{¶ 2} S.H. was born in November 2001. When she was 16 months old, appellant was arrested on a robbery charge. He was convicted of attempted robbery and sentenced to a year in jail. In September 2003, while appellant was incarcerated, Butler County Children's Services Board ("BCCSB") filed a complaint alleging that S.H. was a dependent child and the trial court granted BCCSB temporary custody. Appellant was released from jail in April 2004 and began participating in case plan services.
{¶ 3} A hearing on the dependency complaint was held in October 2004. Appellant stipulated that S.H. was dependent at the time of complaint, and remained so while he was incarcerated, but alleged that she was not dependent at the time of the hearing. The trial court adjudicated S.H. a dependent child, concluding that she was dependent both at the time of the complaint, and at the time of the hearing. The trial court ordered that she remain in the temporary custody of BCCSB. Appellant appeals, raising three assignments of error.
{¶ 4} Assignment of Error No. 1:
{¶ 5} "The court erred as a matter of law when it found that dependency need not be shown at the time of adjudication."
{¶ 6} In this assignment of error, appellant argues that the trial court erred in concluding that dependency need not be shown at the time of adjudication, but rather only as of the time of the filing of the complaint. Appellant contends that there is a split of authority on this issue which this court has not addressed.
{¶ 7} We first note that the trial court determined that S.H. was dependent at the time alleged in the complaint, and in response to appellant's argument, also determined that she continued to be dependent as of the hearing. However, as we discuss below, the trial court was only required to determine dependency as of the date alleged in the complaint.
{¶ 8} Appellant is correct in asserting that the Ohio Supreme Court has held that the circumstances on which a finding of dependency is based are those which exist when the hearing on a complaint alleging dependency is held, not at the time alleged in the complaint. See In re: Kronjaeger
(1957),
{¶ 9} This court has noted that "[t]he 1969 amendment to R.C.
{¶ 10} Nevertheless, a line of post-amendment cases cited by appellant continues to assert that the state must establish dependency as of the time specified in the complaint and at the time of the hearing. This line of reasoning seems to be rooted in a failure to recognize the significance of the amendment rather than a well-reasoned legal analysis. With only one exception, these cases fail to discuss, or even acknowledge, the 1969 amendment to the statute. See Mary Beth v. Howard
(Oct. 12, 1995), Cuyahoga App. No. 67995; In re Bishop (1987),
{¶ 11} Appellant cites only one case which discusses the amendment, and still concludes that dependency must be demonstrated as of the time of the hearing. See In the Matter of William Parker, Jr. (Jan. 26, 1981), Van Wert App. No. 15-79-16. In 1981, the Parker court held, without citation, that because R.C.
{¶ 12} 20 years ago, this court recognized that the General Assembly made it expressly clear when the trial court is to determine dependency: the trial court is to determine the issue of dependency as of the date or dates alleged in the complaint. In re Sims; R.C.
{¶ 13} While the dependency issue findings the court is required to make from the evidence presented at the hearing relating to the allegations of the complaint are retrospective in nature, the adjudicatory relief the court will order based on those findings and any subsequent factual findings, is necessarily current and prospective. SeeRowland. Appellant's first assignment of error is overruled.
{¶ 14} Assignment of Error No. 2:
{¶ 15} "The court erred as a matter of fact and law, and abused its discretion when found [sic] the child was dependent based upon what might happen rather than based on the facts as they existed at the time of the adjudication."
{¶ 16} Assignment of Error No. 3:
{¶ 17} "The court's decision and order that reasonable efforts had been made to avoid the continued removal of the child and that the child was dependent was against the manifest weight of the evidence, was not supported by sufficient evidence and failed to meet the requisite clear and convincing standard."
{¶ 18} In both his second and third assignments of error appellant argues that the trial court erred in finding that the child was dependent based on the child's circumstances as of the time of the hearing. Appellant conceded both at trial and in his appellate brief that the child was dependent as of the date alleged in the complaint, due to appellant's incarceration. Having concluded in our resolution of appellant's first assignment of error that the dependency determination is to be made considering the child's circumstances as of the date alleged in the complaint, his concession that the child was dependent at that time is dispositive of the issue.
{¶ 19} We further find that competent, credible evidence supports the trial court's determination that BCCSB made reasonable efforts to prevent S.H.'s continued removal from the home, as required by R.C.
{¶ 20} Judgment affirmed.
Young and Bressler, JJ., concur.