In Re Sarah H. , 86 Ohio App. 3d 455 ( 1993 )

Appellant, Greg H., appeals an order of the Butler County Court of Common Pleas, Juvenile Division, ordering him to undergo therapy as a sexual offender.

On December 12, 1990, a complaint was filed alleging that appellant's daughter, Sarah H., was an abused child. The complaint also alleged that appellant may have been responsible for the abuse. Following an adjudicatory hearing, the juvenile court found the child to be an abused child as defined by R.C. 2151.031(A), without making a finding as to the identity of the perpetrator. At the conclusion of a subsequent dispositional hearing, the court ordered that custody of the child remain with her mother, who was divorced from appellant in 1989, and granted appellant supervised visitation.

The child made additional allegations of abuse against appellant in October 1991 and February 1992, the latter charge appearing to have resulted from the child's disappointment over not being able to eat at the restaurant of her choice while visiting appellant. The Butler County Children's Services Board ("board") filed a motion to terminate visitation. The court conducted a hearing on the board's motion during which it received hearsay testimony from the child's mother and the child's therapist.

The court denied the board's motion to terminate visitation, but ordered appellant to receive treatment as an alleged sexual offender. It is from this entry that appellant appeals, presenting a single assignment of error which claims that:

"The trial court erred to require appellant to undergo therapy as a sex offender as a condition of his visiting his child when there was no finding that he had abused her."

Appellant argues that the juvenile court abused its discretion in ordering appellant to undergo sex offender therapy absent any finding that appellant abused his daughter. The board submits that the court need not find that appellant committed the abuse; rather, the court's order is consistent with R.C.2151.359, which permits the juvenile court to restrain or otherwise control a parent's conduct if such is necessary to control any conduct or relationship that will either be detrimental or harmful to the child or tend to defeat the execution of a dispositional order.

Following the adjudicatory hearing, the court found the child to be an abused child but made no determination of fault or otherwise identified the perpetrator. Such a finding is proper and complies with Ohio law. In re Pitts (1987), 38 Ohio App. 3d 1,5, 525 N.E.2d 814, 817. The issue, however, is whether the juvenile court, in a subsequent dispositional hearing, may order a parent to undergo sex offender treatment absent a finding of fault.

In its opinion, the juvenile court could not find that "anything inappropriate occurred between the child and * * * [appellant] during the visitation in question," noting its concern with the child's proclivity to use the abuse issue to manipulate appellant and other adults involved in the case. The court went on to find, based upon hearsay testimony, that the "possibility" of abuse by appellant was more apparent and that appellant must receive treatment as an "alleged" sexual offender.

In In re Vickery (Dec. 17, 1990), Butler App. No. CA89-05-076, unreported, 1990 WL 208861, this court held that a finding of abuse, predicated upon hearsay evidence admitted during a dispositional hearing, was properly part of the adjudicatory process, and that such a finding during the dispositional stage denied due process to the parent found to have committed the abuse. As noted:

"A finding in juvenile court that a father sexually abused his daughter is every bit as damaging as a criminal conviction. There is a need for an accurate determination of the truth of the allegations made. This type of finding should not be made on the basis of hearsay evidence, which is inherently unreliable."Id. at 8-9. See, also, Davis v. Trumbull Cty. Children Serv. Bd. (1985), 24 Ohio App. 3d 180, 183-184, 24 OBR 270, 273-275,493 N.E.2d 1011, 1015-1016.

Although the court herein made no finding that appellant abused the child, the court's order requiring appellant to undergo sexual offender therapy is tantamount to such. If, as the court noted, the "possibility of abuse" is now more apparent, then appropriate action should be taken to either improve the supervision of appellant's visitations or suspend them altogether. See Vickery, supra, at 9-10. If, in the words of the juvenile court here, the additional evidence "added credibility to the issue of the original allegations of abuse of the child by [appellant]," then perhaps appropriate charges should be filed against appellant. If appellant is forced to undergo sexual offender therapy, such should be based on an adjudication that appellant committed some abuse, an adjudication which must be made in compliance with the rules of evidence and due process to prevent appellant from being forced into a "position of being unable to defend against the allegations." Id. at 9.

While the juvenile court's desire to protect both the child and appellant is laudable, the order in question practically convicts appellant of sexual abuse without the benefit of a trial or adjudicatory hearing subject to the rules of evidence and other procedural protections. In so doing, the juvenile court, in an attempt to protect the child's best interest, has abused its discretion by simply punishing appellant without an appropriate finding of fault.

For these reasons, we sustain appellant's assignment of error and hereby reverse that portion of the juvenile court's order requiring appellant to attend sex offender therapy.

Judgment reversed.

KOEHLER, J., concurs.

WALSH, J., dissents.