In Re Walker , 2005 Ohio 3773 ( 2005 )

{¶ 49} The majority's decision is premised on three misconceptions: 1) the lower court misinterpreted this court's intention on remand from the prior appeal, 2) the lower court failed to correct the error by allowing hearsay to remain part of the record, and 3) the lower court unfairly denied appellants the opportunity to introduce evidence. I respectfully dissent.

{¶ 50} The subject of the present proceedings is a five-year-old girl, Hope Walker. Hope suffers from several chronic medical conditions, including hypothyroid and a drooping eyelid. Hope was taken into the protective custody of Ashtabula County Children Services Board ("Ashtabula Children Services") when she was 11 days old. The present case began three days later when Ashtabula Children Services filed a dependency complaint regarding Hope. Since that time, Hope has been in the custody of a foster family that desires to adopt her.

{¶ 51} Hope's mother, Tanna Howser, was 15 when she bore Hope and has been diagnosed as moderately mentally retarded. Hope was conceived when Tanna's parents, Thomas and Gaylene Howser, gave Johnny Walker, a 27-year-old living in their house, permission to have sex with their 15-year-old daughter. In 2002, at the time of the first hearings on Ashtabula Children Services' motion for permanent custody, Tanna had been removed from her parents' custody and placed in the legal custody of Kim Johnson.

{¶ 52} At the time of these first hearings, Tanna was unable to properly parent Hope. By her own testimony, Tanna was still in school, did not work, did not drive, was unsure what she would do after graduation, and was unaware of any of Hope's special medical needs.²⁴

{¶ 53} On appeal from the first judgment, this court reversed the lower court's judgment terminating Tanna's parental rights because the court had admitted hearsay statements that were contained in the report of Dr. Patricia Gillette. Dr. Gillette performed a parenting evaluation of Tanna at the request of Ashtabula Children Services.

{¶ 54} On remand, the trial court conducted a supplementary hearing to establish a foundation for the admission of Dr. Gillette's testimony. The court also heard testimony from Dr. Robert Kurtz, whose evaluation of Tanna Dr. Gillette consulted in forming her opinions.

{¶ 55} The majority states that the lower court erred by failing to hold new hearings on Ashtabula Children Services' motion for permanent custody, although this court's previous judgment entry did not indicate that new hearings should be held. For reasons explained more fully below, the lower court's actions on remand did not unfairly prejudice Gaylene's or Tanna's rights. Regardless of whether the lower court properly interpreted this court's intentions, today's decision penalizes the parties, particularly Hope.

{¶ 56} The majority also contends that a reversal is necessary because Dr. Gillette's written report remains part of the evidentiary record. Whether Dr. Gillette's report remains part of the record is irrelevant, provided that the lower court did not rely on that report in rendering its decision. The lower court heard extensive testimony from Dr. Gillette, and its conclusions are fully supported by Dr. Gillette's testimony. When a matter is tried before the court, there is a presumption that the trial judge "considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary." State v. White (1968), 15 Ohio St. 2d 146, 151, 44 O.O.2d 132, 239 N.E.2d 65; Columbus v. Guthmann (1963),175 Ohio St. 282, 25 O.O.2d 115, 194 N.E.2d 143, paragraph three of the syllabus. The majority cites no specific instance where the magistrate's or trial court's findings relied on hearsay statements contained in the written report or otherwise inadmissible evidence.

{¶ 57} Nor does Dr. Gillette's reliance on Dr. Kurtz's testimony render Dr. Gillette's testimony inadmissible. According to the Rules of Evidence, Dr. Gillette is entitled to rely on "facts or data * * * admitted in evidence at the hearing." Evid.R. 703. Therefore, Dr. Kurtz's live testimony at the supplementary hearing cured the supposed lack of foundation in Dr. Gillette's testimony.

{¶ 58} Since the lower court's decision is supported by admissible evidence in the record, the presence of allegedly inadmissible evidence does not require reversal.

{¶ 59} Finally, the majority argues that the lower court permitted Ashtabula Children Services to introduce "new evidence * * * not offered at the initial hearing" but denied this right to Gaylene and Tanna. This is not accurate. At the June 2004 hearing, the lower court explained that it was hearing evidence that "should have been or could have been" admitted at the prior hearings. The court continued, "The remand was specifically to, for lack of a better term, repair the hearsay, at least that's how I interpreted the Eleventh District Court of Appeals." The opportunity to introduce evidence relative to Dr. Gillette's prior testimony was available to all parties. The court asked Gaylene's counsel whether he had "evidence that you should have presented at that [prior] permanent custody hearing" or whether he was "referring to evidence [since] the last permanent custody hearing." Gaylene's counsel replied that he had both, but did not proffer or describe the evidence to which he was referring. The court told counsel, "[u]nless you can show me some evidence that you should have presented back at the last evidentiary [hearing], I'm not doing new evidence," i.e. evidence that came into existence after the 2002 hearings.

{¶ 60} Whether the trial court misinterpreted this court's intentions is unimportant because the court did not compromise Gaylene's or Tanna's rights on remand. All parties involved had the opportunity to present evidence that "should have been or could have been" admitted at the prior hearing. The testimony of Drs. Gillette and Kurtz did not introduce "new evidence" arising after the 2002 custody hearings. Neither Gaylene nor Tanna proffered such evidence, but rather sought to introduce evidence of developments occurring after the initial hearings.

{¶ 61} The majority declares that Gaylene's counsel's interpretation of this court's decision was the correct one and remands this cause for a de novo hearing on Ashtabula Children Services' motion for permanent custody. In effect, the majority's decision nullifies the past five years of judicial time and resources spent on this case.

{¶ 62} The majority's decision also keeps Hope in the legal custody of the government agency in whose care she has remained since the 11th day of her life. The ultimate issue in the present case is not, as the majority presupposes, Tanna's ability to parent Hope, but rather Hope Walker's best interests. R.C.2151.414(B)(1); In re Cunningham (1979), 59 Ohio St. 2d 100,106, 13 O.O.3d 78, 391 N.E.2d 1034, quoting In re R.J.C. (Fla.App. 1974), 300 So. 2d 54, 58 ("`it is plain that the natural rights of a parent are not absolute, but are always subject to the ultimate welfare of the child'"); Winfield v. Winfield, 11th Dist. No. 2002-L-010, 2003-Ohio-6771, 2003 WL 22952773, at ¶ 21 ("the best interests and welfare of the child is a primary consideration in all children cases").²⁵ As the magistrate's October 2004 decision observes: "Hope needs a permanent, stable home. We are not here to determine what is in the best interest of Tanna Howser. We are here to determine the best interest of Hope Walker. Hope does not need a legal custodian. She needs a parent or parents to care for her as their own." Because of the majority's decision today, which necessarily results in further hearings and appeals, it will be years before Hope has such parent or parents.

{¶ 63} For the foregoing reasons, I respectfully dissent.

²⁴ Hope could have been returned to Tanna's custody only with the assurance that Johnson would assume responsibility for parenting Hope. Johnson gave such assurance and sought custody of Hope herself. However, Hope had bonded with her foster family, while Johnson had seen Hope only on a single occasion, when Hope was one year old.

²⁵ The Ohio Supreme Court in Cunningham further explained: "[T]he fundamental or primary inquiry at the dispositional phase of these juvenile proceedings is not whether the parents of a previously adjudicated `dependent' child are either fit or unfit. The mere fact that a natural parent is fit, though it is certainly one factor that may enter into judicial consideration, does not automatically entitle the natural parent to custody of his child since the best interests and welfare of that child are of paramount importance. Willette v. Bannister (Ala.Civ.App. 1977), 351 So. 2d 605, 607. Parental interests must be subordinated to the child's interest in determining an appropriate disposition of any petition to terminate parental rights. In re Perkins (Ind.App. 1976) [170 Ind.App. 171],352 N.E.2d 502, 509." 59 Ohio St.2d at 106, 13 O.O.3d 78,391 N.E.2d 1034. (Emphasis sic.)