[Cite as In re M.P., 2015-Ohio-4417.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

IN RE: M.P.                                            C.A. No.    14CA010693
       M.P.
       E.K.

                                                       APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
                                                       COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
                                                       CASE Nos. 13 JC 39792
                                                                  13 JC 29793
                                                                  13 JC 39794

                                 DECISION AND JOURNAL ENTRY

Dated: October 26, 2015



        SCHAFER, Judge.

        {¶1}     Appellant, Marsheen P. (“Mother”), appeals from a judgment of the Lorain

County Court of Common Pleas, Juvenile Division, that terminated her parental rights to three of

her minor children and placed them in the permanent custody of Lorain County Children

Services (“LCCS”). This Court reverses and remands.

                                                  I.

        {¶2}     Only three of Mother’s minor children are at issue in this case: M.P., a female

born January 28, 2005; M.P., a male born March 30, 2006; and E.K., born October 27, 2009.

The fathers of the children are not parties to this appeal.

        {¶3}     When LCCS initially became involved with this family on a voluntary basis,

Mother was living in her home with other adults and seven minor children, including these three

children, Mother’s older minor child, and Mother’s three young grandchildren. Mother had
                                                2


agreed to care for her three young grandchildren because their mothers, Mother’s daughters, had

substance abuse problems. LCCS opened a voluntary case based on concerns that the children

while in Mother’s care were not adequately supervised and had been exposed to domestic

violence in the home.

       {¶4}    On August 9, 2013, LCCS filed dependency and neglect complaints, alleging that

Mother’s one-year-old grandchild had been found outside the home without adult supervision.

LCCS alleged continuing concerns about domestic violence between Mother and the father of

E.K., violence between Mother’s oldest adult daughter and the father of two of the

grandchildren, and that Mother was not adequately supervising her minor children and

grandchildren who were in her care. Mother would later concede that she was overwhelmed by

caring for seven minor children.

       {¶5}    Although LCCS initially requested an order of protective supervision of the

children, shortly before the adjudicatory and dispositional hearings, an incident of domestic

violence between Mother and her oldest daughter led to the children’s removal from the home.

M.P., M.P., and E.K. were adjudicated as neglected and dependent children and placed in the

temporary custody of LCCS. The trial court adopted the case plan, which was later amended to

reflect the children’s removal from the home, and focused on reuniting Mother only with her

own minor children.1 The reunification goals required Mother to engage in services to address

the instability and domestic violence in her home.




       1
       Mother’s oldest minor child was later placed in a planned permanent living arrangement
and Mother did not appeal that dispositional order.
                                                   3


        {¶6}      On April 17, 2014, LCCS filed an amended case plan to terminate Mother’s visits

with the children. LCCS explained that the children had experienced increased behavioral

problems, which it attributed to Mother behaving inappropriately during the visits by being

argumentative with LCCS and inappropriately speaking to the children about the case. Although

Mother did not file timely objections to the amended case plan, she later moved the trial court to

reinstate her visits, but the trial court denied her motion.

        {¶7}      On May 22, LCCS moved for permanent custody of the children. Aside from

terminating Mother’s visits one month earlier, the requirements for Mother on the case plan had

remained essentially the same during the six months that she had been given to remedy the

conditions that caused the children to be removed from her home. Following a hearing on the

permanent custody motion and Mother’s request for a six-month extension of temporary custody,

the trial court found that the children could not be returned to Mother’s custody within a

reasonable time or should not be returned to her custody and that permanent custody was in their

best interests.

        {¶8}      Mother appeals and raises three assignments of error. This Court confines its

review to Mother’s second assignment of error because it is dispositive.

                                                  II.

                                ASSIGNMENT OF ERROR NO. II

        THE TRIAL COURT ERRED WHEN IT ALLOWED AND RELIED UPON
        TESTIMONY CONCERNING ALLEGED DISCLOSURES MADE BY THE
        MINOR CHILDREN RELATING TO ABUSE.

        {¶9}      Mother’s second assignment of error is that the trial court erred in admitting and

relying upon improper hearsay statements of the children in reaching its permanent custody

decision. The children did not testify at the hearing. Instead, LCCS repeatedly attempted to
                                                 4


admit testimony about statements that the children made to witnesses about acts of abuse or

inappropriate discipline that they experienced while living with Mother. Although the trial court

excluded some of that testimony based on hearsay objections, it admitted some witness

testimony that the children had reported being subjected to inappropriate and/or potentially

abusive treatment while living in Mother’s home.

       {¶10} Although some of the children’s statements to their counselors about past trauma

may have been admissible under Evid.R. 803(4) as statements made for purposes of

psychological diagnosis or treatment, see In re A.R., 9th Dist. Summit No. 22836, 2006-Ohio-

1548, none of that testimony established that Mother had subjected any of the children to abuse.

The therapist who counseled E.K and the male M.P. testified that both children suffered anxiety

from past trauma, but she had been unable to determine the source of their anxiety.

       {¶11} The counselor of the female M.P. merely testified that M.P. would get anxious

about visits with Mother and that she was afraid Mother would beat her. This testimony was not

a disclosure by M.P. that she had ever been beaten by Mother, but only the counselor’s

unexplained conclusion that the child feared being beaten.

       {¶12} Moreover, before admitting a child’s statement under Evid.R. 803(4), the trial

court should consider the circumstances surrounding the child’s statement to the treatment

provider. State v. Dever, 64 Ohio St.3d 401, 410 (1992). It was not disputed that M.P. had

multiple mental health diagnoses that were so severe and unstable that she was in a residential

treatment facility and was often placed in physical restraints because she posed a threat to herself

and/or others. Even after her visits with Mother were terminated, M.P.’s mental health had not

stabilized. Doctors continued to adjust her psychiatric medications, she continued to have
                                                 5


behavioral outbursts that sometimes required that she be physically restrained, and she remained

institutionalized.

        {¶13} In addition to testimony of the counselors, other witnesses testified about the

children’s out-of-court statements. None of that testimony fell within a recognized exception to

the rule against hearsay evidence. LCCS incorrectly argued at the hearing and again on appeal

that the testimony of the guardian ad litem about what the children told him fell within an

exception to the hearsay rule. This Court has explicitly recognized that the report and testimony

of the guardian ad litem may include out-of-court statements of people interviewed, given the

unique role of the guardian ad litem to investigate the circumstances and parties in the case and

to provide a recommendation to the trial court about the best interests of the children. See

Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012-Ohio-2615, ¶ 12. As this Court further

explained in Sypherd:

        The intended purpose of the guardian ad litem gathering that information,
        however, is not to offer evidence to the court of the facts that she gathered but to
        explain the basis for her recommendation. In other words, when a guardian ad
        litem relays what a person told her, it is not for the purpose of establishing the
        truth of the matters relayed. Rather, it is for the purpose of describing the
        investigatory process of the guardian ad litem and the matters which may have
        influenced her opinion as to the best interests of a child.

Id. Unless those out-of-court statements fall within a recognized exception to the hearsay rule,

they are not admissible “for the purpose of establishing the truth of the matters relayed.” Id. at ¶

12–13; In re A.K., 9th Dist. Summit No. 26291, 2012-Ohio-4430, ¶ 27. Consequently, as there is

no suggestion that the children’s out-of-court statements to the guardian ad litem fell within an

exception to the hearsay rule, the trial court erred in allowing his testimony about what the

children told him about being abused and/or inappropriately disciplined in Mother’s home.
                                               6


       {¶14} Because this hearing was held before a judge, this Court will presume that the

judge considered only the relevant, material, and admissible evidence in arriving at its judgment

unless the record affirmatively demonstrates otherwise. In re D.B., 9th Dist. Medina Nos.

03CA0015-M, 03CA0018-M, 2003-Ohio-4526, ¶ 9, citing State v. Richey, 64 Ohio St.3d 353,

357–358 (1992). From the face of the permanent custody judgment, however, it is apparent that

the trial court based its factual findings about abuse in the home on the children’s hearsay

statements because there was no other evidence to support those findings.

       {¶15} This Court must next determine if the trial court’s consideration of the hearsay

evidence constituted reversible error or whether there was sufficient admissible evidence to

support the trial court’s decision. See In re Reeves, 9th Dist. Summit Nos. 19650, 1963, 19706,

19669, 19674, 19707, 19672, 19705, 2000 WL 727532, *20 (June 7, 2000). Before a juvenile

court may terminate parental rights and award permanent custody of a child to a proper moving

agency it must find clear and convincing evidence of both prongs of the permanent custody test:

(1) that the child is abandoned, orphaned, has been in the temporary custody of the agency for at

least 12 months of a consecutive 22-month period, or that the child cannot be placed with either

parent within a reasonable time or should not be placed with either parent, based on an analysis

under R.C. 2151.414(E); and (2) that the grant of permanent custody to the agency is in the best

interest of the child, based on an analysis under R.C. 2151.414(D).           See Former R.C.

2151.414(B)(1)2 and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996).

       {¶16} The trial court found that the first prong of the permanent custody test had been

satisfied because the children could not be returned to Mother within a reasonable time or should

not be returned to her because Mother had failed to substantially remedy the conditions that


       2
           R.C. 2151.414(B)(1) was amended effective September 17, 2014.
                                                 7


caused the children to be placed outside the home. See R.C. 2151.414(E)(1). “Pursuant to the

plain language of R.C. 2151.414(E)(1), a finding under this section must be premised on

‘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.’” In re D.K., 9th Dist.

Summit Nos. 26840, 26846, 2013-Ohio-3513, ¶ 10. Consequently, this Court will review the

record to determine whether LCCS established by clear and convincing evidence that, despite

reasonable case planning efforts, Mother failed to substantially remedy the conditions that

caused the children’s initial and ongoing removal from the home.

                                      Reasons for Removal

       {¶17} There was no proper evidence before the trial court to establish that the children

had been removed from the home or continued to be placed outside the home because they had

been abused and/or inappropriately disciplined by Mother or anyone else in the home. The

reasons for the children’s initial removal from the home are those set forth in the adjudicatory

decision. See In re G.D., 9th Dist. Summit No. 27337, 2014-Ohio-3476, ¶ 16. The trial court

did not adjudicate M.P., M.P., or E.K. as abused children, nor were there any findings in the

adjudicatory decision that they had been subjected to any abuse in the home. Mother was not

charged with or convicted of abuse of her children and nothing about abuse or improper

discipline of the children was included in any of the case plans.

       {¶18} Instead, the adjudicatory decision included findings that the children had been

removed from the home for two primary reasons: (1) they were exposed to domestic violence in

the home, and (2) Mother failed to adequately supervise them or otherwise provide them with a

safe and stable home. LCCS focused the case plan and its admissible evidence at the hearing on

those two primary reasons for the children’s removal. At one time, LCCS was also concerned
                                                8


that Mother might have drug or alcohol problems, but the caseworker testified at the permanent

custody hearing that Mother had demonstrated that she did not have a substance abuse problem.

                                       Domestic Violence

         {¶19} As set forth in the adjudication and the case plans, the agency’s concerns about

domestic violence in the home pertained to a history of domestic violence perpetrated against

Mother by the father of E.K. Most recently, that father had perpetrated domestic violence

against Mother and her two adult daughters, which resulted in the father being convicted and

incarcerated for felony domestic violence. He remained incarcerated throughout most of this

case.

         {¶20} Shortly before the adjudicatory hearing, there was also an incident of domestic

violence between Mother and her oldest daughter.          Although LCCS witnesses repeatedly

insinuated that Mother seriously harmed her daughter during that altercation, those assertions are

not supported by the record. The actual record facts surrounding that incident are set forth in the

stipulated findings upon adjudication, the journalized case plans, and testimony of Mother at the

hearing. Mother’s oldest daughter had a substance abuse problem and a history of domestic

violence with other men, including altercations at Mother’s home. The initial case plan and all

amended case plans provided that if the oldest daughter came to Mother’s home intoxicated,

Mother was not to allow her to stay. Shortly before the adjudicatory and dispositional hearings,

the daughter came to Mother’s home intoxicated and Mother was unable to persuade her to

leave.   A physical altercation ensued, both women sustained injuries and, after the police

responded to Mother’s home, the daughter left. Later, the daughter was found unconscious at

another location and was transported to the hospital. The evidence did not establish that Mother

had caused the daughter’s unconsciousness or her need for medical treatment.
                                                9


       {¶21} Nevertheless, as a result of the incident between Mother and her oldest daughter,

the children were removed from Mother’s home, but the pertinent requirements of the case plan

remained essentially the same.     To address her history of domestic violence, Mother was

required to complete a domestic violence education program, which she did.

       {¶22} Mother was also required to engage in mental health treatment to address her own

history of trauma as the victim of abuse. She obtained a mental health assessment and engaged

in counseling during this case to address her history of being a victim of domestic violence,

dating back to when she was a child living in foster care. Although Mother’s attendance in

counseling had not been consistent throughout the case, she was engaged in counseling at the

time of the hearing. Mother testified that she was working through her anger and learning that

she should stay away from unhealthy relationships and work with LCCS, rather than treating the

agency as an enemy.

       {¶23} The case plan also required that Mother have no contact with the father of E.K.

Although the case plan required that she obtain a no contact order against him, which Mother

apparently did not do, the father was incarcerated and Mother had no contact with him during the

six months that she had to work on the case plan.

       {¶24} Despite repeated suggestions throughout the hearing to the contrary, Mother was

only required to comply with the written requirements of the journalized case plans, not

additional requirements that the caseworker or guardian ad litem seemed to believe had been

imposed upon her. See In re S.D.-M, 9th Dist. Summit Nos. 27148, 27149, 2014-Ohio-1501, ¶

26-27. Although LCCS presented evidence that Mother also had been the victim of domestic

violence perpetrated by the father of her older children and criticized her for having contact with

him, the case plan did not require Mother to limit her contact with the father of the older
                                               10


children. In fact, their visits with the children were arranged to be at the same time and the

agency had even praised the father because he “stepped up to help [Mother] with the children[.]”

       {¶25} The caseworker and the guardian ad litem similarly implied that Mother violated

the requirements of the case plan by having contact with her oldest daughter. The case plan did

not prohibit Mother from seeing her oldest daughter or allowing her in her home. Instead, the

case plan provided throughout this case that the oldest daughter could not “reside” in Mother’s

home, that the daughter could not be in the home with the father of her children, and that she was

not allowed in the home if she appeared to be intoxicated. There was no evidence before the trial

court that Mother failed to comply with that requirement of the case plan after the children were

removed from the home.

                                Parenting Classes and Visitation

       {¶26} In addition to addressing her domestic violence issues, Mother was required to

complete parenting classes and demonstrate to LCCS that she could implement what she had

learned. Although Mother stopped working with her original parenting mentor, she completed

another program of parenting classes and visited her children regularly until her visits were

terminated. Because Mother’s visits were terminated five months into the case plan, Mother had

little opportunity to demonstrate that she could implement what she had learned in parenting

classes.

       {¶27} The caseworker testified that Mother’s visits were terminated because they were

“chaotic,” Mother inappropriately spoke to the children about the case plan, and was hostile

toward LCCS. The agency also blamed Mother for the children’s increased behavioral problems

before and after visits. To begin with, this Court questions the reasonableness of the agency’s

reunification efforts in this regard. The children were removed from Mother’s care because she
                                                 11


was overwhelmed by caring for seven minor children and her relationship with her adult

daughters and the father of her older children was admittedly problematic. Given that the case

plan goal was to reunite Mother only with her own minor children, it unclear why the agency

arranged for this entire extended family of seven minor children and at least four adults to visit

together. The chaos that was observed during the visits might have been prevented by allowing

Mother to have some visitation with her minor children without her grandchildren and adult

daughters.

       {¶28} Next, LCCS faulted Mother for speaking to her children about the case plan. It is

understandable why children services agencies prohibit the parents from discussing the merits of

the case with their children, yet it is also somewhat unrealistic to expect that parents can turn off

their emotions and/or refuse to answer their children’s questions when asked. Mother admitted

that she should not have spoken to her children about the case, but that violation of the rules, in

and of itself, does not seem to have been a sufficient justification for terminating Mother’s visits.

       {¶29} LCCS also pointed to Mother’s poor behavior toward the agency. The primary

evidence about her behavior, however, was limited to an incident in which Mother called the

caseworker a name. Mother admitted that she became upset and emotional when she learned that

the female M.P. would not be attending a visit, and that she called the caseworker an “idiot.”

LCCS witnesses repeatedly testified about Mother calling the caseworker an idiot, but no further

details about that incident were admitted into evidence. There was no testimony that Mother

became overly aggressive or violent, behaved irrationally, threatened anyone, or that she did

anything more extreme than calling the caseworker an “idiot.”

       {¶30} Finally, the agency blamed Mother for the children’s behavior problems before

and after the visits. This Court has reviewed many permanent custody cases in which agencies
                                                  12


presented testimony about the children’s behavioral problems before or after visits in an apparent

attempt to persuade the trial court that, because the children act out, something wrong must be

happening during the visits. This Court cannot simply speculate about the cause of the children’s

behavioral changes, however.

        {¶31} Parental visitation during permanent custody cases, by its nature, may trigger a

variety of emotional and behavioral reactions from the children. These are children who have

been removed from their home, do not likely understand why, do not know when or if they will

return home or find a new home, and their parents are forbidden from discussing those issues

with them. Behavioral reactions to visitation could be the result of a myriad of emotions,

including love, fear, loss, anger, or confusion. Without evidence of what occurred during the

visits or expert testimony to establish cause and effect, this Court is not inclined to draw

conclusions about a parent from the mere fact that the children’s behavior changes before or after

the visits.

        {¶32} The evidence here was simply that the children had behavioral changes before and

after visits. All three children had behavioral problems that escalated during this case, even after

visits with Mother stopped. Moreover, no facts or expert testimony linked their behavioral

problems to any inappropriate behavior by Mother.

                                    Stable Housing and Income

        {¶33} At the hearing, the caseworker testified that Mother had obtained stable housing.

The evidence demonstrated that Mother had rented a four-bedroom home where she lived by

herself. Although LCCS presented evidence that the home was sparsely furnished, there was no

evidence that it was not stable or suitable for the children.
                                                13


       {¶34} Regarding Mother’s income, the caseworker testified that she had been unable to

verify that Mother was employed. The case plan provided that Mother would “[w]ork or show

stable source of income” and that she would provide documentation to verify her employment

when asked.    The caseworker did not explain how she had attempted to verify Mother’s

employment or whether she had ever asked Mother for documentation. According to Mother,

which the agency did not dispute, rather than asking Mother to provide pay stubs, LCCS called

one of her former employers, causing Mother to lose her job. Mother testified that she revoked

the release that she had signed and told the agency that she would provide pay stubs, but that she

did not want the caseworker calling her place of employment. At the hearing, Mother admitted

numerous pay stubs to demonstrate that she had been employed throughout most of the case.

       {¶35} In conclusion, this Court cannot conclude that there was sufficient properly-

admitted evidence before the trial court to support its conclusion that Mother had failed to

substantially remedy the conditions that caused her children to be placed outside the home. In

fact, from the evidence before the trial court, it appeared that Mother had made significant

progress on the case plan. She had been given only six months to work on the case plan and only

five months of visits with her children before LCCS moved for permanent custody. By the time

of the hearing, Mother had demonstrated to the agency that she had no substance abuse

problems, had secured stable employment and housing, completed parenting classes and a

domestic violence course, and was engaged in counseling. Consequently, we cannot conclude

that the trial court’s error in admitting inadmissible hearsay constituted harmless error. Mother’s

second assignment of error is sustained.
                                                14


                         REMAINING ASSIGNMENTS OF ERROR

       {¶36} Mother’s remaining assignments of error assert that the trial court’s judgment was

against the manifest weight of the evidence. Because Mother’s second assignment of error is

dispositive, the remaining assignments of error have been rendered moot and will not be

addressed. See App.R. 12(A)(1)(c).

                                                III.

       {¶37} Mother’s second assignment of error is sustained, which rendered moot her

remaining assignments of error. The judgment of the Lorain County Court of Common Pleas,

Juvenile Division, is reversed and remanded for further proceedings consistent with this opinion.

                                                                              Judgment reversed
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                15


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CARR, P. J.
MOORE, J.
CONCUR.

APPEARANCES:

KATHLEEN M. AMERKHANIAN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and PREETHI KISHMAN, Assistant Prosecuting
Attorney, for Appellee.

THOMAS J. MCGUIRE, Attorney at Law, for Father.

CLAUDE THOMPSON, Guardian ad Litem.
