In re B.W.

[Cite as In re B.W., 2022-Ohio-604.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: B.W. C.A. No. 30011
H.W.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 20 11 0775
DN 20 11 0776
DECISION AND JOURNAL ENTRY
Dated: March 2, 2022
HENSAL, Presiding Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that adjudicated two of her children dependent and further ordered that
Appellee Summit County Children Services Board (“CSB” or “the agency”) was not required to
use reasonable efforts to facilitate the reunification of the children with Mother. This Court
affirms.
I.
{¶2} Mother is the biological mother of B.W. (d.o.b. 12/14/17) and H.W. (d.o.b.
5/20/19). Paternity is established for H.W. B.W. has a presumed legal father due to that man’s
marriage to Mother at the time of the child’s birth, but another man is B.W.’s alleged biological
father. None of the three men identified as the children’s fathers participated in any significant
way below or are parties to this appeal.
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{¶3} Mother is also the biological mother of five older children, all of whom were
subjects of prior dependency/neglect/abuse cases in the juvenile court. While one child was
ultimately placed in the legal custody of a third party, Mother’s parental rights were terminated
as to the remaining four children who were placed in the permanent custody of CSB and later
adopted. B.W. was also the subject of a complaint filed by the agency when she was a newborn.
B.W. was removed and adjudicated a dependent child but later returned to Mother’s legal
custody.
{¶4} In September 2020, CSB filed complaints and obtained emergency temporary
custody of B.W. and H.W. The allegations underlying those complaints are not in this record.
The agency dismissed those complaints before an adjudicatory hearing was held. On November
23, 2020, however, CSB filed new complaints in which it alleged that B.W. and H.W. were
neglected and dependent children based on concerns of domestic violence and drug use in the
home, limited food and supplies for the children, various unsanitary conditions, and historical
concerns regarding Mother’s parenting abilities. While the agency sought interim orders of
emergency temporary custody and temporary custody in the complaint, it also sought an award
of permanent custody of the children. After a shelter care hearing, the magistrate issued an
emergency order of temporary custody.
{¶5} CSB filed a proposed case plan which included, among other things, five
objectives for Mother. Her case plan objectives related to basic needs, chemical dependency,
mental health, developmental disabilities, and parenting.
{¶6} After an adjudicatory hearing, the magistrate dismissed the agency’s allegation of
neglect and allegations of dependency pursuant to Revised Code Sections 2151.04(A) and (B).
The magistrate concluded, however, that CSB had proven its allegations of the children’s
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dependency pursuant to Sections 2151.04(C) and (D). Mother filed a timely objection to the
magistrate’s decision. She argued that the agency failed to meet its burden of proof regarding its
dependency allegations. Mother and CSB fully briefed the issue raised by Mother’s objection.
{¶7} While the objection was pending, CSB filed a motion for a reasonable efforts
bypass determination pursuant to Section 2151.419(A)(2)(e), which requires the juvenile court to
relieve the agency of its obligation to provide reunification efforts for a parent whose parental
rights with respect to a sibling of the subject child(ren) were previously involuntarily terminated.
Mother opposed the agency’s motion, arguing that the statute was unconstitutional.
{¶8} CSB also moved for temporary custody of the children, as the agency had been
unable to perfect service of its combined complaint and motion for permanent custody on one of
the fathers. At the dispositional hearing, Mother stipulated to an order placing B.W. and H.W. in
CSB’s temporary custody. The juvenile court further adopted the agency’s case plan as its order.
{¶9} When the juvenile court ruled on Mother’s objection, it sustained the objection in
part and concluded that CSB failed to prove by clear and convincing evidence that the children
were dependent pursuant to Section 2151.04(C). The juvenile court overruled Mother’s
objection, however, as to the remaining allegation of dependency. Finding that the
circumstances surrounding the prior dependency, neglect, and abuse adjudications of the
children’s siblings and the other conditions in the household of B.W. and H.W. put those two
children in danger of abuse or neglect by Mother or members of her household, the juvenile
court adjudicated B.W. and H.W. dependent pursuant to Section 2151.04(D)(1)(2). By a
separate judgment entry, after concluding that the statutory scheme was not unconstitutional, the
juvenile court also granted CSB’s motion for a reasonable efforts bypass determination and
relieved the agency of its obligation to facilitate reunification of the children with Mother.
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{¶10} Mother filed a timely appeal which this Court dismissed on CSB’s motion after
Mother failed to timely file her appellate brief. Mother moved for reconsideration and this Court
reinstated the appeal and accepted Mother’s brief instanter. Mother raises two assignments of
error for consideration.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY ADJUDICATING THE MINOR CHILDREN
AS DEPENDENT CHILDREN, AS THE ADJUDICATION WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶11} Mother argues that the juvenile court’s finding that B.W. and H.W. are dependent
children pursuant to Section 2151.04(D) was against the manifest weight of the evidence. This
Court disagrees.
{¶12} Juvenile dependency, neglect, and abuse cases are initiated by the filing of a
complaint. See Juv.R. 22(A); Juv.R. 10; R.C. 2151.27(A). The complaint is “the legal document
that sets forth the allegations that form the basis for juvenile court jurisdiction.” Juv.R. 2(F).
The juvenile court must base its adjudication on the evidence adduced at the adjudicatory hearing
to support the allegations in the complaint. See In re Hunt, 46 Ohio St.2d 378, 380 (1976). If
allegations in the complaint are not proved by clear and convincing evidence at the adjudicatory
hearing, the juvenile court must dismiss the complaint. Juv.R. 29(F); R.C. 2151.35(A)(1). 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.” (Internal quotations omitted.) 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.
{¶13} This Court reviews as follows:
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In determining whether the juvenile court’s adjudication of dependency is against
the manifest weight of the evidence, this court [reviews] the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of witnesses
and determines 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
[adjudication] must be reversed[.]
(Alterations sic.) In re R.L., 9th Dist. Summit No. 28387, 2017-Ohio-4271, ¶ 8, quoting In re
C.S., 9th Dist. Summit No. 26178, 2012-Ohio-2884, ¶ 5, quoting In re A.W., 195 Ohio App.3d
379, 2011-Ohio-4490, ¶ 8 (9th Dist.).
{¶14} Mother challenges the finding that B.W. and H.W. were dependent pursuant to
Section 2151.04, which, in relevant part, defines “dependent child” as any child:
(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.
{¶15} With regard to a finding of dependency under this subsection, this Court has
recognized the following:
It is clear that, with the addition of [Section] 2151.04(D), the legislature
considered a parent’s prior history with a child welfare agency significant in
regard to a determination that a subsequent child might be dependent. Further,
while [Section] 2151.04(D)(2) requires that the trial court base its finding of
dependency, in part, on “other conditions in the household of the child,” the
legislature did not limit which conditions may be considered.
In re W.C., 9th Dist. Summit No. 22356, 2005-Ohio-2968, ¶ 18. Moreover, “[Section]
2151.04(D) allows the trial court to make a determination that a child is dependent before any
actual harm is suffered by the child as a result of previous acts by the parents and
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contemporaneous conditions * * *[.]” In re T.P.-M., 9th Dist. Summit No. 24199, 2008-Ohio-
6437, ¶ 11.
{¶16} In this case, the evidence establishes, and Mother does not dispute, that her
parental rights were involuntarily terminated as to four other children in Mother’s household
who had been adjudicated dependent and neglected. Mother argues, however, that CSB failed to
prove by clear and convincing evidence that the circumstances surrounding the dependency and
neglect of those siblings still existed and that other conditions in Mother’s household put B.W.
and H.W. in danger of abuse or neglect by Mother or other members of her household.
{¶17} CSB presented the testimony of three witnesses in its case in chief. A certifying
scientist from Forensic Fluids Laboratories authenticated two toxicology reports which
established that Mother tested negative for eleven distinct substances on September 28, and
October 1, 2020. The agency intake caseworker testified, however, that Mother refused to
submit to an oral swab as the caseworker requested during her initial visit to Mother’s home on
September 24, 2020.
{¶18} The caseworker testified that CSB received a referral about concerns that Mother
and her live-in boyfriend were using methamphetamine in the presence of the children, that there
were incidents of domestic violence in the home, and that the children were subjected to
“excessive discipline” by Mother’s boyfriend. Examples of the “excessive discipline” included
“spanking them, holding them by the hand[,] * * * if they were not behaving, putting them in the
corner.” Based on the referral, the caseworker visited Mother’s home the next day without first
reviewing her history with the agency.
{¶19} Mother welcomed the caseworker into her home for nearly two hours to discuss
the concerns raised by the referral and observe the conditions in the home. The first thing the
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caseworker noticed was that Mother had a gash on her face and two black eyes. Two adult males
were sharing the home with Mother and the children. One of those men was Mother’s boyfriend.
{¶20} Mother’s boyfriend was at home during the visit. The caseworker testified that
the boyfriend was “very jittery[,]” dominated the conversation, and looked at Mother as she
answered questions. When the boyfriend left for half an hour, Mother told the caseworker that
he was “almost controlling.” Mother denied that her boyfriend was abusive or that there was any
domestic violence in the home. When the caseworker inquired about the injuries to Mother’s
face, Mother explained that B.W. had “head butted” her. By the time of the adjudicatory
hearing, the caseworker became skeptical regarding Mother’s explanation, based on the
boyfriend’s behavior during the visit, Mother’s admission of his controlling nature, and Mother’s
history of maintaining relationships with abusive men.
{¶21} The caseworker asked Mother about drug use in the home. Mother denied that
she was using drugs but got angry when the caseworker requested that she submit to an oral
swab. Mother did not address whether her boyfriend or the other man in the house used drugs.
{¶22} The caseworker described the adequacy of the home as “very marginal.” There
were holes in the walls; cigarette butts scattered on the floors throughout the home, including in
the children's bedroom; a broken television turned to the wall; and limited food in the home. The
caseworker acknowledged that the amount of food was “enough to support the two little girls[,]”
although it would not have been enough to also sustain Mother and the two adult men living in
the home. Although there was a fully functional bathroom on the first floor, there was no door to
ensure privacy. The bathroom on the second floor was not functional at all. The ceiling in the
closet in the children’s bedroom was collapsing.
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{¶23} The other man in the home, “Mike,” lived in the basement. There was a door
leading from the inside of the home to the basement but no evidence of any other ingress to the
basement quarters. Mike was a friend of H.W.’s father A.W., who Mother admitted had been
physically abusive to her during their relationship and had served time in prison for domestic
violence against Mother. There was no evidence as to why Mother was allowing Mike to live in
her home. Although Mother claimed to have run a background check on Mike, she could not
provide any information about him.
{¶24} Mother informed the caseworker that the home belonged to a friend and that she
was living there rent-free, having agreed to make repairs to the home in lieu of paying rent. She
had no lease. Moreover, Mother could not name the friend who owned the home. The
caseworker did not know how long Mother had been living in the home, but it did not appear as
though any repairs had yet been made.
{¶25} Before leaving the home, the caseworker told Mother that she needed to clean up
anything on the floors that the young children could put in their mouths. She testified that she
did not remove the children based on her home visit because “[i]t was not severe enough to
remove based on the home conditions.” Despite the “marginal” conditions, the caseworker
observed no drugs or drug paraphernalia in the home. Despite the limited food in the home, the
children did not appear underfed.
{¶26} The caseworker admitted that she only had seven months’ experience in the intake
department at the time of the adjudicatory hearing and was not a licensed social worker. As she
had only a few months’ experience when she conducted the home visit, the caseworker called the
police after she left Mother’s home to request a welfare check and a second opinion regarding
the children’s safety in that environment. The investigating police officer testified that the
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caseworker had suspected that Mother and her boyfriend were under the influence of drugs
during the home visit.
{¶27} Officer Hacimuezzin of the Akron Police Department arrived a few hours after
the caseworker left Mother’s home. When he arrived, Mother was feeding both children who
appeared happy. Mother did not appear to be overwhelmed by the responsibilities of caring for
her children. Neither Mother nor her boyfriend appeared to be under the influence of drugs.
Mike, the other man living in the home, was drinking a beer in the backyard but he did not
appear intoxicated.
{¶28} The officer testified that Mother let him walk through the entire home. Although
it was “a little messy and a little unorganized” and needed some repairs, there was “nothing to an
extent of, you know, major concern.” There was food in the refrigerator. The bathroom and
shower on the first floor were in working order, although the second floor bathroom was not
functional. After walking through the entire home, including the basement, the officer saw no
signs of drugs or paraphernalia. Mother, however, told the officer that “she believes Mike was
using drugs.” Mother further reported that she had told Mike he must vacate the home, at the
caseworker’s suggestion. The officer confirmed that Mike agreed to leave in a few days.
{¶29} The officer testified that both Mother’s live-in boyfriend and Mike had warrants
for their arrests on drug-related charges. Mike had two misdemeanor warrants, while Mother’s
boyfriend had a warrant for a felony drug possession charge. The officer could not execute those
warrants, however, because they were issued by other counties that refused to accept such
alleged offenders into jail based on current Covid-19 guidelines.
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{¶30} Officer Hacimuezzin did not take the children into protective custody because he
found nothing to indicate an “immediate danger to the children in the household.” After leaving
Mother’s home, he reported his findings to the agency caseworker.
{¶31} In the meantime, the caseworker had reviewed Mother’s history with CSB
regarding her five older children. Despite her observations during her home visit and the
officer’s report, both of which failed to compel the removal of the children for safety reasons, the
caseworker filed complaints alleging the children’s dependency and neglect and seeking their
removal and an emergency order of temporary custody to CSB. The caseworker testified that the
agency did not hold a team decision meeting first because she believed that the historical
concerns regarding Mother were severe enough to warrant pursuing emergency temporary
custody of the children. The caseworker identified the historical concerns that led the agency to
file its complaints as Mother’s pattern of relationships with physical abusers and drug users in
her home, the prior removals of her five older children, and the exposure of young and
vulnerable children to conditions from which they were unable to defend themselves. Although
she acknowledged that there were some concerns regarding the condition of Mother’s home, the
caseworker testified that when deciding to file its complaints, “the focus [of CSB] wasn’t on the
home at that very moment.”
{¶32} While CSB has not presented the strongest case, this Court cannot conclude that
the finder of fact clearly lost its way and created a manifest miscarriage of justice by adjudicating
B.W. and H.W. dependent children. The circumstances underlying the adjudications of Mother’s
five older children involved unsafe physical conditions in the home; nonworking appliances and
fixtures; Mother’s poor judgment relating to her associates, some of whom used drugs; and the
children’s exposure to domestic violence. Mother stipulated to the allegations in the complaints
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relating to her older children who were adjudicated neglected and dependent. Because of the
circumstances surrounding the neglect and dependency of their older siblings, as well as other
conditions in Mother’s current household, B.W. and H.W. were in danger of future abuse or
neglect.
{¶33} In this case, there was evidence that the conditions in B.W.’s and H.W.’s home
were akin to those earlier endured by their siblings. Mother was repeating a pattern of raising
her children in a home that required extensive repairs and cleaning to ensure a consistently safe
and healthy environment. Holes in the walls potentially exposed the children to sharp edges and
electrical wiring. The collapsing ceiling in the children’s bedroom presented a hazard should
they be hit by debris. The adults were leaving hundreds of cigarette butts strewn over the floors,
including in the children’s bedroom. The children were of ages during which they would be
expected to routinely put accessible objects in their mouths. Although the children did not
appear to be underfed, there was inadequate food in the home to sustain the five people living
there.
{¶34} In this case too, Mother exhibited the same poor judgment regarding the persons
with whom she associated and to whom her children were exposed. Mother allowed Mike,
whose only connection to her was that he was a friend of a man who had served time for
physically abusing Mother, to live in the home with her children. Mike had an active warrant
relating to drug charges. Although he had not been convicted, Mother admitted to the police
officer that she believed that Mike was using drugs. Despite her belief, Mother did not ask Mike
to leave the home until the caseworker advised her to do so. Although Mike told the officer that
he planned to leave the home, there was no evidence that he had actually done so.
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{¶35} Mother’s current live-in boyfriend also presented concerns similar to those
presented by Mother’s prior paramours. He was controlling and had pending criminal charges
involving felony drug possession. Although the boyfriend had no criminal history of domestic
violence, and Mother denied that he was abusive to her, Mother’s black eyes and the broken cell
phone and television screen in the home raised concerns that Mother had not broken her pattern
of engaging in romantic relationships with men prone to anger and violence. Certainly, Mother’s
hesitance to speak candidly with the caseworker while her boyfriend was present indicated her
desire not to upset him.
{¶36} The above conditions present a risk to B.W. and H.W. of abuse or neglect. An
abused child includes one who is endangered. See R.C. 2151.031(B) and 2919.22(A). The
children’s exposure to the clutter and physical deficiencies in the home, as well as adults who are
seemingly not well known by Mother and who reasonably may be involved with drugs, raise a
substantial risk to the health and safety of the children. Because of the similarities between the
circumstances underlying the older siblings’ adjudications and the current conditions in B.W.’s
and H.W.’s home, the children are at risk for abuse or neglect by Mother in this case. That there
was no evidence that B.W. and H.W. had suffered any actual harm while in Mother’s care does
not preclude a finding of dependency where Mother’s previous acts and the current conditions in
her home present a danger of abuse or neglect. See In re T.P.-M., 2008-Ohio-6437, at ¶ 11.
{¶37} For the above reasons, this Court concludes that the juvenile court’s finding that
B.W. and H.W. are dependent children pursuant to Section 2151.04(D) is not against the
manifest weight of the evidence. Mother’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN OVERRULING MOTHER’S OBJECTIONS
AND GRANTING [CSB’S] MOTION FOR REASONABLE EFFORTS
BYPASS PURSUANT TO [SECTIONS] 2151.419(A)(2)(e) AND
2151.414(E)(11).
{¶38} Mother argues that the juvenile court erred by relieving CSB of its duty to use
reasonable reunification efforts because the statutory scheme invoked in this case underlying the
reasonable efforts bypass determination is unconstitutional. Because this Court lacks jurisdiction
to address Mother’s challenge at this time, we are prohibited from substantively considering
Mother’s second assignment of error.
{¶39} Article IV, Section 3(B)(2) of the Ohio Constitution limits this Court’s
jurisdiction and allows us to review only final judgments of lower courts. Pursuant to Section
2505.02(B)(2), an order is final and appealable if it “affects a substantial right made in a special
proceeding.” It is well settled that dependency/neglect/abuse cases constitute special
proceedings, as they are governed by a statutory scheme and were not recognized by common
law. In re T.P., 9th Dist. Summit No. 27539, 2015-Ohio-3448, ¶ 10, citing In re Adams, 115
Ohio St.3d 86, 2007-Ohio-4840, ¶ 43, and R.C. Chapter 2151.
{¶40} However, this Court has previously determined that, prior to the issuance of a
final dispositional order, an order granting the agency’s motion for a reasonable efforts bypass
determination does not affect a substantial right. In re T.P. at ¶ 28. We reasoned that deferring
appellate review of an order relieving the agency of its obligation to facilitate a parent’s
reunification with a child until after the juvenile court has issued a final dispositional order
would not foreclose the opportunity for future appropriate relief. Id. at ¶ 11 and 28, citing
Southside Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, ¶ 7
(explaining that an order affects a substantial right if the party would be foreclosed from
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appropriate relief in the future if denied the ability to immediately appeal), and In re J.E., 9th
Dist. Summit No. 23865, 2008-Ohio-412, ¶ 19-24 (addressing the merits of an appeal from an
order granting the agency’s reasonable efforts bypass after a judgment terminating parental rights
and granting permanent custody).
{¶41} In this case, Mother has appealed the order allowing CSB to bypass its statutory
obligation to use reasonable reunification efforts as to Mother. The final custodial disposition of
the children has not yet been determined, however. Should Mother ultimately lose legal custody
of the children, she would have an adequate opportunity to appeal and seek appropriate relief at
that time. Accordingly, as the deprivation of reasonable efforts by the agency does not affect a
substantial right, in the absence of a final dispositional order, the juvenile court’s bypass
determination is not a final and appealable order. This Court has no authority to reach the merits
of Mother’s second assignment of error.
III.
{¶42} Mother’s first assignment of error is overruled. This Court lacks the jurisdiction
to consider the second assignment of error. The judgment of the Summit County Court of
Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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.
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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.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
ALAN M. MEDVICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.