IN RE: L.H., AN ALLEGED DEPENDENT CHILD. [KATELYN M. - APPELLANT]
CASE NO. 4-19-14
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
March 2, 2020
2020-Ohio-718
SHAW, P.J.
OPINION
Appeal from Defiance County Common Pleas Court Juvenile Division Trial Court No. 33925
Judgment Affirmed
Date of Decision: March 2, 2020
APPEARANCES:
Timothy C. Holtsberry for Appellant
Chelsea R. Cereghin for Appellee
{¶1} Mother-appellant, Katelyn M. (“Katelyn“), brings this appeal from the August 7, 2019, judgment of the Defiance County Common Pleas Court, Juvenile Division, adjudicating Katelyn‘s daughter L.H. a dependent child pursuant to
Background
{¶2} Katelyn is the mother of L.H. who was born in February of 2014. Katelyn claimed that a man named “Javier” was L.H.‘s father, but paternity has not been established and the record contains no further information regarding “Javier.”
{¶3} On March 20, 2019, Katelyn was arrested at Walmart in Defiance for theft. At the time of the theft, L.H. was in a vehicle in the parking lot with two men. One of the men was found in possession of a handgun and methamphetamine, and the other man was arrested on an outstanding felony warrant.
{¶4} On March 21, 2019, the Defiance-Paulding County Consolidated Department of Job and Family Services (“the Agency“) became involved with Katelyn and L.H. A caseworker from the Agency went to Katelyn‘s residence to conduct a screening intake of Katelyn due to Katelyn‘s arrest at Walmart while L.H.
{¶5} On April 11, 2019, the caseworker returned to Katelyn‘s home to talk to her about the prior drug screen and to check and see if Katelyn had signed up for any of the recommended services. At that time, Katelyn tested positive for marijuana and methamphetamines. Katelyn had also not signed up for any recommended services.
{¶6} On May 7, 2019, the Agency filed a complaint alleging that L.H. was a dependent child pursuant to
{¶7} On May 22, 2019, a preliminary hearing was held on the complaint wherein the Agency requested that L.H. be placed in the temporary custody of Heather B., L.H.‘s maternal grandmother, under the protective supervision of the Agency. Katelyn did not object to the Agency‘s request. Another preliminary
{¶8} On June 12, 2019, a case plan was filed. The case plan stated that Katelyn and L.H. had a strong bond and that L.H. was physically/cognitively/socially on target for her age. The concerns listed in the case plan were Katelyn‘s positive drug tests on multiple occasions, her lack of income, and her arrest for shoplifting while L.H. was outside in a vehicle with one man who had a firearm and a bag of suspected methamphetamine and another man who had an outstanding felony warrant. The case plan required, inter alia, Katelyn to undertake a drug and alcohol assessment at a facility of her choice, to participate in scheduled appointments, and to communicate with providers.
{¶9} On June 28, 2019, an adjudicatory hearing was held wherein the Agency presented the testimony of two caseworkers who had been involved with Katelyn. Details were provided regarding Katelyn‘s arrest incident at Walmart and her subsequent positive drug tests. In addition, testimony was provided that Katelyn had not engaged in a drug assessment, and that L.H. was not up to date on medical vaccinations.
{¶10} At the conclusion of the Agency‘s case, Katelyn‘s attorney made a motion to dismiss, claiming that pursuant to In re Burrell, 58 Ohio St.2d 37 (1979), the Agency had to present clear and convincing evidence of adverse impact on the
{¶11} After hearing the arguments regarding the motion to dismiss, the trial court stated as follows.
I see no evidence of an adverse impact on the condition of the child. There was testimony, however, that was clear, convincing, and unrefuted and not objected to regarding positive drug screens for illegal substances by the caretaker with no other identified parent and that occurred on or about the month of March, 2019. It is the Court‘s opinion that there [h]as been clear and convincing evidence that the child‘s environment was such that it warranted the state because of the risk that would be associated with the illegal drug use. However, with regard to the child‘s condition, there is in fact no evidence. The motion will be overruled on the limited basis that there has been sufficient evidence that the child‘s environment was such that it warranted the state to assume the child‘s guardianship.
(June 28, 2019, Tr. at 26-27).
{¶12} Once the trial court denied the motion to dismiss, Katelyn rested without presenting any evidence. The case proceeded to closing arguments and the Agency indicated it would waive closing. Katelyn‘s attorney then renewed the motion to dismiss claiming that drug use by a parent alone was not enough to
{¶13} After Katelyn‘s attorney‘s argument renewing the motion to dismiss, the trial court ordered the parties to submit written closing arguments “in the nature of supplemental closing arguments.” (Id. at 28). The Agency filed a “supplemental closing argument” on July 5, 2019, and Katelyn filed a “closing argument” on July 8, 2019. On July 10, 2019, the Agency filed a rebuttal.
{¶14} On July 19, 2019, the trial court filed an entry summarizing the adjudicatory hearing. Ultimately the trial court determined that the Agency had presented clear and convincing evidence that L.H. was a dependent child “because her condition or environment was such that it warranted the State in the interest of that child to assume the child‘s guardianship on or about the month of March, 2019.” (Doc. No. 22). The matter was then set for a dispositional hearing.
{¶15} On July 26, 2019, the GAL filed a report and recommendation regarding disposition. The GAL summarized her involvement in the matter and the case history.2 The GAL then recommended that L.H. remain in the temporary custody of maternal grandmother under the protective supervision of the Agency.
Assignment of Error No. 1
The trial court erred in finding that the child, L.H., was dependent by clear and convincing evidence pursuant to
Assignment of Error No. 2
The trial court erred in not dismissing the Agency‘s
Assignment of Error No. 3
The trial court erred in making findings on issues that were not plead in the complaint.
Assignment of Error No. 4
The trial court violated the mother‘s due process rights by allowing the state to submit written closing arguments after waiving closing arguments at trial.
Third Assignment of Error
{¶18} In the third assignment of error, Katelyn argues that the trial court erred by “making findings on issues that were not plead in the complaint.” Specifically, she claims that the trial court should not have considered evidence related to Katelyn‘s Walmart arrest because it was not explicitly listed in the complaint as a factor leading to dependency.
Relevant Authority
{¶19}
[A]ny person having knowledge of a child who appears * * * to be an unruly, abused, neglected, or dependent child may file a sworn complaint with respect to that child in the juvenile court of the county in which the child has a residence or legal settlement or in which the violation, unruliness, abuse, neglect, or dependency allegedly occurred. * * * 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 child committed the violation or is an unruly, abused, neglected, or dependent child is based.
{¶20}
(B) Complaint: General Form. 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 proceeding 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;
(2) Contain the name and address of the parent, guardian, or custodian of the child or state that the name or address is unknown;
(3) Be made under oath.
{¶21} Ohio Appellate Courts have held that “[t]he basis of
{¶22} In this case, the complaint alleged, in pertinent part, that L.H. appeared to be a dependent child
in that on or about March, 2019, her condition or environment is such as to warrant the State, in the interests of the child, in assuming the [child]‘s guardianship, to wit: on or about March 21, 2019, the child‘s mother, Katelyn M[.], tested positive for marihuana; and on or about April 8, 2019 Katelyn tested positive for marihuana and methamphetamines; since that time [L.H.] was safety planned with her maternal grandmother. In addition, Katelyn has not made adequate changes to allow for termination of the safety plan, she has not completed drug and alcohol assessment, obtained employment, or obtained food stamps or Medicaid after the Agency provided her with the applications; and paternity has yet to be established, and as such, said [child] appear[s] to be dependent * * * as defined in Ohio Revised Code Section 2151.04(C).
(Doc. No. 1).
{¶23} Katelyn argues on appeal that there were issues with the complaint; however, she never challenged the sufficiency of the complaint in this case in the trial court. “Failure to file a timely objection to a purported defect in the complaint constitutes waiver.” In re Barcelo, 11th Dist. Geauga No. 97-G-2095, 2000 WL 489731 *5 citing In re Dukes, 81 Ohio App.3d 145, 150 (9th Dist.1991); In re G.J.D., 11th Dist. Geauga No. 2009-G-2913, 2010-Ohio-2677, ¶ 53.
{¶24} Nevertheless, while the face of the complaint satisfies the requisite requirements, Katelyn is primarily concerned with the trial court making a finding in its judgment entry that Katelyn was arrested at Walmart for theft when this issue
{¶25} Notably, one of the principal reasons for stating the factual allegations in a complaint is to apprise the defendant of the potential issues that she may be facing. See In re D.P., supra, at ¶ 12. In this case there can be no doubt that Katelyn was apprised of the Walmart theft as a potential issue.
{¶26} In the State‘s response to discovery, the State provided lists of police officers and the case number from a case filed with the Defiance Police Department. Then, in the case plan filed in this matter, the theft from Walmart was specifically and explicitly discussed as a concern in multiple places. This case plan was signed by Katelyn prior to the adjudicatory hearing.
{¶27} Moreover, the instant case was initiated by the Agency because of Katelyn‘s theft arrest at Walmart while L.H. was left outside in a vehicle in the care of a wanted felon and another man who was in possession of a handgun and methamphetamine. All indications in the record are that Katelyn was fully apprised of the theft as a potential issue. This seems particularly evident given that Katelyn made no objections to testimony regarding the Walmart incident at the adjudicatory hearing.
First and Second Assignments of Error
{¶29} In her first assignment of error, Katelyn argues that the trial court erred by finding that L.H. was a dependent child by clear and convincing evidence. In her second assignment of error, Katelyn argues that the trial court erred by failing to dismiss the dependency complaint at the close of the Agency‘s case because she claims the Agency did not present any evidence that there was a detrimental effect on L.H. as a result of Katelyn‘s actions. As both arguments deal with a discussion of the evidence, we will address them together.
Standard of Review
{¶30} A trial court‘s determination that a child is dependent under
Analysis
{¶31} In this case, L.H. was alleged to be a dependent child pursuant to
{¶32} Katelyn argues that pursuant to the Supreme Court of Ohio‘s decision, In re Burrell, 58 Ohio St.2d 37, 39 (1979), a dependency adjudication under
- The Complaint alleges the child, [L.H.], to be a dependent child on or about the month of March of 2019, alleging her condition or environment was such as to warrant the State in the interest of that child to assume the child‘s guardianship.
- Evidence from the Agency employee, Cally Martin, indicated that [L.H.] is five years old with a date of birth [in February of 2014]; that [L.H.‘s] Mother is Katelyn M[.]; and that the name o[r] address of the Father of the child is unknown, and that Mother has only provided the Agency the first name of Javiar [sic] as the father.3
- Ms. Martin testified that on March 21, 2019 Katelyn M[.] was arrested at Wal-Mart in Defiance for theft while her five year old daughter remained in her car with a man by the name of Don Dougal who was found to be in possession of a handgun at the time.4
- Ms. Martin testified that Katelyn M[.] was cooperative but indicated that she had no income or benefits for the minor child.
- Ms. Martin testified that Mother agreed to voluntary placement of her child that day pursuant to a safety plan, but that the efforts for the care of the child under the safety plan were unsuccessful and the Complaint was therefore filed on May 7, 2019.
- The Court finds the Agency has presented clear and convincing evidence that the minor child, [L.H.], was a dependent child because her condition or environment was such that it warranted the State in the interest of that child to assume the child‘s guardianship on or about the month of March, 2019.
{¶34} On appeal, Katelyn claims that the trial court‘s determination regarding dependency was erroneous because there was no evidence presented of any specific detrimental impact on L.H. pursuant to the Supreme Court of Ohio‘s ruling in Burrell, supra. In fact, Katelyn argues, at the adjudicatory hearing, when overruling the motion to dismiss, the trial court specifically stated that the Agency had presented no evidence of an adverse impact on the child.
{¶35} At the outset, we emphasize that Burrell is a short, “per curiam” opinion now over forty years old with questionable applicability to this case or even most dependency cases in general. Burrell overturned a dependency adjudication that was based solely on a woman living with her children and a man who was not her husband. The Supreme Court of Ohio found that absent other circumstances, the issue of cohabitating while unmarried, perhaps immoral to some at the time, was not sufficient to establish dependency when there was no indication that the environment was detrimental to the children. Burrell is clearly fact-specific and dealt with a parent‘s action that was not criminal, like the actions before us. There is little doubt that today a mother living with her child and an unmarried individual could not be the sole cause for a dependency finding absent extenuating circumstances. Thus we do not find Burrell dispositive in this matter.
{¶37} Katelyn‘s argument focuses specifically on her use of drugs, ignoring the fact that she was arrested for theft while L.H. was outside of Walmart in a car in the care of a wanted felon and a man possessing a firearm and suspected methamphetamine. It was the next day that Katelyn tested positive for marijuana and then weeks later she again tested positive for marijuana and methamphetamine—all while pregnant with another child. Despite this, Katelyn would not undertake drug and alcohol assessments pursuant to the case plan. In addition, at the time Katelyn had no source of income and L.H. was not up-to-date on her vaccinations.
{¶39} We do not dispute the cases Katelyn cited standing for the proposition that drug use by a parent in the abstract, away from a child, could be insufficient absent other circumstances to establish a dependency claim, but those facts are not what are before us. There are a number of issues that led to the dependency finding in this matter, and we cannot find that the trial court erred by determining that L.H. was a dependent child by clear and convincing evidence.
{¶40} Lastly, we cannot find that the trial court erred by declining to dismiss the complaint. While the trial court may have made some errant comments about there being “no evidence of an adverse impact on the condition of the child,” the court‘s comments were obviated by its statement that the environment was a serious issue due to Katelyn‘s actions, which satisfies the elements of the offense. “Furthermore, even though the child‘s present ‘condition or environment’ is the focus of a dependency determination, ‘the law does not require the court to
Fourth Assignment of Error
{¶41} In Katelyn‘s fourth assignment of error, she argues that the trial court erred by ordering that the parties provide “supplemental” written closing arguments after the Agency had already waived its closing argument at the adjudicatory hearing. Katelyn argues that permitting the Agency to have another chance at arguing in closing violated her due process rights and prejudiced her. We find no error here.
{¶42} At the conclusion of the adjudicatory hearing, the trial court asked the Agency if it had any closing argument. The Agency said it would waive closing. The trial court then addressed defense counsel regarding closing arguments; however, at that time, defense counsel renewed his motion to dismiss. The trial court heard defense counsel‘s argument, then ordered both of the parties to submit
{¶43} Based on what occurred, we fail to see how there was any “due process” violation in this matter. The trial court was the ultimate arbiter of the evidence and gave each party the opportunity to present written closing arguments. Katelyn seems to suggest that since the Agency initially said it would waive its closing argument, the Agency should not have been able to file a supplemental written closing argument. However, the supplemental writing was ordered by the trial court so that the trial court could give the matter further consideration. There is no showing here of a due process violation or any prejudice to Katelyn since she had the full ability to respond, and the closing arguments did not change the evidence that was presented in any manner. Therefore her fourth assignment of error is overruled.
{¶44} For the foregoing reasons Katelyn‘s assignments of error are overruled and the judgment of the Defiance County Common Pleas Court, Juvenile Division, is affirmed.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr