[Cite as In re Z.S.,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

IN RE: :

Z.S., S.S. and M.S. : C.A. CASE NO. 25986

: T.C. NOS. JC 2013-3673 JC 2013-3674 : JC 2013-3675

: (Juvenile appeal from Common Pleas Court) :

..........

OPINION

Rendered on the 29th day of August , 2014.

..........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. No. 0020084, and TIFFANY ALLEN, Atty. Reg. No. 0089369, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorneys for Appellee

ROBYN A. TRAYWICK, 45 West Franklin Street, Bellbrook, Ohio 45305 Guardian Ad Litem for the Children

TARA C. DANCING, Atty. Reg. No. 0077277, 1158 Kauffman Avenue, Fairborn, Ohio 45324 Attorney for Appellant .......... DONOVAN, J.

{¶ 1} Defendant-appellant S.H. (hereinafter referred to as “Mother”) appeals a

decision of the Montgomery County Court of Common Pleas, Juvenile Division,

adjudicating her three minor sons, S.S., Z.S., and M.S., abused, neglected, and dependent

and granting temporary custody and a first extension of temporary custody to Montgomery

County Children’s Services (hereinafter referred to as “MCCS”). S.H. filed a timely notice

of appeal with this Court on October 30, 2013.

{¶ 2} On July 12, 2012, MCCS received a referral that S.S., seven years old at the

time, was a victim of child medical abuse1, a condition formerly referred to as Munchausen

by Proxy Syndrome. MCCS contacted Dr. Lori Vavul-Roediger and asked her to conduct a

case review of S.S. and provide her medical assessment. Dr. Roediger is the Clinical

Director in the Department of Child Advocacy at the Dayton Children’s Medical Center

(hereinafter referred to as “DCMC”). In order to prepare her assessment, Dr. Roediger

obtained S.S.’s medical records from DCMC and Cincinnati Children’s Medical Center

(hereinafter referred to as “CCMC”). Dr. Roediger also consulted with all of S.S.’s treating

physicians.

{¶ 3} On August 24, 2012, Dr. Roediger issued a case review in which she found

1 “Medical child abuse” is a form of child abuse which occurs as a result of a caretaker providing false or misleading medical information about his or her child to medical providers. Medical child abuse can occur when a caretaker exaggerates or fabricates information about the child’s symptoms. It can also occur when a caretaker directly causes the child to exhibit certain symptoms, for instance, by having the child ingest a substance that will make him or her nauseous and then claiming the child is suffering from another condition entirely. 3

that S.S. was the victim of child medical abuse, and his two brothers were at risk.

Specifically, Dr. Roediger noted Mother’s pattern of misrepresenting and exaggerating S.S.’s

symptoms to his various doctors, who then performed several unnecessary and invasive

medical procedures on him. When a doctor became unwilling to acquiesce to Mother’s

demands regarding S.S.’s treatment for fictitious illnesses or conditions, she simply went to

another doctor and misrepresented his symptoms in order for him to be treated.

{¶ 4} Dr. Roediger also noted that throughout S.S.’s medical history, Mother’s

description of his symptoms and various ailments was totally inconsistent with the

observations and diagnoses of the doctors and other medical professionals who treated him.

While S.S. did in fact suffer from a mildly enlarged aorta, slight renal issues, and small a

cyst on his head that was surgically removed, none of these conditions were life threatening,

nor did they seriously affect his well-being. Despite the doctors’ observations, Mother still

maintained that S.S. was suffering from several rare and fatal conditions, even after medical

tests proved conclusively that he was generally healthy. Dr. Roediger also reviewed records

from the primary care physician who treated the other two boys, Z.S. and M.S., and reported

that Mother had engaged in similar conduct with them, though not to the extent that she had

with S.S.

{¶ 5} Shortly after Dr. Roediger issued her case review and medical assessment of

S.S., all three boys were removed from the parents’ home pursuant to an ex parte order on

August 27, 2012. One day later on August 28, 2012, a shelter-care hearing regarding

MCCS’s motions for emergency custody and interim temporary custody was conducted.

Mother and M.S. (hereinafter referred to as “Father”), were present at the shelter hearing and 4

represented by counsel. After hearing testimony from Mother, Father, and Melissa Lowe, a

special investigations intake caseworker from MCCS, the magistrate found that probable

cause existed for the issuance of the ex parte order removing the three boys from their

parents’ home. The magistrate also found that the interim custody order would remain with

MCCS because she believed that there was a “risk of harm” to the boys if they were placed

back with the parents. Neither Mother nor Father objected to the magistrate’s decision.

{¶ 6} Throughout the course of the instant proceedings, four sets of complaints

have been filed regarding the temporary custody of Z.S., S.S., and M.S. The initial three

sets of complaints were dismissed without prejudice when it was clear that a disposition

could not be accomplished within the ninety day statutory time frame. When it became

evident that the third set of complaints could not be adjudicated within the statutory time

frame, the juvenile court ordered that interim custody of the boys would remain with MCCS.

The juvenile court also announced its intention to preside over the adjudication and

disposition hearing, rather than the magistrate. The fourth set of complaints was filed on

May 23, 2013, JC 2013-3673, JC 2013-3674, and JC 2013-3675.

{¶ 7} The adjudication and dispositional hearing was held before the juvenile

court on August 12, 2013, through August 26, 2013. Mother “fired”2 her counsel on the

first day of the hearing, claiming that he was not acting in her best interests and was

incompetent. At that point in the proceedings, Mother had been represented by five

2 We utilize the term “fired” in quotes because four of Mother’s five attorneys were actually appointed by the juvenile court, and Mother was not satisfied with the majority of them, hence the court relieved each of them from further representation. 5

attorneys, at least three of which she had “fired” claiming incompetence and unprofessional

conduct. The juvenile court informed Mother that she could retain private counsel;

however, no other attorneys would be appointed to represent her and no further continuances

would be granted. Mother ultimately chose to proceed pro se during the adjudicatory and

disposition hearing.

{¶ 8} On August 16, 2013, based on the evidence adduced, the juvenile court

found that all three boys were abused, neglected, and dependent. The dispositional phase of

the hearing concluded on August 22, 2013, and the juvenile court found that it was in the

boys’ best interest to grant temporary custody and a first extension of temporary custody to

MCCS.

{¶ 9} It is from this judgment that Mother now appeals.

{¶ 10} Mother’s first assignment of error is as follows:

{¶ 11} “IT WAS ERROR NOT TO RETURN THE CHILDREN HOME AT THE

FIRST SHELTER CARE HEARING BECAUSE THERE WAS NOT PROBABLE CAUSE

TO BELIEVE THE CHILDREN WOULD BE HARMED.”

{¶ 12} In her first assignment, Mother argues that the magistrate erred when she

found that probable cause existed for the issuance of the ex parte order removing Z.S., S.S.,

and M.S. from their parents’ home. Mother also argues that the magistrate erred when she

found that the interim custody order would remain with MCCS because she believed that

there was a “risk of harm” to the boys if they were placed back with the parents.

{¶ 13} Mother, however, failed to object to the magistrate’s interim order granting

temporary custody to MCCS. Juv.R. 40(D)(3)(b)(iv) provides: “(iv) Waiver of right to 6

assign adoption by court as error on appeal. Except for a claim of plain error, a party shall

not assign as error on appeal the court’s adoption of any factual finding or legal conclusion,

whether or not specifically designated as a finding of fact or conclusion of law under Juv.R.

40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by

Juv.R. 40(D)(3)(b).”

{¶ 14} Juv.R. 40(D)(3)(a)(iii) requires a magistrate’s decision to include

conspicuous language informing the parties of their responsibility to object to, rather than

simply appeal, the magistrate’s decision. The magistrate’s order of interim temporary

custody issued on September 4, 2012, specifically states that “[a] party may appeal this order

by filing ‘Motion to Set Aside Magistrate’s Order,’ with the Juvenile Clerk of Courts within

ten (10) days of the above time-stamped date.” The record establishes that Mother did not

file any objections to the magistrate’s decision, nor did she file a motion to set side the

magistrate’s order.

{¶ 15} More importantly, the magistrate’s interim custody order arose from abuse,

neglect, and dependency complaints filed in JC 2012-6222, JC 2012-6229, and JC

2012-6226. The juvenile court, however, dismissed those complaints without prejudice in a

final appealable order issued on December 5, 2012. The order also contained language

wherein the juvenile court adopted the magistrate’s decision in its entirety. The order

specifically stated as follows:

The above Magistrate’s Decision is hereby adopted as an Order of this

Court. The parties have fourteen (14) days to object to this decision and may

request Findings of Fact and Conclusions of Law pursuant to Juvenile Rule 7

40(D)(3)(a)(ii) and Montgomery County Juvenile Court Rule 5.11.2. A party

shall not assign as error on appeal the Court’s adoption of any finding of fact

or conclusion of law, in that decision, unless the party timely and specifically

objects to that finding or conclusion as required by Juvenile Court Rule

40(D)(3)(b)(iv).

{¶ 16} Mother did not file any objections to the magistrate’s decision nor did she

file a notice of appeal of the juvenile court’s order adopting the magistrate’s decision and

dismissing the abuse, neglect, and dependency complaints (without prejudice to a re-filing)

filed in JC 2012-6222, JC 2012-6229, and JC 2012-6226. Because Mother failed to file a

notice of appeal of the juvenile court’s December 5, 2012 order, we are without jurisdiction

to address the issue of whether the magistrate erred when she found that probable cause

existed for the issuance of the ex parte order removing Z.S., S.S., and M.S. from their

parents’ home and granted interim custody of the boys to MCCS.

{¶ 17} Mother’s first assignment of error is overruled.

{¶ 18} Mother’s second assignment of error is as follows:

{¶ 19} “THE COURT’S FAILURE TO DISMISS THE CASE AFTER THE

FOURTH FILING VIOLATED THE OHIO CONSTITUTION, ARTICLE I, SECTION 16.”

{¶ 20} In her second assignment, Mother contends that the juvenile court erred and

violated her due process rights when it refused to dismiss the entire case after the fourth

round of complaints was filed.

{¶ 21} R.C. 2151.35(B)(1) provides in pertinent part: [Cite as In re Z.S.,

.] *** The dispositional hearing shall not be held more than ninety days

after the date on which the complaint in the case was filed.

If the dispositional hearing is not held within the period of time

required by this division, the court, on its own motion or the motion of any

party or the guardian ad litem [GAL] of the child, shall dismiss the complaint

without prejudice.

{¶ 22} The record establishes that the first set of complaints alleging that the boys

were abused, dependent, or neglected was filed on August 27, 2012. Once the juvenile

court became aware that disposition of the boys’ cases could not be accomplished within

ninety days of the complaints being filed, the cases were dismissed without prejudice

pursuant to the mandatory language in R.C. 2151.35(B)(1). MCCS filed a second set of

complaints as is also permitted by R.C. 2151.35(B)(1). As previously noted, four sets of

complaints were filed and three were dismissed in the approximately thirteen month period

between the ex parte removal of Z.S., S.S., and M.S., and the juvenile court’s order granting

temporary custody to MCCS. The record establishes that the delays which caused three sets

of the complaints to be dismissed were brought on by a combination of factors, including the

complexity of the case, the overwhelming volume of medical records to reviewed, and the

difficulty of scheduling expert witnesses.

{¶ 23} We note that an agency, such as MCCS, cannot prolong an order of

temporary custody indefinitely. Under R.C. 2151.353(F), an order of temporary custody

issued under R.C. 2151.353(A) terminates one year after either the date the complaint in the

case was filed, or the date upon which the child was first placed into shelter-care, whichever

is earlier. The one-year deadline can be extended for two additional periods of six months; 9

however, if no disposition has been made at the end of the two years, custody of the child or

children reverts to the parents. In re D.J., 2d Dist. Montgomery No. 21666,

.

{¶ 24} Upon review of the record, we conclude that MCCS and the juvenile court

complied with the requirements of R.C. 2151.35(B)(1) and did not deny Mother due process

of law. There is no evidence that the delays, requiring the dismissal without prejudice and

refiling of the charges, were designed to deprive Mother of her due process rights. The

language “shall dismiss *** without prejudice,” as used in R.C. 3151.35(B)(1) is mandatory.

In re Brown,

,

(2d Dist. 1994). “[I]t is

unthinkable that the welfare and interests of a dependent or abused child may be abandoned

with prejudice. The statute [R.C. 2151.35(B)(1)] prevents such a tragedy.”

Accordingly, Mother has failed to establish that the juvenile court violated her right to due

process when it dismissed three earlier sets of complaints because it was clear that

disposition of the cases could not be accomplished within ninety days, as is required by the

mandatory language in R.C. 2151.35(B)(1). The juvenile court simply acted as it was

required to under the circumstances.

{¶ 25} We also find that Mother was not prejudiced by the delay in disposition of

her boys’ custody cases. Specifically, Mother argues that “she lost nine months of time to

work towards reunification” with her boys allegedly because of the delay in disposition of

their cases. Mother’s argument is not supported by the record.

{¶ 26} The initial MCCS caseworker, Heather Booker, testified that as early as

September 19, 2012, a case plan had been developed wherein Mother could begin the

process of reuniting with her children. Mother refused to comply with any aspect of the 10

case plan developed by Booker. The next caseworker assigned to the instant case, Vikki

Carter, testified that since she received the case in April of 2013, Mother has refused to

engage in any services offered by MCCS. In short, Mother has completely failed to perform

any of the requirements in her case plan in order to someday be reunited with her children.

The delays in disposition of the boys’ cases is irrelevant to Mother’s refusal to comply with

her case plan.

{¶ 27} Mother’s second assignment of error is overruled.

{¶ 28} Mother’s third assignment of error is as follows:

{¶ 29} “IT WAS A CONSTITUTIONAL AND STATUTORY ERROR NOT TO

GRANT A CONTINUANCE AND APPOINT COUNSEL FOR [MOTHER] PRIOR TO

TRIAL.”

{¶ 30} In her third assignment, Mother argues that the juvenile court erred when it

refused to appoint new counsel to represent her after she “fired” her appointed counsel,

Attorney Slicer, on the eve of the adjudication and dispositional hearing which began August

12, 2013.

{¶ 31} Initially, we note that the record indicates that Mother personally requested

that Attorney Slicer be appointed to represent her because he was already very

knowledgeable about the case. Moreover, prior to Attorney Slicer attempting to negotiate a

settlement on her behalf, Mother had informed the juvenile court that Slicer had spent

approximately thirty hours with her preparing for the hearing on August 12, 2013. Before

the hearing was set to begin, the juvenile court encouraged the parties to negotiate an

agreement to settle advanced by MCCS whereby the agency would have dismissed the 11

allegations of neglect and abuse in exchange for an admission of dependency. The

settlement also contained a provision that Father would eventually regain custody of the

boys. Father and Mother, while still married, were living separately at this point.

{¶ 32} After permitting her appointed counsel, Attorney Slicer, to negotiate on her

behalf for a significant amount of time, Mother provided the juvenile court with a pro se

letter, prepared on August 9, 2013, stating that she had discharged Slicer because he had

failed to represent her interests competently and that he had violated the Rules of

Professional Conduct. The pro se letter also stated that Slicer had spent little time with her

in preparation for the hearing, and she had been forced to prepare motions and do research

on her own. Before leaving the hearing, Slicer requested that the juvenile court grant

Mother a continuance so that she could retain new counsel. The juvenile court denied the

request for a continuance and informed Mother that she could retain counsel of her choice to

represent her in the adjudicatory hearing, but the court refused to appoint new counsel.

Mother asserts that the juvenile court abused its discretion in failing to appoint new counsel

to represent her and requiring her to proceed pro se at the hearing.

{¶ 33} Attorney Slicer was the fourth lawyer who had been appointed in this case,

and the fifth attorney to represent Mother in total. Immediately after the boys had been

removed from the parents’ house, Mother and Father retained the legal services of Attorney

Dennis Gump. Attorney Gump represented both parents at first and then only Mother when

it was found that the parents’ legal interests were separate and distinct. Attorney Gump

represented Mother until after the shelter-care hearing before the magistrate. Gump

informed the magistrate that Mother was essentially indigent and that counsel should be 12

appointed for her. Gump withdrew from the case, and Attorney Shawn Hooks was

appointed to represent Mother on January 18, 2013.

{¶ 34} The record establishes that Attorney Hooks represented Mother until at least

February 19, 2013. The record is unclear regarding whether Hooks was “fired” by Mother

or chose to withdraw from the case. We note that the record contains an order for

extraordinary fees to be paid to Hooks in the amount of $1,100.00 that was issued on April

25, 2013. Nevertheless, the record indicates that Attorney Marcy Vonderwell was

appointed to represent Mother on or about February 21, 2013. Immediately before a hearing

was to begin on May 28, 2013, Attorney Vonderwell informed the juvenile court that Mother

had just “fired” her. Attorney Vonderwell went on to state that communication had broken

down between Mother and herself, and she did not believe that she could effectively

represent her client at that point. The juvenile court allowed Attorney Vonderwell to

withdraw and stated that new counsel would be appointed.

{¶ 35} On May 30, 2013, Attorney Cynthia Westwood was appointed to represent

Mother. Less than one week later on June 6, 2013, Attorney Westwood filed a motion to

withdraw as Mother’s counsel. Attorney Westwood explained to the juvenile court that

Mother did not trust her because she once worked for the Montgomery County Prosecutor’s

Office and had represented MCCS in the past. Westwood stated that she explained to

Mother that her past employment would not affect her present representation. Mother

disagreed, stating that Attorney Westwood could withdraw, or she would be “fired.” The

juvenile court allowed Attorney Westwood to withdraw from the case on June 10, 2013. As

we have previously discussed, Attorney Slicer, who was ultimately “fired,” was the next 13

counsel appointed to represent Mother.

{¶ 36} Factors to consider in deciding whether a trial court erred in denying a

defendant’s motion to substitute counsel include “the timeliness of the motion and whether

there was a conflict between the attorney and the client that was so great that it resulted in a

total lack of communication preventing an adequate defense.” State v. Jones,

,

(2001), quoting U.S. v. Jennings,

(6th

Cir. 1996). “In addition, courts should ‘balanc[e] *** the accused’s right to counsel of his

choice and the public’s interest in the prompt and efficient administration of justice.’” Id. at

342-343. The decision of whether to grant a defendant’s motion for substitution of counsel

is confided to the sound discretion of the trial court. Wheat v. U.S.,

,

,

(1988). Additionally, “a court must beware that a

demand for counsel may be utilized as a way to delay proceedings or trifle with the court.”

State v. Harmon, 4th Dist. Pickaway No. 04CA22,

, quoting U.S. v.

Kryzyske,

(6th Cir. 1988).

{¶ 37} Similarly, Mother acknowledges that the grant or denial of a continuance is a

matter that is entrusted to the discretion of the trial court. State v. Goode, 2d Dist.

Montgomery No. 19273,

, citing State v. Unger,

,

(1981). In evaluating a motion for a continuance, a trial court should consider

the following: 1) the length of the delay requested; 2) whether other continuances have been

requested or received; 3) the inconvenience to the litigants, witnesses, opposing counsel, and

the court; 4) whether the requested delay is for legitimate reasons or whether it is dilatory,

purposeful, or contrived; 5) whether defendant contributed to the circumstances which give 14

rise to the request for a continuance; and 6) other relevant factors, depending on the unique

facts of each case.

.

{¶ 38} As the Supreme Court of Ohio has determined:

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were

it deciding the issue de novo, would not have found that reasoning process to

be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result. AAAA Enterprises, Inc. v. River Place

Community Urban Redevelopment Corp.,

,

(1990).

{¶ 39} As previously noted, the adjudicatory and dispositional hearing had been

delayed several times because of its complexity and the amount of records and witnesses

involved. The juvenile court had set the date of the two-week hearing well in advance.

Moreover, the juvenile court and five other attorneys had cleared their schedules for

approximately two weeks in order to accommodate the length of the hearing. Further, many

of the witnesses were doctors and other professionals who had to clear full days of their

practice and work schedules in order to testify at the hearing. Another delay in the hearing 15

date would have greatly inconvenienced all of the individuals involved in the hearing.

{¶ 40} The juvenile court stated the following when it denied Mother’s request for

new appointed counsel and continuance of the adjudicatory hearing:

The Court: All right. Well – and I guess just before I came out here,

mother had filed some paperwork which appears to address the Court, “Dear

Judge Kintz.” And basically as follows. With regard to all three cases,

mom alleges that she has fired Mr. Slicer, and that – that she’s forced to

represent herself, but she’s not capable of representing herself, and that she

had to attempt to find her own medical experts, and didn’t have the

opportunity to spend enough time with her attorney, and on and on, indicating

that she had not been properly served by counsel and that her previous public

defenders had all advised her that she couldn’t win here, but maybe she could

win in the court of appeals.

***

And mom, is that your request at this time?

Mother: Yes, Your Honor.

***

The Court: *** The Court would like to – to continue to have some

discussion with counsel in this case. Currently, the Court will deny your

request to remove Mr. Slicer. And Mr. Slicer shall remain on the case and

will continue to represent you.

(Short Recess Taken) 16

The Court: All right. For the purposes of the record, all parties

initially identified, I think, this morning, are all still present and accounted

for. The Court has taken a short recess to maybe try to digest the – what we

will call a motion from mom, based on her request to terminate, or indicating

that she had already terminated Mr. Slicer’s employment, and a request for

the Court to appoint new, competent counsel, so that she may have her day in

court.

After reviewing the request by mom and the motion, the Court

believes that it’s unable to force or even ask Mr. Slicer to continue to

represent mom in this case, in that there’s allegations that could rise to the

level of code of conduct issues for counsel; and would not require him to

proceed under those circumstances.

***

All right. And the Court recognizes that [Mother]’s request indicates

that she certainly did not have enough individual time with counsel. And we

begin today with Mr. Slicer indicating that they had spent thirty hours

together, at which time mom agreed yes, we had spent thirty hours together.

And it just seems a bit contradictory for the Court to see what’s in motion

now.

The Court would also indicate that there have been, I think, at least

four lawyers involved in representation of mom. The last two, and now

three, have been virtually terminated by mom, [Mother], for various reasons, 17

all of which were difficult for the Court to understand, not the rationale, but

the application to the various attorneys that have been involved. I believe

Mr. Slicer would be the third one we’ve terminated at mom’s request.

Based on that, that Court believes that it is unable to reappoint, or

appoint new counsel to represent mom. The Court also believes that mom is

still entitled to her day in court. And I would hope that she is able to get

counsel to represent her, but she’s going to have to do it on her own.

The Court is going to continue the proceedings today and going to

rule on what motions we can get through, and we will begin with testimony

tomorrow morning.

Mom, I would suggest that if you are able to obtain counsel this

evening, they are with you in the morning. You can advise counsel that the

Court is not inclined to grant any kind of further continuance because of the

circumstances of the children remain in limbo, and that this adjudication must

go forward.

The Court also believes that *** believes that the actions of [Mother]

have been strange, at best, and almost, if not, irrational, over the short time

that I have been involved in the case.

{¶ 41} The record establishes that Mother was unable to engage in a good faith

effort to work with and assist Attorney Slicer, a lawyer whom she was permitted to select.

In her pro se letter, Mother accused Attorney Slicer of serious ethical and professional

violations. Mother also stated that she had been unhappy with his representation for a long 18

time. These allegations were made despite the fact that she had specifically requested

Attorney Slicer be appointed to represent her. Additionally, on the day the hearing was set

to begin, Mother acknowledged to the juvenile court that Attorney Slicer had spent in excess

of thirty hours with her preparing for the adjudicatory hearing. It appears that Mother’s last

minute decision to discharge Attorney Slicer was deliberately contrived to further delay the

hearing. We also note that with the exception of Attorney Gump whom she had privately

retained, Mother “fired” at least three of her four appointed attorneys, accusing them of

professional misconduct and ethical violations. In light of the foregoing, we find that the

juvenile court did not abuse its discretion when it refused to grant a continuance and appoint

new counsel for Mother after she had just “fired” her last appointed counsel, Mr. Slicer.

{¶ 42} Mother’s third assignment of error is overruled.

{¶ 43} Mother’s fourth assignment of error is as follows:

{¶ 44} “IT WAS ERROR FOR THE COURT TO DECLARE DR.

VAVUL-ROEDIGER AN EXPERT OVER MOTHER’S OBJECTION WITHOUT

FURTHER INQUIRY INTO DR. VAVUL-ROEDIGER’S QUALIFICATIONS.”

{¶ 45} In her fourth assignment, Mother contends that the juvenile court erred when

it permitted Dr. Roediger to testify, over her objection, as an expert in pediatric medicine

and child abuse.

{¶ 46} Under Evid.R. 702, a witness may testify as an expert if “(A)The witness’

testimony either relates to matters beyond the knowledge or experience possessed by lay

persons or dispels a misconception common among lay persons; (B) The witness is qualified

as an expert by specialized knowledge, skill, experience, training, or education regarding the 19

subject matter of the testimony; and (C) The witness’ testimony is based on reliable

scientific, technical, or other specialized information.”

{¶ 47} It is well-established that the expert witness need not be the best witness on

the subject. Alexander v. Mt. Carmel Medical Ctr.,

,

(1978). “The test of admissibility is whether a particular witness offered as an expert

will aid the trier of fact in the search of the truth.” Ishler v. Miller,

,

(1978).

{¶ 48} Whether a witness is qualified to testify as an expert is a matter for the court

to determine pursuant to Evid.R. 104(A). Bedard v. Gardner, 2d Dist Montgomery No.

20430,

. The competency of the proposed expert witness is a matter

left to the discretion of the trial court, and the court’s ruling will be reversed only for an

abuse of discretion. Alexander,

.

{¶ 49} In the instant case, the transcript establishes that after the attorney for Father

offered to stipulate to Dr. Roediger’s qualifications, the juvenile court asked the GAL, the

boys’ attorney, and Mother if they too would stipulate. The GAL and the boys’ attorney

agreed to stipulate. According to the transcript, when Mother was asked if she would agree

to the stipulation, she responded, “No say, Your Honor.” The juvenile court apparently did

not perceive Mother’s response to constitute an objection and proceeded to find Dr.

Roediger to be an expert pursuant to Evid. R. 702.

{¶ 50} Even if we were to find that Mother’s response did, in fact, constitute a

refusal to stipulate to Dr. Roediger’s qualifications as an expert in the fields of pediatrics and

child abuse, the failure to stipulate cannot be equated with an objection to her testimony. 20

The record establishes that Dr. Roediger is exceptionally qualified to testify as an expert in

the instant case. Dr. Roediger is a pediatrician and child abuse specialist who serves as the

medical director for the Department of Child Advocacy at Dayton Children’s Hospital. Dr.

Roediger’s C.V. establishes that she is Board Certified in General Pediatrics and Child

Abuse Pediatrics. Dr. Roediger has an extensive educational background and has published

articles in several medical journals. We note that her curriculum vitae was admitted

without objection from Mother. Certainly, if Mother had actually objected to Dr.

Roediger’s qualifications as an expert, the objection would have been properly overruled

pursuant to Evid. R. 702. See State v. Hall, 2d Dist Montgomery No. 25794,

(Dr. Vavul-Roediger is board certified in the fields of general

pediatrics and child-abuse pediatrics, has evaluated thousands of children and adolescents

for possible sexual abuse or sexual maltreatment, and has testified roughly one hundred

times as an expert in general pediatrics and child-abuse pediatrics.)

{¶ 51} Mother’s fourth assignment of error is overruled.

{¶ 52} Mother’s fifth assignment of error is as follows:

{¶ 53} “IT WAS ERROR TO ADMIT THOUSANDS OF PAGES OF MEDICAL

RECORDS IN VIOLATION OF THE CONFRONTATION CLAUSE AND WITHOUT

TESTIMONY THAT THE HYTHA CRITERIA WERE MET.”

{¶ 54} In her fifth assignment, Mother argues that it was error for the juvenile court

to admit the medical records from the various doctors and medical professionals who treated

Z.S., S.S., and M.S. Specifically, Mother contends that introduction of the records violated

her Sixth Amendment right to confront her accusers. Mother also asserts that the medical 21

records constitute inadmissible hearsay. At the adjudicatory hearing, Dr. Roediger relied on

the standard hospital records from Dayton Children’s Hospital and Cincinnati Children’s

Hospital as the basis for her professional opinion that S.S. was the victim of child medical

abuse, and the other boys were in danger of harm as well. The juvenile court admitted all of

the medical records without objection.

{¶ 55} Generally, the admission or exclusion of evidence is within the broad

discretion of the trial court, and a reviewing court should not disturb evidentiary decisions in

the absence of an abuse of discretion that has created a material prejudice. In re A.S.,

,

,

, ¶ 53 (12th Dist.). Mother, however,

failed to object to the admission of the medical records when they were introduced at the

hearing. Therefore, Mother has waived all but plain error in regards to the admission of the

medical records. “The plain error doctrine provides for the correction of errors clearly

apparent on their face and prejudicial to the complaining party even though the complaining

party failed to object to the error at trial.” O’Brien v. O’Brien, 5th Dist. Delaware No.

2003-CA-F12069,

, citing Reichert v. Ingersoll,

,

(1985). “The plain error doctrine may be utilized in civil cases only

with the utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.”

citing Cleveland Elec. Illum. Co. v. Astorhurst Land Co.,

,

(1985).

{¶ 56} Initially, we note that the Sixth Amendment provides, in pertinent part, “in

all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the

witnesses against him.” The right of cross-examination is one of the primary interests 22

secured by the Confrontation Clause. Douglas v. Alabama,

,

,

(1965). However, proceedings instituted in a juvenile court are

civil in nature and not criminal, and it has been held that the Confrontation Clause is

inapplicable in abuse, neglect, and dependency proceedings in juvenile court. In re

Burchfield,

,

(12th Dist. 1988). Accordingly,

Mother had no rights under the Confrontation Clause regarding the medical records.

{¶ 57} Mother also argues that the medical records constituted inadmissible hearsay

because the records were not properly authenticated pursuant to the criteria set forth in

Hytha et al. v. Schwendeman,

,

(10th Dist. 1974). The

Hytha criteria are as follows: 1) the record is a systematic entry in the records of a hospital or

physician; 2) the diagnosis is the result of well-known and accepted objective practices; 3)

the diagnosis is not based on the subjective complaints of the patient; 4) the diagnosis was

made by a qualified person; 5) the evidence is competent and relevant; 6) if the record is

used to prove the truth of the matter asserted at trial, it must be the product of the party

seeking its admission; and 7) the record is properly authenticated. The medical records at

issue were created by the doctor or hospital who treated the boys in the ordinary course of

business. Moreover, the records were properly authenticated by the individual records

custodians, as evidenced by the sworn affidavit attached to each record.

{¶ 58} To be admissible, hospital records must be authenticated. See Hunt v.

Mayfield,

,

(2d Dist. 1989); Evid.R. 901(A).

This may be done either by “call[ing] the custodian, person who made such records, or

person under whose supervision they were made, as a witness” or by any such person’s 23

endorsing on the records “the person’s verified certification identifying such records, giving

the mode and time of their preparation, and stating that they were prepared in the usual

course of the business of the institution.” R.C. 2317.422(A). The medical records at issue

were created by the doctor or hospital who treated the boys in the ordinary course of

business. Moreover, the records were properly authenticated by the individual records

custodians, as evidenced by the sworn affidavit attached to each record. Thus, the juvenile

court did not err, plainly or otherwise, when it permitted the medical records to be

introduced into evidence.

{¶ 59} Mother’s fifth assignment is overruled.

{¶ 60} Mother’s sixth assignment of error is as follows:

{¶ 61} “IT WAS A DUE PROCESS VIOLATION NOT TO CONTINUE THE

AUGUST 16, 2013 HEARING WHEN MOTHER WAS NOT PRESENT BECAUSE OF

SEIZURES.”

{¶ 62} In her sixth assignment, Mother contends that the juvenile court violated her

right to due process when it refused to continue the beginning of the dispositional hearing on

August 16, 2013, when she was unable to attend because she was allegedly suffering from

seizures.

{¶ 63} “The grant or denial of a continuance is within the sound discretion of the

trial court and will not be disturbed on appeal absent an abuse of discretion.” In re T.T., 2d

Dist. Montgomery No. 21658,

. After the State rested its case in the

adjudicatory phase of the hearing, the juvenile court inquired whether any of the parties had

any additional witnesses or evidence to present. Mother declined to answer the question 24

posed by the court and renewed her objection to the entire proceedings. The juvenile court

acknowledged her continuing objection and stated that the adjudicatory phase of the hearing

was complete. The juvenile court stated that it would announce its decision the following

morning on August 16, 2013.

{¶ 64} On August 16, 2013, the juvenile court informed the parties that it had been

informed that Mother had purportedly suffered a seizure and would not be attending the

hearing that day. Nevertheless, the juvenile court announced its decision which adjudicated

Z.S., S.S., and M.S. to be abused, neglected, and dependent. The juvenile court also stated

that the dispositional hearing had to begin by August 21, 2013, or the court would be

required to dismiss the complaints and start the whole process again. The juvenile court

then initiated the dispositional phase of the hearing and permitted the prosecutor to ask the

first witness, Heather Booker, less than ten neutral, introductory questions. The exchange

between the State and Booker is as follows:

The State: Can you state your name for the record?

Booker: Heather Booker.

Q: Where are you employed?

A: I’m employed at Montgomery County Department of Jobs and

Family Services, Children Services Division.

Q: And were you at one time the ongoing caseworker for [Z.S., S.S.,

and M.S.], the minor children who are the subject to the disposition currently

before the Court?

A: I was. 25

Q: And what period of time were you the ongoing worker?

A: I believe – I was assigned the case [on] September 24th, [2012]

and I was transferred off the case [on] March 11th, [2013].

Q: Okay.

A: September 24, 2012, to March 11, 2013.

Q: Okay. And the children – were the children removed prior to you

becoming a worker?

A: Yes.

Q: Do you remember when they’re [sic] removed?

A: I believe in August.

Q: August of –

A: Of 2012.

Q: And you are probably the only one who doesn’t know. We are

just going to start disposition today, so I’ll ask you briefly. Are the children

currently in foster care now?

A: Yes.

Q: Their needs are being met in their current placement?

A: That is my understanding, yes.

The State: And with that, Your Honor, we’ve begun the disposition,

and I believe that we have enough to – I don’t know how much you want me

to get through. I don’t have a lot of current information.

The Court: I think the Court agrees that we have enough testimony 26

with regard to disposition to say that it has begun and meet the needs of the

statutory requirements. And we’ll continue the disposition to Monday

morning [August 19, 2013] at nine. And fortunately, unfortunately, you get

to come back on Monday.

Booker: Okay. Thank you.

Thereafter, the juvenile court adjourned the proceedings for the weekend. Booker’s

testimony continued on Monday, August 19, 2013, at which time Mother was present and

able to cross-examine her extensively. We note that Mother did not provide any

documentation on that date regarding her absence on August 16, 2013.

{¶ 65} Upon review, we conclude that the juvenile court did not abuse its discretion

when it refused to continue the hearing scheduled for August 16, 2013, despite the fact that

Mother was not present. The juvenile court structured its ruling of August 16, 2013, so that

they were able to proceed with a full dispositional phase of the hearing with Mother present

which afforded her a full opportunity for cross-examination and presentation of witnesses if

she selected. Therefore, Mother suffered no prejudice and was able to participate fully in

the dispositional phase of the hearing.

{¶ 66} Mother’s sixth assignment of error is overruled.

{¶ 67} Mother’s seventh assignment of error is as follows:

{¶ 68} “THE COURT VIOLATED MOTHER’S FIFTH AMENDMENT RIGHT

NOT TO INCRIMINATE HERSELF BY ORDERING MOTHER TO ‘COOPERATE

FULLY AND ABIDE BY ALL REQUESTS MADE BY LAW ENFORCEMENT IN

ORDER TO COMPLETE THE CRIMINAL INVESTIGATION.’” 27

{¶ 69} In her seventh assignment, Mother argues that the juvenile court violated her

Fifth Amendment right against self-incrimination when it ordered her, as part of her case

plan, to “cooperate fully and abide by all requests made by law enforcement in order to fully

complete the criminal investigation.” We note that the “criminal investigation” mentioned

in the case plan refers to the investigation of Mother in connection to allegedly fraudulent

fund-raising activities on behalf of S.S.

{¶ 70} Upon review, we find that there is no evidence in the record which

establishes that Mother’s right against self-incrimination was violated. Significantly,

Mother never signed her case plan nor did she cooperate in the criminal investigation

regarding the fraudulent fund-raisers. Heather Booker testified that Mother had not

completed, or even begun, any work towards her case plan objectives. Detective Isaiah

Keller, who was investigating Mother’s involvement in the alleged fraud, testified that she

would not speak to him or assist in the investigation. Ordering Mother to cooperate in the

criminal investigation is not the equivalent of ordering her to relinquish her Fifth

Amendment right against self-incrimination. Throughout the pendency of this case, the trial

court never compelled Mother to testify against her own interests regarding any fund raising

schemes. Instead of seeking relief from the juvenile court’s adjudicatory and dispositional

orders, the appropriate remedy for Mother would have been to file a motion to modify her

case plan pursuant to R.C. 2151.412(F)(2) if she had questioned the breadth of the condition

to “cooperate fully with law enforcement.”

{¶ 71} Mother’s seventh assignment of error is overruled.

{¶ 72} Mother’s eighth assignment of error is as follows: 28

{¶ 73} “THE COURT VIOLATED MOTHER’S DUE PROCESS RIGHTS BY

ORDERING HER TO TAKE ACTIONS THAT DO NOT PROMOTE THE WELLBEING

[sic] OF HER CHILDREN OR REUNIFICATION WITH THEM.”

{¶ 74} In her eighth assignment, Mother argues that three of the requirements in her

case plan violate her due process by requiring her “to take actions that do not promote the

well-being of her children or reunification with them.” Specifically, Mother places at issue

the three following conditions: 1) the parents must not take photographs of the boys without

permission; 2) Mother must leave her cell phone in the car when she visits the boys at

MCCS; and 3) she must sign all releases of information.

{¶ 75} Initially, we note again that Mother did not sign the case plan nor has she

taken any actions towards completing the plan. With respect to the conditions requiring

Mother to leave her cell phone in the car when she visited the boys at MCCS and the

condition that she not take photographs of the boys without permission, the juvenile court

had a proper basis upon which to impose the conditions. Testimony was adduced at the

adjudicatory hearing that Mother had been taking pictures of the boys while they were

outside their foster parents’ home. Mother was also found to be following the boys and the

foster parents to restaurants and stores. Mother was ordered to not bring her cell phone into

MCCS because on multiple occasions she snuck the boys into the bathroom at the agency

and took pictures of them without their clothes on. Mother apparently took these photos to

document her belief that the boys needed medical attention. The juvenile court ultimately

found that S.S. had been medically abused by Mother. The court found that the other two

boys had been emotionally abused by Mother. The conditions restricting Mother from 29

photographing the boys were reasonably put in place to protect them from her irrational

conduct. The conditions did not violate her due process rights.

{¶ 76} Lastly, Mother argues that the condition requiring her to “sign all releases” is

over broad and does not promote reunification with her children. Mother, however, fails to

articulate which releases she does not want to sign. Moreover, Mother does not explain

how signing the releases so that necessary information will be made available to MCCS fails

to promote reunification or the well-being of the boys.

{¶ 77} Based on the testimony of Heather Booker, a caseworker at MCCS, the

agency has been unable to make referrals for a parenting/psychological evaluation or

individual counseling for Mother because she had refused to sign the releases. Mother’s

refusal to sign the releases is a factor preventing reunification with the boys. Because

Mother did not sign the release so she could receive the necessary psychological evaluations

and counseling, MCCS was denied information it needed to assist the family and move

closer towards the goal of reunification. Additionally, the appropriate remedy for Mother

would be to file a motion to modify her case plan pursuant to R.C. 2151.412(F)(2), and

request some clarification regarding the releases she has thus far refused to sign.

{¶ 78} Mother’s eighth assignment of error is overruled.

{¶ 79} Mother’s ninth assignment of error is as follows:

{¶ 80} “IT WAS A DUE PROCESS ERROR TO FORECLOSE THE

POSSIBILITY OF THE CHILDREN’S REUNIFICATION WITH MOTHER.”

{¶ 81} In her ninth assignment, Mother argues that her due process was violated

because she was essentially being passed over for reunification with her children even 30

though she was listed on the case plan. Upon review, the record establishes that Mother has

repeatedly refused to comply with the case plan and engage in services designed to address

and correct the issues which initially resulted in the boys being removed from the parents’

home. Mother argues that MCCS and the juvenile court have ceased to work with her.

However, the evidence establishes that both the juvenile court and MCCS have actively

promoted reunification with both parents. In fact, the juvenile court stated on the record

that MCCS needed to establish a case plan for Mother and Father “that brings reunification

of the family to fruition.” At the time of the dispositional hearing, testimony was adduced

that Father was being closely considered for eventual reunification with the boys, but Mother

was informed that until she started working on her case plan, MCCS would not be

considering any type of reunification with her. Simply put, it is Mother’s refusal to work on

her case plan that is preventing reunification with her children.

{¶ 82} Mother’s ninth assignment of error is overruled.

{¶ 83} Mother’s tenth assignment of error is as follows:

{¶ 84} “MOTHER’S CONSTITUTIONAL RIGHT TO HAVE A FAIR AND

IMPARTIAL FACT FINDER WAS VIOLATED BY THE COURT’S BIAS.”

{¶ 85} In her tenth assignment, Mother contends that the juvenile court was biased

against her in light of several comments made by the magistrate and juvenile court

throughout the course of the case.

{¶ 86} “Judicial bias is ‘a hostile feeling or spirit of ill will or undue friendship or

favoritism toward one of the litigants or his attorney, with the formation of a fixed

anticipatory judgment on the part of the judge, as contradistinguished from an open state of 31

mind which will be governed by the law and the facts.’ Trial judges are ‘presumed not to

be biased or prejudiced, and the party alleging bias or prejudice must set forth evidence to

overcome the presumption of integrity.’” (Internal citations omitted.) Weiner v. Kwait, 2d

Dist. Montgomery No. 19289,

, ¶ 89-90.

{¶ 87} In the first example, Mother points out an exchange where the parties’

attorneys were arguing over the difference between “excused” and “unexcused” absences.

From a review of the transcript, it is clear that the magistrate was slightly frustrated with the

line of questioning and the bickering between the parties’ attorneys. The magistrate’s

concern, however, was how many days each boy missed in total, not whether the absence

was excused because Mother had sent a note. Nothing in the exchange between the

magistrate and the attorneys establishes bias on the part of the court.

{¶ 88} The next example Mother refers to occurred when Father’s attorney

requested a continuance but refused to agree to a short extension of the ninety-day time

frame when it became apparent that disposition could not be had within the statutory time

frame. The magistrate showed surprise that the parties were unwilling to waive the

statutory deadline in order to reach a resolution to the case. The magistrate did note that she

did not find the parents’ conduct and decisions during the proceedings to be objectively

reasonable. The record establishes that the magistrate was not exhibiting bias against the

parents’ attorneys, but rather frustration that neither parent seemed to want to resolve the

case and act in the best interests of the children.

{¶ 89} Lastly, Mother asserts that at the fourth shelter hearing, the magistrate was

trying to “bully” her into agreeing to interim temporary custody of the boys with MCCS by 32

interrupting her examination of a witness. The record does not support Mother’s allegation.

Rather, on May 28, 2013, the juvenile court heard testimony from Vicki Carter, the boys’

caseworker from MCCS. Carter testified that based on Mother’s failure to make any

progress towards her case plan objectives, interim temporary custody should be awarded to

MCCS. Mother, who had just fired her third attorney at the beginning of the hearing,

cross-examined Carter. Based on Carter’s testimony and the already lengthy history of the

case, the juvenile court had enough evidence before it to conclude that it was in the best

interests of the boys for them to remain in the custody of MCCS.

{¶ 90} Accordingly, we find nothing in the record which establishes that the

juvenile court was biased against Mother. The record establishes that the juvenile court

made every attempt to accommodate Mother. There was no evidence that the court ever

“bullied” her or attempted to exert any undue influence on her in regards to the placement of

the boys. The juvenile court’s rulings were based on the court’s reasonable understanding of

the rules of evidence and trial procedure. The juvenile court’s adverse rulings during the

course of the lengthy proceedings are insufficient to demonstrate any personal animus

against Mother.

{¶ 91} Mother’s tenth assignment of error is overruled.

{¶ 92} Mother’s eleventh and final assignment of error is as follows:

{¶ 93} “MOTHER’S DUE PROCESS RIGHTS WERE VIOLATED DUE TO

CUMULATIVE ERRORS COMMITTED THROUGHOUT THE PROCEEDINGS.”

{¶ 94} Finally, turning to Mother’s cumulative error argument, “separately

harmless errors may violate a defendant’s right to a fair trial when the errors are considered 33

together. State v. Madrigal,

,

,

. In order to

find ‘cumulative error’ present, we must first find that multiple errors were committed at

trial.

,

. We then must find a reasonable probability that the

outcome of the trial would have been different but for the combination of the separately

harmless errors. State v. Thomas, Clark App. No. 2000-CA-43,

.” State v.

Kelly, 2d Dist. Greene No. 2004-CA-20,

. “Where no individual,

prejudicial error has been shown, there can be no cumulative error. State v. Blankenship

(1995),

,

.” State v. Jones, 2d Dist. Montgomery

No. 20349,

.

{¶ 95} In light of our foregoing analysis, we find that Mother has failed to establish

that any errors occurred in the instant case. State v. Moreland,

,

(1990). Thus, we fail to see how the absence of error can constitute

cumulative error.

{¶ 96} Mother’s eleventh and final assignment of error is overruled.

{¶ 97} All of Mother’s assignments of error having been overruled, the judgment of

the juvenile court is affirmed.

..........

HALL, and WELBAUM, JJ., concur.

Copies mailed to: Mathias H. Heck, Jr. Carley J. Ingram / Tiffany Allen Tara C. Dancing Robyn Traywick Hon. Nick Kuntz