In re B.J.

[Cite as In re B.J., 2022-Ohio-3307.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
IN THE MATTER OF: :
B.J. AND W.J., : CASE NO. 22CA3991
Adjudicated Neglected/ :
Depe
nden
t
Chil
dren
.
DECI
SION
&
JUDG
MENT
ENTR
Y
:
________________________________________________________________
APPEARANCES:
George L. Davis, IV, Portsmouth, Ohio, for Appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, Jay S.
Willis, Assistant Scioto County Prosecuting Attorney,
Portsmouth, Ohio, for Appellee.
________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED:9-14-22
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas
Court, Juvenile Division, judgment that granted Scioto County
Children Services Board, appellee herein, temporary custody of
one-year-old B.J. and three-year-old W.J.
{¶2} The children’s biological parents, appellants herein,
raise the following assignment of error for review:
“THE TRIAL COURT PREJUDICIALLY ERRED BY
ADJUDICATING THE MINOR CHILDREN NEGLECTED
AND/OR DEPENDENT.”
{¶3} On November 16, 2021, appellee filed a complaint that
alleged three-year-old W.J. and ten-month-old B.J. are
“neglected/dependent children” under R.C.
2151.03(A)(2) and R.C. 2151.04(C). Appellee also requested an
ex parte order placing the children in its temporary custody.
To support its complaint, appellee submitted caseworker Miranda
Howard’s affidavit. Howard averred that on November 15, 2021,
the agency received a referral that involved B.J. The referral
indicated that mother brought B.J. to the emergency room, but
she then “took him and fled into the woods.” Hospital security
personnel located the mother and returned her and the child to
the emergency room.
{¶4} Caseworker Howard later visited the hospital and
attempted to speak with mother, but she refused to provide much
information. The mother stated that she and the children’s
father had argued in a cabin at Shawnee State Park and, as a
result of this argument, she took B.J. and walked away. The
mother found a ride to the emergency room but fled the hospital
when she “became scared because ‘people with masks were making
noises at her and she does not want in the politics.’” Howard
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further explained that mother became combative --- mother tried
to fight a nurse and bit a security officer. Medical personnel
restrained the mother and drew blood for an alcohol
concentration test. The test revealed a .225 BAC.
{¶5} Later, sheriff deputies located father and W.J. and
brought them to the hospital. The father stated that the
family’s vehicle had broken down and he attempted to take B.J.
from mother. The father claimed that mother told the father
“not to touch her or the child because she did not trust him.”
The father started to walk to the cabin and thought mother
followed him. When he returned to the cabin, he placed W.J. in
bed.
{¶6} Based upon the foregoing allegations, the trial court
awarded appellee temporary emergency custody of the children.
At a probable-cause hearing, the court continued the children in
appellee’s temporary custody.
{¶7} At the January 24, 2022 adjudication hearing, Joyce
Ann Nixon testified that, late in the evening of November 15,
2022 she was driving to West Union and noticed a person (mother)
standing in the opposite lane of travel. When mother waved her
arms and yelled for help, Nixon stopped and asked what she
needed. The mother told Nixon that she was lost. Nixon noted
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that mother carried a baby and, because of the cold temperature,
Nixon told the mother to enter the vehicle.
{¶8} When the mother entered Nixon’s vehicle, she said she
needed to make a phone call. Nixon, however, informed mother
that the area did not have cell phone service and mother would
need to go to “CCC Camp” to make a call.
{¶9} As Nixon drove, she noticed that mother smelled of
alcohol. The mother also informed Nixon that the baby was ill.
Nixon eventually decided to take the mother and baby to the
hospital.
{¶10} When they arrived at a stop sign near the hospital,
the mother “jumped up and took off running with the baby and had
the baby by the arm * * * like you would carry a doll.” Nixon
called security and told the officers that the mother needed
help.
{¶11} Southern Ohio Medical Center (SOMC) Security Officer
Wendell Sorrell stated that he located mother and baby after
mother departed the hospital and when law enforcement officers
looked for her. Sorrell found her lying on the ground with the
child in her arms. He kept watch over the mother until other
hospital personnel convinced the mother to return to the
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hospital.
{¶12} Officer Sorrell indicated that the mother seemed
argumentative with hospital staff, that she slurred her words,
and he believed she was either drug or alcohol impaired.
Sorrell also thought that mother did not hold the baby in a
careful manner and he “kept waiting for her to drop the child.”
Sorrell further explained that he helped restrain the mother so
medical staff could draw blood. He further stated that while he
restrained the mother’s arm, she bit him.
{¶13} SOMC Security Officer Jeff Duduit testified that while
in a hospital room with mother and baby, he “was greatly
concerned that [the mother] was going to drop the infant because
she wasn’t supporting the head and was holding it [in] a
dangerous manner.” Duduit also detected an odor of alcohol and
he remained concerned throughout his encounter that mother would
drop the baby. A doctor eventually ordered security officers to
remove the baby from the mother.
{¶14} Officer Duduit also explained that, when medical
personnel tried to ask mother a question, she would not answer
and instead “talk[ed] about things that weren’t related to” the
reason for her and the child’s presence at the hospital.
{¶15} Portsmouth City Police Officer Timothy Penley stated
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that he responded to the hospital around 10:30 p.m. on November
15, 2021. Penley explained that he spoke with father when he
arrived at the hospital. Penley reported that father informed
him that when the family’s vehicle had broken down, they started
to walk to their destination.
{¶16} The father further advised Officer Penley that he
thought mother and baby followed him, but later learned they did
not. The father stated that he continued to walk with W.J. and
returned to their Shawnee Park cabin. He informed Penley that
mother had been drinking a little, but he was not concerned
about her condition.
{¶17} Portsmouth City Police Patrolman John Dixon stated
that he arrived at the hospital around the same time as Officer
Penley. When Patrolman Dixon spoke with mother, he noted that
the mother appeared to be intoxicated and he had concerns that
baby would fall from her arms.
{¶18} The mother informed Patrolman Dixon that the family
had gone to Shawnee Lodge to order food, but that the parents
had been arguing and their vehicle would not start. The mother
told Patrolman Dixon that the father and W.J. walked in one
direction and mother and baby walked in the other direction. The
mother advised Patrolman Dixon that she later flagged down Joyce
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Nixon’s vehicle and Nixon drove mother to the hospital.
{¶19} Appellee also presented testimony from other hospital
personnel and all related concern for the child’s well-being due
to mother’s behaviors.
{¶20} Scioto County Children Services Caseworker Emma
Coldiron testified that she visited the hospital in response to
a referral the agency had received. Coldiron stated that she
heard father explain that he and mother had argued after their
vehicle became disabled and father tried to take the baby but
mother resisted. The father indicated that he and W.J. started
to walk toward their cabin and he thought that mother followed
him.
{¶21} The father explained that, when he arrived at the
cabin and realized that mother did not follow him, he placed
W.J. in bed and remained in the cabin. The father did not
suggest that he made any effort to locate the mother and the
baby. He related that although he had no access to a phone or a
vehicle, he had no concern and “figured [the mother had] found
somewhere to go.” The father did acknowledge that mother had
approximately four drinks during dinner. He did not believe,
however, that she was intoxicated at the time of their argument.
{¶22} The trial court asked Caseworker Coldiron to explain
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her reasoning for deciding to take emergency custody of the
children rather than letting the father take them home, and she
stated that the mother “was highly intoxicated,” “her behavior
was erratic,” and “she had taken off with her child [who was]
under the age of one.” Coldiron further indicated that mother
“had [a] history with alcoholism and had several other children
removed from her care.”
{¶23} After appellants’ counsel objected to Caseworker
Coldiron’s statement regarding the mother’s history, the trial
court asked Coldiron to explain how she knew about mother’s
history of alcoholism and that she had other children removed
from her care. Coldiron stated that she searched “SACWIS,” a
state database that contains information about child welfare,1
and discovered that mother had an alcohol problem and had
“several” other children removed from her care. The search
results also indicated that the mother had been “uncooperative
with several other agencies.”
{¶24} Caseworker Coldiron did clarify that the children
removed from mother’s care had a different biological father
than the father involved in the case at bar. She stated,
1 The acronym, “SACWIS,” stands for Statewide Automated Child
Welfare Information System.
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however, that she “had concerns that [the father] had not
attempted in any way to locate” the mother and the baby.
Coldiron further relayed the following additional concerns: (1)
father did not realize mother and baby had not followed him to
the cabin; (2) father did not discover them missing until he
returned to the cabin; (3) father did not recognize mother’s
serious intoxication; (4) father also appeared to minimize
mother’s level of intoxication displayed during her hospital
encounter; and (5) when father arrived at the hospital at 4:00
a.m., “he did not appear to be concerned that she was
intoxicated with his child.” After Coldiron’s testimony,
appellee finished presenting its case.
{¶25} Appellants called Scioto County Sheriff’s Deputy Brian
Nolan to testify. Nolan explained that he had been assigned the
task of locating the father. Nolan stated that when he learned
that the family had been staying at cabins at Shawnee Lodge, he
visited the lodge to ask which cabin had been registered to the
family. He discovered, however, that the family had not
registered to stay in one of the cabins.
{¶26} Deputy Nolan related that he started to drive around
the area where cabins are located to attempt to find the cabin
where the family had been staying. Nolan indicated that around
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1:30 a.m. or 2:00 a.m., he noticed a baby stroller outside a
cabin and no vehicle nearby. The deputy thus decided to knock
on the door to determine if the father and W.J. were inside.
{¶27} Deputy Nolan reported that, after he knocked on the
door, the father responded and opened the door. Nolan did not
observe any sign of impairment or inebriation, but instead
described father as “[n]ormal.” Nolan indicated that he also
checked on W.J. and found her asleep in bed. The deputy looked
around the cabin and found it to be “normal” with “[n]othing out
of the ordinary.”
{¶28} On cross-examination, Deputy Nolan stated that the
walk from the family’s disabled vehicle to the cabin would have
taken at least 20 to 30 minutes. When appellee’s attorney asked
the deputy whether the father noticed at any point during his
walk that mother and the baby did not follow him, Nolan
responded that father informed the deputy that the father
thought “she would show up but she never did.”
{¶29} The father testified and explained that, on the
evening of November 15, 2021, the family had dinner at the lodge
and after dinner, they left in their vehicle to return to their
cabin. The father related that as they drove down the hill away
from the lodge, their truck stopped. He explained that he put
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the vehicle in neutral and coasted to the bottom of the hill
where he parked (in?) a lot and tried to restart the vehicle.
He could not restart the vehicle, however.
{¶30} The father advised the court that, at that point, he
and mother had two choices: “sit in the middle of an empty
parking lot all night or go back to the cabin on foot.” He
indicated that they decided to walk back to the cabin. The
father reported that he started to walk toward the cabin while
carrying W.J. and he thought the mother followed him. He
noticed that she may not be “right behind” him, but he thought
she would return to the cabin. He asked himself, “where else
was she going to go besides back to our cabin?”
{¶31} The father explained that after he returned to the
cabin, he placed W.J. in bed and waited for mother and baby to
arrive. When they did not arrive, father explained he “didn’t
know what else to do.” He thought that by the morning,
“somebody would be making rounds that could [give him] a ride”
so he could go to the family’s residence to obtain their other
vehicle.
{¶32} The father indicated that when Deputy Nolan arrived,
the father is “pretty sure” that he asked Nolan for a ride to
the hospital. The father further reflected, however, and
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thought that if the deputy drove him to the hospital, the family
would be stranded at the hospital. The father stated that he
thus asked the deputy to drive him to the residence where the
family’s other car was located.
{¶33} When the father arrived at the hospital, the
caseworker “wanted to know why [the father] didn’t have any
concern for [his] children.” The father reported that he “tried
to explain at the time that [he] had absolutely no way to go
anywhere,” “no way to leave,” and “no way to contact anybody.”
He stated: “If my kids’ lives depended on it, I couldn’t have
been there.” The father additionally revealed that he became
upset to learn that he would not be able to take the children
home. He testified that the family has a home and that he and
mother meet all of the children’s basic needs. He further
explained that neither of the children had injuries and both
appeared to be fine.
{¶34} On cross-examination, the father stated that he and
the children’s mother have been married for about two-and-one-
half years. He is employed, works from 5:00 a.m. to 3:30 p.m.
during the week, and mother stays home to care for the children.
Although the father agreed that he knew that previously mother
had children removed from her care and that she had issues with
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alcohol abuse, he does not believe that mother has an ongoing
alcohol abuse issue.
{¶35} When appellee’s counsel asked the father about the
events that occurred on November 15, 2021, the father stated
that he did not believe that the mother appeared “unsteady on
her feet” and did not slur her words, and he did not consider
her to be “unsafe” or “impaired.” The father related that if he
had believed that mother was “unsafe” or “impaired, he “wouldn’t
have let her take the baby.” The father did agree, however,
that the temperature that night hovered around 40 degrees
Fahrenheit and that he thus tried to walk quickly.
{¶36} The trial court asked the father whether he had a
flashlight in the vehicle that he could have used to help
illuminate the walk to the cabin. The father stated that he
normally keeps one in his console, but did not find it on the
night in question. The court asked whether he and mother had
cell phones, and he stated that they did not. The father also
agreed that he did not look behind to ensure that the mother and
the baby followed him and that he regrets that decision. He
explained that he had “assumed that she was following me.”
{¶37} The father believes that it took him approximately 20
minutes to walk to the cabin. He stated that none of the family
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members had been wearing a jacket because they did not plan to
be outside for any significant length of time. The father also
agreed with the court that the family could have walked to the
lodge and ask for help, but he explained that the walk is steep
and it would have been challenging. He thought that walking to
the cabin would be easier.
{¶38} On March 8, 2022, the trial court adjudicated the
children “negl[ected]/dependent” because the parents failed to
provide proper care for the children. After their car broke
down while driving away from Shawnee Lodge, the parents chose to
walk along a dark, curvy road on a cold night while the mother
was extremely intoxicated. The court determined that the
parents should have known that, given the remote location, cell
phone service would have been unavailable. The court
additionally pointed out that the parents could have walked to
the lodge, which had working telephones along with individuals
who could provide any needed help. The court further found that
the mother handled the baby in a dangerous and careless manner.
The court thus concluded that “the children were endangered by
their parents by their choices” and
the children are negligent/dependent [sic] as alleged in
the complaint because the children lacked adequate
parental care because of the fault of the child’s
parents; because the parents neglected to provide proper
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care necessary for the children’s well-being; because
the parents’ omissions threatened to harm the children;
because the children lacked adequate parental care
because of the intoxication of their mother and the poor
choices made by her and the father; because the
environment was such as to warrant the State, in the
interest of the child, to assume the child’s
guardianship.
The court subsequently entered a dispositional order that placed
the children in appellee’s temporary custody. This appeal
followed.
{¶39} In their sole assignment of error, appellants assert
that the trial court erred by adjudicating the children
neglected and/or dependent. In particular, they contend that
appellee failed to present clear and convincing evidence to show
that the children are neglected or dependent. Appellants claim
that the court based its decision upon “one bad night” and that
the court failed to consider appellants’ overall care of the
children. Appellants assert that neither child suffered harm
and they received proper care. They further note that appellee
failed to present any evidence regarding the conditions of the
family’s home and that appellee relied solely upon the conduct
that occurred during “a weekend family outing.”
A
{¶40} Generally, a reviewing court will not disturb a trial
court’s abuse, neglect, or dependency adjudication unless the
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decision is against the manifest weight of the evidence. In re
W.M., 6th Dist. Lucas No. {48}L-22-1016, 2022-Ohio-1978, ¶ 38;
In re M.H., 9th Dist. Wayne No. 09CA0028, 2009-Ohio-6911, ¶ 14;
see In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶
27 (applying manifest-weight-of-the-evidence standard in the
permanent-custody context).
“Weight of the evidence concerns ‘the inclination
of the greater amount of credible evidence, offered in
a trial, to support one side of the issue rather than
the other. It indicates clearly to the jury that the
party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics,
but depends on its effect in inducing belief.’”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594
(6th Ed.1990).
{¶41} When an appellate court reviews whether a trial
court’s decision is against the manifest weight of the evidence,
the court
“‘weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such
a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered.’”
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Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103,
115, 750 N.E.2d 176 (9th Dist.2001), quoting Thompkins, 78 Ohio
St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983); accord In re Pittman, 9th Dist.
Summit No. 20894, 2002-Ohio-2208, ¶¶ 23-24. We further observe,
however, that issues that relate to the credibility of witnesses
and the weight to be given the evidence are primarily for the
trier of fact. As the court explained in Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984):
The underlying rationale of giving deference to the
findings of the trial court rests with the knowledge
that the trial judge is best able to view the witnesses
and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the
credibility of the proffered testimony.
{¶42} Moreover, deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may
be much evident in the parties’ demeanor and attitude that does
not translate to the record well (Emphasis sic).” Davis v.
Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997);
accord In re Christian, 4th Dist. No. 04CA10, 2004-Ohio-3146, ¶
7.
{¶43} The question that an appellate court must resolve when
reviewing an abuse, neglect, or dependency adjudication under
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the manifest-weight-of-the-evidence standard is “whether the
juvenile court’s findings * * * were supported by clear and
convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-
Ohio-4825, 895 N.E.2d 809, ¶ 43; accord R.C. 2151.35(A)(1) (at
an adjudicatory hearing court must determine, by clear and
convincing evidence, whether child is abused, neglected, or
dependent). “Clear and convincing evidence” is:
the measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as
to the allegations sought to be established. It is
intermediate, being more than a mere preponderance, but
not to the extent of such certainty as required beyond
a reasonable doubt as in criminal cases. It does not
mean clear and unequivocal.
In re Estate of Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23(1986). In determining whether a trial court based its decision
upon clear and convincing evidence, “a reviewing court will
examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of
proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d
613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954) (“Once the clear and convincing standard has
been met to the satisfaction of the [trial] court, the reviewing
court must examine the record and determine if the trier of fact
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had sufficient evidence before it to satisfy this burden of
proof.”); In re Adoption of Lay, 25 Ohio St.3d 41, 42-43, 495
N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163,
165, 492 N.E.2d 140 (1986) (whether a fact has been “proven by
clear and convincing evidence in a particular case is a
determination for the [trial] court and will not be disturbed on
appeal unless such determination is against the manifest weight
of the evidence”).
{¶44} Thus, if a children services agency presented
competent and credible evidence upon which the trier of fact
reasonably could have formed a firm belief that the child at
issue is abused, neglected, or dependent, the court’s decision
is not against the manifest weight of the evidence. In re B.S.,
6th Dist. Erie No. E-19-052, 2020-Ohio-6775, ¶ 62 (applying
manifest-weight-of-the-evidence standard in abuse, neglect, and
dependency context); see In re R.M., 2013-Ohio-3588, 997 N.E.2d
169, ¶ 62 (4th Dist.) (discussing manifest-weight-of-the-
evidence standard in the permanent-custody context).
{¶45} Once a reviewing court finishes its examination, the
judgment may be reversed only if it appears that the factfinder,
when resolving the conflicts in evidence, “‘clearly lost its way
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and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial ordered.’”
Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A
reviewing court should find a trial court’s abuse, neglect, or
dependency decision against the manifest weight of the evidence
only in the “‘exceptional case in which the evidence weighs
heavily against the [decision].’” Id., quoting Martin, 20 Ohio
App.3d at 175; accord State v. Lindsey, 87 Ohio St.3d 479, 483,
721 N.E.2d 995 (2000).
B
{¶46} We recognize that “parents’ interest in the care,
custody, and control of their children ‘is perhaps the oldest of
the fundamental liberty interests recognized by th[e United
States Supreme] Court.’” In re B.C., 141 Ohio St.3d 55, 2014-
Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530
U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the
right to raise one’s “child is an ‘essential’ and ‘basic’ civil
right.” In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680(1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982) (“natural parents have a fundamental
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right to the care and custody of their children”). Thus,
“parents who are ‘suitable’ have a ‘paramount’ right to the
custody of their children.” B.C. at ¶ 19, quoting In re
Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing
Clark v. Bayer, 32 Ohio St. 299, 310 (1877); Murray, 52 Ohio
St.3d at 157.
{¶47} A parent’s rights, however, are not absolute. In re
D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11.
“The constitutional right to raise one’s children does not
include a right to abuse, exploit, or neglect them, nor is there
a right to permit others to do so.” In re K.H., 119 Ohio St.3d
538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 40. Consequently, “‘the
natural rights of a parent * * * are always subject to the
ultimate welfare of the child, which is the polestar or
controlling principle to be observed.’” In re Cunningham, 59
Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re
R.J.C., 300 So.2d 54, 58 (Fla. App. 1974). Thus, the State may
intervene when a child’s best interest demands intervention.
D.A. at ¶ 11; In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 28, citing R.C. 2151.01 (“government has broad
authority to intervene to protect children from abuse and
neglect”). See generally In re Z.R., 144 Ohio St.3d 380, 2015-
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Ohio-3306, 44 N.E.3d 239, ¶ 20, quoting In re T.R., 52 Ohio
St.3d at 15, 556 N.E.2d 439 (noting that “‘[t]he mission of the
juvenile court is to act as an insurer of the welfare of
children and a provider of social and rehabilitative
services’”).
{¶48} To that end, R.C. 2151.27(A)(1) and (C) authorize a
children services agency to file a complaint requesting
temporary or permanent custody of a child alleged to be abused,
neglected, or dependent. After an abuse, neglect, or dependency
complaint is filed, R.C. 2151.28(A) requires the court to
schedule an adjudicatory hearing. At an adjudicatory hearing,
if a court determines, by clear and convincing evidence, that a
child is abused, neglected, or dependent, the court then must
schedule a dispositional hearing and order a disposition
authorized under R.C. 2151.353(A).2 If, however, the court
2 R.C. 2151.353(A) permits trial courts to enter the following
dispositional orders for adjudicated abused, neglected, or
dependent children:
(1) Place the child in protective supervision;
(2) Commit the child to the temporary custody of
any of the following:
(a) A public children services agency;
(b) A private child placing agency;
(c) Either parent;
(d) A relative residing within or outside the
state;
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concludes that the allegations in the complaint have not been
established by clear and convincing evidence, the court must
dismiss the complaint. R.C. 2151.35(A)(1); Juv.R. 29(F)(1).
{¶49} In the case sub judice, the trial court determined
(e) A probation officer for placement in a
certified foster home;
(f) Any other person approved by the court.
(3) Award legal custody of the child to either
parent or to any other person who, prior to the
dispositional hearing, files a motion requesting legal
custody of the child or is identified as a proposed legal
custodian in a complaint or motion filed prior to the
dispositional hearing by any party to the proceedings.
* * *
* * * *
(4) Commit the child to the permanent custody of a
public children services agency or private child placing
agency, if the court determines in accordance with
division (E) of section 2151.414 of the Revised Code
that the child cannot be placed with one of the child's
parents within a reasonable time or should not be placed
with either parent and determines in accordance with
division (D)(1) of section 2151.414 of the Revised Code
that the permanent commitment is in the best interest of
the child. * * * *
(5) Place the child in a planned permanent living
arrangement with a public children services agency or
private child placing agency * * *
* * * *
(6) Order the removal from the child’s home until
further order of the court of the person who committed
abuse as described in section 2151.031 of the Revised
Code against the child, who caused or allowed the child
to suffer neglect as described in section 2151.03 of the
Revised Code, or who is the parent, guardian, or
custodian of a child who is adjudicated a dependent child
and order any person not to have contact with the child
or the child’s siblings.
24
SCIOTO, 22CA3991
that the children are “negl[ected]/dependent” and placed them in
appellee’s temporary custody. Appellants contend that the trial
court’s neglected and/or dependency finding is against the
manifest weight of the evidence.
{¶50} For ease of discussion, we first consider appellants’
assertion that the trial court’s dependency adjudication is
against the manifest weight of the evidence.3
C
{¶51} R.C. 2151.04(C) defines a dependent child as “any
child * * * [w]hose condition or environment is such as to
warrant the state, in the interests of the child, in assuming
the child’s guardianship.” A dependency inquiry under R.C.
2151.04(C) “focuses exclusively on the child’s situation to
determine whether the child is without proper (or adequate) care
or support.” In re Riddle, 79 Ohio St.3d 259, 262, 680 N.E.2d
1227, 1230 (1997). Thus, parental “faults or habits” are not at
3 As we explain infra, the trial court needed to find that the
children are neglected or dependent, not that the children are
neglected and dependent. See R.C. 2151.35(A) (emphasis added)
(if court finds child is “an abused, neglected, or dependent
child,” the court may proceed to disposition); In re Riddle, 79
Ohio St.3d 259, 262, 680 N.E.2d 1227 (1997) (“recogniz[ing] a
distinction between” a dependency allegation and a neglect
allegation).
25
SCIOTO, 22CA3991
issue in a dependency case. Id. at 263. A court may, however
consider a parent’s conduct if the conduct adversely affects the
child’s condition or environment. In re Burrell, 58 Ohio St.2d
37, 39, 388 N.E.2d 738 (1979) (parental “conduct is only
significant if it can be demonstrated to have an adverse impact
upon the child sufficiently to warrant state intervention”);
accord In re D.W., 4th Dist. Athens No. 06CA42, 2007-Ohio-2552,
¶ 20.
{¶52} Furthermore, a trial court need not find that a child
has suffered “actual harm” in order to adjudicate a child
dependent. In re Y.R., 12th Dist. Warren No. CA2020-09-057,
2021-Ohio-1858, ¶ 60. Instead, circumstances that suggest a
child’s condition or environment poses “a legitimate risk of
harm may suffice to support a dependency adjudication under R.C.
2151.04(C).” 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 (upholding
dependency adjudication when father sexually abused sibling);
accord Burrell, 58 Ohio St.2d at 39 (state failed to present
sufficient evidence that parental conduct had “a present or
potential detrimental impact”); In re K.R., 9th Dist. Summit No.
26
SCIOTO, 22CA3991
29815, 2021-Ohio-495, ¶ 29 and 36 (evidence supported dependency
adjudication when sibling died under suspicious circumstances,
even though no safety hazards observed in the home and
adjudicated dependent child “was not malnourished, was of the
appropriate weight and height for his age, had no bruises, and
did not exhibit any physical or mental health issues”); In re
C.T., 6th Dist. Sandusky No. S-18-005, 2018-Ohio-3823, ¶ 61
(evidence supported dependency finding when mother’s drug use,
failure to address substance abuse, and overdose created an
environment inappropriate for child.). Additionally, “simply
because a child’s physical needs are being met and a home is
clean does not preclude a juvenile court from finding a child
dependent.” In re Y.R., 12th Dist. Warren No. CA2020-09-057,
2021-Ohio-1858, ¶ 59, citing In re L.H., 12th Dist. Warren Nos.
CA2018-09-106, and CA2018-09-109, CA2018-09-110, CA2018-09-111,
2019-Ohio-2383, ¶ 47 (affirming dependency finding when agency
had no concerns with home condition and cleanliness, but
children exposed to marijuana use in the home).
{¶53} We further note that courts must “liberally” interpret
and construe R.C. 2151.04(C) to comport with the overall purpose
of R.C. Chapter 2151:
To provide for the care, protection, and mental and
physical development of children subject to Chapter
27
SCIOTO, 22CA3991
2151. of the Revised Code, whenever possible, in a family
environment, separating the child from the child’s
parents only when necessary for the child’s welfare or
in the interests of public safety[.]
R.C. 2151.01(A); accord In re M.W., 12th Dist. Warren No.
CA2020-03-018, 2021-Ohio-1129, ¶ 13, citing L.H. at ¶ 41 (“R.C.
2151.04(C) is to be applied broadly to protect a child’s health,
safety, and welfare.”).
{¶54} In the case before us, after our review we do not
believe that the trial court’s dependency adjudication is
against the manifest weight of the evidence.4 Instead, we
believe that the record contains ample clear and convincing
evidence to support the trial court’s finding that the
children’s “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 particular, appellee
4 R.C. 2151.28(L) requires trial courts that find a child to be a
dependent child to
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.
28
SCIOTO, 22CA3991
presented evidence that in mid-November 2021, the parents took
their young children to stay (as unregistered guests) at a
Shawnee State Park cabin, then the family left the cabin,
without wearing any jackets or having cell phones, and drove to
dinner at Shawnee Lodge. The mother apparently consumed
alcoholic beverages during dinner and, after dinner, the family
returned to their vehicle and began to return to their cabin.
Along the way, the vehicle stopped, the father parked the
vehicle, and the parents decided they would not walk to the
lodge where they could ask for assistance, but instead decided
to walk to their cabin with their two young children, even
though no one had an appropriate coat or other covering for
walking about one mile on a chilly November evening. Moreover,
the parents made this decision with the knowledge that they did
not have cell phones or any way to illuminate their walk along
the dark roadway. Additionally, the father did not ensure that
the mother and the baby followed him to the cabin. Instead, the
mother walked a different route and flagged down a passing
motorist, Joyce Ann Nixon, to ask for a ride. By this point,
the mother was visibly intoxicated. Nixon drove mother and baby
to the hospital and mother continued to display obvious signs of
intoxication, as well as other erratic behavior. Medical
29
SCIOTO, 22CA3991
personnel also had concerns that mother did not hold the baby
with adequate support and would drop the baby.
{¶55} Meanwhile, the father returned to the family’s cabin
with the three-year-old child, but failed to realize that mother
had not walked behind him until he returned to the cabin and
discovered that she and the baby were not nearby. The father,
for the entirety of the approximately 30-minute walk to the
cabin, did not look to ensure that the rest of his family was
safely following behind.
{¶56} Eventually, a sheriff’s deputy located father and took
him to the hospital. When father arrived at the hospital, he
did not appear to be overly concerned about mother’s state, or
her ability to care for the baby while in that state. The
father asserted that he did not believe that the mother was
intoxicated. However, every other person who observed mother
with the baby that evening believed the mother’s intoxication to
be obvious and her handling of the baby to be dangerous.
Furthermore, mother had a .225 blood-alcohol concentration,
which is almost triple the legal driving limit. See R.C.
4511.19(A)(1)(b).
{¶57} Additionally, the agency caseworker testified that she
searched the state database that contained child-welfare records
30
SCIOTO, 22CA3991
and learned that mother has an alcohol problem and she
previously had other children removed from her care. See In re
Matsko, 11th Dist. Lake No. 2006-L-230, 2007-Ohio-2060, ¶ 29
(“[w]hile incidents of intoxication by a parent may be
insufficient to establish her children’s dependency, evidence of
untreated alcoholism or drug addiction can”); In re Nicholas P.,
169 Ohio App.3d 570, 2006-Ohio-6213, 863 N.E.2d 1102, ¶ 17 (6th
Dist.) (“[i]f a parent has ever had a child involuntarily
removed, a subsequently born child may be automatically deemed
‘dependent’ from birth”). The evidence adduced at the hearing
also showed that father works around eight hours per day and,
during this time, the children are in mother’s care.
{¶58} Based upon the totality of the clear and convincing
evidence presented at the hearings in the case sub judice, we
believe that the trial court could have properly formed a firm
conviction that the children are dependent. Even though most of
the evidence concerned the events that occurred during a single
night in November 2021, the events from that night reflect that
the parents exhibited poor decision-making skills and placed
their children at risk. Moreover, given the parents’ poor
decision-making skills and the mother’s obvious signs of
intoxication (coupled with history of alcohol abuse and other
31
SCIOTO, 22CA3991
children’s removal from her care), the trial court justifiably
could have concluded that the parents’ conduct adversely affects
the children’s condition or environment. If the father did not
believe that the mother was intoxicated during that one November
night, in view of the fact that all of the other witnesses who
observed the mother that night testified that she obviously was
intoxicated and handled the baby in a dangerous method, then the
court could have decided that the father would be unable to
recognize future dangers that the mother’s conduct posed to the
children.
{¶59} Moreover, even though most of the evidence adduced at
the hearing related to one particular evening, as we frequently
have remarked: “‘[T]he child does not first have to be put into
a particular environment before a court can determine that [the]
environment is unhealthy or unsafe. * * * The unfitness of a
parent, guardian or custodian can be predicted by past
history.’” In re Burchfield, 51 Ohio App.3d 148, 156-57, 555
N.E.2d 325 (4th Dist.1988), quoting In re Bishop, 36 Ohio App.3d
123, 126, 521 N.E.2d 838 (5th Dist.1987) (citations omitted).
{¶60} In the case at bar, (1) the mother’s history of
alcohol abuse and having children removed from her care, and (2)
the father’s failure to recognize the mother’s level of
32
SCIOTO, 22CA3991
intoxication before he let her walk alone, at night on a dark
road and with his ten-month-old child, indicate that the
children’s welfare would be at risk if the court did not
adjudicate the children dependent, and thereby, permit appellee
to intervene.
{¶61} Furthermore, courts have recognized that:
“‘*** [A] child should not have to endure the inevitable
to its great detriment and harm in order to give the
[parent] an opportunity to prove her suitability. To
anticipate the future, however, is at most, a difficult
basis for a judicial determination. The child’s present
condition and environment is the subject for decision
not the expected or anticipated behavior of
unsuitability or unfitness of the [parent]. * * * The
law does not require the court to experiment with the
child’s welfare to see if he will suffer great detriment
or harm.’”
Bishop, 36 Ohio App.3d at 126, quoting In re East, 32 Ohio Misc.
65, 69, 288 N.E.2d 343 (C.P.1972).
{¶62} Consequently, after our review of the evidence we do
not believe that the trial court’s decision to adjudicate the
children dependent – and thereby permit the state to intervene
in order to protect the children’s welfare – is against the
manifest weight of the evidence.
D
{¶63} Appellants also contend that the trial court’s neglect
adjudication is against the manifest weight of the evidence.
33
SCIOTO, 22CA3991
{¶64} We believe, however, that any error that the trial
court may have committed by adjudicating the children neglected
constitutes harmless error that we must disregard. Civ.R. 61
states that we must “disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.” An error affects a party’s substantial rights when
the error is prejudicial, i.e., the error affected the outcome
of the proceeding. E.g., State v. Jones, 160 Ohio St.3d 314,
2020-Ohio-3051, 156 N.E.3d 872, ¶ 18; State v. Butcher, 4th
Dist. Athens No. 15CA33, 2017-Ohio-1544, ¶ 48; accord Cappara v.
Schibley, 85 Ohio St.3d 403, 408, 709 N.E.2d 117 (1999)
(reviewing court must affirm if “the jury or other trier of the
facts would probably have made the same decision” absent the
error).
{¶65} In the case at bar, as we previously determined, the
evidence adequately supports a finding under R.C. 2151.04(C)
that the children are dependent. This finding alone authorized
the trial court to proceed to disposition. See R.C.
2151.35(A)(1) (listing abuse, neglect, or dependency as
independent alternatives and not requiring more than one finding
to authorize a trial court to proceed to disposition).
Consequently, any additional neglect adjudication is
34
SCIOTO, 22CA3991
superfluous. Moreover, we are unaware of any prejudicial
effects of a superfluous neglect adjudication. Therefore, any
error that the trial court may have made by adjudicating the
children neglected would be harmless error that we must
disregard. See R.C. 2501.02 (appellate courts review for
prejudicial error); Civ.R. 61 (courts “must disregard any error
or defect in the proceeding which does not affect the
substantial rights of the parties”); App.R. 12(B) (reviewing
court may reverse trial court’s judgment if it finds prejudicial
error).
{¶66} Accordingly, based upon the foregoing reasons, we
overrule appellants’ assignment of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
SCIOTO, 22CA3991
35
JUDGMENT ENTRY
It is ordered that the appeal be affirmed and that appellee
recover of appellants the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Scioto County Common Pleas Court, Juvenile
Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.