IN RE: D.J., ADJUDICATED NEGLECTED/ DEPENDENT CHILD. [SHARON RACHEL CARVER – APPELLANT]. IN RE: I.M., ADJUDICATED NEGLECTED/ DEPENDENT CHILD. [SHARON RACHEL CARVER – APPELLANT].
CASE NO. 14-14-09, CASE NO. 14-14-10
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
November 24, 2014
2014-Ohio-5204
Appeals from Union County Common Pleas Court Juvenile Division Trial Court Nos. 21330038 and 21330039
Alison Boggs for Appellant
Rick Rodger for Appellee
{1} Appellant Sharon R. Carver (“Carver“) brings this appeal from the judgment of the Court of Common Pleas of Union County, Juvenile Division, adjudicating her children as dependent. Carver challenges this determination as well as the granting of temporary custody of the children to Appellee the Union County Department of Job and Family Services, Children‘s Services Division (“the Agency“). For the reasons set forth below, the judgment is reversed.
{2} In January of 2000, D.J. was born to Carver and Richard L. Jones (“Jones“). 38R. 1.1 D.J. has an older sister who is in the custody of Jones. In September of 2009, I.M. was born to Carver and Christopher Muncey (“Muncey“). 39R. 1. On October 10, 2013, the Agency filed two complaints alleging that D.J. and I.M. were neglected children pursuant to
{3} On November 8, 2013, the trial court sua sponte continued the adjudicatory hearing beyond the initial 30 days and scheduled the hearing for December 17, 2013. 38R. 20 and 39R. 19. Carver notified the trial court of her new address on November 15, 2013. 38R. 22 and 39R. 21. On November 21, 2013, counsel for Carver was appointed. 38R. 29 and 39R. 28. On December 11, 2013, Jones filed a motion for a continuance due to a schedule conflict his counsel had with the hearing date. 38R. 46 and 39R. 42. The trial court granted the motion for a continuance and rescheduled the adjudicatory hearing for January 6, 2014. 38R. 48 and 39R. 50. The paternal grandmother, Judy Gray (“Judy“) and her husband, Charlton Gray (“Charlton“) filed a motion to intervene on December 13, 2013. 39R. 44. The trial court granted this motion for the purposes of temporary orders and disposition on December 13, 2013. 39R. 45. On January 3, 2014, Jones filed a motion for custody of D.J. 38R. 49.
{5} On cross-examination, Vance admitted that she was testifying as to what had been reported to her as she did not have personal knowledge of Carver‘s situation on September 25, 2013, because she was not present. Adj. Tr. 21. Vance also testified that Carver was staying somewhere as she was not in a homeless shelter or living out of her car. Adj. Tr. 22. From August through September 25, D.J. had been living with Carver and I.M. and they had a residence. Adj. Tr. 23. The children were always dressed appropriately and there were no indications that they were malnourished. Id. As of the morning of September 25, 2013, when the Agency closed the prior case involving D.J.‘s older sister, the Agency had no concerns about dependency. Adj. Tr. 25. After Carver told Vance they would stay with Carver‘s brother, there were no concerns that the children lacked appropriate housing, food, or clothing. Adj. Tr. 29. As of the filing date, the children were living in appropriate housing as they were living with Carver‘s brother. Adj. Tr. 31-32.
{7} Brittany Bunce (“Bunce“) testified that she was an on-going caseworker with the Agency. Adj. Tr. 42. Bunce testified that she was on call the evening of September 25, 2013, and was the caseworker who went to the hospital to meet with Carver. Adj. Tr. 43. Bunce went to the hospital because she was told that Carver “was acting inappropriately and couldn‘t care for her children and [the hospital staff] were questioning [Carver‘s] mental state and ability to care for them.” Adj. Tr. 43-44. When Bunce arrived at the hospital, she heard Carver “screaming and yelling and crying” and there were multiple security guards outside of her room. Adj. Tr. 44. Bunce questioned Carver as to why she was at the hospital and was told that Carver had injured her wrist. Adj. Tr. 45. When
{9} Patricia Williams (“Williams“) was the Deputy Director for the Agency. Adj. Tr. 57. Williams testified that as of October 10, 2013, Carver was not able to provide a home for the children. Adj. Tr. 61. The Agency had agreed to pay some application fees for housing, but Carver, at that time, had not followed through with submitting the applications. Id. Williams was not aware of whether Carver had applied for any type of assistance. Id. Williams testified that as of the date of the complaint, the children were dependent because Carver did not have a place to live.2 Adj. Tr. 65. On cross-examination, Williams admitted that she had no direct knowledge of how Carver acted while at the hospital. Adj. Tr. 67. Williams testified that Carver had not asked to have custody of the children returned to her. Adj. Tr. 68.
{10} During the testimony of Williams, the magistrate noted some unusual behavior by Carver.
The Court: Mr. Peistrup, is your client all right? She‘s been sitting for, at least, four minutes with her eyes closed and her
mouth moving and I want to make a record of it because she‘s kind of exhibiting some odd behaviors in Court here today. Is she okay? Mr. Peistrup: She‘s fine, Your Honor.
Adj. Tr. 71. Later in the hearing, Carver‘s attorney pointed out that Jones had been making very “inappropriate facial commentary.” Adj. Tr. 89. Carver then stated that Jones’ behavior was why she had closed her eyes earlier while sitting near him. Adj. Tr. 90. The magistrate ordered Jones to stop his behavior. Id.
{11} After the Agency presented its case, Carver made a motion to dismiss the complaint on the basis that the Agency failed to prove by clear and convincing evidence that the children were neglected or dependent. Adj. Tr. 77. The motion was overruled and Carver then testified on her own behalf. Adj. Tr. 79-80.
{12} Carver testified that she is the mother of the children. Adj. Tr. 81. On the morning of September 25, 2013, Carver went to court concerning the custody of her oldest daughter and was suffering a great deal of anxiety because of that. Id. Carver testified that her relationship with Jones was poor and that he had been abusive towards her. Adj. Tr. 82. As a result of this, Carver had obtained protection orders to keep Jones away from her. Adj. Tr. 84. After the hearing, Carver had a doctor‘s appointment and then had to take D.J. to her counseling appointment. Adj. Tr. 82. Earlier in the day, she had injured her wrist and it was
{13} When they arrived at the hospital that night, Carver‘s mother dropped Carver, D.J., and I.M. off at the door and then drove away. Adj. Tr. 87. Carver testified that the doctor came in and made some comments about her parenting. Id. Carver admitted that she said “some rude stuff” and raised her voice, but she denied cursing at D.J. or the hospital staff. Id. According to Carver, she was arguing with D.J. because D.J. had previously been grounded from her ipod, but was playing with it in the hospital. Id. Carver also testified that she was in pain and that the pain was being aggravated by I.M. jumping on the bed in which she was lying. Adj. Tr. 88. When Bunce arrived, Carver was terrified.
{14} The next day, Carver went to her brother‘s home to prepare a space for the children and herself. Adj. Tr. 90. Then she returned to her home to start packing up their belongings. Adj. Tr. 91. The children went to stay with Carver‘s brother on September 26, 2013, and Carver was supposed to follow a few days later. Adj. Tr. 93. However Carver was never allowed to move in with the children. Adj. Tr. 94. Carver testified that her sister-in-law called her and told Carver that they (the brother and sister-in-law) did not want her to move in because they did not want Carver “judging their parenting skills“. Adj. Tr. 95. The children were still allowed to stay there though. Id. Carver testified that she did not feel that she could take the children out of her brother‘s home because the Agency had made it clear that if she did, the Agency would take custody of the children. Id.
{16} After all the evidence was presented, the magistrate took a few moments to consider it. Adj. Tr. 118-19. The magistrate then made the following findings.
With regard to both children, the Court does not find that the Agency‘s proved by clear and convincing evidence that they‘re neglected. So, I‘m dismissing both of those allegations. Dependency is where I got stuck because, certainly, they‘re not – they are homeless because of the testimony I heard and I find that by clear and convincing evidence but I don‘t find that it‘s through no fault of the parents, guardians or custodians.
Certainly, I heard testimony that [Jones] has only visited with [D.J.] twice and that there were application fees paid for [Carver] and that she didn‘t follow up on them to alleviate the homelessness, so I can‘t find a no fault there.
I didn‘t hear enough testimony or evidence to make a finding that anything that occurred was by reason of mental or physical condition because I didn‘t hear that nexus, so I‘m down to the last dependency section. Whose condition or environment such to warrant the State in the interest of the child in assuming
Guardianship the Court does find by clear and convincing evidence that the Agency proved that element and so, therefore, the Court adjudicates both children dependent.
Adj. Tr. 119-20. The magistrate also noted that the “odd” behavior of Carver at the hearing was also a basis for the finding of dependency. Adj. Tr. 121. The written magistrate‘s decision adjudicating D.J. as a dependent child was filed on January 16, 2014. 38R. 72 and 39R. 75. The trial court approved this decision on January 22, 2014. 38R. 73 and 39R. 76.
{17} On January 6, 2014, prior to the adjudicatory hearing, the Agency filed its case plan. 38R. 53 and 39R. 56. The case plan listed the following strengths among others: 1) Carver had a strong desire to be reunified with the children and regularly attends visitations; 2) D.J. was old enough to recognize abuse and had the ability to report it; 3) Carver‘s mother was willing to supervise visitations with Carver outside of the Agency; 4) D.J. was well behaved and was passing all of her classes; 5) the children were both physically healthy; 6) both children showed normal physical, cognitive, and social development; and 6) the children had a strong bond and interacted healthily. Id. The concerns that related to Carver were 1) she needed to obtain and maintain appropriate housing and 2) she needed counseling to address her PTSD. Id. The case plan indicated that Carver did not agree with the plan as it related to visitation. Id.
{19} The dispositional hearing was held on January 7, 2014. 38R. 75 and 39R. 78. The magistrate filed her decision on January 16, 2014. Id. The magistrate recommended temporary custody of the children to the Agency, but indicated that I.M. could be placed with his paternal grandmother. D.J. was not allowed to be placed with Jones and Carver was granted supervised visits only. Id. The trial court approved the decision of the magistrate on January 22, 2014. 38R. 76 and 39R. 78. On February 10, 2014, Carver filed her objections to the magistrate‘s decisions. 38R. 80 and 39R 83. Carver claimed 1) the magistrate should not have granted the motion of Judy and Charlton to intervene; 2) the Agency failed to prove that the children were neglected or dependent; 3) the magistrate improperly considered Carver‘s demeanor in the hearing as a basis for
First Assignment of Error
The trial court‘s decision to uphold the magistrate‘s finding of dependency was against the manifest weight of the evidence and amounted to an abuse of discretion.
Second Assignment of Error
The magistrate inappropriately considered [Carver‘s] actions in court as part of the reason to find the children were dependent.
Third Assignment of Error
The magistrate erred in ruling at disposition that [Carver] had to have supervised visitation with her children instead of returning the children to her while the case plan was being worked.
Fourth Assignment of Error
The Agency failed to use reasonable efforts to avoid removal of the children from the home and prevent the children from going into foster care.
As used in this chapter, “dependent child” means any child:
(A) Who is homeless or destitute or without adequate parental care, through no fault of the child‘s parents, guardian, or custodian;
(B) Who lacks adequate parental care by reason of the mental or physical condition of the child‘s parents, guardian, or custodian;
(C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child‘s guardianship[.]
[A] consideration of the “best interests” of the child should not enter into the initial factual determination of dependency. It becomes a proper focus only when the emphasis has shifted to a consideration of the statutorily permissible dispositional alternatives.
In re Cunningham, 59 Ohio St.2d 100, 107, 391 N.E.2d 1034 (1979).
{21} In this case, a review of the record indicates that no specific dates were alleged in the complaints. The complaints instead merely discussed the past history and indicated that Carver had voluntarily agreed to have the children live with her brother. The Agency merely stated that it was “necessary that the Agency remain involved.” The only specified date is that a prior case was closed on September 25, 2013. The complaint then goes on to say that the Agency then received another report regarding the well-being of the children and then proceeds to talk about the prior case. No specific date was alleged. Thus, the only date for the trial court to use is the filing date of the complaint, i.e. October 10, 2013. See Rowland, supra (holding that when the Agency fails to allege a specific date, the operative date necessarily becomes the date of the filing of the complaint).
{22} A review of the evidence presented at the adjudicatory hearing indicates that Carver was residing with her mother on October 10, 2013, and the children would not have been able to stay with her at that location for a long
{23} Since this court has sustained the first assignment of error concerning the adjudication of the children as dependent, the next three assignments of error are moot. Thus, this court will not address them.
{24} Having found error prejudicial to the appellant, the judgments of the Court of Common Pleas, Juvenile Division, are reversed and the matter is remanded for further proceedings.
Judgments Reversed and Causes Remanded
ROGERS, J., concurs.
PRESTON, J., dissents.
/jlr