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In re K.G.

Court of Appeals of Ohio, First District

July 19, 2013

IN RE: K.G.

Civil Appeal From: Hamilton County Juvenile Court, TRIAL NO. F12-1163x

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.

OPINION

DeWine, Judge.

{¶1} Nine-year-old KG. 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 KG.'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 KG.'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 KG. 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 KG. for complications from his previously diagnosed asthmatic condition. On May 7, 2012, KG.'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 KG. had been brought by ambulance. After spending some time in the emergency room, appellant took KG. from the hospital without receiving discharge papers or new prescriptions. Appellant later claimed that, despite not having spoken with medical personnel, she thought KG. was free to leave because a nurse had given KG.'s grandmother a form titled "Return to Work/School Statement" that acknowledged that K.G. had been in the emergency room on May 7.

{¶3} Because appellant removed KG. 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 KG., and that she needed to get KG. to the hospital. Appellant asked her mother to take KG. back to the hospital, and her mother did so on May 8.

{¶4} While being examined in the emergency room, KG. told medical personnel that he had not had any asthma treatment since his mother had taken him from the hospital on May 7. KG.'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 KG. They were not able to see KG., 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 KG. back to the hospital. HCJFS requested and received an emergency order of custody. HCJFS also filed a complaint seeking temporary custody of KG., 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 sought to introduce into evidence KG.'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 ...


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