In re B.B. , 2012 Ohio 2695 ( 2012 )

[Cite as In re B.B., 2012-Ohio-2695.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
IN THE MATTER OF:
CASE NO. 4-10-17
B. B. nka D. G. C., III,
A DEPENDENT CHILD,
OPINION
[JAMIE W. - APPELLANT].
Appeal from Defiance County Common Pleas Court
Juvenile Division
Trial Court No. 29941
Judgment Affirmed
Date of Decision: June 18, 2012
APPEARANCES:
Timothy C. Holtsberry for Appellant
Russell R. Herman for Appellee
Case No. 4-10-17
SHAW, J.
{¶1} Respondent-appellant, Jamie W. (“Jamie”), appeals the November 4,
2010 judgment of the Defiance County Court of Common Pleas, Juvenile
Division, adjudicating her child dependent and granting temporary custody of her
child to the Defiance County Department of Job and Family Services (the
“Agency”).
{¶2} On February 3, 2010, Jamie gave birth to B.B. nka D.G.C. III
(“D.G.C.”) via a scheduled cesarean section at the Defiance County Regional
Medical Center. The parties stipulated that D.G.C. was born healthy and drug-
free. D.G.C. is Jaime’s fifth child.
{¶3} Upon receiving confirmation of D.G.C.’s birth, the Agency sought
emergency temporary custody of D.G.C. The Agency’s request for emergency
custody was predicated on a phone call it received the day before from D.G.C.’s
putative father, Daniel C. (“Daniel”). Daniel informed the Agency that Jamie was
scheduled to give birth to his child the next day. Daniel explained that, a few days
prior, Jamie abruptly left his house after an argument and that he was unaware of
her current location. Daniel expressed concern to the Agency about Jamie’s
ability to parent and properly care for his child. Specifically, Daniel stated that
Jamie had three children previously removed from her custody by Children
Services Agencies due to neglect and that, while she was residing with him, he
-2-
Case No. 4-10-17
observed her neglect her dog by leaving it locked in the closet when she was tired
of attending to it. He also alleged that Jamie was illegally selling her prescription
drugs and that she planned to leave the state and move to the southern part of the
country.
{¶4} The Agency reviewed its files on Jamie and confirmed that it had a
prior history with Jamie resulting in the termination of her parental rights to her
first and second child. The Agency also entered Daniel’s address into its database,
which revealed that a child had been recently removed from that residence due to
neglect concerns and the poor condition of the environment. In particular, the
house was extremely dirty and the child had contracted scabies. About an hour
after the Agency received the call from Daniel, it received another call from the
Williams County Department of Job and Family Services explaining that it had
also removed Jamie’s fourth child from her custody and that it had just received a
phone call expressing similar concerns about Jamie’s unborn child.
{¶5} On February 3, 2010, the trial court issued an ex-parte order granting
the Agency emergency temporary custody of D.G.C. based on the Agency’s
representations that D.G.C. was in immediate need of protection and services for
the preservation of his health and safety, and that there had been insufficient time
to locate and verify possible alternative placements.
-3-
Case No. 4-10-17
{¶6} The next day, on February 4, 2010, the trial court held a hearing
regarding D.G.C.’s emergency placement with the Agency. Present at the hearing
were Daniel and Sandra Ransey, a representative of the Agency. Notably, Jamie
was not present at this hearing because she was still hospitalized at the time.
Based on the testimony presented, the trial court ordered the Agency to continue to
have emergency temporary custody of D.G.C. until further ordered by the court.
{¶7} On March 19, 2010, Daniel was legally determined to be D.G.C.’s
biological father.
{¶8} On March 22, 2010, the Agency filed a complaint alleging D.G.C. to
be dependent because his “condition or environment is such as to warrant the
State, in the interests of the child, in assuming his guardianship.” The complaint
specified that Jamie has had two previous children removed and placed in the
permanent custody of the Agency and that she has had one other child removed by
the Williams County Department of Job and Family Services. In addition, the
complaint indicated that Daniel currently lived with his ex-wife along with a
registered sex offender, from whom Daniel received his sole source of income as
the result being this individual’s “caretaker.” The complaint described Daniel’s
home as housing many animals and having a foul order. Based on these facts, the
Agency alleged D.G.C. to be a dependent child pursuant to R.C. 2151.04(C) and
requested temporary custody of D.G.C.
-4-
Case No. 4-10-17
{¶9} On April 13, 2010, the trial court ordered D.G.C. to remain in the
Agency’s temporary custody noting Jamie’s own recommendation that D.G.C.
remain in the Agency’s temporary custody due to the Agency’s concern with the
condition of Daniel’s home. The trial court also appointed a Guardian Ad-Litem
(“GAL”) to the case.
{¶10} On May 25, 2010, Jamie filed a motion to dismiss alleging Defiance
County to be the improper venue for the case because she was a resident of
Paulding County at the time the complaint was filed. Jaime also disputed that any
alleged abuse, neglect or dependency occurred in Defiance County since D.G.C.
was removed from her care immediately after being born. The trial court
subsequently held a hearing on Jamie’s motion to dismiss, overruled the motion on
the record, and journalized its decision in its July 26, 2010 Judgment Entry.
{¶11} On August 31, 2010, Jamie filed a motion in limine seeking to
exclude from evidence any reference to the dependency cases involving her
previous children on the grounds that such evidence is irrelevant because the
present case only involves allegations concerning the adequacy of D.G.C.’s
condition and environment at the time of the complaint. Jamie also argued that
evidence of her children’s prior dependencies violated Evid. R. 404(B) as
improper character evidence and that R.C. 3107.15 precluded any evidence of
these children and their adjudications as dependent from being presented in this
-5-
Case No. 4-10-17
case because the children have since been adopted and no longer have a legal
relationship to Jamie or D.G.C.
{¶12} On September 2, 2010, the case proceeded to adjudication. At the
beginning of the proceedings, the trial court considered and overruled Jamie’s
motion in limine. Jamie made an ongoing objection on the record to the Agency
presenting evidence of the prior dependencies of Jamie’s children.
{¶13} At the adjudication proceedings, the Agency presented the testimony
of the caseworkers at the Agency who handled D.G.C.’s case. The Agency also
offered the testimony of law enforcement members who had contact with Daniel
and Jamie during the time alleged in the complaint. Daniel and Jamie each
testified on their own behalves. At the close of the evidence, the trial court made
its findings of fact and conclusions of law on the record. Based on the evidence
presented, the trial court determined that the Agency had met its burden in proving
by clear and convincing evidence that D.G.C. is a dependent child and ordered
him to remain in the Agency’s temporary custody pending disposition of the case.
{¶14} On September 21, 2010, the GAL filed her report on this case
recommending that it is in D.G.C.’s best interest to remain in the Agency’s
temporary custody to allow Daniel and Jamie time to improve their current
situations in order to be able to provide D.G.C. with an appropriate environment
where he can begin to thrive.
-6-
Case No. 4-10-17
{¶15} In the interim, the parties worked on developing a case plan with the
primary goal being the reunification of D.G.C. with Daniel and Jamie. On
November 1, 2010, the parties appeared before trial court for the disposition of the
case. On the record, the parties stipulated to and agreed that it is in D.G.C.’s best
interest to be placed in the temporary custody of the Agency. On November 4,
2010, the trial court found that it is D.G.C.’s best interest to be placed in the
Agency’s temporary custody for the period of one year or until February 3, 2011.
{¶16} Jamie now appeals, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN HEARING THIS CASE IN
DEFIANCE COUNTY AS PAULDING COUNTY WAS THE
PROPER VENUE.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN DENYING APPELLANT’S
DIRECTED VERDICT MOTION.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT’S FINDING OF DEPENDENCY WAS
NOT SUPPORTED BY SUBSTANTIAL CREDIBLE
EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED IN ABUSING ITS
DISCRETION IN ALLOWING ADMISSION OF AND
RELYING ON IRRELEVANT EVIDENCE OF PRIOR
-7-
Case No. 4-10-17
DEPENDENCIES OF CHILDREN ADOPTED AWAY FROM
THE APPELLANT IN CONTRADICTION OF OHIO CASE
LAW, EVIDENCE RULE 404 AND R.C. 3107.15.
ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRED IN ABUSING ITS
DISCRETION IN ALLOWING ADMISSION OF AND
RELYING ON EVIDENCE OF THE CONDITION AND
ENVIRONMENT OF [DANIEL C.’S] HOME.
The First Assignment of Error
{¶17} In her first assignment of error, Jamie argues that the proper venue
for this case was Paulding County, not Defiance County, because she was a
resident of Paulding County at the time of D.G.C.’s birth and at the time the
complaint was filed.
{¶18} Section 2151.27 of the Revised Code and Juvenile Rule 10(A) permit
a complaint alleging that a child is dependent to be filed either where the child
resides or where the alleged dependency occurred. In overruling Jamie’s motion
to dismiss, the trial court concluded the following.
In the case at hand, the Complaint brought by the Agency
alleges the child to be a dependent child in Defiance County.
Whether the Agency can prove the allegation is to be determined
at trial in this matter. However, because Juvenile Rule 10(A)
and Ohio Revised Code Section 2151.27(A) allow for a complaint
to be filed either in the county of the child’s parent’s residence
or in the county where the dependency occurred, Jamie’s motion
to dismiss based solely upon the issue of the mother’s residence
is without merit.
-8-
Case No. 4-10-17
(JE, July 26, 2010).
{¶19} Moreover, the evidence in the record does not conclusively establish
that Jamie was a resident of Paulding County at the time of D.G.C.’s birth.
Rather, according to her own testimony, Jamie lived in Defiance County at
Daniel’s residence for nine months prior to D.G.C.’s birth. Jamie abruptly left
Daniel’s home after an argument three days before giving birth. Jamie reported to
the Defiance County Regional Medical Center to give birth to D.G.C. via a
scheduled caesarian section. Jamie testified that in the three day interim she lived
with her ex-husband and his family in Paulding County and continued to so at the
time the complaint was filed. However, Jamie admitted this was considered to be
a temporary living arrangement. It was not until June of 2010, months after
D.G.C.’s birth and the filing of the complaint, that Jamie secured her own
apartment in Paulding County.
{¶20} In addition, Juv.R. 11(A) provides, “[i]f the child resides in a county
of this state and the proceeding is commenced in a court of another county, that
court, on its own motion or a motion of a party, may transfer the proceeding to the
county of the child’s residence upon the filing of the complaint or after the
adjudicatory or dispositional hearing for such further proceeding as required.”
(Emphasis Added.) See also R.C. 2151.271. Moreover, pursuant to Juv.R. 11(B)
-9-
Case No. 4-10-17
a transfer of the case is required only if there is already a case pending in the
county of the child’s residence.
{¶21} In sum, the decision whether to grant a motion for a change of venue
pursuant to Juv.R. 11(A) and R.C. 2151.271 is left to the sound discretion of the
trial court. In re Meyer (1994), 98 Ohio App.3d 189, 648 N.E.2d 52. The record
is clear that no case was pending in Paulding County at the time the complaint in
this case was filed in Defiance County. Thus, the trial court was under no
obligation to transfer the case to Paulding County. Moreover, there is nothing in
the record to suggest that the trial court’s decision to overrule Jamie’s motion to
dismiss constituted an abuse of discretion. Accordingly, Jamie’s first assignment
of error is overruled.
The Second and Third Assignments of Error
{¶22} In her second and third assignments of error, Jamie essentially argues
that the Agency failed to present sufficient evidence to prove that D.G.C. is a
dependent child. Jamie also argues that the trial court’s adjudication of D.G.C. as
dependent was not supported by clear and convincing evidence and was against
the manifest weight of the evidence.
{¶23} At the outset, we note that Jamie and Daniel stipulated to and agreed
on the record that it is in D.G.C.’s best interest to be placed in the temporary
-10-
Case No. 4-10-17
custody of the Agency. Nevertheless, Jamie now claims on appeal that the trial
court erred in adjudicating D.G.C. as a dependent child.
{¶24} Prior to assessing the adequacy of the evidence before the trial court
to support its finding of D.G.C. as a dependent child, we would like to address
Jamie’s contention regarding the nature of the complaint which underlies these
assignments of error. Throughout the proceedings, Jamie essentially argues that
because the Agency’s complaint only makes reference to R.C. 2151.04(C), which
focuses on the child’s condition and environment, any evidence of prior
dependencies of Jamie’s other children is irrelevant to D.G.C.’s case and therefore
should be precluded from the trial court’s consideration.
{¶25} The section of the Revised Code under which the Agency brought its
dependency action, R.C. 2151.04(C), states that a “dependent child” means any
child as one “[w]hose condition or environment is such as to warrant the state, in
the interests of the child, in assuming the child’s guardianship.”
{¶26} However, R.C. 2151.04(D) also defines a dependent child when both
of the following apply:
(1) The child is residing in a household in which a parent,
guardian, custodian, or other member of the household
committed an act that was the basis for an adjudication that a
sibling of the child or any other child who resides in the
household is an abused, neglected, or dependent child.
-11-
Case No. 4-10-17
(2) Because of the circumstances surrounding the abuse,
neglect, or dependency of the sibling or other child and the other
conditions in the household of the child, the child is in danger of
being abused or neglected by that parent, guardian, custodian,
or member of the household.
{¶27} Jamie appears to argue that these two definitions of dependency are
mutually exclusive and cannot be considered in conjunction with one another. We
disagree. Just because the Agency’s complaint did not specifically make reference
to R.C. 2151.04(D), which expressly considers the parent’s conduct regarding
prior dependencies, does not mean that the conduct of a parent is wholly irrelevant
to a determination of any alleged dependent child complaint under R.C.
2151.04(C). Indeed, a court may consider a parent’s conduct insofar as it forms
part of the child’s environment. In re Alexander C., 164 Ohio App.3d 540, 843
N.E.2d 211, 2005-Ohio-6134, ¶ 51, citing In re Burrell (1979), 58 Ohio St.2d 37,
39, 388 N.E.2d 738. Moreover, a parent’s conduct is significant if it has an
adverse impact on the child sufficient to warrant state intervention. In re Ohm, 4th
Dist. No. 05CA1, 2005-Ohio-3500, ¶ 21, citing In re Burrell, 58 Ohio St.2d at 39,
388 N.E.2d 738.
{¶28} Furthermore, even though the child’s present “condition or
environment” is the focus of a dependency determination, “the law does not
require the court to experiment with the child’s welfare to see if * * * [the child]
will suffer great detriment or harm.” In re Burchfield (1988), 51 Ohio App.3d
-12-
Case No. 4-10-17
148, 156, 555 N.E.2d 325. “[T]he child does not first have to be put into a
particular environment before a court can determine that * * * [the] environment is
unhealthy or unsafe.” Id., citing In re Campbell (1983), 13 Ohio App.3d at 36.
See In re East (1972), 32 Ohio Misc. 65, 288 N.E.2d 343 (stating that “a child
should not have to endure the inevitable to its great detriment and harm in order to
give the parent, guardian, or custodian an opportunity to prove her suitability”).
{¶29} In the instant case, it is undisputed that Jamie’s first, second, and
fourth child were adjudicated dependent and permanently removed from her
custody due to her inability to provide them proper parental care.1 In its
complaint, the Agency made specific reference to these prior dependencies in
support of its allegation that D.G.C. is a dependent child under R.C. 2151.04(C).
Moreover, the fact that three of Jamie’s children have been the subjects of
dependency actions is a significant factor that should be considered in this
dependency action, especially because it places D.G.C. at a substantial risk to
endure the same conditions and environment which ultimately warranted the
removal of Jamie’s three other children.
{¶30} Accordingly, we conclude that it was within the trial court’s
discretion to consider evidence of the prior adjudications of Jamie’s three children
1
Jamie’s third child was born as issue of a previous marriage. Jamie testified that she and the child’s father
have a custody arrangement. There is no record of a Children’s Services Agency’s involvement with this
child. However, Jamie gave birth to her fourth child shortly after the marriage ended. This child was
removed by the Agency in Williams County and eventually adopted by another family two years later.
-13-
Case No. 4-10-17
as dependent in making its determination as to whether the current status of
D.G.C.’s condition and environment as identified in the complaint rendered him a
dependent child under R.C. 2151.04(C).
{¶31} Next, we turn our attention to Jamie’s challenge of the adequacy of
the evidence relied upon by the trial court in reaching its determination that
D.G.C. is a dependent child. Our review of this matter begins by noting that “[i]t
is well recognized that the right to raise a child is an ‘essential’ and ‘basic civil
right.’ ” In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680, citing In re
Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169. Thus, “a parent’s right
to the custody of his or her child has been deemed ‘paramount’ ” when the parent
is a suitable person. Id. Because a parent has a fundamental liberty interest in the
custody of his or her child, this important legal right is “protected by law and,
thus, comes within the purview of a ‘substantial right[.]’ ” In re Murray at 157,
556 N.E.2d 1169. Based upon these principles, the Ohio Supreme Court has
determined that a parent “must be afforded every procedural and substantive
protection the law allows.” In re Hayes at 48, 679 N.E.2d 680. Further, we are
guided by R.C. 2151.01(A), which sets out the purposes of R.C. Chapter 2151
relevant here:
To provide for the care, protection, and mental and physical
development of children subject to Chapter 2151. of the Revised
Code, whenever possible, in a family environment, separating
-14-
Case No. 4-10-17
the child from the child’s parents only when necessary for the
child’s welfare or in the interests of public safety[.]
See In re Riddle, 79 Ohio St.3d 259, 262, 680 N.E.2d 1227, 1997-Ohio-391.
Thus, it is within these constructs that we now examine the findings and
determinations made in the lower court.
{¶32} A finding of dependency must be supported by clear and convincing
evidence. R.C. 2151.35. “Clear and convincing evidence is that measure or
degree of proof which will produce in the mind of the trier of facts a firm belief or
conviction as to the allegations sought to be established.” Cross v. Ledford
(1954), 161 Ohio St. 469, 477, 120 N.E.2d 118. Further, “[i]t is intermediate,
being more than a mere preponderance, but not to the extent of such certainty as is
required beyond a reasonable doubt as in criminal cases. It does not mean clear
and unequivocal.” Id., citing Merrick v. Ditzler (1915), 91 Ohio St. 256, 110 N.E.
493. In Cross, the Ohio Supreme Court further held:
Where the degree of proof required to sustain an issue must be
clear and convincing, a reviewing court will examine the record
to determine whether the trier of facts had sufficient evidence
before it to satisfy the requisite degree of proof. * * * The degree
of proof required is determined by the impression which the
testimony of the witnesses makes upon the trier of facts, and the
character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the
disposition to tell the truth or otherwise, and the probability or
improbability of the statements made, are all tests of testimonial
value. Where the evidence is in conflict, the trier of facts may
-15-
Case No. 4-10-17
determine what should be accepted as the truth and what should
be rejected as false.
Cross, 161 Ohio St. at 477-478, 120 N.E.2d 118 (internal citations omitted).
{¶33} Once the clear and convincing standard has been met to the
satisfaction of the trial court, “the reviewing court must examine the record and
determine if the trier of fact had sufficient evidence before it to satisfy this burden
of proof.” In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481 N.E.2d
613, citing Cross, supra. “The determination of the [trial] court should not be
overturned unless it is unsupported by clear and convincing evidence.” In re
Adoption of Holcomb, supra.
{¶34} The trial court made the following findings in determining that
D.G.C. is a dependent child:
[T]he Court finds that on or about the time alleged in the
complaint the child’s mother, [Jamie] did not have a permanent
residence and in fact had moved in with her ex-husband in
Paulding County on a temporary basis out of necessity; that
[Jamie] had three (3) previous children removed from her
custody by both the Defiance County Department of Job and
Family Services and Williams County Department of Job and
Family Services prior to the birth of this child and she had been
living in [Daniel’s] home with no stable income and with a sex
offender residing in the home. The Court further finds that the
father, [Daniel], on or about the time of the Complaint, had yet
not [sic] been legally determined to be the biological father of the
child, and even though his home was relatively clean, it was
potentially unsafe, had unsanitary odors, he had no regular
income of his own and, he was housing a sex offender.
-16-
Case No. 4-10-17
(JE, Sept. 13, 2010).
{¶35} Our review of the record reveals that each of the findings made by
the trial court was supported by clear and convincing evidence. There was
evidence that Jaime was unable to maintain a stable home at the time specified in
the complaint. Just three days before D.G.C. was born, Jamie abruptly left
Daniel’s home, where she had been living for several months. Jamie testified that
she subsequently moved-in with her ex-husband, which she admitted to be another
temporary housing situation. Moreover, Jamie’s testimony revealed that she had
an extensive history of an inability to maintain stable housing and simply floated
between the residences of friends’ and those of her ex-husband’s family members.
Jamie’s testimony was corroborated with the testimony of Michelle Reinhart, the
Agency caseworker assigned to D.G.C.’s case and the caseworker who was also
involved in the dependency cases of Jamie’s first and second child. Ms. Reinhart
noted that during her previous involvement with her, Jamie struggled to provide
basic life necessities for herself and was unable to maintain a stable residence and
instead moved frequently from place to place. Moreover, Ms. Reinhart recalled
that during the rare occurrence in which Jamie was able to maintain a home, the
living conditions were unsanitary and the utilities were frequently disconnected
due to nonpayment.
-17-
Case No. 4-10-17
{¶36} The record also contains clear and convincing evidence that Jamie’s
first two children were adjudicated dependent and that her parental rights were
permanently terminated with respect to those children. Ms. Reinhart testified that
the Agency initially came into contact with Jamie because her first child was
diagnosed with failure to thrive syndrome due to malnourishment and improper
parental care. Jamie’s first child was later adjudicated dependent, and eventually
Jamie’s parental rights were terminated with respect to that child because she
failed to comply with the case plan or to otherwise rectify the problems which lead
to the child’s removal by the Agency. In particular, Ms. Reinhart testified that
based on her experience with Jamie, she believed Jamie was unable to obtain the
proper parenting skills to provide for a child’s fundamental needs because Jamie
lacked the basic nurturing skills to be able to parent.
{¶37} The record reveals that while the proceedings regarding her first
child were pending final disposition, Jamie became pregnant and gave birth to a
second child. The Agency became involved with her second child because the
conditions which warranted the Agency’s removal of Jamie’s first child were still
present and Jamie had made no effort to rectify them. Eventually, Jamie’s
parental rights with regard to her second child were terminated with permanent
custody being granted to the Agency. Ms. Reinhart also testified that, two years
after the final disposition terminating Jamie’s parental rights with respect to her
-18-
Case No. 4-10-17
second child, she had received information from Williams County concerning a
third child of Jamie’s, who was removed from Jamie’s care by the Agency in that
county because of similar issues.
{¶38} The complaints alleging dependency, the adjudications, dispositions,
motions for permanent custody and the final dispositions granting the Agency
permanent custody of Jamie’s first and second child were admitted as exhibits at
the adjudication hearing concerning D.G.C.
{¶39} Sandra Ransey, the Agency caseworker initially assigned to D.G.C.’s
case, and Clifton Vandemark, a Sergeant with the Defiance County Sheriff’s
Office, together visited Daniel’s home on February 3, 2010, the timeframe
specified in the complaint. Both testified that there were several mobile homes
scattered on the property, which were not all habitable. Ms. Ransey recalled that
one of the structures looked “badly mangled,” and Sgt. Vandemark described the
premises as a “junkyard.” Both noticed several dog pens on the property and
remembered seeing eight to ten dogs, which contributed to a noticeably foul odor
permeating the air of premises. However, Ms. Reinhart and Sgt. Vandemark
recalled that the interior of the main mobile home where Daniel lived was
relatively clean. Daniel showed them a bedroom appropriately furnished with
baby furniture for D.G.C.
-19-
Case No. 4-10-17
{¶40} Upon speaking with Daniel inside the home, Ms. Ransey and Sgt.
Vandemark learned that Daniel lived there with his ex-wife, Tina, an individual
named C.L. and his girlfriend. Daniel explained that he was the caretaker for C.L.
and as a result was also the payee on C.L.’s monthly SSI check to manage and pay
C.L.’s bills. Daniel admitted that at the time, this was his only source of income.
Sgt. Vandemark recalled expressing concern to Daniel about the wood burning
stove in the home which did not have any guards to prevent potential injury. Sgt.
Vandemark also recognized C.L. because he had previously been involved with
the prosecution of C.L. for sex offenses. Sgt. Vandemark explained his concerned
to Daniel about having a newborn baby live in a home with a sex offender. The
Agency also presented the complaints and adjudications of C.L. for sexual
offenses, one of which was for the offense of rape. Daniel admitted that C.L. lived
at the home during the timeframe referenced in the complaint, but explained that
he did not know C.L. was a sex offender.
{¶41} Daniel and Jamie both testified that Jamie lived at Daniel’s residence
from May 2009 to January 31, 2010. The home was owned by Daniel’s ex-wife,
who moved back onto the premises in November of 2009 when she and Daniel
reconciled. Daniel testified that tensions between his ex-wife and Jamie escalated,
and that on January 31, 2010, Jamie was abruptly asked to leave the residence.
-20-
Case No. 4-10-17
Jamie testified that other than receiving a limited amount of monthly VA benefits,
she did not have any other source of income.
{¶42} After reviewing the evidence before the trial court, we find that the
Agency presented sufficient evidence to support the allegation of dependency
alleged in the complaint. We also find that the trial court’s decision finding
D.G.C. to be a dependent child was supported by clear and convincing evidence
and as such was not against the manifest weight of the evidence. Moreover, as
previously noted, Jamie stipulated and agreed to the ultimate disposition that it is
D.G.C.’s best interest to be placed in the temporary custody of the Agency. In
addition, this case is still in the temporary custody phase with the fundamental
goal of the case plan being to reunify Jamie and D.G.C. Accordingly, Jamie
currently has the opportunity to demonstrate that she now possesses the ability to
properly provide care for D.G.C. For all these reasons, we overrule Jamie’s
second and third assignments of error.
Fourth Assignment of Error
{¶43} In her fourth assignment of error, Jamie challenges the trial court’s
decision to allow the Agency to present evidence of the prior dependencies of
Jamie’s children. Specifically, Jamie argues that this evidence is irrelevant to
-21-
Case No. 4-10-17
D.G.C.’s case because it is improper character evidence, and it relates to children
who have since been adopted and are no longer legally related to Jamie or D.G.C.
{¶44} Given our discussion in the previous assignments of error, we have
already determined that the prior dependencies of Jamie’s children are relevant to
the consideration of D.G.C. as a dependent child under R.C. 2151.04(C).
Moreover, R.C. 2151.04(D) expressly allows the trial court to consider whether
the siblings of the child in question have been previously adjudicated dependent
because of the parent’s prior conduct. Therefore, we are not persuaded by Jamie’s
argument that this evidence constitutes improper character evidence.
{¶45} Jamie also cites as support for her position R.C. 3107.15, which
provides that a final adoption decree serves to “terminate all legal relationships
between the adopted person and the adopted person’s relatives, including the
adopted person’s biological or other legal parents.” This statute generally applies
to instruments and contracts, and essentially states that once a child is adopted, he
or she is no longer considered a relative of his or her biological family for
inheritance purposes. Jamie provides us with no relevant authority to support her
argument that the adoption of these children now precludes the trial court from
considering evidence of their prior adjudications as dependent in a current
dependency action regarding the same parent and another sibling. Again, the
statute governing dependency clearly permits a trial court to consider such
-22-
Case No. 4-10-17
evidence for the primary reason to prevent a child from being placed in the same
circumstances which previously warranted the removal of the child’s siblings
based on the parent’s prior conduct.
{¶46} Accordingly, we conclude that the trial court did not err in overruling
Jamie’s motion in limine to exclude evidence of the prior dependencies of Jamie’s
children on these grounds. Jamie’s fourth assignment of error is overruled.
The Fifth Assignment of Error
{¶47} In her fifth assignment of error, Jamie claims that the trial court erred
when it allowed the Agency to introduce evidence of the condition and
environment of Daniel’s home. Specifically, Jamie argues that because Daniel
had not been legally determined to be D.G.C.’s father at the time specified in the
complaint any evidence regarding his home should be deemed irrelevant.
{¶48} On March 19, 2010, Daniel was legally determined to be D.G.C.’s
father. On March 22, 2010, the Agency filed its complaint alleging D.G.C. to be a
dependent child. Daniel, as the father of D.G.C. was represented by counsel
throughout the dependency action. Moreover, Daniel established in the beginning
of these proceedings that he is willing to do what is necessary to gain custody of
D.G.C.
{¶49} It is also clear from the record that Daniel was considered a possible
placement for D.G.C. in lieu of temporary custody being awarded to the Agency.
-23-
Case No. 4-10-17
Consequently, it was imperative for the trial court to consider evidence of the
condition of Daniel’s home in order to assess whether Daniel was a viable option
for D.G.C.’s placement. Therefore, we find Jamie’s argument that the trial court
should not have permitted the Agency to introduce evidence of the condition of
Daniel’s home is without merit. Jamie’s fifth assignment of error is overruled.
{¶50} For all these reasons, the judgment of the Defiance County Court of
Common Pleas is affirmed.
Judgment Affirmed
PRESTON, J., concurs.
/jlr
WILLAMOWSKI, J., dissents.
{¶51} I dissent from the majority opinion and would reverse the judgment
in this case based upon the third assignment of error. In the third assignment of
error, Jamie alleges that the trial court’s finding of dependency was against the
manifest weight of the evidence.
Before a juvenile court may enter a finding of abuse or
dependency, the state has the burden of establishing by clear
and convincing evidence that a child is abused or [dependent]. *
* * “Clear and convincing evidence is that measure or degree of
proof which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required
beyond a reasonable doubt, in criminal cases, and which will
-24-
Case No. 4-10-17
produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Cross v.
Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph
three of the syllabus.
In re. C.B., 12th Dist. Nos. CA2008-01-0002, CA2008-01-003, 2008-Ohio-5543,
¶10. “A dependency adjudication focuses not on the fault of the parents, but on
‘the child’s environment, including the condition of the home itself and the
availability of medical care and other necessities.’” In re V.R., 9th Dist. No.
23527, 2008-Ohio-1457, ¶17 (quoting In re T.W., 9th Dist. No. 2381, 2008-Ohio-
109, ¶11). To meet the burden of proof for a dependency finding, the Agency
must present clear and convincing evidence of conditions that adversely affect the
normal development of the child. Id. In this case, the complaint alleged that DGC
was a dependent child pursuant to R.C. 2105.04(C), which defines a dependent
child as one whose “condition or environment is such as to warrant the state, in the
interests of the child, in assuming the child’s guardianship.” R.C. 2105.04(C).
Such an adjudication should concentrate on whether the [child
is] receiving proper care and support and look to environmental
elements that are adverse to the normal developments of
children. * * * The focus should be on the child’s condition and
environment, not on the fault of the parent. * * * The conduct of
the parent is relevant only insofar as it forms a part of the
[child’s] environment and it is significant only if it has a
detrimental impact on them. * * * “That impact cannot be
simply inferred in general, but must be specifically
demonstrated in a clear and convincing manner.”
-25-
Case No. 4-10-17
In re D.H., A.H., S.B., D.Q., 9th Dist. No. 25095, 2010-Ohio-2998, ¶5 (quoting In
re Burrell (1979), 58 Ohio St.2d 37, 39, 388 N.E.2d 738, other citations omitted).
{¶52} The evidence indicated that on or about February 3, 2010, Jamie was
living with Michael, her son, and her former mother-in-law in Paulding County.
She testified that after she was asked to leave the home where she was living with
Daniel and Tina, she made arrangements to stay with Michael until she found a
new place to live.2 Jamie testified that she had a good relationship with Michael
and that they had a successful shared parenting agreement for their son. The
Agency had never visited this home to determine whether the environment to
which DGC would be going was appropriate.3 At the time indicated in the
complaint, DGC was still in the hospital where he was born healthy and drug free.
All of his needs were being met. The Agency did not present any evidence that
indicated that DGC was not receiving proper care and support or that he was
adversely affected by anything Jamie had done. To the contrary, Jamie testified
that she had been receiving prenatal care and that she had scheduled the birth at
the hospital. She testified that she had made arrangements for a place to live and
had a support system in place with other people living in the home where she was
staying. Since the Agency did not even attempt to visit DGC’s home or speak
2
Soon afterwards, Jamie found an apartment in Paulding County where she lived at the time of the
hearing.
3
The Agency did conduct a home visit to Daniel’s, but that is not relevant as Jamie was not living there.
As residential parent, Jamie’s residence determines DGC’s residence.
-26-
Case No. 4-10-17
with anyone in the home, it was unable to present any evidence that would
indicate that the environment to which DGC would be going was improper in any
way. Jamie did admit that she was considering moving away from Ohio.
However this is not a valid basis for a finding of dependency. Likewise, the
alleged attempted sale of the vicodin tablets by shipping them to Florida was not
shown to have any adverse effect on DGC, especially since testimony was
provided that no charges resulted from the incident.
{¶53} The Agency argues that since Jamie had previously had her parental
rights terminated, she could not possibly be a good parent now. Thus, the Agency
claims that the removal of DGC from the hospital was necessary. Although it is
permissible to remove a child from the hospital as a dependent, it requires that the
Agency show that the condition to which the child would go would be threatening
to the health and safety of the child. In re Campbell (1983), 13 Ohio App.3d 34,
468 N.E.2d 93. That was not the case here. The home to which DGC would be
going was already the home of another child. No evidence was presented that
there were any concerns about this home by Paulding County Department of Job
and Family Services. Since the Agency did not visit the home, it could not present
any evidence on the suitability. Basically, the Agency presented a case of prior
issues with parenting, a transitional home, and the possibility that Jamie might
leave the state, as the basis for removing her child as a dependent child. This
-27-
Case No. 4-10-17
evidence did not clearly and convincingly prove that DGC was in any danger of
not having his needs met at the time indicated in the complaint. Additionally, the
Agency failed to show how Jamie’s actions had an adverse effect on DGC. For
these reasons, I would sustain the third assignment of error.
{¶54} The majority focuses on the prior dependency rulings to support the
trial court’s judgment. However, those prior findings were not recent in time and
the circumstances had changed from the prior proceedings. The Agency presented
no evidence as to the current environment, only that from several years prior.
While a different section of the statute provides for an agency to move for
temporary custody on the grounds that prior children have been found dependent,
the Agency in this case chose not to proceed under that section of the statute and
instead brought the case under the section requiring the environment to be
harmful. The mere fact that the Agency could have proven its case if it had
chosen to proceed under a section it chose not to pursue does not mean that it then
succeeds under the section it chose to pursue. The Agency had the power to
choose the statutory section or to amend the complaint at any time to include the
other section. At oral argument, the Agency admitted that they could have but did
not do so. The evidence does not support the claim made by the Agency. The
position of this court is similar to that of an umpire in baseball. If a pitcher
chooses to throw a curve ball and misses the plate, the umpire does not call it a
-28-
Case No. 4-10-17
strike merely because it would have been one if the pitcher had thrown a fast ball.
The umpire is required to rule on the pitch as made, not how it could have been.
This court likewise must rule on the case before us, not search for ways to save the
Agency’s case. The Agency failed to prove what it was required to prove: that
the environment to which DGC would return was not safe. The Agency failed to
set forth any evidence as to the environment to which DGC would be going, but
instead relied upon the testimony of a caseworker that had not seen Jamie in years.
The Agency missed the plate. Instead of doing the job of the Agency and making
bad law in the process, I would hold them to their burden of proving the claim set
forth in the complaint. Thus, I would reverse on the third assignment of error.
-29-