In re T.M.

[Cite as In re T.M., 2020-Ohio-6950.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

IN RE: T.M., A.B., T.D., I.B., and V.T. : APPEAL NOS. C-200009
C-200012
: TRIAL NO. F16-2211x

: O P I N I O N.

Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded

Date of Judgment Entry on Appeal: December 30, 2020

Phyllis Schiff, for Appellant Mother,

Celia Klug Weingartner, for Mother’s Guardian ad Litem,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nicholas C. Varney,
Assistant Prosec

[Cite as In re T.M., 2020-Ohio-6950.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO


IN RE: T.M., A.B., T.D., I.B., and V.T.   :         APPEAL NOS. C-200009
                                                                 C-200012
                                          :         TRIAL NO. F16-2211x

                                          :               O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: December 30, 2020



Phyllis Schiff, for Appellant Mother,

Celia Klug Weingartner, for Mother’s Guardian ad Litem,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nicholas C. Varney,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Belinda S. Gullette,
Assistant Public Defender, for Children’s Guardian ad Litem.
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

M OCK , Presiding Judge.

       ¶1    The case began with an emergency removal of T.M., A.B., T.D., and

I.B. from appellant mother’s care because of an altercation that resulted in mother’s

arrest for child endangerment. The case proceeded from that point. After the initial

complaint, the Hamilton County Department of Job and Family Services (“HCJFS”)

filed six amended complaints. The final amended complaint was filed on May 1,

2018. At a pretrial conference, the parties waived the right to have the adjudication

and disposition hearings separately, agreeing to commence the disposition portion of

the proceedings immediately after the adjudication was made in a single hearing.

       ¶2    The case was heard on June 18, 2018, and continued in progress. On

June 19 or 20, 2018, the matter was again continued in progress to August 9. The

hearing was continued in progress several additional times thereafter.          At the

conclusion of the matter, the trial court awarded custody of T.D. to the child’s father,

T.M., A.B., and I.D. to the maternal aunt and uncle, and V.T. to the child’s father.

V.T. was born after this matter commenced and was subsequently added to the

litigation. The trial court also suspended mother’s visitation with T.M., A.B, and I.D.,

“subject to reconsideration upon the filing of a motion by mother or the Guardian

appointed for said children.” Both mother and her guardian ad litem now appeal that

decision.

                                 Hearing was Timely

       ¶3    In their first assignments of error, mother and mother’s guardian

argue that the trial court erred when it failed to dismiss the seventh amended

complaint because the adjudication hearing was not held within 90 days.            R.C.

2151.35(B)(1) states that “[t]he 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 90 days of the filing of the complaint, “the

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court, on its own motion or the motion of any party or the guardian ad litem of the

child, shall dismiss the complaint without prejudice.” R.C. 2151.35(B)(1). Earlier

this year, the Ohio Supreme Court held that this statutory deadline is mandatory. In

re K.M., 159 Ohio St.3d 544, 2020-Ohio-995, 152 N.E.3d 245, ¶ 31. The court further

concluded that this deadline cannot be found to have been implicitly waived by the

parties. Id. at ¶ 26.

       ¶4     HCJFS and the guardian ad litem for the children argue that the trial

court did begin the dispositional hearing on time, and that the hearing was continued

in progress from that point. Mother’s main argument contra this assertion is that the

record does not show that the hearing began then. She argues:

       HCJFS argues that the dispositional hearing in this case began prior to

       the expiration of the Seventh Amended Complaint. This is inaccurate.

       Although the trial docket does state that evidence was received, it is

       common practice for evidence submitted for adjudication to also be

       submitted for disposition. The trial transcripts that were submitted

       for this Court to review begin with August 16, 2018. Appellant only

       appealed the dispositional finding in this case. No party made any

       attempt to request previous transcripts. The first transcript presented

       to this Court is dated August 16, 2018; when the disposition actually

       began. On that date, the first thing HCJFS did was argue that the

       adjudication finding be reconsidered. The disposition cannot begin

       until the completion of the adjudication.     HCJFS first witness on

       August 16, 2018 is the caseworker, Laticia Gaines. Neither the Judge

       nor the Prosecutor state that her testimony is a continuation from a

       previous court date nor does the Judge state that she is still “under




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       oath.” There is no indication throughout the transcript that HCJFS

       called a witness prior to Ms. Gaines.

       ¶5    There are several problems with mother’s argument. First, the record

demonstrates that the trial court had set an adjudication and disposition hearing for

June 18, 2018. Mother concedes that a hearing took place on that date and some

evidence was received regarding the disposition.

       ¶6    Mother also cites to portions of the August 16, 2018 hearing

transcript—the fact that the witness was sworn and there was no evidence there had

been prior witnesses—for support of her argument that the hearing had begun on

that date. But the transcript begins with the trial court stating “Good morning. This

is Case Number F/16/2211. It’s the continuing matter of the * * * children. Is

everyone prepared to proceed?” Further, during questioning of the first witness

during the August 16 hearing, the witness was asked “[a]nd then you testified last

time, a little bit, about your concerns with regard to Latania Burns. Just for the

record, who is she in relation to all the children in this case?” Thus, the record

supports the conclusion that testimony had been taken prior to August 16.

       ¶7    Further, entries in the record indicate that substantive portions of the

adjudication hearing occurred in June. The entry issued at the conclusion of the

June 18 hearing indicated that it was being continued in progress to June 19. There

is no entry for June 19, but an entry dated June 20 states “Trial in progress to

8/16/20 at 9:00 AM Judge Sylvia Hendon.            Testimony taken for dispositional

hearing. State Exhibit #1 received. Continued in progress.” (Emphasis added.)

       ¶8    An appellant bears the burden of showing error by references to

matters in the record. State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d 1355 (1978).

When portions of the transcript necessary for resolution of assigned errors are

omitted from the record, this court has nothing to pass upon and, thus, this court has


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                   O HIO F IRST D ISTRICT C OURT OF A PPEALS

no choice but to presume the validity of the trial court’s proceedings and affirm.

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). It is

the appellant’s responsibility to include all the evidence in the appellate record so

that the claimed error is demonstrated to the reviewing court. App.R. 9(B).

       ¶9    Mother and her guardian attempt to prove that the dispositional

hearing began out of time by reference to a selection of the record that they

developed for purposes of appeal. But there is evidence on this record that the

dispositional hearing began at some point in June 2018, whether it was on June 18,

19, or 20. Both entries in the record and the transcript of August 16 indicate that the

matter had been continued in some fashion from June. Without transcripts for the

June hearings, this court has no way of determining what happened, why the matters

were continued, or whether the parties agreed to waive the time requirements. See

Matter of K.M., 4th Dist. Highland No. 20CA4, 2020-Ohio-4476, ¶ 63 (Ohio

Supreme Court’s decision in In re K.M. still allows for disposition after 90 days upon

express waiver of the time requirements of R.C. 2151.35(B)(1)). Since the burden is

upon appellant to demonstrate error by reference to the record, absent such a

transcript the court must presume the regularity of the proceedings. Knapp at 199.

       ¶10   On this record, it cannot be said that the dispositional hearing did not

commence in a timely manner.         Not only have mother and her guardian not

established otherwise, but there is evidence in the record that it began in June.

Absent a complete record to refute this evidence in the record, this court could not

say that the trial court erred. We overrule the first assignments of error of mother

and her guardian ad litem.




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                     O HIO F IRST D ISTRICT C OURT OF A PPEALS
                                 The Custody Award

       ¶11     Mother’s second assignment of error and the second and third

assignments of error of her guardian ad litem assert that the trial court’s custody

determinations were erroneous. As this court stated:

       Under R.C. 2151.353(A)(3), if a juvenile court finds a child to be an

       abused, dependent, or neglected child, it may award legal custody to

       any person who has filed a petition for legal custody. The court has

       discretion to determine what placement option is in the child’s best

       interest.   In determining the child’s best interest, the court must

       consider the factors set out in R.C. 2151.414(D).

(Citations omitted.) In re Patterson, 1st Dist. Hamilton No. C-090311, 2010-Ohio-

766, ¶ 15.     The factors set forth in R.C. 2151.414(D) include: the wishes of the

children; the children’s interaction and relationship with their parents, siblings, and

other individuals who may affect their best interest; the children’s adjustment to

home, school, and community; the mental and physical health of all individuals

involved; and whether either parent’s actions resulted in the children being

dependent.

       ¶12     An appellate court will not reverse the juvenile court’s award of

custody absent an abuse of discretion.      Patterson at ¶ 15. The term “abuse of

discretion” connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable. Body Power, Inc. v.

Mansour, 1st Dist. Hamilton No. C-130479, 2014-Ohio-1264, ¶ 28, citing Blakemore

v. Blakemore, 5 Ohio St.3d 217, 291, 450 N.E.2d 1140 (1983). Most cases will fall

within the “unreasonable” prong of discretionary decisions, as few judges issue

decisions that are unconscionable or arbitrary. AAAA Ents., Inc. v. River Place

Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). A


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                      O HIO F IRST D ISTRICT C OURT OF A PPEALS

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.” Id. “An

abuse of discretion implies that a decision is both without a reasonable basis and is

clearly wrong.” Aetna Better Health, Inc. v. Colbert, 10th Dist. Franklin No. 12AP-

720, 2012-Ohio-6206, ¶ 21, citing Hartzog v. Ohio State Univ., 27 Ohio App.3d 214,

500 N.E.2d 362 (10th Dist.1985).

       ¶13      In this case, it cannot be said that the trial court abused its discretion.

The children spoke with the judge in camera and expressed their strong desire to

remain where they were. A.B. and T.M. wished to remain with their aunt and uncle,

and T.D. wished to remain with his father. The trial court relied extensively on these

interviews, concluding that it was “abundantly clear from that session that

reunification with mother at this time would not be [the children’s] preference * * *

and consequently, given their ages and grade placement in school, would not be in

their best interest.” But the transcript of the in-camera interviews is not part of this

record. As a result, we are forced to presume regularity in how they were conducted.

See 435 Elm Invest., LLC, v. CBD Invests. Ltd. Partnership I, 1st Dist. Hamilton No.

C-190133, 2020-Ohio-943, ¶ 21. The failure to establish a record on the in-camera

interview proves fatal to this appeal, because the court relied on little else in reaching

its conclusion.

       ¶14      There was other evidence in this case that supports the trial court’s

decision. The case had been commenced because mother had been charged with

child endangerment. While mother had made progress in the case plan adopted by

the trial court, she never progressed beyond the ability to have supervised visits with

her children. During these visits, mother often made inappropriate comments or


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                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

asked inappropriate questions of the children about their placement. Even though

her therapist indicated that she required continued treatment for her personality

disorder, mother did not believe she needed further services. There had been a

history of sending the children to a punishment room without food or water,

discipline with wooden instruments, threats with a bat and a knife, and other threats,

but mother did not understand why HCJFS needed to be involved in the lives of her

children. Mother also has other children, not involved in this case, who either have

been placed with relatives or mother admittedly has a hard time raising.

        ¶15   On the other hand, the fathers of T.D. and V.T. have indicated that

they will raise the children in a safe environment and will facilitate any visitation

ordered by the court. Similarly, the maternal aunt and uncle have provided a loving

home for A.B. and T.M., as they have with other children that mother has left in their

care.

        ¶16   But the decision in this case is far from clear cut. Mother’s efforts are

evident in the record. Mother notes that an employee of Beech Acres Parenting

Center testified that mother was “not the same parent” as she had been and was

“pretty clear on what needed to happen” for her to improve and get her children back

into her care. For more than three years, mother complied with each aspect of her

HCJFS case plan.      She was successfully discharged from two separate therapy

programs for completing all her treatment goals. Mother’s second therapist

expressed confusion as to why Mother was even referred in the first place. She

completed parenting classes; she almost never missed a visitation; and not a single

witness could report any instance of alcohol or substance abuse. Mother’s parenting

coach reported excellent progress and recommended—at multiple stages of

disposition—that immediate steps be taken to transition the children back into

mother’s home.


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                     O HIO F IRST D ISTRICT C OURT OF A PPEALS

       ¶17    And the testimony from the caseworker was often unclear regarding

the key issues preventing mother’s reunification. The guardian ad litem for the

children was often as opaque on mother’s roadblocks. Faced with these obstacles, it

is easy to see why mother might have been confused about her continued need for

counseling.

       ¶18    Perhaps the most frustrating aspect of this case is the amount of work

that this court has had to undertake to divine the rationale of the trial court. The

Ohio Supreme Court recently clarified that “R.C. 2151.414(D)(1) does not require a

juvenile court to expressly discuss each of the best-interest factors in R.C.

2151.414(D)(1)(a) through (e). Consideration is all that is required.” In re A.M., Slip

Opinion No. 2020-Ohio-5102, ¶ 31. But the court also cautioned that “a reviewing

court must be able to discern from the magistrate’s or juvenile court’s decision and

the court’s judgment entry that the court satisfied the statutory requirement that it

consider the enumerated factors * * *.” Id. And while the court declined to read a

requirement that the trial court list out each factor, the court repeatedly indicated

that such would be a “best practice” because “[d]iscussion of the statutory best-

interest factors in R.C. 2151.414(D)(1) would * * * facilitate appellate review of

permanent-custody judgments.” Id. at ¶ 32, citing In re M.B., 9th Dist. Summit No.

21760, 2004-Ohio-597, ¶ 11. “A juvenile court’s including a discussion of the best-

interest factors in its decision granting permanent custody of a child to an agency is

also likely to increase public confidence in the judicial process in this most important

area of parental rights.” Id. at ¶ 32.

       ¶19    The trial court’s decision below contained only a rudimentary

analysis, requiring this court to scour the record to understand the reasons behind its

finding that it was in the children’s best interest to take legal custody away from their

mother.    Our review should not have been this difficult.        These cases are too


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                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

important to the parties to leave their determination to such vagaries. There is no

reason that the trial court could not explain its analysis, indicating its consideration

of the appropriate statutory factors, so that this court is not left to surmise its

rationale. But on this record, it cannot be said that the decision of the trial court was

supported by “no sound reasoning process” or is “both without a reasonable basis

and is clearly wrong.” The trial court did not abuse its discretion. We overrule

mother’s second assignment of error and the second and third assignments of error

of her guardian ad litem.

                            Visitation Decision Unsupported

       ¶20    In the final assignment of error presented by mother’s guardian ad

litem, the guardian argues that the trial court erred when it modified mother’s

visitation schedule without rationale. We agree and sustain the assignment of error.

       ¶21    In its entry, when awarding custody of A.B., T.M., and I.B. to

maternal aunt and uncle, the trial court added that “[v]isitation with mother is

suspended at this time, subject to reconsideration upon the filing of a motion by

mother or the Guardian appointed for said children.” The trial court gave no reason

for the decision to suspend visitation in its entry.

       ¶22    A trial court must determine whether a change in visitation is in a

child’s best interest. Braatz v. Braatz, 85 Ohio St.3d 40, 706 N.E.2d 1218 (1999),

paragraph one of the syllabus. In determining whether a modification is in the

child’s best interest, the court is guided by the factors in R.C. 3109.051(D). The trial

court has broad discretion regarding the modification of parental visitation rights.

Appleby v. Appleby, 24 Ohio St.3d 39, 492 N.E.2d 831 (1986). Thus, absent an

abuse of that discretion, this court will not reverse the trial court’s decision. In re

Jane Doe 1, 57 Ohio St.3d 135, 137, 566 N.E.2d 1181 (1991).



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                      O HIO F IRST D ISTRICT C OURT OF A PPEALS

         ¶23   In this case, we are presented with a decision which changed mother’s

visitation schedule without explanation or analysis of any sort. For this court to

conduct any meaningful abuse-of-discretion analysis, we must have something to

analyze. In the absence of any indication that the trial court considered the factors

set forth in R.C. 3109.051(D), a trial court abuses its discretion modifying a visitation

order. See In re I.R.Q., 8th Dist. Cuyahoga No. 105924, 2018-Ohio-292, ¶ 18.

                                        Conclusion

         ¶24   The record does not support the conclusion that the dispositional

hearing was conducted outside the deadline established in R.C. 2151.35(B)(1), and

the trial court did not abuse its discretion in its custody determinations in this case.

But the trial court failed to give any rationale for its decision to modify mother’s

visitation orders regarding the children. We therefore affirm the judgment in part,

reverse it in part, and remand the cause for further consideration of the visitation

issue.


                                                                    Judgment accordingly.

BERGERON and CROUSE, JJ., concur.

Please note:
         The court has recorded its own entry on the date of the release of this opinion.




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