In re O.M.

[Cite as In re O.M., 2023-Ohio-341.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN RE:
O.M., CASE NO. 5-22-08
ADJUDGED NEGLECTED AND
DEPENDENT CHILD. OPINION
[REAGAN M. – APPELLANT
CORY D. – APPELLANT]
IN RE:
A.D., CASE NO. 5-22-09
ADJUDGED NEGLECTED AND
DEPENDENT CHILD. OPINION
[REAGAN M. – APPELLANT
CORY D. – APPELLANT]
Appeals from Hancock County Common Pleas Court
Juvenile Division
Trial Court Nos. 2022-AND-0002 and 2022-AND-0003
Judgments Affirmed and Appeals Dismissed in Part
Date of Decision: February 6, 2023
APPEARANCES:
Scott Smith for Appellant, Reagan M.
Aaron J. Reid for Appellant, Cory D.
Justin J. Kahle for Appellee
Case Nos. 5-22-08, 5-22-09
SHAW, J.
{¶1} Appellant Reagan M. (“Reagan”) appeals the judgments of the Juvenile
Division of the Hancock County Court of Common Pleas, alleging that the trial
court erred in failing to dismiss the complaints filed by the Hancock County Job and
Family Services, Child Protective Services Unit (“CPSU”); that the trial court failed
to comply with the Ohio Rules of Juvenile Procedure and Ohio Rules of Evidence
during the adjudicatory hearing; that the judgments of the trial court are against the
manifest weight of the evidence; and that the trial court erred in finding that CPSU
had engaged in reasonable efforts to prevent the removal of the children from the
home. For the reasons set forth below, the judgments of the trial court are affirmed.
Facts and Procedural History
{¶2} Reagan is the mother of O.M. and A.D. Doc. A2, B2. Tr. 69, 160-161.
Cory D. (“Cory”) is the father of A.D. Doc. B2. O.M. was born in December of
2018 and A.D. was born in September of 2020. Tr. 160. At around 11:30 P.M. on
November 22, 2021, Patrolman Benjamin Stoner (“Patrolman Stoner”) of the
Findlay Police Department was dispatched to the residence where Reagan lived after
a domestic dispute had been reported at that location. Tr. 28-29, 53. When Reagan
opened the front door of the residence, Patrolman Stoner observed that she had a
scratch mark on her forehead and on her arm. Tr. 30, 33. Patrolman Stoner then
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talked to Reagan outside the residence while another police officer spoke with Cory
in the house. Tr. 29-30, 44-45.
{¶3} During this conversation, Reagan indicated that Cory had attacked her
and that they had gotten physical. Tr. 30. She said that the scratch mark on her
forehead Patrolman Stoner observed was caused by them fighting. Id. During the
physical altercation following a heated verbal argument, she said Cory grabbed her,
threw her to the floor, and he was on top of her and holding her down. Tr. at 31.
After indicating that she was being hurt, Cory got off of her and she agreed that she
would not call the police at that point. Tr. 31-32. She said things cooled off, but
when they started talking about their issues again, she had dumped a bowl of
macaroni on Cory and infuriated him to where he had attacked her again, threw her
down to the ground, was grabbing hold of her and the fight was on again at that
point. Tr. 32. However, Reagan and Cory gave conflicting reports as to who had
been the primary aggressor in the fight because he described it more like one
physical incident after Reagan had thrown the bowl of macaroni and several toys at
him. Tr. 34-36. At one point, the police had intended to bring both parents into
custody over this incident. Tr. 36. The police then contacted CPSU to discuss what
options were available to provide care for the children, who were in the home at the
time. Tr. 37.
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{¶4} The police ultimately decided that the appropriate course of action was
to bring Cory into custody while Reagan went to the hospital to have her neck and
back examined. Tr. 33, 37. Reagan had the police contact the grandparents of the
children to provide care for the children that night. Tr. 37-38. Arrangements were
then made for A.D. to stay with Cory’s mother while O.M. went to stay with
Reagan’s mother, Sharon Schmits (“Schmits”). Tr. 38. After provision for the
children had been secured, a worker from CPSU arrived at the house. Tr. 70. While
this worker was told that CPSU’s assistance was not needed, she “continued to
respond” because “she was already there * * *.” Tr. 70.
{¶5} Patrolman Stoner then went to the hospital to determine Reagan’s
status. Tr. 39. At the hospital, Reagan had agreed to have a SANE exam performed
because she had reported that Cory had forced himself on her earlier that day. Tr.
39.1 But Patrolman Stoner later testified that he was not aware of any sexual assault
charges being filed as a result of this allegation. Tr. 54.
{¶6} On December 2, 2021, Kelly Miller (“Miller”), an intake investigator
with CPSU, met with Reagan. Tr. 68, 70, 92. Miller recounted Reagan’s description
of the November 22 incident at her home, including that Cory “had choked her,
1
Reagan indicated that the fight had been about whether Cory “had been messing around with another woman
and that it was because * * * she [Reagan] wasn’t giving him enough sex * * *.” Tr. 42. Reagan then
reported “that Cory and her started arguing about this. He gets up in her face and starts screaming at her
saying that you’re going to, we’re going to have sex and then she just felt compelled just because of just how
aggressive he was * * *.” Tr. 42-43.
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pulled her hair, covered her mouth and her nose” and “had kicked her in the
stomach” when she had stood up to try to get away. Tr. 70. Miller told Reagan that
CPSU did not want Cory to have unsupervised access to the children while the
agency was involved or to be in the home, and that it needed both parties to engage
in services with Open Arms and mental health treatment. Id. There was also a
municipal court’s no-contact order in effect shortly after the incident happened
between Reagan and Cory. Tr. 212.
{¶7} During a home visit by CPSU on December 30, 2021, Miller testified
that, in response to questioning whether Cory had been in Reagan’s home, Reagan
initially denied that Cory had been in the home, but then admitted that Cory had
stayed there for two days over Christmas. Tr. 71, 78.
{¶8} On January 18, 2022, CPSU requested an after-hours welfare check on
Reagan’s residence. Tr. 83. When the police arrived, Cory was present. Tr. 84.
The next day, when Miller spoke to Reagan, she had at first denied that Cory had
been in the home until Miller brought up the fact that the police had seen him, at
which time Reagan did admit it. Id. Reagan also admitted that Cory would park
down the street and walk to her residence. Id. At this time, it was determined that
CPSU was going to file complaints, seeking removal of the children from the home,
as well as subsequently attempt to initiate an out-of-home safety plan. Tr. 85, 109-
110.
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{¶9} On January 26, 2022, the trial court issued ex parte orders that placed
O.M. and A.D. in the emergency temporary custody of CPSU. Doc. A1, B1.2 The
complaints filed that same day by CPSU had alleged that the children were
neglected and dependent children under R.C. 2151.03(A)(2) and R.C. 2151.04(C).
Doc. A2, B2. At a shelter care hearing on January 27, 2022, the trial court concluded
that probable cause existed to conclude that the children were neglected and
dependent. Doc. A7, B8. On February 22, 2022, Reagan filed motions to dismiss,
arguing that the complaints failed to set forth a claim for relief under R.C.
2151.03(A)(2) or R.C. 2151.04(C). Doc. A19, B20.
{¶10} On March 17 and 21, 2022, the trial court held adjudicatory hearings
in these cases. Doc. A32, B27. The trial court denied Reagan’s motions to dismiss
at the adjudicatory hearing on March 17, 2022. Tr. 16, 123. On March 21, 2022,
the trial court filed judgment entries in which it found, by clear and convincing
evidence, that A.D. and O.M. were neglected and dependent children. Doc. A32,
B27. The trial court’s factual findings in its judgment entries mirror the findings
that the court made on the record after the hearings. On April 15, 2022, the trial
court held the dispositional hearing. Doc. A34, B28. By amended judgment entries
2
Case No. 2022 AND 0002 regards the custody of O.M. and will have docket numbers that are preceded by
the letter “A” in this opinion. Case No. 2022 AND 0003 regards the custody of A.D. and will have docket
numbers that are preceded by the letter “B” in this opinion.
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filed April 26, 2022, the trial court ordered O.M. and A.D. to remain in the
temporary custody of CPSU. Doc. A36, B30.
{¶11} As the mother of both O.M. and A.D., Reagan filed her notices of
appeal on May 12, 2022 in Case No. 2022-AND-0002 and in Case No. 2022-AND-
0003. Doc. A37, B31. These cases were assigned Appeal No. 5-22-08 and Appeal
No. 5-22-09 respectively. On May 13, 2022, Cory filed his notices of appeal in
Case No. 2022-AND-0002 and in Case No. 2022-AND-0003. Doc. A42, B36.
However, Cory is only the father of A.D. Tr. 161. Doc. A2. Accordingly, Cory is
not a proper party to the case involving O.M. and does not have standing to
challenge the judgment of the trial court in that case. For this reason, Cory’s appeal
in the case concerning O.M. in Case No. 2022-AND-0002 and Appeal No. 5-22-08
is hereby dismissed. Further, Cory submitted an improper brief to this Court in
Appeal No. 5-22-09 that was stricken. Cory was then given an opportunity to
correct his filing but never submitted a proper brief. For this reason, his appeal in
Case No. 2022-AND-0003 and Appeal No. 5-22-09 is hereby dismissed pursuant to
App.R. 18(C).
{¶12} In her brief, Reagan raises the following four assignments of error in
Appellate Case No. 5-22-08 and Appellate Case No. 5-22-09, which were
consolidated for briefing and review. Here are the four assignments of error raised:
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First Assignment of Error
The trial court abused its discretion by failing to dismiss the
complaints for failure to state a claim for relief under R.C.
2151.03(A)(2) or R.C. 2151.04(C).
Second Assignment of Error
The trial court’s findings of neglect and dependency were against
the manifest weight of the evidence after the Agency failed to
present any evidence, let alone clear and convincing evidence,
that the children were neglected or dependent.
Third Assignment of Error
The trial court committed reversible error when it failed to
properly interpret and apply the Ohio rules of juvenile
procedure and the Ohio rules of evidence during the
adjudication hearing.
Fourth Assignment of Error
The trial court abused its discretion when it found that the
Agency had used reasonable efforts to prevent the continued
removal of the children from their home.
{¶13} In the first assignment of error, Reagan argues that the trial court
abused its discretion in not dismissing CPSU’s complaints for neglect and
dependency. Specifically, Reagan argues that the complaints failed to allege any
facts to support the statutory factors for a finding of neglect or dependency.
{¶14} R.C. 2151.27(A)(1), governing the requirements for filing a complaint
in juvenile court, provides, in relevant part, that the complaint "shall allege the
particular facts upon which the allegation that the child * * * is [a] * * * neglected,
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or dependent child is based." Further, Juv.R. 10(B), governing the general form of
juvenile complaints, provides, in relevant part, that the complaint shall “[s]tate in
ordinary and concise language the essential facts that bring the proceeding within
the jurisdiction of the court[.]” Juv.R. 10(B)(1). “Ohio Appellate Courts have held
that ‘[t]he basis of R.C. 2151.27(A)(1) and Juv.R. 10(B)(1) is twofold. “ ‘ “First, in
an action involving the possible severance of custody rights, a respondent to such a
complaint is entitled to be apprised of the basis of the state’s claim in order to
properly prepare a defense. * * * Second, the juvenile court * * * must be able to
ascertain at an early state of the proceeding whether or not it has jurisdiction over
the subject matter of the claim.’ ˮ ʼ ˮ In re L.H., 3d Dist. Defiance No. 4-19-14,
2020-Ohio-718, ¶ 21, quoting In re D.P., 10th Dist. Franklin Nos. 12AP-557, 12AP-
655, and 12AP-558, 2013-Ohio-177, ¶ 12, quoting In re Johnson, 10th Dist.
Franklin No. 00AP691 (Mar. 22, 2001), quoting In re Sims, 13 Ohio App.3d 37, 42-
43 (12th Dist. 1983).
{¶15} The denial of a pretrial motion to dismiss a complaint, made under
Juv.R. 22(D), is within the trial court’s discretion and will not be reversed on appeal
unless the trial court has abused its discretion. In re L.S., 3d Dist. Union Nos. 14-
15-05 and 14-15-06, 2016-Ohio-4999, ¶ 10. “An abuse of discretion suggests that
the trial court’s decision is unreasonable, arbitrary, or unconscionable.” Id. citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
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{¶16} CPSU filed its complaints alleging that the children were neglected as
defined in R.C. 2151.03 and that the children were dependent as defined in R.C.
2151.04. Doc. A2, B2. More specifically, CPSU cited R.C. 2151.03(A)(2) which
defines a neglected child as one “[w]ho lacks adequate parental care because of the
faults or habits of the child’s parents * * *.” R.C. 2151.04(C) was cited which
defines a dependent child as 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[.]”
{¶17} After setting forth the definitional statutory language, CPSU’s
complaints for neglect and dependency stated in pertinent part the following
“particular facts”: CPSU became involved after receiving a report with concerns of
a domestic violence incidence that took place in the home on November 22, 2021,
where Reagan was transported to the hospital to address her injuries and Cory was
arrested, and the children went with two different grandparents determined by
Reagan and law enforcement; the fact that the caseworker explained to Reagan that
Cory was not to be in the home or have unsupervised contact with the children until
they both engaged in services and CPSU determined it was appropriate; a history of
a prior domestic violence incident from January of 2021 where Cory was also
arrested for stabbing knives in the bathroom door; the fact that Reagan reported
there have been many arguments since that incident and that she stated she felt they
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continued to escalate and had fears they would turn violent; the fact that Reagan
reported she had severe concerns for her own mental health; the fact that Reagan
initially denied having Cory in the home, but then admitted he had stayed two nights
at Christmastime; the fact that an after-hours welfare check was completed on
January 18, 2022 where it was discovered that Cory was in the home.
{¶18} After reviewing the record, we conclude that CPSU’s complaints
adequately set forth the particular facts upon which the allegations are based and
therefore complied with the requirements of Juv.R. 10(B)(1) and R.C.
2151.27(A)(1). As this Court has previously stated, “one of the principal reasons
for stating the factual allegations in a complaint is to apprise the defendant of the
potential issues that she may be facing.” In re L.H., 3d Dist. Defiance No. 4-19-14,
2020-Ohio-718, at ¶ 25, citing see In re D.P. at ¶ 12. Therefore, given the specific
facts alleged, including the domestic violence incidents identified in the
complaints filed in this matter, and the fact that dismissal would result in the
children being returned to a potentially dangerous environment, we cannot find
that it was unreasonable, arbitrary, or unconscionable for the trial court to deny
Reagan’s motions to dismiss the complaints.
{¶19} Based on the foregoing, we overrule Reagan’s first assignment of
error. We address the remaining assignments of error out of order.
Third Assignment of Error
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{¶20} In her third assignment of error, Reagan argues that the trial court erred
in failing to comply with the Ohio Rules of Juvenile Procedure during the
adjudication hearing.
{¶21} To support her argument, Reagan contends her counsel brought to the
attention of the trial court at the time of the adjudication hearing that a list of
witnesses had not been disclosed as part of the discovery provided from the State.
However, Reagan acknowledges in her brief that the trial court attempted to address
such deficiency in the granting of a continuance, and, for this reason, withdrew her
objection to not having been provided a witness list. (Appellant’s Brief at p. 25).
Thus, the record shows that the trial court attempted to properly address such defect
in the granting of a continuance as allowed by Juv.R. 24(C). “If at any time during
the course of the proceedings it is brought to the attention of the court that a person
has failed to comply with an order issued pursuant to this rule, the court may grant
a continuance, prohibit the person from introducing in evidence the material not
disclosed, or enter such other order as it deems just under the circumstances.” Juv.R.
24(C). Further, we note that Reagan’s concern over the time frame for the
adjudication was misplaced because at the time of the continuance, the sixty-day
time period of Juv.R. 29 for holding the adjudicatory hearing was not reached as the
complaints were filed on January 26, 2022 and the hearing was March 17, 2022,
fifty days later.
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{¶22} We conclude that Reagan waived any error regarding the production
of a witness list by withdrawing her objection at the time of the adjudication hearing,
and there is no evidence to support her claim that she was forced to waive that
deficiency in discovery and proceed without the prior disclosure of witnesses. See
generally State v. Lawson, 64 Ohio St.3d 336, 340, 1992-Ohio-47 (error could be
considered waived by withdrawing objection). As such, her argument is not well-
taken.
{¶23} Reagan’s second argument is that the trial court also committed
reversible error when it failed to properly interpret and apply the Ohio Rules of
Evidence during the adjudication hearing. “Adjudicatory hearings require strict
adherence to the Rules of Evidence.” In re S.L., 3d Dist. Union Nos. 14-15-07 and
14-15-08, 2016-Ohio-5000, ¶ 23, citations omitted. Additionally, we recognize that
the trial court has broad discretion concerning the admissibility of evidence. Id. at
¶ 24. “ ‘A decision to admit or exclude evidence will be upheld absent an abuse of
discretion.’ ” Id. quoting Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-
Ohio-4787, ¶ 20. “ ‘Even in the event of an abuse of discretion, a judgment will not
be disturbed unless the abuse affected the substantial rights of the adverse party or
is inconsistent with substantial justice.’ ” Id. quoting Beard at ¶ 20. See Evid.R.
103(A) (“Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected[.]”).
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{¶24} Reagan asserts specifically that Patrolman Stoner, who responded to
the November incident, was allowed to provide testimony, over Reagan’s counsel’s
objection, about other information that did not pertain to the children as such
information was not relevant. “ ‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” Evid.R. 401. However, we agree with CPSU that the testimony was
relevant to the adjudication as the parents’ actions and the conditions or
surroundings of the children were within the range of the testimony that Patrolman
Stoner had provided and was relevant for the trial court to decide as to whether or
not the children were neglected and dependent children.
{¶25} Reagan also asserts that testimony from Miller was inadmissible
hearsay with respect to statements made to her by Cory and as to information
contained in other incident reports other than the November incident. According to
Miller’s testimony, Reagan had disclosed the same information that she had taken
from the report of the bathroom incident. This Court would again conclude that
such testimony was relevant as it went to the conditions surrounding the household
the children were in during the history of CPSU’s involvement with the family,
which is certainly relevant to the proceedings.
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{¶26} Lastly, Reagan raises a challenge to questioning concerning her
childhood and its relevancy to whether the children were neglected or dependent.
The record reflects that the questioning was brief. The testimony was that she grew
up in a home with domestic violence and that she always “put off any sort of arguing
until the kids are not present, whether that be them asleep or with somebody else.
If we have issues, we make sure to discuss them by ourselves with no one else
around.” Tr. 225-227. “The issue of whether testimony is relevant or irrelevant is
best decided by the trial judge, who is in a significantly better position to analyze
the impact of the evidence.” In re G.T., 5th Dist. Richland No. 2021 CA 0065,
2022-Ohio-595, ¶ 79, citing State v. Taylor, 39 Ohio St.3d 162 (1988). Accordingly,
the “admission or exclusion of relevant evidence lies within the sound discretion of
the trial court.” Id. citing Krischbaum v. Dillon, 58 Ohio St.3d 58 (1991). We find
the trial court did not abuse its discretion in admitting this testimony and find it
relevant, particularly in the specific context of this case involving allegations about
Reagan’s home environment for purposes of a dependency analysis.
{¶27} For these reasons, the third assignment of error is overruled.
Second Assignment of Error
{¶28} In her second assignment of error, Reagan argues that the findings that
the children are neglected under R.C. 2151.03(A)(2) or dependent children under
R.C. 2151.04(C) are against the manifest weight of the evidence.
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Legal Standard
{¶29} As outlined above, pursuant to R.C. 2151.03(A)(2), a child is
neglected if the child, “lacks adequate parental care because of the faults or habits
of the child’s parents * * *.” R.C. 2151.03(A)(2). In turn, the Revised Code defines
“adequate parental care” as
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 and the provision by a child’s
parent or parents of specialized services warranted by the child’s
physical or mental needs.
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, 1997-Ohio-391.
{¶30} As outlined above, pursuant to R.C. 2151.04(C), a dependent 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). In contrast
to the analysis of whether a child is neglected, a determination of dependency
focuses on the child’s condition or environment, and not on the parent’s fault. In re
K.J., 3d Dist. Hancock Nos. 5-19-31 and 5-19-32, 2020-Ohio-3918, ¶ 12, citing In
re Riddle at 262. However, “ ‘ “ ‘a court may consider a parent’s conduct insofar
as it forms part of the child’s environment.’ ˮ ʼ ˮ In re L.H., 3d Dist. Defiance
No. 4-19-14, 2020-Ohio-718, at ¶ 32, citing In re C.D.D., 11th Dist. Portage No.
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2011-P-0065, 2012-Ohio-3302, ¶ 30, quoting State ex rel. Swanson v. Hague, 11th
Dist. No. 2009–A–0053, 2010–Ohio–4200, ¶ 24, quoting In re Z.P., 5th Dist. No.
20008CA00209, 2009–Ohio–378, ¶ 17. “Moreover, ‘circumstances giving rise to a
legitimate risk of harm may suffice to support a dependency adjudication under R.C.
2151.04(C).’ ” Id. quoting In re S Children, 1st Dist. Hamilton No. C-170624,
2018-Ohio-2961, ¶ 36, citing In re M.E.G., 10th Dist. Franklin Nos. 06AP-1256,
06AP-1257, 06AP-1258, 06AP-1259, 06AP-1263, 06AP-1264 and 06AP-1265,
2007-Ohio-4308, ¶ 62 (children who were not the victims of sexual abuse deemed
dependent where sibling had been sexually abused by father); In re Savchuk
Children, 180 Ohio App.3d 349, 2008-Ohio-6877 (11th Dist.), ¶ 59, (infant’s
multiple and severe injuries that parents could not explain were sufficient to support
a dependency finding as to unharmed siblings under R.C. 2151.04(C)); In re A.P.,
12th Dist. Butler No. CA2005-10-425, 2006-Ohio-2717 (dependency adjudication
upheld where father had stabbed his live-in fiancée while A.P. was asleep in the
other room, and where a 14-year-old had been left in charge for several hours after
the stabbing); In re C.T., 6th Dist. Sandusky No. S-18-005, 2018-Ohio-3823, ¶ 61
(mother’s drug use, failure to address substance abuse, and overdose created an
environment that was not appropriate for minor child.).
{¶31} If a trial court at an “adjudicatory hearing finds from clear and
convincing evidence that the child is an abused, neglected, or dependent child, the
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court shall proceed * * * to hold a dispositional hearing and hear the evidence as to
the proper disposition to be made under * * * [R.C.] 2151.353 * * *.” R.C.
2151.35(A)(1). In turn, R.C. 2151.353(A)(2) gives the trial court the authority to
“[c]ommit the child to the temporary custody of * * * [a] public children services
agency” once the child has been “adjudicated an abused, neglected, or dependent
child * * *.” R.C. 2151.353(A)(2)(a).
{¶32} When this Court reviews a trial court’s adjudication of a child as
abused, neglected or dependent to determine whether the judgment is supported by
clear and convincing evidence, we must determine whether the trier of fact had
sufficient evidence before it to satisfy the clear-and-convincing-evidence degree of
proof. In re S.L., 3d Dist. Union Nos. 14-15-07 and 14-15-08, 2016-Ohio-5000, at
¶ 11; In re Z.S., 3d Dist. Defiance Nos. 4-09-20, 4-09-21, 4-09-22, 4-09-23, 4-09-
24, and 4-09-25, 2010-Ohio-1929, ¶ 23. Clear and convincing evidence is that
which produces “ ‘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.
Legal Analysis
{¶33} We consider first whether clear and convincing evidence establishes
that O.M. and A.D. were neglected children within the meaning of R.C.
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2151.03(A)(2). CPSU’s cases mainly rest on pointing to four altercations between
Reagan and Cory. The family came to the attention of CPSU in June of 2020, when
it received a report with allegations of domestic violence in the home that resulted
in Reagan pleading guilty to a charge of disorderly conduct. Tr. 75. There was a
no-contact order at that time as well. Id. Then, in January of 2021, CPSU was
involved in a case with the family again for domestic violence in the home. Id. On
that particular day in January, Reagan reported that she was “struggling greatly with
her mental health,” and at that time a physical altercation took place during which
Cory stabbed a bathroom door with a knife while Reagan was inside. Id. That case
was substantiated for neglect. Id. Services were referred to the family by CPSU to
engage in Open Arms services, mental health services, and at that time there was a
“CPO” also involved. Tr. at 76. Although Reagan completed domestic violence
classes and was engaged in mental health services, Cory did not engage in any of
those services. Id.{¶34} In October of 2021, there was another incident where Reagan and
Cory had an argument in the home. Tr. at 87. Cory was told to leave; however,
when he got in the vehicle to do so, Reagan ran out into the driveway. Id. They
were fighting in the driveway during which she grabbed the car door as he tried to
pull the vehicle out into the street and during which she was almost ran over by the
front tire of the car. Tr. 87. Although Reagan testified she “didn’t say * * * almost
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ran me personally over,” she admitted she “said that [her] foot was close to getting
ran over.” Tr. 175.
{¶35} Finally, there was the incident on November 22, 2021 ten months later
after Reagan had gone through the domestic violence classes and engaged in mental
health services and was actually taken to the hospital because she had significant
injuries that ultimately led to the initiation of these cases. Tr. 77, 87. The police
contacted CPSU because there was a question about who would watch O.M. and
A.D. that night before arrangements were made for the children to go to separate
grandparents’ homes. Tr. 37-38.
{¶36} As we begin to consider these events, we note that there was testimony
at the adjudicatory hearing that Miller met with Reagan on December 2, 2021 and
told her that Cory should not have “access to the children that was unsupervised”
and that he “was not to be in the home * * *.” Tr. 70. Further, at the hearing, there
was testimony that the Municipal Court had put a no contact order in place due to
the November 22, 2021 incident. Tr. 212. However, despite the no contact order
in place against Cory, Miller discovered during the December 30, 2021 home visit
that Reagan had allowed him to be in the home for two days over Christmas. Tr.
71. Miller testified that CPSU was concerned that Cory had been allowed in the
home and that it had specified “supervised access with the children due to the
aggressive nature of the reports that [CPSU] had been getting.” Tr. 74, 106. Miller
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said she then reiterated the importance of Cory not having any unsupervised access
to the children and not being in the house, which CPSU was still requiring her to
do. Tr. 71-73. At this time, Reagan also informed Miller that she was going to ask
the Municipal Court to lift the no contact order so that Cory could assist with
childcare. When asked why this was concerning at that point, Miller testified that
Reagan “wanted to allow [Cory] back into the home when no services had taken
place to address the issues that had taken place on multiple occasions and
continued to escalate with each new event. The concern is that these domestic
violence issues always took place * * * in their home when they were alone and
when the children were there.” Tr. at 80. See In re A.C., 6th Dist. Lucas No. L-
10-1025, 2010-Ohio-4933, ¶ 55 (concluding that the decision to disregard a
lawful no contact order could be the basis of a finding of neglect “so long as it
has been demonstrated that the children have been adversely affected”).
Moreover, Miller testified that when she had asked Reagan how things had been
going since January 2021, she stated that there continued to be a great deal of
arguments between her and Cory and that they continued to escalate each time there
was an incident, and that she was fearful that they would escalate to violence. Tr.
at 77.
{¶37} Reagan testified that her relationship with Cory had been volatile and
that she was concerned about Cory’s actions towards her. Tr. 171, 223. She stated
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that she did not believe that Cory was a threat to the children and that she always
“put off any sort of arguing until the kids are not present, whether that be them
asleep or with somebody else. If we have issues, we make sure to discuss them by
ourselves with no one else around.” Tr. 208-209, 225-227. And, although Reagan
testified that she and Cory had ended their relationship before Christmas of 2021,
she admitted she allowed Cory to stay in her house for two nights around
Christmastime contrary to the court order of no contact. Tr. 228-229. Schmits’
testimony added that “[a]s long as he’s [Cory’s] not in the house and they’re not in
a relationship, [she didn’t] believe that there is a threat to the children.” Tr. 150.
{¶38} Additionally, notwithstanding testimony about the sufficiency or
adequacy of the actual physical surroundings or conditions of the children’s home
environment, Miller also testified that she had ongoing concerns about the children
remaining in the home “[d]ue to the physical aggression in the home, the escalated
domestic violence that was taking place, and the fact that neither parent was willing
to follow the recommendations of not only Children’s Services, but even Municipal
Court with no contact orders. It was concerning that neither parent [was] engaging
in services to address the concerns and * * * kind of concerning that [Reagan] had
completed all of the domestic violence classes and mental health not but ten months
prior” and “she was not only in another DV, but one that was even worse than the
prior.” Tr. 89-91. Miller testified that CPSU was concerned that, “if he [Cory] was
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to have one of these episodes when the children are around, it potentially put the
children at harm.” Tr. 74. Further, when asked what concerns for the children she
had that caused CPSU to file the complaints in these cases, she testified that her
“concern was that I had two parents that were both disclosing mental health
concerns. One who was telling me he was not on medication against the wishes
of his doctor. And I had both parents failing to engage in all of those services. I
had both parents continuing to get together in the home with the children even
though there was a no contact order not only by myself but also by Municipal
Court.” Tr. 102-103. The record does indicate that Reagan was able to attend
two domestic violence classes before the complaints in these cases were filed.
Tr. 104, 106, 203. During Reagan’s testimony, she stated that she had
additionally attended counseling and had been doing “med management.” Tr.
203.
{¶39} After carefully reviewing the record, we conclude that the trial court
had clear and convincing evidence before it to find the children were neglected. The
record shows a long history of domestic violence between Reagan and Cory since
before these proceedings, with two disputes resulting in CPSU dealing with them
on domestic violence issues. The record further shows, as the trial court pointed
out, these disputes occur while the children are in the household and while only
Reagan and Cory are present to care for the children. Doc. A32, B27. The trial
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court found, concerning the issue of domestic violence, Reagan has shown no
capacity to protect the children from Cory. Id. The trial court noted Reagan
allowed Cory to watch the children and stay in the home contrary to a court order
of no contact. In addition, as the trial court noted, Reagan “maintains that
although she acknowledged [Cory] has a propensity for violence, she does not
see any danger in having him around the children.” Id. And, in this case, the
trial court did not believe “her statements that her and [Cory] would only get into
disputes when the children were asleep or cared for by another person and that the
ongoing domestic violence between the two parties does not affect her children.”
Id. The trial court clearly found Reagan’s testimony lacked credibility, and this
Court gives great deference on review to the trial court’s ability to determine the
credibility of the witnesses before it. See In re Adoption of D.W.-E.H., 8th Dist.
Cuyahoga No. 110705, 2022-Ohio-528, ¶ 27, citing Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77 (1984).
{¶40} Further, the judgment entry of disposition reveals that although no
transcript was filed from the hearing on disposition, we note the trial court’s reliance
on additional facts that were dispositive of granting temporary custody. In
particular, several additional facts are here stated:
One of the children has not disclosed that she was hit by [Reagan]
and [Cory] and none of the services have addressed that issue to
date. Despite having nearly completed the Open Arms Domestic
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Violence class for victims, [Reagan] still did not walk away from
an altercation with [Cory] at a party. [Cory] has yet to begin most
services.
Doc. A36, B30.
{¶41} We turn to considering whether clear and convincing evidence exists
to adjudicate the children dependent under R.C. 2151.04(C). To establish
dependency, CPSU largely points to the altercations between Reagan and Cory,
arguing that these disputes created a negative impact on the children’s living
environment. As we noted previously, the record establishes that they had a volatile
relationship that resulted in several physical altercations. Thus, we will examine
what testimony was presented at the adjudicatory hearing regarding whether the
children’s condition or environment was affected by the altercations between
Reagan and Cory. See In re Burrell, 58 Ohio St.2d 37, 39 (1979) (holding that, in
a dependency analysis, “[t]he conduct of a parent is relevant * * * solely insofar as
that parent’s conduct forms a part of the environment of this child”).
{¶42} During her testimony, Reagan stated that she grew up in a home with
domestic violence. Tr. 225-226. While Reagan testified that the children were
never present for or aware of the incidents that occurred between her and Cory, she
nevertheless admitted that the children were in the home at the time of these
incidents. Tr. 171-172, 209, 219. Reagan testified that A.D. was in the living room
during the January 2021 incident where Cory stabbed the bathroom door. Tr. 166.
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Moreover, the trial court did not find her testimony that the children were never
present for or aware of these episodes to be credible because it could not “imagine
that to be the case when dad had a knife and was stabbing the door and then turned
around right after the incident, went and picked up the child.” Tr. at 244. See In re
S.L., 3d Dist. Union Nos. 14-15-07 and 14-15-08, 2016-Ohio-5000, at ¶ 43. (Mere
disagreement over the credibility of witnesses is not a sufficient reason to reverse a
judgment on manifest weight grounds.). This finding of lack of credibility is
supported by the record in that it was reported by Cory that he immediately picked
up A.D. off of the bathroom floor after the incident in January of 2021. Tr. at 75,
112.
{¶43} In sum, the trial court heard testimony establishing not only that both
children were in the home on multiple occasions of domestic violence, but also that
on the most recent occasion in November of 2021, “they were left without a parent
in the home to provide care for them” and “they both had to go to separate homes
to have appropriate care for the time.” Tr. 89. The trial court also heard testimony
that Miller expressed a belief, based on her training, that “being in the home with
domestic violence is intrinsically harmful to a child’s psychological and spiritual
well-being.” Tr. 117.
{¶44} On the entire record before us, we find clear and convincing evidence
to support the trial court’s finding that these children were dependent within the
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meaning of R.C. 2151.04(C). “[A] long history of domestic violence between the
parents can constitute the clear and convincing evidence necessary for a finding
pursuant to R.C. 2151.04(C); that is, a child residing in a household where the
parents’ relationship is marred by domestic violence is one whose condition or
environment is such as to warrant the state, in the interests of the child, to assume
the child’s guardianship.” In re Alexander C., 164 Ohio App.3d 540, 2005-Ohio-
6134, ¶ 58, citing In re Jehosephat W., 6th Dist. No. L-01-1505, 2002-Ohio-5503,
at ¶ 17, citing R.C. 2151.04(C).
{¶45} In this case, the trial court’s adjudication entry contains express
findings of fact addressing Reagan and Cory’s history of domestic violence. The
trial court focused on the fact that one child was nearby and picked up by Cory after
one dispute, and the children were either left alone in the home while the parents
engaged in the other disputes or neither could care for the children leaving the
police to locate a caregiver for the children. Doc. A32, B27. These are facts
which give rise to a legitimate risk of harm in the environment of the children.
See In re Z.S., 3d Dist. Defiance Nos. 4-09-20, 4-09-21, 4-09-22, 4-09-23, 4-09-
24, and 4-09-25, 2010-Ohio-1929, at ¶ 26 (stating that “ ‘ “the law does not
require the court to experiment with the child’s welfare to see if * * * [the child]
will suffer great detriment or harm.” ’ ˮ citations omitted).
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{¶46} Finally, we also conclude that the trial court’s findings that the
children were neglected and dependent are supported by the manifest weight of the
evidence.
{¶47} Accordingly, the second assignment of error is overruled.
Fourth Assignment of Error
{¶48} In her final assignment of error, Reagan argues that the trial court
erred and abused its discretion in finding CPSU made reasonable efforts to prevent
the continued removal of the children from the home.
Legal Standard
{¶49} “ ‘We review under an abuse-of-discretion standard a trial court’s
finding that an agency made reasonable efforts toward reunification.’ ˮ In re P.C.,
3d Dist. Logan Nos. 8-20-39, 8-20-40, 8-20-41, 8-20-45, 8-20-46, and 8-20-47,
2021-Ohio-1238, ¶ 42, quoting In re A.M., 3d Dist. Marion No. 9–14–46, 2015–
Ohio–2740, ¶ 24, citing In re C.F., 113 Ohio St.3d 73, 2007–Ohio–1104, ¶ 48 and
In re Sherman, 3d Dist. Hancock Nos. 5–06–21, 5–06–22, and 5–06–23, 2006–
Ohio–6485, ¶ 11. Again, an abuse of discretion suggests that the trial court’s
decision is unreasonable, arbitrary, or unconscionable. Id. citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶50} The issue in determining “reasonable efforts”—is not whether there
was anything more that the agency could have done, but whether the agency’s case
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recommendations and efforts were reasonable and diligent under the circumstances
of this case. See In re M.H., 3d Dist. Allen No. 1-20-57, 2021-Ohio-3642, ¶ 45.
Legal Analysis
{¶51} Under R.C. 2151.419, when a trial court
removes a child from the child’s home or continues the removal
of a child from the child’s home, the court shall determine
whether the public children services agency * * * has made
reasonable efforts to prevent the removal of the child from the
child’s home, to eliminate the continued removal of the child from
the child’s home, or to make it possible for the child to return
safely home.
R.C. 2151.419(A)(1).
{¶52} In this case, the trial court made its reasonable-efforts findings in its
shelter care entry and amended dispositional entry. The trial court concluded in its
shelter care entry that CPSU had provided reasonable efforts to avoid removal
“including a safety plan and information and referrals for services.” Doc. A7, B8.
In addition to the trial court’s reasonable-efforts finding in its dispositional entry,
the trial court adopted and incorporated the CPSU’s case plan filed on February 18,
2022, which identified reunification as its goal. Doc. A36, B30. Finally, the trial
court noted in its dispositional entry that, while Reagan “has completed some
portions of the proposed case plan * * * some concerns remain.” Id. “The concerns
indicated include * * * [Reagan] still hesitates to admit that there existed violence
between her and [Cory].” Id. Accordingly, given the facts and circumstances
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surrounding this case, we conclude that the trial court properly found, and the
record reflected, that CPSU made reasonable efforts to prevent the continued
removal of the children from their home and undertook reasonable efforts
working with the family.
Conclusion
{¶53} Having found no error prejudicial to Appellant Reagan M. in the
particulars assigned and argued in Appeal No. 5-22-08, the judgment of adjudication
and the judgment of disposition of the Juvenile Division of the Hancock County
Court of Common Pleas in Case No. 2022-AND-0002 is affirmed. Having found
that Cory D. was not a proper party to Appeal No. 5-22-08, his appeal in this case
is dismissed.
{¶54} Having found no error prejudicial to Appellant Reagan M. in the
particulars assigned and argued in Appeal No. 5-22-09, the judgment of adjudication
and the judgment of disposition of the Juvenile Division of the Hancock County
Court of Common Pleas in Case No. 2022-AND-0003 is affirmed. Having found
that Cory D. failed to file a proper brief in Appeal No. 5-22-09, his appeal in this
case is dismissed.
Judgments Affirmed and
Appeals Dismissed in Part
MILLER, P.J., concurs.
/jlr
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WILLAMOWSKI, J., Concurring in Part and Dissenting in Part.
{¶55} For the reasons stated by the majority, I concur in the dismissal of
Cory as a party to these cases. However, I respectfully dissent from the majority
opinion because, as alleged in the first assignment of error, CPSU did not file
complaints that contained sufficient essential or particular factual allegations to
establish the stated claims. Further, even if the complaints had provided essential
or particular factual allegations that were sufficient to state the relevant claims, at
the adjudicatory hearing, CPSU still did not carry the burden of establishing, by
clear and convincing evidence, that O.M. and A.D. were actually neglected or
dependent children as was alleged in the second assignment of error. I will examine
the merits of each of these two assignments of error.
{¶56} In the first assignment of error, the appellant argues that the
complaints filed by CPSU were defective. Juv.R. 22(D)(2) permits “objections
based on defects in the complaint” to be raised prior to the adjudicatory hearing as
was done in this case. Juv.R. 22(D)(2). Doc. A19, B20. Under Juv.R. 10(B)(1), a
complaint that alleges a child is neglected or dependent must set forth “the essential
facts that bring the proceeding within the jurisdiction of the court * * *.” Juv.R.
10(B)(1). Similarly, R.C. 2151.27(A)(1) states that “the complaint shall allege the
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particular facts upon which the allegation that the child * * * is a[] * * * neglected[]
or dependent child is based.” R.C. 2151.27(A)(1).
The basis of R.C. 2151.27(A)(1) and Juv.R. 10(B)(1) is twofold.
‘First, in an action involving the possible severance of custody
rights, a respondent to such a complaint is entitled to be apprised
of the basis of the state’s claim in order to properly prepare a
defense. * * * Second, the juvenile court, being a court of limited
jurisdiction, must be able to ascertain at an early state of the
proceeding whether or not it has jurisdiction over the subject
matter of the claim.’
In re D.P., 10th Dist. Franklin Nos. 12AP-557, 12AP-655, 12AP-558, and 12AP-
558, 2013-Ohio-177, ¶ 12, quoting In re Sims, 13 Ohio App.3d 37, 42-43, 468
N.E.2d 111 (12th Dist. 1983).
{¶57} In these cases, CPSU filed complaints that alleged the children were
neglected under R.C. 2151.03(A)(2) and dependent under R.C. 2151.04(C). Under
R.C. 2151.03(A)(2), a “neglected child” is one “[w]ho lacks adequate parental care
because of the faults or habits of the child’s parents * * *.” R.C. 2151.03(A)(2).
The Ohio Revised Code defines “adequate parental care” as
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 and the provision by a child’s
parent or parents of specialized services warranted by the child’s
physical or mental needs.
R.C. 2151.011(B)(1). The complaints detail two altercations between Cory and
Reagan but do not set forth any essential or particular factual allegations that even
suggest that the children did not have “adequate food, clothing, and shelter” that
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“ensure[d] the child[ren]’s health and physical safety” because of any habit or fault
on the part of Reagan. R.C. 2151.011(B)(1).
{¶58} In contrast to the complaint, the testimony at the adjudicatory hearing
indicated that, after the November 2021 altercation, Reagan was going to the
hospital and Cory had been arrested, leaving a question as to who would take care
of the children before Reagan’s departure. Tr. 37. This is why CPSU was initially
contacted in these cases. Tr. 37-38. However, this issue was resolved before a
CPSU worker had arrived with Reagan and the police contacting the children’s
grandparents. Tr. 37-38, 70. This testimony can at least provide a basis for an
argument that the faults of the parents contributed to a brief situation in which the
availability of a caregiver was in question. For reasons I state later in this analysis,
I believe such an argument fails to establish neglect.
{¶59} However, the complaints fail to make factual allegations from which
that situation can be clearly understood or from which that argument can be clearly
raised. The complaints merely state that
Law enforcement was dispatched and the agency on call worker
was called to the home. Originally both parents were going to be
placed under arrest, however it was determined that Reagan
needed medical attention to address her injuries. Reagan was
transported to Blanchard Valley and Cory was arrested. The
children went with two (2) different Grandparents determined by
Mother and law enforcement. Upon discharge from the hospital
Reagan picked up her children and returned home.
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Doc. 2A, 2B. This factual allegation does not suggest that Reagan failed to provide
for her children. Rather, it contains indications that Reagan provided for the care of
her children by securing the grandparents as caregivers before she left for the
hospital. The allegation of neglect in these complaints is not supported by any
essential or particular facts contained therein. Doc. 2A, 2B.
{¶60} Under R.C. 2151.04(C), a “dependent child” is one “whose 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). While the complaints in
these cases describe two altercations that occurred between Cory and Reagan, they
do not draw any connection between these altercations and the children. See In re
A.C., 6th Dist. Lucas No. L-10-1025, 2010-Ohio-4933, ¶ 8 (noting that “the
complaint highlighted * * * the causal connection between the alleged incidents of
domestic violence and their alleged affect upon the children”).
{¶61} After a description of the disputes between Cory and Reagan, the
complaints only make two more passing references to the girls. Doc. A2, B2. First,
the complaints mention that “[t]here was a daycare plan put in place where Cory
would watch the girls at his mother’s home where he was staying * * *.” Doc. A2,
B2. Thus, the complaints suggest that CPSU did not view Cory’s mere presence
around the girls as negatively impacting their environment because his supervised
presence around them was facilitated by a daycare plan. Second, the complaints
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later state that Reagan admitted to CPSU that Cory had been at her house “a very
few times to see the girls.” Doc. A2, B2.
{¶62} In the second identified factual allegation, the complaints merely
allege that Cory was present around the girls. “The unwillingness of a mother to
sever ties with a father who presents a danger to their child can present an
environment requiring state intervention to protect the child.” In re D.P., supra, at
¶ 20. However, as noted previously, CPSU apparently did not find Cory’s mere
presence around the girls to constitute a danger or to even have a negative effect on
their environment because CPSU appears to have facilitated his presence around the
girls through a daycare plan. The complaints contain additional information about
Cory’s shortcomings and mental health issues. But the factual allegations in the
complaints would clearly indicate that CPSU did not believe these issues were such
that Cory could not be present around the children or was negatively impacting their
environment or safety.
{¶63} The complaints do make mention of the fact that Cory had been
present at the house in spite of a no contact order having been put in place. Reagan’s
disregard of a no contact order is a problem, but there is no indication that it was a
problem that negatively affected the condition or the environment of the children.
Again, the complaints do not contain any essential or particular factual allegations
that would indicate Cory’s presence at the house had any negative impact on the
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children’s condition or environment. Thus, there is no indication that the issues
between the parents had any discernible impact on the environment of the children.
{¶64} The failure of CPSU to raise sufficient allegations in its complaints in
these cases is underscored by its subsequent failure to prove, by clear and
convincing evidence, its claims of dependency and neglect at the adjudicatory
hearing. Accordingly, the first and second assignments of error would each provide
a sufficient basis to dismiss these cases.3 For this reason, I now turn to the
arguments raised in the second assignment of error which argue that CPSU failed to
carry the burden of establishing, by clear and convincing evidence, that O.M. and
A.D. were abused or neglected children.
{¶65} As to the determination of neglect, CPSU did not present evidence to
establish that O.M. and A.D. “lack[ed] adequate parental care because of the faults
or habits of the child[ren]’s parents * * *.” R.C. 2151.03(A)(2). The Revised Code
defines “adequate parental care” as
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 and the provision by a child’s
parent or parents of specialized services warranted by the child’s
physical or mental needs.
R.C. 2151.011(B)(1). In turn, 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
3
Such dismissal would be without prejudice to a further filing if CPSU should acquire further essential or
particular facts as would give support to a properly pleaded complaint.
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adequate) care can be made.” In re Riddle, 79 Ohio St.3d 259, 262, 1997-Ohio-391,
680 N.E.2d 1227, 1230 (1997).
{¶66} At the adjudicatory hearing, Patrolman Stoner testified that the police
only contacted CPSU because there was briefly a question about who would watch
O.M. and A.D. that night. Tr. 37. However, this issue was resolved after Reagan
had told the police that the children could stay with their grandparents. Tr. 38. See
Riddle, supra, at 263. See also In re A.O., 8th Dist. Cuyahoga No. 100619, 2014-
Ohio-2277, ¶ 8. After arrangements were made for the children to go with their
grandparents, a social worker arrived at the house, and the police informed her that
CPSU’s services were not needed, but she “continued to respond” because “she was
already there * * *.” Tr. 70.
{¶67} Next, Patrolman Huber testified that he was involved with the removal
of O.M. and A.D. from their home on January 26, 2022. Tr. 125. He did not witness
any concerning interactions between Reagan and her children or observe any
indications that Reagan was not providing her children with adequate amounts of
food or water. Tr. 129, 132. Patrolman Huber also stated that Reagan had packed
toys and clothes for the children to take with them and had written a list of
instructions for the children’s care. Tr. 128. He testified that he had never before
had a parent give a list of care instructions for the children when he had been
involved in removing a child from a home. Tr. 130. During her testimony, Miller
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affirmed that she had no reason to believe that Reagan “was not providing the
children with adequate food, clothing, or shelter[.]” Tr. 102. She also observed that
toys, clothing, and food were available for the children in the home. Tr. 102.
{¶68} Reagan then testified that she has always had the ability to provide the
children with food, clothing, and housing. Tr. 163. She has never faced the prospect
of eviction or been unable to pay her bills. Tr. 163. Reagan testified that O.M. and
A.D. have never been in counseling, had developmental issues, or exhibited
antisocial tendencies. Tr. 164. She also stated that she has made sure that the
children have had proper medical care and has taken them to doctor’s appointments.
Tr. 208. Schmits testified that she lived around four or five blocks from Reagan’s
residence and has known the children for their entire lives. Tr. 137, 138. She stated
that she was never aware of the children not having sufficient food, adequate
clothing, or housing. Tr. 146. She also had not seen any filthy, unsanitary, or
dangerous conditions in Reagan’s home. Tr. 146. Schmits concluded her testimony
on direct examination by stating that the children were sociable and did not appear
to have any developmental delays. Tr. 148.
{¶69} CPSU’s cases mainly rest on pointing to four fights between Cory and
Reagan while they were in a relationship. In June of 2020, Cory and Reagan were
involved in a fight that resulted in Reagan pleading guilty to a charge of disorderly
conduct. Tr. 75. In January of 2021, there was an argument during which Cory hit
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a bathroom door with a knife while Reagan was inside. Tr. 75. In October of 2021,
Reagan and Cory had an argument in the driveway during which she grabbed the
car door as he tried to pull the vehicle out into the street. Tr. 87. Finally, there was
the incident on November 22, 2021 that ultimately led to the initiation of these cases.
Tr. 77.
{¶70} In considering these events, I would note that there was no testimony
at the adjudicatory hearing that the children were ever the victims of domestic
violence, were ever aware of the altercations between Cory and Reagan, or ever
experienced any improper discipline at the hands of Cory or Reagan. Doc. A2, B2.
Tr. 111, 113, 141, 145, 150-151, 161, 171, 223. Miller did note that there had been
no reports of Cory having been aggressive towards the children; engaging in any
improper disciplinary activities; or getting into physical altercations with any of his
other family members. Tr. 113-114. While she testified that she had observed
Reagan with the children and that Reagan’s interactions with them “seemed fine,”
Miller testified that she had never seen Cory with O.M. or A.D. Tr. 109. Reagan
testified that she practices gentle parenting and described her disciplinary
techniques at the hearing. Tr. 161. She also stated that Cory had never behaved
violently or inappropriately towards the children. Tr. 161, 171, 195.
{¶71} Further, CPSU did not present any evidence to establish that the
children were aware of or impacted by any of these incidents. See In re Alexander
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C., 164 Ohio App.3d 540, 2005-Ohio-6134, 843 N.E.2d 211, ¶ 53 (6th Dist.). At
the adjudicatory hearing, Patrolman Stoner testified that he could not confirm that
the children had been in the room or were even awake during the incident that
occurred on November 22, 2021. Tr. 49, 50, 64. Miller admitted that she did not
know whether the children were aware of these altercations. Tr. 108. But she then
noted that Cory had reported that he had picked up the baby, A.D., immediately
after the argument in January of 2021. Tr. 112. At that time, A.D. would have been
roughly four months old. Tr. 160. Miller indicated that she did not know if A.D.
was awake or asleep at the time Cory picked her up or if A.D. was cognizant of her
surroundings. Tr. 112. Reagan later testified that A.D. was in a different room
during the January 2021 incident where Cory hit the bathroom door. Tr. 166.
{¶72} CPSU states that it was concerned that Cory had been allowed in the
home even though CPSU “was recommending no contact to take place between * *
* Reagan and Cory and the children.” Tr. 106. Miller testified that CPSU was
concerned that, “if he [Cory] was to have one of these episodes when the children
are around, it [could] potentially put the children at harm.” (Emphasis added.) Tr.
74. This is not clear and convincing evidence in this case. It is speculative. At the
hearing, Miller testified that she met with Reagan on December 2, 2021 and told her
that Cory should not have “access to the children that was unsupervised” and that
he “was not to be in the home * * *.” Tr. 70.
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{¶73} However, Miller stated that she did not give any instructions to Reagan
in writing and that no case plan was in place because CPSU was only involved in
an investigation at this point. Tr. 93. See Tr. 202-203. Reagan did testify that the
Municipal Court had put a no contact order in place against Cory as a result of the
November 22, 2021 incident against her. Tr. 202. On December 30, 2021, Miller
discovered that Reagan had allowed Cory to be in the home for two days over
Christmas. Tr. 71. At this time, Reagan also informed Miller that she was going to
ask that the Municipal Court to lift the no contact order so that Cory could assist
with childcare. Tr. 72, 168. Miller then reiterated the fact that CPSU did not want
Cory in the house. Ex. D2. Reagan testified that she believed that, if the Municipal
Court lifted the no contact order, Cory would be permitted to visit the children at
the house. Tr. 201-202. She further testified that she had received conflicting
information about whether Cory would be permitted around the children if the no
contact order was lifted. Tr. 202.
{¶74} When asked, Miller was not able to identify any ways in which the
children had been negatively impacted by Cory’s presence in the home after the
November 22, 2021 incident. Tr. 107. See In re A.C., 6th Dist. Lucas No. L-10-
1025, 2010-Ohio-4933, ¶ 55 (concluding that the decision to disregard a lawful no
contact order could be the basis of a finding of neglect “so long as it has been
demonstrated that the children have been adversely affected”); In re Walling, 1st
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Dist. Hamilton No. C-050646, 2006-Ohio-810, ¶ 18 (finding that, “without evidence
of some nexus between [a parent’s] * * * failure to abide by the [protective] orders
and resulting harm to * * * [the child], we can not [sic] presume harm”).
{¶75} Reagan testified that she and Cory had ended their relationship in
December of 2021 and had not had any arguments or physical altercations since
November 22, 2021. Tr. 229, 231-232. She stated that her relationship with Cory
had been volatile and that she was previously concerned about Cory’s actions
towards her. Tr. 223. However, Reagan testified that Cory had never behaved
inappropriately towards the children. Tr. 171, 195. She stated that Cory had never
“erupted” in front of the children; that she did not believe that Cory was a threat to
the children; and that she would not let anyone around the children if she believed
that person was a threat to the children. Tr. 208-209. Similarly, Schmits stated that,
while she believed that Cory was a threat to Reagan as long as they were in a
relationship, she did not believe that Cory had posed a risk to the children. Tr. 150.
{¶76} Miller also testified that Reagan was not engaged with the classes that
had been recommended for her. Tr. 103. However, Reagan testified that she went
to a session as an intake on December 2, 2021 but stated that several of the classes
in December had been cancelled because the instructor had contracted Covid and
that she was then unable to attend because she had contracted Covid. Tr. 204-205.
She was able to attend these classes before the complaints in these cases were filed.
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Tr. 203. Reagan’s attorney introduced a progress report that discussed her
attendance at the classes recommended by CPSU. Tr. 105-106, 203-204. Ex. A1.
Reagan affirmed that she was “willing to do whatever the Court or CPS asks * * *
in order to get the kids back home[.]” Tr. 210.
{¶77} At the adjudicatory hearing, CPSU did not present any evidence that
O.M. or A.D. lacked adequate parental care as defined by R.C. 2151.011(B)(1).
None of the witnesses at the hearing observed any indication that Reagan had failed
to provide “adequate food, clothing, and shelter” for the children or gave any
testimony to evidence that the children were in need of any “specialized services.”
R.C. 2151.011(B)(1). Accordingly, CPSU did not carry the burden of establishing
by clear and convincing evidence that these children were neglected within the
meaning of R.C. 2151.03(A)(2) as was alleged in the complaints. Doc. A2, B2.
{¶78} As to the allegation of dependency, CPSU did not present clear and
convincing evidence that O.M. and A.D. were children “[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).4 In a dependency analysis, “[t]he
parent’s conduct is significant only if it has an adverse impact on the child sufficient
4
Both R.C. 2151.03(A) and R.C. 2151.04 include other factors or circumstances that would qualify a child
as neglected or dependent. However, CPSU only cited R.C. 2151.03(A)(2) and R.C. 2151.04(C) as bases for
removal in its complaints. Doc. A2, B2. A review of the facts in the record do not suggest that any of these
other factors or circumstances are present in these cases. For this reason, I limit my written analysis to the
statutory provisions that were cited by CPSU in its complaints.
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to justify state intervention.” In re K.J., 3d Dist. Hancock Nos. 5-19-31 and 5-19-
32, 2020-Ohio-3918, ¶ 12.
And ‘[a]s a part of the child’s environment such conduct is only
significant if it can be demonstrated to have an adverse impact
upon the child sufficiently to warrant state intervention. That
impact cannot simply be left to inference, but must be specifically
demonstrated in a clear and convincing manner.’ Id.In re M.R., 1st Dist. Hamilton No. C-190547, 2020-Ohio-3648, ¶ 24, quoting In re
Burrell, 58 Ohio St.2d 37, 39, 388 N.E.2d 738 (1979).
In the absence of evidence showing a detrimental impact upon the
child of the relationship established as here existing, that
relationship, as a part of the child’s environment does not warrant
the state in removing the child from parental custody in the best
interest of that child.
In re Holzwart, 3d Dist. Seneca Nos. 13-04-32, 13-04-33, 13-04-34, and 13-04-40,
2005-Ohio-1602, ¶ 10, quoting Burrell at 39. Further,
[t]o find a child dependent merely because the relationship
between the parents is unhealthy or erratic would find many
children of divorcing parents also being labeled as dependent.
There must be some nexus between the parents’ relationship and
the environmental impact on the child.
In re G.C-O., 3d Dist. Seneca No. 13-12-56, 2013-Ohio-4974, ¶ 11. A trial court
cannot “merely infer[] what could happen.” Id. Unfortunately, that appears to be
what has happened in this case.
{¶79} At the hearing, there was testimony about the general condition of the
children and of Reagan’s home. While Miller was testifying, Reagan’s attorney
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noted that, after notifying Reagan that CPSU was going to seek removal of the
children from the home, CPSU waited an entire week to file complaints. Tr. 100.
In explaining this delay, Miller indicated that she “didn’t feel that the home
conditions were dangerous” or that “the house was hazardous.” Tr. 101, 102.
{¶80} Patrolman Stoner testified that he did not observe any dangerous
conditions in the home or any other “real big red flags.” Tr. 52. He then stated that,
he “didn’t see anything that, if [he] * * * would have been there [in the house] for
anything else, that would have stood out to [him] * * * that the children shouldn’t
be there.” Tr. 53. Further, he testified that his police report made no mention of
any apparent issues with the health of the children or the condition of the home. Tr.
56-58.
{¶81} Patrolman Stoner testified that he had previously been involved in
other cases where children were removed from a household. Tr. 50. He stated that,
in those other situations, he noticed “cleanliness issues * * * with animal feces and
* * * old, rotten food out” when he entered the child’s house. Tr. 51. But in the
cases involving O.M. and A.D., Patrolman Stoner affirmed that he made no
observations “that would indicate * * * that the children did not have enough food,
clothes, or appropriate shelter * * *[.]” Tr. 52.
{¶82} Similarly, Patrolman Huber testified that the house did not appear
dilapidated from the outside. Tr. 126. He stated that, once inside, he observed that
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the home was sufficiently heated; that the children had a number of toys; and that
the children were appropriately clothed. Tr. 128, 131-132. Patrolman Huber did
not observe any indications that the children did not have their hygiene tended to or
that any conditions of the house that were deplorable. Tr. 129.
{¶83} To establish dependency, CPSU mainly points to four identified
altercations between Reagan and Cory that occurred in 2020 and 2021, arguing that
these disputes might possibly negatively impact the children’s environment. At the
outset, I would note that A.D. appears to have been born after the first incident
between Cory and Reagan had occurred. A.D. was then roughly four months old at
the time of the second incident in January of 2021 and was no more than fourteen
months by the time of the fourth incident in November of 2021. O.M. was less than
two years old at the time of the first incident and less than three years old at the time
of the fourth incident. Thus, the children do not appear to have been old enough to
furnish firsthand accounts of what they might possibly have perceived during the
time that Cory and Reagan were in a relationship or whether they even had the
slightest awareness of the dynamic between Cory and Reagan. In the absence of
such information, CPSU is still require to provide clear and convincing evidence
that the children’s condition or environment were negatively impacted by the
altercations between Cory and Reagan.
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{¶84} As noted previously, the record establishes that, while Reagan and
Cory were dating, they had a sometimes negative relationship that resulted in several
physical altercations. A proper dependency analysis requires consideration of what
testimony CPSU actually presented at the adjudicatory hearing regarding whether
the children’s condition or environment was negatively affected by the altercations
between Reagan and Cory. See Burrell, supra, at 39 (holding that, in a dependency
analysis, “[t]he conduct of a parent is relevant * * * solely insofar as that parent’s
conduct forms a part of the environment of this child”).
{¶85} During his testimony, Patrolman Stoner stated that he did not know
whether the children were present for or awake during the incident that occurred on
November 22, 2021. Tr. 49, 50, 64. He also did not know if they could see or hear
the fight. Tr. 64. For this reason, Patrolman Stoner affirmed that, in this case, “it’s
just a possibility” that the children were aware of and, therefore, traumatized by the
fight between Cory and Reagan. (Emphasis added.) Tr. 64-65. He also stated that
he could not confirm whether this incident “actually had any impact on the children
* * *.” Tr. 64. See In re Z.P., 5th Dist. Stark No. 2008CA00209, 2009-Ohio-378,
¶ 20 (finding children’s services did not establish dependency where a parent
“admitted to an incident of domestic violence and drug * * * use,” but there was no
evidence these activities occurred in the presence of the children or impacted their
environment).
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{¶86} During her testimony, Miller admitted that she did not know how or
even if the children had perceived these fights. Tr. 107-108. In re G.C-O., supra,
at ¶ 11 (considering the fact that “[t]here was no testimony that * * * [the child] was
aware of the dysfunctional relationship” between the parents in a dependency
analysis). See In re Alexander C., supra, at ¶ 58 (finding dependency was not
proven where “a very general, single statement, with no testimony in elaboration,”
established that the children had been present in the home during incidents of
domestic violence between the parents). But she affirmed her personal belief that
“being in the home with domestic violence is intrinsically harmful to a child’s
psychological and spiritual well-being[.]” Tr. 117. She also affirmed her personal
belief “that a child could be traumatized by something that they don’t know they
heard while they were sleeping” and that “it * * * [was] possible that the effects of
the trauma might not be seen until later in life[.]” Tr. 116-117. The questioning at
this hearing did not elucidate a basis for this personal opinion. An opinion without
foundation is merely speculation.
{¶87} Further, Miller indicated that she has not actually seen any of the
potential effects of being in a home with domestic violence present in the children.
Tr. 95-96, 119. See In re M.R., supra, at ¶ 25 (finding that a court could not
“presume harm” in the absence of “evidence of some nexus between [the mother’s]
action and resulting harm to the children” where the mother had been “charged with
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domestic violence and had violated a TPO * * *.”). She further admitted that she
had not observed any negative impacts or behaviors that came “specifically only
from domestic violence.” Tr. 119. She then said, “There are things that could
potentially be from witnessing domestic violence, but I can’t say that for sure that’s
the only cause of those behaviors * * *.” (Emphasis added.) Tr. 119.
{¶88} Miller also stated that she had no knowledge of any mental health
assessments that had been performed on the children. Tr. 101. In re Holzwart,
supra, at ¶ 11 (considering the fact that no testimony was offered by someone
“qualified to make a determination as to whether the girls were emotionally
harmed”). Thus, CPSU could not obtain firsthand information from the children
about what they had perceived, if anything, or if they had been in any way negatively
impacted by these incidents because of their ages. CPSU was not able to offer any
testimony from others that the children were physically present for and consciously
aware of any incident between Cory and Reagan. But beyond this, CPSU did not
present any testimony from a qualified person with the technical expertise to assess
whether the mental health of these had been in some way impacted by the
relationship of the parents. There is a clear “lack of details regarding the
environment to which the children in this case were exposed and regarding any
adverse impact the environment might have had upon the children * * *.” Alexander
C., supra, at ¶ 60.
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{¶89} While the trial court did not find Reagan’s testimony to be generally
credible, CPSU, with the burden of proof, did not present any evidence that
establishes that the children were aware of or affected by the incidents between
Reagan and Cory. Reagan’s testimony at the hearing did not provide any evidence
that the children were aware of or affected by these incidents. She testified that she
grew up in a home with domestic violence and that she always “put off any sort of
arguing until the kids are not present, whether that be them asleep or with somebody
else. If we have issues, we make sure to discuss them by ourselves with no one else
around.” Tr. 225-226. See In re A.V., 12th Dist. Warren Nos. CA2021-04-030,
CA2021-04-031, CA2021-04-032, and CA2021-04-033, 2021-Ohio-3873, ¶ 30,
citing In re R.S., 9th Dist. Summit No. 21177, 2003-Ohio-1594, ¶ 18. Reagan
testified that the children were never present for or aware of the incidents that
occurred between her and Cory. Tr. 171-172, 209, 219. Even if the trial court did
not believe her testimony, such lack of belief by the trial court does not prove by
clear and convincing evidence that the children, even if present, were negatively
affected.
{¶90} To establish dependency, CPSU was “required to present evidence of
conditions or environmental elements that were adverse to the normal development
of the children.” In re A.C., at ¶ 59. The evidence offered by CPSU did not establish
that the condition or environment of the children had been negatively impacted by
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the incidents that occurred between Reagan and Cory. Further, CPSU did not
present any evidence that establishes a nexus between the parents’ altercations and
any adverse impact on the environment of the children. In re G.C-O., supra, at ¶
11. Thus, if there was evidence that the children were dependent, CPSU did not
present it at the adjudicatory hearing. Accordingly, CPSU did not carry the burden
of demonstrating by clear and convincing evidence that O.M. and A.D. are
dependent children within the meaning of R.C. 2151.04(C) as alleged in the
complaints. Doc. A2, B2.
{¶91} In conclusion, I concur in part because I agree with the majority’s
conclusion that Cory should be dismissed as a party from these appeals. However,
I dissent in part because I would reverse the judgments of the trial court on the basis
of the arguments raised in the first and then the second assignments of error. I would
then decline to render an opinion as to the remaining assignments of error as they
would be moot.
/jlr
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