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In re O.S.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 26, 2018

IN RE: O.S., ET AL. Minor Children

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD16915308 and AD16915309

          ATTORNEY FOR APPELLANT Leigh S. Prugh.

          ATTORNEYS FOR APPELLEES For C.C.D.C.F.S. Michael C. O'Malley Cuyahoga County Prosecutor BY: Cheryl Rice Assistant Prosecuting Attorney, Marie C. Frey Michelle A. Myers Assistant Prosecuting Attorneys

          Guardian Ad Litem for Children Kimrey D. Elzeer Seeley Savidge Ebert & Gourash Co., L.P.A.

          Guardian Ad Litem for Mother Rachel A. Kopec, F.R., Alleged Father, pro se 44104

          BEFORE: Boyle, J., E.T. Gallagher, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, J.

         {¶1} Appellant, M.S., appeals the juvenile court's order granting appellee, Cuyahoga County Division of Child and Family Services ("CCDCFS"), permanent custody of her son, O.S., and her daughter, O.S. ("the children"). M.S. raises two assignments of error for our review:

1. The juvenile court erred in permitting unauthenticated medical records offered by CCDCFS into evidence.
2. The evidence submitted at disposition was insufficient to be considered clear and convincing because the juvenile court improperly considered unauthenticated evidence.

         {¶2} Finding no merit to her assignments of error, we affirm.

         I. Procedural History and Factual Background

         {¶3} On November 12, 2008, M.S. gave birth to twins, O.S. and O.S. According to medical records and by her own admission, M.S. has bipolar disorder that she reported began when she was around the age of 21.

         {¶4} In July 2012, CCDCFS removed the children from M.S.'s custody after she had a "mental health episode[, ]" during which she "couldn't articulate where the kids could go" after she received an eviction notice and a homeless shelter denied her entry. While the children were reunited with M.S. 30 days later, the juvenile court granted CCDCFS protective supervision over the children in January 2013. As part of her case plan, M.S. received treatment for bipolar disorder from The Centers for Families and Children (the "Centers") and became "compliant." The juvenile court terminated CCDCFS's protective supervision in February 2014.

         {¶5} On January 2, 2015, M.S. had another mental health related episode, during which she "became belligerent with the police[, ]" "was taken to the hospital[, ]" and could not provide "any contacts for the children." The children were taken to CCDCFS. As a result of the incident, the juvenile court adjudicated one of the twins dependent in May 2015 and the other twin dependent in December 2015. The juvenile court also gave CCDCFS temporary custody of the children. According to Earl Thomas, the social worker from CCDCFS who has worked with M.S. and the children since 2015, M.S. was "not complying with her medication" at the time of the January 2015 incident, and CCDCFS developed a case plan to address "mental health, parenting, domestic violence, and basic needs." Eventually, M.S. became compliant with the mental health requirements of her case plan after receiving services from the Centers, including visits with a psychologist and medication. As a result, M.S. was reunited with her children on June 2, 2016. CCDCFS retained protective supervision over the children, and M.S. and the children continued to receive services for medication, mental health, and family preservation.

         {¶6} On October 19, 2016, CCDCFS held a staff meeting with M.S. and her children after learning that M.S. "wasn't following through with the service providers" to "have counseling for the kids and medication counseling for herself." Thomas explained that during the meeting, he learned that M.S. was "getting evicted and she didn't have any lights or gas in the house" and that M.S. told him that the house had become "rat and roach infested." Thomas stated that the children told workers that "they [were not] eating [at home]." According to Thomas, during the meeting, M.S. became "upset," "stormed out of the room, threw her phone down the hallway, [and] started punching the walls and the glass," requiring CCDCFS workers to call security to escort her from the building. Thomas testified that M.S. left the building without her children. Thomas stated that later that day, CCDCFS "got a call from the police stating that they responded to mom's house because she was outside half naked busting out windows. When the police got there, she barricaded herself in the house, and * * * eventually they got her to come out and they took her to St. Vincent."

         {¶7} As a result, CCDCFS removed the children from M.S.'s custody and filed a complaint for dependency and permanent custody that same day. CCDCFS also filed a motion for predispositional temporary custody. The trial court appointed Kimrey Elzeer as the children's guardian ad litem. It also appointed James Schulz as M.S.'s guardian ad litem. Schulz was later replaced by Rachel Kopec, who took over as M.S.'s guardian ad litem.

         {¶8} The trial court held a hearing on CCDCFS's motion for temporary custody on the same day as removal, during which Thomas testified. In addition to describing the previous two removals of the children as well as the events that transpired during the meeting with M.S. earlier that day, Thomas explained that he had concerns about M.S.'s ability to provide for her children's needs because "there's limited food in the home, and when mom is unstable with her medication, she's not in an appropriate mindset to care for the kids appropriately." The trial court granted CCDCFS's motion for predispositional temporary custody.

         {¶9} On January 6, 2017, the trial court held an adjudication hearing. CCDCFS presented testimony from Thomas. The trial court found the children to be dependent under R.C. 2151.04(B). The trial court then asked Thomas what efforts were "being made to prevent the continued removal of [the] children and to finalize their permanency plan." Thomas explained that the children were in a foster home at the time and receiving counseling services. After the trial court asked what services M.S. was receiving, Thomas explained that she was receiving a number of services with the Centers, including medication and monitoring.

         {¶10} In its journal entry, the trial court stated, "The [children are] adjudicated to be Dependent. The Court further finds, pursuant to R.C. 2151.04 and R.C. 2151.28(L) that: the [children lack] adequate parental care by reason of the mental or physical condition of the child's parents, guardian or custodian." The trial court also found that the children's "continued residence in or return to the home of mother * * * [would] be contrary to the [children's] best interests]." The trial court noted that the children "have been referred to engage in counseling through Pathways. Mother is engaged in mental health services through The Centers for Family and Children, to receive counseling, case management, medication, and monitoring." During the same hearing, the parties agreed to waive the 90-day statutory time frame for disposition to give M.S. "the opportunity to continue engaging in services, to work the case plan, and possibly to get some consistency with visitation[.]" The trial court then continued the matter and ordered CCDCFS to file an amended case plan for M.S. and to refer M.S. to undergo a permanent custody evaluation with the trial court's diagnostic clinic.

         {¶11} On October 27, 2017, the trial court held a dispositional hearing. CCDCFS presented testimony from Dr. Robert Kurtz, a psychologist with the juvenile court's diagnostic clinic, Thomas, and Elzeer, the children's guardian ad litem.

         {¶12} Dr. Kurtz testified that he interviewed M.S., the children, the children's foster mother, and CCDCFS workers, conducted psychological tests and questionnaires, and observed interactions between M.S. and the children as part of his psychological evaluation. He testified that he then drafted a psychological report, which CCDCFS admitted as Exhibit 2. Dr. Kurtz stated that he believed that M.S. "was not ready to take full custody of her children [because] * * * [s]he didn't have adequate housing for her children[, ] * * * [h]er intellectual functioning meant that she would have difficulty helping her children with their academics success[, ] * * * and [h]er emotional condition * * * was unstable." Dr. Kurtz also testified that M.S. told him that when she has "mental health problems, [she] can't help [herself] or the children." He stated that M.S. expressed that "she has difficulty communicating with her children."

         {¶13} Thomas testified that CCDCFS was requesting permanent custody because, since 2015, M.S. had issues "with housing[, ] * * * with the kids going to school on a consistent basis[, ] * * * with [domestic violence, ] and * * * the inconsistency for mom to take [her bipolar] medication and stay stable in order to parent the kids appropriately." Thomas described the mental health episodes from July 2012 and January 2015 that led to CCDCFS removing the children from M.S.'s custody. Thomas stated that M.S. had been hospitalized "12 to 13 times" for psychiatric issues between 2000 and 2015. He also explained that M.S. received medication and psychiatric treatment from the Centers to address her mental health issues. Thomas then again testified as to M.S.'s violent behavior during the staff meeting with CCDCFS staff members on October 19, 2016. He stated that at that time, M.S. was not taking her medication and did not have gas or lights at home. He also testified that the children informed CCDCFS workers that they "weren't eating on a regular basis" and that he did not know whether M.S. had a source of income because she does not work. Thomas also testified that during visits with her children, M.S. is "[u]sually on her phone or just sitting there[, ]" and that the children have "anxiety about the visits[.]"

         {¶14} During Thomas's testimony, the following exchange occurred:

CCDCFS: Your Honor, may I approach the witness with what is marked ...

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