In re G.C-O.
Jennifer L. Kahler for Appellant
Tiffany F. Hoyt for Appellee
WILLAMOWSKI, J.
{¶1} Appellant William Omlor (“Omlor“) brings this appeal from the judgment of the Court of Common Pleas of Seneca County, Juvenile Division adjudicating that his son is a dependent child. For the reasons set forth below, the judgment is reversed.
{¶2} On October 6, 2010, the minor child G.C-O. was born to Tonya Currier (“Currier“) and Omlor. The two were not married, but had a relationship. Omlor was named the residential parent of G.C-O. on October 26, 2011, and Currier was granted visitation rights. On January 5, 2012, Omlor petitioned the Common Pleas Court of Seneca County for a civil protection order from Currier alleging that she had struck him during an argument. An ex parte civil protection order was granted that same day, however G.C-O. was not a person for whom protection was necessary or sought.
{¶3} On February 2, 2012, Currier went to Omlor‘s home to speak to him about their relationship. She brought her two children from a prior relationship, A.E. who was five years old at the time and J.E. who was four years old at the time, with her. Omlor and Currier spoke on the porch while G.C-O. was in the house sleeping. An argument resulted and Currier threatened to kill herself by placing a piece of glass to her neck and threatening to jump off the roof. Tr. 43.
{¶4} Seneca County Deputy Sergeant Herrig (“Herrig“) responded to the call. When he arrived at the home, he did not see anyone. Tr. 24. Herrig then went to the side of the house and found A.E. and J.E. there. Id. Another officer who was present took the children to the house where Omlor let them enter. Tr. 19. Herrig called out to Currier, who he knew from prior occasions, and asked her to come out of the garage. Tr. 12. When Herrig approached her, she placed her hands behind her and put an object between her belt and pants. Id. Currier then showed Herrig her hands, which had fresh blood on them. Tr. 13. Herrig described the injuries as being scratches with droplets of blood. Tr. 18. The injuries were minor, so Herrig treated them and arrested Currier for violating the civil protection order. Tr. 13. Herrig found a small piece of glass in the small of Currier‘s back. Tr. 13. A.E. and J.E. were left in the care of Omlor. Tr. 14, 21. Herrig did not see G.C-O. at that time and had no concerns about G.C-O. at that time. Tr. 17-18.
{¶5} On February 7, 2012, the Seneca County Department of Job and Family Services (“the Agency“) filed a complaint alleging that G.C-O. was a dependent child as a result of what transpired on February 2, 2012. The Agency moved for an ex parte order to place G.C-O. under the protective supervision of
{¶6} On May 8, 2012, and June 4, 2012, an adjudication hearing was held. The trial court determined that G.C-O. was a dependent child. Omlor filed objections to the magistrate‘s decision. The trial court overruled the objections and adopted the magistrate‘s decision finding G.C-O. to be dependent.2 Omlor appeals from this judgment and raises the following assignments of error.
First Assignment of Error
The finding that [G.C-O.] is a dependent child pursuant to [
Second Assignment of Error
The trial court‘s finding that [G.C-O.] is dependent should be reversed because of the trial court‘s error in drawing a negative inference from [Omlor‘s] invocation of his Fifth Amendment right to remain silent.
The adjudication of a child as dependent, neglected, or abused is the jurisdictional “hook” which allows for the on-going intervention by the State in the lives of children and their parents. It necessitates the juvenile court‘s consideration of the appropriate custodial disposition of the adjudicated child and permits the continued removal of children from their parents’ homes. While not every parent‘s rights are terminated in these proceedings initiated by the local child welfare agency, some are. Other parents’ rights are significantly curtailed by dispositional orders ranging from legal custody to a third party to planned permanent living arrangements. Given that it is the child‘s adjudication as dependent, neglected, or abused that opens the door to the possibility of the curtailing or termination of parental rights, we believe that the risk of error in these decisions too merits utilization of the criminal manifest weight standard of review. Therefore, in determining whether a juvenile adjudication is against the manifest weight of the evidence:
“The court reviewing 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.C., 9th Dist. No. 24797, 2009-Ohio-5544 (quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997))].
In re M.H., 9th Dist. Wayne No. 09CA0028, 2009-Ohio-6911, ¶14.
Before a juvenile court may enter a finding of abuse or dependency, the state has the burden of establishing by clear and convincing evidence that a child is abused or [dependent]. * * * “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required beyond a reasonable doubt, in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” * * *
In re C.B., 12th Dist. Butler Nos. CA2008-01-0002, CA2008-01-003, 2008-Ohio-5543, ¶10. “A dependency adjudication focuses not on the fault of the parents, but on ‘the child‘s environment, including the condition of the home itself and the availability of medical care and other necessities.‘” In re V.R., 9th Dist. Summit No. 23527, 2008-Ohio-1457, ¶17 (quoting In re T.W., 9th Dist. Summit No. 2381, 2008-Ohio-109, ¶11). To meet the burden of proof for a dependency finding, the Agency must present clear and convincing evidence of conditions that adversely affect the normal development of the child. Id.
{¶8} Here, the sole reason for finding the child dependent was the relationship between Omlor and Currier. “In the absence of evidence showing a detrimental impact upon the child of the relationship * * *, that relationship, as a part of the child‘s environment, does not warrant the state in removing the child from parental custody in the best interest of that child.” State v. Burrell, 58 Ohio St.2d 37 (1979).3 The majority of the evidence presented at the hearing had to do with Currier‘s instability and mental health issues. Currier testified that she had been diagnosed as a manic bipolar with a personality disorder. Tr. 64. There was some testimony concerning the negative affect of the relationship between Omlor
{¶10} Daniel Cruikshanks (“Cruikshanks“), the clinical counselor who evaluated Currier, testified that the relationship between Currier and Omlor was not a positive one for Currier‘s mental health. He also testified that Currier would likely exhibit the same symptoms whenever she engaged in an intimate relationship. Tr. 146. The only difference in the repeated cycle of Currier‘s behavior is the name of the man with whom she is having the relationship. Tr. 147. Although he thought Currier had good parenting skills in that she takes good care of them, when she is agitated or distressed, she behaves irrationally and impulsively which can be potentially harmful to the children. Tr. 150. Cruikshanks did not testify that the relationship had any negative impact on G.C-O. in any way.
{¶11} There was no testimony that G.C-O. was aware of the dysfunctional relationship. The only testimony of this nature was that there was concern that G.C-O. might become aware of the problems and that it might have a negative effect on him. This is a statement of mere possibility, not probability. There was evidence from the Agency that Omlor was a good father and that the physical environment was safe and appropriate for a child of G.C-O.‘s age. Tr. 45. There was also testimony that Omlor was careful to not only care for G.C-O. when
{¶12} The dissent claims that Omlor‘s aided Currier in her actions and claims that this is sufficient to show that Omlor is not behaving like a good parent and that G.C-O. is dependent. However, this ignores the reality of the situation. Omlor was the residential parent of G.C-O. dealing with a mentally ill mother of the child who has rights. Currier testified that Omlor did prevent her from taking G.C-O., but only when she was acting erratic. Tr. 86. The findings of the magistrate, which were accepted by the trial court, were one interpretation of what happened, but when the testimony is viewed in context, it does not indicate inappropriate actions. For example, the alleged “race” to the child involved an
{¶13} Omlor claims in his second assignment of error that the trial court erred by considering his invocation of his Fifth Amendment right to avoid self-incrimination. Our disposition of Omlor‘s first assignment of error renders the second assignment of error moot. Therefore, this court will not address the issue further. App.R. 12(A)(1)(c).
{¶14} Having found error prejudicial to the appellant, the judgment of the Court of Common Pleas of Seneca County, Juvenile Division, is reversed and the matter is remanded for further proceedings.
Judgment Reversed And Remanded
ROGERS, J.J., concurs in Judgment Only.
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SHAW, J., Dissents.
{¶15} For the following reasons, I respectfully dissent from the majority opinion. At the outset, I would like to note that the decision of the magistrate and the subsequent judgment entry of the trial court demonstrate that both conducted a thorough review of the evidence in this case and engaged in a comprehensive analysis in arriving at the decision to find G.C-O. a dependent child.
{¶16} The record establishes that the initiation of the Agency‘s involvement in this case stemmed from the incident on February 2, 2012 at Omlor‘s home. Testimony at the adjudication hearing established that Currier had been at Omlor‘s home the two days preceding the incident and that the two were attempting to reconcile during this time. Notably, Omlor‘s meeting with Currier was done in deliberate violation of the CPO he had obtained against her a month earlier. On the date of the incident, the third straight day of violating the CPO, Currier arrived at Omlor‘s home with five-year-old A.E. and four-year-old J.E. This time Omlor had apparently decided that he had enough of Currier‘s emotional instability. As a result, he refused to let her in his home and threatened to call the Sheriff. According to her own testimony at the adjudication hearing, Currier begged Omlor not to call the Sheriff and then, in the presence of A.E. and J.E., grabbed a pane of glass and stated “If you call the Sheriff then I‘m gonna go up on your roof and I‘m gonna jump off and cut my neck.” (Tr. at 59).
{¶18} The Agency subsequently initiated these proceedings based upon this incident at Omlor‘s home. When the ongoing caseworker spoke to A.E. and J.E. about the incident, they both were able to articulate the fact that their mother cut herself that day. In particular, A.E. reenacted to the caseworker the motions of her mother cutting her own wrist.
{¶19} The magistrate distilled the caseworker‘s testimony in the following manner to describe the basis for Agency filing the complaints alleging all three children, including G.C-O., to be dependent children pursuant to
The DJFS filed the instant complaints due to concerns regarding the children‘s safety due to the volatile relationship between
[Currier] and [Omlor], and the resulting CPO violations. The DJFS was concerned as to the possibility of emotional harm to the children on what they observe[d], and the risk of physical harm due to the actions of [Currier], and the purported ambivalence of [Omlor]. The DJFS substantiated neglect. As to the lack of any involvement regarding [G.C-O.] on February 2, 2012, the worker stated that her concerns were based on the preceding two days and the fact that [Omlor] and [Currier] were together in violation of the CPO. She testified that even if the children did not see [Currier] cut herself on February 2, 2012, the effect was the same since they were aware of the situation and the involvement of law enforcement. The worker had sufficient concerns regarding the environment involving [Currier], [Omlor] and all three children, to file the complaint alleging Neglect and Dependency. The fact that on February 2, 2012 [Currier] was at [Omlor‘s] home for the third straight day, coupled with the domestic dispute between them that resulted in her putting a piece of glass to her neck and threatening to cut her throat [and] threaten[ing] to jump off the roof; and finally cutting her arm when police were called all resulted in her determination that the children were in an unsafe environment.
(Doc. No. 36 at 6-7).
{¶20} In addition to the February 2, 2012 incident, the record is replete with examples demonstrating the volatile nature of Currier and Omlor‘s relationship. In particular, Currier admitted that she has been physically violent with Omlor. She also admitted that on numerous occasions she had threatened to kill herself by wrapping her car around a telephone pole or jumping in front a train. Currier admitted that many of the threats were made in the presence of A.E. and J.E. At the adjudication hearing, Currier was unabashful about her conduct
{¶21} Currier recounted an incident in which she followed Omlor in her car just “to see where [he] was going.” (Tr. at 87). The pursuit culminated in a yelling match in front of the police station with Omlor‘s sister, who was driving Omlor in her car. Currier admitted that A.E. and J.E. were in the back seat of her vehicle at the time.
{¶22} Currier also described numerous incidents in which she would enter Omlor‘s home at night without his knowledge and with both A.E. and J.E. in tow. Currier admitted that her rationale behind this conduct was that Omlor “couldn‘t make [her] leave once [she] got in.” (Tr. at 107). Even after Omlor changed his locks, Currier continued to engage in this behavior. She recounted more than one instance where she either opened or removed a window and placed J.E. through the open window with instructions to unlock the front door for her.
{¶23} Even though these examples are demonstrative of Currier‘s erratic behavior and emotional instability, it is clear that what the magistrate and trial court found troubling, and what the majority seemingly overlooks, is Omlor‘s role in these situations. While there is evidence in the record indicating that on several occasions Omlor contacted law enforcement, the Agency, or other service providers in response to Currier‘s erratic actions, the record also suggests that
One such incident involved a dispute between [Currier] and [Omlor] regarding who would have “possession” of [G.C-O.] for the weekend. Apparently both [Currier] and [Omlor] believed they were to care for [G.C-O.] at that time. [G.C-O.] was being watched by [Omlor‘s] sister, both parties were in a “race” to secure possession of the child. It appears that this “race” was “won” by [Omlor], and that neither party was overly concerned with their actions affecting the children. On another occasion testimony was received regarding an incident in Wood County in June 2011 where [Currier] and [Omlor] were involved in an altercation with the children present. The result of this encounter was another inappropriate dispute with the children (all three of them) present.
(Doc. No. 36 at 8).
{¶24} The magistrate also made the following observation in his decision.
What is troubling is the fact that there is no record or evidence as to what [Omlor] did to address the “break in” or the ongoing occasions of disputes between them. It appears to the Court that [Omlor] is often a willing participant in the conflict and may feed on the attention given to him by [Currier]. The concern is that during all the drama between [Currier] and [Omlor], the children are either present or directly affected.
(Id.)
{¶25} The trial court after conducting its de novo review of the record made a similar observation.
The fact that the child (G.C-O.) was not a participant to any actual harmful event does not mitigate the “environment” that
[Omlor] and [Currier] created that the child was placed in. The uncontested responses to the events by William Omlor, as described by Tonya Currier, varied from promotion, to acceptance to avoidance. The picture of William Omlor is one of a controlling and willing participant in the failings of Tonya Currier. It is clear that William Omlor at times will use the child as a “tool” in his attempts to control [Currier].
(Doc. No. 95 at 5).
{¶26} The observations made by both the magistrate and the trial court regarding Omlor‘s role in the volatile relationship with Currier are supported by testimony presented by the Agency at the adjudication hearing. Omlor chose not to testify and therefore failed to provide any evidence to rebut this testimony.
{¶27} As previously discussed, the Agency alleged G.C-O. to be a dependent child under
{¶28} In reversing the decisions of the magistrate and trial court, the majority discounts their specific findings and conclusions with regard to Molar‘s role in the relationship, and instead relies solely on In re Burrell, 58 Ohio St.2d 37 (1979). In Burrell, the Supreme Court of Ohio reversed a trial court‘s determination finding the children dependent pursuant to
{¶29} In a very brief per curiam opinion the Court in Burrell held:
In the absence of evidence showing a detrimental impact upon the child of the relationship established as here existing, that relationship, as a part of the child‘s environment, does not warrant the state in removing the child from parental custody in the best interest of that child. Here, the evidence is inadequate to establish a present or potential detrimental impact under the standard set forth in R.C. 2151.35 of “clear and convincing evidence” that the child is a dependent child. The conduct of a parent is relevant under the terms of this specific section solely insofar as that parent‘s conduct forms a part of the environment of this child. As a part of the child‘s environment such conduct is only significant if it can be demonstrated to have an adverse impact upon the child sufficiently to warrant state intervention. That impact cannot be simply inferred in general, but must be specifically demonstrated in a clear and convincing manner. Here, such was not the case.
(Id. at 39).
{¶30} Clearly, the situation in Burrell is distinguishable from the one in the case at hand. Nevertheless, the majority has extrapolated the ruling in Burrell to stand for the proposition that any time a parent‘s conduct forms the basis for an allegation of dependency under
{¶31} In this case, there was evidence before the court establishing that the parents have a significant history of overtly displaying the volatility of their relationship to the children. The record also confirms that the parents in this case have a complete disregard for the potential physical, mental, and emotional harm their behavior has on the children. Thus, the evidence here demonstrates more than just a general inference that the parents’ conduct poses a present or potential detrimental impact on G.C-O. In fact, the record establishes that the parents’ tumultuous relationship had already created a detrimental impact on the two older children, A.E. and J.E.
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