       [Cite as In re K. G., 2013-Ohio-3160.]

                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




IN RE: K.G.                                     :      APPEAL NO. C-120772
                                                       TRIAL NO. F12-1163x
                                                :

                                                :           O P I N I O N.




Civil Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 19, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Jr.,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Klarysa J. Benge, for Appellee Guardian Ad Litem,

Jon R. Sinclair, for Appellant Mother.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS


DeWine, Judge.
       {¶1}     Nine-year-old K.G. was adjudicated abused, neglected and dependent

because his mother failed to insure that his asthmatic condition was properly treated, and,

in fact, removed him from the hospital on two occasions while he was still receiving

treatment. Appellant is K.G.’s mother. She argues that the trial court went astray by

adopting a magistrate’s report that was tainted by the magistrate’s reliance upon hearsay

contained in K.G.’s medical records. We have parsed through the statements relied upon

by the magistrate, and determine that most of the evidence was admissible under

exceptions to the hearsay rule. One statement did constitute inadmissible hearsay, but the

error was harmless. We conclude that the court’s finding that K.G. was abused, neglected

and dependent was supported by clear and convincing evidence, and, therefore, affirm the

judgment of the trial court.

                                             I.

       {¶2}      This case arose from a series of hospital visits over a three-day period

made by K.G. for complications from his previously diagnosed asthmatic condition. On

May 7, 2012, K.G.’s grandmother took him to the Hopple Street Health Center because he

was having trouble with his asthma.       He was assessed and sent via ambulance to

Children’s Hospital Medical Center (“CHMC”). Appellant arrived at CHMC’s emergency

room after K.G. had been brought by ambulance.          After spending some time in the

emergency room, appellant took K.G. from the hospital without receiving discharge

papers or new prescriptions. Appellant later claimed that, despite not having spoken with

medical personnel, she thought K.G. was free to leave because a nurse had given K.G.’s

grandmother a form titled “Return to Work/School Statement” that acknowledged that

K.G. had been in the emergency room on May 7.




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       {¶3}      Because appellant removed K.G. from the emergency room without him

having been discharged, the Hamilton County Department of Job and Family Services

(“HCJFS”) received an allegation of medical neglect. Ms. Tara Leaman, an intake social

worker with HCJFS, contacted appellant and tried to explain the seriousness of K.G.’s

medical condition. Appellant responded with laughter and racial slurs and hung up on

Ms. Leaman. Later in the evening, appellant’s brother contacted her and told her that

police officers had come to his home looking for K.G., and that she needed to get K.G. to

the hospital. Appellant asked her mother to take K.G. back to the hospital, and her mother

did so on May 8.

       {¶4}      While being examined in the emergency room, K.G. told medical

personnel that he had not had any asthma treatment since his mother had taken him from

the hospital on May 7. K.G.’s medical records note that on May 8, he had “increased work

of breathing and significant wheezing.” According to appellant, she spent a few hours in

K.G.’s hospital room on May 8, and then again removed him from the hospital without

K.G. having been discharged.

       {¶5}      On May 9, Ms. Leaman and another social worker went to appellant’s

brother’s house to try to locate K.G. They were not able to see K.G., and were again

subjected to name-calling and racial slurs by appellant. After appellant lunged at and tried

to physically attack the social workers, Ms. Leaman called 911, but appellant sped away

before the police arrived. Later that day, family members brought K.G. back to the

hospital. HCJFS requested and received an emergency order of custody. HCJFS also filed

a complaint seeking temporary custody of K.G., claiming that he was abused, dependent

and neglected.

       {¶6}      A magistrate of the Hamilton County Court of Common Pleas, Juvenile

Division, held an adjudication hearing. See R.C. 2151.28(A)(2). At the hearing, HCJFS

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sought to introduce into evidence K.G.’s medical records from CHMC. Appellant

objected to admission of the records. When the magistrate overruled her objection,

appellant’s counsel requested the opportunity to redact portions of the records that

were hearsay. The magistrate denied the request, but noted that she would consider

only admissible statements within the records.

       {¶7}    Following the hearing, the magistrate adjudicated K.G. abused,

dependent and neglected, and committed K.G. to the temporary custody of HCJFS.

Appellant objected to the decision of the magistrate, arguing that the magistrate

improperly considered hearsay in the medical records. The trial court overruled

appellant’s objections and adopted the magistrate’s decision, concluding that the

magistrate properly had limited her review of the medical records to nonhearsay

portions, and that “[a]ny hearsay included in the medical records and not covered by

a hearsay exception was harmless error and not relied upon in the decision.”

                                          II.

       {¶8}    In her sole assignment of error, appellant asserts that the trial court

erred by adopting the magistrate’s decision and adjudicating K.G. abused, dependent

and neglected. She contends that the magistrate improperly admitted the records

from CHMC because they constituted inadmissible hearsay.                 Absent the

inadmissible portions of the records, she argues, the magistrate’s decision was not

supported by clear and convincing evidence.

       {¶9}    Evid.R. 803(6), relating to records of regularly conducted activity,

provides an exception to the general rule that hearsay statements are inadmissible.

Under the exception, “memorand[a], report[s], record[s], or data compilation[s] in

any form of acts, events, or conditions made at or near the time by, or from

information transmitted by a person with knowledge, if kept in the course of a

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regularly conducted business activity,” are not excluded as hearsay. Evid.R. 803(6).

K.G.’s medical records were admitted into evidence as business records of CHMC.

       {¶10}   Appellant argues that the records were not admissible because no one

from the hospital testified about the records.     This argument is not persuasive.

Under R.C. 2317.422(A), in lieu of the testimony of the person who made the records

or who has custody of them, hospital records “may be qualified as authentic evidence

if any such person endorses thereon the person's verified certification identifying

such records, giving the mode and time of their preparation, and stating that they

were prepared in the usual course of the business of the institution.” See Evid.R.

803(6); Evid.R. 901(B)(1). A hospital representative so certified these records.

       {¶11}   Appellant also challenges the admission of the records because

statements within the records were inadmissible hearsay. Even if K.G.’s medical

records themselves were admissible under Evid.R. 803(6), the magistrate still should

have excluded hearsay statements within the records unless those statements were

independently admissible under a hearsay exception. Evid.R. 805. Here, rather than

allow the parties an opportunity to redact impermissible hearsay from the records,

the magistrate stated that she would consider only admissible portions of the

records.

       {¶12}   We are troubled by the magistrate’s unwillingness to allow the parties

to redact hearsay statements. While we have in the past employed a presumption

that in a bench trial the finder of fact “considered only properly admitted evidence,”

State v. Strohm, 1st Dist. Hamilton Nos. C-060056, C-060057 and C-060058, 2006-

Ohio-6161, ¶ 24, the far better course would have been to remove any hearsay from

the records. See State v. Hamilton, 77 Ohio App.3d 293, 300, 602 N.E.2d 278 (12th

Dist.1991). If this had been done, there would be no question about what evidence

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the magistrate had considered. As it stands, we review the magistrate’s decision to

determine whether she relied on impermissible hearsay.

       {¶13}   One category of statements relied upon by the magistrate in her

adjudication decision was statements in the medical records about K.G.’s condition.

For example, one doctor noted “grunting, retracting, poor air movement throughout.

Scattered occasional wheeze.”     Such first-hand observations by the doctor who

created the record were admissible as part of the regularly recorded business

records.   Evid.R. 803(6).   The magistrate also cited K.G.’s statement to CHMC

medical staff on May 8 that he had not received treatment from the time when his

mother had removed him from the emergency room on May 7. This statement was

admissible as a statement for the purposes of medical diagnosis or treatment. See

Evid.R. 803(4). A nurse’s note that appellant stated upon entering the emergency

room that “he wasn’t this bad at home, he was fine” was admissible as a statement

against appellant’s interest. See Evid.R. 801(D)(2).

       {¶14}   The magistrate did, however, consider an inadmissible hearsay

statement made by Dr. Ololade Akintoye in the medical records. According to Dr.

Akintoye, she told appellant on May 8 that K.G. would be in the hospital at least

overnight. This statement—“a statement, other than one made by the declarant

while testifying at the trial or hearing”—was inadmissible hearsay.    See Evid.R.

801(C). Although the magistrate should not have considered the statement, we

conclude that its admission was harmless because it was cumulative of other

evidence that appellant knew her son was expected to remain in the hospital.

Appellant herself testified that she had removed K.G. from the hospital on two

occasions before he was discharged.




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                                              III.

       {¶15}       Appellant contends that even if the magistrate’s consideration of the

statements in the medical records was proper, the adjudication of K.G. as abused,

neglected and dependent was not supported by clear and convincing evidence. See

R.C. 2151.35(A)(1). In her appellate brief, appellant seems to challenge both the

sufficiency and the weight of the evidence. As to sufficiency, “[w]e will not reverse a

trial court’s determination that a child was abused, [neglected] or dependent unless

we are convinced that it is not supported by sufficient evidence to meet the clear and

convincing standard.” In re Wilkinson, 1st Dist. Hamilton Nos. C-040182, C-040203

and C-040282, 2004-Ohio-4107. We conclude that the trial court’s findings that

K.G. was abused, neglected and dependent were supported by clear and convincing

evidence. See R.C. 2151.031 (abused child defined); R.C. 2151.03 (neglected child

defined); R.C. 2151.04 (dependent child defined). In regard to the manifest-weight

argument, having reviewed the record, we are not persuaded that, in adjudicating

K.G. abused, neglected and dependent, the trial court lost its way and created such a

miscarriage of justice that we must reverse its decision. See Eastley v. Volkman, 132

Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. The trial court therefore did

not err when it overruled appellant’s objections and adopted the magistrate’s report.

The sole assignment of error is overruled, and we therefore affirm the judgment of

the trial court.

                                                                     Judgment affirmed.



HENDON, P.J., and DINKELACKER, J., concur.




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