In re D.P.
Rendered on January 24, 2013
Ron O‘Brien, Prosecuting Attorney, and Jeanne M. Newkirk, for appellee State of Ohio.
CASA of Franklin County, and David Schutte, Guardian ad Litem.
Joy L. Marshall, for M.P., father of D.P.
Giorgianni Law LLC, and Paul Giorgianni, for appellant E.F.
APPEALS from the Franklin County Court of Common Pleas, Division of Dometic Relations, Juvenile Branch.
SADLER, J.
{¶ 1} Appellant, E.F., appeals from judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, that denied her motion to dismiss the complaints аlleging her two sons, T.H. and D.P., to be dependent children. For the reasons that follow, we affirm the judgments of the trial court.
{¶ 2} In addition to T.H., born on October 1, 1999, and D.P., born on November 21, 2002, appellant has a daughter, J.H., born on January 17, 2001. On October 31, 2011, Franklin County Children Services (“FCCS“) filed complaints alleging T.H. and D.P. to be dependent minor childrеn and alleging J.H. to be an abused, neglected, and dependent minor child. According to the complaints pertaining to T.H. and D.P., the children‘s stepfather, L.F., had been sexually abusing J.H. during times that appellant was either asleep or away from the residence. The complaints also alleged J.H. was disciplinеd when she contacted law enforcement regarding the incidents, and that J.H. is fearful of returning home because L.F. would hit her. Additionally, the complaints alleged appellant has indicated she does not believe the allegations, and she has not asked L.F. to leave the family‘s residence. FCCS was awardеd emergency custody of all three children that same day. Due to statutory time constraints, the complaints were refiled on January 25, 2012, and then again on April 17, 2012. Each refiled complaint contained allegations that were substantially similar to those asserted in the previously filed complaints.
{¶ 3} After the filing of thе April 17 complaints, appellant filed a motion to dismiss the complaints pertaining to T.H. and D.P. The basis of appellant‘s motion to dismiss was that the complaints were insufficient because the complaints lacked specific facts to constitute dependency under
{¶ 4} Adjudicatory hearings began on June 19, 2012, and the first witness called to testify was a medical forensic interviewer employed at Children‘s Hospital‘s Center for Family Safety and Healing. Other witnesses testifying at the hearing were J.H., one of J.H.‘s teachers, a Reynoldsburg police officer, and appellant. However, prior to the completion of the adjudicatory hearing, the parties indicated that they wоuld be proceeding uncontested on the complaints with respect to J.H. and T.H. Counsel for appellant stated they were proceeding uncontested “with the caveat that we preserve our notice of appeal on the issue of mo – dismissing.” (July 9, 2012 Tr., 3.) When the hearing
II. ASSIGNMENT OF ERROR
{¶ 5} Appellant appealed from the trial court‘s judgments regarding T.H. and D.P. and brings the following assignment of error for our review:
In each of the cases, the Juvenile Court erred in overruling Appellant‘s April 17, 2012 motion to dismiss.
III. DISCUSSION
{¶ 6} At the adjudication hearing, appellant proceeded uncontested, and on appeal, appellant does not challenge the trial court‘s finding of T.H. and D.P. to be dependent minor children. Rather, appellant contends the trial court erred in denying her mоtion to dismiss the complaints alleging the boys dependent, pursuant to
{¶ 7} Specifically, appellant frames the issue for review as “[w]hether а complaint sufficiently pleads dependency under
{¶ 8} Though appellant first argues under her assigned error that this matter should have been brought under
{¶ 9}
As used in this chapter, “dependent child” means any child:
* * *
(C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child‘s guardianship.
{¶ 10} Regarding the filing of complaints alleging dependency,
[A]ny person having knowledge of a child who appears * * * to be an unruly, abused, neglected, or dependent child may file a sworn complаint with respect to that child. * * * The sworn complaint may be upon information and belief, and, in addition to the allegation that the child committed the violation or is an unruly, abused, neglected, or dependent child, the complaint shall allege the particular facts upon which the allegation that the сhild committed the violation or is an unruly, abused, neglected, or dependent child is based.
{¶ 11} Additionally, Juv.R. 10(B) provides in relevant part:
The complaint, which may be upon information and belief, shall satisfy all of the following requirements:
(1) State in ordinary and concise language the essential facts that bring the procеeding within the jurisdiction of the court, and in juvenile traffic offense and delinquency proceedings, shall contain the numerical designation of the statute or ordinance alleged to have been violated.
{¶ 12} The basis of
{¶ 13} As held in In re Hunt, 46 Ohio St.2d 378 (1976), “[a] complaint under Juv.R. 10 and
“The undersigned, [L.H.], says that she has knowledge of certain children, to-wit: [C.S.] and [D.M.H.] age 7 and 5 years, respectively * * * who appear to be dependent in that their condition or environment is such as to warrant the state, in the interests of the children, in assuming their guardiаnship, * * *.” Much of this language is a direct quotation of
R.C. 2151.04(C) , one of the statutory definitions of a dependent child.
{¶ 14} Because it contained no particular facts as required by
Parents are divorced. Mother, [E.J.]‘s whereabouts are unknown to the complainant at the time of filing. Father, [P.H.]‘s whereabouts are known. The family first became known to Franklin County Children Services in 1995. On or about November 29, 1999 Children Services received a referral stating mother has dropped this child off at the paternal grandparents’ home. On November 23, 1999 mother dropped this child off at the pаternal grandparents’ home requesting they take care of him for a few days. Mother did not provide any clothing for this child. A bag of clothes were left on the paternal grandparents’ front porch on November 26, 1999 however these clothes were not suitable. Mother has a history of continually moving betwеen, Franklin, Pickaway, Ross and Hocking counties and has also been involved with the child welfare agencies of these counties. Father will be incarcerated at Franklin County Community Based Correctional Facility until May 2000, case number 96CR5534 and 97CR5887.
{¶ 15} This court concluded in Johnson that the complaint contained particular facts upon which the allegations of neglect and dependency were based, and, therefore, the complaint sufficiently stated causes of action for neglect and dependency in accordance with Hunt.
{¶ 16} In the case sub judice, the complaints state:
On or about October 27, 2011, Franklin County Children Services received a referral regarding the well being of [T.H.‘s аnd D.P.‘s] sibling, [J.H.]. It was reported that stepfather, [L.F.], has placed his hands in [J.H.]‘s pants, and has touched her genitals and buttocks. Reportedly, [L.F.] has forced [J.H.] to touch his penis and makes her hands move up and down until he ejaculates. [L.F.] has inappropriately touched [J.H.] on multiple occasions and that when she contacted law enforcement regarding the incidents, she was disciplined. It was further reported that the incidents have been occurring while mother is asleep or away from the residence. [L.F.] had knee surgery recently and has not had sexual contact with [J.H.] since that time. It is unclear when the knee surgery oсcurred. [J.H.] has expressed fear of returning home and that [L.F.] would hit her. [J.H.] has urinated in her pants on several occasions, as well. Mother has indicated that she does not believe the allegations and has not asked stepfather to leave the family‘s residence.
{¶ 17} Appellant argues that a finding of sufficiеncy of these complaints renders
{¶ 18} Appellant also asserts scientific research of child sexual abuse does not support a judicial presumption that a man accused of sexually abusing аn adolescent girl is a danger to a boy; therefore, the facts alleged herein are insufficient to allow a dependency finding under
{¶ 19} The essence of appellant‘s challenge to the complaint alleging dependency of T.H. and D.P. is that a male child cannot be alleged dependent under
{¶ 20} The complaints at issue allege not only that J.H. has been sexually abused by the children‘s stepfather, but also that said abuse occurred in the home when appellant was either asleep or away from the residence. The complaints also alleged J.H. was disciplined when she contacted law enforcement regarding the incidents. Additionally, the complaints alleged appellant has indicated she disbelieves the allegations and has not asked the stepfather to leave the family‘s residence. The unwillingness of a mother to sever ties with a father who presents a danger to their child can present an environment requiring state intervention to protect the child. In re B.K., 6th Dist. No. L-10-1053, 2010-Ohio-3329, ¶ 34, citing In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 54.
{¶ 21} We conclude the complaints alleging dependency of T.H. and D.P. contain particular facts, concerns, and allegations leading to their filing and were thereby filed in accordance with
{¶ 22} Because we have concluded the complaints challenged herein sufficiently state a claim for dependency under
{¶ 23} Having overruled appellant‘s sole assignment of error, the judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, are hereby affirmed.
Judgments affirmed.
TYACK and CONNOR, JJ, concur.
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