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In re The S Children

Court of Appeals of Ohio, First District, Hamilton

July 27, 2018

IN RE: THE S CHILDREN

          Appeals From: Hamilton County Juvenile Court TRIAL NO. F-16-2167

          Raymond T. Faller, Hamilton County Public Defender, and Klarysa Benge, Assistant Public Defender, Guardian ad Litem for Appellants C.S. and N.S.,

          Kacy Eaves for Appellants C.S. and N.S., Kroener, Hale & Penick and Angela Penick for Appellee Mother, Stagnaro, Hannigan, Koop and Chad G. Koop for Appellee Father.

          OPINION

          MILLER, JUDGE.

         {¶1} This is an appeal from the juvenile court's dismissal-at the close of the state's case-of the Hamilton County Department of Job and Family Services' ("HCJFS") complaint seeking permanent custody of C.S. and N.S. We affirm that part of the trial court's judgment finding that the state failed to prove C.S. and N.S. were abused or neglected, reverse the holding that the dependency statute, R.C. 2151.04(C), did not apply, and remand for further proceedings consistent with this opinion.

         {¶2} HCJFS removed N.S., C.S., and multiple other siblings from their parents' home after their brother, A.S., died from injuries allegedly inflicted at home while in the parents' care. A.S.'s death was ruled a homicide. HCJFS subsequently filed for permanent custody of all of the children, claiming that all were abused, neglected, and dependent. The matter proceeded to trial.

         {¶3} In part, the state alleged that C.S. and N.S. were neglected under R.C. 2151.03(A)(2) because the parents, appellees herein, did not adequately provide for their complex and specialized medical needs. The parties stipulated to the admissibility of hundreds of pages of the children's medical records. On the first day of a four day trial, the court admonished the parties multiple times that, without expert testimony interpreting the medical records, the records could be used only for very limited purposes. The court specifically ruled that a lay witness was not qualified to give her opinion as to what treatment options the parents should have chosen for their children. The court also ruled that the witness was not competent to testify to the meaning of physician's notes in the records. Essentially, the court ruled that, without expert testimony, it would consider the medical records as showing the children's health status, but that it would not use the records as evidence of abuse, neglect, or dependency without expert testimony creating that link.

         {¶4} The state's complaint also alleged that the children were dependent under R.C. 2151.04(C) because of their home environment. The state presented evidence that mother had inflicted A.S.'s fatal injuries, and argued that mother's actions made the home unsafe for all the children.

         {¶5} At the close of the state's case, parents moved for summary judgment. Because of the timing of the motion, the trial court appropriately recast the motion as a motion to dismiss.

         {¶6} Regarding the neglect allegations, the court informed C.S. and N.S.'s guardian ad litem ("GAL") during arguments on the motion that it had not "had an opportunity to review every single page in those medical records," and asked the GAL to "point * * * to something that involves the parent's actions?" The GAL cited a number of exhibits that were admitted into evidence without expert testimony, and argued that these documents showed that the parents were not adequately meeting C.S.'s and N.S.'s medical needs.

         {¶7} Regarding the dependency allegations, a significant portion of arguments focused on whether the state could proceed under R.C. 2151.04(C). The court ultimately indicated that R.C. 2151.04(D) should have been alleged instead. At the close of argument, the court announced from the bench that it was granting the parents' motion to dismiss as to C.S. and N.S.

         {¶8} In its decision entering judgment, the court wrote that C.S.'s and N.S.'s "medical records are in evidence which show multiple special needs, but no evidence was introduced at any time of parents' inability or unwillingness to meet those needs." The court also indicated that the state had proceeded under the incorrect dependency code section-namely, that the state should have alleged that the children were dependent under R.C. 2151.04(D) instead of R.C. 2151.04(C). In holding that the state had failed to prove its case, the court found, in part, that there was "absolutely no mention * * * of [C.S. and N.S.] in the context of * * * [A.S.'s] tragic death * * * ." The trial court's judgment did not dismiss the remaining siblings from the case, and did not include Civ.R. 54(B) certification. C.S., N.S., and the GAL appeal.

         Our Jurisdiction

         {¶9} This court has "such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * * ." Article IV, Section 3(B)(2), Ohio Constitution. In pertinent part, R.C. 2505.02(B)(2) provides that an order is a final order "that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * (2) An order that affects a substantial right made in a special proceeding

         {¶10} Substantial Right in a Special Proceeding. It is well settled that a permanent custody action is a special proceeding. In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, ¶ 43. In the context of RC. 2505.02, a "substantial right" is "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." RC. 2505.02(A). In In re C.B., the court held, "[b]ecause of the unique role the guardian ad litem has in a permanent-custody proceeding with respect to ensuring that the best interests of a child are considered * * * the guardian ad litem has a statutory right to ensure that the best interests of the child are enforced and protected in the permanent-custody proceeding." 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 14. The court held that this right was a "substantial right" under R.C. 2505.02(A)(1). Id. As for the children, C.S. and N.S. have a statutory right set forth in R.C. 2151.01(A) that they are entitled to enforce regarding who will raise them. See In re Z.H., 1st Dist. Hamilton Nos. C-150301 and C-150305, 2015-Ohio-3209, ¶ 4 (recognizing R.C. 2151.01(A) creates a legal interest for children subject to R.C. Chapter 2151 to be cared for in a family environment, unless separation is necessary for the child's welfare). Thus, under RC. 2505.02(A)(1), the children and the GAL have a substantial right implicated by the court's judgment.

         {¶11} Immediate Review is Necessary. The fact that the GAL and the children have had substantial rights affected in a special proceeding does not end our analysis. The Ohio Supreme Court has recently made clear that yet another step, absent in the C.B. decision, is necessary to determine our jurisdiction under RC. 2505.02(B)(2). In Thomasson v. Thomasson, the court held that "an order affects a substantial right for purposes of RC. 2505.02(B)(2) only if 'in the absence of immediate review of the order [the appellant] will be denied effective relief in the future.'" Thomasson v. Thomasson, )__Ohio St.3d__, 2018-Ohio-2417__, N.E.3d__, ¶ 10, quoting Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).

         {¶12} Here, we hold that immediate review is necessary to ensure that, if the trial court indeed erred in returning the children to their parents, the children are protected from harm. The allegations in this case are that the mother inflicted fatal injuries to AS. while both parents were in the home, by beating AS.'s head on the ground. The infliction of death or injury on the children would obviously be irreparable. The alleged possibility of such abuse affords C.S. and N.S. and the GAL the right to immediate review.

         {¶13}App.R. 4(B)(5) Applies. C.S. and N.S.'s siblings have not been dismissed from the state's permanent custody complaint. We therefore must determine the effect of the fact that the judgment appealed from determines fewer than all the claims as to all the parties. App.R. 4(B)(5) specifically contemplates a situation, such as the one here, where there has been an order that affects a substantial right made in a special proceeding, but where there is no Civ.R. ...


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