In re K.B.B. ( 2011 )

[Cite as In re K.B.B., 2011-Ohio-4600.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
KBB AND KRB Case No. 2011 CA 00038
MINOR CHILDREN OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 2010
JCV 01144
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 12, 2011
APPEARANCES:
For Appellee For Appellant
JAMES B. PHILLIPS NICHOLAS J. MARINO
STARK COUNTY JFS 697 West Market Street
300 Market Avenue North Suite 300
Canton, Ohio 44702 Akron, Ohio 44303
Stark County, Case No. 2011 CA 00038 2
Wise, J.
{¶1} Appellant-Mother Nikki Rothacher appeals the decision of the Stark
County Court of Common Pleas, Juvenile Division, which found her twin minor
children, K.B. and K.B., to be dependent under R.C. 2151.04. The relevant procedural
facts leading to this appeal are as follows.
{¶2} On October 7, 2010, Appellee Stark County Department of Job and Family
Services ("SCDJFS") filed a dependency/neglect complaint, seeking temporary custody
of K. B. and K.B., born in 2002. After a shelter care hearing on October 8, 2010, the
court ordered the children into the emergency temporary custody of SCDJFS.
{¶3} On December 7, 2010, following an evidentiary hearing before a
magistrate, the children were found to dependent under R.C. 2151.04(B) and (C). The
court at that time ordered the children to remain in the temporary custody of the
agency.
{¶4} On December 20, 2010 appellant filed an objection to the magistrate's
decision. Following a hearing on January 24, 2011, the trial court approved and
adopted the dependency finding under both R.C. sections 2151.04(B) and (C). The
court made its determination despite disregarding some of the records-based
testimony that it found to be hearsay.
{¶5} Appellant filed a notice of appeal on February 22, 2011. She herein raises
the following sole Assignment of Error:
{¶6} “I. THE FINDING BY THE COURT THAT THE CHILDREN WERE
DEPENDANT (SIC) WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND/OR BASED ON INSUFFICIENT EVIDENCE AND CONTRARY TO LAW.”
Stark County, Case No. 2011 CA 00038 3
I.
{¶7} In her sole Assignment of Error, Appellant-Mother contends the trial court
erroneously adjudicated K.B. and K.B. as dependent children under the statute. We
disagree.
{¶8} Pursuant to R.C. 2151.35(A), a trial court must find that a child is an
abused, neglected, or dependent child by clear and convincing evidence. In re Kasper
Children (June 30, 2000), Stark App.No. 1999CA00216. As a general rule, the trier of
fact is in a far better position to observe the witnesses' demeanor and weigh their
credibility. See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. As an
appellate court, we neither weigh the evidence nor judge the credibility of the
witnesses. Our role is to determine whether there is relevant, competent and credible
evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries
(Feb. 10, 1982), Stark App. No. CA-5758. Accordingly, judgments supported by some
competent, credible evidence going to all the essential elements of the case will not be
reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley
Construction (1978), 54 Ohio St.2d 279, 281, 376 N.E.2d 578.
{¶9} Included in the Ohio statutory definition of a “dependent child” under R.C.
2151.04 is any child “[w]ho lacks adequate parental care by reason of the mental or
physical condition of the child's parents, guardian, or custodian” or “[w]hose condition
or environment is such as to warrant the state, in the interests of the child, in assuming
the child's guardianship.” R.C. 2151.04(B) and (C).
{¶10} In the case sub judice, the SCDJFS investigative caseworker, Kristie
Baker, testified that she had a phone conversation with appellant in October 2010
Stark County, Case No. 2011 CA 00038 4
during which appellant stated that she planned to pick up her children from the bus and
drive them to Carroll County. Tr. at 5. Appellant sounded incoherent to Baker during
the phone conversation. The case worker testified that appellant was slurring her
words and her communication “seemed to be delayed.” Baker advised appellant to go
directly to Quest Recovery Services to submit a urine screen. Tr. at 6. Appellant did
so, and thereupon tested positive for Benzodiazepines. Id. Baker further testified
appellant informed her that she was taking numerous different prescription medications
and seeing three different doctors. Tr. at 6-7. The medications included Cymbalta,
Zyprexa, Lyrica, Percocet, Valium, Xanax, Cyclobenzaprine, Zolpidem, Ranitidine,
Promethazine, and Ibuprofen. Tr. at 7.
{¶11} Baker also recalled that she interviewed appellant in person the same day
as the phone conversation and observed her to be lethargic, almost unable to carry on
a conversation, and falling asleep during the interview. Tr. at 8. The case worker
testified appellant admitted to her that the staff at Quest would not allow her to leave
the facility alone due to her being under the influence of some substance. Tr. at 11.
She also testified that in her professional opinion, appellant was not able to safely care
for her children on that day. Tr. at 9.
{¶12} Appellant presently urges that the agency failed to demonstrate a
“chronic” problem that affected her parenting abilities. However, even though this
matter involves a relatively limited time frame, the testimony strongly indicates
appellant is dealing with a host of drug management and personal judgment issues
significantly impacting the environment and welfare of her two elementary school age
children. In such a situation, we are inclined to invoke the adage that “[t]he law does
Stark County, Case No. 2011 CA 00038 5
not require the court to experiment with the child's welfare to see if he will suffer great
detriment or harm.” See In re Bishop (1987), 36 Ohio App.3d 123, 126, 521 N.E.2d
838, quoting In re East (1972), 32 Ohio Misc. 65, 69, 288 N.E.2d 343, 346.
{¶13} Upon review, we are not inclined to disturb the determinations of the trial
court as the fact finder in this instance, and we hold the evidence presented supports
the conclusion that K.B. and K.B. are dependent children under R.C. 2151.04(B) and
(C).
{¶14} Appellant’s sole Assignment of Error is therefore overruled.
{¶15} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0818
Stark County, Case No. 2011 CA 00038 6
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
:
KBB AND KRB : JUDGMENT ENTRY
:
:
MINOR CHILDREN : Case No. 2011 CA 00038
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is
affirmed.
Costs assessed to appellant.
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JUDGES