In re A.W.
No. 25601
Court of Appeals of Ohio, Ninth District, Summit County
Decided Sept. 7, 2011
[Cite as In re A.W., 195 Ohio App.3d 379, 2011-Ohio-4490.]
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, for appellee.
{¶ 1} Appellant, Brea M. (“Mother“), appeals from the decision of the Summit County Court of Common Pleas, Juvenile Division, that adjudicated her minor child, A.W., to be dependent and placed her in the temporary custody of the Summit County Children Services Board (“CSB“). This court reverses.
INTRODUCTION
{¶ 2} The central issue in this case stems from CSB‘s removal of a newly born infant directly from the hospital in the belief that she was at risk of harm because
BACKGROUND
{¶ 3} Mother‘s first child, F.M., was born on August 14, 2007. At four months of age, F.M. was taken to the hospital, where she was found to have a hematoma on her brain and bruising on her chest. The child was subsequently adjudicated to be abused and dependent by the juvenile court pursuant to a stipulation by the parties. No perpetrator was ever identified. There is no evidence that either of A.W.‘s parents was involved in harming F.M., and no criminal charges were brought against anyone. Mother initially engaged in a reunification plan, but at 17 years of age, she ultimately decided to surrender her parental rights.
{¶ 4} At the conclusion of the proceedings regarding F.M., the CSB caseworker learned that Mother was pregnant with another child. Thereupon, the caseworker initiated inquiries to area hospitals, which resulted in CSB‘s learning when and where Mother delivered A.W. Two days after the child‘s birth on March 15, 2010, CSB removed the infant from the hospital, based upon a claim that she was at risk of harm. The agency sought and obtained temporary custody upon an adjudication of dependency. Mother has now appealed and has assigned six errors for review.
First Assignment of Error
The trial court committed reversible error when it improperly found dependency under [R.C.] 2151.04(D) as that finding was against the manifest weight of the evidence.
{¶ 5} In her first assignment of error, Mother argues that the trial court finding of dependency under
{¶ 6} In its complaint, CSB alleged that A.W. was dependent under
{¶ 7} Following the adjudicatory hearing, the magistrate found A.W. to be dependent under
STANDARD OF REVIEW
{¶ 8} In determining whether an adjudication of a child as abused, neglected, or dependent 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 M.H., 9th Dist. No. 09CA0028, 2009-Ohio-6911, 2009 WL 5150363, at ¶ 14, quoting State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541.
{¶ 9} Moreover, an adjudication of abuse, neglect, or dependency must be established by clear and convincing evidence.
R.C. 2151.04(D)
{¶ 10}
(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.
(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.
{¶ 11} A finding of dependency under this section requires proof that both of the above provisions apply. Thus, a lack of clear and convincing evidence on either paragraph will prevent a finding of dependency under
{¶ 12} Mother contends that CSB did not present evidence that satisfies the requirements of
{¶ 13} Mother next argues that CSB failed to satisfy
{¶ 14} Finally, Mother contends that CSB failed to demonstrate that the person who committed the act that resulted in the adjudication as to F.M. would be residing with A.W. as required under
{¶ 16} CSB acknowledges that it has no evidence that Mother abused or neglected F.M., even though it reportedly conducted an investigation. Nor is there any evidence that the maternal grandmother or Mother‘s sister committed such acts. In fact, no one was charged with or convicted of harming F.M. There is no medical evidence in the record regarding any of the details surrounding F.M.‘s condition. Nor is there any evidence as to when F.M. might have been injured, who took her to the hospital, whether Mother reacted appropriately upon learning of F.M.‘s condition, what treatment the child received, the child‘s current condition, or whether any part of the child‘s condition was the result of an intentional act, an accident, or even a medical condition. The agency presented no evidence that a member of A.W.‘s household had “committed an act” that was the basis for F.M.‘s adjudication. Thus, CSB failed to connect any members of A.W.‘s household to F.M.‘s condition in order to demonstrate that a similar risk of harm existed for A.W.
{¶ 17} Notwithstanding, CSB has argued that the statute is satisfied simply by virtue of Mother having custody of F.M. In other words, Mother should be deemed to have committed an act that resulted in F.M.‘s adjudication because F.M. was in her care and custody at the time that harm befell F.M. In effect, CSB contends that because Mother had custody of her child, she was responsible for everything that happened to her, regardless of whether Mother was present, involved, or had any knowledge of the situation and regardless of whether F.M.‘s condition was the result of intention, accident, or otherwise.
{¶ 18} Of course, parents are always ultimately “responsible” in a broad sense for their children, but we have not found any authority that provides such a sweeping interpretation of the “committed an act” language contained in
{¶ 19} The Twelfth District Court of Appeals has addressed a situation in which the perpetrator against the first child was also unknown, but ample facts and evidence were placed upon the record, which permitted the trial court to conclude that the second child would be residing with one of the four people responsible for the prior abuse. See In re S.M., 12th Dist. No. CA2006-08-030, 2007-Ohio-2297, 2007 WL 1394634. In S.M., the record contained specific findings by the trial court that the first child had been intentionally and brutally injured by one of four people who were also members of the second child‘s household and would be responsible for that child‘s care. Id. at ¶ 4. Therefore, on the basis of the record before it, the reviewing court was able to affirm the trial court‘s finding that the continued presence of the same four people put the second child in danger of being abused or neglected. Id. at ¶ 17. See also In re Pieper Children (1993), 85 Ohio App.3d 318, 323-324, 619 N.E.2d 1059 (separation between mother and abusive father was a sham, permitting the conclusion that restoring custody to mother would subject the children to possible further abuse). In marked contrast to the detailed record and specific findings by the court in S.M., no such evidence was presented in this case, and no detailed findings were made based upon the record evidence.
{¶ 20} Based upon the record before this court, we find that CSB failed to present clear and convincing evidence that A.W. would be residing in a household with a person who committed an act that was the basis for the adjudication regarding F.M. Accordingly, CSB has not clearly and convincingly established the statutory requirements of
CONCLUSION
{¶ 21} Mother‘s first assignment of error is sustained. The remaining assignments of error need not be addressed. See
Judgment reversed and cause remanded.
DICKINSON, J., concurs.
CARR, J., dissents.
CARR, Judge, dissenting.
{¶ 22} I respectfully dissent.
{¶ 23} I agree that CSB has not challenged the trial court‘s determination that A.W. was not dependent pursuant to
{¶ 24} I disagree, however, with the majority‘s conclusion that CSB failed to present clear and convincing evidence that A.W. was residing in a household in which a person residing therein committed an act that was the basis for an adjudication that A.W.‘s sibling was an abused, neglected, or dependent child so as to find A.W. dependent pursuant to
{¶ 25} In this case, A.W.‘s sibling was adjudicated abused and dependent based on Mother‘s stipulation to those facts. Mother‘s act of stipulating that F.M. was abused and dependent resulted in that child‘s adjudication as such. Notwithstanding the absence of evidence regarding the specific circumstances resulting in F.M.‘s injuries, I would conclude that Mother‘s stipulation that the child was both abused and dependent constituted the commission of an act that formed the basis of the child‘s adjudication pursuant to
{¶ 26} Moreover, I would conclude that the circumstances surrounding F.M.‘s abuse and dependency, specifically the child‘s sustaining of unusual, unexplained, and significant injuries, indicate that A.W. is in danger of being abused or neglected by a person in the household so as to satisfy