[Cite as In re S.B., 2013-Ohio-3178.]




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


 IN THE MATTER OF:                               :
                                                 :     Appellate Case No. 2012-CA-39
                      S.B.                       :
                                                 :     Trial Court Case No. 2012-JC-25
                                                 :
                                                 :
                                                 :     (Juvenile Appeal from
                                                 :     (Common Pleas Court)
                                                 :
                                             ...........

                                            OPINION

                                Rendered on the 19th day of July, 2013.

                                             ...........

JAMES S. ARMSTRONG, Atty. Reg. #0020638, 131 North Ludlow Street, Suite 386 Talbott
Tower, Dayton, Ohio 45402
       Attorney for Appellant, Mother

KEVIN TALEBI, Atty. Reg. #0069198, 200 North Main Street, Urbana, Ohio 43078
     Attorney for Appellee, Champaign County Children Services

JACOB JEFFRIES, Atty. Reg. #0078470, Daniel and Jeffries, 133 South Main Street, New
Carlisle, Ohio 45344
        Guardian Ad Litem

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

HALL, J.,
          {¶ 1}      S.B.’s Mother appeals the trial court’s order of disposition that gives temporary

custody of her daughter Autumn1 to Autumn’s father. Mother argues that the court should have

given temporary custody of Autumn to her maternal grandmother. Finding no reversible error, we

affirm.

                                                                 I. Facts

          {¶ 2}      On June 28, 2012, Champaign County Department of Job and Family Services

(CCDJFS) filed a complaint asking the trial court to adjudicate Autumn either a neglected child

under R.C. 2151.03(A)(2) or a dependent child under R.C. 2151.04(C). CCDJFS sought

protective supervision, or alternatively, custody to a relative, temporary custody, permanent

custody, or placement in a planned permanent living arrangement. Father filed a motion for legal

custody. The court appointed a guardian ad litem (GAL) to represent Autumn’s interests. On

CCDJFS’s oral motion at a pre-adjudication hearing, the court issued temporary orders while the

case was pending that gave Grandmother temporary custody of Autumn and placed Autumn

under the protective supervision of CCDJFS. At the adjudication hearing, Mother admitted to

Autumn’s dependency, and with the agreement of all parties, the court dismissed the neglect

charge and found Autumn dependent.

          {¶ 3}      At the dispositional hearing, Autumn’s caseworkers, the GAL, Mother,

Grandmother, and Father testified. The GAL had filed an initial report and a supplemental report,

both of which were admitted into evidence. After the hearing, the court issued a written decision

that gives Father temporary custody of Autumn under the protective supervision of CCDJFS.

          {¶ 4}      Mother appealed.

           1
            We use this pseudonym to refer to S.B., the minor child that is the subject of this case.
                                                                                                       3

                                                        II. Review

       {¶ 5}       Mother assigns two errors to the trial court. The first alleges that the court abused

its discretion by giving Father temporary custody, and the second alleges that the court erred by

excluding hearsay. We review the assignments of error in reverse order.2

                                                        A. Hearsay

       {¶ 6}       The second assignment of error challenges the trial court’s exclusion of hearsay

evidence at the dispositional hearing. Mother contends that this evidence is admissible because it

is relevant to whether it is in Autumn’s best interest to be placed with Father.

       {¶ 7}       The trial court excluded statements that Autumn made to Mother and

Grandmother concerning three matters. The first statements concerned Father’s use of a racial

slur. Mother was asked about her concerns with Autumn’s placement with Father. One of

Mother’s concerns is, “He–he’s very prejudiced. He uses the N word a lot.” (Tr. 105). Mother

said that Autumn does not approve of his language. When counsel for Mother asked her how she

knows this, she answered, “[Autumn]’s told me.” (Tr. 105). Counsel for Father then objected,

and the trial court sustained the objection. The second excluded statement concerned why

Autumn did not want to go to school. Mother’s counsel asked Grandmother, “Did [Autumn] ever

indicate why she didn’t want to go to school?” (Tr. 141). Father’s counsel objected, and the trial

court sustained. The last set of excluded statements concerned what went on at Father’s house.

Mother’s counsel asked Grandmother about her concerns with placing Autumn with Father.

Grandmother indicated that she had concerns, saying, “[Autumn]’s told us things that’s gone on

at her father’s house.” (Tr. 146). Counsel then asked, “For the record I will ask you what are the

         2
          CCDJFS, the appellee, did not file a brief.
                                                                                                    4

things that [Autumn] has indicated at her father’s house?” (Id.). Counsel for Father objected, and

the trial court sustained.

        {¶ 8}    After the witnesses had testified, counsel for Mother wanted to proffer the

excluded hearsay, but Father’s counsel objected, saying, “I don’t understand. We’re proffering

testimony that we’re all in agreement is hearsay so the Judge can rule if it’s hearsay or not?” (Tr.

156). “No,” said Mother’s counsel, “in a dispositional hearing on an abuse, neglect and

dependency case hearsay is permissible evidence. The rules of hearsay do not apply.” (Id.).

Mother’s counsel argued that the testimony must be proffered for this Court to review the issue.

But counsel also said she agreed that the main issue was “not the specific testimony” but whether

hearsay is generally admissible in this type of dispositional hearing. (Tr. 159). The trial court

decided not to allow the proffer: “[Y]ou’ve, I believe preserved the issue for the record with your

objection. If the case is, is reversed, depending on what the decision is, if it is reversed for that

reason and remanded back for that, then we’ll hear that testimony at that time.” (Id.).

        {¶ 9}    Mother’s counsel is correct that, other than at a dispositional hearing for

permanent custody, hearsay is generally admissible at a dispositional hearing, as long as the

hearsay is material and relevant. Juv.R. 34(B)(2); R.C. 2151.35(B)(2)(b); In re Brown, 2d Dist.

Darke No. 1676, 2006-Ohio-3189, ¶ 37. But the court is not required to admit such evidence.

Matter of Seymour, 4th Dist. Hocking No. 92 CA 5, 1993 WL 49263, *3 (Feb. 23, 1993)

(“[N]either the above cited statute or rule require the trial court to admit hearsay evidence. Both

provide that the court may admit such evidence. Thus, such admission is discretionary with the

court.” (Emphasis sic.)). “The evidentiary rules of competency and relevancy remain in force.” In

Matter of Spaulding, 6th Dist. Lucas No. L-92-180, 1993 WL 115934, *4 (Apr. 16, 1993), citing
                                                                                                   5

Evid.R. 601, 602, 401, 402, 104.

          {¶ 10} The trial court here should have allowed counsel to proffer the excluded hearsay

evidence. We agree with the Twelfth District Court of Appeals, which has held that proffers

should be freely permitted outside the hearing of the trier-of-fact when some or all of a witness’s

direct examination is excluded. Fireman's Fund Ins. Co. v. Mitchell-Peterson, Inc., 63 Ohio

App.3d 319, 329, 578 N.E.2d 851, 857 (12th Dist. 1989). But even without a proffer, error may

be predicated on an exclusion if the substance of the excluded evidence is “apparent from the

context within which questions were asked.” Evid.R. 103(A)(2); Campbell v. Johnson, 87 Ohio

App.3d 543, 551, 622 N.E.2d 717 (2d Dist.1993) (saying that “one must show that the substance

of the excluded evidence was made known to the court by proffer or was apparent from the

context within which questions were asked”). Nevertheless, “[a]n evidentiary ruling by a trial

court may not be the basis of a claim of error unless the person claiming that error can establish

that a substantial right has been affected.” Lips v. Univ. of Cincinnati College of Medicine, 10th

Dist. Franklin No. 12AP-374, 2013-Ohio-1205, ¶ 49, citing Evid.R. 103. In order to do this, “one

must show that the alleged error affected the final determination of the case.” Id., citing Campbell

at 551.

          {¶ 11} Here, the substance of the excluded hearsay evidence is apparent. However

Mother fails to convince us that the exclusion affected the trial court’s decision. With regard to

Father’s language, we conclude that the trial court’s decision would not be affected by knowing

whether Autumn disapproved. What is important is the allegation that he used such language, an

allegation which Mother’s testimony supports, and which was received without objection. (Tr.

105). Nor do we believe that the court’s decision could be affected by knowing Autumn’s reasons
                                                                                                 6

for disliking school. The point had been made that she had missed a considerable amount of

school and was now participating in an online program called ECOT, about which there was

descriptive testimony. Moreover the GAL report, which had been admitted into evidence, stated

that “[s]he does not like school for various reasons.” We conclude the precise reasons why she

disliked her previous school are not of consequence and would not have affected the trial court’s

decision. Finally, as for what went on at Father’s, we note that when Mother was asked about her

concerns with giving Father custody, she testified, without objection, that “[h]e’s been known to

be violent. He – he’s very prejudiced. He uses the N word a lot. He gives her cigarettes. He does.

He took her to a – that party, and there was nudity.” (Tr. 105). And during the cross examination

of Father about what went on at his house, the same two concerns were addressed by counsel for

Mother when Father was asked about cigarettes and the party. This was their exchange about the

party:

         Q. Now, you talked about some of the activities that you’ve done with [Autumn]

         since she’s been visiting with you regularly?

         ***

         Q. You referred to one as a hog roast?

         ***

         Q. Was that with friends of yours who ride motorcycles?

         A. Yes, it is.

         Q. It was more commonly known as biker parties?

         A. No, it was not. It was a family group.

         Q. Was there alcohol served?
                                                                                                 7

       A. Yes, there was.

       Q. Were there people who were intoxicated at this party?

       A. Not at the time that we had left, no.

       Q. Were there people who were in various states of undress at parts–at times of

       this party?

       A. No.

       Q. No one was ever undressed at this party?

       A. No.

       Q. And if [Autumn] indicated she saw folks who were undressed, she would be

       lying?

       A. If she seen something I didn’t, then that could be, but I doubt it.

(Tr. 89-90).

       {¶ 12}    It is apparent that Autumn had told both Mother and Grandmother something

about the party. “[Autumn]’s told us things that’s gone on at her father’s house.” (Tr.

146)(emphasis added). But Grandmother had just previously stated, “I don’t know the

environment there is, is that good. I don’t know. I can’t say its not. I don’t know.” (Tr. 145) In

light of this testimony, where Grandmother disclaimed personal knowledge of the circumstances

at Father’s house, we fail to see how Grandmother’s repetition of what Autumn said to “us”,

Grandmother and Mother, could have influenced the trial court. The trial court heard the

allegations about what happened when Autumn was with Father during Mother’s testimony and

during Father’s cross examination. We conclude that hearing the allegations from Grandmother

too would not have affected the court’s decision.
                                                                                                    8

          {¶ 13} The second assignment of error is overruled.

                                        B. Custody Decision

          {¶ 14} The first assignment of error challenges the trial court’s best-interest finding and

decision to grant Father temporary custody. Mother contends that this decision was not in

Autumn’s best interest and is not supported by the evidence.

          {¶ 15} “A court’s award of temporary custody must be supported by a preponderance of

the evidence. A trial court has substantial discretion in weighing the considerations involved in

making the determination regarding a child’s best interest, and the court’s determination will not

be reversed absent an abuse of that discretion. A trial court abuses its discretion when its decision

is ‘unreasonable, arbitrary or unconscionable.’” In re S.M., 2d Dist. Montgomery No. 24539,

2011-Ohio-6710, ¶ 4, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 NE 2d 1140

(1983).

          {¶ 16} After Autumn’s adjudication, the court was permitted to make an order of

disposition committing Autumn to the temporary custody of, among others, a parent or relative.

See Juv.R. 34(D)(2); R.C. 2151.353(A). A court’s dispositional decision must be based on what

is in the child’s best interest and promotes her welfare. See In re Lakes, 149 Ohio App.3d 128,

2002-Ohio-3917, 776 N.E.2d 510, ¶ 63 (2d Dist.). The court’s focus must be “on providing for

the care, protection, and mental and physical development of the child.” Id., citing R.C.

2151.01(A) and (B).

          {¶ 17} The trial court based its best-interest findings on several findings of fact. The

court found that Autumn has been on academic probation with the court for the last two years.

She was habitually truant during both of those school years, both years missing over 20 days in
                                                                                                  9

the second semester alone. Autumn failed both years and remains a high school freshman. The

court also noted that Autumn preferred to live with Grandmother rather than Father. The court

found that Father is self employed and that his schedule is flexible, so he can ensure that Autumn

gets to school every day. The court noted that Father said he will provide a good home for her

and will provide the structure that she lacked in Mother’s home. Father also said that he will

ensure that she goes to school and that she graduates from high school. The court noted that it is

concerned with the lack of time Father has spent with Autumn over the last several years. But the

court said that their visits, which started when this case began, have gone well. Lastly, with

respect to Mother and Grandmother, the court found that, for all practical purposes, Mother now

lives with Grandmother. The court noted that they, hoping to remedy Autumn’s school problems,

have enrolled her in an online school. Grandmother said that she will be responsible for making

sure Autumn completes her assignments. But the court noted that Grandmother said that she will

be at work during the day, although she also said she plans to retire. Because of this, the court

believed that the schooling task will fall back to Mother. And, said the court, the last two years

show that Mother is not the best person to be in charge of Autumn’s schooling.

       {¶ 18} Based on these findings, the trial court found that, right now, being with Father is

in Autumn’s best interest. Father, said the court, stands ready, willing, and able to care for her

and to try and improve her academic status. It is not in Autumn’s best interest, said the court, to

remain with Grandmother. Because Mother essentially lives with Grandmother, said the court,

Autumn is in essentially the same environment that caused her to be dependent in the first place,

an environment in which Autumn has failed academically.

       {¶ 19} Mother contends that the best-interest findings with respect to Grandmother are
                                                                                                 10

not supported by the evidence. Mother points out that CCDJFS found Grandmother’s home a safe

and appropriate placement for Autumn and that Grandmother was not involved in the

circumstances leading to the dependency adjudication. The environment in Grandmother’s home,

says Mother, is not the same as in her home. Mother further says that Grandmother did not learn

of Autumn’s school problems until the end of the last school year. And the GAL testified that

there have been no school problems since Autumn was placed with Grandmother. Grandmother

testified that Autumn has attended school every day since she came to live there.

       {¶ 20} Mother also contends that the evidence strongly supports finding that it is in

Autumn’s best interest to live with Grandmother. Mother says that the trial testimony

unequivocally shows that Grandmother can meet Autumn’s needs and has been meeting them

since she was placed there. Mother points out that no home study has been done on Father and

that CCDJFS does not know what his living situation is. We note, though, that the GAL visited

Father in the home he would live in with Autumn, and the GAL agreed that Father’s home is

“safe and appropriate and would be appropriate for [Autumn] to live in.” (Tr. 27). Mother points

out too that CCDJFS and the GAL both recommended that Autumn be placed with Grandmother.

They based this recommendation, says Mother, on several things: Grandmother has temporary

custody of Autumn’s two siblings; Autumn has lived with siblings for an extended period of time

and has a strong bond with them; Grandmother has been involved in Autumn’s entire life and

they have a strong bond; the GAL believes that it is detrimental for Autumn to be removed and

placed elsewhere; Autumn does not have a close bond with Father and does not really know him;

Father was absent from Autumn’s life for most of the preceding 10 years; Father has a history of

violence, including assaults, batteries, and bar fights; Father is prejudiced and uses racial slurs;
                                                                                                 11

Father took Autumn to a party involving alcohol and nudity; placement with Father would

require Autumn to change school districts; placement with Father would require Autumn to

change her primary care physician; placement with Father would require Autumn to change her

counselor; and Autumn wants to remain with Grandmother.

       {¶ 21} This is a close case. But we determine the decision made by the trial court is not

unreasonable, arbitrary or unconscionable. “[D]isputes about the facts, the weight accorded the

testimony, and the credibility of witnesses are left to the trial court.” Gartin v. Gartin, 2d Dist.

Clark No. 2011-CA-74, 2012-Ohio-2232, ¶ 7, citing Davis v. Flickinger, 77 Ohio St.3d 415, 419,

674 N.E.2d 1159 (1997). Also, the order is only a temporary custody order. Facts and

circumstances may develop or change. Furthermore, there is a limit on how long such an order

may exist before the matter must be revisited. See R.C. 2151.353(F); R.C. 2151.415(D)(4).

Although we might have decided differently, we cannot say that the trial court abused its

discretion.

       {¶ 22} The first assignment of error is overruled.

       {¶ 23} The trial court’s order is affirmed.

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

FAIN, P.J., and DONOVAN, J., concur.

Copies mailed to:

James S. Armstrong
Kevin Talebi
Jacob Jeffries
Hon. Brett A. Gilbert
