In re A.C.
Decided: October 8, 2010
* * * * *
Tim A. Dugan, for appellant mother.
James J. Popil, for appellant father.
Jeremy G. Young, for appellee.
* * * * *
COSME, J.
{¶ 1} Appellants, Christine C. (“mother“) and Clyde C. (“father“), appeal the judgment of the Lucas County Common Pleas Court, Juvenile Division, adjudicating their four minor children, Alexander C., Arlene C., W.C. and H.C., to be abused, neglected, and dependent, and granting temporary custody of the children to the Lucas County Children Services (“LCCS“) agency. Because we conclude that clear and
I. PROCEDURAL BACKGROUND
{¶ 2} On April 29, 2009, LCCS filed a complaint in the juvenile court alleging that four minor children, Alexander C., Arlene C., W.C. and H.C., were abused, neglected, and dependent. As a result of the complaint, the children were placed in the emergency temporary custody of LCCS that same day.
{¶ 3} An adjudication hearing was held on June 17, 2009. Mother and father each had their own counsel. At the conclusion of the hearing, the magistrate found all four children to be abused, neglected, and dependent.
{¶ 4} A disposition hearing was held on July 6, 2009, and the magistrate determined that the proper disposition for the children was to continue in the temporary custody of LCCS. The magistrate‘s decision was filed on July 15, 2009; mother and father each filed objections thereafter.
{¶ 5} In a decision filed December 28, 2009, the juvenile court modified the magistrate‘s decision, concluding that while there was clear and convincing evidence to support a finding that Alexander C. and Arlene C. are abused, neglected, dependent, and that W.C. and H.C. are neglected and dependent, there was no evidence presented that W.C. and H.C. are abused children. The trial court also filed an entry in which it affirmed the modification and awarded temporary custody of the children to LCCS.
{¶ 6} At the adjudication hearing, which took place four months after the complaint was filed, the magistrate heard from two of mother‘s co-workers, two police officers, three LCCS caseworkers, a pediatrician, and the guardian ad litem. Mother and father did not testify. None of the children testified at the hearing. The four children whose welfare is at issue are Alexander C., Arlene C., W.C. and H.C. At the time of the adjudication hearing, the ages of the children were as follows: Alexander C., ten years, seven months; Arlene C., seven years, five and one-half months; W.C., six years and five months; and H.C., six months.
{¶ 7} The abuse, neglect, and dependency of the children is alleged to have occurred approximately one year prior to the adjudication hearing, and encompasses the period of time prior to, and subsequent to, mother‘s September 7, 2008 report to the police that father had assaulted her. A second report of assault followed on November 21, 2008. At the time of the second report, mother was 37 weeks pregnant with H.C.
{¶ 8} The allegations in the complaint highlighted the following concerns: (1) the ongoing domestic violence against mother; (2) the causal connection between the alleged incidents of domestic violence and their alleged affect upon the children; (3) the potential for abuse to W.C. and H.C.; (4) the filthy and unsanitary state of the home; (5) the filthy and unsanitary state of the children; (6) the lack of supervision or discipline; (7) the intentional violation of the protective orders by both mother and father; (8) the
{¶ 9} LCCS intended that the first witness they called, Officer Tom Williams, would verify that mother complained of being assaulted by father on September 7, 2008, and thus, establish the first time these allegations of domestic violence had been reported. Officer Williams could not recall meeting with mother and was unable to independently verify the contents of the report.
{¶ 10} Nevertheless, the next witness, Ms. Keiffer, mother‘s immediate supervisor at her place of employment, Heartland Healthcare Services (“Heartland“), testified that mother came to work with a bruise on her arm sometime in the early fall, and in November 2008, with a black eye. She testified that mother often had loud arguments with father on the phone, that she had advised mother to obtain a protection order because she was concerned for the safety of the children. Although mother did get a protection order, Ms. Keiffer noted that father was still at the house.
{¶ 11} Ms. Keiffer was also concerned with mother‘s financial situation. Ms. Keiffer was told by mother that father controlled the money and used it all on crack. As such, the family did not have any money for school clothes or other essentials. Mother‘s co-workers took up donations to help mother buy items for the family and new eyeglasses for mother to replace the ones father broke.
{¶ 13} Ms. Zaborski, also employed at Heartland Healthcare Services, testified that she became concerned for mother because she would show up for work with bruises all over her face, choke marks on her neck, even when mother was nine months pregnant. Mother told her co-workers that father had hit her and punched her. Ms. Zaborski described mother‘s phone calls with father as argumentative, loud, and vulgar. Ms. Zaborski also expressed concern for the well-being of the children based on mother‘s lack of interaction, involvement, concern for, or care of the children. Ms. Zaborski described mother‘s house as not being clean, that there were no light bulbs in the dining room, the first floor toilet was not working, and a pornographic movie had been left on the chair. Ms. Zaborski was also concerned with mother‘s financial situation, relating that mother told her that father planned to sell W.C.‘s diapers, which W.C. needed because of his disability. The family received the diapers for free from the state because of W.C.‘s disability.
{¶ 14} Officer Koehler testified that he took a report from mother on November 20, 2008, in which mother alleged that she had been assaulted by father.
{¶ 15} Ms. Ledford, a LCCS caseworker, was assigned to do an assessment of the children based on the allegation of domestic violence and physical abuse of the children. Ms. Ledford related that when she met mother four days after the November 21, 2008, report of domestic violence, mother had a black eye, bruising to the side of her face, and glasses that were broken. Mother told her that father had punched her in the face, hit her in the nose causing it to bleed, and broken her glasses. Mother related to Ms. Ledford that she was nine months pregnant at the time. Ms. Ledford testified that father admitted to her that he had given mother a black eye.
{¶ 16} Ms. Ledford assisted mother in obtaining a protection order, but expressed concern for the children‘s safety because both Alexander C. and Arlene C. told her that they saw father hit mother. Ms. Ledford also related that mother had taken Alexander C. and Arlene C. to the hospital to be checked for abuse, and that mother did so of her own initiative.
{¶ 17} Ms. Pettaway, another LCCS caseworker, was assigned to connect mother to community resources. Ms. Pettaway assisted mother with transporting Alexander C. and Arlene C. to Children‘s Advocacy Center, and to and from municipal court. She also assisted mother with clothing vouchers, new locks for the doors on the home, a referral to
{¶ 18} Ms. Pettaway described her concerns with the poor hygiene of Alexander C. and Arlene C. She described them as very dirty, not well kept, and wearing clothing that was either too small or not appropriate for the weather. She also noted that the children‘s school uniforms were very dirty and stained. Ms. Pettaway was also concerned about mother‘s lack of involvement with the children, leaving them to fend for themselves. She described mother‘s lack of concern over the fact that Arlene C. had gone to school without any underwear. She emphasized mother‘s lack of supervision and discipline of the children, and in particular, mother‘s disregard of behaviors that could be harmful to the other children. According to Ms. Pettaway, Alexander C. and Arlene C. would constantly argue, hit each other and complain. Ms. Pettaway was concerned that mother gave the children “free course to carry and hold [the baby] whenever they wanted to,” and described the children‘s conduct as being so bad that the counselor had to confront the mother and the children about the risk to the baby. Alexander C. and Arlene C. would fight over who would carry the baby, with one tugging on the baby‘s arms and the other tugging on the baby‘s feet. They would also hold her and carry her in a way that was inappropriate for a three-week old baby.
{¶ 20} According to Dr. Schlievert, the two scars he noted on the children were not the result of play or accident. He described the difference between a scar resulting from abuse and one resulting from play or accident as being very “discrete” but easily identified by one with experience and training in examining other abused children. A scar resulting from abuse would be more clearly defined and a scar resulting from accident would look more “jagged,” “irregular,” and would look “nasty.”
{¶ 21} Dr. Schlievert testified that both children related to him that they had been hit. Alexander C. told Dr. Schlievert that “he had been beaten with a pipe, hanger, and a switch by his dad.” He also told Dr. Schlievert of being hit with tools, and that he had marks on his legs, but that they were no longer visible. Arlene C. told Dr. Schlievert, “I got whooped,” but when asked who whooped her, she said, “I don‘t know.”
{¶ 23} During his physical examination, Alexander C. did not want his shirt or pants taken off, but agreed to allow Dr. Schlievert to examine him only if he could lift his clothes up instead of taking them off. Arlene C. was also unwilling to be examined, but did allow Dr. Schlievert to look at her arms, legs, back and belly.
{¶ 24} Dr. Schlievert also noted that Alexander C. was very “distractible” during the interview and “hard to keep corralled.” He further described Alexander C.‘s behavior as “bizarre” because Alexander C. would be “very clear and direct” but then change, “making weird noises and saying weird things that I honestly have not seen a patient do in my career.”
{¶ 25} Dr. Schlievert described a therapy session during which Arlene C. sat at the door and would not look up at anyone, would not stand up, and would not leave that position. He observed that Arlene C. would swing at people or try to hit them if they tried to pick her up. He added that he could “only recall a handful of times where I‘ve seen behavior like that, and it‘s generally a sign of someone who is psychologically or psychiatrically disturbed.” Dr. Schlievert testified that Arlene C.‘s behavior led him to believe that Arlene C. had a mental or emotional problem which was the result of abuse.
{¶ 27} Ms. Burr, a LCCS caseworker assigned to assist the children, described the domestic violence situation as her greatest concern. She spoke with father about getting services, such as parenting classes, and he told her that he was getting help from Unison. However, when Ms. Burr followed up with Unison, she learned that father was not receiving assistance from them. When she spoke again with father, he told her that he was not interested in any services. As such, father was not complying with the case plan that called for him to engage these services in response to the allegations that father was abusing mother and using illicit drugs.
{¶ 28} Ms. Burr also spoke with mother about completing services as part of her case plan, and specifically about the domestic violence survivor‘s treatment, but mother‘s response was that she “didn‘t need that shit,” and she knew “about the cycle,” and knew “how to keep herself safe.” Mother expressed no concern for the safety of the children.
{¶ 29} Ms. Burr observed that a CPO had been issued by the court as a result of the domestic violence, but noted that the parties were not complying with the no-contact provision. Mother told Ms. Burr that she did not feel the father was a risk to the children,
{¶ 30} Ms. Burr expressed concern with the children‘s well-being, noting that they were not clean; their hair was “dirty” and “matted.” She also expressed concern with the mother‘s ability to supervise and discipline the children, mentioning the older children‘s handling of the baby, the same behavior complained of by Ms. Pettaway, as well as Alexander C.‘s arrest for kicking mother.
{¶ 31} Finally, Ms. Paully, the guardian ad litem, testified briefly on the issue of whether father had violated the terms of the CPO. Ms. Paully stated that she had personal knowledge that the parties had violated the CPO, describing a visit she made to the home while the no contact provision was in effect. According to Ms. Paully, both mother and father were at the home, a violation of the no-contact provision of the CPO.
III. MANIFEST WEIGHT OF EVIDENCE
{¶ 32} In her sole assignment of error, mother maintains that:
{¶ 33} “The Juvenile Court‘s finding of abuse, dependency, and neglect, was against the manifest weight of the evidence.”
{¶ 34} In his first assignment of error, father maintains that:
{¶ 35} “The trial court erred in finding clear and convincing evidence that the above named children were dependent, neglected and abused children.”
{¶ 36} Mother argues that the evidence upon which the juvenile court relied does not prove clearly and convincingly that Alexander C. and Arlene C. were abused, or that
{¶ 37} Father claims that the facts of this case are strikingly similar to the family‘s prior case, In re Alexander C., 164 Ohio App.3d 540, 2005-Ohio-6134, and argues that the only difference is the new allegation of physical and sexual abuse of Alexander C. and Arlene C. According to father, the allegations of abuse are unsupported since Dr. Schlievert “was unable to state when the alleged abuse had occurred * * *, how the abuse occurred, or who the perpetrator was.” He argues that since the children are being properly fed, clothed, and receiving proper care, the decision of the juvenile court is not supported by clear and convincing evidence.
{¶ 38} Both mother‘s and father‘s assignments of error claim that the juvenile court‘s decision that the children were abused, neglected, or dependent was against the manifest weight of the evidence and not supported by clear and convincing evidence.
{¶ 39} We disagree.
{¶ 40} That a child is an abused, neglected, or dependent minor must be established by clear and convincing evidence.
{¶ 41} As defined by
{¶ 42} “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. Moreover, because a claim that there was a failure to meet the requisite burden of proof essentially challenges the weight given by the trial court to the evidence in the record, a reviewing court may not reverse the trial court‘s ruling if the “judgment[ ][is] supported by competent, credible evidence going to all the material elements of the case.” C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus. See State v. Schiebel (1990), 55 Ohio St.3d 71, 74. See, also, In re Haker (Dec. 3, 1999), 11th Dist. No. 98-P-0106.
{¶ 43} Pursuant to
{¶ 44} At adjudication, the juvenile court magistrate heard the testimony of Dr. Schlievert, who testified that Alexander C. and Arlene C. had physical and mental injuries consistent with child abuse.
{¶ 45} Based on the testimony of Dr. Schlievert, we find that there existed clear and convincing evidence that the Alexander C. and Arlene C. suffered physical and mental injuries as a result of the actions of their parents.
B. Neglected Child
{¶ 46} A “neglected child” has been statutorily defined by
{¶ 47} The complaint does not allege which specific subsection of
R.C. 2151.03(A)(2)
{¶ 48} We turn first to
{¶ 49} “Under sections 2151.01 to 2151.54 of the Revised Code, a child whose home is filthy and unsanitary; whose parents, stepparents, guardian, or custodian permit him to become dependent, neglected, abused, or delinquent; whose parents, stepparents, guardian, or custodian, when able, refuse or neglect to provide him with necessary care, support, medical attention, and educational facilities; or whose parents, stepparents, guardian, or custodian fail to subject such child to necessary discipline is without proper parental care or guardianship.” See In re Browne Children (July 7, 2003), 5th Dist. No. 2003CA00027.
{¶ 50} In this case, there was testimony that the family home was unsanitary and the children were not properly cared for based upon their clothing and appearances. As well, Ms. Ledford and Ms. Burr both described concerns with the mother‘s ability to supervise and discipline the children and to ensure the safety of the other children, particularly the baby, H.C. Both caseworkers had to ask the mother to intervene and they asked mother not to allow the children to hold or touch the baby in that manner because of concerns for the baby‘s well-being.
R.C. 2151.03(A)(3)
{¶ 52}
{¶ 53} A necessary element in the determination that a child is neglected is the commission of a culpable act by the parents; the fault, unfitness, or unsuitability of the parent is the crux of the cause. In re East (1972), 32 Ohio Misc. 65. For example, children have been held neglected children under the Ohio statutes where the parents indulge in adultery as a normal course of life, are selfish and childish far beyond reasonable limits, and allow such children to associate closely with vicious, criminal, and immoral persons. In re Douglas (1959), 11 Ohio Op. 2d 340. The court in In re Locker, 5th Dist. No. 2002AP020011, 2002-Ohio-6124, ¶ 24, observed that a violation of a civil protection order, if proved, could be sufficient to find a child neglected pursuant to
{¶ 55} Thus, the conscious decision of a parent to disregard a lawful order may serve as a basis for finding that the children are not receiving the “other care necessary for the child[ren]‘s health, morals, or well being,” so long as it has been demonstrated that the children have been adversely affected.
{¶ 56} Here, the complaint sets forth allegations of domestic violence and asserts that mother obtained a temporary protection order and civil protection order (“CPO“) against father, both with a no contact provision. However, at a later hearing, mother asked for removal of the no-contact provision of the CPO pertaining to the children and did not inform the caseworker. Nevertheless, while the CPO was in effect, the father was at the home, a violation of the CPO. Several witnesses, including the guardian ad litem, Ms. Paully, testified that father was at the house during the time the CPO was in effect.
{¶ 58} We conclude that there was substantial evidence to support a finding of neglect under
R.C. 2151.03(A)(4)
{¶ 59}
{¶ 60} Relevant to
{¶ 61} The lack of supervision for all four children reflects that the parents do not understand the level of care necessary for such young children. Because W.C. is a
{¶ 62} A case plan was established in part to ensure that all of the children were kept safe, in light of the domestic violence. Ms. Burr spoke with mother about obtaining domestic violence survivor‘s treatment and mother responded negatively. Despite a referral for services and the testimony of other witnesses that mother had been abused by father, she declined to engage those services.
{¶ 63} In addition, Ms. Burr testified that father chose not to participate in parenting classes after initially agreeing to do so. Father also refused to take substance abuse classes and undergo an assessment for needed treatment.
{¶ 64} In In re Zeiser (1999), 133 Ohio App.3d 338, 340-341, the court determined that insufficient parental supervision, alone, will support a finding of neglect. Id. at 347-350. The court set forth three salient factors to be considered when determining if a lack of supervision is neglect. Id. at 347. These include: (1) the ages of the children; (2) “the pattern, regularity, and length of the incidents of no supervision;” and, (3) whether it appears that the lack of supervision will continue due to the inability or unwillingness of the parents to acknowledge the problem. See In re Corey Children, 11th Dist. No. 2005-G-2649, 2006-Ohio-2013, ¶ 20.
R.C. 2151.03(A)(5)
{¶ 66}
{¶ 67} Unlike statements made to social workers for the purpose of facilitating medical treatment which are admissible under the medical exception to hearsay, In re A.R., 9th Dist. No. 22836, 2006-Ohio-1548, and State v. Major, 9th Dist. No. 21662, 2004-Ohio-1423, mother‘s statement to Ms. Keiffer is inadmissible. Ms. Keiffer is not a
R.C. 2151.03(A)(6)
{¶ 68}
{¶ 69} We are mindful that a previous case involving the same parents and some of the same children was reversed and remanded to the trial court in part because there was no evidence that domestic violence between the parents was an issue. In that case, this court held, “[u]sually, when domestic violence between the parents is an issue, more evidence supports a causal connection between the alleged incidents and their alleged effect on a child - i.e., telephone calls to police, police reports, the child‘s statements, etc.” In re Alexander C., 164 Ohio App.3d 540, 2005-Ohio-6134, ¶ 54. See In re Tate (Sept. 12, 2001), 9th Dist. No. 20417 (which reversed an adjudication of neglect, although the mother had failed to comply with the safety plan after the agency received allegations of domestic violence between the parents.)
{¶ 70} Unlike the earlier case, there is now substantial evidence showing that domestic violence is an issue. In addition, there is also evidence of physical and mental injury to the children.
{¶ 72} We conclude that there exists clear and convincing evidence that Alexander C. and Arlene C. have suffered physical and mental injury as a result of the domestic violence in the home and the physical abuse by father.
{¶ 73} Consideration of the factors set forth in
C. Dependent Child
{¶ 74} Unlike a finding of neglect under
{¶ 75} While 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 148, 156. “[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 34, 36. See In re East (1972), 32 Ohio Misc. 65 (“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“).
{¶ 76}
{¶ 77} “A ‘dependent child’ means any child:
{¶ 78} “(A) Who is homeless or destitute or without adequate parental care, through no fault of the child‘s parents, guardian, or custodian;
{¶ 79} “(B) Who lacks adequate parental care by reason of the mental or physical condition of the child‘s parents, guardian, or custodian;
{¶ 81} “(D) To whom both of the following apply:
{¶ 82} “(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.
{¶ 83} “(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.”
{¶ 84} Again, the complaint does not allege which specific subsection of
R.C. 2151.04(A)
{¶ 85}
{¶ 86} “‘Adequate parental care’ means the provision by a child‘s parent or parents, guardian, or custodian of adequate food, clothing, and shelter to ensure the child‘s health
{¶ 87} “Under sections
2151.01 to2151.54 of the Revised Code, a child whose home is filthy and unsanitary; whose parents, stepparents, guardian, or custodian permit him to become dependent, neglected, abused, or delinquent; whose parents, stepparents, guardian, or custodian, when able, refuse or neglect to provide him with necessary care, support, medical attention, and educational facilities; or whose parents, stepparents, guardian, or custodian fail to subject such child to necessary discipline is without proper parental care or guardianship.” In re Browne Children (July 7, 2003), 5th Dist. No. 2003CA00027.
{¶ 88} Father argues that at no time were these children without food, clothing, or care. Therefore, according to father, these children did not fall within the statutory definition of a dependent child and any finding that they were dependent is against the manifest weight of the evidence.
{¶ 89} Witnesses at the adjudication hearing, however, testified that the home was filthy and unsanitary. They also testified that the children lacked adequate supervision. Dr. Schlievert also testified that Alexander C. and Arlene C. had injuries consistent with abuse. Finally, there is sufficient evidence to show that the children were otherwise dependent or neglected.
R.C. 2151.04(B)
{¶ 91}
{¶ 92} In proving that a child is dependent under
R.C. 2151.04(C)
{¶ 93}
{¶ 94} In In re Alexander C., 164 Ohio App.3d 540, 2005-Ohio-6134, ¶ 58, this court held: “* * * a long history of domestic violence between the parents can constitute the clear and convincing evidence necessary for a finding pursuant to
{¶ 95} In In re Alexander C., at ¶ 59, this court declined to find the children in that case to be dependent because there was no evidence that the “child or children suffered from any conditions listed in the statute and where it was ‘undisputed that their needs for shelter, food and other necessaries were satisfied.’ In re Tikyra A. (1995), 103 Ohio App.3d 452, 454 [ ].”
{¶ 96} In the present case concerning the same family, however, there is evidence that two of the children were abused, and all four have been neglected. The juvenile court magistrate considered both the conduct of the parents as well as the condition of the children. While the magistrate‘s findings of fact center upon the father‘s domestic violence against the mother, the magistrate also considered the testimony of caseworkers and Dr. Schlievert in concluding that the children suffered physical or mental injury that threatens their health or welfare.
{¶ 97} As reflected in the magistrate‘s findings of fact, the magistrate considered the acts of domestic violence between mother and father, the unclean condition of the children, their clothes, and the house, evidence of physical abuse to Alexander C. and Arlene C., the affect upon the mental well-being of the children resulting from the domestic violence and the physical abuse, the parent‘s interaction with and care of their
{¶ 98} All of the above describes an environment which warrants the intervention of the state on behalf of the children.
R.C. 2151.04(D)
{¶ 99}
{¶ 100} Thus, dependency of a child requires clear and convincing proof of two factors: (1) a parent residing in the household committed an act that resulted in an adjudication that a sibling was abused, and (2) the dependent child is in danger of being abused by the parent. In re Anthony, 11th Dist. No. 2002-A-0096, 2003-Ohio-5712.
{¶ 101} As discussed above, Alexander C. and Arlene C. were abused children and, therefore, the first element necessary to prove dependency is satisfied.
{¶ 102} As to whether the remaining children are in danger of being abused, Dr. Schlievert testified that Alexander C. and Arlene C., in addition to their physical injury,
{¶ 103} We believe this evidence is sufficient for the trial court to permissibly conclude that Alexander C. and Arlene C. would be in danger of future abuse, and similarly, their siblings, W.C. and H.C., would also be in danger of being abused. Thus, there was sufficient evidence for the trial court to find dependency of all four children by clear and convincing evidence.
{¶ 104} Application of
{¶ 105} Accordingly, mother‘s sole assignment of error and father‘s related first assignment of error are not well-taken.
IV. CONTINUANCE OF ADJUDICATION HEARING
{¶ 106} In his second assignment of error, father maintains that:
{¶ 107} “Appellant [father] was denied a fair trial by the trial court‘s failure to grant [father‘s] trial counsel‘s request to continue.”
{¶ 108} Father asserts that his trial counsel was unable to adequately prepare for the adjudicatory hearing because: (A) the state failed to comply with
{¶ 109} We disagree.
A. Compliance with Juv.R. 24(A)
{¶ 110} The purpose of discovery rules is to prevent surprise and the concealment of evidence favorable to one party. Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 3. The overall purpose of the rules is to produce a fair trial. Id.
{¶ 111} “Upon written request, each party of whom discovery is requested shall * * * produce promptly for inspection, copying, or photographing the following information, documents, and material in that party‘s custody, control, or possession:
{¶ 112} “(1) The names and last known addresses of each witness to the occurrence that forms the basis of the charge or defense;
{¶ 113} “(2) Copies of any written statements made by any party or witness;
{¶ 114} “(3) Transcriptions, recordings, and summaries of any oral statements of any party or witness, except the work product of counsel;
{¶ 115} “(4) Any scientific or other reports that a party intends to introduce at the hearing or that pertain to physical evidence that a party intends to introduce;
{¶ 116} “(5) Photographs and any physical evidence which a party intends to introduce at the hearing;
{¶ 117} “(6) Except in delinquency and unruly child proceedings, other evidence favorable to the requesting party and relevant to the subject matter involved in the pending action. In delinquency and unruly child proceedings, the prosecuting attorney shall disclose to respondent‘s counsel all evidence, known or that may become known to the prosecuting attorney, favorable to the respondent and material either to guilt or punishment.”
{¶ 118} Father claims that his counsel was unable to adequately prepare for the hearing because he was still receiving discovery from the state. Counsel indicated at the adjudicatory hearing that, “As of yesterday, I received some 44 pages. I cannot say that I am prepared for trial, given the late response. I just received the guardian ad litem‘s report this morning.” Counsel did not specifically describe the discovery he was lacking. Nor did he describe what the 44 pages of discovery he had received the day prior to trial pertained to. Finally, he did not indicate how his trial preparation had been affected.
{¶ 119} On May 1, 2009, father filed a request for discovery pursuant to
{¶ 120} On June 3, 2009, LCCS requested discovery from the parents and the guardian ad litem. Seven days later, on June 10, 2009, LCCS filed a motion to compel
{¶ 121} Similarly, mother responded in her memorandum in opposition to the state‘s motion to compel discovery, that the discovery obtained from LCCS included “several hundred pages.” She also noted that she received an additional 44 pages of discovery by fax the following day and questioned how she could respond in such a short period of time given the amount of discovery received.
{¶ 122} The record reflects that an amended case plan, totaling 72 pages, for all of the children, was filed on June 11, 2009. In addition, the record includes a report of the guardian ad litem that was filed June 16, 2009, and which comprises eight pages.
{¶ 123} We note that the Rules of Juvenile Procedure which control adjudication proceedings in juvenile court differ from the Rules of Criminal Procedure in regard to a continuing duty to disclose. Unlike
{¶ 124}
{¶ 125} Father did not complain that a request for discovery was refused. Instead, he complains that he received supplemental discovery that LCCS was not obligated to provide. Because of counsel‘s failure to describe with particularity the documentation received immediately prior to the adjudication hearing, it is not known
{¶ 126} As such, we conclude there is no basis upon which we can find that the state did not comply with
B. Continuance of the hearing
{¶ 127}
{¶ 128} Nevertheless, the right of due process requires that “a defense counsel be afforded the reasonable opportunity to prepare his case.” State v. Sowders (1983), 4 Ohio St.3d 143, 144. The Supreme Court of Ohio has recognized: “‘There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.‘” State v. Unger (1981), 67 Ohio St.2d 65, 67, quoting Unger v. Sarafite (1964), 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921.
{¶ 129} Accordingly, the Ohio Supreme Court in Unger adopted a balancing test in which a trial court‘s right to control its own docket and the public‘s interest in an efficient judicial system are weighed against any potential prejudice to the defendant. Id. at 67. Among other factors, a court should consider “the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case.” Id. at 67-68. See In re S.R., 6th Dist. No. OT-09-024, 2010-Ohio-3073, ¶ 22.
{¶ 130} Having examined all the facts and circumstances that existed at the time counsel complained of the late discovery disclosure, we cannot find that the trial court abused its discretion. Although father‘s counsel told the trial court: “I cannot say that I am prepared for trial, given the latest response,” he did not specifically ask for a continuance.
{¶ 131} Considering that father‘s counsel did not explain why he needed additional time to prepare for the adjudication hearing and what else he wished to do in furtherance of an adequate defense, we fail to see how there was anything presented by father in the way of potential prejudice for the trial court to consider in evaluating his
{¶ 132} Moreover, father has not demonstrated any actual prejudice resulting from the denial of the continuance. Although he insists on appeal that he was entitled to a continuance, father has still not identified or even alleged that there is any particular evidence, argument, or defense that he was unable to present at trial due to the purported lack of preparation time. In the absence of such a showing, the denial of a continuance, even if erroneous, will not provide a basis for reversal on appeal. See State v. Harris, 6th Dist. No. WM-09-015, 2010-Ohio-3526, ¶ 18. See, also, In re Am. Transm. Sys., Inc., 125 Ohio St.3d 333, 2010-Ohio-1841, ¶ 34; State v. Claytor (1991), 61 Ohio St.3d 234, 241; State v. Starks, 9th Dist No. 23622, 2008-Ohio-408, ¶ 11; State v. Amason (Nov. 17, 1999), 1st Dist. No. C-980910; Roseman v. Village of Reminderville (1984), 14 Ohio App.3d 124, 127.
(C) Recalling a witness for cross-examination
{¶ 133} Father maintains that the juvenile court erred in refusing to allow him to recall a witness. Father asserts that he informed the juvenile court magistrate that he could not continue cross-examination of Ms. Ledford because of the substantial amount of discovery he had received the day before the adjudicatory hearing. He asked that he be permitted to suspend his examination of that witness and recall her at a later time. The magistrate responded, “Sure.”
{¶ 135} As with his argument for a continuance, father did not explain how he was prejudiced by the failure of the court to allow him to recall Ms. Ledford. Although he insists on appeal that he was entitled to cross-examine Ms. Ledford, father has not identified or even alleged that there is any particular evidence, argument, or defense that he was unable to present at trial due to his inability (or failure) to recall Ms. Ledford and further cross-examine her. In the absence of any prejudice, there can be no abuse of discretion in failing to allow father the opportunity to recall a witness.
{¶ 136} We conclude that the state complied with
{¶ 137} Accordingly, father‘s second assignment of error is not well-taken.
V. CONCLUSION
{¶ 139} Specifically, there was clear and convincing evidence that Alexander C. and Arlene C. suffered physical and mental injuries as a result of the acts of their parents. Further, there was clear and convincing evidence that all of the children were neglected.
{¶ 140} Accordingly, the judgment of the Lucas County Common Pleas Court, Juvenile Division is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
C.A. No. L-10-1025
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, P.J. _______________________________
Keila D. Cosme, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.