       [Cite as In re M.R., 2020-Ohio-3648.]
               IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                HAMILTON COUNTY, OHIO


IN RE: M.R., K.R.1, J.R., K.R.2, and           :   APPEAL NO. C-190547
       B.H.                                        TRIAL NO. F16-1339X
                                               :

                                               :            O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: July 8, 2020


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jennifer Hengst,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Paul Hunt, for Appellee Guardian ad Litem for M.R., K.R.1, J.R., K.R.2, and B.H.,

Christopher P. Kapsal, for Appellant Mother.
                         OHIO FIRST DISTRICT COURT OF APPEALS


Z AYAS , Judge.

          {¶1}    Appellant L.R. (“Mother”) appeals from the judgment of the Hamilton

County Juvenile Court adjudicating her five children—B.H., K.R.1, J.R., K.R.2, and

M.R.—dependent and placing three of the children in the legal custody of their

respective fathers and two of the children in the temporary custody of the Hamilton

County Department of Job and Family Services (“HCJFS”). We reverse the juvenile

court’s judgment in part and remand the cause for further proceedings.

                              Facts and Procedural History

          {¶2}    The juvenile court first adjudicated B.H., K.R.1, J.R., and K.R.2

dependent and removed them from their mother’s care in November 2017.1           This

adjudication followed an incident of domestic violence between Mother and her

eldest daughter, B.H., who was 12 years old at the time. B.H. and Mother had gotten

into an argument over chores that turned physical. B.H. pulled out a knife and

threatened to kill her mother and herself. The incident was apparently witnessed by

J.R., who reported being scared.

          {¶3}    By all accounts, Mother has struggled to manage B.H.’s behavior

throughout B.H.’s childhood. B.H. has been diagnosed with post-traumatic stress

disorder, attention deficit hyperactivity disorder, oppositional defiance disorder and

mood disorder. Following her 2017 dependency-adjudication, she was referred for a

number of different agency services, including extensive mental-health treatment

through HOPE for Children and Families (“HOPE”), family counseling, case

management, psychiatric medication, and 60 hours of weekly in-home services.

While in temporary custody of the agency, she was placed in residential treatment at

St. Joseph’s Orphanage’s Crisis Stabilization Unit.


1   M.R. was not yet born.

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                     OHIO FIRST DISTRICT COURT OF APPEALS


       {¶4}   In January 2018, K.R.1, J.R., and K.R.2 were returned to Mother

under protective orders. M.R. was born around this time.        The protective orders

directed Mother to provide HCJFS and the guardian ad litem (“GAL”) with

reasonable access to her home and to K.R.1, J.R., and K.R.2. The orders were to

terminate by operation of law on August 25, 2018.

       {¶5}   In April 2018, B.H. was returned to Mother under a protective order.

This order directed Mother to provide HCJFS and the GAL with reasonable access to

her home and to B.H., to comply with the HOPE services then in place, and to

complete a domestic-violence assessment. The order was to terminate by operation

of law on April 24, 2019.

       {¶6}   HCJFS subsequently filed a complaint in November 2018, claiming

that all five children—B.H., K.R.1, J.R., K.R.2, and M.R.—were neglected and

dependent, and moved for temporary custody. The basis of the complaint was that

B.H. was hospitalized for violent and aggressive behaviors since returning to

Mother’s care in April, and B.H. was charged with domestic violence against Mother

in September. B.H. allegedly punched Mother in the face several times and shoved

her into a wall, damaging the drywall. HCJFS also alleged that B.H. was frequently

left to babysit her siblings while Mother was out and indicated that B.H. was recently

charged with three counts of assault for an incident at her school.

       {¶7}   The agency listed in its complaint two recent violent incidents

involving Mother. On October 14, 2018, Mother was charged with domestic violence

for injuring W.R., the father of K.R.2 and M.R., while at his home, and on October

29, 2018, Mother was stabbed by W.R.’s girlfriend while at his home again during a

period for which W.R. had a temporary protective order (“TPO”) against Mother.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


HCJFS noted that it was unable to determine who was watching the children while

Mother was at W.R.’s house during the second incident.

       {¶8}   In February and March 2019, a juvenile court magistrate conducted

adjudication and dispositional hearings.

       {¶9}   P.S., maternal grandmother, testified that she was at Mother’s home

on the night of October 29 babysitting her grandchildren, and that she frequently

babysat all of the children. Danielle Miller, a HCJFS caseworker, testified that 241-

KIDS, Hamilton County’s hotline to report suspected cases of child abuse or neglect,

received a report that the children were left alone at Mother’s home that night.

Miller testified that the October 29 report was the only specific report the agency

received regarding Mother leaving the children without supervision. The juvenile

court made no finding on whether the children were indeed left without adult

supervision that night or any other night, stating only, “the Court agrees with the

Magistrate that it is unclear whether the children were being supervised by an adult

on the night of the incident.”

       {¶10} Miller testified that she never had any concerns about the children’s

safety at Mother’s home. She reported that during her visits, prior to October 2018,

Mother was being more patient with the children. Miller stated, however, that B.H.’s

behaviors were concerning, such as her kicking, spitting at, pushing, punching, and

hitting Mother.    Miller mentioned that Mother filed a complaint for domestic

violence against B.H., but the charges were later dismissed. Miller also testified that

Mother often diminished B.H.’s behavior, stating that there was nothing wrong, and

that the behaviors that were reported about B.H. were not true.

       {¶11} Mother testified as well. Mother stated that B.H. had behavioral issues

as far back as she could remember. She confirmed that once B.H. was returned to


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her care by HCJFS in April 2018, B.H. had been hospitalized approximately once per

month at Children’s Hospital for aggression and suicidal ideations.               The

hospitalizations lasted about a week or more. Mother indicated that she had taken

B.H. to the hospital once or twice and that the police had taken her another time.

B.H.’s school also transported her once after a violent episode at the school. Mother

unequivocally denied the accuracy of a report from Children’s Hospital that indicated

that Mother told hospital staff she had to lock herself and the other children in a

room and B.H. kicked the door down, and that she was scared of B.H. and feared for

the safety of herself and her children.    Mother testified that to keep her other

children safe while Mother was having issues with B.H., she usually had them go to

another room. Mother also stated that B.H. has never been aggressive towards her

siblings.

       {¶12} HCJFS moved to admit B.H.’s medical records with Mother’s

statements into the record, at which point Mother’s counsel objected to “any hearsay

within the medical records.”      The prosecuting attorney agreed with Mother’s

objection. The magistrate sustained Mother’s objection and received the records into

evidence, stating: “Okay. I mean I would take those out. I would admit those subject

to that [objection].”

       {¶13} Mother also briefly testified about her incidences of violence involving

W.R. Mother indicated that she and W.R. were continuing a relationship while also

trying to coparent their children.   She said that he was convicted for domestic

violence against her in 2017. She said that W.R.’s girlfriend was the mother of W.R.’s

other child and that she was not supposed to be at W.R.’s the night Mother was

stabbed by her. Mother generally characterized the incident as a misunderstanding,

and explained that the original charge for domestic violence was pleaded down to



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                     OHIO FIRST DISTRICT COURT OF APPEALS


disorderly conduct. Miller described Mother’s relationship with W.R. as a custody

dispute. The bulk of the testimony regarding Mother’s domestic-violence charge and

the violation of a TPO regarded whether the children were left alone on the night

Mother visited W.R.’s home.

       {¶14} At the close of the evidence, and after denying Mother’s motion to

dismiss the agency’s complaint, the magistrate adjudicated B.H., K.R.1, J.R., K.R.2,

and M.R. dependent.

       {¶15} Disposition immediately followed.        A psychologist contracted by

Family Access to Integrated Recovery, a program developed by HCJFS, testified,

along with Mother and Miller. The psychologist indicated that Mother was generally

uncooperative with his evaluation in that she minimized any negative experiences in

her life. He ultimately recommended that Mother continue therapy.

       {¶16} Miller testified that she had concerns with Mother’s visits to B.H.’s

residential treatment facility. Miller received multiple reports noting that Mother

told B.H. to steal a staff member’s cell phone and call 9-1-1, and that staff overheard

Mother tell B.H. to refuse her medication. Miller stated that because B.H. was

refusing her medication, she had threatened and tried to commit suicide several

different times. Miller also noted that B.H.’s behavior at the facility was worse

following Mother’s visits. However, Miller said that the agency’s goal for B.H. was to

successfully complete residential treatment and return home to Mother.          Miller

talked with the facility about increasing the level of supervision when Mother visited

with B.H. in an effort to deter Mother’s inappropriate comments.

       {¶17} Miller indicated that Mother’s visitation with her children was never

an issue. She could not recall a time where Mother had missed a visit or was late.

However, Miller indicated that in her opinion a current safety risk to the children


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                      OHIO FIRST DISTRICT COURT OF APPEALS


was Mother’s refusal to acknowledge that going to W.R.’s house in spite of a TPO was

wrong.

         {¶18} Mother testified that all of her children have indicated that they want

to return home and that they are well bonded. Mother denied telling B.H. anything

inappropriate during her visits at the residential treatment facility, even when

pressed by the magistrate. Mother said that she explained to the staff at the facility

that B.H.’s current medication upset her stomach, and told them she had talked to

B.H.’s doctor about changing the dosage.

         {¶19} Following the dispositional hearing, the magistrate committed B.H.

and K.R.1 to the temporary custody of HCJFS. J.R. was placed in the legal custody of

his father, D.R., and K.R.2 and M.R. were place in the legal custody of their father,

W.R.

         {¶20} Mother filed objections to the magistrate’s decision. The juvenile court

overruled all of the objections and affirmed the decision of the magistrate. Mother

now appeals, asserting two assignments of error.

                                     Adjudication

         {¶21} In her first assignment of error, Mother argues that the juvenile court

erred by adjudicating her children dependent, asserting that there was insufficient

evidence to support the juvenile court’s judgment and that the judgment was against

the manifest weight of the evidence. We agree with Mother that the dependency

adjudication is unsupported with respect to K.R.1, J.R., K.R.2, and M.R., but hold

that the adjudication is supported with respect to B.H.

         {¶22} An adjudication of dependency must be supported by clear and

convincing evidence.     See Juv.R. 29(E)(4).    “Clear and convincing evidence” is

evidence sufficient to produce in the mind of the trier of fact a firm belief or


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                     OHIO FIRST DISTRICT COURT OF APPEALS


conviction as to the facts sought to be established. In re Walling, 1st Dist. Hamilton

No. C-050646, 2006-Ohio-810, ¶ 15, citing Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954), paragraph three of the syllabus. We “must examine the record

and determine if the trier of fact had sufficient evidence before it to satisfy this

burden of proof.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d

613 (1985).

       {¶23} In its decision, the juvenile court found the children dependent under

R.C. 2151.04(C). R.C. 2151.04(C) states that a child is dependent where his or her

“condition or environment is such as to warrant the state, in the interests of the

child, in assuming the child’s guardianship.” This court has determined that “a

finding of dependency under R.C. 2151.04 must be grounded on whether the children

are receiving proper care and support. The focus is on the condition of the children,

not the fault of the parents.” In re Bibb, 70 Ohio App.2d 117, 120, 435 N.E.2d 96

(1980); see In re Walling at ¶ 16.

       {¶24} Much of HCJFS’s case focused on Mother’s tendency to minimize the

seriousness of B.H.’s behavior, Mother’s violent incidences involving W.R., and

whether Mother left her children alone on the night she visited W.R.’s house in

violation of a TPO. On appeal, HCJFS and the children’s GAL urge this court to

presume harm to the children because of Mother’s alleged conduct. But the Ohio

Supreme Court has stated that such harm may not be inferred. See In re Burrell, 58

Ohio St.2d 37, 39, 388 N.E.2d 738 (1979). For a determination of dependency under

R.C. 2151.04(C), the conduct of a parent is relevant only insofar as that parent’s

conduct forms a part of the environment of the child at issue. Id. And “[a]s a part of

the child’s environment such conduct is only significant if it can be demonstrated to

have an adverse impact upon the child sufficiently to warrant state intervention.



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                    OHIO FIRST DISTRICT COURT OF APPEALS


That impact cannot simply be left to inference, but must be specifically demonstrated

in a clear and convincing manner.” Id.

       {¶25} HCJFS presented no evidence demonstrating how Mother’s incidences

of violence at W.R.’s home were harmful to the children. While there was clear and

convincing evidence that Mother was initially charged with domestic violence and

had violated a TPO, without evidence of some nexus between her action and

resulting harm to the children, we cannot presume harm. See Burrell at 37, 39; see

also In re Walling, 1st Dist. Hamilton No. C-050646, 2006-Ohio-810; In re

Holzwart, 3d Dist. Seneca Nos. 13-04-32, 13-04-33, 13-04-34 and 13-04-40, 2005-

Ohio-1602; In re A.C., 9th Dist. Wayne Nos. 03CA0053, 03CA0054, and 03CA0050,

2004-Ohio-3285; In re R.S., 9th Dist. Summit No. 21177, 2003-Ohio-1594; In re

Sweat, 12th Dist. Warren No. CA86-06-040, 1987 WL 13054 (June 22, 1987).

       {¶26} HCJFS also did not present clear and convincing evidence that Mother

left her children alone on the night of October 29, 2018, when she was stabbed at

W.R.’s house while violating a TPO, or on any other night. In fact, the juvenile court

made no factual finding on whether Mother left her children alone on October 29,

concluding only that the evidence was “unclear.”

       {¶27} HCJFS did however present clear and convincing evidence that B.H. is

at risk in an environment in which Mother is directing her care. According to the

testimony of Miller, the agency caseworker, and as evidenced by medical records

from B.H.’s hospitalizations, B.H. continues to exhibit violent and aggressive

behavior, including attempts at suicide, when she returns to her Mother’s care.

Mother’s testimony that she just needs B.H. to utilize her coping mechanisms, while

somewhat true, only lended support to the trial court’s finding that Mother

understates B.H.’s issues.   Miller testified that B.H. needs intense services and



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                     OHIO FIRST DISTRICT COURT OF APPEALS


psychiatric medication. Miller said that Mother’s minimization of B.H.’s behavior

was evidence of a negative impact on B.H.’s environment because B.H. did not

receive the care she needed to avoid escalations of her violent behavior. B.H.’s

behavior got worse until Mother or B.H.’s school had to call the police to intervene.

Additionally, Miller’s testimony provided support for the notion that B.H.’s refusal to

take her prescribed medication—something the juvenile court determined that

Mother advised while visiting B.H. at her residential treatment facility—has a

detrimental impact on B.H., as her attempts at suicide increased. Compare In re

Holzwart, 3d Dist. Seneca No. 13-04-32, 2005-Ohio-1602, ¶ 12.

       {¶28} While the medical records provided support for establishing the

dependency of B.H., we decline to find that they provided clear and convincing

evidence to establish the dependency of K.R.1, J.R., K.R.2, and M.R. As noted above,

when the agency moved to admit B.H.’s medical records, Mother objected to

inadmissible hearsay within these records. (“There must be strict adherence to the

Rules of Evidence at the adjudicatory stage.” In re Baby Girl Baxter, 17 Ohio St.3d

229, 233, 479 N.E.2d 257 (1985).). The prosecuting attorney agreed with Mother’s

objection without any rebuttal argument, and the magistrate sustained Mother’s

objection. Nonetheless, the magistrate and the juvenile court relied upon hearsay

portions of the medical records that had been excluded by the magistrate—Mother’s

statements to hospital staff on July 7, 2018 about Mother’s concerns for the safety of

her other children—to make a dependency finding. The juvenile court reasoned in its

entry that the statements were made for the purpose of medical diagnosis or

treatment, suggesting that the court found the statements to be an exception to the

hearsay rule under Evid.R. 803(4). However, the medical-records exception “is

generally applicable for the purpose of admitting statements made by a patient, to a



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doctor, for the purpose of treatment.” Johnson v. Cassens Transport Co., 158 Ohio

App.3d 193, 2004-Ohio-4011, 814 N.E.2d 545, ¶ 21 (3d Dist.).            Here though,

notwithstanding the magistrate’s decision to broadly exclude hearsay within the

records, the patient was B.H., not Mother, and HCJFS did not put forth an argument

that Mother’s statements were made for the purpose of B.H.’s treatment.

Accordingly, the juvenile court’s factual findings supporting its dependency

adjudication were based on inadmissible hearsay.        Mother unequivocally denied

making the statements in the medical records during her testimony.

       {¶29} This hearsay evidence was the only evidence the juvenile court relied

upon to find with “firm belief or conviction” that K.R.1, J.R., K.R.2, and M.R. were in

an environment that warranted state intervention.        There was no corroborating

evidence these children suffered physical or mental injury from July 7 occasion or

any other, or that they otherwise had unmet needs. See In re A.C., 6th Dist. Lucas

No. L-10-1025, 2010-Ohio-4933, ¶ 95, citing In re Alexander C., 164 Ohio App.3d

540, 2005-Ohio-6134, 843 N.E.2d 211, ¶ 58 (6th Dist.). In fact, Miller specifically

testified that she never had any concerns about the children’s safety at Mother’s

home. Without some admissible evidence that Mother’s supervision of her other

children or the environment of her other children has been affected in some negative

way, there is not clear and convincing evidence of dependency. Therefore, we hold

that the trial court erred in adjudicating these children dependent.

       {¶30} In sum, because HCJFS failed to demonstrate by clear and convincing

evidence that K.R.1, J.R., K.R.2, and M.R. were dependent, we reverse the juvenile

court’s judgment adjudicating the children dependent. We affirm that part of the

juvenile court’s judgment adjudicating B.H. dependent. The first assignment of error

is sustained in part and overruled in part.



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                     OHIO FIRST DISTRICT COURT OF APPEALS


       {¶31} The resolution of this assignment is dispositive of Mother’s appeal as

to K.R.1, J.R., K.R.2, and M.R.

                                      Disposition

       {¶32} In her second assignment of error, Mother claims that the juvenile

court erred in failing to return her children to her custody. In light of our disposition

of Mother’s first assignment, we analyze this assignment only with respect to B.H.

       {¶33} After a child is adjudicated dependent, the juvenile court has the

discretion to choose from multiple dispositional options. R.C. 2151.353(A). These

options include, among other things, committing the child to the temporary custody

of the children-services agency, or awarding legal custody to a relative or any other

person who has filed a petition for legal custody. Id. When choosing among these

dispositional options, the juvenile court’s focus is on the best interest of the child. In

re Allah, 1st Dist. Hamilton No. C-040239, 2005-Ohio-1182, ¶ 10. “Although the

statutory scheme does not delineate a specific set of factors or criteria that the

juvenile court must apply when determining the best interests of a child in a legal-

custody proceeding, this court has held that the factors set forth in R.C. 2151.414(D)

are instructive.” In re A.W., 1st Dist. Hamilton No. C-140142, 2015-Ohio-489, ¶ 8,

citing In re A.C., 1st Dist. Hamilton No. C-140273, 2015-Ohio-153, ¶ 6. We have also

held that the juvenile court may consider the factors in R.C. 3109.04(F), a statute

applicable to custody matters in domestic relations courts. In re D.M., 1st Dist.

Hamilton No. C-140648, 2015-Ohio-3853, ¶ 12.

       {¶34} “Because an award of legal custody does not divest parents of their

residual parental rights, privileges, and responsibilities, appellate courts apply a

preponderance of the evidence standard to the juvenile court’s factual findings.” In

re A.W. at ¶ 9, citing R.C. 2151.353(A)(3)(c); In re C.R., 108 Ohio St.3d 369, 2006-


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                     OHIO FIRST DISTRICT COURT OF APPEALS


Ohio-1191, 843 N.E.2d 1188, ¶ 17; In re Perales, 52 Ohio St.2d 89, 98, 369 N.E.2d

1047 (1977).

       {¶35} We review a juvenile court’s decision to grant legal custody for an

abuse of discretion. See In re A.C. at ¶ 5. “An abuse of discretion connotes more

than an error of law or judgment. It implies that the trial court’s decision was

unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). A juvenile court’s decision regarding a child’s best

interest in a legal-custody proceeding is not unreasonable if it is supported by

competent, credible evidence. In re A.W. at ¶ 10, citing In re Wilkenson, 1st Dist.

Hamilton No. C-010402, 2001 WL 1220026 (October 12, 2001).

       {¶36} Despite Mother’s arguments to the contrary, the record reflects

competent, credible evidence upon which the trial court could have found that an

award of temporary custody to HCJFS was in the best interest of B.H.             Miller

testified that the agency’s goal is to keep B.H. in the residential treatment facility

where she had made some progress until she is successfully discharged. As the

juvenile court acknowledged in its decision, Mother has minimized B.H.’s behavioral

problems and the evidence of her hospitalizations indicates that Mother is unable to

appreciate the risk of caring for B.H. without intensive treatment, which includes

continuing her psychiatric medication.      Furthermore, as the juvenile court also

noted, temporary custody of B.H. with the agency would allow Mother to complete

individual counseling to address problems with acknowledging the seriousness of

B.H.’s behavior.

       {¶37} Given our review of the record, we conclude that there is competent,

credible evidence to support the juvenile court’s decision that B.H.’s best interest was




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                     OHIO FIRST DISTRICT COURT OF APPEALS


served by granting temporary custody to HCJFS. We, therefore, overrule Mother’s

second assignment of error.

                                      Conclusion

       {¶38} For the foregoing reasons, we affirm the portion of the judgment of the

juvenile court adjudicating B.H. dependent and committing her to the temporary

custody of HCJFS, but reverse the portion of the judgment of the trial court

adjudicating K.R.1, J.R., K.R.2, and M.R. dependent and committing them to the

legal custody of HCJFS and their respective fathers.           We hereby dismiss the

dependency complaint as it pertains to K.R.1, J.R., K.R.2 and M.R.

                                                                  Judgment accordingly.



M OCK , P.J., and C ROUSE , J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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