In re J.H.

[Cite as In re J.H., 2013-Ohio-1423.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
IN THE MATTER OF: : W. Scott Gwin, P.J.
: William B. Hoffman, J.
J.H. AND J.H. : Patricia A. Delaney, J.
:
: Case No. 2012 AP 10 0062
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County
Court of Common Pleas, Juvenile
Division, Case No. 12 JN 00383
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 4, 2013
APPEARANCES:
For Appellant For Appellee
Henry Harper - #A638-859 DAVID W. HAVERFIELD
Chillicothe Correctional Facility Tuscarawas County Job &
5500 State Route 104 North Family Services
P.O. Box 15802 389 – 16th Street, S.W.
Chillicothe, Ohio 45601 New Philadelphia, Ohio 44663
For Mother Guardian ad Litem
JOHN A. GARTRELL GERRIT DENHEIJER
153 North Broadway 121 East Main Street
New Philadelphia, Ohio 44663 Ravenna, Ohio 44266
[Cite as In re J.H., 2013-Ohio-1423.]
Delaney, J.
{¶1} Appellant, H. H., appeals from the September 21, 2012, Judgment Entry
of the Tuscarawas County Court of Common Pleas, Juvenile Division, finding J.H. and
J.H. to be neglected and dependent children and ordering that they remain in the
temporary custody of Tuscarawas County Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} J.H. (DOB 11/7/97) and J.H. (DOB 6/29/01) are the children of T.H.
(mother) and appellant H.H. (father).
{¶3} On August 20, 2012, a shelter care hearing was held. At the time of the
hearing, appellant was incarcerated. At the hearing, Jaime Grunder, a case manager
with Tuscarawas County Job and Family Services (“TCJFS”), testified that she had
received a call during the previous weekend from the Newcomerstown Police
Department concerning the two children in this case. Grunder testified that the police
had found one of the children, who was 14 years old at the time, outside after curfew at
around 1:00 a.m. When he was asked why he was outside, the child testified that he
had gotten into a fight with his mother, who was intoxicated, and that his mother had
locked him out of the house. When the police spoke with the mother, who was
belligerent and screaming, she indicated that she did not want the child in the house
because he was a drug dealer. There was testimony that T.H. had an extensive history
with Children’s Services in Guernsey County and that there were concerns over alcohol
and domestic violence. One of the children was on probation in Guernsey County.
Grunder testified that the 14 year old had issues with violence.
Tuscarawas County App. Case No. 2012 AP 10 0062 3
{¶4} Pursuant to a Judgment Entry filed on August 21, 2012, the two children
were placed in the emergency temporary custody of TCJFS. On the same date, a
complaint was filed by TCJFS alleging that the two children were neglected, abused
and/or dependent children.
{¶5} On August 31, 2012, appellant filed a Motion to Dismiss the Complaint,
alleging that the complaint was meritless and was based on “no facts to support the
frivolous, meritless, conduct of Jamie Grunde (sic)”.
{¶6} An adjudicatory hearing was held on September 19, 2012. Appellant was
not present at the hearing because he was still incarcerated. At the hearing, Crystal
Lawless testified that she was employed in the intake unit at TCFJS and investigated
allegations of child abuse and neglect. She was familiar with the two children in this
case. Lawless testified that appellant was currently serving an eight (8) year prison
sentence for weapons under disability and kidnapping and that there was a lengthy
history of domestic violence by appellant against his wife. She further testified that
appellant would be incarcerated until past the time the children reached the age of
majority.
{¶7} At the hearing, the complaint was amended to dismiss the allegation of
abuse and T.H., the mother, stipulated to the amended complaint. The trial court, as
memorialized in a Judgment Entry filed on September 21, 2012, accepted the
stipulation and found the children to be neglected and dependent children. The trial
court also overruled appellant’s Motion to Dismiss and ordered that the children remain
in the temporary custody of TCJFS.
Tuscarawas County App. Case No. 2012 AP 10 0062 4
{¶8} Appellant now appeals from the September 21, 2012, Judgment Entry,
raising the following assignments of error on appeal:
{¶9} “I. THE TUSCARAWAS COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION; JUDGE LINDA A. KATE’S JUDGEMENT [SIC] IN CASE NO. J
12JN00383 WAS AN ERRONEOUS JUDGEMENT [SIC] (17c). A JUDGMENT ISSUED
BY A COURT WITH JURISDICATION [SIC] TO ISSUE IT BUT CONTAINED AN
IMPROPER APPLICATION OF LAW. THIS TYPE OF JUDGEMENT [SIC] IS NOT
VOID, BUT CAN BE CORRECTED BY A TRIAL COURT WHILE THE COURT
RETAINS PLENARY JURISDICITION [SIC] OR ON DIRECT APPEAL. THE COURT’S
OVVERULING [SIC] ON THE APPELALANT’S-DEFEDNAT’S MOTION TO DISMISS
DUE TO THE MANY O,R.C. [SIC] VIOLATIONS WAS IMPROEPR [ SIC].
{¶10} “II. THGE [SIC] TUSCARAWAS COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION; JUDGE LINDA A. KATE ABUSED THE COURT’S DISCRETION
IN REMOVING THE CHILDREN FROM THEIR MOTHER, [T.H].; O.R.C. 2151.01
CONSTRUCTION PURPOSES 2151.28(B) TEMPORARY CUSTODY 2151,29 [SIC] (L)
NO FINDINGS OF FACTS.
{¶11} “III. THE MANY VIOLATIONS ALLOWED TO BE VIOLATED IN THE
TUSCARAWAS COUNTY COURT OF COMMON PLEAS JUVENIKLE [SIC]
DIVCISION [SIC]: PRESIDING JUDGE LINDA A. KATE; O.R.C. 2151.03, O.R.C.
2151.04, O.R.C. 2151.31, 2151.31.1, O.R.C. 2151.312, O.R.C. 2151.31.2, O.R.C.
2151.14, O.R.C. 2151.28, O.R.C. 2151.314, O.R.C. 2151.419(A)(B).”
Tuscarawas County App. Case No. 2012 AP 10 0062 5
I
{¶12} Appellant, in his first assignment of error, appears to argue that the trial
court’s determination that the children were neglected and dependent is not supported
by clear and convincing evidence.
{¶13} As this Court recently stated in In re Pierce, 5th Dist. No. CT2008–0019,
2008–Ohio–6716, a trial court's adjudication of a child as abused, neglected, or
dependent must be supported by clear and convincing evidence. R.C. 2151.35. Clear
and convincing evidence is that which produces “in the mind of the trier of fact a firm
belief or conviction as to the facts sought to be established.” In Re: Adoption of
Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954). When this Court reviews an adjudication 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 degree of proof. In Re: Christian, 4th Dist. No. 04CA10, 2004–
Ohio–3146, citations omitted.
{¶14} Dependency is defined by R.C. 2151.04, which provides in pertinent part:
{¶15} “As used in this chapter, ‘dependent child’ means any child:
{¶16} “(C) Whose condition or environment is such as to warrant the state, in the
interests of the child, in assuming the child's guardianship;
{¶17} “(D) To whom both of the following apply:
{¶18} “(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
Tuscarawas County App. Case No. 2012 AP 10 0062 6
adjudication that a sibling of the child or any other child who resides in the household is
an abused, neglected, or dependent child.
{¶19} “(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.”
{¶20} The focus of a charge that a child is dependent under R.C. 2151.04(C) is
on the child and his condition and not on the faults of the parents.” In Re Bishop, 36
Ohio App.3d 123, 521 N.E.2d 838 (5th Dist. 1987); In re: Bibb, 70 Ohio App.2d 117, 435
N.E.2d 96 (1st Dist. 1980); In re: Riddle, 79 Ohio St.3d 259, 680 N.E.2d 1227 (1977).
{¶21} Neglect is defined by R.C. 2151.03, which provides in pertinent part:
{¶22} “As used in this chapter, ‘neglected child’ includes any child:
{¶23} “(2) Who lacks adequate parental care because of the faults or habits of
the child's parents, guardian, or custodian;”
{¶24} We find that the judgment finding the children to be dependent and
neglected is not against the manifest weight of the evidence. As is stated above, at the
September 19, 2012, the mother stipulated to the findings in the complaint, with the
exception of paragraph one which was dismissed. She thus stipulated to the following
findings:
{¶25} “2. [T.H.] has neglected and or failed to appropriately supervise her minor
children and the same is neglect. [J.H.] and her older son who is in the custody of the
Guernsey County Juvenile Court have engaged and continued to engage in significant
Tuscarawas County App. Case No. 2012 AP 10 0062 7
criminal behavior. [T.H.] has failed to provide any appropriate supervision for these
children and the same is neglect.
{¶26} “3. There is a significant history of involvement with these children in
Guernsey County involving numerous complaints to children services and involvement
with that entity. Despite the provision of services from Guernsey County Children
Services, [T.H.] has failed to address ongoing concerns related to alcohol abuse and
supervision.
{¶27} “4. [H.H.], the father of the children, is currently serving an eight year
prison sentence for kidnapping and having a weapon under disability. He will not be
released until after all of the children have reached the age of majority. His current
incarceration deprives the minor children of adequate and necessary parental care and
is neglect.
{¶28} “5. The condition and environment of the children, as outlined above, is
such that the State in their best interest is warranted in intervening in their care and
custody.”
{¶29} At hearing, Crystal Lawless testified that appellant was incarcerated and
was serving an eight year sentence for weapons under disability and kidnapping. She
further testified that appellant would not be released until after the children reached the
age of majority.
{¶30} Based on the foregoing, we find sufficient, credible evidence existed to
support the trial court's adjudication of the children as neglected and dependent
children.
{¶31} Appellant's first assignment of error is, therefore, overruled.
Tuscarawas County App. Case No. 2012 AP 10 0062 8
II
{¶32} Appellant, in his second assignment of error, contends that the trial court
abused its discretion in placing the children in the temporary custody of the agency.
{¶33} Appellant argues, in part, that the trial court erred in failing to follow the
requisites of R.C. 2151.28(B)(1).
{¶34} R.C. 2151.28 states in relevant part, as follows:
{¶35} “(B) At an adjudicatory hearing held pursuant to division (A)(2) of this
section, the court, in addition to determining whether the child is an abused, neglected,
or dependent child, shall determine whether the child should remain or be placed in
shelter care until the dispositional hearing. When the court makes the shelter care
determination, all of the following apply:
{¶36} “(1) The court shall determine whether there are any relatives of the child
who are willing to be temporary custodians of the child. If any relative is willing to be a
temporary custodian, the child otherwise would remain or be placed in shelter care, and
the appointment is appropriate, the court shall appoint the relative as temporary
custodian of the child, unless the court appoints another relative as custodian. If it
determines that the appointment of a relative as custodian would not be appropriate, it
shall issue a written opinion setting forth the reasons for its determination and give a
copy of the opinion to all parties and the guardian ad litem of the child.”
{¶37} As noted by the court in In re A.V., 4th Dist. No. No. 08CA31, 2009-Ohio-
886, “[t]hus, R.C. 2151.28(B)(1) requires a trial court to determine whether there are any
‘appropriate’ relatives of an abused, neglected, or dependent child who are willing to be
temporary custodians until the time of the dispositional hearing. Moreover, if there is a
Tuscarawas County App. Case No. 2012 AP 10 0062 9
willing relative, the child would otherwise remain in shelter care, and the appointment is
appropriate, the court is required to appoint a relative. R.C. 2151.28(B)(1). However, if
the court determines that placement with a relative would not be appropriate, the court
must issue a written opinion setting forth the reasons for its determination. Id.” Id at ¶ 7.
{¶38} At the September 19, 2012 hearing, the Guardian ad Litem asked that
both children remain in the agency’s temporary custody. He indicated that they were
sending out two interstate home studies to West Virginia, where relatives were located,
and that “[w]e have two relatives interested in the youngest child.” Transcript at 15.
Thus, there were no appropriate relatives for placement at such time. The trial court,
therefore, did not violate R.C. 2151.28(B)(1).
{¶39} Appellant also asserts that the trial court failed to comply with R.C.
2151.28(L) when issuing its decision.
{¶40} R.C. 2151.28(L) provides:
{¶41} “(L) If the court, at an adjudicatory hearing held pursuant to division (A) of
this section upon a complaint alleging that a child is an abused, neglected, dependent,
delinquent, or unruly child or a juvenile traffic offender, determines that the child is a
dependent child, the court shall incorporate that determination into written findings of
fact and conclusions of law and enter those findings of fact and conclusions of law in the
record of the case. The court shall include in those findings of fact and conclusions of
law specific findings as to the existence of any danger to the child and any underlying
family problems that are the basis for the court's determination that the child is a
dependent child.”
Tuscarawas County App. Case No. 2012 AP 10 0062 10
{¶42} In the case sub judice, the trial court found the children to be neglected
and dependent children. As noted by appellee, there is no requirement in the above
statute that the trial court include the specific findings upon which it based its
determination that the children were neglected, as opposed to dependent, children.
Moreover, as is stated above, the mother stipulated to the amended complaint and the
trial court accepted her stipulation. Thus, the trial court accepted the facts as set forth
paragraphs two through five of the same.
{¶43} Appellant’s second assignment of error is, therefore, overruled.
III
{¶44} Appellant, in his third and final assignment of error, argues that the trial
court violated numerous provisions in Revised Code Chapter 2151.
{¶45} Appellant initially contends that there was insufficient evidence
establishing that the children were neglected and/or dependent. However, as is stated
above, the children’s mother stipulated to the facts in the amended complaint and,
based upon such stipulation and the testimony of Crystal Lawless, the trial court found
the children to be neglected and dependent.
{¶46} Appellant also seems to argue that the Newcomerstown Police illegally
placed the children with a neighbor. Appellant notes that, at the August 20 2012
hearing, Jaime Grunder testified that the police called the agency around 1:00 a.m. on
Sunday morning, August 19, 2012, that one of the children was already at a friend’s
house, and that “they just agreed to keep him. Keep the children until Monday morning.”
T. at 7. Grunder further testified that the agency had gone and secured custody of the
Tuscarawas County App. Case No. 2012 AP 10 0062 11
children on the date of the hearing. There is nothing in the record establishing that the
agency or police did anything illegal.
{¶47} Appellant next contends that Grunder committed perjury based on the
allegation of abuse in the complaint. There is nothing in the record supporting his
assertion. Moreover, the allegation of abuse was dismissed.
{¶48} Finally, appellant, as noted by appellee, refers to sections regarding
written findings of fact regarding a reasonable efforts determination. Appellant,
however, does not indicate if, and how, he believes that such sections were violated.
{¶49} Appellant’s third assignment of error is, therefore, overruled.
{¶50} Accordingly, the judgment of the Tuscarawas County Court of Common
Pleas, Juvenile Division, is affirmed.
By: Delaney, J.
Gwin, P.J. and
Hoffman, J. concur
______________________________
______________________________
______________________________
JUDGES
[Cite as In re J.H., 2013-Ohio-1423.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
J.H. AND J.H. :
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2012 AP 10 0062
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is
affirmed. Costs assessed to Appellant.
_________________________________
_________________________________
_________________________________
JUDGES