IN THE MATTER OF: N.J., et al.
CASE NOS. CA2016-10-086, CA2016-10-090, CA2016-10-091
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
9/5/2017
2017-Ohio-7466
M. POWELL, J.
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 16-D000079
Jeffrey W. Stueve, 301 East Silver Street, Lebanon, Ohio 45036, for appellant T.H.
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee Warren County Children‘s Services
David E. Smith, 251 West Central Avenue, #235, Springboro, Ohio 45066, for N.J.
O P I N I O N
M. POWELL, J.
{¶ 1} Appellant, T.H. (Mother), appeals a decision of the Warren County Court of Common Pleas, Juvenile Division, adjudicating her children abused and dependent.
{¶ 2} Mother and N.J. (Father) are the parents of three minor children, K.J., Ni.J., and Ne.J. Mother and the children reside together in an apartment; Father lives nearby. Mother works 40 hours a week. Father watches the children in their home when Mother is аt work.
{¶ 3} On June 9, 2016, Grandmother went to Mother‘s home around noon. Mother was at work, Father was on the phone, K.J. and Ne.J. were asleep, and Ni.J. was sitting on the floor against a wall. At the time, K.J. was six years old, Ni.J. was four years old, and Ne.J. was 11 months old. After Father left the apartment to pick up Mother from work, Ni.J. got up and walked toward Grandmother. Upon noticing that Ni.J. was limping, Grandmother asked him to pull down his pants. When he did so, Grandmother observed bruises and marks, primarily on the left side of his body around the rib cage and buttocks. Grandmother also noticed welts on Ni.J.‘s penis and that his penis was “ridiculously swollen.” Suspecting that Father was the perpetrator of the abuse, Grandmother immediately called 9-1-1 and reported, “my grandbaby was abused.”
{¶ 4} Lebanon Police Officer Christopher Brock responded to the scene. Officer Brock is an experienced police officer whose training includes child abuse investigation, forensic interview of children, and evidence collection. The officer spoke with Grandmother who was visibly upset and crying. Grandmother showed the officer Ni.J.‘s injuries. Officer Brock observed old injuries and scars on Ni.J.‘s shoulders, lower back, forehead, and head. He further observed red, raised, fresh welts on Ni.J.‘s torso. Several of the welts were “half-moon” shaped. Based upon his training and experience, the “half-moon” shape of the welts indicated to Officer Brock that Ni.J. had been struck with something that had been “doubled-over.” Regarding some of Ni.J.‘s injuries, the officer also observed what he believed to be the transfer of “finish” from an HDMI cable found in the home. Upon pulling down Ni.J.‘s pants, the officer observed additional bruising, “a lot of redness,” and numerous half-moon shaped welts on Ni.J.‘s thighs and lower abdomen. Additionally, Ni.J.‘s penis was very
{¶ 5} Officer Brock asked Ni.J. “who did this” and “with what.” Ni.J. and his brother K.J. responded by retrieving a leather belt with a buckle and a doubled-ovеr HDMI cable from an upstairs bedroom. Neither K.J. nor Ne.J. displayed signs of physical injury. Nevertheless, Grandmother took K.J., Ni.J., and Ne.J. to the hospital for examination.
{¶ 6} Upon learning that Father had an outstanding arrest warrant, Officer Brock arranged for Father to be arrested prior to his return to Mother‘s home. Upon being arrested, Father was brought to the Lebanon Police Department and questioned regarding Ni.J.‘s injuries. Father admitted “whooping” Ni.J. that day for sneaking food out of the refrigerator after being told several times not to and for urinating on himself. Father told the police he struck Ni.J. five times with a belt. Father however denied using the HDMI cable on Ni.J. Father stated he beliеved in whipping his children and that he had a strict “three strikes and you‘re out policy.”
{¶ 7} Later that day, Warren County Children Services (“WCCS“) supervisor Ashley Stutzman and a caseworker met with Mother at her home. Upon learning there were allegations of physical abuse regarding her children, Mother replied, “my children are disciplined; they‘re not abused.” Stutzman then informed Mother of Ni.J.‘s injuries. Mother denied seeing any injuries the previous night when she bathed Ni.J. Mother stated that she had been at work since 4:00 a.m. that day and that Father was watching the children as he customarily does during her 40-hour work week. Mother told Stutzman that the children are typically disciplined with two to three whippings with a belt, or by writing sеntences, doing push-ups or sit-ups, or by verbal counselling. Mother stated that both she and Father administer discipline to the children. Mother admitted she had concerns with Father‘s discipline of the children, believing it was too rough, and that she had noticed marks on
{¶ 8} Other family members also expressed concerns with the manner in which Father disciplined the children. Father‘s sister stated that she regularly visits the home, had previously noticed a mark on Ni.J., and had spoken with Father about being too rough and strict with the children. Grandmother stated that it had been going on for years, that Ni.J. always had bruises on his forehead and scars on his body, and that these concerns led her to frequently visit the children. Grandmother stated she had discussed her concerns with Father about two years ago. Grandmother further stated that she had called WCCS in the past but only asked general questions, and that she had called police to report the abuse but hung up before speaking with anyone. Grandmother admitted that her failure to follow through with these calls was because she feared Father would be sent to prison.1
{¶ 9} Concerned that Mother and other family members were unable or unwilling to protect the children from Father, given the family‘s knowledge of Father‘s rough manner of disciplining the children, the family‘s failure to report Father to the proper authorities, and Mother‘s routine of leaving the children in Father‘s care during her work week, WCCS filed complaints on June 10, 2016, alleging that K.J., Ni.J., and Ne.J. were abused children under
{¶ 10} On August 19, 2016, and September 2, 2016, a magistrate held an adjudicatory hearing and on September 15, 2016, entered an order finding that K.J., Ni.J., and Ne.J. were
{¶ 11} Mother now appeals, challenging the adjudication of K.J. and Ne.J. as abused children and K.J., Ni.J., and Ne.J. as dependent children in two assignments of error. Mоther does not appeal the adjudication of Ni.J. as an abused child.
{¶ 12} The state bears the burden of proof of establishing that a child is an abused or dependent child. “A trial court‘s adjudication of a child as abused, neglected, or dependent must be supported by clear and convincing evidence.” In re T.B., 12th Dist. Fayette No. CA2014-09-019, 2015-Ohio-2580, ¶ 12, citing
{¶ 13} With regard to construing the statutes involved here,
The sections in [R.C.] Chapter 2151 * * * shall be liberally interpreted and construed so as to effectuate the following purposes: To provide for the care, protection, and mental and physical development of children subject to [R.C.] Chapter 2151, whenever possible, in a family environment, separating the child from the child‘s parents only when necessary for the child‘s welfare or in the interests of public safety.
{¶ 14} With these guiding principles in mind, we turn to Mother‘s assignments of error.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT ERRED BY ADJUDICATING THE MINOR CHILDREN DEPENDENT.
{¶ 17} Mother argues the juvenile court erred in adjudicating K.J., Ni.J., and Ne.J. as dependent children under
Adjudication of K.J. and Ne.J. as Dependent Children under R.C. 2151.04(C)
{¶ 18} Mother first challenges the adjudication of K.J. and Ne.J. as dependent children under
{¶ 19} The determination that a child is dependent requires no showing of fault on the parent‘s part. In re T.B., 2015-Ohio-2580 at ¶ 20. Rather, the focus is on the child‘s condition or environment, and whether the child was without adequate care or support. Id. Thus, dependency under
{¶ 20} We have noted that
(Emphasis sic.) In re A.P., 12th Dist. Butler No. CA2005-10-425, 2006-Ohio-2717, ¶ 28, quoting In re Burchfield, 51 Ohio App.3d 148, 156 (4th Dist.1988), and In re Campbell, 13 Ohio App.3d 34, 36 (12th Dist.1983). In other words, actual harm to a child is not necessаry. Rather, circumstances giving rise to a legitimate risk of harm may suffice to support an adjudication of dependency underWhile the child‘s present “condition or environment” is the focus of a dependency determination, “the law does not require the court to experiment with the child‘s welfare to see if * * * [the child] will suffer great detriment or harm.” “[T]he child does not first have to be put into a particular environment before a court can determine that * * * [the] environment is unhealthy or unsafe.”
{¶ 21} The evidence discloses that Father ruled the children with “an iron fist” and that he had a “three strikes and you‘re out” discipline policy. In Father‘s words, when a child gets “three strikes,” the child “get[s] a whipping.” Father‘s discipline of the children was extreme. All the children were subject to being whipped with a belt if Father or Mother deemed it necessary. Mother and family members were aware of Father‘s propensity to administer excessive discipline to the children, had spoken with him about it to no avail, and had failed to act to protect thе children. In fact, despite her concerns about Father, Mother left the children alone with Father for 40 hours each week while she worked. K.J. and Ne.J. were present in the home on June 9, 2016, when Father beat Ni.J.
{¶ 22} Mother argues there was insufficient evidence to adjudicate K.J. and Ne.J. dependent children under
{¶ 23} Although there was no evidence of specific incidents where K.J. and Ne.J. were disciplined excessively, testimony at the adjudicatory hearing shows that they were subject to discipline by Father and exposed to the discipline Father administered to the other children, including the beating Ni.J. received on June 9, 2016. There is authority that children present in a home where another child is abused may be dependent children under
{¶ 24} Other cases support a finding of dependency under
In re Alexander C., 164 Ohio App.3d 540, 2005-Ohio-6134, ¶ 58 (6th Dist.).a long history of domestic violence between the parents can constitute the clear and convincing evidence necessary for a finding pursuant to R.C. 2151.04(C); that is, a child residing in a household where the parents’ relationship is marred by domestic violence is one whose condition or environment is such as to warrant the state, in the interests of the child, to assume the child‘s guardianship.
{¶ 25} Although this case does not involve sexual abuse or domestic violence between
Adjudication of K.J. and Ne.J. as Dependent Children under R.C. 2151.04(D)
{¶ 26} Mother next challenges the adjudication of K.J. and Ne.J. as dependent children under
- (1) The child is residing in a household in which a parent, guardian, custodian, or other member of the household committed an act that was the basis for an adjudication that a sibling of the child or any other child who resides in the household is an abused, neglected, or dependent child.
- (2) Because of the circumstances surrounding the abuse, neglect, or dependency of the sibling or other child and the other conditions in the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household.
{¶ 27} It is well-established that “the date on which dependency existed must be alleged in the complaint, and the trial court must determine that the circumstances which support a finding of dependency existed as of the date or dates alleged in the complaint.” In re S.H., 12th Dist. Butler No. CA2005-01-007, 2005-Ohio-5047, ¶ 9;
{¶ 28} Mother arguеs that the determination as to whether a child is dependent must be made as of the date alleged in the complaint, and not as of the date of the adjudicatory hearing. Mother further argues that the language of
{¶ 29} In In re S.L., the Third Appellate District addressed “whether
(Citations omitted.) Id. at ¶ 17.
R.C. 2151.04(D)(1) refers to “an act that was the basis for an adjudication.” (Emphasis added.) The General Assembly chose the word “was,” which is a past-tense verb. “The past tense indicates action already completed.” In the context ofR.C. 2151.04(D)(1) , saying that an act was the basis of an adjudication requires there to have been a past adjudication. In other words, for an act to have bеen the basis for an adjudication, there must have been a prior adjudication that a sibling or other child residing in the household is an abused, neglected, or dependent child. Had the General Assembly intended to allow simultaneous adjudications‒as the Agency argues‒it would have used present-tense, not past-tense, language. Accordingly, because, underR.C. 2151.23(A)(1) , the determination of dependency is made as of the date alleged in the complaint, the plain and unambiguous language ofR.C. 2151.04(D)(1) requires that “a sibling of the child or any other child who resides in the household” be adjudicated abused, neglected, or dependent before the complaint is filed.
{¶ 30} In his Septembеr 15, 2016 order, the magistrate declined to apply In re S.L., finding its reasoning unpersuasive and finding instead that “the use of the words ‘was the basis of’ refers to the ‘act,’ not the adjudication. Put another way, the ‘act that was the basis
{¶ 31} In response to Mother‘s argument, the state cites cases in which children were adjudicated dеpendent under
{¶ 32} “In construing a statute, the reviewing court must ascertain the intent of the legislature in enacting the statute. To determine the intent of a statute, a court looks to the language of the statute, giving effect to the words used. A court is neither to insert words that were not used by the legislature nor tо delete words that were used.” (Citations omitted.) Cleveland Mobile Radio Sales, Inc. v. Verizon Wireless, 113 Ohio St.3d 394, 2007-Ohio-2203, ¶ 12.
{¶ 33} “When a word is not defined, we use its common, ordinary, and accepted meaning unless it is contrary to clear legislative intent. We also read the word in context using rules of grammar and common usage.” (Citations omitted.) Cincinnati City School Dist. Bd. of Edn. v. State Bd. of Edn., 122 Ohio St.3d 557, 2009-Ohio-3628, ¶ 15, citing
{¶ 34}
{¶ 35}
{¶ 36} The state refers us to
{¶ 37} However, if
{¶ 38} Based upon the foregoing, we find that because a determination of depеndency is made as of the date alleged in the complaint under
Adjudication of Ni.J. as a Dependent Child under R.C. 2151.04
{¶ 39} Mother next challenges the adjudication of Ni.J. as a dependent child under
{¶ 40} As stated above, the magistrate‘s order, which was approved and adopted as an order of the juvenile court, adjudicated all three children as dependent children under
{¶ 41} Mother further argues the juvenile court erred in adjudicating Ni.J. as a dependent child under
{¶ 42} As stated above, “а court may consider a parent‘s conduct insofar as it forms part of the child‘s environment. A parent‘s conduct is significant if it has an adverse impact on the child sufficient to warrant intervention.” In re T.B., 2015-Ohio-2580 at ¶ 20. Ni.J. was physically abused by Father under the guise of discipline. Mother was aware of the abuse, yet did not act to protect Ni.J. Indeed, Mother‘s leaving Ni.J. in Father‘s care while she worked served to expose Ni.J. to physical abuse by Father. That Father was incarcerated as of the filing of the complaint does nothing to detract from the significance of the foregoing facts, all of which existed as of the time of the filing of the complaint. Father‘s physical abusе of Ni.J. formed a part of Ni.J.‘s “condition or environment” as provided in
{¶ 43} Father‘s abuse of Ni.J. may serve concurrently as the basis for an adjudication of abuse and dependency under
{¶ 44} Mother‘s first assignment of error is sustained in part and overruled in part.
{¶ 45} Assignment of Error No. 2:
{¶ 46} THE TRIAL COURT ERRED BY ADJUDICATING THE MINOR CHILDREN K.J. AND Ne.J. ABUSED.
{¶ 47} Mother argues the juvenile court erred in adjudicating K.J. and Ne.J as abused children under
(B) Is endangered as defined in [R.C.] 2919.22, except that the court need not find that any person has been convicted under that section in order to find that the child is an abused child;
(C) Exhibits evidence of any physical or mental injury or death, inflicted other than by accidental means, or an injury or death which is at variance with the history given of it. Except as provided in division (D) of this section, a child exhibiting evidence of corporal punishment or other physical disciplinary measure by a parent * * * is not an abused child under this division if the measure is not prohibited under [R.C.] 2919.22.
(D) Because of the acts of his parents, * * * suffers physical or mental injury that harms or threatens to harm the child‘s health or welfare.
{¶ 48} As stated above, the complaints alleged that K.J. and Ne.J. were abused children under
{¶ 49}
(A) No person, who is the parent * * * of a child under eighteen years of age * * * shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. * * *
(B) No person shall do any of the following to a child under eighteen years of age * * *:
- (1) Abuse the child;
- (2) Torture or cruelly abuse the child;
- (3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, discipline, or restraint is excessive under the circumstances and creates a substantial risk of serious physical harm to the child;
- (4) Repeatedly administer unwarranted disciplinary measures to the child, when there is a substantial risk that such conduct, if continued, will seriously impair оr retard the child‘s mental health or development [.]
{¶ 50} As stated above, the magistrate‘s order did not discuss the reasoning underlying the determination that K.J. and Ne.J. were abused children under
{¶ 51}
{¶ 52} Mother‘s act of leaving the children in the care of a physically abusive parent for long periods of time with knowledge of his propensity to administer severe and disproportionate discipline is concerning. Certainly, the presence of children in an abusive homе satisfies the elements for dependency under
{¶ 53} As the party seeking adjudication of K.J. and Ne.J., the state bears the burden of establishing abuse by clear and convincing evidence. There was no evidence at the adjudicatory hearing that K.J. and Ne.J. were abused or subjected to excеssive corporal punishment. Although the WCCS supervisor observed an inch-long scar on Ne.J.‘s leg on
{¶ 54} Mother‘s second assignment of error is well-taken and sustained.
{¶ 55} Based upon the foregoing, we affirm the juvenile court‘s adjudication of K.J., Ni.J., and Ne.J. as dependent children under
{¶ 56} Judgment affirmed in part and reversed in part.
HENDRICKSON, P.J. and S. POWELL, J., concur.