In re H/B Children

I
       [Cite as In re H/B Children, 2021-Ohio-1109.]
                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                    HAMILTON COUNTY, OHIO




IN RE: H/B CHILDREN.                            :      APPEAL NO. C-200427
                                                       TRIAL NO. F13-2259X

                                                :         O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 2, 2021




Phyllis Schiff, for Appellant Mother,

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

Raymond T. Faller, Hamilton County Public Defender, and Megan E. Busam,
Assistant Public Defender, Guardian Ad Litem for the children.
                 OHIO FIRST DISTRICT COURT OF APPEALS




W INKLER , Judge.

       {¶1}   Appellant mother appeals from a decision of the Hamilton County

Juvenile Court granting custody of her three children to a family friend and denying

her motion to remand custody of the children to her. We find no merit in her sole

assignment of error, and we affirm the juvenile court’s judgment.

       {¶2}   Mother has three children, N.H.1, born on December 24, 2006, N.H.2,

born March 26, 2012, and N.B., born on December 20, 2017. Hamilton County

Department of Job and Family Services (“HCJFS”) originally became involved with

the family in December 2013, when mother left her two oldest children home alone.

As a result, mother was convicted of endangering children. The children were

adjudicated neglected and dependent, and the juvenile court awarded temporary

custody of them to HCJFS. Mother participated in services, and in February 2015,

custody of N.H.1 and N.H.2 was remanded to mother, with protective supervision.

The juvenile court terminated the order of protective supervision in July 2015.

       {¶3}   Mother subsequently gave birth to N.B. HCJFS sought emergency

custody of all three children after N.B. suffered a fractured femur during a domestic

dispute between his parents. As a result, mother was charged with and convicted of

endangering children. The children were subsequently adjudicated dependent and

placed in the temporary custody of HCJFS.

       {¶4}   The case plan for mother consisted of mental-health treatment and

visitation.   Mother submitted to a domestic-violence assessment, and no

recommendations were made for further services. The only father involved was

N.B.’s father. The case plan for him involved visitation, toxicology screens, and

parenting enrichment.     He also submitted to a diagnostic assessment and a




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                 OHIO FIRST DISTRICT COURT OF APPEALS



domestic-violence assessment, and there were no recommendations for further

services.

       {¶5}   N.B.’s father made little progress in case-plan services. He frequently

attended visitation during mother’s visitation time.      But he did not submit to

toxicology screens, engage in a recommended fatherhood program, or receive any

other services. He supported an award of custody to mother.

       {¶6}   Mother made some progress in case-plan services. She submitted to a

diagnostic assessment and subsequent psychological evaluation. She was diagnosed

with post traumatic stress disorder, depression, and a personality disorder. She

engaged in counseling and received mental-health services from multiple providers.

Generally, mother was consistent in her attendance, but there were periods where

mother was not actively participating in therapy. Some of these gaps were due to

mother’s issues with therapists and some were because of personnel changes at the

agencies providing her with services. Those gaps in attendance prevented her from

making significant progress on her mental-health treatment.

       {¶7}   Mother visited with her children at the Family Nurturing Center

(“FNC”). She was mostly consistent in attending visitation. She made progress in

bonding with her children. She interacted well with them during visits and required

minimal intervention.     But mother’s visitation remained facilitated, the most

restrictive level, despite recommendations from FNC for less restrictive visitation.

Though visits later occurred at mother’s home, a facilitator was always present.

       {¶8}   Mother’s visits were stopped by the FNC in November 2018 due to

mother’s inappropriate behavior, which included arguing and saying inappropriate

things in front of the children. She refused to attend a meeting to discuss the issues,




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                 OHIO FIRST DISTRICT COURT OF APPEALS



so visitation stopped for approximately two and a half months. The visits resumed in

February 2019.

       {¶9}   Mother was also required to maintain stable housing and income,

which she accomplished all the while the case was pending. She participated in a

supportive permanent housing program called Interfaith Hospitality Network.

Mother has a four-bedroom house, which is clean and appropriate for the children.

       {¶10} Despite mother’s progress, her mental health remained an issue. She

was uncooperative and combative with service professionals for herself and her

children.   One reason she had gaps in her mental-health treatment is that she

switched therapists when she felt that they were not performing on her terms. She

eventually started receiving treatment through IKRON, which she sought out herself.

She chose the provider specifically to prevent HCJFS’s involvement.

       {¶11} The diagnostic assessment completed at IKRON was based entirely on

mother’s self-reporting and contained false information. As a result, the diagnoses

might not have been accurate, and the treatment she was receiving may not have

been sufficient. Consequently, HCJFS asked her to undergo another assessment

with their provider to ensure that collateral information could be provided and that

the diagnosis and treatment would be accurate. Mother refused to do so until

October 2019. Even when she underwent the assessment, she was evasive and

refused to answer some of the assessor’s questions, stating that the answers were

none of the assessor’s business or irrelevant.

       {¶12} The children went through several placements while in HCJFS’s

custody, some of which were detrimental to their well-being. The two oldest children

have special needs. N.H.1 has been diagnosed with adjustment disorder. N.H.2 was

diagnosed with ADHD, post traumatic stress disorder, and intermittent explosive



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                 OHIO FIRST DISTRICT COURT OF APPEALS



disorder. She had to be hospitalized, and was subsequently placed in St. Joseph

Orphanage’s Crisis Stabilization Unit (“CSU”) due to her significant mental-health

symptoms and behaviors.

       {¶13} Professionals recommended that both N.H.1 and N.H.2 be placed on

medication to allow them to focus and to stabilize their behavior. Mother was

adamantly opposed to having them medicated.          She believes that the children’s

behaviors are a choice that can be resolved by therapy, being with family, and

participating in extracurricular activities. Mother was combative and argumentative

toward treatment providers. Her behavior towards the staff at CSU caused it to cease

direct communication with her.       The issue of whether the children should be

medicated eventually had to be litigated, and the court permitted the use of

medication as requested by the children’s treatment providers. Additionally, N.H.1

and N.H.2 both have individualized education plans (“IEPs”) to address their

academic deficits and behavioral issues. Mother was invited, but did not attend any

school meetings for the children.

       {¶14} HCJFS originally filed a motion to modify temporary custody and

grant permanent custody to the agency. Subsequently, E.W., mother’s friend and the

children’s godmother, filed a petition for custody of all three children. The children

were subsequently placed with E.W., where they are doing well.             They were

integrated at their schools and engaged in extracurricular activities, including sports

and Girl Scouts. Their behavior has improved.

       {¶15} Mother’s relationship with E.W. deteriorated after the children were

placed with her, and it remains somewhat strained.        E.W. was willing to allow

visitation at her home, but mother chose not to engage in any visits outside of those

involving FNC. Though the two older children are bonded with their mother and



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                  OHIO FIRST DISTRICT COURT OF APPEALS



have expressed a desire to live with her, they are bonded with E.W. and have stated

that if they cannot live with their mother, they would like to live with E.W.

       {¶16} Mother subsequently filed a motion asking the court to remand

custody to her. HCJFS filed a motion to terminate temporary custody and award

legal custody to E.W. After a number of hearings, the magistrate found that it was in

the children’s best interest to award legal custody to mother. Consequently, he

granted her motion to remand and denied the motion to award custody to E.W.

       {¶17} Both HCJFS and the children’s guardian ad litem (“GAL”) objected to

the magistrate’s decision. The juvenile court sustained the objections. It found that

it was in the children’s best interest to award legal custody to E.W. It “rejected and

set aside” the magistrate’s decision, granted the motion to award custody to E.W, and

denied mother’s motion to remand custody. This appeal followed.

       {¶18} In her sole assignment of error, mother contends that the trial court

erred in denying mother’s motion for a remand of custody and in granting legal

custody to E.W.     She argues that the juvenile court’s decision was against the

manifest weight of the evidence. This assignment of error is not well taken.

       {¶19} Under former R.C. 2151.353(A)(3), if the juvenile court finds a child to

be abused, dependent or neglected, it may award legal custody to any person who has

filed a petition for custody. In re A.F., 1st Dist. Hamilton Nos. C-200230 and C-

200231, 2020-Ohio-5069, ¶ 35; In re M., R., & H. Children, 1st Dist. Hamilton No.

C-170008, 2017-Ohio-1431, ¶ 30. When determining legal custody, the court should

base its determination on the best interest of the child. In re T.K.M, 1st Dist.

Hamilton No. C-190020, 2019-Ohio-5076, ¶ 28; In re F.B.D., 1st Dist. Hamilton No.

C-180356, 2019-Ohio-2562, ¶ 11.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20} The statutory scheme sets forth no specific set of criteria when

determining the best interest of the child in a legal-custody proceeding. But this

court has held that the factors set forth in R.C. 2151.414(D) and 3109.04(F) are

instructive. In re T.K.M. at ¶ 28; In re F.B.D. at ¶ 12. An appellate court must defer

to the trial court’s findings “regarding the weight to be given to any evidence because

the trial court is in the best position to make that determination.” In re A.F. at ¶ 36;

In re M., R., & H. Children at ¶ 34.

       {¶21} The juvenile court has discretion to determine what placement is in

the child’s best interest, and an appellate court will not reverse that decision absent

an abuse of discretion. In re T.K.M. at ¶ 29; In re M., R., & H. Children at ¶ 30. An

abuse of discretion exists when the court’s decision is not supported by competent,

credible evidence. In re T.K.M. at ¶ 29; In re F.B.D. at ¶ 11.

       {¶22} The juvenile court considered the factors in R.C. 2151.414(D) and

3109.04(F). It acknowledged that the children were bonded with mother and wanted

to live with her. The court also acknowledged that mother had been in therapy, but it

was concerned with her ongoing mental-health issues.

       {¶23} The magistrate attributed some of mother’s behavior to mother having

a strong personality and to her being justifiably frustrated with the reunification

process. Nevertheless, competent, credible evidence showed that mother’s issues

went beyond frustration and were the result of mental illness. The trial court stated,

“there have been significant gaps in therapy and breakdowns in communication

between Mother and her therapists.           Mother continues to display signs of

uncontrolled anger in her communications with [HCJFS] workers, FNC workers and

the Court, [and] she continues to display behavior that was construed by some




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                 OHIO FIRST DISTRICT COURT OF APPEALS



professionals as aggressive.” The court was also deeply concerned that mother has

twice been convicted of endangering children.

       {¶24} The court also considered that the two oldest children had significant

behavioral issues. It noted that the children “have thrived under the care of [E.W.].”

It found that “Mother’s unwillingness to work with and effectively communicate with

professionals and service providers has been a barrier and is evidence of Mother’s

mental health issues that have not been resolved.” Competent, credible evidence

supported these findings.

       {¶25} Mother relies heavily on the testimony of the facilitators from FNC

who testified that visitation had gone well and that they believed she could have a

less restrictive level of supervision. Some of their testimony was belied by the notes

taken contemporaneously with the visitation. Evidence showed that an argument

occurred between mother and N.B.’s father during one of the visits that went beyond

a simple disagreement, which was concerning because the case began when N.B.’s leg

was fractured during an argument between mother and N.B.’s father.             Further,

visitation was placed on hold due to mother’s inappropriate behavior during a visit.

It was not resumed for over two months because mother was resistant to scheduling

a meeting to discuss the issues. Moreover, the FNC witnesses acknowledged that

they don’t see the “whole picture,” and that HCJFS and the GAL were not in

agreement with changing the level of visitation.

       {¶26} Mother contends that the juvenile court ignored the magistrate’s

findings of fact. The record does not support that assertion. The court simply gave

different weight to various witnesses’ testimony and disagreed with the magistrate’s

best-interest findings. In ruling on objections to a magistrate’s report, “[a] court may

adopt or reject a magistrate’s decision in whole or in part, with or without



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                   OHIO FIRST DISTRICT COURT OF APPEALS



modifications.    A court may hear a previously-referred matter, take additional

evidence, or return a matter to a magistrate.” Juv.R. 40(D)(4)(b).

       {¶27} A magistrate’s duty is to “assist the courts of record.” Yantak v. Coach

Builders, Ltd., Inc., 1st Dist. Hamilton No. C-060601, 2007-Ohio-5126, ¶ 10. A

magistrate’s oversight of issues is not a substitute for the trial court’s judicial

functions.

Id. “It is the

primary duty of the trial court, and not the magistrate, to act

as a judicial officer.”

Id.

{¶28}

While a trial court may defer to a magistrate’s credibility

determination, the trial court, not the magistrate, is the ultimate trier of fact. In re

A.S., 1st Dist. Hamilton No. C-180056, 2019-Ohio-2359, ¶ 20. “A magistrate is an

arm of the court, not a separate judicial entity with independent judicial authority

and duties.”

Id., quoting State ex

rel. Dewine v. Ashworth, 4th Dist. Lawrence No.

11CA16, 2012-Ohio-5632, ¶ 37.          The trial court must make its own factual

determination by undertaking an independent analysis of the issues. In re A.S. at ¶

20.

       {¶29} The juvenile court was required to conduct an independent review of

the magistrate’s decision. The court, after reviewing the transcript of the proceeding

before the magistrate, was free to disagree with the magistrate’s conclusions and to

enter an order it found to be in the children’s best interest. See In re J.G.S., 1st Dist.

Hamilton No. C-180611, 2019-Ohio-802, ¶ 36; In re Ross, 

154 Ohio App. 3d 1

, 2003-

Ohio-4419, 

796 N.E.2d 6

, ¶ 8 (1st Dist.).

       {¶30} The juvenile court ultimately concluded that mother “has been unable

to demonstrate that she can provide a safe and stable environment for the children”

and that it was in the children’s best interest to grant legal custody to E.W. “[A]

legally secure placement ‘is more than a house with four walls. Rather, it generally



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                 OHIO FIRST DISTRICT COURT OF APPEALS



encompasses a stable environment where a child will live safely with one or more

dependable adults who will provide for the child’s needs.’ ”        In re P., 1st Dist.

Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 42, quoting Matter of

K.W., 2018-Ohio-1933, 

111 N.E.3d 368

, ¶ 87 (4th Dist.).

       {¶31} Further, an award of legal custody does not divest the parents of their

residual parental rights and responsibilities. In re C.R., 

108 Ohio St. 3d 369

, 2006-

Ohio-1191, 

843 N.E.2d 1188

, ¶ 21; In re T.K.M., 1st Dist. Hamilton No. C-190200,

2019-Ohio-5076, at ¶ 23. Mother will still be able to visit and have a relationship

with her children.

       {¶32} Competent, credible evidence supported the juvenile court’s decision

to award custody to E.W. Consequently, we cannot not reverse that decision as being

an abuse of discretion. See In re T.K.M. at ¶ 32; In re M., R., & H. Children, 1st Dist.

Hamilton No. C-170008, 2017-Ohio-1431, at ¶ 30.           We overrule mother’s sole

assignment of error and affirm the juvenile court’s judgment.

                                                                   Judgment affirmed.

MYERS, P.J., concurs.
BERGERON, J., concurs in judgment only.

BERGERON, J., concurring in judgment only.

       {¶33} In light of the applicable deferential standard of review—and after

combing through the record below—I agree with my colleagues that competent and

credible evidence supported the juvenile court’s grant of legal custody to K.W. But I

write separately to express my frustration with the juvenile court’s cavalier attitude

toward the magistrate’s credibility determinations, and to highlight the problems

that this approach creates for meaningful appellate review.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



         {¶34} One of the overarching concerns in this case was Mother’s mental

health. In accordance with her case plan, Mother underwent multiple diagnostic

assessments and began attending therapy through the Central Clinic, eventually

opting to transfer to another provider less closely-connected to HCJFS. After two

years of counseling and consistent visitation, Mother insisted that she was a changed

parent, ready to welcome her children back into her home. A facilitator with the

Family Nurturing Center marveled at the transformation: she had “never seen a

parent work so hard,” and had “absolutely no concerns about [Mother’s] parenting.

None.”

         {¶35} Of course, HCJFS and the guardian ad litem disputed Mother’s

narrative of growth and redemption. On appeal, both parties characterize Mother as

“uncooperative” and “combative,” fault her for switching therapists, and maintain

that she failed to make significant progress in her mental health treatment. They

present some serious questions as to Mother’s success in remedying the factors that

led (for the second time now) to her children’s removal from the home.

         {¶36} In this matter, the magistrate ruled in Mother’s favor, largely hinging

his determination on his evaluation of Mother’s credibility. But the juvenile court,

reviewing the same record and without entertaining any new evidence, reversed

course. As I compare the magistrate’s decision with the juvenile court’s order, I see

precious few differences between the two. Both fact-finders determined that Mother

made progress in her treatment and substantially complied with her case plan. Both

noted Mother’s past conviction for child endangerment and the seriousness of the

incident that led to removal here.      But the magistrate, who observed Mother’s

demeanor while testifying, became convinced that her participation in services

resulted in meaningful progress:



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                   OHIO FIRST DISTRICT COURT OF APPEALS



       In the past mother has made some serious mistakes. Mother has

       worked hard to overcome those misdeeds. Mother has engaged in

       rehabilitative services. Mother has been separated from her children

       for a substantial period. Mother has been patient. Mother has become

       acutely aware of how important it is for her to address her mental

       health, and exercise good judgment, especially concerning her

       children.

       {¶37} The magistrate frankly acknowledged that some professionals in this

case believed Mother’s behavior conveyed “hostility and aggression.” However, he

also found that Mother had “legitimate reasons to be frustrated” with the

reunification process, including the bureaucratic gauntlet created by HCJFS, poor

communication by HCJFS, and very real concerns that the children were being

neglected in a previous, poor foster placement.

       {¶38} The juvenile court’s order echoes—nearly verbatim—most of the

magistrate’s findings of fact.   As a result, we know we aren’t dealing with a

magistrate going rogue, or one who completely botched the appraisal of the evidence.

Nevertheless, the juvenile court did not share the magistrate’s faith in Mother’s

evolution as a parent. It focused instead on “gaps” and “breakdowns” in Mother’s

therapy, “inappropriate behavior” in 2018 visitations, and Mother’s purported

“unwillingness” to work with professionals and service providers. It concluded that

Mother was unable to provide a safe and stable environment for the children,

rejected the decision of the magistrate, and awarded legal custody to K.W.

       {¶39} As explained by my colleagues above, the record can be read to support

the juvenile court’s conclusion on the best interest determination. But what the

juvenile court’s order doesn’t explain—leaving us wholly in the dark—is how and why



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                 OHIO FIRST DISTRICT COURT OF APPEALS



it came to disagree with the magistrate. In a case hinging almost entirely on witness

credibility (do we believe Mother’s proclamation of reform, or do we not?), this

failure to elucidate looms large.

       {¶40} Juv.R. 40(D), like Civ.R. 53(D), requires the trial court to “undertake

an independent review as to the objected matters.” See In re E.R.M., 1st Dist.

Hamilton No. C-190391, 2020-Ohio-2806, ¶ 19 (“Juv.R. 40 and Civ.R. 53 are

analogous.”).   Independently reviewing the record, however, is not the same as

jettisoning the credibility determinations of the actual trier of fact: the magistrate.

Time and again, we have emphasized that “the magistrate, as the trier of fact, ‘is in

the best position to judge the credibility of the witnesses and the weight to be given

to the evidence presented.’ ” In re S.D., 1st Dist. Hamilton Nos. C-200045 and C-

200084, 2020-Ohio-3379, ¶ 18, quoting State v. Carson, 1st Dist. Hamilton No. C-

180336, 2019-Ohio-4550, ¶ 16. See In re X.B., 10th Dist. Franklin Nos. 16AP–243

and 16AP–277, 2016-Ohio-5805, ¶ 13 (“The magistrate, as the true trier of fact, was

in the better position to judge the credibility of the witnesses”). A juvenile court’s

decision to overrule the magistrate’s credibility determinations—especially without

entertaining new evidence—is nearly always a cause of “concern” to this court. See

id. This is not

to say that the juvenile court should blindly adopt the magistrate’s

conclusions—far from it. Juv.R. 40(D) requires independent review, and our case

law mandates a self-supporting analysis. See In re A.T., 1st Dist. Hamilton Nos. C-

160597, C-160598 and C-160599, 2017-Ohio-5821, ¶ 10 (rejecting a trial court’s

judgment entry which simply “approved and adopted” the magistrate’s decisions).

But where the juvenile court chooses to disregard the magistrate’s credibility

determinations, it has a simple job: tell us why. When it does not, the lack of

explanation risks undermining the entire decision.



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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶41} By way of example, one contradiction between the magistrate’s and the

juvenile court’s orders in this case is particularly troubling. In one of its few clear

departures from the magistrate’s order, the juvenile court found that Mother

“continues to display signs of uncontrolled anger in her communications with * * *

the Court * * *.” It cited no specific testimony or exhibits to support this assertion.

Yet the magistrate, who actually observed Mother’s “communications with” the

court, explicitly found that “Mother was respectful to the court.” Without some

explanation, these statements are hopelessly irreconcilable.        The unexplained

contradiction undermines my confidence—and surely Mother’s too—in the reliability

of the balance of the juvenile court’s factual findings.

       {¶42} I concur with my colleagues in upholding the trial court’s decision

because, after reviewing the exhibits and testimony of record, I can infer how the

“independent review” mandated by Juv.R. 40(D) might have caused the trial court to

depart from the magistrate’s conclusions. But this retrospective knitting-together of

isolated threads of the record is exactly the problem that I want to emphasize. In the

utter “absence of any analysis of how the magistrate went astray,” we are left to comb

the record for pieces of testimony and evidence weighing against the magistrate’s

decision, and speculate on the trial court’s reasoning from what we find. See In re

E.R.M. at ¶ 15. This is not the proper role of an appellate court. See

id. at ¶ 22

(“While our standard of review is abuse of discretion, we must see evidence of how

that discretion was exercised in order to conduct meaningful appellate review.”; In re

T.M., 1st Dist. Hamilton No. C-200009 and C-200012, 2020-Ohio-6950, ¶ 19

(noting that the juvenile court’s “rudimentary analysis, requiring this court to scour

the record to understand [its] reasons,” frustrated appellate review). The potential

for the record to mislead—especially on issues of witness credibility—is why appellate



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                  OHIO FIRST DISTRICT COURT OF APPEALS



courts defer to the finder of fact in the first place. This deference is difficult to justify

when the juvenile court not only disregards the findings of the “true trier of fact,” but

fails to offer any justification for doing so. See In re X.B. at ¶ 13.

       {¶43} Beyond my own complaints of impediments to appellate review and

deference to the finder of fact lies a deeper problem: Mother deserves an

explanation. She deserves to know why, after reviewing the exact same record as the

magistrate but without observing her testimony in-person, the juvenile court rejected

the magistrate’s credibility determinations. I regret that we cannot offer her that,

and therefore respectfully concur in judgment only.


Please note:

       The court has recorded its own entry this date.




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