In re G.Y. , 2022 Ohio 4560 ( 2022 )

[Cite as In re G.Y., 2022-Ohio-4560.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
IN RE:
CASE NO. 10-22-05
G.Y.,
ADJUDGED ABUSED CHILD.
OPINION
[MADISON A. - APPELLANT]
IN RE:
CASE NO. 10-22-06
G.Y.,
ADJUDGED ABUSED CHILD.
OPINION
[MADISON A. - APPELLANT]
Appeals from Mercer County Common Pleas Court
Juvenile Division
Trial Court No. 32022012
Judgments Affirmed
Date of Decision: December 19, 2022
APPEARANCES:
Darin Avery for Appellant
Andrew J. Hinders for Appellee
Case No. 10-22-05, 10-22-06
SHAW, J.
{¶1} Appellant, M.A. (“Mother”), appeals from both the Mercer County
Court of Common Pleas, Juvenile Division’s judgment entry that adjudicated her
minor child, G.Y., to be an abused child and from the court’s judgment entry of
disposition, which placed G.Y. in the legal custody of his Father (“Father”).
Appellee is the Mercer County Department of Job and Family Services
(“MCDJFS”).
Case Background
{¶2} G.Y. lived with Mother prior to the allegations in this matter. On
February 16, 2022, an employee of MCDJFS (the complainant) filed a complaint in
the trial court (Case No. 32022012) alleging G.Y., born on March 19, 2020, to be
an abused or dependent child. The complaint alleges that there were injuries found
on the child on or about June 13, 2021. It further included the following facts about
which the trial court should be informed:
The child was placed in the temporary custody of the paternal
grandmother in Case Number 32021040. This case could not be
adjudicated within the statutory time limit, a new case, Case
Number 32021050, was filed on September 23, 2021. In that case
the parties agreed to a forensic evaluation of parenting ability be
completed by mother and live-in friend, G.F. The friend failed to
complete that evaluation in the time necessary to adjudicate the
Complaint. A third Complaint was filed in Case Number
32022001. That Case came on for an Initial Hearing on January
26, 2022. At that hearing the Court, counsel for the father, the
Guardian ad Litem and counsel for the Department had the
impression that an agreed adjudication had occurred. On that
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date a dispositional hearing was scheduled with all counsel.
Subsequent to that date counsel for the mother stated that there
had been no agreement. Counsel for the Department then
requested an extension of time to adjudicate the matter, which
was granted by the Court on February 7, 2022. Counsel for the
mother then filed an objection to the motion to extend time and
motion to dismiss the Complaint. Following that, on February 11,
2022, the Court approved the Judgment Entry of the January 11,
2022, hearing.
(Doc. No. 1). The present complaint was filed rather than engage in an ancillary
dispute in Case Number 32022001 and according to the present complaint, the child
now resides with Father and paternal grandmother. Id.{¶3} At an initial hearing on the complaint, the trial court continued its prior
temporary orders made in Case Number 32021040 and an adjudicatory hearing was
then scheduled.
{¶4} The adjudicatory hearing was held before the trial court on March 11,
2022. At the conclusion of the hearing, the trial court adjudicated G.Y. an abused
child, concluding that he was an abused child as alleged in the complaint. The trial
court issued temporary orders placing the child in the temporary custody of the
Father, with visits by the Mother to be supervised by the Father or the child’s
paternal grandmother.
{¶5} The trial court held a dispositional hearing on April 5, 2022, following
approximately an hour of pre-hearing discussion with counsel and the guardian ad
litem. At disposition, after hearing from counsel for all parties, as well as the
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Mother, and the guardian ad litem, the trial court ordered that the child be placed in
the legal custody of Father. A supervised visitation plan for Mother was also
approved, with visits by Mother to be supervised, initially by the paternal
grandmother, then as such other persons as could be agreed upon.
{¶6} Mother appeals, and this Court consolidated her two appeals. On
appeal, Mother raises the following five assignments of error:
Assignment of Error No. 1
The court erred in finding the child abused, as the complainant
did not demonstrate abuse as of any legally relevant date.
Assignment of Error No. 2
The court erred by not dismissing the complaint sua sponte.
Assignment of Error No. 3
The court erred by finding that the agency “ha[d] made
reasonable efforts * * * to eliminate the continued removal of the
child from the child’s home, or to make it possible for the child to
return safely home.”
Assignment of Error No. 4
The court erred by not making a reasonable efforts finding in its
dispositional order.
Assignment of Error No. 5
The court erred by granting legal custody to the child’s father, as
it heard no evidence that that placement served the child’s best
interest.
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First Assignment of Error
{¶7} Mother first argues the trial court erred in its finding of abuse because
the abuse needed to be demonstrated as of the date of the adjudicatory hearing,
March 11, 2022.
{¶8} “Juvenile abuse, neglect, and dependency cases are initiated by the
filing of a complaint.” In re A.S., 9th Dist. Summit No. 29472, 2020-Ohio-1356, ¶
7, citing see Juv.R. 22(A); Juv.R. 10; R.C. 2151.27(A). “The complaint is ‘the legal
document that sets forth the allegations that form the basis for juvenile court
jurisdiction.’ ˮ Id., citing Juv.R. 2(F). “The juvenile court has exclusive original
jurisdiction * * * [c]oncerning any child who on or about the date specified in the
complaint * * * is alleged * * * to be * * * [an] abused, neglected, or dependent
child[.]” (Emphasis added.) R.C. 2151.23(A)(1).
{¶9} Mother cites our 1981 opinion in In Matter of Parker, 3d Dist. Van Wert
No. 15-79-16 (Jan. 26, 1981). This opinion held simply that under R.C. 2151.35,
the court must find the child “is” dependent, referring to the date of the hearing.
That statute provides that “[i]f the court at [an] adjudicatory hearing finds from clear
and convincing evidence that [a] child is an abused, neglected, or dependent child,
the court shall proceed * * * to hold a dispositional hearing and hear the evidence
as to the proper disposition to be made * * *.” R.C. 2151.35(A)(1).
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{¶10} However, thereafter, In Matter of Oard, 3d Dist. Putnam No. 12-82-4
(Dec. 28, 1983) *5, and subsequent rulings by this Court hold that R.C.
2151.23(A)(1), as amended and set forth above, eliminated prior judicial
determinations that the time of the neglect or dependency must include the time of
hearing. See also In Matter of Marshall, 3d Dist. Putnam No. 12-85-8 (Oct. 22,
1987) *8. Based upon this, we have stated “under R.C. 2151.23(A)(1), the
determination of dependency is made as of the date alleged in the complaint.” In re
L.S., 3d Dist. Union Nos. 14-15-05 and 14-15-06, 2016-Ohio-4999, ¶ 18; see In re
S.H., 12th Dist. Butler No. CA2005-01-007, 2005-Ohio-5047, ¶ 12 (“the trial court
is to determine the issue of dependency as of the date or dates alleged in the
complaint”). We also recognize, as pointed out by In re S.H., that while the abuse
“findings the court is required to make from the evidence presented at the hearing
relating to the allegations of the complaint are retrospective in nature, the
adjudicatory relief the court will order based on those findings and any subsequent
factual findings, is necessarily current and prospective.” (Emphasis added.) In re
S.H. at ¶ 13. Consequently, the date on which abuse existed must be alleged in the
complaint, and the trial court must determine that the circumstances which support
a finding of abuse existed as of the date or dates alleged in the complaint. See id. at
¶ 9.
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{¶11} Here, we are concerned then with the state of affairs where the statutes
and their judicial interpretation require a finding of abuse at or about the time of the
complaint when in fact the child has already for approximately nine months been
outside the parental custody and control of the Mother. Appellee states in its brief
that “[w]ith the refiling of the complaint the Appellee did present evidence
regarding the ‘legally relevant date’ Appellant alleged is missing.” (Appellee’s
Brief at 2). With regard to the complaint and the need to refile, the Ohio Supreme
Court explained in In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995,
the General Assembly crafted a solution that balances the rights
of parents with the interests of protecting children—it provided
for dismissal of a complaint without prejudice, which allows an
agency to refile a new complaint that very same day and marshal
its evidence if it still has concerns about a child’s welfare. We
acknowledge the burden that a mandatory 90-day deadline in
R.C. 2151.35(B)(1) may impose on the already-strained dockets of
the juvenile courts. But regardless of the policy concerns raised
by dismissal of the complaint, our duty is to apply the statute as
written.
(Emphasis sic.) In re K.M. at ¶ 30.
{¶12} In this present case, there was evidence to prove that G.Y. is an abused
child as alleged in the complaint in that on or about June 13, 2021, the child had
bruising which was medically inconsistent with the reported source of the injuries.
(Doc. No. 53). And, at that time the child did reside with his Mother and G.F. (Id.)
Mother’s first assignment of error is overruled.
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Second Assignment of Error
{¶13} Mother’s argument in her second assignment of error, raised for the
first time in her brief to this Court, is that the trial court erred sua sponte in not
dismissing the complaint on the basis that a MCDJFS employee (complainant)
signed and filed the complaint on behalf of the agency and R.C. 4705.01 bars a non-
attorney representative from filing the complaint. (Appellant’s Brief at 9).
{¶14} According to Juv.R. 10(A), “[a]ny person having knowledge of a child
who appears to be * * * unruly, neglected, dependent, or abused may file a complaint
with respect to the child in the juvenile court of the county in which the child has a
residence or legal settlement, or in which the * * * unruliness, neglect, dependency,
or abuse occurred.” Similarly, Ohio Revised Code section 2151.27 provides: “any
person having knowledge of a child who appears * * * to be an unruly, abused,
neglected, or dependent child may file a sworn complaint with respect to that child
in the juvenile court of the county in which the child has a residence or legal
settlement or in which the violation, unruliness, abuse, neglect, or dependency
allegedly occurred.” (Emphasis added.) R.C. 2151.27(A)(1).
{¶15} As in this case, an issue before the Eleventh District Court of Appeals
in In Matter of J.D.B., 11th Dist. Portage No. 2017-P-0032, 2019-Ohio-408, was
whether an employee of a county department of job and family services may file a
complaint to initiate juvenile proceedings. As stated in that case, “The
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determinative issue is whether, by filing and/or amending the Complaint,
[employee] Toth was necessarily acting in a representative capacity on behalf of
Portage County Job and Family Services’ interests. We conclude that she was not
doing so based on the plain meaning of the statute and rule, the fundamental purpose
of neglect/dependency proceedings, and applicable case law.” Id. at ¶ 22.
{¶16} Other appellate districts have similarly decided the issue. In In re F.B.,
9th Dist. Summit No. 27762, 2016-Ohio-3434, the Ninth District Court of Appeals
ruled that “Father has failed to demonstrate that the caseworker acted as a
representative of CSB when she filed the complaints in this case. Instead, the record
reveals that she herself was a ‘person’ who had knowledge that the children
appeared to be dependent.” Id. at ¶ 15, citing see R.C. 2151.27(A). And, in In re
Leftwich, 10th Dist. Franklin No. 96APF09-1263 (Apr. 22, 1997), the Tenth District
Court of Appeals held: “[B]ecause [the caseworker] Rae had knowledge about the
children, she could file a complaint on their behalf and the trial court did not err in
permitting the complaint to go forward.” Id. at *2. We are persuaded by the Courts’
reasoning in those cases.
{¶17} In this case, we note that the record reveals that Jamie Miller, an intake
investigator with MCDJFS was a “person having knowledge of a child who appears
to be neglected or dependent.” See R.C. 2151.27(A)(1). As the complainant, Ms.
Miller filed a sworn complaint with respect to the child. Despite also being an
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employee of the agency, the fact that the complainant was a person with knowledge
when she filed the complaint is the determining factor. As such, a mere incidental
reference to her employment status with the agency in the complaint does not rise
to the level of “representing” the agency in violation of R.C. 4705.01.
Consequently, we conclude that Mother’s argument for dismissal, sua sponte, of the
complaint, whether by the trial court or this Court, is not well taken.
{¶18} Mother’s second assignment of error is overruled.
Third and Fourth Assignments of Error
{¶19} We will consider the third and fourth assignments of error together. In
her third assignment of error, Mother argues the trial court erred in connection with
its lack of a reasonable efforts finding and that there was no longer an emergent
event. In her fourth assignment of error, Mother argues the trial court erred in not
making a reasonable efforts finding in its dispositional entry.
{¶20} R.C. 2151.419(A)(1) requires that the trial court make reasonable
efforts findings in its judgments or orders following “any hearing held pursuant to
section * * * 2151.353 of the Revised Code at which the court removes a child from
the child’s home or continues the removal of a child from the child’s home[.]” R.C.
2151.353(I) further provides that, “[t]he court shall not issue a [post-adjudicatory]
dispositional order * * * that removes a child from the child’s home unless the court
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complies with section 2151.419 of the Revised Code and includes in the
dispositional order the findings of fact required by that section.”
{¶21} However, R.C. 2151.419(A)(1) further provides that:
If the agency removed the child from home during an emergency
in which the child could not safely remain at home and the agency
did not have prior contact with the child, the court is not
prohibited, solely because the agency did not make reasonable
efforts during the emergency to prevent the removal of the child,
from determining that the agency made those reasonable efforts.
In determining whether reasonable efforts were made, the child’s
health and safety shall be paramount.
{¶22} Mother acknowledges that in this case, at the time of adjudication, the
trial court made a finding under R.C. 2151.419 that “the Department was unable to
provide services to prevent the need for removal of the child from the home due to
the emergent nature of the events leading to the injuries to the child.” (Doc. No. 53
at p. 2). Here, then, it is pertinent and relevant to look at testimony regarding a
safety plan with Mother. At the crux of the safety plan, according to the intake
investigator with MCDJFS, was the agency “asking that [G.F.] not be around [the
child] at all, that’s he is not providing childcare, that he’s not in the home.” (Mar.
11, 2022 Tr. at 40). And yet, despite the safety plan, Mother testified at the
adjudication hearing that she was currently still living with G.F. (Id. at 72).
{¶23} Notably, less than thirty days later, at the dispositional hearing there
was no indication in the record that anything had changed regarding the Mother and
G.F. Accordingly, referring to the pre-hearing discussions, counsel for MCDJFS
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stated that: “The options that we have been discussing now for at least the last hour
are whether or not it would be legal custody to the father and the Department could
be dismissed as a party, whether it be legal custody to the father with the Department
remaining to provide services to the mother and to her significant other, or whether
it be temporary custody to the father with services to continue.” (Apr. 5, 2022 Tr.
at 4). At the conclusion of the hearing, the trial court issued a grant of legal custody
that placed the child with the Father.
{¶24} Based on the foregoing facts of this case, Mother’s arguments
regarding a lack of reasonable efforts findings are not well taken, and the third and
fourth assignments of error are overruled.
Fifth Assignment of Error
{¶25} In her final assignment of error, Mother argues that the record contains
no evidence that a disposition of legal custody to the Father is in the best interest of
G.Y.
{¶26} After a child has been adjudicated as dependent, neglected, or abused,
the trial court can make an order of disposition as set forth in R.C. 2151.353(A). In
re J.R., 3d Dist. Allen No. 1-14-22, 2015-Ohio-643, ¶ 17. “ ‘The choice among
dispositional alternatives is left to the sound discretion of the [trial] court.’ ” Id.,citing In re M.D., 10th Dist. Franklin No. 07AP-954, 2008-Ohio-4259, ¶ 20.
“Because legal custody is a ‘statutorily permitted dispositional alternative, we must
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find that the trial court abused its discretion in order to reverse its determination.’ ˮ
Id., quoting In re A.J., 10th Dist. Franklin Nos. 14AP-284, 14AP-285, 14AP-286,
and 14AP-287, 2014-Ohio-5046, ¶ 35, citing In re M.D. at ¶ 22. In making its
determination, the best interest of the child is the trial court’s primary consideration.
Id. at ¶ 18 (citations omitted); In re T.P., 12th Dist. Clinton No. CA2012-02-004,
2012-Ohio-4614, ¶ 8, citing In re Brown, 142 Ohio App.3d 193, 198 (12th Dist.
2001) and In re L.C., 2d Dist. Clark No. 2010 CA 90, 2011-Ohio-2066.
{¶27} Additionally, in reviewing this assignment of error, we recognize that
R.C. 2151.35(A)(1), which governs juvenile court hearing procedures, provides that
“the juvenile court may conduct its hearings in an informal manner.” R.C.
2151.35(B)(2)(b) allows the trial court to admit any evidence that is “material and
relevant,” including hearsay, opinion, and documentary evidence. See also Juv.R.
34(B)(2).
{¶28} Here, the trial court ordered the disposition of legal custody to the
Father pursuant to R.C. 2151.353. The trial court’s oral reasons for that placement
referenced pre-hearing discussions and must be set forth for a full understanding of
the final decision. The trial court stated:
This is not an easy case. This is not an easy situation. Obviously,
we spoke about it at length before even coming on the record.
It was extremely disturbing to the court to hear at the
adjudication that your child had been abused and while no one is
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pointing the finger at you, that probably leads1 one individual and
your statements today indicate that you and [G.F.] want [G.Y.]
back in your lives.
I’m not sure how as a mother loves her child, I have no doubt in
my mind, ma’am, zero doubt, but you’re faced with an
uncomfortable choice. And it’s a choice that based upon what
I’ve heard in the adjudication, based upon what I’ve heard today,
I don’t think you’re ready to make that choice. I think the child
is – and, again, the focus here is the safety and security of [G.Y.].
I feel it is in his best interest and absolutely it is in his best interest
that legal custody go to father.
(Apr. 5, 2022 Tr. at 9-10).
{¶29} Based on the foregoing, while the trial court’s dispositional entry
should have reiterated that court’s express finding of best interest made at the
hearing, the record indicates the trial court clearly determined and found legal
custody with the father to be in G.Y.’s best interest, and that finding is supported by
competent, credible evidence. See In re T.P. at ¶ 14 (similarly, noting that “[w]hile
the juvenile court’s dispositional entry should have included that court’s express
findings of best interests,” the record indicated that the court found temporary
custody to maternal grandmother would be in the child’s best interest, and that
finding was supported by competent, credible evidence). Further, we also note that
in its adjudication judgment entry, the trial court specifically found that, based upon
1
Appellee believes that at the hearing, the trial court actually said “leaves.” (Appellee’s Brief at 7).
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the injuries to the child, placement outside of the Mother’s home was in the child’s
best interest. (Doc. No. 53 at p. 2).
{¶30} Accordingly, Mother’s fifth assignment of error is not well taken and
is overruled.
{¶31} The judgments of the trial court are affirmed.
Judgments Affirmed
MILLER, J., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
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