.P.'s injuries. However,
the record indicates that both parents were aware that M.P. was in pain for several days
before they finally took her to the hospital. Even if only one parent was at fault for the child's
injuries, returning the child to the other parent would not be warranted because Mother and
Father continue to reside together and they are each other's only support system in this
country. During the permanent custody hearing, the caseworker testified that Mother stated
that she did not know if she could trust Father, and that Mother stated she "didn't know" how
to ensure the child's safety if M.P. returned to Mother and Father.
{¶ 38} The juvenile court also noted that Mother and Father are undocumented aliens,
with limited resources. While the juvenile court noted that both Mother and Father love the
child and have an attachment to her, neither have a support system in place, save Father's
adult son who lives in the area. While it would be possible for Mother to return to Mexico with
the child to live closer to family, the juvenile court noted that the child is an American citizen,
who had been fully ingratiated into an American family. Therefore, the juvenile court found
that the only way to obtain legally secure placement was to grant permanent custody to the
Agency.
{¶ 39} The juvenile court noted that of the factors listed in R.C. 2151.414(E) regarding
whether it was possible to place the child with her parents, subsections eight and 15 applied.
The juvenile court first took into consideration whether "the parent has repeatedly withheld
medical treatment * * * from the child when the parent has the means to provide the
treatment," and found that Mother and Father withheld medical treatment repeatedly. As
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previously discussed, the medical diagnosis of M.P.'s broken bones indicated that she
suffered several injuries, over an extended period of time. M.P. also had a bruise on her
abdomen which Mother saw every time she changed the child's diapers. However, neither
Mother nor Father took M.P. to the hospital to address these medical concerns. Nor did
Mother or Father seek medical attention for M.P.'s flattened head or her tongue impairment.
{¶ 40} While Mother testified that she was aware of M.P.'s medical conditions, she
stated that she did not take the child for medical attention because she feared being reported
to authorities or having the child removed from her care. However, there is no indication in
the record that Mother or Father lacked the necessary means to provide medical care for
M.P. had they chosen to take her to the doctor.
{¶ 41} The juvenile court further noted that R.C. 2151.414(E)(15) directs a court to
consider whether "the parent has committed abuse" as well as whether the "likelihood of
recurrence of the abuse * * * makes the child's placement with the child's parent a threat to
the child's safety." The juvenile court found this statutory section applicable to the current
case, and noted:
although it remains unclear as to which parent abused this child,
either mother did so and is now attempting to cast the blame on
father, or father did so, and mother was complicit in attempting to
avoid official involvement of the father and her child in the
criminal justice and child protection systems, respectively.
Neither of those conclusions leads logically to a conclusion that
is favorable to the parents of this child.
The nature of the abuse of this child was and is horrendous. Her
arms and legs were broken. She had broken ribs and a fractured
spine. When she would be picked up she would cry out in pain
and she suffered in that manner over many weeks. When all of
this happened, she was five months (or less) of age. Both
parents neglected to obtain medical care for her in a timely
fashion.
{¶ 42} After reviewing the record, we find sufficient credible evidence to support the
juvenile court's decision to grant permanent custody of M.P. to BCDJFS. Mother's third and
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fourth and Father's first assignments of error are overruled.
{¶ 43} Father's Assignment of Error No. 2:
{¶ 44} THE TRIAL COURT ERRED IN GRANTING THE BUTLER COUNTY
DEPARTMENT OF JOB AND FAMILY SERVICES, CHILD SERVICES DIVISIONS' MOTION
FOR PERMANENT CUSTODY AS REASONABLE EFFORTS WERE NOT MADE TO
REUNIFY THE CHILD WITH A FAMILY MEMBER.
{¶ 45} Father argues in his second assignment of error that the juvenile court erred in
granting permanent custody to BCDJFS because the Agency had not made reasonable
efforts to place the child with a family member.
{¶ 46} Except for a few narrowly defined statutory exceptions, R.C. 2151.419 requires
a children's service agency to make reasonable efforts to reunify a family prior to the
1
termination of parental rights. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 21. While
the court is not required to make a reasonable efforts determination at a hearing on a motion
for permanent custody, this finding must have been made at other stages of the child-custody
proceeding. Id. at ¶ 42. In this case, the trial court made reasonable efforts findings after
hearings both prior to the hearing on the permanent custody motion and in its decision
granting permanent custody.
{¶ 47} Essentially, Father argues that the Agency did not make reasonable efforts
because it did not investigate whether placing the child with a family member in Mexico was
possible. However, and as this court has stated, "in determining whether the agency made
reasonable efforts to prevent the removal of the child from the home, the issue is not whether
1. One such section, R.C. 2151.419(A)(2)(b), states that the court is not required to make the finding of
reasonable efforts when "the parent from whom the child was removed has repeatedly withheld medical
treatment or food from the child when the parent has the means to provide the treatment or food." Although the
juvenile court determined that Mother and Father had repeatedly withheld medical treatment despite having the
means to provide such, the court did not make that finding specific to R.C. 2151.419(A)(2)(b) so that this court
will review the juvenile court's determination of reasonable efforts as is required by R.C. 2151.419(A)(1).
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the agency could have done more, but whether it did enough to satisfy the reasonableness
standard under the statute." In re K.L., 12th Dist. No. CA2012-08-062, 2013-Ohio-12, ¶ 18,
citing In re K. M., 12th Dist. No. CA2004-02-052, 2004-Ohio-4152, ¶ 23. "Reasonable
efforts" does not mean all available efforts. Otherwise, there would always be an argument
that one more additional service, no matter how remote, may have made reunification
possible. In re K.L. at ¶ 18.
{¶ 48} The record indicates that the Agency made reasonable efforts to reunite the
child with her parents, or even another family member. As the juvenile court noted, the
Agency provided Mother and Father with evaluative services, counseling, parenting
education, and case planning. BCDJFS also performed a home study on Father's grown
son, but the son failed the home study because the Agency was not able to complete a
comprehensive background check due to son's illegal alien status, and not having finger
prints on file. Also, the son resided with Mother and Father part of the time, which was an
unsafe environment for the child. The Agency also questioned who would provide care for
the child if the son or the son's girlfriend were working. It is unreasonable for Father to
expect the Agency to find relatives in another country and determine whether such placement
would be suitable for the child. This is true, especially given that no other family member
came forward as a possible placement, and not a single family member moved for custody of
the child, even though they had knowledge that the child had been removed from Mother and
Father's home. In fact, the only thing Mother's family suggested that Mother do was contact
the Mexican Consulate for assistance, which the Consulate declined to give.
{¶ 49} Throughout this case, the juvenile court determined that the Agency was
making reasonable efforts to reunite the child with family members, and made the same
finding when making its permanent custody determination. The trial court did not err in
finding such, and Father's second assignment of error is overruled.
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{¶ 50} Father's Assignment of Error No. 3:
{¶ 51} FATHER WAS DENIED HIS RIGHT TO DUE PROCESS AND EQUAL
PROTECTION AS INTERPRETERS WHO WERE NOT PROPERLY QUALIFIED AND/OR
BIASED WERE USED THROUGHOUT THE PROCEEDINGS.
{¶ 52} Mother's Assignment of Error No. 2:
{¶ 53} MOTHER WAS DENIED HER STATUTORY AND CONSTITUTIONAL RIGHTS
TO DUE PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, CONFRONTATION OF
WITNESSES AND EQUAL TREATMENT, MANDATING THAT THIS MATTER BE
REVERSED AND REMANDED.
{¶ 54} In Father's third assignment of error and Mother's second assignment of error,
they argue that their due process rights were violated because the court did not appoint
skilled interpreters at the shelter care and permanent custody hearings.
{¶ 55} According to R.C. 2311.14(B), "before entering upon official duties, the
interpreter shall take an oath that the interpreter will make a true interpretation of the
proceedings to the party or witness, and that the interpreter will truly repeat the statements
made by such party or witness to the court, to the best of the interpreter's ability." Evid.R.
604 also states, "an interpreter is subject to the provisions of these rules relating to
qualification as an expert and the administration of an oath or affirmation to make a true
translation." However, failure to object to a court's failure to administer an oath at the
beginning of the interpreter's involvement or qualify the interpreter waives that issue on
appeal. State v. Rosa, 47 Ohio App.3rd 172 (8th Dist.1988).
{¶ 56} As previously stated, Mother and Father are Mexican and speak Spanish rather
than English. While there was no interpreter present during the shelter care hearing, The
record indicates that Mother and Father waived any argument regarding having an interpreter
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present. Before the hearing began, the juvenile court noted that an interpreter was not
present. Counsel for Mother and Father then stated, "Judge, they don't need an interpreter
right now, Judge. We'll agree… I spoke with not only them but also with Children Services
and the Prosecutor, and the baby does have injuries that would make the temporary custody
to Butler County essential." Therefore, Mother and Father agreed to proceed with the shelter
care hearing without an interpreter, and waived on appeal any possible error.
{¶ 57} The record indicates that the court appointed an interpreter at every stage of
the proceedings after the shelter care hearing, including skilled interpreters for the
adjudicatory hearing wherein Mother and Father stipulated that the child was abused. The
interpreter verified that Mother and Father knew what they were doing, and wished to
stipulate to the abuse. The court also appointed two interpreters for the permanent custody
hearing. The appointed interpreter who aided Mother and Father as witnesses was replaced
after Father's testimony as if on cross-examination during the state's case was completed, as
well as a portion of Mother's testimony, because there was some indication that the
interpreter was not relaying the testimony verbatim. The magistrate neglected to administer
the oath to the replacement interpreter at the moment the interpreter began to interpret
Mother's testimony. However, the magistrate did administer the oath before the interpreter
finished interpreting Mother's testimony.
{¶ 58} Mother and Father now argue that the magistrate erred by not performing the
proper voir dire to determine whether the interpreter was qualified, and in not administering
an oath to the second interpreter until after he had already interpreted some of Mother's
testimony. However, Mother and Father did not object to the magistrate's failure to voir dire
or to the delay in giving the oath. Nor did Mother and Father ask the magistrate to strike any
testimony given with the aid of the first interpreter, nor did they object to the magistrate
considering the testimony as originally taken. Therefore, Mother and Father have waived
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these issues on appeal. Moreover, neither Mother nor Father objected to the magistrate not
conducting a voir dire or waiting to administer the oath when they filed objections with the
juvenile court. Therefore, they have also waived these issues on appeal. Juv.R. 40(3)(b)(iv).
{¶ 59} Because Mother and Father failed to object to the interpreter issue, we will
review for plain error. Plain error exists where there is an obvious deviation from a legal rule
that affected the party's substantial rights by influencing the outcome of the proceedings. In
re L.B.B., 12th Dist. No. CA2012-01-011, 2012-Ohio-4641, ¶ 8. "Plain error does not exist
unless it can be said that but for the error, the outcome would clearly have been otherwise."
Id., citing State v. Biros, 78 Ohio St.3d 426, 436 (1997).
{¶ 60} After reviewing the record, the magistrate's failure to administer the oath to the
replacement interpreter until later in the proceedings and qualify the interpreter as an expert
did not amount to plain error. The overriding concern in this case has always been that the
child had multiple broken bones by the time she was five months old. Mother and Father
refused to disclose how the child received the injuries, and despite Mother's suggestion that
Father's actions led to the injuries, neither party agreed to name a perpetrator. Instead,
Mother and Father stood united during the pendency of the proceedings, and still resided
together at the time of the permanent custody hearing. Nothing during the testimony of
Mother or Father, whether or not it was translated word for word, indicated how the child
received her injuries or that any environment created by Mother and Father would be safe for
the child to return to.
{¶ 61} Specifically, Mother and Father suggest that the first interpreter did not
understand the difference between the word "drop" or "fall" so that when Father testified that
the child had been dropped while in his care, it could have actually been that the child fell
while in his care. However, the magistrate noted that the child had either fallen or was
dropped while in Father's care, thus taking into consideration how either verb/action would be
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indicative of Father's ability to take care of the child while she was in his care. Regardless of
whether the child fell or was dropped, the fact remains that neither Mother nor Father took
the child to the hospital and repeatedly failed to seek medical attention for the child.
{¶ 62} Mother also takes issue with the fact that a BCDJFS worker, Claudine Recalde,
testified regarding conversations she had with Mother and Father when the child's injuries
were first reported to the Agency. Recalde, who is fluent in Spanish, was hired by the
Agency in part to specifically work with Spanish-speaking clients. Her specific job titles
include family resource specialist and Hispanic Liaison. Recalde testified that as a family
resource specialist, she supervised the visits between M.P. and Mother and Father. Recalde
also spoke with Mother and Father and the police during the investigation of the child's
injuries. She described one instance where she was present, along with a detective, a
BCDJFS caseworker, the doctor, and a hospital interpreter who was interpreting for the
doctor. Recalde testified that the doctor told Mother of all of the child's injuries and Mother
said that she did not know how the injuries could have occurred. Recalde testified that on
another occasion, Father told police that M.P. fell out of her car seat onto the pavement at
the grocery store. The majority of what Recalde testified to was therefore specific to either
her own observations of Mother, Father, and the child during the supervised visitation, or
regarded interactions with Mother and Father that had already been introduced on record
through physical evidence or other testimony.
{¶ 63} While Mother argues that Recalde was not given the interpreter's oath or was
not qualified as an expert, the record indicates that Recalde appeared as a witness for the
state as an employee of the Agency and gave testimony regarding conversations she
personally had with Mother and Father as part of her employment duties. She was not,
however, called by the court to interpret Mother and Father's testimony as they gave it in
court.
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{¶ 64} As a witness, Recalde was permitted to recall the conversations she had with
Mother and Father, and the events that occurred during the investigation of the child's
injuries. In fact, the magistrate specifically directed Recalde to testify from her own memory
of the events, and to inform the court if she was unable to answer a question from her own
recollection. Recalde was subject to cross-examination, and Mother and Father could have
challenged any of Recalde's testimony regarding the investigation if she was relaying events
untruthfully or wrongfully based on any issues with interpreting Mother and Father's Spanish
into English. Moreover, as a BCDJFS employee, just as any other caseworker, Recalde's
testimony was judged by the magistrate regarding her credibility and what weight to give to
her testimony.
{¶ 65} After reviewing the record, the results of the permanent custody hearing would
not have been different had the magistrate administered the oath to the replacement
interpreter immediately upon him taking over, had the trial court performed a vior dire, or had
the testimony elicited through the dismissed interpreter been stricken from the record. As
such, Mother's second and Father's third assignments of error are overruled.
{¶ 66} Mother's Assignment of Error No. 1:
{¶ 67} MOTHER WAS DENIED HER CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL, MANDATING THAT THIS
MATTER BE REVERSED AND REMANDED.
{¶ 68} Mother argues in her first assignment of error that she received ineffective
assistance of counsel because she did not have separate counsel during the shelter care
and adjudicatory hearing when the child was adjudicated abused.
{¶ 69} The United States Supreme Court has stated that judicial scrutiny of an
ineffective assistance claim must be "highly deferential * * *." Strickland v. Washington, 466
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U.S. 668, 689, 104 S.Ct. 2052 (1984). The Strickland court also stated that a reviewing court
"must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. The Strickland court established a two-part test
which requires an appellant to establish that first, "his trial counsel's performance was
deficient; and second, that the deficient performance prejudiced the defense to the point of
depriving the appellant of a fair trial." State v. Myers, 12th Dist. No. CA2005-12-035, 2007-
Ohio-915, ¶ 33, citing Strickland.
{¶ 70} Regarding the first prong, an appellant must show that counsel's representation
"fell below an objective standard of reasonableness." Strickland, 466 U.S at 688. The
second prong requires the appellant to show "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. at 694.
{¶ 71} Mother argues that she was denied the right to effective counsel because she
and Father had the same attorney at the beginning stages of the proceedings. Beginning
with the shelter care hearing and continuing thereafter, the magistrate specifically questioned
the prudence of one attorney representing both parents. However, Mother and Father
2
specifically declined to have separate counsel appointed to represent Mother. Counsel told
the magistrate that there was no conflict in representing Mother and Father because
"everyone seems to be on the same page, or consistent," and that if any conflicts arose,
Mother could have separate counsel appointed.
{¶ 72} Mother now argues that the results of the permanent custody determination
would have been different had she had separate counsel from the beginning. We disagree.
Despite Mother and Father having the same counsel at the shelter care hearing, the record is
undisputed regarding the child's injuries and that neither Mother nor Father would indicate
2. The record seems to indicate that Father retained the attorney who represented Mother and Father at the
beginning of the proceedings.
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who perpetrated the injuries. Even though Mother later testified that Father was abusive
toward her, dropped the child on multiple occasions, and once grabbed the child from her
arms during an argument, Mother also testified that she never saw Father do anything to
cause the child's broken bones and that she did not know how the child sustained multiple
3
broken bones and fractures. The record indicates that the parents presented a united front,
and questions still remain regarding the cause of the child's injuries.
{¶ 73} We would also note that at the adjudicatory hearing, Mother, herself, stipulated
that the child was abused. Mother was asked directly whether she understood the nature of
the stipulation and what impact stipulating to abuse would have. Mother stated that she
understood what she was doing, and then stipulated that the child was abused. The
magistrate then dismissed the neglect and dependency charges. However, even if Mother
had her own counsel at the adjudicatory hearing, there is little doubt that the court would
have found the child to be abused, dependent, and neglected because the evidence was
undisputed that the child suffered from severe injuries, including a fractured spine, and that
Mother did nothing to seek medical treatment for the child until much later.
{¶ 74} Moreover, Mother admitted that she left the child lying in the crib for extended
periods of time, thus requiring the child to wear a helmet to protect her flattened head. Also,
Mother indicated that she failed to seek the necessary surgery to have the child's tongue
repaired. Having separate counsel, even if separate counsel would have persuaded Mother
to testify to Father's abuse or dropping the child, would not have changed the fact that
Mother failed repeatedly to protect the child and seek medical attention.
{¶ 75} Having reviewed the record, we do not find that Mother received ineffective
assistance of counsel because she and Father were jointly represented at the shelter care or
3. During his testimony at the permanent custody hearing, Father admitted to putting his hands on Mother, when
asked for more detail, Father asserted his Fifth Amendment right against self-incrimination.
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adjudicatory phases of the proceedings. As such, Mother's first assignment of error is
overruled.
Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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Combined Opinion