In re M.H.
| Docket Number | C-240002 |
| Decision Date | 24 April 2024 |
| Citation | 2024 Ohio 1548 |
| Parties | IN RE: M.H. AND B.H. |
| Court | Ohio Court of Appeals |
Treleven & Klingensmith, LLC, and John D. Treleven, for Appellant Mother,
Kimberly V. Thomas, for Appellee Father,
Melissa A. Powers, Hamilton County Prosecuting Attorney, and J. Michael Massie, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Megan E. Busam, Assistant Public Defender, for Appellee Guardian ad Litem for the minor children,
James Costin, for Appellees M.H. and B.H.
{¶1} In this parental-termination appeal, appellant mother appeals the juvenile court's decision terminating her parental rights and granting permanent custody of her minor children M.H. and B.H. to the Hamilton County Department of Job and Family Services ("HCJFS"). Mother argues in one assignment of error that the juvenile court's order was against the manifest weight of the evidence and that the juvenile court erred by relying on hearsay evidence. For the following reasons, we overrule the assignment of error and affirm the judgment of the juvenile court.
{¶2} This case began when police officers responded to a Walmart store where M.H. and B.H. had been found left alone in a shopping cart. The children were found dirty and had head lice. That day, father was charged with criminal trespass and was incarcerated during the litigation. Both parents admitted to consuming fentanyl two to three times a week and father admitted to consuming fentanyl that day. The parents also reported they brought M.H. and B.H. along when acquiring fentanyl.
{¶3} The next day, HCJFS filed a complaint for temporary custody of B.H. and M.H. and received interim custody the following day. On November 8, 2021, the juvenile court adjudicated the children dependent and neglected and placed them in the agency's temporary custody. While the case was pending, HCJFS assigned a caseworker, the parents were enrolled in case-plan services, and B.H. and M.H. were placed in a foster family. The parents were to complete case-plan services: submit to a diagnostic assessment and follow all recommendations to obtain and maintain sobriety, complete random toxicology screens, participate in parenting classes, engage in regular visitation with the children, continue with their methadone treatment or complete substance-abuse treatment, obtain and maintain stable housing and employment, and refrain from criminal activity.
{¶4} Mother entered a 26-week residential addiction-treatment program. She checked herself out after 90 days so that she could work and earn an income. Mother continued to treat her addiction with a methadone prescription and outpatient therapy, but HCJFS was not able to confirm her treatment. While working, mother and father each earned an income, but did not provide requested income documentation to HCJFS. The parents lived in hotels together until they were able to stay as caretakers for a two-bedroom apartment that belonged to a friend of mother's while that friend was away caring for a sick family member. However, mother and father were not listed as tenants on the lease and only stayed as guests of mother's friend.
{¶5} Mother kept up communication with B.H. and M.H.'s foster parents but struggled to maintain communication with her HCJFS caseworker. Over the pendency of the case, the caseworker scheduled mother for 20 to 40 drug screens to confirm her sobriety, but mother did not attend a single screening, despite knowing the agency's policy that a missed screening is considered as having tested positive. The caseworker referred the parents to parenting classes which, after a few false starts, they successfully completed. Meanwhile, B.H. and M.H. bonded with their foster family while remaining bonded with each other and their parents. Though M.H. was too young to express her interests, B.H. was appointed independent counsel and indicated she does not wish to return to mother and that she knows that she was removed from mother's care because of her drug use.
{¶6} On July 22, 2022, less than 12 months into temporary custody, HCJFS filed a motion to modify the temporary custody to permanent custody. A trial occurred before a magistrate on January 31, 2023, where the only witness testifying was the assigned HCJFS caseworker. The magistrate admitted B.H.'s and M.H.'s medical records but did not admit three exhibits documenting the parents' drug screens taken at their methadone clinic because those exhibits were not authenticated. On April 5, the magistrate granted permanent custody of M.H. and B.H. to HCJFS.
{¶7} Mother and father each filed objections to the magistrate's decision. Because of scheduling issues, the juvenile court did not hear the objections until August 10, so the guardian ad litem moved for the juvenile court to take additional evidence, which the court granted, continuing the matter for an evidentiary hearing. On October 2, the juvenile court heard additional testimony from the assigned HCJFS caseworker, and mother testified for the first time. On November 28, the juvenile court denied the objections and adopted the magistrate's decision terminating both parents' parental rights and granting permanent custody of M.H. and B.H. to HCJFS.
{¶8} Mother now timely appeals, raising one assignment of error with two issues presented for review. Father did not appeal.
{¶9} Mother raises one assignment of error, arguing that the juvenile court erred as a matter of law in granting HCJFS's motion for permanent custody because the decision was against the manifest weight of the evidence and the juvenile court relied almost exclusively on hearsay evidence in making that decision. Because mother's argument about the use of hearsay evidence implicates the weight of the evidence supporting the juvenile court's decision, we address mother's arguments in reverse order.
{¶10} First, we address mother's argument that that the trial court committed plain error when it relied on inadmissible hearsay in granting the motion for permanent custody. Mother argues that the juvenile court relied on hearsay testimony provided by the HCJFS caseworker to establish all the factual findings other than mother's housing and income and that such reliance on a "caseworker-only" trial affected the basic fairness, integrity, or public reputation of the judicial process because the magistrate blindly believed HCJFS reported all this hearsay truthfully.
{¶11} Mother did not make any hearsay objection to the testimony during the dispositional hearing before the magistrate or in her objections to the magistrate's decision before the juvenile court. As such, appellate review is confined to plain error. See Juv.R. 40(D)(3)(b)(iv). Plain error in the civil context is "generally disfavored, however, and applied only in situations in which 'error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process.'" In re J.W., 1st Dist. Hamilton No. C-190189, 2019-Ohio-2730, ¶ 7, quoting In re Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d 694 (1st Dist.1998), quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997).
{¶12} The Ohio Rules of Juvenile Procedure take a unique view on the role of hearsay evidence in dispositional hearings. Ordinarily, Juv.R. 34(B)(2) allows the juvenile court in a dispositional hearing to "admit evidence that is material and relevant, including, but not limited to, hearsay, opinion, and documentary evidence." However, Juv.R. 34(I) provides "the Rules of Evidence shall apply in hearings on motions for permanent custody." Reading these two rules together, hearsay is inadmissible in the juvenile court's dispositional hearing for permanent custody of M.H. and B.H. unless it falls within a recognized exception to the hearsay rule. See In re Z., 1st Dist. Hamilton No. C-190026, 2019-Ohio-1617, ¶ 10.
{¶13} Additionally, the erroneous admission or exclusion of hearsay is not necessarily a reversible error. In re J.G.S., 1st Dist. Hamilton Nos. C-180611 and C-180619, 2019-Ohio-802, ¶ 32. Where the complained-of testimony is cumulative to properly admitted testimony, the error is harmless and does not prejudice the outcome. See In re J.H., 1st Dist. Hamilton No. C-210277, 2021-Ohio-2922, ¶ 39, quoting In re P.C, 3d Dist. Logan Nos. 8-20-39, 8-20-40, 8-20-41, 8-20-45, 8-20-46 and 8-20-47, 2021-Ohio-1238, ¶ 68. The need for prejudice is heightened on plain-error review because the erroneous admission or exclusion of evidence must affect "the basic fairness, integrity, or public reputation of the judicial process" to rise to plain error. See, e.g., Tyra v. Tyra, 1st Dist. Hamilton No. C-140211, 2014-Ohio-5732, ¶ 8 ().
{¶14} Here, mother does not point to specific testimony that is inadmissible hearsay. Instead, mother argues generally that all the juvenile court's factual findings other than mother's housing and income were proven with hearsay testimony. The testimony presented to the magistrate and the juvenile court falls into three categories (1) cumulative to mother's own testimony at the objections hearing, (2) admissions by mother herself to the HCJFS caseworker, or (3) does not rise to the level of plain...
To continue reading
Request your trial