In re G.T. , 2022 Ohio 1406 ( 2022 )

[Cite as In re G.T., 2022-Ohio-1406.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE G.T. :
: No. 110936
A Minor Child :
:
[Appeal by R.M., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 28, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-21-905304
Appearances:
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
MARY J. BOYLE, J.:
Appellant, R.M. (“Mother”), appeals from the juvenile court order
awarding temporary custody of her son, G.T., to appellee, the Cuyahoga County
Department of Children and Family Services (“CCDCFS” or “the agency”). For the
reasons set forth below, we affirm the juvenile court’s judgment.
I. Facts and Procedural History
On June 20, 2021, Mother was arrested following an altercation with
her mother (“Grandmother”) while Mother and G.T. (d.o.b. 06/01/18) were living
at Grandmother’s home. Two days later, CCDCFS requested emergency temporary
custody of G.T. The juvenile court held an ex parte telephonic hearing at which
CCDCFS caseworker Ashiki Lakes (“Lakes”) provided testimony. The court
determined that probable cause supported removal of G.T. The court found that
Mother had threatened to kill herself and G.T. once in the previous few weeks and
again within the prior 24 hours. The court also found that Mother had been arrested
following a domestic altercation with Grandmother, wished to take G.T. with her
from Grandmother’s house, and threatened to harm herself if she were prevented
from doing so. Further, the court found that Mother had been referred to several
mental health service providers but her behavior had not changed, and Mother was
unwilling to agree to a safety plan. The court issued an order committing G.T. to the
emergency care and custody of CCDCFS. CCDCFS subsequently placed G.T. with
Grandmother.
On June 23, 2021, CCDCFS filed a complaint in the juvenile court,
alleging that G.T. was neglected and dependent and requesting predispositional
temporary custody of G.T. The agency alleged that “Mother has unresolved mental
health issues which interfere with her ability to provide adequate parental care for
[G.T.] and which jeopardize [his] safety.” The agency also alleged that a month prior
to its filing of the complaint, Mother had “on multiple occasions threatened to kill
herself and [G.T.], including as recently as June 22, 2021.” The agency alleged that
on June 20, 2021, Mother was arrested for “brandish[ing] a knife during an
argument” with Grandmother while Mother and G.T. were living at Grandmother’s
home; that G.T. was present during the argument and, because of the incident,
Grandmother asked Mother to leave her home; and that Mother is without stable
housing because her “current residence is not a permanent home.” The agency
further alleged that the identity of alleged father (“Father”) is unknown and Father
has failed to establish paternity or “support, visit, or communicate with [G.T.] since
birth.”
On June 24, 2021, the juvenile court held a hearing on the agency’s
request for predispositional temporary custody. Through counsel and a Swahili
interpreter, Mother denied the allegations in the complaint but stipulated to a
finding of probable cause supporting predispositional temporary custody to
CCDCFS provided that G.T. remain in Grandmother’s care pending resolution of the
temporary custody proceedings. The court granted the agency’s request for
predispositional custody, finding that G.T. would remain in Grandmother’s care.
The court also found that Mother “has limited English proficiency and requires a
qualified Swahili interpreter to assist [Mother] at future hearings.”
On July 21, 2021, the court held a pretrial to review predispositional
custody of G.T. and set an adjudication hearing date, but due to confusion in bus
schedules or routes, Mother could not attend the hearing. The hearing was therefore
rescheduled for August 25, 2021.
On July 22, 2021, CCDCFS filed a case plan that included mental
health assessment and services for Mother, then 19 years old, with the goal that
Mother would be able to manage her mental health, demonstrate coping skills, and
be able to meet her own basic needs while meeting those of her child. The case plan
also made provisions for stable housing, adequate income, and a monthly budget for
adequate food and appropriate clothing, rent, and utilities. The plan noted that
G.T.’s temporary placement with Grandmother was safe and meeting his basic needs
and was in close proximity to Mother. The goal of the plan was G.T.’s reunification
with Mother.
On August 3, 2021, the guardian ad litem (“GAL”) for G.T. filed his
report, recommending that G.T. be committed to the temporary custody of CCDCFS.
The GAL noted that Mother did not appear to have permanent housing and could
not provide for G.T.’s basic needs. The GAL further noted that Mother “may have
some ongoing mental health issues [that] impact her ability to care for [G.T.]” The
GAL observed that Grandmother appeared to be taking good care of G.T.
On August 25, 2021, the juvenile court held the pretrial hearing to
review predispositional custody of G.T. The court found that G.T. would remain in
Grandmother’s care pending the adjudication hearing. The court ordered CCDCFS
to facilitate in-person visits between Mother and G.T. “at least one time per week for
a minimum of two hours.”
On September 8, 2021, the juvenile court held the adjudication
hearing before a magistrate. Lakes testified on behalf of CCDCFS. Lakes reiterated
that Mother had initially been referred to CCDCFS in June 2021, after Mother had
threatened to kill herself and G.T. Lakes stated that Mother had admitted that she
made this threat because she felt that Catholic Charities, which had been providing
mental health counseling to Mother and helping her return to school, was trying to
separate Mother from her family.
Lakes testified that CCDCFS received a second referral the day after
Mother’s release from jail, following Mother’s altercation with Grandmother.
Mother informed Lakes that she could no longer stay with Grandmother and
planned to “sleep out on the street with [G.T.]” Lakes added that when she told
Mother that she and G.T. could not live on the street, Mother again threatened to
kill herself. Lakes stated that Mother was unemployed, could not meet her and
G.T.’s basic needs, had been living with Grandmother, and relied on Grandmother’s
financial assistance to meet G.T.’s needs. Lakes said that CCDCFS had referred
Mother to Community Collaborative and Positive Education Program Connections
for mental health counseling and sought removal of G.T. only after Mother did not
agree to the agency’s proposed safety plan.
On cross-examination, Lakes, a caseworker, admitted that she had
referred to herself as a social worker during her testimony. When asked what had
precipitated the altercation between Mother and Grandmother, Lakes stated that
Mother wanted to leave the house with G.T. and Grandmother would not allow it.
Lakes admitted that Mother was staying with a friend after leaving Grandmother’s
house; the friend’s house was appropriate and had food for G.T.; and the friend was
willing to allow Mother and G.T. to live there. Lakes added that the friend’s house
could be a possible place for Mother and G.T. to live after Mother addressed the
agency’s concerns about her mental health.
Mother testified on her own behalf. Mother testified that she and G.T.
had moved from Burundi to the United States in 2019 when G.T. was a year old and,
until recently, had been living with Grandmother. Mother stated that Grandmother
is Congolese, and in Congolese culture, it is shameful for an unmarried daughter to
get pregnant. Mother said that parents can “even * * * chase you from home if you
get pregnant before you get married.” Mother said she does not know the identity
of G.T.’s father and attributed the tensions between her and Grandmother to
Grandmother’s shaming her for being a single mother. Mother added that when she
and G.T. first arrived in the United States, Mother was unemployed, Grandmother
did not help with G.T., and Mother “did a lot of things which are not good to take
care of [her] child.”
Mother also testified about her employment history since arriving in
the United States. Mother said that when COVID-19 first started, she and
Grandmother were working opposite shifts. A few months later, Mother quit her job
and began attending high school. While Mother was in school, G.T. was in daycare.
Mother said that Grandmother provided neither Mother nor G.T. any financial
assistance but on cross-examination stated that Grandmother provided
approximately 20 percent of G.T.’s basic needs. Mother stated that she had taken
care of G.T. from his infancy and no one, including Grandmother, could provide
better care for G.T. Mother said she would “even stop going to school and start
working so that [she] can take care of [G.T.]”
Mother testified about her threats of self-harm. Mother stated that
Grandmother advised her to tell CCDCFS that if G.T. were removed, she would kill
herself. Mother said that she would not have said this had she known it would cause
her trouble. Mother admitted that prior to the agency’s involvement, she had made
a similar threat “because there were problems which are [sic] affecting me at that
time. And I wouldn’t like to talk about that because that was something between me
and my doctors.” Mother denied having mental health problems, adding that the
allegation that she has mental illness “affects her a lot” and that she is not currently
in counseling.
Mother testified about the altercation with Grandmother. Mother
stated that when the police arrived, they said nothing to her, just arrested her, and
took her to jail. Mother denied brandishing a knife during the altercation. Mother
stated that after she was released from jail, she received a text message from Catholic
Charities advising her not to return to Grandmother’s home because if she did, the
police again would arrest her. Mother then went to stay with a friend.
After hearing this testimony, the magistrate determined that CCDCFS
failed to prove by clear and convincing evidence that Mother had brandished a knife
during the altercation with Grandmother. Finding that the agency had offered no
testimony supporting this allegation and that Mother had denied the allegation, the
magistrate ordered the complaint to be amended to delete reference to the knife.
The magistrate determined, however, that CCDCFS proved the complaint’s
remaining allegations by clear and convincing evidence and adjudicated G.T.
neglected and dependent. Based on concerns raised by Mother, the magistrate
ordered the agency to meet with Grandmother to make sure that G.T.’s placement
with Grandmother was appropriate. The magistrate also ordered the agency to give
Mother a copy of the case plan translated into Swahili. The court issued a journal
entry the same day, September 8, 2021, finding that “the allegations of the
Complaint as amended have been proven by clear and convincing evidence,” and
attached a copy of the amended complaint to this journal entry.
On September 21, 2021, Mother timely filed objections to the
magistrate’s decision, arguing that Lakes violated the law by misrepresenting herself
as a social worker; the magistrate did not permit Mother to fully question Lakes
about her training, education, and experience; the magistrate’s entry lacked findings
of fact and conclusions of law required for an adjudicatory decision; the magistrate’s
decision that G.T. was neglected and dependent was not supported by clear and
convincing evidence; and the magistrate failed to consider the importance of Swahili
culture to the events of the case. On October 5, 2021, the juvenile court overruled
Mother’s objections and affirmed, approved, and adopted the magistrate’s decision.
On October 6, 2021, the matter proceeded to a dispositional hearing
before the magistrate. Mother agreed to the case plan, which CCDCFS had
translated into Swahili. Mother stated that she would be finishing school and not
obtaining employment but would be applying for financial assistance and housing.
Mother believed that qualifying for financial assistance would meet the “adequate
income” portion of the case plan. Mother agreed to temporary custody of G.T. to
CCDCFS and that G.T. should remain with Grandmother until Mother satisfied the
case plan. The magistrate informed Mother that to resume custody of G.T., she
would have to complete or substantially comply with the objectives of the case plan.
When asked about Father, Mother stated that he lived in Burundi but did not
identify him by name.
Child protection specialist Adonte Haddox (“Haddox”) testified on
behalf of CCDCFS. Haddox testified that Father remained unidentified and no one
had claimed to be G.T.’s father. Haddox stated that the case plan requires Mother
to obtain housing, provide basic needs to G.T., and undergo a mental health
assessment through Ohio Guidestone, which had arranged for a Swahili interpreter.
Haddox confirmed that G.T. would remain in Grandmother’s temporary custody.
The GAL recommended that the court adopt the parties’ stipulated agreement to
temporary custody to CCDCFS.
The magistrate approved the case plan and granted temporary
custody of G.T. to the agency. The magistrate scheduled a review hearing for May
2022, or earlier upon motion of either party, depending on whether Mother is
substantially complying with the case plan.1 The magistrate confirmed that Mother
is living with a friend and asked whether Mother sees G.T. every day. Haddox could
1 Upon learning of the May 2022 review hearing, Mother became visibly upset, and
the magistrate added, “If anytime earlier, if [M]other is substantially complying with her
case plan, anybody can file a motion earlier and we can come back in here sooner.”
only confirm that Mother sees G.T. during agency-approved visitation but added
that Mother remains close with Grandmother and likely sees G.T. more often.
On October 7, 2021, the magistrate entered his decision, finding that
Mother stipulated to the agency’s dispositional request for temporary custody of
G.T.; that G.T.’s return to Mother was not in his best interest; that CCDCFS made
reasonable efforts to prevent removal; and that G.T. is placed with Grandmother
pending a May 27, 2022 hearing to review whether Mother has obtained stable
housing, can provide for G.T.’s basic needs, and has completed a mental health
assessment at Ohio Guidestone, at which a Swahili interpreter would be provided.
On October 18, 2021, Mother filed a notice of appeal, contesting the
magistrate’s September 8, 2021 finding that CCDCFS had proven by clear and
convincing evidence that G.T. was neglected and dependent, which the juvenile
court affirmed, approved, and adopted in its October 5, 2021 journal entry.
On February 17, 2022, this court, sua sponte, remanded the matter to
the juvenile court to enter a final order, finding that the record contained only the
juvenile court’s overruling of Mother’s objections to the magistrate’s September 8,
2021 decision. On March 22, 2022, the juvenile court supplemented the record with
its October 25, 2022 judgment entry affirming, approving, and adopting the
magistrate’s October 7, 2021 decision.
It is from this judgment that Mother appeals, raising two assignments
of error for review:
1. The juvenile court erred in adjudicating the minor child G.T.
neglected against the manifest weight of the evidence presented at trial.
2. The juvenile court erred in adjudicating the minor child G.T.
dependent against the manifest weight of the evidence presented at
trial.
II. Law and Analysis
A juvenile court’s determination that a child is neglected or
dependent must be based on clear and convincing evidence. R.C. 2151.35(A)(1);
Juv.R. 29(E)(4). In re E.E., 8th Dist. Cuyahoga No. 110021, 2021-Ohio-2770, ¶ 30,
citing In re Vinci, 8th Dist. Cuyahoga No. 73043, 1998 Ohio App. LEXIS 4100, 7
(Sept. 3, 1998), and In re Hauserman, 8th Dist. Cuyahoga Nos. 77235 and 77252,
2002 Ohio App. LEXIS 1113, 9 (Mar. 11, 2002). Clear and convincing evidence is
defined as that “measure or degree of proof which is more than a mere
‘preponderance of evidence’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind
of the trier of facts a firm belief or conviction as to the facts sought to be established.”
In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), fn. 2, citing
Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512
N.E.2d 979 (1987), and Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
When evaluating a claim that a judgment was contrary to the manifest
weight of the evidence, [an appellate court] must review the record,
weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered.
In re Z.H., 1st Dist. Hamilton Nos. C-150301 and C-150305, 2015-Ohio-3209, ¶ 10,
citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). The
appellate court should defer to the juvenile court’s credibility determinations,
particularly in matters involving children, because ‘“there may be much evident in
the parties’ demeanor and attitude that does not translate to the record well.’” In re
C.O., 8th Dist. Cuyahoga Nos. 99334 and 99335, 2013-Ohio-5239, ¶ 30, quoting
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
A. Neglect of G.T.
Within her first assignment of error, Mother contends that CCDCFS
based its claim that G.T. was neglected on Mother’s temporary unemployment, lack
of a residence in her own name, and an unsupported allegation that Mother had a
mental health issue. Mother claims that she is equipped to care for G.T. Mother
argues that the agency should have explored her eligibility for financial assistance
because she is in school. Mother also argues that even though she could no longer
stay with Grandmother, she was staying at the home of a friend who said that Mother
and G.T. could live there.
CCDCFS contends that Mother’s circumstances at the time of the
complaint determine whether G.T. was properly adjudicated neglected. The agency
argues that at the time of the complaint, Mother was unemployed; had been involved
in a violent domestic altercation with Grandmother for which Mother was jailed;
had no clear means of providing for G.T.’s basic needs after her release from jail;
lacked stable housing; had discontinued counseling; and disagreed with the agency’s
safety plan after threatening to take her child’s life and twice threatening to take her
own life.
R.C. 2151.03(A)(2) defines a “neglected child” as any child “[w]ho
lacks adequate parental care because of the faults or habits of the child’s parents,
guardian, or custodian[.]” “‘Adequate parental care’ means the provision by a child’s
parent or parents, guardian, or custodian of adequate food, clothing, and shelter to
ensure the child’s health and physical safety[.]” R.C. 2151.011(B)(1). R.C.
2151.03(A)(2) “requires some showing that parents, a guardian, or a custodian is at
fault before a finding of a lack of proper (or adequate) care can be made.” In re
Riddle, 79 Ohio St.3d 259, 262, 680 N.E.2d 1227 (1997). Refusal to cooperate with
case plan services is sufficient fault to support a finding of neglect under R.C.
2151.03(A)(2). In re C.T., 6th Dist. Sandusky No. S-18-005, 2018-Ohio-3823, ¶ 57.
“To determine whether a child is neglected or dependent, the date on which neglect
or dependency ‘existed must be alleged in the complaint and the trial court must
determine that the circumstance(s) which support a finding of dependency [or
neglect] existed as of the date or dates alleged in the complaint.’” In re E.E., 2021-
Ohio-2770, at ¶ 41, quoting In re C.O., 2013-Ohio-5239, at ¶ 31.
Here, the relevant date is June 23, 2021, when CCDCFS filed its
complaint alleging that G.T. was neglected. In his September 8, 2021 entry, the
magistrate found that “the allegations of the Complaint as amended ha[d] been
proven by clear and convincing evidence.” A copy of the amended complaint was
attached to the journal entry. The amended complaint removed reference to
Mother’s brandishing a knife during the altercation with Grandmother but retained
the remaining allegations. On October 5, 2021, the juvenile court affirmed,
approved, and adopted the magistrate’s decision. We therefore examine the record
to determine whether CCDCFS proved the allegations in the amended complaint
and whether, after resolving conflicts in the evidence, the juvenile court based its
determination that G.T. was neglected on clear and convincing evidence.
In the amended complaint, CCDCFS first alleges that “Mother has
unresolved mental health issues which interfere with her ability to provide adequate
parental care for [G.T.] and which jeopardize [G.T.’s] safety” and that Mother “on
multiple occasions threatened to kill herself and [G.T.], including as recently as
June 22, 2021.” Mother argues that CCDCFS did not support its concerns about
Mother’s mental health by a clinical diagnosis or evidence of treatment. Mother
maintains that her threat to kill herself following the altercation with Grandmother
was a “single statement” “uttered under enormous stress” in a second language or
“filtered through an interpreter.” The agency argues that Mother had been in
counseling with Catholic Charities and “twice threaten[ed] to kill herself and/or her
child.”
The record reveals that CCDCFS did not establish its concerns about
Mother’s mental health by a clinical diagnosis. However, the agency did proffer
evidence that Mother was in treatment and had threatened to kill herself and G.T.
Lakes testified that Mother was initially referred to CCDCFS in early June 2021,
about a month before the agency filed its complaint. This referral followed Mother’s
threat kill herself and G.T. because she believed that Catholic Charities, which was
providing counseling services to Mother at that time, was trying to separate Mother
from her family. A second referral followed Mother’s arrest on June 20, 2021.
Mother testified that after she was released from jail, she received a text message
from Catholic Charities advising her not to return to Grandmother’s home because
if she did, the police would again arrest her. Lakes contacted Mother to ask where
she and G.T. planned to stay if Mother could not return to Grandmother’s. Mother
replied that she intended to sleep out on the street with G.T., and when Lakes
responded that it would not be appropriate for her to do so, Mother again said that
she would kill herself. Lakes testified that Mother did not follow up with the agency’s
referrals for mental health counseling and did not agree with the agency’s safety
plan.
Mother testified that Grandmother instructed Mother to say that she
would kill herself if the agency threatened to remove her child and admitted she
would not have made this threat had she known the consequences of making it.
Mother apologized for making the threat, denied having a mental health issue, and
stated that the allegation that she suffers from mental illness “affects her a lot.”
Mother also testified to the stigma associated with mental illness in Swahili culture
and stated that she was no longer seeing a counselor.
Mother may regret making this threat, but the record does not
support Mother’s contention that the threat was a “single statement” “uttered under
enormous stress.” As noted above, Lakes testified that Mother was initially referred
to the agency after threatening to kill herself and G.T. Whatever Lakes may have
learned from the Catholic Charities counselor about the nature of this threat was
excluded by a hearsay objection. On cross-examination, Mother admitted that she
had threatened to kill herself while she was in counseling with Catholic Charities,
before CCDCFS became involved:
CCDCFS: The first time that it was reported you made that statement,
the Agency was not involved at that time, so why would your mother
tell you to say that if nobody was involved?
Mother: The first time — the first time it was not the Agency. The first
time, it was me because there were problems which are [sic] affecting
me at that time. And I wouldn’t like to talk about that because that was
something between me and my doctors.
Although there is no evidence that Mother has harmed or attempted
to harm herself or G.T., the juvenile court found that Mother’s suicidal and
homicidal ideations “interfere with her ability to provide adequate parental care for
[G.T.]” and “jeopardize [G.T.’s] safety.” The record reveals that at the time the
agency filed its complaint, Mother had threatened to kill herself and G.T., was jailed
after an altercation with Grandmother, planned to live out on the street when told
she could not return to Grandmother’s, threatened to kill herself a second time after
being told that living on the street would not be appropriate, and refused the
agency’s safety plan and referrals to mental health counseling. The record therefore
supports the juvenile court’s finding that Mother’s suicidal and homicidal ideations
and poor decision-making placed G.T.’s safety at risk.
CCDCFS next alleges in the amended complaint that the police
arrested Mother during the altercation with Grandmother, and G.T. was “present in
the home when this incident occurred.” Lakes testified that G.T. remained at
Grandmother’s following Mother’s arrest. Mother testified that having nowhere else
to go following her arrest, she went to stay at her friend’s house. The record supports
the juvenile court’s finding that G.T. was present in the home during the altercation
between Mother and Grandmother.
The agency also alleges in the amended complaint that following this
altercation, Mother was asked to leave Grandmother’s home, did “not have stable
housing in which to care for [G.T.],” and “Mother’s current residence is not a
permanent home for her and [G.T.].” Mother argues that the friend has agreed that
Mother and G.T. can stay there. Lakes testified that the friend’s home was
appropriate, had enough food for G.T., and could present a possible longer-term
place to live after Mother addresses the agency’s concerns about her mental health.
As for Mother’s finances, Lakes stated that Mother was unemployed, could not meet
her and G.T.’s basic needs, and relied on Grandmother’s financial assistance to meet
G.T.’s needs. Mother testified that she quit her job to enroll in high school and
Grandmother provided about 20 percent of G.T.’s basic needs. Mother later testified
at the October 6, 2021 disposition hearing that she intends to finish school, which
prevents her from finding a job, but added that she planned to seek financial
assistance and housing.
At the time of the complaint, Mother was no longer living with
Grandmother, who not only provided housing to Mother and G.T., but also some
appreciable percentage of G.T.’s basic needs while Mother was unemployed and
finishing school. Also, Grandmother continued to care for G.T. after Mother went
to stay with a friend, and it is not entirely clear from the record when Mother’s friend
agreed that Mother and G.T. could both live at the friend’s house. This arrangement
between Mother and Mother’s friend appears to have followed the agency’s filing of
the complaint, and the record does not indicate whether, in addition to housing, the
friend also agreed to provide for G.T.’s other basic needs or whether Mother had
applied for government assistance while she was without income to support herself
and G.T. Mother’s subsequent testimony that she intended to finish school and
apply for government assistance and housing suggests that she had yet to do so. The
record thus supports the juvenile court’s finding that Mother was without
permanent housing and the financial means to care for G.T. at the time the agency
filed its complaint.
CCDCFS lastly alleges in the amended complaint that Father “has
failed to establish paternity and has failed to support, visit, or communicate with
[G.T.] since [G.T.’s] birth.” Lakes and Mother both testified that Mother did not
know Father’s identity. Mother testified that she only knew that Father lived
somewhere in Burundi. The record therefore supports the juvenile court’s finding
that Father cannot support or help support G.T.
Taken together, these findings establish by clear and convincing
evidence that without mental health support and financial assistance, Mother could
not provide adequate parental care to G.T. In light of these findings, Mother’s
rejection of CCDCFS’s safety plan is sufficient fault to support a finding of neglect
under R.C. 2151.03(A)(2).
Mother also contends that Lakes, the agency’s sole witness, suffered
credibility issues when she referred to herself as a social worker at the start of her
testimony and these credibility issues undermine CCDCFS’s case. Mother points to
Lakes’s admission on cross-examination that she has a degree in psychology but
works for CCDCFS as a caseworker, not a social worker, which, Mother maintains,
could expose Lakes to criminal liability under R.C. 4757.02 and implicates R.C.
2921.11(A) because Lakes made this statement under oath. Mother claims that the
juvenile court improperly precluded further inquiry into Lakes’s credentials.
CCDCFS contends, however, that the record does not support
Mother’s claim that the juvenile court foreclosed any further inquiry into Lakes’s
credentials; rather, the court limited further questioning concerning Lakes’s
criminal liability. The agency maintains that R.C. 4757.02, prohibiting the practice
of social work without a license, has no relevance to Lakes’s single reference to
herself as a social worker at the beginning of her testimony and the record’s many
references to caseworkers as social workers disproves Mother’s claim that Lakes’s
reference amounted to a misrepresentation or perjury. To establish perjury, the
agency argues, it must be shown that the witness has knowingly made a material
false statement under oath. The agency maintains that Lakes’s “one-time
misstatement” was neither knowing nor material.
We note at the outset that an appellate court should defer to the
juvenile court’s credibility determinations. As explained by the Supreme Court of
Ohio,
“The underlying rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view
the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the
proffered testimony.
***
A reviewing court should not reverse a decision simply because it holds
a different opinion concerning the credibility of the witnesses and
evidence submitted before the trial court. A finding of an error in law
is a legitimate ground for reversal, but a difference of opinion on
credibility of witnesses and evidence is not. The determination of
credibility of testimony and evidence must not be encroached upon by
a reviewing tribunal, especially to the extent where the appellate court
relies on unchallenged, excluded evidence in order to justify its
reversal.”
Davis, 77 Ohio St.3d at 418-419, 674 N.E.2d 1159, quoting Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80-81, 461 N.E.2d 1273 (1984). “This [rationale] is even
more crucial in a child custody case, where there may be much evident in the parties’
demeanor and attitude that does not translate to the record well.” (Emphasis sic.)
Id. at 419.
R.C. 4757.02(B)(2) prohibits use of the title “social worker” unless the
person using that title “is currently authorized by licensure * * * to act in the capacity
indicated by the title.” A violation of R.C. 4757.02 is a misdemeanor of the fourth
degree on the first offense and a misdemeanor of the third degree on each
subsequent offense. R.C. 4757.99. “R.C. 4757.02 impose[s] criminal liability upon
a person for engaging in the practice of * * * professional counseling without proper
licensure.” Anderson v. Eyman, 5th Dist. Fairfield No. 00CA26, 2000 Ohio App.
LEXIS 5982, 12 (Dec. 14, 2000).
Here, Lakes referred to herself as a social worker when asked at the
start of her testimony about her position at CCDCFS. When asked on cross-
examination whether she was a social worker, Lakes replied that she was not and
identified herself as a caseworker. The court overruled the agency’s first objection
to this line of inquiry but sustained a second objection when counsel for Mother
asked, “Are you aware that you are breaking the law every time you present yourself
as a social worker when you’re not licensed?” The court subsequently noted
Mother’s proffer that Lakes’s reference “goes to credibility,” permitting counsel for
Mother to explain that “R.C. 4757, I believe, is the statute that says that anyone that
holds themselves out to be a social worker without being licensed is engaging in the
unauthorized practice of social work.” This interpretation is not entirely correct.
The statute prohibits use of the title “social worker” in the practice of professional
counseling without proper licensure. Anderson at 12. Also, the record shows that
the juvenile court permitted counsel for Mother to question Lakes about her
background, cut off the inquiry only when counsel alleged criminal liability, and
noted counsel’s proffer that Lakes’s reference to herself as a social worker
undermined her credibility. That the juvenile court credited Lakes’s testimony
despite the reference is not a basis for reversal. Davis at 419.
Mother adds that the reference implicates R.C. 2921.11(A) because
Lakes made this statement under oath and therefore may have perjured herself.
R.C. 2921.11(A) prohibits a person from knowingly making a false statement under
oath in any official proceeding when that statement is material. State v. Jacobozzi,
6 Ohio St.3d 86, 88, 451 N.E.2d 749 (1983). R.C. 2921.11(B) provides that a false
statement is material “if it can affect the course or outcome of the proceeding.” State
v. Koury, 8th Dist. Cuyahoga No. 52718, 1987 Ohio App. LEXIS 9116, 7 (Oct. 8, 1987)
(“‘[M]ateriality’ is an essential element of perjury.”).
“The test for materiality is an objective one. By using the word ‘can,’
R.C. 2921.11(B) makes it irrelevant whether the false statement actually
influenced or affected the decision-making process of the trier of fact.
The standard is whether the false statement was capable of influencing
the trier of fact on the issue before it. The materiality of a false
statement is a question of fact.”
State v. Alhweiti, 2017-Ohio-8886, 100 N.E.3d 1139, ¶ 20 (8th Dist.), quoting State
v. Smith, 2015-Ohio-1736, 32 N.E.3d 517, ¶ 8 (8th Dist.).
Here, Lakes admitted on cross-examination that she improperly
referred to herself as a “social worker” and corrected her former testimony by saying
that her actual title is “caseworker.” As explained above, the court permitted counsel
for Mother to pursue this line of questioning until she referenced Lakes’s possible
criminal liability under R.C. 4757.02. The court noted that Lakes had misspoke and
accepted counsel’s challenge to Lakes’s credibility. The record also indicates that
several times, the court itself improperly referred to caseworkers as social workers,
suggesting that “social worker” is a term used in a general sense to refer to a CCDCFS
child protection service worker.
The court’s use of the term “social worker” was immaterial to the
court’s adjudication of G.T. as neglected and dependent. The extent to which this
adjudication is based on a determination of Lakes’s credibility or lack thereof is, as
explained above, not a legitimate ground for reversal. Davis, 77 Ohio St.3d at 419,
674 N.E.2d 1159.
Based on the foregoing, the record establishes that the juvenile court’s
finding of neglect was not against the manifest weight of the evidence.
Accordingly, Mother’s first assignment of error is overruled.
B. Dependency of G.T.
Within her second assignment of error, Mother contends that
CCDCFS failed to establish any of the dependency factors under R.C. 2151.04, for
the same reasons that it failed to prove that G.T. was neglected. Mother maintains
that she secured housing with a friend and was not “homeless” as required by R.C.
2151.04(A); the agency failed to show that she suffered from a diagnosed mental
health condition that would inhibit her ability to care for G.T. as required by R.C.
2151.04(B); nothing about G.T.’s condition or environment demanded guardianship
by the state as required by R.C. 2151.04(C); and R.C. 2151.04(D) does not apply
because the agency alleged no other acts of neglect or dependency, G.T. has no
siblings, and no other children live in Mother’s household. The agency argues that
the same evidence supporting the court’s finding of neglect also supports the court’s
finding of dependency.
R.C. 2151.04 defines a “dependent child” as any child
(A) Who is homeless or destitute or without adequate parental care,
through no fault of the child’s parents, guardian, or custodian;
(B) Who lacks adequate parental care by reason of the mental or
physical condition of the child’s parents, guardian, or custodian;
(C) Whose condition or environment is such as to warrant the state, in
the interests of the child, in assuming the child’s guardianship;
(D) To whom both of the following apply:
(1) The child is residing in a household in which a parent, guardian,
custodian, or other member of the household committed an act that
was the basis for an adjudication that a sibling of the child or any other
child who resides in the household is an abused, neglected, or
dependent child.
(2) Because of the circumstances surrounding the abuse, neglect, or
dependency of the sibling or other child and the other conditions in the
household of the child, the child is in danger of being abused or
neglected by that parent, guardian, custodian, or member of the
household.
Whereas a finding of neglect under R.C. 2151.03(A)(2) requires some
showing that the parent is at fault before the child can be found to lack adequate
parental care, a finding of dependency under R.C. 2151.04(A) requires no showing
of fault, but rather “focuses exclusively on the child’s situation to determine whether
the child is without proper (or adequate) care or support.” In re Riddle, 79 Ohio
St.3d at 262, 680 N.E.2d 1227. As noted above, “‘[a]dequate parental care’ means
the provision by a child’s parent or parents, guardian, or custodian of adequate food,
clothing, and shelter to ensure the child’s health and physical safety[.]” R.C.
2151.011(B)(1). The parent’s conduct is relevant to a finding of dependency to the
extent that it can be shown that the parent’s conduct adversely impacts the child’s
environment enough to warrant state intervention. In re Burrell, 58 Ohio St.2d 37,
39, 388 N.E.2d 738 (1979). However, “‘the child does not first have to be put into a
particular environment before a court can determine that that environment is
unhealthy or unsafe.’” In re J.L., 8th Dist. Cuyahoga Nos. 85668, 85669, and 85670,
2005-Ohio-6125, ¶ 25, quoting In re Burchfield, 51 Ohio App.3d 148, 156, 555
N.E.2d 325 (4th Dist.1988). “‘[T]he law does not require the court to experiment
with the child’s welfare to see if * * * [the child] will suffer great detriment or harm.’”
In re A.C., 6th Dist. Lucas No. L-10-1025, 2010-Ohio-4933, ¶ 75, quoting Burchfield
at 156. As with a finding of neglect, the “court must determine that the
circumstance(s) which support a finding of dependency * * * existed as of the date
or dates alleged in the complaint.’” In re E.E., 2021-Ohio-2770, at ¶ 41, quoting In
re C.O., 2013-Ohio-5239, at ¶ 31.
Here, again, the relevant date is June 23, 2021, when CCDCFS filed
its complaint. Although the focus is on G.T.’s environment, Mother’s conduct is
relevant insofar as it threatened to adversely impact G.T.’s environment enough to
warrant intervention by CCDCFS.
R.C. 2151.04(A) defines a dependent child as one who is homeless or
without adequate parental care. When Mother was released from jail, she initially
had no plan and told Lakes that she intended to live out on the street with G.T.
Shortly after, Mother went to stay with a friend. G.T. remained with Grandmother.
At no time was G.T. homeless. Nor did the agency allege in the complaint that G.T.
was in danger of homelessness. Lakes admitted that the friend offered to have
Mother and G.T. stay with her and had food in the house. However, this testimony
does not show how Mother intended to meet G.T.’s basic needs long-term. The
record reveals that Mother did not have the means to provide for G.T. Before going
to stay with her friend, Mother had relied on Grandmother for financial support and
childcare for G.T. Mother continued to attend school during the day, remained
unemployed, and was without government assistance to meet G.T.’s basic needs. It
is immaterial that Grandmother continued to house and provide for G.T. after
Mother went to stay with her friend. See In re Doolan, 8th Dist. Cuyahoga Nos.
64945 and 64946, 1994 Ohio App. LEXIS 919, 9 (Mar. 10, 1994) (“[T]he fact that
relatives other than a parent are providing [the] care and support [owed to the child
by the parent] is immaterial to the determination of whether a child is a ‘dependent
child’” under R.C. 2151.04.). The record therefore supports by clear and convincing
evidence the juvenile court’s finding that G.T. was without adequate parental care
under R.C. 2151.04(A).
R.C. 2151.04(B) also defines a dependent child as one who is without
adequate parental care due to a mental condition of the parent. “A child may
properly be found dependent under R.C. 2151.04(B) on the basis of its mother’s
emotional status, immaturity, inconsistent living arrangements, and inability to
provide the child with basic needs.” In re Doolan at 9, citing In re Green, 18 Ohio
App.3d 43, 480 N.E.2d 492 (2d Dist.1984). While the agency has not proven that
Mother suffers from a diagnosed mental health disorder, the record does show that
Mother twice threatened to kill herself and once threatened to kill G.T. when she
believed that she might be separated from him. Mother is 19 years old and enrolled
in high school. She lives with a friend who promised that Mother and G.T. can stay
there. These living arrangements are not permanent or stable. Mother does not
have employment income or financial assistance to meet G.T.’s basic needs and is
forced to rely on a friend to provide what Grandmother currently provides to G.T.
The record therefore supports by clear and convincing evidence the court’s finding
that G.T. is dependent under R.C. 2151.04(B).
R.C. 2151.04(C) further defines a dependent child as one whose
environment warrants state intervention. CCDCFS based its complaint of
dependency, in part, on Mother’s lack of stable housing and financial support and
the incident of domestic violence between Mother and Grandmother while G.T. was
in the home. See In re H.H., 10th Dist. Franklin No. 19AP-158, 2019-Ohio-4953,
¶ 54-55 (lack of stable housing and income and domestic violence are factors for
determining whether a child’s is dependent under R.C. 2151.04(C)). The agency also
based its complaint, in part, on Mother’s “unresolved mental health issues which
interfere with her ability to provide adequate parental care for [G.T.] and which
jeopardize [G.T.’s] safety” because Mother had twice threatened to kill herself and
G.T., the first time a few weeks prior and the second time the day before the agency
filed its complaint. Suicidal and homicidal ideations create an unsafe environment
that warrants agency intervention under R.C. 2151.04(C). In re Ohm, 4th Dist.
Hocking No. 05CA1, 2005-Ohio-3500, ¶ 33. The record therefore supports by clear
and convincing evidence the juvenile court’s finding that G.T. was dependent under
R.C. 2151.04(C).
R.C. 2151.04(D) does not apply to G.T.’s circumstances. To find a
child dependent under R.C. 2151.04(D), “R.C. 2151.04(D)(1) plainly and
unambiguously requires that a sibling of the child or any other child who resides in
the household be adjudicated abused, neglected, or dependent before the complaint
is filed.” In re S.L., 2016-Ohio-5000, 56 N.E.3d 1026, ¶ 20 (3d Dist.). G.T. has no
siblings and was the only child residing with Mother and Grandmother at the time
CCDCFS filed its complaint. Therefore, G.T. cannot be adjudicated dependent
under R.C. 2151.04(D).
A review of all the R.C. 2151.04 factors establishes that the juvenile
court’s finding of dependency under R.C. 2151.04(A), (B), and (C) was not against
the manifest weight of the evidence.
Accordingly, Mother’s second assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover from appellant 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
common pleas court, 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.
MARY J. BOYLE, JUDGE
SEAN C. GALLAGHER, A.J., and
EILEEN T. GALLAGHER, J., CONCUR