In re J.L. , 2023 Ohio 1127 ( 2023 )

[Cite as In re J.L., 2023-Ohio-1127.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: J.L. C.A. Nos. 30274
C.L. 30302
K.L. 30305
30306
30307
30308
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 21 09 0720
DN 21 09 0721
DN 21 09 0722
DECISION AND JOURNAL ENTRY
Dated: April 5, 2023
CARR, Judge.
{¶1} Appellants, D.S. (“Mother”) and C.L. (“Father”), appeal from a judgment of the
Summit County Court of Common Pleas, Juvenile Division, that adjudicated their three children
dependent and placed them in the temporary custody of Summit County Children Services Board
(“CSB”). This Court reverses and remands.
I.
{¶2} Mother and Father are the biological parents of J.L., born June 4, 2014; C.L., born
May 21, 2013; and K.L., born August 31, 2017. When this case began, Mother and Father were
not living together, although they had lived together in the recent past. The children resided only
with Mother at that time.
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{¶3} Mother and Father apparently have a history with CSB, but that history is not
explained in the record. During late August 2021, CSB received a referral that Mother and the
children were homeless and had been staying at a storage unit that Mother had rented. CSB
investigated the storage unit but found no evidence that the family had been staying there. The
intake caseworker contacted Mother, who reported that she and the children were staying with a
friend at a home on Iona Avenue in Akron. The caseworker made a few unsuccessful attempts to
meet Mother at the Iona address to evaluate her housing situation.
{¶4} On September 2, 2021, the caseworker and Mother had made an appointment to
meet at the Iona address at 5:00 p.m. While Mother was meeting her children after school at their
bus stop, however, Father and the paternal grandmother (“Grandmother”) unexpectedly arrived
and took C.L. to Grandmother’s home, against Mother’s wishes. Few details about that incident
are set forth in the record, but Mother did contact the caseworker about it.
{¶5} Mother also called the police, who eventually retrieved C.L. from Grandmother’s
home. One police officer first met Mother and the other two children at a nearby convenience
store and another police officer and the caseworker arrived in separate vehicles shortly afterward.
Mother briefly explained to the first police officer what had happened when Father and
Grandmother left with C.L. Mother stated that she had allowed Grandmother to speak to C.L.
because she had not seen the child for a while. Apparently before Mother realized what was
happening, C.L. jumped in the car with Father and Grandmother, and they drove away with him.
{¶6} After the second officer spoke to the caseworker about the caseworker’s efforts to
verify where Mother was living, the officer spoke to Mother about where she and the children had
been living. Mother told the officer that she was staying with a friend because she was “in
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between” homes. She also explained to the caseworker that she was doing everything that she
could to keep a safe roof over the children’s heads to avoid further involvement with CSB.
{¶7} Mother purported to call the friend with whom she was living and asked the
caseworker to speak to her friend. The caseworker did not speak to the person on the phone, nor
did he go again to the Iona Avenue address. He told Mother that the friend could come to the team
decision meeting the following day. The police removed the children pursuant to Juv.R. 6 at that
time.
{¶8} The following day, CSB filed complaints, alleging that the three children were
neglected and dependent. The complaints asserted that the parents were “homeless and have been
for about two weeks to a month[,]” that Mother was using illegal drugs, and that both parents had
a history of criminal involvement and involvement with CSB and Medina County Job and Family
Services.
{¶9} The matter proceeded to a contested adjudicatory hearing. CSB did not present any
evidence to support its allegations about the parents’ prior agency or criminal history or that
Mother was using illegal drugs. The evidence at the hearing focused almost exclusively on
whether the family was “homeless” as that term is used in R.C. 2151.04(A).
{¶10} Following the hearing, the magistrate adjudicated the children dependent pursuant
to R.C. 2151.04(A) and (C) and dismissed the remaining allegations in the complaint. The decision
focused on the magistrate’s finding that “[M]other and her three children were homeless at the
time of the complaint’s filing, and had had only transitory housing in the year [preceding].” The
trial court adopted the magistrate’s decision the same day, pending the filing of objections. The
children were later placed in the temporary custody of CSB.
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{¶11} Both parents filed timely, written objections to the adjudicatory decision, asserting
that the agency failed to present clear and convincing evidence to support the dependency
adjudication. The trial court overruled their objections, adjudicated the children dependent, and
continued them in the temporary custody of CSB. Mother and Father separately appealed, and
their appeals were later consolidated. Mother raises two assignments of error and Father raises
one. This court will consolidate and rearrange the assigned errors to facilitate review.
II.
MOTHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT’S DECISION FINDING THE CHILDREN DEPENDENT
IS CONTRARY TO LAW, PREJUDICIAL, AND CONSTITUTES
REVERSIBLE ERROR.
FATHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY ADJUDICATING THE MINOR CHILDREN
AS DEPENDENT CHILDREN, AS THE ADJUDICATION WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶12} Mother’s second assignment of error will be addressed with Father’s sole
assignment of error because they both contend that the evidence presented at the hearing did not
support the trial court’s adjudication of the children as dependent. The trial court was required to
find that CSB established the adjudication of dependency by clear and convincing evidence. In re
H.P., 9th Dist. Summit Nos. 29973 and 29975, 2022-Ohio-778, ¶ 28, citing In re I.K.-W., 9th Dist.
Summit No. 29100, 2019-Ohio-2807, ¶ 17; R.C. 2151.35(A)(1); and Juv.R. 29(E)(4). Clear and
convincing evidence is that which will “produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” In re Adoption of Holcomb, 18 Ohio St.3d
361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
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{¶13} When reviewing whether an adjudication of dependency is against the manifest
weight of the evidence:
this court [reviews] the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that the [adjudication] must be reversed[.]”
In re G.G., 9th Dist. Summit No. 29952, 2022-Ohio-1654, ¶ 19. The trial court adjudicated
the children dependent under R.C. 2151.04(A) and (C), which alternatively define a
dependent child as one:
(A) Who is homeless or destitute or without adequate parental care, through no fault
of the child’s parents, guardian, or custodian; [OR]
(C) Whose condition or environment is such as to warrant the state, in the interests
of the child, in assuming the child’s guardianship[.]
{¶14} The trial court focused its adjudication on a finding that the children were
“homeless” under R.C. 2151.04(A). It also found that the children were dependent under R.C.
2151.04(C) because of their homelessness and because Father’s behavior had resulted in a “volatile
environment” for them. This Court will begin by addressing the trial court’s finding that the
children were homeless.
“Homeless” under R.C. 2151.04(A)
{¶15} The evidence in this case relevant to the family’s alleged homelessness is
undisputed. CSB had received a referral that Mother and the children had been sleeping in a
storage unit, but the agency’s investigation failed to reveal any evidence that they had, in fact, been
staying there. Mother reported to the caseworker that she and the children were staying at the
home of Mother’s friend who lived on Iona Avenue in Akron. Although the caseworker made a
few attempts to meet Mother at the Iona address, he had been unsuccessful. Once, he came
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unannounced and two other times he had made appointments, but Mother was delayed and called
him to reschedule the appointments.
{¶16} The parties disputed whether CSB should have made additional attempts to
investigate the Iona address. Because CSB had not inspected the home, however, it presented no
evidence to dispute Mother’s claims that she and the children were staying there, nor did it offer
evidence that the home was not an appropriate place for the children to reside. Instead, the primary
issue at the hearing was whether the children were “homeless” under R.C. 2151.04(A) because
they did not have a permanent residence.
{¶17} The testimony of the intake caseworker primarily focused on the family’s lack of a
permanent home. He testified that Mother “said they were staying [at the Iona address,] but they
had also been couch surfing.” He did not ask, nor did Mother explain, what she meant when she
used the term couch surfing. The caseworker further testified that, at the team decision meeting,
Mother “stated she was currently homeless,” but she immediately qualified that statement by
explaining “that she had been staying with a friend, but it was nothing permanent.” Mother further
told him that she and the children had been staying at the Iona address for “three to four weeks.”
Mother told him that, prior to staying at the Iona address, she and the children had resided in the
home of another friend, also for “three or four weeks.”
{¶18} The trial court also heard the testimony of one of the police officers who responded
to the convenience store on September 2, which resulted in the Juv.R. 6 removal of the children.
The officer testified about her conversations with Mother and excerpts of her body camera video
were admitted into evidence. Regarding CSB’s allegations that the children were homeless, this
evidence merely supported the other evidence that Mother admitted that she had no permanent
place to live but she and the children had been staying temporarily with a friend. Mother told the
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caseworker that she had been making every effort not to stay at inappropriate places and had been
trying to keep a safe roof over her children’s heads.
{¶19} This Court cannot agree with the trial court that the children were “homeless” under
R.C. 2151.04(A) solely because they did not have a permanent residence. The term “homeless” is
not defined in R.C. Chapter 2151 or any relevant provisions of the Ohio Administrative Code.
Although this Court has reviewed appeals from dependency and neglect cases involving concerns
about a family being homeless, those cases typically involved other threats to the safety and well-
being of the children, such as their exposure to domestic violence, drug use, or behavioral threats
caused by their parents’ unstable mental health. See, e.g., In re A.L., 9th Dist. Summit Nos. 28345
and 28347, 2016-Ohio-8504, ¶ 3; In re P.C., 9th Dist. Summit Nos. 21734 and 21739, 2004-Ohio-
1230, ¶ 2.
{¶20} In In re R.L., 9th Dist. Summit No. 28387, 2017-Ohio-4271, this Court affirmed an
adjudication based solely on the child being homeless. In that case, the issue of the child’s
homelessness was clear: the mother was being evicted from her home and had made no alternative
living arrangements for the child, so she could not meet the child’s basic need for adequate shelter.
Id. at ¶ 17. A child who is lacking any place to reside is necessarily “homeless,” so there was no
need for this Court to further define the term in that case. See id.
{¶21} In this case, this Court must delve deeper into the meaning of the term “homeless”
as it is used in R.C. 2151.04(A). The adjudication of the children in this case hinges on whether
they were “homeless” at the time CSB filed its complaint, not because they had no place to stay,
but because they had no permanent residence.
{¶22} To support its argument that these children were “homeless” because they lacked a
permanent home, CSB relies on Ohio Adm.Code 122:6-1-01(I) and 42 U.S.C. 11302(a)(1), which
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define homeless to include temporary residences or the lack of a “regular and adequate nighttime
residence” or a “fixed, regular, and adequate nighttime residence.” Although those definitions
place some emphasis on something more permanent than temporary housing, they also explicitly
focus on the adequacy of one’s nighttime residence. In fact, 42 U.S.C. 11302(a) includes six
distinct definitions of the term “homeless,” which range from a lack of a fixed, regular, and
adequate nighttime residence to a nighttime residence that is not intended for human sleeping
accommodations, such as a car, a park, or an abandoned building. 42 U.S.C. 11302(a)(1)-(6).
Several definitions focus more on the safety and adequacy for human occupation than on the
stability and permanence of the dwelling. See id.
{¶23} Moreover, Ohio Adm.Code 122:6-1-01(I) and 42 U.S.C. 11302 explicitly apply to
the housing situations of people seeking to qualify for government housing assistance. These
provisions focus on addressing the crisis in lack of housing availability and helping people improve
their situations by finding more stable housing. See 42 U.S.C. 11301 (explaining the purpose of
the federal housing assistance). The question here is not whether Mother and her children could
qualify for, or benefit from, government assistance to improve their housing situation.
{¶24} Instead, the focus of this dependency adjudication is necessarily on whether the
children’s overnight housing arrangement was so inadequate that it justified the state in removing
the children from Mother’s custody, to protect their safety and well-being. R.C. 2151.01(A)
requires that the language of R.C. 2151.04 (and other provisions in R.C. Chapter 2151) be liberally
construed so as “[t]o provide for the care [and] protection” of children, but “separating the
child[ren] from [their] parents only when necessary for the child[ren]’s welfare or in the interests
of public safety[.]”
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{¶25} The definition of “homeless” in this situation must necessarily focus on whether
the children’s basic needs were being met. Although the Ohio Supreme Court has not explicitly
defined the term “homeless” for purposes of a dependency adjudication, it has emphasized that
R.C. 2151.04(A) “focuses exclusively on the child’s situation to determine whether the child is
without proper (or adequate) care or support.” In re Riddle, 79 Ohio St.3d 259, 262 (1997). R.C.
2151.011(B)(1) defines adequate parental care as “the provision by a child’s parent or parents * *
* of adequate food, clothing, and shelter to ensure the child’s health and physical safety[.]”
{¶26} There was no evidence in this case that the children’s overnight shelter at the Iona
address was unsafe or inadequate, or that their basic needs were not being met. The caseworker
conceded that, aside from their lack of a permanent home, the children appeared to be otherwise
well-adjusted, clean, nourished, and appropriately cared for. In fact, although the family had
moved between temporary residences, CSB had verified that Mother had kept the children enrolled
in the same schools, and they were attending school regularly.
{¶27} The police officer’s body camera video further depicted the two younger children,
who were clean and well dressed. They ate ice cream and sat calmly and affectionately with
Mother while she spoke to the police and the caseworker outside the convenience store. Although
Mother appeared upset because the police were removing her children, she remained cooperative
and did not exhibit any volatile, irrational, or erratic behavior in response to her conversations with
the police or the caseworker.
{¶28} Given that CSB presented no evidence to establish that the children were not
residing at the Iona address or that it was not an otherwise appropriate place for the children to
reside, CSB’s evidence that the children were “homeless” relied solely on evidence that they
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lacked a permanent residence. This Court cannot agree that such a definition of “homeless”
comports with the purposes of the dependency statute, R.C. 2151.04(A).
Other Evidence
In its judgment overruling the parents’ objections and adjudicating the children dependent,
the trial court also focused on two additional facts, which it concluded had demonstrated that the
children’s condition or environment warranted state intervention: (1) approximately one week
before CSB filed the complaint, Father left a profanity-laced message on the caseworker’s voice
mail; and (2) Father and Grandmother had taken C.L., against Mother’s wishes and in violation of
a protection order between Father and Grandmother. A finding of dependency under R.C.
2151.04(C), based on a parent’s conduct, requires a demonstration that the parent’s conduct forms
a part of the child’s environment and has a detrimental impact on the child. In re A.C., 9th Dist.
Wayne Nos. 03CA0053, 03CA0054, and 03CA0055, 2004-Ohio-3248, ¶ 14, citing In re Burrell,
58 Ohio St.2d 37, 39 (1979). “That impact cannot be simply inferred in general, but must be
specifically demonstrated in a clear and convincing manner.” Id.{¶29} These two incidents were explained in minimal detail at the adjudicatory hearing
and there was no evidence that either of these incidents had any detrimental impact on the children.
The caseworker testified about a profanity-laced voicemail message that Father left him, but there
was no evidence to suggest that the children heard the message or were aware of it. It involved a
lot of swearing and disrespect toward the caseworker, but it did not involve any threats against the
caseworker or the children, nor was there any evidence that Father had sworn at or behaved
erratically around the children.
{¶30} There are also few details about the incident during which Father and Grandmother
took C.L. and went to Grandmother’s house, except that Mother and Grandmother both contacted
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the caseworker and Mother called the police. A police officer testified at the hearing and body
camera video was shown, both of which revealed only what happened after the police came to
meet Mother at the convenience store. There was no evidence that any harsh words were
exchanged, that violence erupted, or anything about what the children experienced when Father
and Grandmother took C.L. Mother contacted the caseworker and the police, who later retrieved
C.L. from Grandmother’s home. There was no evidence to suggest that Mother did anything
inappropriate when Father and Grandmother took C.L. or that the children suffered any ill effects
from that incident.
{¶31} This Court can only conclude that CSB failed to prove, by clear and convincing
evidence, that the children were “homeless” under R.C. 2151.04(A) or that their “condition or
environment” warranted the state in assuming their guardianship under R.C. 2151.04(C). The trial
court lost its way in concluding otherwise. See In re G.G., 2022-Ohio-1654, at ¶ 19. Consequently,
the trial court should have sustained the parents’ objections to the adjudicatory decision and
dismissed CSB’s complaint. Father’s sole assignment of error and Mother’s second assignment
of error are sustained.
MOTHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT’S FAILURE TO MAKE A REASONABLE EFFORTS
DETERMINATION IN VIOLATION OF R.C. 2151.419(A)(1) CONSTITUTES
PREJUDICIAL AND REVERSIBLE ERROR AS A MATTER OF LAW[.]
Mother also argues that the trial court erred by failing to make reasonable efforts findings.
Because this Court reverses the adjudication of these children, and resulting disposition, this
assignment of error has been rendered moot and will not be addressed. See App.R. 12(A)(1)(c).
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III.
{¶32} Father’s sole assignment of error and Mother’s second assignment of error are
sustained. Mother’s first assignment of error is not addressed because it has been rendered moot
by this Court’s disposition of the remaining assignments of error. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is reversed and remanded for proceedings
consistent with this opinion.
Judgment reversed and
cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
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SUTTON, J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
PAUL GRANT, Attorney at Law, for Appellant.
ALAN M. MEDVICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
NEIL P. AGARWAL, Guardian ad Litem.