IN RE: J.C.
C.A. Nos. 26229, 26233
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 11, 2012
2012-Ohio-3144
WHITMORE, Presiding Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nоs. DN 11-05-360, DN 11-05-361
Dated: July 11, 2012
WHITMORE, Presiding Judge.
{1} Appellant, Juanana C. (“Mother“), appeals from the judgment of the Summit County Court of Common Pleas, Juvenile Division, adjudicating her children dependent and granting temporary custody to Summit County Children Services (“SCCS“). Additionally, Dakota P. (“Father“) appeals from the same judgment. This Court affirms.
I
{2} On May 17, 2011, Mother brought Jo.C. and Ju.C. into the emergency room at Barberton Hospital. Mother told the physician‘s assistant that she had received a phone call in the middle of the night telling her that the children had been sexually abused by a former boyfriend and that she should have the children examined. The examination did not reveal any
{3} Because there was an allegation of sexual abuse the police were called and an officer arrived at the hospital and prepared a report. The next day, the case was assigned to Detective Shannon Davis. Detective Davis spoke with Mother on May 18th to explain the investigation process, which first required Detective Davis to schedule an appointment for the children to have a risk evaluation at Children‘s Hospital. Detective Davis told Mother that she would be in touch as soon as the appointment was scheduled.
{4} At approximately 7:00 a.m. the following morning, Mother arrived with the children at the police station to inquire about thе investigation of her case. Mother appeared to be disheveled, her hair was in disarray, she was wearing a tank top without any undergarments, and she had a very strong body odor. Mother was also exhibiting erratic behavior with extreme emotional mood swings. The children had runny noses and appeared to be sick or very sleepy. The youngest child was without a diaper. After approximately 45 minutes, Detective Davis decided to remove the children from Mother‘s care pursuant to
{5} Later that morning, Louanne Jenkins, a service coordinator with Help Me Grow, arrived at Mother‘s apartment for a scheduled visit. Mother had emptied all of the furniture out of her apartment and had placed all of her belongings on the lawn. There was an intense odor of bleach and puddles of bleach on the floor of the apartment. Mother informed Jenkins that she had cleaned everything with bleach in an attempt to rid thе apartment of evil. Mother appeared distraught, confused, and could not focus. Jenkins, having never seen Mother this way before,
{6} After an аdjudicatory hearing, the magistrate issued a decision finding Jo.C. and Ju.C. dependent children. After a subsequent dispositional hearing, the magistrate granted temporary custody of the children to SCCS. Mother and Father filed objections to both of the magistrate‘s decisions. The trial court overruled the objections and adopted the magistrate‘s decisions. Both parties appealed from that judgment, and this Court consolidated the matters on appeal. Father raises one assignment of error, and Mother raises three assignments of error for our review. For ease of analysis, we address some assignments of error out of order.
II
Father‘s Assignment of Error
THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS THE COMPLAINT OF THE APPELLANT FOR LACK OF JURISDICTION[.]
{7} In his sole assignment of error, Father argues that the juvenile court lacked jurisdiction to hеar the case because the complaint was deficient. Specifically, Father argues that the complaint was deficient because its accompanying affidavit was not based on the personal knowledge of the affiant and the affidavit was not incorporated into the complaint, which left it devoid of required facts.
{8} “A complaint under
{9} Any alleged defect in a complaint may be raised by motion and must be heard before the adjudiсatory hearing.
{10} Here, Father made an oral motion to dismiss at the start of the adjudicatory hearing on July 14, 2011. However, Father was required to raise any defects in the complаint at least seven days prior to the hearing, which was earlier than ten days after the appearance of his counsel. See Former
{11} We pause here to draw attention to matters of concern with the complaint in this case. The complaint consists of three separate pages. The first page is a form аffidavit which provides boxes to be checked in order to specify whether the child is alleged to be abused,
Mother‘s Assignment of Error Number Two
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE STATE TO PRESENT EVIDENCE OF PREVIOUS INVOLVEMENT WITH CSB, IN VIOLATION OF THE OHIO RULES OF EVIDENCE RULE 404(B).
{12} In her second assignment of error, Mother argues that the court erred when it allowed the admission of other acts evidence during the adjudication hearing. Specifically, Mother argues that it was improper for the court to allow testimony regarding Mother‘s prior involvement with SCCS.
{13}
{14} At the adjudicatory hearing, testimony was heard from Sarah-Maria Riffle, an intake caseworker with SCCS. Mother points to two instances during direct examination in which Riffle referred to a previous SCCS case. First, Riffle said that she had worked with Mother on a previous referral. Second, Riffle said that she was aware that Father “had only been allowed to have supervised visitation with” Jo.C., and that he had failed to complete his case plan objectives.
{15} The basis of the prior SCCS case was not discussed. The testimony that Riffle had previously met Mother was merely a foundational question to establish that Mother‘s appearance and demeanor on May 19, 2011, was not the same as it had been in the past. Riffle testified that Mother “previously had always been very well put together physically. She had always had clean clothes on, she had alwаys had appropriate undergarments on, her hair was always done very well, [and] I never smelled any body odor.” This is not inadmissible character evidence. Further, Riffle‘s testimony regarding Father‘s failure to complete his previous case plan objectives and his restriction to supervised visits with Jo.C. did not implicate any prior act by Mother.
{16} Riffle‘s testimony was not inadmissible character evidence offered to show that Mother acted in conformity therewith. Accordingly, Mother‘s second assignment of error is overruled.
Mother‘s Assignment of Error Number One
THE TRIAL COURT‘S DECISION TO FIND THESE CHILDREN DEPENDENT IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{17} In her first assignment of error, Mother argues that the court‘s finding of dependency is against the manifest weight of the evidence. We disagree.
{18} “When reviewing an appeal from the trial court‘s ruling on objections to a magistrate‘s decision, this Court must determine whether the trial court abused its discretion in reaching its decision.” Fields v. Cloyd, 9th Dist. No. 24150, 2008-Ohio-5232, ¶ 9. “In so doing, we consider the trial court‘s action with reference to the nature of the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139, ¶18.
{19} In evaluating whether a civil judgment is against the manifest weight of the evidence, the standard of review is the same as thаt in a criminal case. See Eastley v. Volkman, Slip Opinion No. 2012-Ohio-2179, ¶7-10.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clеarly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” Id. The court‘s “discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the сonviction.” Otten at 340. See also State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
A dependent child is any child “[w]ho lacks proper care or support by reason of the mental or physical condition of his [or her] parents, guardian, or custodian,” or “[w]hose condition or environment is such as to warrant the state, in the interest of the child, in assuming the guardianship.”
In re Bassette, 9th Dist. No. 20751, 2002 WL 465435, *1 (Mar. 27, 2002).
{20} “[A] child may be declared dependent if [his or] her prospective condition or environment would be threatening to the health or well-being of the infant. The state is not required to take the ‘long odds gamble’ on the life of a child before intervening.” (Emphasis added and internal citations omitted.) In re Massengill, 76 Ohio App.3d 220, 226 (6th Dist.1991).
The conduct of а parent is relevant [in adjudicating a child dependent] solely insofar as that parent‘s conduct forms a part of the environment of [the] 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.
In re Burrell, 58 Ohio St.2d 37, 39 (1979).
{21} Mother argues that the evidence рresented focused on the concerns of her mental health and did not demonstrate that the children‘s environment warranted state intervention. However, Mother‘s mental health is directly related to the children‘s environment and was properly considered by the court.
{22} Mother cites In re V.R., 9th Dist. No. 23527, 2008-Ohio-1457, for the proposition that her behavior alone cannot warrant state intervеntion. We disagree. First, In re V.R. is distinguishable in its facts. When V.R. was born, her mother tested positive for marijuana, alcohol, and opiates. Id. at ¶ 2. V.R. was placed with the maternal grandmother, and her mother immediately began working on her case plan objectives, which included weekly drug screening. Id. at ¶ 25. Mother was consistently and frequently involved with V.R.‘s care, which was observed as being aрpropriate. Id. at ¶ 4, 10, 11-12, 19.
{23} Here, Mother has not been compliant with her case plan objectives (i.e., following through with mental health evaluation and recommendations). Joselyn Vasquez-Molina, the assigned SCCS protective caseworker, testified that “Mother does not really communicate with me at all * * *.” While Mother‘s visits with the children have been going well overall, she had missed visitation appointments without informing SCCS or her caseworker. Additionally, Vasquez-Molina testified that Mother had informed her that she no longer had housing. Vasquez-Molina said that she had been unable to verify this because Mother was not communicating with her.
{24} Mother‘s erratic behavior goes directly to the children‘s environment and their safety. Mother placed all of the contents of her apartment on the front lawn of her apartment and doused everything in bleach. She then threw her keys to the apartment away because there was “evil” in the apartment. In the early morning hours of May 19th, Mother drew three symbols on the sidewalk where she sat with the children until she felt safe from the evil, at which point she took the сhildren and ran to the police station.
{25} Louanne Jenkins, a service coordinator with Help Me Grow, testified that she had met with Mother every two weeks for the past two years. Jenkins testified that when she saw Mother outside of her apartment in the late morning on May 19th, she was not herself. Jenkins testified that the children were not with Mother and that she was scared that something had happened to the children. Jenkins said she was so scared that she “didn‘t want to go into the apartment alone” so she called 911. The police responded, but informed Jenkins that there was nothing they could do for Mother. Jenkins, concerned for Mother‘s mental health, drove her to St. Thomas hospital, but Mother left before seeing a doctor.
{26} Thе testimony of Detective Shannon Davis and Sarah-Maria Riffle was also consistent with Jenkins‘. Mother‘s conversations were hard to follow, as she would jump from subject to subject. Mother had drastic and quick mood swings. “She would get very angry and very agitated and talk very quickly, and then she would be almost eerily calm and silent for a few moments, and then -- a few seconds and then shе would start again.”
{27} After reviewing the record, we cannot conclude that the court abused its discretion in finding Mother‘s conduct created an environment for the children that warranted state intervention. Mother‘s first assignment of error is overruled.
Mother‘s Assignment of Error Number Three
THE TRIAL COURT‘S DECISION TO PLACE THESE CHILDREN IN THE TEMPORARY CUSTODY OF SUMMIT COUNTY CHILDREN‘S SERVICES BOARD IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{28} In her third assignment of error, Mother argues that the court‘s decision to grant SCCS temporary custody is against the manifest weight of the evidence. We disagree.
{29} Because Mother‘s third assignment of error also challenges the weight of the evidence, we incorporate the manifest weight standard of review laid out in the previous assignment of error.
Although the statutory scheme regarding an award of legal custody does not include a specific test or set of criteria, this Court has previously held that the trial court must base such a decision on the best interest of the child. In re S.J., 9th Dist. No. 23199, 2006-Ohio-6381, ¶ 32, citing In re N.P., 9th Dist. No. 21707, 2004-Ohio-110, ¶ 23. Consequently, “[i]n legal custody cases, trial courts should consider all factors relevant to the best interest of the child.” In re S.J. at ¶ 34.
In re R.R., 9th Dist. No. 23641, 2007-Ohio-4808, ¶ 12.
{30} Mother has not complied with her case plan, which was to undergo a psychological evaluation and follow the recommendations, if any, of that evaluation. Consequently, there are continued concerns about Mother‘s mental health and the effect that it
III
{31} Father‘s sole assignment of error and Mother‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A cеrtified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellants.
BETH WHITMORE
FOR THE COURT
MOORE, J. CONCURS.
BELFANCE, J. CONCURRING IN JUDGMENT ONLY.
{32} I concur in the judgment. Father has not challenged the juvenile court‘s determination that he had failed to timely object to the deficiency in the complaint. Therefore, based on the limited arguments Father makes on appeal, I would affirm. See
APPEARANCES:
DAVID M. WATSON, Attorney at Law, for Appellant.
GREGORY A. PRICE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.