[Cite as In re E.S.K.,
2019-Ohio-1588.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN THE MATTER OF: :
E.S.K. : CASE NO. CA2018-07-053
: OPINION
4/29/2019
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 2016 JC 04876
D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
Morris Law Office, LLC, Timothy J. Morris, 60 North Second Street, Batavia, Ohio 45103, for
appellant
R. Aaron Maus, 10 South Third Street, Batavia, Ohio 45103, for mother
Zachary Faris, 40 South Third Street, Batavia, Ohio 45103, guardian ad litem for mother
Barbara Haumesser, 2400 Clermont Center Drive, #204A, Batavia, Ohio 45103, guardian ad
litem for E.S.K.
HENDRICKSON, P.J.
{¶ 1} Appellant, the maternal grandmother ("Grandmother") of E.S.K., appeals a
decision of the Clermont County Court of Common Pleas, Juvenile Division, denying her
complaint and motion for legal custody and immediate placement of the child.
{¶ 2} E.S.K. was born on July 4, 2016, approximately six weeks premature, to
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Grandmother's daughter ("Mother"), who is cognitively delayed.1 Mother, who resided with
Grandmother, kept her pregnancy a secret until she went into labor. Mother had not
purchased anything in preparation for E.S.K.'s birth. Although the child was ready to be
discharged from the hospital on July 12, 2016, E.S.K. could not be released because Mother
did not have a crib, car seat, diapers, bottles, or formula and had no plan to obtain such
items. Grandmother also had not obtained the items, as she had not originally known about
the baby and had not had time to prepare for E.S.K.'s arrival.
{¶ 3} On July 13, 2016, in Clermont County Juvenile Court Case No. 2016 JG 23028,
Grandmother filed a complaint for custody of E.S.K. The following day, in Clermont County
Juvenile Court Case No. 2016 JC 04876, appellee, the Children's Services Division of the
Clermont County Department of Job and Family Services ("the agency"), filed a complaint
alleging that E.S.K. was a dependent child and asking for temporary custody. The juvenile
court granted temporary custody of E.S.K. to the agency, and E.S.K. was placed in foster
care. A guardian ad litem ("GAL") was appointed for E.S.K. Subsequently, on July 28, 2016,
following an admission by Mother, E.S.K. was found to be a dependent child. That same
date, Grandmother filed a motion for temporary custody or immediate placement of E.S.K. in
Case No. 2016 JC 04876. The juvenile court eventually consolidated the two cases.
{¶ 4} At a September 6, 2016 disposition hearing, E.S.K. was ordered to remain in
the temporary custody of the agency. At this time, a caseworker for the agency provided an
update of the agency's pursuit of a home study for Grandmother's residence. The
caseworker noted that the home study could not go forward until Mother moved out of
Grandmother's residence as E.S.K. could not be placed in a home with Mother. At an
October 13, 2016 review hearing, a caseworker for the agency noted that Grandmother's
1. The father of E.S.K. was originally unknown. Genetic testing of E.S.K. revealed that the child was born of an
incestuous relationship between Mother and her father.
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parents, E.S.K.'s great-grandparents ("Great-Grandparents"), had filed for a home study and
that Grandmother's home study had not yet been completed as Mother continued to reside in
the home with Grandmother.
{¶ 5} On February 17, 2017 and February 28, 2017, a magistrate held a hearing on
Grandmother's complaint for custody and motion for temporary custody or immediate
placement. At the hearing, Grandmother testified she was 60 years old and was employed
as a home health aide making $9.00 an hour. Grandmother had worked as a home health
aide for 20 years, and prior to that, she worked in a daycare for six years and as a nanny for
two-to-four years. Grandmother had been trained in CPR and first aid care. In order to
provide for E.S.K.'s needs, Grandmother testified she was willing to continue working and, if
necessary, obtain a second job.
{¶ 6} Grandmother stated she had been living with Great-Grandparents in their home
in Batavia, Ohio since November 2016. Prior to moving in with Great-Grandparents, for
nearly 15 years, Grandmother lived in a two-bedroom condominium in Cincinnati, Ohio that
she rented from Great-Grandparents. Grandmother paid Great-Grandparents $265 a month
for rent and utilities, and Grandmother permitted Mother to live in the condominium with her.
Grandmother testified that it was her understanding that the condominium would be willed to
her upon Great-Grandparents' deaths. Grandmother believes she will be able to afford the
utilities and taxes on the condominium when her parents pass.
{¶ 7} Grandmother explained she moved out of the condominium and in with Great-
Grandparents to satisfy the agency's requirement that she live separate from Mother.
However, Grandmother testified that the long-term plan was for Mother to find a place of her
own to reside and for Grandmother to move back into the condominium. Grandmother
admitted she spends one night a week with Mother at the condominium so that she and
Mother can attend church services together on Sundays.
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{¶ 8} With respect to E.S.K.'s birth, Grandmother testified she found out about
Mother's pregnancy on the same day E.S.K. was born. Mother had not told Grandmother
about the pregnancy and hid it behind baggy clothes. Because she had not known about the
pregnancy and was ill around the time of the child's birth, Grandmother had not been able to
prepare for E.S.K.'s arrival. However, Grandmother visited the child daily at the hospital.
After E.S.K. was released from the hospital and placed in the agency's temporary custody,
Grandmother had weekly visitation with the child. Grandmother had not missed a single visit
with E.S.K., and during her visits with the child, Grandmother would take pictures and videos
of E.S.K., help feed E.S.K., play with E.S.K, and kiss and hug E.S.K.
{¶ 9} Grandmother testified about issues the agency had with her during her visits
with E.S.K. As to the agency's complaint that she did not properly support E.S.K.'s head
during visits, Grandmother stated she knew how to properly hold an infant. Grandmother
testified about an instance where E.S.K. reared back while Grandmother was holding her.
Grandmother explained that she had to lift her arm up to catch E.S.K.'s head and neck. As
for the agency's concerns that Grandmother was too emotional, Grandmother admitted that
she sometimes became emotional during her visits with E.S.K. Grandmother testified the
visits were emotionally difficult as she was only permitted to see E.S.K. for a short period of
time each week and those visits were monitored and occurred at a visitation center.
Grandmother admitted to leaving the visitation room on one occasion but denied that she left
because she could not handle E.S.K.'s crying. Grandmother stated that another parent
visiting his or her children had started crying, which upset Grandmother.
{¶ 10} Grandmother testified she attended parenting classes with Mother and made
childcare arrangements for E.S.K. Grandmother explained that if she were granted custody,
Great-Grandparents, who were in their 80s, would watch E.S.K. while Grandmother worked.
If Great-Grandparents were unavailable to care for E.S.K., the child would be placed in a
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nearby daycare. Grandmother had contacted the daycare, and the daycare indicated there
was an opening to take E.S.K. According to Grandmother, the daycare would cost $125 per
week for part-time placement and Grandmother believed she could get vouchers to help pay
for the expense.
{¶ 11} Mother testified she is in favor of E.S.K. being placed in Grandmother's
custody. Mother explained she resided in the condominium owned by Great-Grandparents
but intended to find her own apartment. According to Mother, Grandmother spends the night
with her at the condominium about once per week.
{¶ 12} A daughter of one of Grandmother's clients testified as to Grandmother's
character and abilities as a caretaker. The witness noted that Grandmother had been
working as an aide caring for the witness' elderly, invalid father for the past two years. The
witness described Grandmother as a very compassionate, patient, and kind individual who
had a "wonderful work ethic" and "follow[ed] the rules of her company to the letter."
{¶ 13} Grandmother's brother testified that Grandmother was very kind and loving. He
stated that the condominium Grandmother rented from Great-Grandparents was spacious
and safe. It was Grandmother's brother's understanding that Grandmother lived at the
condominium with Mother, although Grandmother "occasionally" stayed with Great-
Grandparents at their residence.
{¶ 14} Great-Grandfather testified that he and his wife intended to will the
condominium to Grandmother but had not yet done so. He stated Grandmother was living
between Great-Grandparents' home and the condominium she rented, although
Grandmother was trying to spend most of her time at her parents' home. Great-Grandfather
discussed expenses related to the condominium Grandmother rented from him, noting that
there were utilities, monthly condo fees, and semi-annual real estate taxes of about $500.
{¶ 15} E.S.K.'s GAL also briefly testified at the hearing. She stated that while
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Grandmother clearly loved E.S.K., she was "not quite sure that [Grandmother] understands
everything that needs to be done with the child." The GAL had concerns that it would be
"very difficult financially" for Grandmother to care for E.S.K. Nonetheless, the GAL supported
Grandmother receiving temporary custody of E.S.K. to see how Grandmother would do
caring for E.S.K.
{¶ 16} A home-study accessor from the agency who conducted a home study of
Great-Grandparents' residence testified about concerns she had about Grandmother's
honesty and ability to directly communicate with the agency. The accessor explained that
although Grandmother had indicated she had been living at Great-Grandparents' residence
for a few weeks prior to the home study, evidence found in Great-Grandparents' home and
statements made by Mother to the agency appeared to contradict Grandmother's claim. The
accessor noticed Grandmother's belongings were being stored in Great-Grandparents'
laundry room while Great-Grandmother's things were in the storage areas in the room in
which Grandmother claimed to be staying. Furthermore, shortly after the accessor
completed her walk-through of Great-Grandparents' home, Mother made a statement that
she had only recently spent her first night alone in the condominium. Mother's first night
alone in the condominium occurred about a month after Grandmother had reported moving
out of the residence and into Great-Grandparents' home.
{¶ 17} The accessor also testified about concerns relating to Grandmother's finances
and Grandmother's understanding of costs associated with renting or owning a home. The
accessor explained that while discussing Grandmother's monthly budget with her,
Grandmother indicated she was unaware of any utility bills associated with the condominium.
The accessor later discovered that Great-Grandparents pay the utilities for the condominium.
Furthermore, with respect to Grandmother's monthly budget, the accessor noted that
Grandmother's current budget allowed for a $200 monthly surplus. However, the accessor
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felt that this budget was "incomplete" as Grandmother paid well under the fair market rate in
rent, did not pay her own utilities, and did not know how much tax and insurance would be
associated with the condominium if it was later willed to her by Great-Grandparents.
{¶ 18} The accessor also spoke about concerns the agency had with respect to
Grandmother's interactions with E.S.K. The accessor noted she had been present for three
or four of Grandmother's visits with E.S.K. and had observed that Grandmother failed to
support the child's head when handing E.S.K. to another person. She had also observed that
Grandmother could not tolerate E.S.K.'s crying. According to the accessor, "if the child starts
to cry and cries more than a few minutes [Grandmother] leaves the visit, she sits in the lobby
and sobs."
{¶ 19} A visitation supervisor for the agency also testified about Grandmother's
visitations with E.S.K. The supervisor stated that although Grandmother had not missed any
visitations with E.S.K., she often arrived late. The supervisor discussed numerous concerns
she had with Grandmother's ability to parent E.S.K. She testified Grandmother was the
"worst offender" when it came to properly supporting E.S.K.'s head. She also discussed
Grandmother's emotional state during the visits, commenting that Grandmother often cried
during visits and would leave the visitation room whenever E.S.K. would cry for any length of
time. The supervisor testified that during Grandmother's February 15, 2017 visit,
Grandmother left E.S.K. alone on a bench in the visiting room so that she could take
photographs. This was concerning to the supervisor as there was a possibility that E.S.K.
could have fallen off the bench and hurt herself.
{¶ 20} After considering the foregoing testimony and considering the best interest
factors set forth in R.C. 3109.04(F), the magistrate issued a decision denying Grandmother's
complaint for custody and motion for temporary custody or immediate placement.
Grandmother filed objections to the magistrate's decision and, at the objection hearing,
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sought to introduce video evidence of the February 15, 2017 visitation. Grandmother argued
the evidence was not available for review before or at the hearing before the magistrate as
the machine used to create and view the recording had been broken. However, subsequent
to the hearing, E.S.K.'s GAL had been able to obtain a copy of the recorded visitation and
had indicated the recording contradicted the visitation supervisor's testimony that
Grandmother left E.S.K. alone on a bench.
{¶ 21} The juvenile court granted Grandmother's request to take additional evidence,
finding that the recording was "newly discovered evidence that should be considered by the
Magistrate in reaching a decision on … Grandmother's motion for custody." The court
further found that a mental health evaluation of Grandmother would be beneficial in
determining Grandmother's ability to care for E.S.K., and the court directed Grandmother to
make arrangements with the agency for an evaluation. The court then remanded the matter
to the magistrate for a hearing on these issues.
{¶ 22} Grandmother and the agency agreed that Dr. Barbara Brewer, a licensed
psychologist, would complete Grandmother's mental health evaluation. Brewer met with
Grandmother on three occasions and submitted a report to the court. Brewer also testified at
the remand hearing, held on November 9, 2017. She explained that before evaluating
Grandmother, she obtained background information about the custody case from
Grandmother's attorney and the agency. Brewer also reviewed court documents, GAL
reports, the agency's home-study report of Great-Grandparents' residence, the agency's
activity reports from Grandmother's visitations with the child, and other "documents from [the]
agency voicing their concerns."
{¶ 23} Brewer's first meeting with Grandmother took place on August 22, 2017. At this
time, Grandmother took the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") test to
screen out psychopathology and personality traits. According to Brewer, when taking the
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MMPI-2 test, Grandmother attempted to present herself in a very positive light and did not
acknowledge her shortcomings. Brewer noted that this was not surprising, given that
Grandmother had a strong motivation to present herself in the best light possible as she
wanted to obtain custody of E.S.K.
{¶ 24} Brewer's second meeting with Grandmother occurred on August 29, 2017,
when Brewer spoke with Grandmother for approximately an hour. Brewer testified that
during this meeting, Grandmother got "very teary" when discussing the situation with E.S.K.
However, Brewer did not observe Grandmother sobbing or having emotional outbursts, as
described by the agency in its reports.
{¶ 25} During Brewer's third meeting with Grandmother, which occurred on September
9, 2017, Brewer tested Grandmother's cognitive functioning by administering a brief IQ test
and a mini mental status exam. With respect to the latter test, Brewer testified the exam
indicated Grandmother did not have any short-term memory problems. However, Brewer
was concerned when Grandmother stated she was unable to "subtract 7s from 100" as she
was "terrible at math." Brewer was also troubled by the fact that though Grandmother has a
bank account, she did not seem to understand how checks worked.
{¶ 26} As for the IQ test, Brewer stated she used the Wechsler Abbreviated Scale of
Intelligence ("WASI-II"). The test revealed an estimated IQ in the 80s, which caused Brewer
to opine that Grandmother has "mild difficulties." Brewer explained that while Grandmother
had "some deficits in a more higher level of conceptional thinking," her lower IQ would not
"interfere with sort of the normal activities of daily living." Nonetheless, Brewer had concerns
that Grandmother's inability to think on a more conceptual level may affect her ability to
understand proper child development. For example, Brewer noted that Grandmother had
made an unusual comment about E.S.K. being an early walker after Grandmother allegedly
saw two-month-old E.S.K. scoot in an incubator. According to Grandmother, E.S.K.'s
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scooting was an indication that E.S.K. would be an early walker.
{¶ 27} While the mild difficulties associated with Grandmother's lower IQ was a factor
Brewer took into consideration in forming her opinion as to whether Grandmother should
obtain custody of E.S.K., Brewer testified that she "gave more weight to [Grandmother's]
emotional volatility." Although she had not personally observed Grandmother act emotionally
inappropriately during the three interviews she had with Grandmother, Brewer had read the
agency's reports of Grandmother's emotional instability during visitations. Brewer noted
Grandmother had admitted she had a tendency to cry easily and had "gotten teary" and cried
a little in each of their three meetings. Grandmother also indicated she worked under a great
deal of stress and did not sleep well.
{¶ 28} As a result of her observations, Grandmother's admissions, and the agency's
reports, Brewer felt Grandmother overestimated what she could handle when it came to
caring for E.S.K. and "under estimate[ed] the stress and all that could happen here." Brewer
noted that while Grandmother raised Mother, she did so only with a significant amount of
financial and emotional support from Great-Grandparents, who are now in their 80s. Brewer
questioned whether Grandmother would be able to handle the stress of raising a teenage girl
when Grandmother was in her 70s. Brewer ultimately opined that E.S.K. should stay in the
care of her foster parents with arrangements made to allow Grandmother more contact with
the child. However, after Brewer admitted that her opinion was formed without having viewed
Grandmother's interactions with E.S.K. and that such observation would be helpful, the
magistrate agreed to continue the hearing to a later date to allow Brewer time to watch
videos of Grandmother's visitations with E.S.K. and to personally attend a visitation.
{¶ 29} Before adjourning for the day, the magistrate viewed the "newly discovered"
recording of the February 15, 2017 visitation. The recording contradicted the visitation
supervisor's testimony about Grandmother leaving E.S.K. alone on the bench. The
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magistrate, therefore, indicated he would "totally disregard the earlier testimony" of the
visitation supervisor.
{¶ 30} The hearing continued on January 30, 2018. At this time Brewer testified she
had attended a one-hour visitation between Grandmother and E.S.K. and had viewed
recordings of Grandmother's prior visitations with the child. Brewer testified Grandmother
was "perfectly appropriate" in the recorded visitations and in the visitation Brewer personally
observed. Brewer observed that E.S.K. was "quite comfortable" with Grandmother, indicating
when she wanted to be picked up, allowing Grandmother to change her diaper, and seeking
comfort from Grandmother after pinching her finger. Brewer testified she had "no concerns
whatsoever about … [Grandmother] taking care of [E.S.K.] on … regular, day-to-day kinds
of interactions."
{¶ 31} However, since the November 9, 2017 hearing date, Brewer had received new
information relating to medical issues E.S.K. had recently been diagnosed with and these
medical issues caused Brewer concern about whether Grandmother could properly care for
the child. Brewer spent an hour talking to E.S.K.'s foster mother and was advised by the
foster mother that E.S.K. had been diagnosed with a genetic disorder known as alpha-1
antitrypsin deficiency. Brewer testified that it was her understanding, from talking with
E.S.K.'s foster mother, that with this genetic disorder, "the liver creates a protein, goes into
the bloodstream, coats the lungs and intestinal tract. … [I]t can involve, over time, serious
liver or lung issues." Brewer had been informed by E.S.K.'s foster mother that E.S.K.'s
hemoglobin was low, her liver enzymes elevated, and that E.S.K. had started seeing an
endocrinologist for her health needs. E.S.K.'s foster mother had also reported to Brewer that
E.S.K. had severe issues involving gaining weight and growing and, at one point, was
"borderline failure to thrive." E.S.K. started seeing a dietician and foster mother began
monitoring E.S.K.'s vitamin absorption and food intake to ensure E.S.K. obtained the
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necessary calories and gained weight.
{¶ 32} In addition to the alpha-1 antitrypsin deficiency, Brewer was informed that
E.S.K. suffered from oral motor delay and a lazy eye that would likely require surgery. Given
E.S.K.'s medical problems and Grandmother's "mild intellectual difficulties," Brewer testified
that she had concerns about whether Grandmother would take E.S.K.'s medical issues
seriously and whether Grandmother would be "able to follow through and really fully
understand and be able to handle all of the many medical appointments."2
{¶ 33} Brewer admitted that her only information about E.S.K.'s medical issues and
treatment needs came from a conversation with E.S.K.'s foster mother. Brewer had not
looked over E.S.K.'s medical records. She also did not know what type of communication, if
any, had occurred between the agency and Grandmother regarding E.S.K.'s medical status.
{¶ 34} Brewer indicated that her concerns about Grandmother not being able to care
for E.S.K.'s medical needs were "more of a generalized concern" and she could not point to a
specific instance in Grandmother's life to support her concern. Nonetheless, Brewer was of
the opinion that Grandmother could not adequately care for E.S.K.'s medical needs as
Grandmother's "cognitive deficits, though mild [were] sufficient to raise concerns about her
ability to fully understand [E.S.K.'s] disorders and follow through appropriately."
{¶ 35} Following Brewer's testimony, Grandmother's counsel asked that the hearing be
continued so that additional evidence, and perhaps a second opinion, could be obtained
regarding Grandmother's ability to care for E.S.K. given E.S.K.'s recent diagnosis of alpha-1
antitrypsin deficiency. Grandmother's counsel stated:
I'd like to, you know, fully understand what the, what the
diagnosis is and what the ramifications of the disorder is today,
what the possibilities are at six months or in the future. And what
2. Brewer had given Grandmother an additional cognitive thinking test after the November 9, 2017 hearing date,
and this test indicated Grandmother's IQ was between 77 and 82. This test, therefore, was consistent with the
results of the WASI-II test.
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that, what that entails. [Brewer's] made a, she's made a
tremendous leap from, "I have general concerns" to
"[Grandmother] won't be able to follow through on instructions." I
don't know. I have not talked to the doctor. I have not been
given authorization to get the medical records. And [Brewer's]
analysis that [Grandmother] wouldn’t be able to follow through on
whatever the disorder is, I don't know what that is and I would
like to submit additional evidence to figure out what, what this
child's disorder entails.
{¶ 36} The magistrate denied Grandmother's counsel's request to continue the
hearing, stating that his instructions on remand were limited to viewing the February 15, 2017
recording and taking evidence regarding the results of Grandmother's mental health
evaluation. Thereafter, the magistrate rendered a decision in which it once again found that
custody and placement of E.S.K. in Grandmother's care was not in E.S.K.'s best interest. In
so holding, the magistrate relied on E.S.K.'s recent medical diagnosis, noting that
Grandmother "does not appear to be currently capable of handling the immense day to day
responsibilities of being the primary caretaker for the young child in the situation which
confronts the Court. Particularly a child with a genetic medical condition." The magistrate
therefore denied Grandmother's complaint for custody and motion for temporary custody or
immediate placement and continued temporary custody of E.S.K. with the agency.
{¶ 37} Grandmother filed objections to the magistrate's decision, essentially arguing
that the evidence did not support the magistrate's decision to deny her complaint and motion
for custody. Grandmother argued that Brewer speculated she could not handle the day-to-
day frustrations of caring for E.S.K. and that there was no "specific evidence" that she was
not able to fully understand or handle E.S.K.'s medical issues or appointments. Following a
hearing on Grandmother's objections, the juvenile court issued a decision in which it
overruled Grandmother's objections and adopted the magistrate's decision. In doing so, the
juvenile court discussed E.S.K.'s medical issues and noted that it was "concerned about the
[G]randmother having the foresight to make sure the child has the benefit of preventative
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medicine, medical care and the proper diet." The court also stated it was "convinced that the
[G]randmother may never be able to see beyond the child's immediate needs, much less
plan for those future needs through proper nutrition, diagnosis, and preventive treatment."
{¶ 38} Grandmother timely appealed the juvenile court's decision denying her
complaint and motion for legal custody and immediate placement of the child, raising the
following as her only assignment of error:
{¶ 39} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING
APPELLANT'S REQUEST AND COMPLAINT FOR CUS[T]ODY AND PLACEMENT FOR
E.S.K.
{¶ 40} In her sole assignment of error, Grandmother argues that the juvenile court
erred when it denied her request to be named E.S.K.'s legal custodian as the evidence
demonstrated it was in E.S.K.'s best interest for Grandmother to be granted custody.
Grandmother contends that in denying her complaint and motion for custody, the juvenile
court relied on false and misleading testimony from the agency and from Brewer. Finally,
Grandmother contends the juvenile court erred when it relied on hearsay testimony regarding
E.S.K.'s medical issues as "[t]here was no concrete, reliable evidence to support that [E.S.K.]
has a medical issue, the severity of that issue, the overall health of the child, and the specific
future needs of the child."
{¶ 41} A reviewing court will not reverse a juvenile court's custody decision absent an
abuse of discretion. In re A.C., 12th Dist. Clermont No. CA2006-12-105, 2007-Ohio-3350, ¶
15. An abuse of discretion constitutes more than an error of law or judgment; it requires a
finding that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219 (1983). "The discretion granted to a juvenile court in
custody matters 'should be accorded the utmost respect, given the nature of the proceeding
and the impact the court's determination will have on the lives of the parties concerned.'" In
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re A.C. at ¶ 15, quoting In re A.W.-G., 12th Dist. Butler No. CA2003-04-099, 2004-Ohio-2298,
¶ 6.
{¶ 42} "It is well-established that relatives seeking custody of a child are not afforded
the same presumptive rights that a natural parent receives." In re A.B., 12th Dist. Clermont
No. CA2013-03-024, 2013-Ohio-3405, ¶ 34. A juvenile court is not required to find by clear
and convincing evidence that a relative is an unsuitable placement option; rather, when a
grandparent seeks legal custody, the inquiry focuses on what is in the best interest of the
child. Id. at ¶ 34. "[W]hile 'blood relationship' and 'family unity' are factors to consider when
determining a child's best interest, neither one is controlling." In re S.K.G., 12th Dist.
Clermont No. CA2008-11-105,
2009-Ohio-4673, ¶ 12. Instead, the factors that a court
should consider when determining the best interest of a child are codified in R.C.
3109.04(F)(1) and include, but are not limited to: (1) the wishes of the child's parents; (2) the
child's wishes, as expressed to the court in chambers; (3) the child's interactions and
interrelationships with parents, siblings, and other persons who may significantly affect the
child's best interests; (4) the child's adjustment to home, school, and community; (5) the
mental and physical health of all persons involved in the situation; (6) the parent more likely
to honor and facilitate visitation; (7) whether one parent has denied the other of parenting
time; (8) whether child support orders have been followed; and (9) whether either parent has
established or is planning to establish a residence outside of Ohio. R.C. 3109.04(F)(1)(a)-(j)
{¶ 43} In the present case, the magistrate and juvenile court both referenced and
discussed the best interest factors set forth in R.C 3109.04(F)(1) in denying Grandmother's
complaint and motion for custody of E.S.K. In doing so, both the magistrate and juvenile
court discussed E.S.K.'s recent diagnosis of alpha-1 antitrypsin deficiency and concerns
about Grandmother's ability to care for E.S.K. given the medical issues associated with the
genetic disorder. The evidence related to E.S.K.'s medical issues was developed on January
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30, 2018, at the last hearing date on Grandmother's complaint and motion, and the evidence
was derived from testimony by Brewer – who had obtained the information after speaking
with E.S.K.'s foster mother. Grandmother did not object to Brewer's testimony regarding
E.S.K.'s medical issues at the hearing or when filing her objections to the magistrate's
decision. Instead, Grandmother argues for the first time on appeal that Brewer's testimony
regarding E.S.K.'s medical issues was based on impermissible hearsay evidence.
{¶ 44} Pursuant to Civ.R. 53(D)(3)(b)(ii), "[a]n objection to a magistrate's decision shall
be specific and state with particularity all grounds for objection." Where a party has failed to
object to a factual finding or legal conclusion in accordance with Civ.R. 53(D)(3)(b), "[e]xcept
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 a finding of fact
or conclusion of law[.]" Civ.R. 53(D)(3)(b)(iv).
{¶ 45} The Ohio Supreme Court has articulated the civil plain error standard as
follows:
reviewing courts must proceed with the utmost caution, limiting
the doctrine strictly to those extremely rare cases where
exceptional circumstances require its application to prevent a
manifest miscarriage of justice, and where the error complained
of, if left uncorrected, would have a material adverse effect on
the character of, and public confidence in, judicial proceedings.
Goldfuss v. Davidson, 79 Ohio St. 3d 116, 121 (1997). Thus, "for a court to find plain error in
a civil case, an appellant must establish (1) a deviation from a legal rule, (2) that the error
was obvious, and (3) that the error affected the basic fairness, integrity, or public reputation
of the judicial process and therefore challenged the legitimacy of the underlying judicial
process." State v. Morgan,
153 Ohio St.3d 196,
2017-Ohio-7565, ¶ 40, citing Goldfuss at the
syllabus.
{¶ 46} In the present case, there was a violation of the hearsay rule. Pursuant to
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Evid.R. 801(C), hearsay is "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Generally, hearsay testimony is inadmissible unless the testimony falls within one of the
recognized exceptions. Evid.R. 802; A N Bros. Corp v. Total Quality, LLC, 12th Dist.
Clermont No. CA2015-02-021, 2016-Ohio-549, ¶ 75. Here, the medical testimony
concerning E.S.K. resulted from double hearsay. Brewer testified about information she
obtained from E.S.K.'s foster mother, who had obtained the information from E.S.K.'s
medical providers. Brewer conceded she had no independent knowledge of E.S.K.'s medical
condition and that she had not reviewed any medical records pertaining to E.S.K.
Furthermore, none of E.S.K.'s medical records were introduced as an exhibit at trial.3
{¶ 47} Brewer's hearsay testimony is particularly concerning in the present case as
she was the only witness to testify about the medical issues E.S.K. faced and her testimony
came on the final day of the hearing. Brewer indicated that E.S.K.'s diagnosis was recent
and that she was "not sure how the communication has worked from Children Services
through the [G]randmother, [M]other and [G]reat-[G]randparents so that they fully know what
the medical status is." Grandmother's counsel appeared surprised by Brewer's testimony
about E.S.K.'s recent medical diagnosis. Counsel asked for a continuance of the hearing so
that he could talk to E.S.K.'s doctors and obtain authorization to view her medical records.
Counsel indicated that time was needed to "fully understand what the … diagnosis is and
what the ramifications of the disorder [are] today [and] what the possibilities are at six months
3. On February 5, 2018, after the magistrate released its decision following the juvenile court's remand, E.S.K.'s
GAL filed a "supplemental report" in which she attached a report of genetic testing completed on E.S.K. In the
cover letter attached to the report, the GAL stated the results of the genetic testing indicated that E.S.K. "may
have numerous health and medical issues in the future, which are not now known." This report was provided to
the juvenile court at the hearing on Grandmother's objections. However, the juvenile court indicated it did not
consider the results of this genetic testing in ruling on Grandmother's objections. The court stated, "There was
some concern expressed that the needs of the child may be even greater than the testimony outlined at trial.
The Court did not take these factors into consideration in rendering this decision."
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or in the future."
{¶ 48} Even though Grandmother was not given prior notice of E.S.K.'s medical
diagnosis and the difficulties associated with the diagnosis, the magistrate denied counsel's
request for a continuance. By allowing Brewer's hearsay medical testimony and denying
Grandmother the opportunity to assemble evidence or witnesses to rebut, explain, or
otherwise challenge the medical testimony offered at the January 30, 2018 hearing, the
juvenile court committed plain error. The basic fairness of the proceeding was affected when
Grandmother was denied the opportunity to present evidence important to her request for
custody, namely her ability to care for E.S.K. given the recent medical diagnosis of alpha-1
antitrypsin deficiency.
{¶ 49} Accordingly, Grandmother's sole assignment of error is sustained to the extent
that the juvenile court committed reversible error in allowing and relying on hearsay testimony
of E.S.K.'s recent medical diagnosis. The juvenile court's denial of Grandmother's complaint
for custody and motion for temporary custody or immediate placement is hereby reversed,
and the matter is remanded for the juvenile court to hold a hearing on the issue of E.S.K.'s
medical diagnosis and any issues arising therefrom relative to Grandmother's request for
custody. At the hearing, Grandmother shall be permitted to introduce relevant evidence
regarding the child's medical issues and her ability to care for the child given those medical
issues. The remaining issues presented by Grandmother in her sole assignment of error are
hereby rendered moot.
{¶ 50} Judgment reversed and remanded.
RINGLAND and M. POWELL, JJ., concur.
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