[Cite as In re S.H., 2012-Ohio-4064.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 97992, 97993, and 97994

IN RE: S.H., ET AL. 

Minor Children 

[APPEAL BY MOTHER, M.H.]

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case No. AD 10907412 

BEFORE: Rocco, J., Boyle, P.J., and Kilbane, J. 

RELEASED AND JOURNALIZED: September 6, 2012 

[Cite as In re S.H., 2012-Ohio-4064.]

-iATTORNEY FOR APPELLANT 

Jonathan N. Garver 

4403 St. Clair Avenue 

The Brownhoist Buiding 

Cleveland, OH 44103-1125 

ATTORNEYS FOR APPELLEE

Yvonne C. Billingsley 

Chief Prosecuting Attorney 

Cuyahoga County Department of Children 

and Family Services 

3955 Euclid Avenue - Room 305E 

Cleveland, OH 44115 

BY: Gregory S. Millas 

Assistant Prosecuting Attorney 

8111 Quincy Avenue - Room 444 

Cleveland, OH 44104 
[Cite as In re S.H., 2012-Ohio-4064.]

KENNETH A. ROCCO, J.: 

{¶1} Appellant-mother M.H. appeals from three juvenile division orders 

that have been consolidated for appeal; each granted permanent custody of 

her children to the Cuyahoga County Department of Children and Family 

Services (the “agency”). As required by App.R. 11.1(D), this court has 

expedited the hearing and disposition of these appeals. 

{¶2} M.H. presents four assignments of error. She asserts that the 

juvenile court permitted the introduction of improper evidence at the 

dispositional hearing, i.e., hearsay, expert opinion by a non-expert witness, 

and unsworn testimony. She further asserts that the awards of permanent 

custody of her children to the agency were against the “manifest weight” of 

the evidence. 

{¶3} Upon a review of the record, this court cannot find any reversible 

error occurred in the proceedings below. Moreover, because the juvenile 

court’s decisions are supported by the “manifest weight” of clear and 

convincing evidence, they are affirmed. 

{¶4} With respect to M.H.’s two elder daughters, S.H.1 and A.Y.,2 the 

agency’s complaints were filed in April 2010. The agency sought temporary 

 1D.O.B. November 10, 2009, App. No. 97992. 

2D.O.B. January 17, 2006, App. No. 97993. 
custody of the girls, alleging they were dependent based upon M.H.’s “anger 

management” and psychological problems, because M.H. was noncompliant 

with her prescribed psychiatric medication. In June 2010, following an 

adjudicatory hearing, the juvenile court determined the girls were dependent. 

{¶5} The juvenile court conducted the dispositional hearing on July 15, 

2010. Mildred Worthy, the social worker assigned to the case, testified that, 

although M.H. had been mainly compliant with the case plan, she had 

discontinued her medication. Worthy stated that M.H. “functioned much 

better” as a parent while on her medication; without it M.H.’s behavior was 

argumentative, combative, loud, and unfocused on the children. 

{¶6} M.H. also testified at the hearing. During cross-examination, 

M.H. stated that she learned in the parenting class “how to discipline 

[children] the right way, not to smack them.” She further testified that she 

took a psychological examination, and “was told that [she] was fine, that [she] 

did not need [further] recommendations” for treatment of mental illness. 

{¶7} After she was reminded otherwise, M.H. indicated that she was 

seeing a psychologist, but could not pay for the prescribed psychiatric 

medication. She also indicated, on the other hand, that she took the 

medication but that she was not disposed to continue to do so while she was 

pregnant. 
[Cite as In re S.H., 2012-Ohio-4064.]

{¶8} The juvenile court eventually decided to place the girls into the 

agency’s temporary custody. At the conclusion of the hearing, the court 

observed on the record that M.H. was “contentious with everybody.” The 

court further commented that, “For a mother who claims she has done her 

anger management and that she is taking her medication as prescribed and 

she’s doing her counseling, she’s still doing an awful lot of arguing.” The 

court stated, “She argues with me, she argues with the father, she’s arguing 

with everybody.” 

{¶9} M.H. gave birth to her third daughter, C.L.,3 in September 2010. 

The agency filed a motion for emergency custody of the child because M.H. 

had “failed to benefit from the parenting classes” she attended, and because 

she was still in treatment for her anger problems. Worthy testified that 

M.H. was creating “big scenes” during her visitation with the older girls. 

The juvenile court granted the agency’s motion. 

{¶10} In December 2010, the agency sought temporary custody of C.L. 

At the hearing on the matter, Worthy informed the court that the infant had 

“special needs”; M.H. admitted she could not yet address the child’s needs.4 

After adjudicating C.L. to be a dependent child, the juvenile court granted 

 3D.O.B. September 25, 2010, App. No. 97994. 

4C.L. eventually received a diagnosis of microcephaly, i.e., her head was not 

growing in pace with her body. 
temporary custody of her to the agency. The transcript reflects that at that 

point, an exchange took place between the court and M.H. that reads in part 

as follows: 

THE COURT: * * * Mom? [M.H.], I need you to take a deep 

breath and listen to what I’m saying. 

[M.H.]: No. I did all that work for nothing. I knew this 

was going to happen again. I knew it. Everybody in this room 

lied on me except for my lawyer. Everybody lied on me. 

* * * 

THE COURT: Mom. I’m not going to have an argument 

with you. 

[M.H.]: And plus, you lied to me too. 

* * * 

THE COURT: * * * Why are you so concerned [about the 

agency’s temporary custody]? * * * 

[M.H.]: Because I want to know why I can’t have my 

daughter. 

THE COURT: Because your psychiatrist has indicated 

there may be a need to modify your medication. 

[M.H.]: You can even ask my mother. I’ve never been on 

medication even as a child. 

THE COURT: I’m not here about that. Your psychiatrist 

says * * * 

[M.H.]: My psychiatrist is wrong. * * * 
{¶11} In April 2011, the agency filed motions with respect to all three of 

the children, seeking an award of permanent custody. The juvenile court 

conducted the hearing in January 2012. When the hearing concluded, the 

court granted the agency’s motions in all three cases. 

{¶12} M.H. appeals from the juvenile court’s decisions and presents four 

assignments of error. Because the first three assignments of error concern evidentiary 

issues, they will be addressed together, as follows. 

“I. The trial court committed prejudicial error and denied Appellant her 

right of confrontation and due process of law by admitting rank hearsay 

testimony in violation of Evid.R. 802. 

“II. The trial court committed plain error by allowing the guardian ad 

litem to use leading questions to elicit opinion evidence from the [agency] case 

worker that was well beyond the case worker’s alleged area of expertise. 

“III. The trial court committed reversible error by admitting unsworn 

testimony of the guardian ad litem for the child[ren].”

{¶13} M.H. challenges the juvenile court’s decisions to admit certain evidence at the 

dispositional hearing. A trial court has broad discretion in admitting or excluding 

evidence, however, and absent an abuse of discretion and a showing of material prejudice, 

a trial court’s ruling on the admissibility of evidence will be upheld. In re J.T., 8th Dist. 
6

Nos. 93240 and 93241, 2009-Ohio-6224, ¶ 67, citing State v. Martin, 19 Ohio St.3d 122, 

129, 483 N.E.2d 1157 (1985). 

{¶14} In addition, a juvenile court may conduct a dispositional hearing 

in an informal manner. Fleming v. Cuyahoga Cty. Dept. of Children & Fam. 

Servs., 8th Dist. No. 63911, 1993 Ohio App. LEXIS 3648 (July 23, 1993), 

citing R.C. 2151.353(A) and Juv.R. 27. By law, the juvenile court is 

permitted to “admit any evidence that is material and relevant, including, but 

not limited to, hearsay, opinion, and documentary evidence.” R.C. 

2151.35(B)(2)(b); Juv.R. 34(B)(2). Nevertheless, except as prescribed by 

Juv.R. 34(B) and R.C. 2151.35(B)(2)(b), the rules of evidence apply to juvenile 

proceedings. Fleming. 

{¶15} First, M.H. argues the juvenile court violated her due process 

rights by permitting Worthy to testify in some detail about the reports she 

received about M.H.’s behavior from the other service providers involved in 

the case plan. The children’s GAL asked the questions; M.H. asserts the 

testimony was “rank hearsay.” 

{¶16} Despite the provisions of Juv.R. 34(B)(2) and R.C. 

2151.35(B)(2)(b), M.H. apparently seeks to have this court adopt the position 

of other appellate districts that have held that hearsay is inadmissible in 

dispositional hearings at which the issue of parental rights is determined. 
See, e.g., In re Vickers Children, 14 Ohio App.3d 201, 206, 470 N.E.2d 438 

(12th Dist.1983); In re Lucas, 29 Ohio App.3d 165, 504 N.E.2d 472 (3d 

Dist.1985). This court recently impliedly adopted this position, but without 

mentioning either Fleming, R.C. 2151.35(B)(2)(b), or Juv.R. 34(B). See In re 

J.T., 8th Dist. Nos. 93240 and 93241, 2009-Ohio-6224, ¶ 70. 

{¶17} In that same decision, however, this court noted that the judge is 

presumed to be able to disregard improper testimony. Id. Therefore, In re 

J.T. set forth the additional proposition of law adopted by the other appellate 

districts, viz., the admission of hearsay in termination of parental rights 

cases, even if error, is not prejudicial unless it is shown that such evidence 

was relied on by the judge in making his decision. Id., citing In re Lucas and 

In re Vickers Children. 

{¶18} Regardless, in this case, the juvenile court had already obtained 

information about M.H.’s participation in the services offered under the case 

plan during Worthy’s direct examination. In re Z.T., 8th Dist. No. 88009, 

2007-Ohio-827, ¶ 20. Because Worthy oversaw the case plan, the GAL 

wanted to elicit further detail; this does not establish that either that the 

juvenile court erred in allowing Worthy to answer or that the juvenile court 

relied upon improper evidence. Id., ¶ 72. 
8

{¶19} M.H. next argues the juvenile court acted improperly in 

permitting the children’s GAL to ask leading questions to elicit “opinion 

testimony” from Worthy that Worthy was unqualified to provide. Third, 

M.H. argues that the juvenile court acted improperly in permitting the GAL 

to “testify” without having taken an oath. M.H. asserts the juvenile court 

committed plain error in these two respects. 

{¶20} In explaining the meaning of plain error in the civil context, the 

Ohio Supreme Court has stated that reviewing courts must proceed with the 

utmost caution. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 

1099 (1997). The doctrine is limited 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 materially adverse effect on the character of, and public 

confidence in, judicial proceedings. Id.

{¶21} A review of the challenged questions by the GAL of Worthy 

demonstrates she was asking Worthy about her opinion as the case worker, 

not as a medical professional. Worthy simply indicated M.H. was much 

easier to work with when she was taking her psychiatric medications; M.H.’s 

behavior clearly changed when she was noncompliant. Because Worthy’s 

opinions were “rationally based on [her] perception” and were “helpful to a 
9

clear understanding of [her] testimony” and “the determination of a fact in 

issue,” they were admissible pursuant to Evid.R. 701. 

{¶22} M.H. also complains that the juvenile court permitted the GAL to 

“testify” without having first administered an oath. In Fleming, 8th Dist. 

No. 63911, 1993 Ohio App. LEXIS 3648 (July 23, 1993), this court stated that 

Evid.R. 603 “contemplates the use of sworn testimony if any testimony is 

taken,” even at dispositional hearings. See also In re Ramsey, 102 Ohio 

App.3d 168, 656 N.E.2d 1311 (5th Dist.1995). 

{¶23} However, a review of the comments at the conclusion of the 

hearing indicates the GAL was not “testifying,” but, instead, was orally 

supplementing her final report. This is permitted pursuant to Sup.R. 

48(F)(1)(d). 

{¶24} For the foregoing reasons, M.H.’s first, second, and third 

assignments of error are overruled. 

{¶25} In her fourth assignment of error, M.H. states: 

“IV. The termination of Appellant’s parental rights and the 

award of permanent custody to [the agency] was against the manifest 

weight of the evidence and constitutes a denial of due process of 

law.”
{¶26} In her fourth assignment of error, M.H. argues the juvenile 

court’s decisions to award custody of her daughters to the agency are 

unsupported by the record. This court disagrees. 

{¶27} In order to terminate parental rights and grant permanent 

custody to a county agency, the record must demonstrate by clear and 

convincing evidence the following: 1) the existence of one of the conditions set 

forth in R.C. 2151.414(B)(1)(a) through (d); and, 2) permanent custody is in 

the best interest of the child. The court must consider the five factors set 

forth in R.C. 2151.414(D) in making the latter determination. 

{¶28} The relevant factors include the following: 1) the interaction and 

interrelationship of the child with others; 2) the wishes of the child; 3) the 

custodial history of the child; 4) the child’s need for a legally secure placement 

and whether such a placement can be achieved without permanent custody; 

and, 5) whether any of the factors in divisions (E)(7) to (11) apply. “Clear 

and convincing evidence” is that quantum of evidence that instills in the trier 

of fact a firm belief or conviction as to the allegations sought to be 

established. In re: Y.V., 8th Dist. No. 96061, 2011-Ohio-2409, ¶ 13, citing 

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). 

{¶29} The “best interest determination” focuses on the child, not the 

parent. In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th 
11

Dist.1994). The discretion that the juvenile court enjoys in determining 

whether an order of permanent custody is in the best interest of a child 

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. Id., at 316. 

{¶30} In this case, the juvenile court determined, pursuant to R.C. 

2151.414(B), that the children had “been in the temporary custody of a public 

children services agency * * * for twelve or more months of a consecutive 

twenty-two month period.” M.H. cannot dispute that this requirement was 

met. 

{¶31} The juvenile court also found that “despite reasonable case 

planning and diligent efforts by the agency to assist” M.H. in remedying the 

problems that initially caused the children to be placed outside the home, 

M.H. had “failed continuously and repeatedly to substantially remedy the 

conditions that caused the children to be placed outside the home.” R.C. 

2151.414(B)(1). 

{¶32} The evidence presented showed that, even by the date of the 

dispositional hearing, M.H. continued to demonstrate a contentious and 

entitled attitude, an unwillingness to accept the direction of others, an 

incapacity to stay focused on the children’s welfare, and, in spite of 
psychiatric medication, an inability to overcome her basic personality 

disorder. “R.C. 2151.414(E) requires the trial court to find that the child 

cannot be placed with either of his or her parents within a reasonable time * * 

* once the court has determined * * * that one or more of the * * * factors 

exist.” In re William S., 75 Ohio St.3d 95, 99, 1996-Ohio-182, 661 N.E.2d 738 

(1996); see also In re T.G., 8th Dist. No. 90392, 2008-Ohio-2034, ¶ 42. 

{¶33} Regarding the best interest of the children, the agency presented 

clear and convincing evidence that the children were together in the same 

foster home in which they originally had been placed, that they were happy, 

that their foster parents provided for all of their physical, emotional, and 

medical needs, that they had a strong bond with the foster family, and that 

the foster parents indicated a willingness to adopt all three. 

{¶34} On the other hand, when in M.H.’s presence, the girls felt 

compelled to compete for her attention. M.H.’s eldest girl in particular 

demonstrated anxiety, and, in response to M.H.’s fickle attitude, 

automatically assumed a maternal responsibility toward her siblings. For 

these reasons, and because the children needed a legally secure placement, 

the children’s GAL recommended permanent custody as being in their best 

interest. 
{¶35} Because the “manifest weight” of clear and convincing evidence 

supports the juvenile court’s decisions in these cases, M.H.’s fourth 

assignment of error also is overruled. 

{¶36} The juvenile court’s orders are affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

______________________________________ 

KENNETH A. ROCCO, JUDGE 

MARY J. BOYLE, P.J., and 

MARY EILEEN KILBANE, J., CONCUR