2006 Ohio 2717 | Ohio Ct. App. | 2006
{¶ 2} Appellant and his fiancé, Christina Gannon, lived together with four children. Gannon was the natural mother of two of the children, who had different fathers, neither being appellant. Appellant and Gannon were the natural parents of one of the children. Appellant was the natural father of the other child, A.P., whose natural mother was not Gannon.
{¶ 3} In January 2005, appellant, Gannon, and several friends went to a local restaurant and bar where they ate dinner and consumed numerous alcoholic drinks. The group returned to the home of appellant and Gannon around 11:00 p.m. The four children who resided there, including A.P., were asleep at the time. Gannon's 14-year-old brother had been babysitting the children.
{¶ 4} At some point, appellant left to take one of the couple's friends home. When appellant returned to the couple's residence about 2:00 a.m., he and Gannon became embroiled in an argument. During the argument, appellant stabbed Gannon with a knife. Both parties were highly intoxicated, and neither party could later recall any details of the argument or the stabbing. At the adjudication hearing, appellant testified that he recalled seeing Gannon "screaming and being on the ground bleeding." At that point, he drove Gannon to the hospital. Gannon spent six days in the hospital, including four in the intensive care unit with a collapsed lung, before recovering.
{¶ 5} Appellant was arrested at the hospital, charged with felonious assault and domestic violence, and taken to jail.2 While appellant and Gannon were at the hospital, Gannon's 14-year-old brother continued to watch the four children. An adult friend of the couple, who had been temporarily residing in the home, also watched the children. The next day, the fathers of two of the children picked up their children, Gannon's stepmother picked up the natural child of appellant and Gannon, and appellant's father picked up A.P. Appellant's father has cared for A.P. since that day.
{¶ 6} A few days after the stabbing, the Butler County Children Services Board ("BCCSB") filed a complaint in the juvenile court alleging that A.P. was a dependent child. After an adjudication hearing in June 2005, the juvenile court determined that A.P. was a dependent child. The court found as follows: "While there was no evidence presented that father has in any way endangered * * * [A.P.] to this point, the physical evidence (the knife), the egregiousness of father's actions, and father's lack of memory of the incident due to his extreme inebriation does warrant a finding that the child is dependent, in order to prevent the risk of recurrence of such violence or inebriation which could place * * * [A.P.] at risk in the future." The court granted temporary custody of A.P. to appellant's father.
{¶ 7} Appellant now appeals, assigning two errors.
{¶ 8} Assignment of Error No. 1:
{¶ 9} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTA-PPELLANT WHEN IT REFUSED TO DISMISS THE COMPLAINT FOR FAILURE TO CONDUCT THE ADJUDICATORY AND DISPOSITION HEARINGS WITHIN THE PROPER STATUTORY TIME FRAMES."
{¶ 10} In this assignment of error, appellant asserts that the juvenile court did not hold the adjudication hearing within 30 days of the filing of BCCSB's complaint, nor was there a dispositional hearing within 90 days of the filing of the complaint, as required by statute. According to appellant, the court's failure to follow statutory requirements should have resulted in the dismissal of the case.
{¶ 11} R.C.
{¶ 12} R.C.
{¶ 13} A party may waive the right to an adjudication hearing within the time period stated in R.C.
{¶ 14} BCCSB filed its complaint alleging dependency on January 20, 2005. On January 21, 2005, the juvenile court held a shelter care hearing, at which it granted temporary custody of A.P. to appellant's father. The court scheduled a pretrial hearing for March 11, 2005.
{¶ 15} At the March 11, 2005 pretrial hearing, appellant's counsel stated the following when September 2005 was suggested as a possible time for the adjudication hearing: "Let's just have an adjudication; I don't want to put it off. Well, it would have been nine (9) months * * * [to] a year for adjudication. That's not in compliance with the statute of law." Later in the hearing, appellant's counsel stated the following: "I do not consider nine (9) months a reasonable limit. This case was filed in January; September's nine (9) months. How about June, which would be six (6) months, which seems to me to be a long time too[?]" The court subsequently asked appellant's counsel if June 29, 2005 would be an acceptable date for the adjudication hearing. Appellant's counsel responded as follows: "Yeah, I'll make that work Your Honor." The court scheduled a pre-trial hearing for June 3, 2005 and the adjudication hearing for June 29, 2005.
{¶ 16} On the day of the June 29, 2005 hearing, appellant's counsel, who was not the same counsel as appellant's counsel at the earlier hearings, filed a motion asking the juvenile court to dismiss the case due to the lack of timeliness of the adjudication hearing. The court denied the motion, noting that appellant's counsel had not filed the motion prior to seven days before the hearing.
{¶ 17} After reviewing the record, we find that appellant implicitly waived his right to an adjudication hearing and a dispositional hearing within the applicable statutory time periods. Appellant's counsel was aware that the June 29, 2005 hearing date was after the expiration of the applicable statutory time periods, yet agreed to that date at the March 11, 2005 pre-trial hearing. Further, the record does not show that appellant took issue with the June 29, 2005 date at the June 3, 2005 pretrial hearing. The record indicates that appellant did not move for dismissal when it became his right to do so, but rather waited until the day of the adjudication hearing to raise the issue. Under such circumstances, we find waiver. See BaileyD., 1998 WL 196287 at *2; N.B., 1996 WL 174546 at *1.
{¶ 18} Additionally, appellant did not file his motion in compliance with Juv.R. 22(E). That rule requires that all prehearing motions, except for motions to determine whether a child is eligible to receive a sentence as a serious youthful offender, be filed by the earlier of: "(1) seven days prior to the hearing, or (2) ten days after the appearance of counsel." As previously stated, appellant did not file his motion to dismiss until the day of the hearing.
{¶ 19} Based on the foregoing discussion, we find no error by the juvenile court in refusing to dismiss the case. Appellant waived his right to an adjudication hearing and a dispositional hearing within the applicable statutory time periods, and failed to file his motion to dismiss in compliance with Juv.R. 22(E). Accordingly, we overrule appellant's first assignment of error.
{¶ 20} Assignment of Error No. 2:
{¶ 21} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTA-PPELLANT WHEN IT ADJUDICATED THE CHILD TO BE A DEPENDENT CHILD."
{¶ 22} In this assignment of error, appellant argues that the juvenile court erred in finding A.P. to be a "dependent child" under R.C.
{¶ 23} A trial court's determination of dependency must be supported by clear and convincing evidence. See R.C.
{¶ 24} R.C.
{¶ 25} "`[D]ependent child' means any child: * * *
{¶ 26} "(C)Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child's guardianship[.]"
{¶ 27} "The determination that a child is dependent requires no showing of fault on the parent's part." In re Bolser (Jan. 31, 2000), Butler App. Nos. CA99-02-038 and CA990-3-048, 2000 WL 146026, *4. Rather, the focus is solely on the child's condition or environment, and whether the child was without adequate care or support. See Ament,
{¶ 28} 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 reBurchfield (1988),
{¶ 29} The courts of appeals in Burchfield and Campbell
affirmed dependency findings under R.C.
{¶ 30} In Campbell, this court affirmed a trial court's dependency finding under R.C.
{¶ 31} The Fifth District Court of Appeals in In the Matterof Burns (June 26, 2000), Licking App. Nos. 99CA124 and 99CA125, 2000 WL 873668, also affirmed a trial court's dependency finding, though the record did not show that prior conduct by the children's parents had yet adversely affected the children. InBurns, the children's parents kept a large amount of pornography in the home, some of which was in close proximity to the children's videotapes. Id. at *5. Further, the parents and the children's 15-year-old brother engaged in illegal sexual activity with a 15-year-old girl in the home. Id. The record did not show that the children had witnessed the illegal sexual activity for which their parents were later indicted. See id. at *6. However, the court affirmed the dependency finding because it was clear that state intervention was needed, given the environment in which the children were living. See id. at *5-6.
{¶ 32} As appellant asserts, the record does not show that A.P. witnessed appellant's excessive drinking and violent behavior, or that appellant's actions had a specific adverse effect on A.P. Nevertheless, as the courts found in Burchfield,Campbell, and Burns, we find sufficient, credible evidence supporting the juvenile court's determination that A.P.'s "condition or environment" warranted state intervention. Appellant was the sole party legally responsible for A.P.'s care. Appellant had legal custody of A.P., whose natural mother had not been granted parenting time. Therefore, A.P.'s environment consisted of being in the care of appellant, who had committed an extremely violent act against his fiancé, and who could not recall the details of the incident due to excessive alcohol consumption. Given the serious nature of the stabbing incident and the detrimental effect appellant's behavior could have on A.P., we find sufficient support for the juvenile court's conclusion that A.P.'s environment warranted state intervention.
{¶ 33} We find this case distinguishable from In re C.M. andC.W., Brown App. Nos. CA2003-02-003 and CA2003-02-004,
{¶ 34} Another important distinction between C.M. and C.W. and this case is that, in C.M. and C.W., the mother made specific arrangements for someone to care for her children when she could not properly do so. She made arrangements with the school to have her children taken to her mother's house following the field trip. See id. at ¶ 23. In this case, appellant and his fiancé did arrange for the fiancé's 14-year-old brother to watch the children while the couple went out with their friends. However, after the stabbing incident, the record does not show that appellant made arrangements for the care of A.P. Appellant testified that he did not "check on" A.P. before leaving for the hospital. Appellant also testified that, once at the hospital, he did not contact anyone about caring for A.P. Appellant testified that he "assumed" Gannon's 14-year-old brother and the adult friend staying with them would "take care of that," and that "they would call somebody."
{¶ 35} Appellant also argues that "[p]erhaps the most telling evidence that * * * [A.P.] was not dependent" was BCCSB's decision to file a dependency complaint only as to A.P., and not as to the other three children who lived at the couple's home. Consistent with that assertion, the record does not indicate that BCCSB filed dependency complaints as to the other children. However, the record shows that A.P. was the only child for whom appellant alone was legally responsible to provide care. As previously stated, the record shows that appellant had legal custody of A.P., and that A.P.'s natural mother had not been granted parenting time with the child. The record indicates that each of the other children had at least one primary caregiver who had not committed a very violent act.
{¶ 36} Regardless of BCCSB's inaction with respect to the other children, we must rule on the specific case before us, which is an appeal of the dependency determination as to A.P. Based on our analysis of the record, we find sufficient, credible evidence supporting the juvenile court's determination that A.P. was a "dependent child." Accordingly, we overrule appellant's second assignment of error.
{¶ 37} Judgment affirmed.
Walsh and Young, JJ., concur.