In re W.C.H. , 2015 Ohio 54 ( 2015 )

[Cite as In re W.C.H., 2015-Ohio-54.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
W.C.H. : CASE NO. CA2014-02-057
: OPINION
1/12/2015
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2013-0343
Brandabur & Bowling Co., L.P.A., Kyle M. Rapier, 315 Monument Avenue, Hamilton, Ohio
45011, for appellant, W.H.
Timothy Carlson, Fifth Third Bank Center, Suite 220, Hamilton, Ohio 45011, for A.M.
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Christina L. Minch, 7723 Tylers Place Blvd., #129, West Chester, Ohio 45069, guardian ad
litem
PIPER, J.
{¶ 1} Appellant, W.H. (Father), appeals a decision of the Butler County Court of
Common Pleas, Juvenile Division, adjudicating his child, W.C.H., dependent.
{¶ 2} A.M. (Mother) and Father were married at one time, and W.C.H. was born issue
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of the marriage. After Father and Mother divorced, the two had a shared parenting plan
regarding the care and custody of W.C.H, who is mildly autistic. However, Mother began to
deny Father the ability to have parenting time with the child after Detective Paul Davis of the
Hamilton Police Department informed her that Father was being investigated on allegations
that he sexually abused his nephew, K.A. Once Mother stopped allowing parenting time,
Father filed a motion asking the court to find Mother in contempt for her denial of parenting
time.
{¶ 3} Soon thereafter, the state filed a complaint alleging that W.C.H. was a
dependent child because the sexual abuse allegations regarding K.A. had been
substantiated by Butler County Children Services (BCCS). The state included in its
complaint that criminal charges would soon be brought against Father in regard to his sexual
abuse of K.A. However, the prosecutor had not yet filed criminal charges because K.A. was
mentally unstable and needed to become more stable before becoming involved in the
criminal proceedings.
{¶ 4} As a result of the substantiated sexual abuse case involving Father's nephew,
W.C.H. was interviewed at the Cincinnati Children's Hospital Medical Center, Mayerson
Center for Safe and Healthy Children. During the interview, W.C.H.'s behavior would change
when asked questions about Father. As police continued to investigate the criminal charges
against Father, the state dismissed and re-filed the dependency complaint. The re-filed
complaint alleged essentially the same basis for dependency—that Father was the
perpetrator in a substantiated sexual abuse case against his nephew. However, the
complaint updated the juvenile court that K.A. was still not mentally stable enough to testify at
grand jury, but reiterated that Detective Davis continued to assert that criminal charges would
be filed against Father as soon as K.A. was able to proceed.
{¶ 5} A magistrate held a hearing on the complaint over two days in October 2014.
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The first day of the hearing was October 9, 2013 and the second was October 23, 2013. On
the first day of the hearing, the state offered into evidence statements from three of Father's
family members who spoke to police about the sexual abuse perpetrated by Father. One
statement was from K.A. (Father's nephew), another was from A.H. (Father's nephew and
K.A.'s brother), and a third was from B.H. (Father's brother, who is father to K.A. and A.H.).
The three statements were given by K.A., A.H., and B.H. to Detective Davis as part of his
investigation of Father. Father objected to the admission of the statements as impermissible
hearsay, but the magistrate admitted the statements pursuant to the business records
exception.
{¶ 6} The night before the second day of the hearing, B.H. (Father's brother)
recanted his statement regarding Father sexually abusing him. According to the discussion
at the second day of the hearing, B.H. was in the hospital and his family was there with him.
He recanted his statement about the abuse, and signed an affidavit in the presence of
Father's attorney recanting his statement. However, neither of B.H.'s children recanted their
statements. While the magistrate discussed the recantation and heard witness testimony
regarding the recantation, the statements had already been admitted on the first day of the
hearing.
{¶ 7} After the hearing concluded, the magistrate found W.C.H. to be a dependent
child. Father filed an objection to the magistrate's decision, which the juvenile court
overruled. Father now appeals the juvenile court's decision adjudicating W.C.H. dependent,
raising the following assignments of error. However, and because we find Father's third
assignment of error dispositive of this appeal, we will address the assignments out of order.
{¶ 8} Assignment of Error No. 3:
{¶ 9} THE TRIAL COURT'S DECISION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
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{¶ 10} Father argues in his third assignment of error that the juvenile court's decision
adjudicating W.C.H. dependent was against the manifest weight of the evidence.
{¶ 11} A trial court's dependency determination must be supported by clear and
convincing evidence. In re S.J.J., 12th Dist. Butler No. CA2006-02-021, 2006-Ohio-6354, ¶
11. Clear and convincing evidence is that evidence which will produce in the mind of the trier
of fact a firm belief or conviction as to the facts sought to be established. Id. An appellate
court neither weighs the evidence nor judges the credibility of the witnesses; rather, appellate
review of a trial court's dependency determination "is limited to whether sufficient credible
evidence exists to support the trial court's determination." In re S.M., 12th Dist. Madison No.
CA2006-08-030, 2007-Ohio-2297, ¶ 12.
{¶ 12} Judgments supported by some competent, credible evidence going to all
essential elements of the case will not be reversed as being against the manifest weight of
the evidence. In re Pieper Children, 85 Ohio App.3d 318, 327 (12th Dist.1993). When
reviewing a trial court's decision on a manifest weight of the evidence basis, an a appellate
court is guided by the presumption that the findings of the trial court were correct so that
reversing a judgment on manifest weight grounds should only be done in exceptional
circumstances, when the evidence weighs heavily against the judgment. In re G.S., 12th
Dist. Franklin No. 05AP-1321, 2006-Ohio-2530, ¶ 4.
{¶ 13} The state alleged that W.C.H. was dependent according to R.C. 2151.04(B) or
(C), which defines a dependent child respectively as one "who lacks adequate parental care
by reason of the mental or physical condition of the child's parents, guardian, or custodian,"
or one "whose condition or environment is such as to warrant the state, in the interests of the
child, in assuming the child's guardianship."
{¶ 14} The determination that a child is dependent requires no showing of fault on the
parent's part. In re Bolser, 12th Dist. Butler Nos. CA99-02-038, CA99-03-048, 2000 WL
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146026, *4 (Jan.31, 2000). Rather, the focus is on the child's condition or environment, and
whether the child was without adequate care or support. Id. However, a court may consider
a parent's conduct insofar as it forms part of the child's environment. In re S.J.J., 2006-Ohio-
6354. While the child's present "condition or environment" is the focus of a dependency
determination, "the law does not require the court to experiment with the child's welfare to
see if the child will suffer great detriment or harm." Id. at ¶ 12.
{¶ 15} A juvenile court's adjudication of abuse, neglect, or dependency is a
determination about the care and condition of a child. In re B.J., 12th Dist. Butler No.
CA2011-10-192, 2012-Ohio-3127, ¶ 28. Such adjudication does not, however, permanently
foreclose the rights of either parent because adjudication is not a termination of all residual
parental rights, privileges, and responsibilities. Id.{¶ 16} While Father's first two assignments challenge the juvenile court's admission of
the three statements regarding Father's alleged sexual abuse of his family members, we
need not determine whether those statements were properly admitted, as there was clear
and convincing evidence presented that W.C.H. was dependent notwithstanding the
statements. Even without any consideration of the statements, we find that the juvenile court
had clear and convincing evidence to adjudicate W.C.H. dependent, and that the juvenile
court's decision was supported by the manifest weight of the evidence.
{¶ 17} The juvenile court heard testimony from Gary Herbert, an intake worker with
BCCS, who specializes in investigating sexual abuse cases. Herbert testified that he
became involved with W.C.H. in September 2012 when allegations were made that W.C.H.
had sexual contact with Father. Herbert testified that while those allegations were
unsubstantiated, he was also a part of another investigation regarding Father sexually
abusing K.A., and that those allegations were found to be substantiated. Herbert defined
substantiated as "there was substantial evidence to support the allegation."
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{¶ 18} Julie Deible, a caseworker with BCCS, testified that she investigates sexual
abuse cases, and that she became involved with W.C.H. because she worked on companion
cases involving Father as a perpetrator of sexual abuse. Deible testified that she worked on
the cases involving K.A. and A.H., and that through those cases, she became aware of
Father and W.C.H. Deible testified that Father was the alleged perpetrator in the sexual
abuse cases involving Father's nephews and that the abuse allegations were substantiated.
When asked to define substantiated, Deible stated that "to me it means we believe that it
happened."
{¶ 19} Deible testified that the substantiation of allegations was based, on part, with
her interview with K.A., and that as part of her investigation, she also spoke with W.C.H.
regarding Father. Deible testified that when she spoke to W.C.H. about his home life, he was
animated and engaged, but that his behavior changed when he was asked questions about
Father. Deible also testified that she was aware that there was an ongoing criminal
investigation occurring, parallel to BCCS's investigation of Father.
{¶ 20} Emily Thompson, a BCCS caseworker, testified that she filed the second,
updated, complaint alleging W.C.H.'s dependency based on information she received from
Detective Davis regarding the criminal investigation of Father. Thompson testified that the
information contained in the second complaint was accurate, and completed to the best of
her knowledge that the criminal investigation of Father for sexual abuse was ongoing.
{¶ 21} Detective Davis then testified that he had been a detective for 11 years, and
that he became familiar with Father regarding accusations of "multiple child rapes," regarding
K.A. and B.H., as well as gross sexual imposition of A.H. Detective Davis testified that as a
result of his interviews with K.A., B.H., and A.H., he continued his investigation of Father.
Detective Davis also testified that he observed W.C.H.'s interview, and that he observed
W.C.H.'s demeanor "change dramatically" and that W.C.H. "shut down" when he was asked
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questions about Father.
{¶ 22} Detective Davis indicated that his investigation was ongoing, but that no
criminal charges had been filed because K.A. was not mentally stable enough to move
forward with the criminal process. Detective Davis testified that K.A. began cutting himself,
and that officials feared K.A.'s suicide if he were forced to move forward without being stable
enough. Even so, Detective Davis testified that the criminal case against Father would
progress, that he had definitive plans to pursue criminal charges, and that in his opinion,
Father would be charged in a "timely manner."
{¶ 23} Father then testified, as if on cross-examination, after being advised of his Fifth
Amendment rights against self-incrimination. Father testified that none of the allegations
being made against him were true, and that the allegations were only levied because his
mother took B.H. out of her will. When the state asked whether Father was innocent of the
allegations, he replied, "I go with what my lawyer tells me to do. I have an attorney."
{¶ 24} Mother also testified, and stated that W.C.H. exhibited unusual behavior, and
that the child began kissing her neck and kissed her "all the way down." Mother testified that
she told W.C.H. to stop and that such action was inappropriate, but that W.C.H. kissed
Mother inappropriately "several times." When Mother talked to W.C.H. about these actions,
Mother testified that W.C.H. told her that the kissing all the way down "was just something
that him and his daddy do. He was just loving on me."
{¶ 25} After hearing the testimony and considering the evidence, the juvenile court
determined that W.C.H. was dependent. We find that the juvenile court's adjudication is
supported by the manifest weight of the evidence. Without any consideration of the three
statements, the juvenile court heard ample testimony regarding the allegations against
Father, and that such allegations were found to be substantiated by BCCS. The court also
considered that Detective Davis testified that Father would be facing criminal charges once
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K.A. was well enough to move forward with the criminal process, and that Detective Davis'
investigation led him to believe that such charges would be brought against Father in a timely
manner.
{¶ 26} Regarding the child specifically, the court considered that W.C.H. was
interviewed and "did appear to be somewhat more guarded regarding discussions involving
his father than he was in discussions regarding others." The court also considered that the
child acted "inappropriately affectionate" with Mother when the child kissed Mother's neck "all
the way down," and that the child explained that such kissing was "just loving on her" in the
same manner that Father did with W.C.H.
{¶ 27} Moreover, the juvenile court heard Father's own testimony, in which he denied
the allegations against him. The court heard Father's explanation regarding why multiple
people would be making allegations of rape and gross sexual imposition against him, and
heard Father state that the allegations were not true. The juvenile court was in the best
position to judge the credibility of Father's statements, and what impact those statements had
on the court's understanding of whether or not Father engaged in sexual abuse.
{¶ 28} This evidence and testimony spoke directly to W.C.H.'s environment in terms of
the relationship the child had with Father and what the child was exposed to while when in
Father's exclusive care. While Father had not yet been convicted of sexually abusing K.A. or
W.C.H., the law does not require the court to experiment with the child's welfare to see if the
child will suffer great detriment or harm before finding the child dependent. The juvenile
court's decision was based on clear and convincing evidence, and we find such decision
supported by the manifest weight of that evidence. As such, the juvenile court's adjudication
of dependency was proper, and Father's third assignment of error is overruled.
{¶ 29} Assignment of Error No. 1:
{¶ 30} THE COURT ERRED WHEN IT ADMITTED THREE WITNESS STATEMENTS
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INTO EVIDENCE WHICH WERE HEARSAY WITHOUT ANY EXCEPTION.
{¶ 31} Assignment of Error No. 2:
{¶ 32} THE COURT ERRED WHEN IT ADMITTED THE WITNESS STATEMENT OF
K.A. WITHOUT FIRST ESTABLISHING THAT THE WITNESS WAS COMPETENT TO
TESTIFY.
{¶ 33} Given our disposition of Father's third assignment of error, and our express
finding that the juvenile court's decision was supported by the manifest weight of the
evidence even absent consideration of the three statements, we find Father's first and
second assignments of error moot.
{¶ 34} Judgment affirmed.
RINGLAND, P.J., and HENDRICKSON, J., concur.
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