Matter of Zeiser ( 1999 )

I do not disagree with the belief of the trial judge or the majority that it is not prudent to leave a six year old and/or an eight year old home alone; however, I respectfully dissent with the majority's conclusion that the facts in this case constitute neglect per se based solely upon the ages of the children. No bright-line rule exists in Ohio that children, under a certain age, are incompetent to stay home alone. A child is defined as "a person who is under eighteen years of age." R. C. 2151.011(B)(6)(a). Absent legislative action creating a presumption that children under a specified age are too immature to be left home alone, each neglect charge must be proven on the particular facts of the case.

In order to show that Douglas, Keith, or both were neglected children, the state must produce clear and convincing evidence proving that Corrine Walsh's decision to leave them at home, without supervision, together or separately, on the occasions specified in the complaint, put their health and safety at undue risk. The state did not produce any meritorious evidence to prove that Keith and Douglas Zeiser were neglected children. A social worker testified that the Lake County Department of Human Services had an internal policy for investigations according to which it was neglect to leave a child under the age of nine years home alone. This reference to the investigation policy of the Lake County Department of Human Services does not constitute evidence of neglect.

The state did not present evidence regarding the maturity of Douglas or Keith or showing that their health and safety were put at undue risk, nor did it present testimony from experts that children under the age of nine, without exception, should never be left home alone.

To the contrary, all the meaningful evidence produced supported a finding that Corrine Walsh did not neglect her children. Connie Fiorelli, the supervisor of the children's day care center, Diane K. Delly, who had been their baby sitter for years, William Nichols, who resided in the home, and the guardian ad litem all testified that the children were extremely capable for their ages and were provided the care necessary for their health, morals, or well being. The guardianad litem testified: "* * * it doesn't appear to me, in this particular case, that there is sufficient evidence to find that these children were neglected."

Referring to the phrase "a government of laws and not of men," written into the Massachusetts Declaration of Rights by John Adams, Justice Frankfurter stated: "under 'a government of laws and not of men' such as we possess, power must be exercised according to law; and government, including the courts, as well as the governed, must move within its limitations." U.S. v. United Mine Workers of America (1947),330 U.S. 258.

Keith and Douglas Zeiser cannot be found to be neglected children because of personal beliefs or an investigatory policy of a social agency. The state was complacent and ignored its burden to present evidence sufficient to prove neglect by clear and convincing evidence.

I dissent.

______________________ JUDGE ROBERT A. NADER