In re I.T. ( 2016 )

[Cite as In re I.T., 2016-Ohio-555.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: I.T. C.A. Nos. 27513
27560
27581
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 14-01-0011
DECISION AND JOURNAL ENTRY
Dated: February 17, 2016
WHITMORE, Judge.
{¶1} Appellant, Robert T. (“Father”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that adjudicated his minor child, I.T., to be
dependent and placed him in the temporary custody of the Summit County Children Services
Board (“CSB”). This Court affirms.
I
{¶2} Father and Ashley H. (“Mother”) are the parents of I.T., born January 2, 2014.
CSB became involved with the family based upon early concerns that (1) both parents had
bipolar disorder, (2) Father had a history of sexually abusing children, and (3) Mother had not
been on her bipolar medication since she became pregnant. On January 8, 2014, CSB filed a
complaint alleging that I.T. was a dependent child under R.C. 2151.04(B), (C), and (D). The
complaint asserted that both parents have mental health issues, and that Father lacks parenting
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knowledge, is cognitively delayed, and has a history of sexual abuse of children. In addition, the
agency claimed that each parent has two more children with other partners that are not in the
custody of either parent. The agency sought protective supervision of I.T. while he remained in
Mother’s care, but also requested that Father vacate the home. The magistrate ordered that
Father vacate the home and have no contact with the child unless such contact is supervised and
arranged by CSB. Although Father disputed the factual allegations of the complaint, he agreed
to vacate the home and have no unsupervised contact with I.T.
{¶3} The adjudicatory hearing began on February 5, 2014. It was continued to March
6, 2014 solely to address the results of a John Doe posting. The account of the adjudicatory
hearing thus reflects testimony from the February 2014 hearing. Following the taking of
evidence, the magistrate dismissed the R.C. 2151.04(D) allegation, but found that I.T. was
dependent under R.C. 2151.04(B) and (C).
{¶4} Father filed objections to the magistrate’s findings. Upon consideration of the
objections, the trial court dismissed the allegation under R.C. 2151.04(B), but adopted the
finding that I.T. was dependent under R.C. 2151.04(C). The trial court found that Father posed a
safety risk to I.T. and showed very little understanding of childhood development. The court
also found that Mother was very reliant on Father. There was evidence before the trial court that
the parents had violated the orders restricting Father’s access to the child.
{¶5} On March 5, 2014, one day before the scheduled continuation of the adjudicatory
hearing, CSB sought emergency temporary custody of I.T., believing the child to be at risk of
harm for several reasons that were supported by an affidavit of the caseworker. The agency was
concerned that: (1) Father was staying at the home despite the court order prohibiting him from
having unsupervised contact with I.T.; (2) Father recently left two abusive voice mail messages
3
for the caseworker; (3) Father had a history of referrals for sexual abuse regarding multiple
children and had lost custody of two of his other children; and (4) the home is unsanitary and
unsafe due the smell of cat urine, cat feces all over the floor, and cigarette smoking in the home
despite the presence of paternal grandmother’s oxygen tank. The magistrate granted emergency
temporary custody of the child to CSB and set the matter for a shelter care hearing on the
following day.
{¶6} On March 6, 2014, the trial court addressed the John Doe posting and then
conducted the shelter care hearing for the emergency removal of I.T. from the home. During the
shelter care hearing, Caseworker Tammie Sumpter testified regarding the condition of the home.
She explained that a social worker assistant had visited the home twice to supervise visits and
reported a strong odor of cat urine and the presence of cat feces. As a result, Ms. Sumpter and
her supervisor went to the home and found it to be “disturbing.” The caseworker described
seeing a small room adjacent to the kitchen which had six overturned litter boxes and a floor
covered by cat feces. She also observed a man smoking a cigarette within six feet of an oxygen
tank that was used by the paternal grandmother who resided there. The caseworker informed the
smoker to stop because it was very dangerous. Nevertheless, another worker visited the home
within a week, and found a man, later identified as Father, to be smoking a cigarette in the home.
He was advised of the safety hazard.
{¶7} Regarding disposition, the parents waived hearing and agreed to an order of
temporary custody to the agency. At the same time, the trial court adopted a case plan with
which all parties expressed agreement. Mother was to complete a mental health assessment and
follow all recommendations. Father was to complete a parenting class and be able to
demonstrate the knowledge and skills learned. Because Father had previously begun a parenting
4
class in the case involving one of his older children, the parties agreed that such parenting class
would be considered in this case. Further, Father was to complete a parenting evaluation and
because he had previously completed a parenting evaluation for the other case, the current case
plan indicated that he would sign releases for that parenting evaluation to be given to his
counselor and to CSB. The case plan also required Father to complete mental health counseling,
addressing the matters of concern outlined in the parenting evaluation. Finally, the case plan
required Father to complete a substance abuse evaluation and follow all recommendations,
including random drug tests. Because Father had already completed a substance abuse
evaluation in the other case, the parties agreed that that evaluation could be utilized in the current
case. Father has appealed from the judgment of the trial court and has assigned five errors for
review.
II
Assignment of Error Number One
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING
THE MINOR CHILD DEPENDENT WHEN THE VENUE REQUIREMENTS
HAD NOT BEEN MET.
{¶8} Father argues that the trial court erred in finding I.T. dependent because venue
had not been properly established. Father claims that CSB failed to present any evidence of the
location or residence of either parent or of the child at the adjudication, and there was no
evidence that the acts or omissions which constituted dependency took place in Summit County.
Father claims this is fatal to the trial court’s jurisdiction.
{¶9} Notwithstanding the fact that Father failed to bring this matter to the attention of
the trial court until he lodged objections to the magistrate’s decision, we note that the Ohio
Supreme Court has recently held that the venue provisions in Juv.R. 10 and R.C. 2151.27 are
5
directory and not mandatory. In re Z.R., 144 Ohio St.3d 380, 2015-Ohio-3306, ¶ 26. The
Supreme Court also explained that “the failure to satisfy the venue provisions of R.C.
2151.27(A)(1) in a dependency complaint would not remove a juvenile court’s jurisdiction over
the case, and dismissal would not be proper on those grounds.” Id. Consequently, Father’s first
assignment of error is overruled.
Assignment of Error Number Two
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
ADMITTING [CSB] EXHIBIT 1.
{¶10} CSB Exhibit 1 consists of the “complaint, journal entries, and orders” from the
juvenile court cases involving Father’s two other children. (In re S.T., Summit C.P., Juv.Div.,
No. DN08-07-612, and In re K.T., Summit C.P., Juv.Div., No. DN12-11-732). Father asserts
that Exhibit 1 was improperly admitted because it was not properly certified, contains
inadmissible hearsay in the form of claims within the motion for permanent custody, and is not
relevant to the present case. We will address each of these arguments in turn.
{¶11} First, Father claims the exhibit included documents not certified by the clerk.
Specifically, Father complains of the inclusion of a motion for permanent custody of S.T., an
older child of Father, within the certified materials apparently based on the fact that the exhibit
was labeled as “complaint, journal entries, and orders.” However, Father does not dispute that
the permanent custody motion was, in fact, filed in that case, and he does not point to any
specific prejudice due to the inclusion of the document per se. Consequently, the argument is
overruled.
{¶12} Second, Father claims the exhibit contains impermissible character evidence and
does not fall within the exception of Evid.R. 404(B). In response to Father’s objection to the
ruling of the magistrate on this point, the trial court found that the documents are relevant
6
because they document that Father lost custody of his two older children and failed to complete
case plan services to reunify with those children. The trial court found that Father’s past
behavior informs the environment to which I.T. would be exposed, a matter of relevance to a
finding of dependency under R.C. 2151.04(C). Moreover, because certified court documents are
self-authenticating under Evid.R. 902(4) and are admissible under the public records exception to
the hearsay rule, the argument is overruled. See Evid.R. 803(8); In re R.P., 9th Dist. Summit No.
26836, 2013-Ohio-5728, ¶ 11. See also In re E.A., 9th Dist. Medina No. 12CA0059-M, 2012-
Ohio-5925, ¶ 12.
{¶13} Third, Father claims that Exhibit 1 should not have been admitted because there is
hearsay within the motion for permanent custody. There is no indication that the motion was
offered for the truth of the statements included within it, however, but rather only to reflect the
record in Father’s other case. In addition, it does not appear that the trial court relied upon the
permanent custody motion in reaching its decision, nor has Father made such a claim. Finally,
while Father claims the exhibit contains hearsay, he has not identified specific statements within
the document that he finds objectionable. This Court will not create an argument on Father’s
behalf. See State v. Flowers, 9th Dist. Summit No. 25841, 2012-Ohio-3783, ¶ 27, citing In re
G.E.S., 9th Dist. Summit No. 23963, 2008-Ohio-2671, ¶ 53. This argument is without merit.
Father’s second assignment of error is overruled.
Assignment of Error Number Three
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
ADMITTING [CSB] EXHIBIT 2.
{¶14} CSB Exhibit 2 is Father’s parenting evaluation from Summit Psychological
Associates that was conducted in September and October 2013 during a custody case involving
another of Father’s children. Father assigns error to the admission of Exhibit 2 for six reasons.
7
{¶15} Father first contends that CSB failed to lay a proper foundation for the admission
of Exhibit 2 under the business records exception of Evid.R. 803, by failing to establish that the
evaluation was created in “the regular practice of that business activity.” Evid.R. 803(6). He
claims, therefore, that the business records exception does not apply and the document should
not have been admitted into evidence.
{¶16} Evidence Rule 803(6) provides for an exception of the following documents from
the application of the hearsay rule:
[a] memorandum, report, record, or data compilation * * * made at or near the
time by, or from information transmitted by, a person with knowledge, if kept in
the course of a regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness or as provided by Rule 901(B)(10), unless the source of information or
the method or circumstances of preparation indicate lack of trustworthiness.
{¶17} In support of his argument, Father cites this Court’s decision in Monroe v. Steen,
9th Dist. Summit No. 24342, 2009-Ohio-5163, ¶ 13, wherein we wrote:
The party seeking to admit the business records must provide the appropriate
foundation for admission which indicates that the witness “possess[es] a working
knowledge of the specific record-keeping system that produced the document.”
State v. Aberle, 5th Dist. Fairfield No. 03CA96, 2004-Ohio-7093, ¶ 24, 26. The
witness must be “‘familiar with the operation of the business and with the
circumstances of the preparation, maintenance, and retrieval of the record in order
to reasonably testify on the basis of this knowledge that the record is what it
purports to be, and was made in the ordinary course of business.’” State v. Baker,
9th Dist. Summit No. 21414, 2003-Ohio-4637, ¶ 11, quoting Keeva J. Kekst
Architects, Inc. v. George, 8th Dist. Cuyahoga No. 70835, 2002 WL 22047697,
*5 (May 15, 1997).
{¶18} In that decision, this Court also explained that “[t]he theory supporting the
business records exception is that such records are accurate and trustworthy because they are
‘made in the regular course of business by those who have a competent knowledge of the facts
recorded and a self-interest to be served through the accuracy of the entries made and kept with
8
knowledge that they will be relied upon in a systematic conduct of such business[.]’” Monroe at
¶ 12, quoting Weis v. Weis, 147 Ohio St. 416, 425-426 (1947).
{¶19} In the present case, Dr. Sylvia O’Bradovich testified that she is a forensic
clinician at Summit Psychological Associates and that she completed the parenting evaluation of
Father after he signed a release. She indicated that Exhibit 2, the written report of the evaluation,
was kept “in the ordinary course of business” and that it had been created at or near the time of
the evaluation. Dr. O’Bradovich testified that her main responsibilities are to provide individual
and group therapy to clients and to conduct psychological and forensic evaluations. In addition,
she supervises interns and serves on a committee to ensure that all of the paperwork is done to
compliance standards. She explained to the court what goes into an assessment and the testing
that is conducted. She stated that she has been providing therapy and doing evaluations since
2004 and frequently testifies regarding the evaluations and treatment she provides. Upon
consideration, we conclude that a sufficient foundation for the business records exception was
established in the present case. Father’s argument is overruled.
{¶20} Second, Father claims that Exhibit 2 should not have been considered by the trial
court because Dr. O’Bradovich’s reliance on collateral sources caused the exhibit to constitute
inadmissible hearsay. Father has not identified specific statements within the documents that he
finds objectionable, and this Court will not create an argument on his behalf. See Flowers, 2012-
Ohio-3783 at ¶ 27, citing In re G.E.S., 2008-Ohio-2671 at ¶ 53. The argument is overruled.
{¶21} Third, Father claims that Dr. O’Bradovich was not qualified to testify to the
admission of the report because she was not a licensed psychologist, in that she had not yet taken
the examination. In support of his argument, Father cites R.C. 4732.21, which states that “[n]o
person who is not a licensed psychologist shall offer or render services as a psychologist or
9
otherwise engage in the practice of psychology.” R.C. 4732.21(A). However, there are
exemptions, which specifically exclude those who are working under the direct supervision of a
licensed psychologist, as was Dr. O’Bradovich. See R.C. 4732.22(A)(3). Dr. O’Bradovich
testified that she met with her supervisor on a weekly basis and that her written report regarding
Father was reviewed, agreed to, and signed as approved by her supervisor.
{¶22} Fourth, Father claims that Dr. O’Bradovich’s testimony was barred by the
psychologist-patient privilege as explained in R.C. 4732.19 because the exception defined in
R.C. 2317.02(B)(1)(b) applies to civil actions, whereas he claims that the present action is a
special proceeding.
{¶23} R.C. 2317.02(B)(1)(b) permits a psychologist to testify in
any civil action concerning court-ordered treatment or services received by a
patient, if the court-ordered treatment or services were ordered as part of a case
plan journalized under section 2151.412 of the Revised Code or the court-ordered
treatment or services are necessary or relevant to dependency, neglect, or abuse or
temporary or permanent custody proceedings under Chapter 2151. of the Revised
Code. (Emphasis added.)
Father cites decisional law which states that “[a]ctions in juvenile court that are brought pursuant
to statute to temporarily or permanently terminate parental rights are special proceedings, as such
actions were not known at common law.” In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, ¶
43. See also R.C. 2505.02(A)(2) (defining a special proceeding in the context of determining the
finality of an order.)
{¶24} The fact that custody proceedings are considered special proceedings for purposes
of determining whether an order reflects finality, however, does not mean they are not
considered civil cases for more general purposes. To that point, the Ohio Supreme Court and
this Court have both, in fact, denominated juvenile cases as civil cases for general purposes. See,
e.g., State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, ¶ 12 (“juvenile cases are civil rather
10
than criminal”); In re N.R., 9th Dist. Summit Nos. 26834 and 26869, 2013-Ohio-4023, ¶ 33
(Carr, J., dissenting) (“juvenile cases are civil in nature”).
{¶25} In the present case, the trial court reasonably found the statute to be applicable
under its plain language because the evaluation was conducted pursuant to a court-ordered case
plan and is relevant to a dependency proceeding. The trial court further found that the statute
specifically mentions R.C. 2151.412, the statute that addresses juvenile court case plans and
“dependency, neglect or abuse,” indicating that the legislature intended this statute to apply to
juvenile court proceedings. The Eighth District Court of Appeals has directly applied R.C.
2317.02(B)(1)(b) to a permanent custody case. See In re D.E.P., 8th Dist. Cuyahoga No. 92226,
2009-Ohio-3076, ¶ 17 (A parent required to undergo court-ordered treatment as part of a case
plan prepared by a children services agency effectively waives his or her rights to confidentiality
of communications with a treating physician or social worker.). See also In re Songer, 9th Dist.
Lorain No. 01CA00781, 2001 WL 1162831, *6 (Oct. 3, 2001) (similarly applying RC. 2317.02
(G)(1)(g)). The trial court did not err in applying the statutory exception of R.C.
2317.02(B)(1)(b) to the psychologist-client privilege in this case.
{¶26} Fifth, Father argues that the admission of Exhibit 2 is barred by the Fifth
Amendment and by Juv.R. 29(B)(5). Under his Fifth Amendment argument, Father claims that
the introduction of the exhibit “could implicate him in a sexual offense for which he could be
prosecuted.” Father claims he was required to discuss “instances of sexual abuse as a juvenile”
and “alleged referrals” by CSB during the evaluation which culminated in Exhibit 2. A careful
review of the exhibit at issue discloses that Father admitted a single sexual offense to the
evaluator, fondling his three-year old cousin, and also that he was adjudicated delinquent for
gross sexual imposition for that behavior and served a three-year sentence at a juvenile
11
correctional facility. The report also mentions the existence of two sexual abuse referrals
obtained from CSB records, one substantiated and one unsubstantiated. During the evaluation,
Father denied both of these allegations. Otherwise, Father admitted to having a lengthy history
of romantic/sexual relationships in the fifteen years since high school that was said by the
evaluator to suggest instability and some questionable attitudes (for example, after completing
treatment during his three year incarceration, he believed “I’m good on touching kids for now.”),
but no apparent sexual offenses for which he could be criminally prosecuted going forward and
Father has not specifically cited any. Where applicable, the Fifth Amendment offers protection
to an individual against self-incrimination in subsequent criminal proceedings. See, e.g., Walker
v. State Medical Bd. of Ohio, 10th Dist. Franklin No. 01AP-791, 2002 WL 243318, *4 (Feb. 21,
2002). Father has not demonstrated that the exhibit created any such jeopardy. Accordingly,
Father’s Fifth Amendment argument is without merit. Regarding the Juv.R. 29(B)(5) argument,
the rule provides that the trial court must inform any unrepresented party who waives the right to
counsel of the right to remain silent at an adjudicatory hearing. By its terms, the rule applies to
“unrepresented” individuals and Father does not argue that he was unrepresented.
{¶27} Father’s third assignment of error is overruled.
Assignment of Error Number Four
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
ADMITTING [CSB] EXHIBIT 3.
{¶28} CSB Exhibit 3 contains Mother’s counseling records from Coleman Behavioral
Health. Mother withdrew her initial objection to the admission of the exhibit because she
believed it demonstrated that she was getting prenatal care and following doctor’s orders.
Father, however, asserts error in the admission of these records for two reasons.
{¶29} First, Father argues that the trial court erred in accepting Mother’s medical
12
records from Coleman Behavioral Health into evidence because there was no testimony that the
records were compiled in “the regular practice of that business activity” as required by Evid.R.
803(6) to qualify for the business records exception to the hearsay rule. See Monroe, 2009-Ohio-
5163 at ¶ 13. The records custodian for the Summit County office of Coleman Behavioral
Health identified Exhibit 3 as a compilation of Mother’s records from that agency and explained
that the records were certified and kept in the ordinary course of business. She testified that
when she receives a request for records, she produces the records electronically and either faxes
them or mails them to the person or agency who requested them. Assuming without deciding
that Father has standing to challenge the admissibility of Mother’s medical records, we conclude
that Father has not demonstrated error in regard to a failure to comply with the requirements of
Evid.R. 803(6) for purposes of considering the admissibility of Exhibit 3 under the business
records exception.
{¶30} Second, Father contends that, even if the counseling records are admissible under
the business records exception, they may not be used “to prove the truth of the matters asserted
therein when such statements are from an out of court declarant - the counselor.” In making this
argument, Father essentially restates his claim that the report is impermissible hearsay. Having
found that Father failed to demonstrate error above, we reach the same result here. Father’s
fourth assignment of error is overruled.
Assignment of Error Number Five
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING
THE MINOR CHILD DEPENDENT BECAUSE THE TRIAL COURT’S
JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶31} Father argues that the weight of the evidence does not support a finding that I.T.
is a dependent child under R.C. 2151.04(C). R.C. 2151.04(C) provides that a dependent child is
13
one “[w]hose condition or environment is such as to warrant the state, in the interests of the
child, in assuming the child’s guardianship.” Dependency must be proved by clear and
convincing evidence. In re O.H., 9th Dist. Summit No. 25761, 2011-Ohio-5632, ¶ 6. See also
R.C. 2151.35(A)(1); Juv.R. 29(E)(4). Clear and convincing evidence is that 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 Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶32} Ohio case law has established that “[t]o establish dependency under R.C.
2151.04(C), evidence must be presented ‘of conditions or environmental elements that were
adverse to the normal development of the child.’” In re C.S. 9th Dist. Summit No. 26178, 2012-
Ohio-2884, ¶ 11, quoting In re A.C., C.C., and C.S., 9th Dist. Wayne Nos. 03CA0053,
03CA0054, and 03CA0055, 2004-Ohio-3248, ¶ 14. A dependency finding under R.C.
2151.04(C) does not require specific parental fault; rather the focus is on the child’s situation to
determine whether the child is without proper or adequate care or support. In re R.P., 9th Dist.
Summit No. 26836, 2013-Ohio-5728, ¶ 19. “The conduct of the parent is relevant only insofar
as it forms a part of the children’s environment and it is significant only if it has a detrimental
impact on them.” In re A.C. at ¶ 14, citing In re Burrell, 58 Ohio St.2d 37, 39 (1979). This
Court has held that a parent’s mental health is directly related to a child’s environment and may
properly be considered in determining whether state intervention is thereby warranted. In re
J.C., 9th Dist. Summit Nos. 26229 and 26233, 2012-Ohio-3144, ¶ 21.
{¶33} At the adjudicatory hearing, the trial court heard testimony from Dr. Sylvia
O’Bradovich, a forensic clinician with a doctoral degree in psychology and clinical psychology
at Summit Psychological Associates. In framing his argument on this assignment of error, Father
14
has restated his earlier arguments challenging the testimony of Dr. O’Bradovich and has claimed
that when her testimony is excluded, the remaining evidence fails to support a finding of
dependency. Having previously overruled those arguments under Assignment of Error Number
Three, we need not reconsider them here. As a result, the trial court properly considered the
testimony of Dr. O’Bradovich in reaching its decision.
{¶34} The trial court also properly considered testimony from two CSB intake
caseworkers as well as documentary evidence. The trial court reasoned that the mental health
and safety concerns of Mother and Father inform the child’s environment and that it was
appropriate to consider the evidence in the record on this point. See In re J.C. at ¶ 21 (a parent’s
mental health is directly related to a child’s environment and is relevant to a determination of
whether the child’s environment warrants state intervention).
{¶35} The record contains evidence regarding mental health and safety concerns for
both parents. There was evidence that Mother had a diagnosis of bipolar disorder (currently
untreated), suffered from severe anxiety, was experiencing current mood swings, demonstrated
an inability to go anywhere outside of her home alone, and was extremely reliant on Father.
Regarding Father, there were concerns regarding a diagnosis of bipolar disorder, a history of
sexually offending children, cognitive delays, an alcohol use disorder, and maladaptive
personality traits. Father was said to have deficits in adaptive functioning and to not be able to
care for himself independently. In addition, he has a poor memory, is not able to do basic math
calculations, does not understand the passage of time, and has poor sequential reasoning. In
regard to his personality traits, Dr. O’Bradovich testified that Father perceives things in a
distorted or inaccurate manner. He does not accept responsibility for his behavior, exercises
poor judgment, has poor impulse control, and has not shown an ability to think ahead and make
15
decisions that are in his best interest in the long term. Moreover, Father was said to have had a
chaotic and unstable relationship history. When he faces the end of a relationship, he becomes
suicidal if he perceives that he is being rejected or abandoned. Father reported that he had been
hospitalized a couple times for suicidal ideations or attempts related to relationship break-ups.
He was referred for services, but did not follow through because he believed he did not need
them. Dr. O’Bradovich testified that Father’s knowledge of parenting issues was limited to basic
and concrete concepts. Despite Father’s assertion that he had completed treatment for his past
sexual behavior, Dr. O’Bradovich expressed a continuing concern about this risk based on
Father’s explanations and justifications. According to the caseworker, Father was not permitted
to have unsupervised contact with his eight-year-old son who was then in CSB’s temporary
custody. In addition, there was evidence that Father had violated the order in the present case
that he not have unsupervised contact with I.T.
{¶36} The record further revealed that each parent had two children that were not in his
or her care. Mother’s other children are apparently in the care of paternal grandparents, although
it is not clear if Mother surrendered custody to avoid a custody battle with her ex-husband or if
the arrangement was the outcome of a children services case. One of Father’s children, K.T.,
had been placed with the paternal grandmother, but that child has since been removed from her
care due to allegations of inappropriate behavior. The paternal grandmother was residing in the
same home where the parents planned to raise I.T.
{¶37} One of the intake workers explained that she was concerned about infant I.T.’s
well-being because the infant was completely dependent on his caregivers and, given Mother’s
mental health issues, she was concerned as to whether Mother had the ability to protect the
infant. She explained that during the team meeting, a possible safety plan was discussed in
16
which Mother and I.T. would reside with the maternal grandmother while Father remained in the
home. Mother stated that she would prefer to stay with Father and let I.T. reside with the
maternal grandmother. This created a concern that Mother would prioritize Father’s needs over
those of the child.
{¶38} Finally, Father claims that the trial court’s finding of dependency is not statutorily
permissible because the court “relied on some variation of a prospective dependency theory”
(emphasis added) and because he believes prospective dependency is permitted under R.C.
2151.04(D), but not under R.C. 2151.04(C). Although the trial court considered Father’s
argument on the point, the trial court did not enter a finding of prospective dependency in this
case, but rather found that the child is dependent under R.C. 2151.04(C). R.C. 2151.04(C)
requires the court to find only that the child is one “[w]hose condition or environment is such as
to warrant the state, in the interests of the child, in assuming the child’s guardianship.” R.C.
2151.04(C).
{¶39} The evidence before the trial court demonstrates that I.T.’s environment created a
substantial risk to his well-being. The evidence clearly and convincingly supports a finding that
I.T.’s “condition or environment is such as to warrant the state, in the interests of the child, in
assuming the child’s guardianship” and, therefore, supports the trial court finding that I.T. is a
dependent child under R.C. 2151.04(C). The trial court’s adjudication of I.T. is not against the
weight of evidence. Father’s fifth assignment of error is overruled.
III
{¶40} Father’s five assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
DEREK CEK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
MARY O’NEILL-MARNECHECK, Attorney at Law, for Appellee.
TONY PAXTON, Guardian ad Litem.