In re M.M.-P. , 2018 Ohio 1117 ( 2018 )


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  • [Cite as In re M.M.-P., 2018-Ohio-1117.]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    BUTLER COUNTY
    IN THE MATTER OF:                                :
    M.M.-P.                          :     CASE NO. CA2017-08-116
    :            OPINION
    3/26/2018
    :
    :
    APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
    JUVENILE DIVISION
    Case No. JN2017-0149
    Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
    Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler
    County Children Services
    Jonathan W. Ford, Legal Aid Society of Southwest Ohio, 10 Journal Square, 3rd Floor,
    Hamilton, Ohio 45011, guardian ad litem
    D.M., 1007 South River Street, Franklin, Ohio 45005, appellant, pro se
    PIPER, J.
    {¶ 1} Appellant, D.M. ("Father"), appeals a decision of the Butler County Court of
    Common Pleas, Juvenile Division, in which it took judicial notice of a prior adjudication
    decision in order to adjudicate M.M.-P. a dependent child.
    {¶ 2} A children's services agency filed a complaint alleging that M.M.-P. was
    Butler CA2017-08-116
    dependent. The juvenile court held a shelter care hearing, during which the agency informed
    the court that the child had previously been adjudicated dependent based on the same
    allegations contained in its current complaint. The agency explained to the court that it had
    filed a complaint in the past alleging that the child was dependent. A hearing was held on the
    prior complaint, and the juvenile court adjudicated the child dependent. However, that
    adjudication order was dismissed without prejudice because of a procedural issue.
    {¶ 3} The agency moved the juvenile court to take judicial notice of the previous
    adjudication result, and argued that the dependency issue had already been litigated. Father
    objected to the juvenile court taking judicial notice, and asked the court to provide an
    opportunity to litigate the agency's current complaint.
    {¶ 4} The juvenile court decided to take judicial notice of the previous dependency
    adjudication, finding it unnecessary to re-litigate the same issues that had already been
    raised in the agency's first complaint. The matter then proceeded to disposition, and the
    court ordered supervised visitation and adoption of case plan services.
    {¶ 5} Father now appeals, pro se, the juvenile court's decision, raising the following
    assignments of error. As the assignments of error are interrelated, we will address them
    together. Within the two assignments of error, Father alleges that the juvenile court erred by
    taking judicial notice of the prior dependency adjudication.1
    {¶ 6} Pursuant to R.C. 2151.35(A)(1), a juvenile court's adjudication of a child as
    abused, neglected, or dependent must be supported by clear and convincing evidence. See
    also Juv.R. 29(E)(4). An appellate court's review of a juvenile court's decision finding clear
    and convincing evidence is limited to whether there is sufficient, credible evidence in the
    1. The agency concedes the error and recommends reversal so that a hearing can occur on remand. Father,
    conversely, asked this court in his reply brief to reverse the juvenile court's decision and dismiss the complaint.
    On remand, the juvenile court will determine the proper procedure moving forward after permitting the parties to
    address any procedural arguments, as it would not be prudent for this court to rule on issues that were first
    raised in the appellant's reply brief. State ex rel. Colvin v. Brunner, 
    120 Ohio St. 3d 110
    , 2008-Ohio-5041.
    -2-
    Butler CA2017-08-116
    record supporting the juvenile court's decision. In re L.J., 12th Dist. Clermont No. CA2007-
    07-080, 2007-Ohio-5498, ¶ 12.
    {¶ 7} While evidence may have existed to support the previous adjudication decision,
    "once a juvenile court dismisses a complaint without prejudice, it is as though the action had
    never been filed." In re K.H., 8th Dist. Cuyahoga No. 92618, 2009-Ohio-5237, ¶ 13.
    {¶ 8} The juvenile court's dismissal of the first adjudication finding without prejudice
    had the effect of placing the parties in the same position as if the first adjudication hearing
    never occurred. As such, there was no evidence, clear and convincing or otherwise, to
    support the juvenile court's current adjudication. The juvenile court accepted no evidence
    before taking judicial notice of the prior adjudication, and there is no supporting evidence for
    adjudication absent a hearing to permit the parties to submit evidence.
    {¶ 9} Father's two assignments of error are sustained, and the matter is reversed and
    remanded for further proceedings.
    {¶ 10} Judgment reversed and remanded.
    HENDRICKSON, P.J., and M. POWELL, J., concur.
    -3-
    

Document Info

Docket Number: CA2017-08-116

Citation Numbers: 2018 Ohio 1117

Judges: Piper

Filed Date: 3/26/2018

Precedential Status: Precedential

Modified Date: 3/26/2018