In re L.J. ( 2011 )

[Cite as In re L.J., 2011-Ohio-98.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
IN THE MATTER OF: [L.J.] and [S.J.], :
:
[Adjudicated Neglected] Children. : Case Nos.: 10AP8 & 10AP9
:
:
: DECISION AND
: JUDGMENT ENTRY
: File-stamped date: 1-10-11
APPEARANCES:
David A. Sams, West Jefferson, Ohio, for Appellant.
Laina Fetherolf, Hocking County Prosecuting Attorney, and Ann Allen McDonough,
Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for Appellee.
Kline, J.:
{¶1} Ray and Henrietta Johnson (hereinafter the “Johnsons”) appeal the judgment
of the Hocking County Court of Common Pleas, Juvenile Division, which found their
children to be educationally neglected. Because competent, credible evidence supports
the juvenile court’s decision, we disagree. Accordingly, we affirm the judgment of the
juvenile court.
I.
{¶2} The Johnsons have two daughters. S.J. was born on July 4, 1997, and L.J.
was born on October 28, 1998. (Collectively, we will refer to S.J. and L.J. as the
“Children.”) The Johnsons were approved to home school their Children for the 2008-
09 school year. But the Johnsons were not approved for home schooling the following
year, and the Children were not attending school when the 2009-10 school year began.
Hocking App. Nos. 10AP8 & 10AP9 2
As a result, on October 16, 2009, the Hocking County Children Services Board
(hereinafter “Children Services”) filed two complaints alleging that the Children were
neglected.
{¶3} On November 10, 2009, the juvenile court entered a protective order that
granted Children Services temporary custody of the Children. Several weeks later, the
Children were delivered to Children Services and placed into foster care.
{¶4} Because the Johnsons failed to appear for several court dates, the trial court
could not hold a dispositional hearing within ninety days of the original two complaints.
See R.C. 2151.35(B)(1) (“The dispositional hearing shall not be held more than ninety
days after the date on which the complaint in the case was filed.”). As a result, on
January 6, 2010, Children Services filed two new complaints alleging neglect. (The
juvenile court eventually dismissed the October 16, 2009 complaints.)
{¶5} At an April 5, 2010 hearing, Ray and Henrietta Johnson testified about their
Children’s educations. The Johnsons agreed (1) that they had not submitted an
academic assessment report for the 2008-09 school year and (2) that they had not been
approved for home schooling for the 2009-10 school year. But even though they failed
to comply with the requirements for home schooling, the Johnsons claimed that they
had been properly educating their Children.
{¶6} Following the hearing, the juvenile court found the Children to be
educationally neglected. And after a subsequent hearing, the juvenile court ordered the
Children to remain in the temporary custody of Children Services.
Hocking App. Nos. 10AP8 & 10AP9 3
{¶7} The Johnsons appeal and assert the following assignment of error: I. “THE
FINDING OF NEGLECT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
II.
{¶8} Under their assignment of error, the Johnsons advance two general
arguments. Their first argument relates to R.C. 2151.23(A)(1), which “provides that the
trial court must determine the issue of neglect or dependency as of the date specified in
the complaint.” In re Barnhart, Athens App. No. 05CA8, 2005-Ohio-2692, at ¶20, citing
In re Hay (May 31, 1995), Lawrence App. No. 94CA23. In the proceedings below, the
relevant complaints were filed on January 6, 2010. As such, the Johnsons contend that
the juvenile court erred because, at that time, the Children “were properly enrolled in a
home-schooling program through the Berne Union Local School District.” Merit Brief of
Appellant Parents, R.J. & H.J. at 2. Secondly, the Johnsons argue that “there was no
evidence that [they had] refused to educate their [C]hildren[.]” Merit Brief of Appellant
Parents, R.J. & H.J. at 2. For either of these reasons, the Johnsons contend that the
trial court’s educational-neglect finding is against the manifest weight of the evidence.
{¶9} Under R.C. 2151.35, clear-and-convincing evidence must support a finding of
neglect. See Barnhart at ¶17; In re Pieper Children (1993), 85 Ohio App. 3d 318, 326
(citation omitted). To be clear and convincing, the evidence must “‘produce in the mind
of the trier of facts a firm belief or conviction as to the facts sought to be established.’”
In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 368, quoting Cross v. Ledford
(1954), 161 Ohio St. 469, at paragraph three of the syllabus. Although the clear-and-
convincing-evidence standard is a higher degree of proof than the preponderance-of-
Hocking App. Nos. 10AP8 & 10AP9 4
the-evidence standard, it is less stringent than the beyond-a-reasonable-doubt
standard. See Barnhart at ¶17, citing In re Baby Girl Doe, 149 Ohio App. 3d 717, 2002-
Ohio-4470, at ¶89; State v. Schiebel (1990), 55 Ohio St. 3d 71, 74.
{¶10} “In reviewing whether a lower court’s decision is based upon clear and
convincing evidence, a reviewing court will examine the record to determine whether the
trier of fact has enough evidence before it to satisfy the requisite degree of proof. See
Schiebel * * * at 74. If there is some competent, credible evidence to support the lower
court’s judgment, then the reviewing court may not reverse it. Id.” In re D.W., Athens
App. No. 06CA42, 2007-Ohio-2552, at ¶19. See, also, Barnhart at ¶18. “The trial
court’s discretion in making the final determination should be given ‘the utmost respect,
given the nature of the proceeding and the impact the court’s determination will have on
the lives of the parties concerned.’” Id., quoting In re Alfrey, Clark App. No. 01CA0083,
2003-Ohio-608, at ¶102.
{¶11} Under R.C. 2151.03(A)(3), a “‘neglected child’ includes any child * * * [w]hose
parents, guardian, or custodian neglects the child or refuses to provide proper or
necessary subsistence, education, medical or surgical care or treatment, or other care
necessary for the child’s health, morals, or well being[.]” (Emphasis added.)
{¶12} We find that competent, credible evidence supports the juvenile court’s
educational-neglect finding – regardless of whether the Children were properly enrolled
in a home-schooling program on January 6, 2010. Here, there is substantial evidence
that the Johnsons refused to provide proper educations for their Children. For example,
the Johnsons did not comply with the assessment requirements of Ohio Adm.Code
3301-34-04. Under Ohio Adm.Code 3301-34-04(A), parents of home-schooled children
Hocking App. Nos. 10AP8 & 10AP9 5
“shall send to the superintendent an academic assessment report * * * for the previous
school year[.]” It is undisputed that the Johnsons failed to complete the mandatory
academic assessment reports for 2008-09. Furthermore, the Johnsons were not
approved for home schooling for the 2009-10 school year. (The Children were properly
enrolled in a home-schooling program for the 2009-10 school year only after Children
Services obtained temporary custody.) And finally, aside from generalities, the
Johnsons could not testify as to their Children’s reading or math skills. Essentially, the
Johnsons (1) did not comply with the requirements for home schooling, (2) were not
approved for home schooling for the 2009-10 school year, and (3) had no effective
means of demonstrating their Children’s academic achievements. As a result, we find
that competent, credible evidence supports the juvenile court’s educational-neglect
finding.
{¶13} Accordingly, we overrule the Johnsons’ assignment of error and affirm the
judgment of the juvenile court.
JUDGMENT AFFIRMED.
Hocking App. Nos. 10AP8 & 10AP9 6
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellants shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Hocking County Court of Common Pleas, Juvenile Division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.