[Cite as In re C.C., 2016-Ohio-1417.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 IN RE: C.C.                                  :
                                              :
                                              :  C.A. CASE NO. 26864
                                              :
                                              :  T.C. NO. 2013-5270
                                              :
                                              :  (Civil appeal from Common Pleas
                                              :   Court, Juvenile Division)
                                              :
                                              :
                                         ...........

                                        OPINION

                   Rendered on the ___1st___ day of ____April____, 2016.

                                         ...........

ANN M. GRABER, Atty, Reg. No. 0091731, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Appellee Montgomery County Children’s Services

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio
45459
      Attorney for Appellant Mother

                                        .............

DONOVAN, P.J.

        {¶ 1} Defendant-appellant C.G. (hereinafter “Mother”) appeals a judgment of the

Montgomery County Court of Common Pleas, Juvenile Division, adopting a magistrate’s

decision which overruled her objections and granted temporary custody of the minor child,
                                                                                         -2-


C.C., age fifteen, to the maternal grandmother, F.P., with protective supervision granted

to Montgomery County Children’s Services (hereinafter “MCCS”).            The trial court’s

“Decision and Judgment Concerning Objections to the Decision of the Magistrate” was

issued on March 2, 2015.

       {¶ 2} Mother filed a timely notice of with this Court on March 6, 2015. On May 5,

2015, we issued an order wherein we directed Mother to show cause why the appeal

should not be dismissed for lack of jurisdiction. Specifically, we questioned whether the

trial court’s decision issued on March 2, 2015, was a final appealable order in light of our

decision in Bennett v. Bennett, 2012-Ohio-501, 969 N.E.2d 344 (2d Dist.). On June 24,

2015, C.G. filed a motion to amend the trial court’s decision in order to conform to our

holding in Bennett. Mother filed her motion to amend in the trial court. On July 2, 2015,

the trial court filed an “Amended Decision and Judgment Concerning the Decision of the

Magistrate” which purported to be a final appealable order in line with Bennett.

Nevertheless, on July 9, 2015, we issued a decision and final judgment entry wherein we

dismissed Mother’s appeal for lack of jurisdiction. In re C.C., 2d Dist. Montgomery No.

26606, 2015-Ohio-3048. We also found that the trial court’s amended decision was a

nullity because Mother’s appeal was pending before us at the time that the trial court

issued the decision. Id.

       {¶ 3} On July 21, 2015, Mother filed another notice of appeal from the trial court’s

March 2, 2015, decision adopting the magistrate’s decision.          As we already held,

however, the March 2, 2015, decision was not a final appealable order. Accordingly, we

once again dismissed Mother’s appeal for lack of jurisdiction in a decision and judgment

entry issued on September 11, 2015. In re C.C., 2d Dist. Montgomery No. 26771
                                                                                        -3-


(September 11, 2015). Shortly thereafter on September 15, 2015, the trial court issued

its “Amended Decision and Judgment Concerning Objections to the Decision of the

Magistrate.” Mother filed a timely notice of appeal of the amended decision with this

Court on October 14, 2015.

       {¶ 4} The incident which forms the basis for the instant appeal occurred on April

11, 2013, when Officer Brian Douglas of the Trotwood Police Department responded to

Mother’s residence after she reported an unruly runaway juvenile. Specifically, Mother

called the police to report that her daughter, C.C., had left without permission and was

refusing to come home. Mother informed Officer Douglas that she believed that C.C.

was with her biological father, A.C. (hereinafter “Father”). Officer Douglas testified that

he contacted Father who stated that C.C. was in his care. Officer Douglas and Father

arranged to meet at the Trotwood Police Station in order to return C.C. into Mother’s care

and also in order to address why the child initially ran away.

       {¶ 5} Once at the police station, Mother demanded that C.C. be returned to her.

Officer Douglas, however, was concerned because C.C. stated that she was scared of

Mother and the punishment that would occur once they got home. Officer Douglas noted

that when C.C. was confronted with having to return home with Mother, she became

visibly upset and started crying. Officer Douglas described C.C. as “delirious.” Officer

Douglas testified that he also interviewed some of C.C.’s family members who arrived at

the police station. Based on his observations, Officer Douglas contacted MCCS and

asked them to implement a safety plan to keep C.C. from being sent back with Mother.

MCCS informed Officer Douglas that it was not going to send a caseworker but asked

him to send C.C. home with another family member besides Mother if possible. After
                                                                                      -4-


some discussion, C.C. was placed with her godfather for the night.

      {¶ 6} A short time later, Sergeant Fred Beck from the Trotwood Police Department

performed a follow up investigation into allegations of domestic violence between Mother

and C.C.     Sgt. Beck testified that he located C.C. at her uncle’s residence in

Germantown, Ohio. Sgt. Beck testified that he then interviewed C.C. and her maternal

grandmother, F.P., at the Trotwood Police Station.        Sgt. Beck testified that C.C.

appeared scared and upset and stated that she did not want to go back to Mother’s house.

After taking statements from C.C. and F.P., Sgt. Beck determined that he had probable

cause to arrest Mother for domestic violence and child endangering, charges which were

later dismissed without prejudice because the State’s witnesses failed to appear after

being subpoenaed. Sgt. Beck contacted MCCS and directed them to create a safety

plan for C.C. After deciding that C.C. would be temporarily placed with Father, Sgt. Beck

traveled to Mother’s residence in order to retrieve some of C.C.’s belongings. Sgt. Beck

testified that Mother appeared to be very angry, and she refused to provide him with any

of C.C.’s belongings. Sgt. Beck testified that based upon his observations, he believed

that C.C. was in danger from Mother.

      {¶ 7} Shortly thereafter, MCCS filed a complaint alleging that C.C. was an abused

and dependent child. The first part of an adjudication hearing was held on September

17, 2013, after which interim temporary custody of C.C. was awarded to F.P. During the

hearing, F.P. testified that Mother hit C.C. in order to discipline the child. F.P. also

testified that Mother would often yell and scream excessively when she became upset.

F.P described Mother as anxious and intimidating. F.P. testified that C.C. had begun to

appear afraid of Mother. F.P. further testified that Mother’s threatening behavior was
                                                                                           -5-


mainly directed at C.C., and the child genuinely feared for her safety.

       {¶ 8} The second part of the adjudication hearing was held on November 13, 2013.

MCCS caseworker Sonia Dejesus-Jordan testified that she was assigned to investigate

C.C.’s abuse claims. Jordan testified that she interviewed C.C. at her school, and she

stated that she was afraid for her life if she was returned to Mother’s care. Jordan

testified that C.C. told her that Mother would often pull her hair as a form of discipline.

C.C. also reported to Jordan that as punishment, Mother slapped her, dragged her

around, made her sleep in a bed with no sheets or pillows, and hit her with a belt. C.C.

was scared that “Mother was going to come and get her.” Jordan described C.C. as very

articulate and believable. Jordan testified that Mother was reluctant to speak with her

and participate in the investigation. Jordan also interviewed Father and F.P. as part of

her investigation. Jordan testified that she was able to substantiate the allegations of

abuse through her investigation.

       {¶ 9} Mother testified at the hearing and denied all of the abuse allegations.

Mother testified that she believed her parenting of C.C. was completely appropriate at all

times. Mother also testified that depending on the offense, her manner of discipline

could include verbal, physical, or a combination of both. Mother claimed that C.C. was

lying regarding her allegations of abuse. Mother, however, acknowledged that during a

conference with one of C.C.’s teachers, she did not approve of the manner in which her

daughter was speaking to the teacher. As a result, Mother testified that she hit C.C. in

the head with a folder in the presence of the teacher. Mother testified that she refused

to raise a disrespectful daughter. Mother denied being under any stress at the time C.C.

ran away in April of 2013, and testified that she was in a “kind of happy, fulfilled place.”
                                                                                       -6-


      {¶ 10} On December 13, 2013, the magistrate adjudicated C.C. abused and

dependent.   On the same day, Mother filed a motion to set aside the magistrate’s

decision. The trial court denied Mother’s motion in an entry issued on January 14, 2014.

On January 22, 2014, Mother filed a motion to reconsider the trial court’s denial of her

motion to set aside which the trial court subsequently denied on January 28, 2014.

      {¶ 11} Also on January 28, 2014, a dispositional hearing was held before the

magistrate, after which C.C.’s guardian ad litem (GAL) filed a report in which he

recommended that temporary custody be awarded to F.P. Thereafter, on February 5,

2014, the magistrate awarded temporary custody of C.C. to F.P., with protective

supervision granted to MCCS.      Mother filed her initial objections to the magistrate’s

decision on February 19, 2014.       On August 12, 2014, Mother filed supplemental

objections to the magistrate’s decision. With the permission of the trial court, Mother

supplemented her objections a second time on October 7, 2014.            MCCS filed its

response to Mother’s supplemental objections on November 5, 2014.

      {¶ 12} As previously discussed, the trial court issued a judgment overruling

Mother’s objections and adopting the decision of the magistrate on March 2, 2015. On

September 15, 2015, the trial court issued an amended judgment adopting the

magistrate’s decision.

      {¶ 13} It is from this judgment that Mother now appeals.

      {¶ 14} Mother’s first assignment of error is as follows:

      {¶ 15} “THE MAGISTRATE COMMITTED REVERSIBLE ERROR WHEN SHE

ADMITTED HEARSAY STATEMENTS ALLEGEDLY MADE BY [THE] MINOR CHILD.”

      {¶ 16} In her first assignment, Mother contends that the magistrate erred by relying
                                                                                         -7-


on inadmissible hearsay when she adjudicated C.C. abused and dependent and awarded

temporary custody to F.P. Specifically, Mother argues that “the only basis for the entire

finding of abuse and dependency was the allegations made by child that were relayed to

family members and investigators.” Mother also alleges that the magistrate failed to

conduct an in camera interview of the child in order to ascertain her testimony regarding

the abuse that occurred.

       {¶ 17} When a juvenile court rules on objections to a magistrate's decision, “the

court shall undertake an independent review as to the objected matters to ascertain that

the magistrate has properly determined the factual issues and appropriately applied the

law.” Juv.R. 40(D)(4)(d).    R.C. 2151.23(F)(1) provides that the “juvenile court shall

exercise its jurisdiction in child custody matters in accordance” with section R.C. 3109.04,

which authorizes domestic relations courts to allocate parental rights and responsibilities

for the care of minor children. We review the juvenile court's decision for an abuse of

discretion. In re A.K., 2d Dist. Champaign No. 09–CA–32, 2010–Ohio–2913, ¶ 22.

       {¶ 18} There must be strict         adherence to the       rules of    evidence    at

the adjudicatory stage and hearsay is not admissible. In re Baby Girl Baxter, 17 Ohio

St.3d 229, 233, 479 N.E.2d 257 (1985). A trial court, however, possesses broad

discretion with respect to the admission of evidence. State v. Maurer, 15 Ohio St.3d 239,

265, 473 N.E.2d 768 (1984). A trial court's determination on an evidentiary issue will only

be overturned if it evinces an abuse of discretion, signifying an unreasonable, arbitrary,

or unconscionable attitude. O'Brien v. Angley, 63 Ohio St.2d 159, 163, 407 N.E.2d 490

(1980).

       {¶ 19} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
                                                                                        -8-


arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most

instances of abuse of discretion will result in decisions that are simply unreasonable,

rather than decisions that are unconscionable or arbitrary. A decision is unreasonable if

there is no sound reasoning process that would support that decision. It is not enough

that the reviewing court, were it deciding the issue de novo, would not have found that

reasoning process to be persuasive, perhaps in view of countervailing reasoning

processes that would support a contrary result.” AAAA Enterprises, Inc. v. River Place

Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N .E.2d 597 (1990).

      {¶ 20} The purported hearsay statements which Mother challenges on appeal

include: (1) statements by C.C. to the maternal grandmother, F.P., that Mother physically

and mentally abused her ; (2) statements made by the C.C. to Officer Douglas regarding

the physical abuse she suffered at the hands of Mother; (3) testimony by MCCS intake

caseworker Jordan that C.C. told her that she was “fearful of her life if she had to return

to Mother’s care” and that Mother physically abused her; and 4) the testimony of P.H. that

C.C. informed her that “I want to leave my mom” and “my mom scares me.”

       {¶ 21} Mother argues that the following offered by F.P. was clearly hearsay and

should have been stricken from the record:

              The State: So, you were describing – well, let’s move on. So, as a

       result of the yelling and screaming that [Mother] did to [C.C.], did you ever

       notice a negative impact on C.C.?

              F.P: [C.C.] start to, in recent months, showing, yeah, she was afraid.

       [C.C.] was talking to me about things that she felt – she felt she was on

       constant punishment. She felt they were too severe.
                                                                                          -9-


              Defense Counsel: Objection, Your Honor. Hearsay.

              The State: May I respond? An existing emotional condition, how

       she felt.

              The Court: Overruled.

              The State: And so how was she explaining how she felt?

              F.P.: Am I –

              The Court: What did she – yeah, you can answer. What did she say

       to you how she felt?

              F.P.: She would tell me things that happened between her and her

       mom. She said her mom would have times when she would wake her up

       and be – be upset about something, something she did. She may be on

       punishment. Mom may wake her up at like [sic] a crazy woman at three o’

       clock in the morning and be still fussing about it. She claimed that her

       mother did push her.      She claimed her mom had punched her.            She

       claimed that her mom had just started getting worse.

       ***

       {¶ 22} C.C.'s statements to F.P. that she was scared and was afraid of

Mother were relevant to her state of mind when she left Mother’s residence and sought

help from Father and the police. These statements were properly admitted as evidence

under Evid.R. 803(3), which permits hearsay evidence of a declarant's “then existing

state of mind, emotion, sensation * * * (such as intent, plan, motive, design, mental feeling

[or] pain).” To be sure, “testimony of state-of-mind witnesses, that the victim was fearful

and apprehensive [is] not inadmissible hearsay and [is] properly admitted.” State v.
                                                                                        -10-

O’Neal, 87 Ohio St.3d 402, 411, 721 N.E.2d 73 (2000), citing State v. Apanovitch, 33

Ohio St.3d 19, 22, 514 N.E.2d 394 (1987).

      {¶ 23} Thus, C.C.’s statements to Officer Douglas, Jordan, and P.H. that she was

scared and was afraid of Mother were properly admitted as evidence under

Evid.R. 803(3). To the extent that C.C. was describing her fearful state-of-mind caused

by Mother’s conduct, the magistrate did not err in allowing the witnesses to testify

regarding those statements made to them by C.C. However, we note that to the extent

the witnesses, namely F.P., Officer Douglas, and Jordan, were allowed to testify

regarding C.C.’s statements about the physical abuse perpetrated by Mother, their

testimony constituted inadmissible hearsay.

      {¶ 24} However, we find beyond a reasonable doubt that any improperly

admitted hearsay testimony did not contribute to the adjudication of abuse and

dependency, and therefore, was harmless error. Significantly, the record establishes

that upon a motion from Mother, the magistrate conducted an in camera interview of C.C.

immediately prior to the hearing held on November 13, 2013. Thus, the magistrate was

able to directly question C.C. regarding her allegations of abuse against Mother. Mother,

however, did not request that the interview of C.C. be recorded and placed on the record.

Thus, any error in interviewing C.C. off the record is waived. In re Reed, 2d Dist. Greene

No. 95 CA 56, 1995 WL 765595, *4 (December 20, 1995).

      {¶ 25} We also note that after performing their respective investigations into C.C.’s

allegations against Mother, Jordan and Ashley Stahl, C.C.’s MCCS caseworkers, both

testified that they were able to substantiate the abuse claims. Additionally, Sgt. Beck

testified that after concluding his investigation, he believed that probable cause existed
                                                                                          -11-


to arrest Mother and charge her with domestic abuse and child endangerment. F.P.

testified that she was concerned with Mother’s mental health and that C.C. appeared to

be genuinely afraid of her. Moreover, the GAL’s report, which Mother did not challenge

on hearsay grounds, recommended that C.C. should be placed in the legal custody of

F.P. because of Mother’s repeated willful failure to work through her case plan objectives.

      {¶ 26} Lastly, we note that this case was tried directly to the magistrate, not a jury,

and we presume that the magistrate considered only relevant, material, and competent

evidence unless it affirmatively appears to the contrary. In re J.S., 2d Dist. Montgomery

No. 22063, 2007-Ohio-4551, ¶ 46. Although we find that the trial court committed error

when it allowed F.P., Jordan, and Officer Douglas to testify to prior hearsay statements

by C.C., that error was harmless beyond a reasonable doubt. Accordingly, we conclude

that MCCS adduced substantial and credible evidence to support the trial court’s decision

to adopt the magistrate’s decision adjudicating C.C. abused and dependent and awarding

temporary custody to F.P.

      {¶ 27} Mother’s first assignment of error is overruled.

      {¶ 28} Mother’s second and final assignment of error is as follows:

      {¶ 29} “THE FINDING OF ABUSE AND DEPENDENCY IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

      {¶ 30} In her final assignment, Mother argues that the trial court’s decision to adopt

the magistrate’s decision adjudicating C.C. abused and dependent was against the

manifest weight of the evidence.

      {¶ 31} A juvenile court has broad discretion in the disposition of an abused,

neglected, or dependent child. See R.C. 2151.353(A) and Juv. R. 29(D). The
                                                                                         -12-


dispositional options include, among other things, granting a children-services

agency temporary custody, committing the child to the permanent custody of a children-

services agency, or awarding legal custody to a relative or any other person.          R.C.

2151.353(A). “In choosing among the alternatives, the best interest of the child is the

court's primary consideration.” In re L.C., 2d Dist. Clark No. 2010 CA 90, 2011–Ohio–

2066, ¶ 13.

       {¶ 32} Where an award of custody is supported by substantial competent,

credible evidence in the record, that award will not be reversed as being against the

manifest weight of the evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159

(1997).

       {¶ 33} In the instant case, the record establishes that the trial court’s decision

finding C.C. to be abused and dependent was not against the manifest weight of the

evidence. First of all, every witness, with the exception of Mother, testified that C.C. was

afraid of Mother and did not want to live with her. Officer Douglas testified that when he

explained that she might have to go home with Mother on the night she went to Father’s

house, C.C. got very upset, started crying, and became “delirious.” F.P. testified that

she believed that C.C. would not fabricate stories regarding the mental and physical

abuse she suffered from Mother. The evidence adduced by the State established that

C.C. lived in a constant state of fear of Mother.       Mother testified herself that she

“smacked” C.C. in the head with a folder at a parent/teacher conference because she

believed the child was being disrespectful. Sgt. Beck testified that based upon his own

investigation, he believed he had probable cause to arrest Mother and charge her with

domestic abuse and child endangerment. Sgt. Beck testified that the charges were
                                                                                       -13-


dismissed without prejudice because subpoenaed witnesses “did not show.” The record

also establishes that MCCS substantiated both emotional maltreatment and physical

abuse of C.C. by Mother.

       {¶ 34} In order to assist in reunification with C.C., MCCS established a case plan

for Mother to follow, to wit: 1) obtain and maintain housing and income; 2) participate in

mental health treatment, specifically individual and family counseling; 3) complete the

Parent/Teen Conflict Program; 4) complete a batterer’s intervention program; 5) complete

a parenting/psychological assessment; and 6) follow all recommendations.

       {¶ 35} Stahl testified that Mother did not sign her case plan and was unwilling to

work with MCCS at the case plan meeting. Mother signed a limited release which only

allowed her counselor to disclose whether she was attending counseling, not what was

being discussed during the sessions. Stahl testified that difficulty completing the case

plan objectives was compounded by the fact that MCCS did not have any contact with

Mother since November of 2013.           Stahl testified that as a result of Mother’s

noncompliance, MCCS simply does not have any information to establish any progress

with her case plan objectives. Accordingly, the record establishes that in addition to her

substantiated mental and physical abuse of C.C, Mother’s own lack of cooperation and

communication with MCCS prevented her from utilizing services which would have

assisted her in reunification with her daughter.

       {¶ 36} Finally, the GAL recommended that legal custody of C.C. be awarded to

F.P. In fact, the GAL recommended an award of permanent custody of C.C. to F.P. in

light of the discoveries he made during his investigation of the case. The GAL also

reiterated in his testimony that Mother has exhibited a complete unwillingness to comply
                                                                                        -14-


with her case plan objectives.

       {¶ 37} Therefore, based upon the evidence presented in this case, we conclude

that the trial court’s decision to adopt the magistrate’s decision adjudicating C.C. abused

and dependent was not against the manifest weight of the evidence. In our view, the

trial court had before it ample evidence which supported an award of temporary custody

to F.P. with protective supervision to MCCS.

       {¶ 38} Mother’s final assignment of error is overruled.

       {¶ 39} Both of Mother’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                       ..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Ann M. Graber
Daniel F. Getty
Hon. Nick Kuntz
