In re L.S.

[Cite as In re L.S., 2016-Ohio-4999.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
IN RE:
L.S., CASE NO. 14-15-05
ADJUDGED DEPENDENT CHILD.
OPINION
[JOEL SKAGGS - APPELLANT]
[ERICA SKAGGS - APPELLANT]
IN RE:
B.S., CASE NO. 14-15-06
ADJUDGED DEPENDENT CHILD.
OPINION
[JOEL SKAGGS - APPELLANT]
[ERICA SKAGGS - APPELLANT]
Appeals from Union County Common Pleas Court
Juvenile Division
Trial Court Nos. 21530003 and 21530004
Judgments Reversed and Causes Remanded
Date of Decision: July 18, 2016
APPEARANCES:
Christopher L. Trolinger for Appellant, Joel Skaggs
Robert C. Petty for Appellant, Erica Skaggs
Ashley L. Johns for Appellee
Case Nos. 14-15-05, 14-15-06
PRESTON, J.
{¶1} Appellants, Erica Skaggs (“Erica”) and Joel Skaggs (“Joel”), appeal
the April 17, 2015 judgment entries of disposition of the Union County Court of
Common Pleas, Juvenile Division. On appeal, Erica and Joel challenge the trial
court’s March 27, 2015 judgment entries adjudicating Erica and Joel’s children,
L.S. and B.S., dependent children under R.C. 2151.04(D). For the reasons that
follow, we reverse.
{¶2} On January 7, 2015, appellee, the Union County Department of Job
and Family Services (“Agency”), filed complaints alleging that L.S. and B.S. are
dependent children under R.C. 2151.04(C) and (D). (Case No. 21530003, Doc.
No. 1); (Case No. 21530004, Doc. No. 1). The complaints allege that Joel and
Erica are married and have two children, L.S. and B.S., together. (Id.); (Id.). Joel
is a stepfather to Erica’s other two children, S.L. and A.L. (Id.); (Id.). According
to the complaints, on November 15, 2014, the Agency “received a report of
domestic violence and sexual abuse.” (Id.); (Id.). The complaints allege that law
enforcement learned during their investigation that Joel “had been inappropriately
touching” S.L. (Id.); (Id.). According to the complaints, the Agency initially
“believed that Erica was appropriately protecting” the children because she
obtained an ex parte civil protection order on November 21, 2014, barring Joel
from having contact with Erica and the four children. (Id.); (Id.). The complaints
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allege, however, that Erica petitioned on December 23, 2014 to have the civil
protection order dismissed. (Id.); (Id.). The complaints continue, “[T]he Agency
has concerns about the safety of all the children in the presence of [Joel] based on
the history of domestic violence coupled with the sexual abuse of [S.L.].” (Id.);
(Id.).
{¶3} Also on January 7, 2015, the Agency filed motions for temporary
orders. (Case No. 21530003, Doc. No. 5); (Case No. 21530004, Doc. No. 5). The
trial court issued ex parte orders that day, ordering that Joel have no contact or
parenting time with L.S. and B.S. and that Joel vacate the residence. (Case No.
21530003, Doc. No. 13); (Case No. 21530004, Doc. No. 13). The next day, the
trial court issued temporary orders of shelter care, with the January 7, 2015 ex
parte orders remaining in effect. (Case No. 21530003, Doc. No. 18); (Case No.
21530004, Doc. No. 18). The trial court issued additional temporary orders on
February 4, 2015, granting temporary custody of S.L. to her father, Scott
Lippencott, ordering that Erica retain custody of L.S., B.S., and A.L., granting Joel
supervised visitation with L.S. and B.S., and granting the Agency temporary
protective supervision of all four children. (Case No. 21530003, Doc. No. 65);
(Case No. 21530004, Doc. No. 65).
{¶4} On March 18, 2015, Joel filed motions to dismiss the complaints.
(Case No. 21530003, Doc. No. 173); (Case No. 21530004, Doc. No. 171). In
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those motions, Joel argued, in part, that R.C. 2151.04(D) is not applicable because
no child was adjudicated an abused child at the time the complaints were filed.
(Id.); (Id.).
{¶5} On March 25, 2015, the trial court held an adjudicatory hearing.
(Mar. 25, 2015 Tr. at 4). (See also Case No. 21530003, Doc. No. 246); (Case No.
21530004, Doc. No. 242). Before hearing evidence, the trial court overruled
Joel’s motions to dismiss the complaints. (Mar. 25, 2015 Tr. at 14-15). (See also
Case No. 21530003, Doc. No. 246); (Case No. 21530004, Doc. No. 242). Also
before the presentation of evidence, the State moved to amend the complaints to
remove R.C. 2151.04(C) as an alleged ground for dependency. (Mar. 25, 2015 Tr.
at 28). (See also Case No. 21530003, Doc. No. 246); (Case No. 21530004, Doc.
No. 242). The trial court granted the Agency’s motion, leaving R.C. 2151.04(D)
as the only alleged ground for dependency in the complaints. (Mar. 25, 2015 Tr.
at 28). (See also Case No. 21530003, Doc. No. 246); (Case No. 21530004, Doc.
No. 242). At the conclusion of the hearing, the trial court adjudicated L.S. and
B.S. dependent children under R.C. 2151.04(D). (Mar. 25, 2015 Tr. at 182). (See
also Case No. 21530003, Doc. No. 246); (Case No. 21530004, Doc. No. 242).
Two days after the adjudicatory hearing, the trial court filed its judgment entries
reflecting those adjudications and the trial court’s decisions denying Joel’s
motions to dismiss and granting the Agency’s oral motion to amend the
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complaints. (Case No. 21530003, Doc. No. 246); (Case No. 21530004, Doc. No.
242).
{¶6} The trial court held a dispositional hearing on April 10, 2015. (Apr.
10, 2015 Tr. at 5). (See also Case No. 21530003, Doc. No. 258); (Case No.
21530004, Doc. No. 254). At the conclusion of the dispositional hearing, the trial
court ordered that L.S. and B.S. remain in the custody of Erica, with the Agency
retaining protective supervision and Joel continuing to have supervised visitation.
(Apr. 10, 2015 Tr. at 58-59). (See also Case No. 21530003, Doc. No. 258); (Case
No. 21530004, Doc. No. 254). A week after the dispositional hearing, the trial
court filed its judgment entries reflecting the dispositions. (See also Case No.
21530003, Doc. No. 258); (Case No. 21530004, Doc. No. 254).
{¶7} On April 24, 2015, Joel filed his notices of appeal. Erica filed her
notices of appeal on May 4, 2015.
{¶8} Erica raises nine assignments of error. Joel raises fourteen
assignments of error, the first eight of which are identical to Erica’s first eight
assignments of error. Erica’s ninth assignment of error and Joel’s fourteenth
assignment of error are identical. Joel’s ninth through thirteenth assignments of
error are unique to his brief. Because they are dispositive, we address only Joel’s
first assignment of error and Erica’s second assignment of error. To begin, we
will address Joel’s first assignment of error.
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Joel’s Assignment of Error No. I
The Trial Court Erred in Failing to Dismiss the Complaint of
Dependency as R.C. § 2151.04(D) is Not Applicable to the Case
at Bar as No Child Had Been Adjudicated an Abused Child at
the Time the Complaint was Filed.
{¶9} In his first assignment of error, Joel argues that the trial court erred by
denying his motions to dismiss the complaints as to R.C. 2151.04(D) because R.C.
2151.04(D) was not a proper ground on which to allege that L.S. and B.S. are
dependent children.1 Specifically, Joel argues, as he did before the trial court, that
“the determination as to whether a child is dependent must be made as of the date
alleged in the complaint, not as of the date of the adjudicatory hearing.” (Joel’s
Brief at 7). Joel argues that, because no basis for R.C. 2151.04(D) dependency
existed at the time the complaints were filed, the trial court should have dismissed
the complaints as to that ground.
{¶10} Joel filed his motions to dismiss under Juv.R. 22, which allows a
party to raise defenses or objections based on defects in the complaint. See In re
G.E.S., 9th Dist. Summit No. 23963, 2008-Ohio-2671, ¶ 13, citing Juv.R.
22(D)(2). The denial of a pretrial motion made under Juv.R. 22(D)(2) is a matter
within the trial court’s discretion. Id., citing State v. Dunning, 9th Dist. Medina
1
Erica’s first assignment of error is identical to Joel’s. However, because Erica did not file motions to
dismiss the complaints or otherwise object based on defects in the complaints, she cannot on appeal argue
that the trial court should have dismissed the complaints. In re G.J.D., 11th Dist. Geauga No. 2009-G-
2913, 2010-Ohio-2677, ¶ 49-54. Nevertheless, as to Erica, we will dispose of the cases on similar grounds
below in addressing her second assignment of error.
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No. 06CA0087-M, 2007-Ohio-7039, ¶ 6. Accordingly, we can reverse the denial
of a motion to dismiss only upon a finding that the trial court abused its discretion.
Id. An abuse of discretion suggests that the trial court’s decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). To the extent our review involves determining whether the trial court
correctly interpreted and applied a statute, we review the trial court’s decision de
novo. See Wells v. Wells, 9th Dist. Summit No. 25557, 2012-Ohio-1392, ¶ 22.
“‘Under the de novo standard of review, the appellate court may substitute,
without deference, its judgment for that of the trial court.’” In re M.F., 3d Dist.
Henry No. 7-15-06, 2015-Ohio-4224, ¶ 17, quoting In re J.M., 3d Dist. Wyandot
No. 16-12-01, 2012-Ohio-4109, ¶ 15.
{¶11} The Agency’s complaints initially alleged dependency under R.C.
2151.04(C) and 2151.04(D). Joel moved to dismiss the complaints as to both
grounds, and the trial court denied his motions. The Agency nevertheless moved
to amend the complaints to remove the allegation of dependency under R.C.
2151.04(C), electing to proceed only under R.C. 2151.04(D). Therefore, we need
address only the trial court’s denial of Joel’s motions to dismiss as to R.C.
2151.04(D). See In re D.P., 10th Dist. Franklin No. 12AP-557, 2013-Ohio-177, ¶
8.
R.C. 2151.04 provides:
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As used in this chapter, “dependent child” means any child:
***
(D) To whom both of the following apply:
(1) The child is residing in a household in which a parent,
guardian, custodian, or other member of the household committed an
act that was the basis for an adjudication that a sibling of the child or
any other child who resides in the household is an abused, neglected,
or dependent child.
(2) Because of the circumstances surrounding the abuse, neglect, or
dependency of the sibling or other child and the other conditions in
the household of the child, the child is in danger of being abused or
neglected by that parent, guardian, custodian, or member of the
household.
R.C. 2151.04(D). See In re B.B., 3d Dist. Defiance No. 4-10-17, 2012-Ohio-2695,
¶ 26. A juvenile court has exclusive original jurisdiction “[c]oncerning any child
who on or about the date specified in the complaint * * * is alleged * * * to be a *
* * dependent child * * *.” R.C. 2151.23(A)(1). Accordingly, the trial court must
determine whether the child was dependent as of the date alleged in the complaint,
not as of the date of the adjudicatory hearing. In re Alexander C., 164 Ohio
App.3d 540, 2005-Ohio-6134, ¶ 8 (6th Dist.), citing R.C. 2151.23(A)(1).
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{¶12} “Regarding the filing of complaints alleging dependency, R.C.
2151.27(A)(1) provides in pertinent part:
[A]ny person having knowledge of a child who appears * * * to be
an unruly, abused, neglected, or dependent child may file a sworn
complaint with respect to that child. * * * The sworn complaint may
be upon information and belief, and, in addition to the allegation that
the child committed the violation or is an unruly, abused, neglected,
or dependent child, the complaint shall allege the particular facts
upon which the allegation that the child committed the violation or is
an unruly, abused, neglected, or dependent child is based.”
In re D.P. at ¶ 10, quoting R.C. 2151.27(A)(1). “Additionally, Juv.R. 10(B)
provides in relevant part:
The complaint, which may be upon information and belief, shall
satisfy all of the following requirements:
(1) State in ordinary and concise language the essential facts that
bring the proceeding within the jurisdiction of the court, and in
juvenile traffic offense and delinquency proceedings, shall contain
the numerical designation of the statute or ordinance alleged to have
been violated.”
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Id. at ¶ 11, quoting Juv.R. 10(B). “As held in In re Hunt, * * * ‘[a] complaint
under Juv.R. 10 and R.C. 2151.27 alleging that a child is dependent must state the
essential facts which bring the proceeding within the jurisdiction of the court.’”
Id. at ¶ 13, quoting In re Hunt, 46 Ohio St.2d 378 (1976), paragraph one of the
syllabus.
{¶13} In the complaints in these cases, the Agency alleged the following
“particular facts”:
Historically, the Agency has received numerous reports of
domestic violence within the home, including both physical violence
and verbal threats. The children have observed episode [sic] of
violence, and have also been the subject of threats.
On November 15, 2014, the Agency received a report of
domestic violence and sexual abuse. The Agency was advised that
law enforcement received a call for domestic violence at the Skaggs
residence, and during that investigation law enforcement was
advised that Joel Skaggs had been inappropriately touching his step-
daughter [S.L.], age fifteen. At that time, [S.L.] was taken to
Nationwide Children’s Hospital’s Center for Family Safety and
Healing in Columbus, Ohio, where she disclosed sexual abuse.
[S.L.] disclosed that the abuse has been on-going for approximately
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three years, and included an incident of [Joel] taking a picture of her
naked vaginal area. [S.L.] also disclosed that many of the incidents
of abuse took place when [Joel] took [S.L.] camping, and [Joel]
stated that all the girls would get to go camping when they turned
thirteen years old. Erica reported observing an incident of sexual
abuse during which [Joel] was touching [S.L.]’s breasts.
***
The Agency has significant concerns about the safety of [S.L.]
if she were to return to living with Erica and [Joel]. [S.L.] reports
that she is afraid of that situation. Additionally, the Agency has
concerns about the safety of all the children in the presence of [Joel]
based on the history of domestic violence coupled with the sexual
abuse of [S.L.].
(Case No. 21530003, Doc. No. 1); (Case No. 21530004, Doc. No. 1). The Agency
does not dispute that on either November 15, 2014 or the date the complaints were
filed—January 7, 2015—there was no adjudication that a sibling of or other child
residing with L.S. and B.S. was abused, neglected, or dependent based on an act of
a parent or other member of the household. See R.C. 2151.04(D)(1).
{¶14} Accordingly, Joel’s first assignment of error presents the following
issue of statutory application that we review de novo: whether R.C. 2151.04(D)
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can serve as the basis for an adjudication of dependency notwithstanding the
absence—as of the filing of the complaint—of an adjudication of a sibling or other
child in the household as abused, neglected, or dependent based on an act of a
parent or other household member. This question appears to be one of first
impression in Ohio.
{¶15} Joel argues that “the determination as to whether a child is dependent
must be made as of the date alleged in the complaint” and that, under R.C.
2151.04(D), “both the acts and the adjudication needed to have happened prior to”
the filing of the complaint. (Joel’s Brief at 7); (Joel’s Reply Brief at 1-2). In
overruling Joel’s motions to dismiss the complaints as to R.C. 2151.04(D), the
trial court stated:
[R.C. 2151.04(D)] doesn’t state that the act had to have occurred as
far as, as I say, it doesn’t require that the adjudication has to have
occurred before the filing of the Complaint. It talks about the
member of the household having committed an act that was the basis
for an adjudication that a sibling of the child or any other child who
resides in the household is an abused, neglected or dependent child.
(Mar. 25, 2015 Tr. at 15). It appears that the trial court believes that, so long as
the act giving rise to the adjudication occurred before the complaint is filed, then
an adjudication subsequent to the filing of the complaint can satisfy the
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requirement under R.C. 2151.04(D)(1). The Agency on appeal argues that the
purpose of the juvenile court system is to provide for the care, protection, and
mental and physical development of children and that “courts are not required to
sit back and wait for harm to befall a child before taking action to protect that
child.” (Appellee’s Brief at 5). For that reason, the Agency argues, it should be
allowed to pursue simultaneous adjudications of the child alleged to be dependent
under R.C. 2151.04(D) and of a “sibling of the child or any other child who
resides in the household.” R.C. 2151.04(D)(1).
{¶16} To answer the question presented under this assignment of error, we
must determine whether R.C. 2151.04(D)(1) is ambiguous. “The principles of
statutory construction require courts to first look at the specific language contained
in the statute, and, if the language is unambiguous, to then apply the clear meaning
of the words used.” Roxane Laboratories, Inc. v. Tracy, 75 Ohio St.3d 125, 127
(1996), citing Provident Bank v. Wood, 36 Ohio St.2d 101, 105-106 (1973).
“Words and phrases shall be read in context and construed according to the rules
of grammar and common usage. Words and phrases that have acquired a technical
or particular meaning, whether by legislative definition or otherwise, shall be
construed accordingly.” R.C. 1.42. “Statutes that are plain and unambiguous
must be applied as written without further interpretation.” Proctor v.
Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, ¶ 12, citing Lake Hosp. Sys. v.
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Ohio Ins. Guar. Assn., 69 Ohio St.3d 521, 524 (1994). That is, “‘where the
language of a statute is clear and unambiguous, it is the duty of the court to
enforce the statute as written, making neither additions to the statute nor
subtractions therefrom.’” Sherwin-Williams Co. v. Dayton Freight Lines, Inc., 112
Ohio St.3d 52, 2006-Ohio-6498, ¶ 14, quoting Hubbard v. Canton City School Bd.
of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 14.
{¶17} We hold that R.C. 2151.04(D)(1) is unambiguous concerning the
issue presented under Joel’s first assignment of error. To satisfy the definition of
dependency under R.C. 2151.04(D), the child must reside in a household in which
a parent or other member of the household “committed an act that was the basis
for an adjudication” that a sibling or any other child residing in the household is an
abused, neglected, or dependent child. R.C. 2151.04(D)(1). The word
“adjudication” in this context of R.C. Chapter 2151 has a particular meaning. An
“adjudicatory hearing” is a hearing at which a trial court determines whether a
child is abused, neglected, or dependent. See R.C. 2151.28(B) and 2151.35(B)(1).
See also Juv.R. 2(B) (defining “adjudicatory hearing” as “a hearing to determine
whether a child is a juvenile traffic offender, delinquent, unruly, abused,
neglected, or dependent or otherwise within the jurisdiction of the court”
(emphasis added)). A trial court’s determination under R.C. Chapter 2151 that a
child is abused, neglected, or dependent constitutes an “adjudication.” See R.C.
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2151.28(B) and 2151.35(B)(1). See also In re Baby Girl Baxter, 17 Ohio St.3d
229, 233 (1985), quoting Juv.R. 29(F)(2)(a); In re A.J., 10th Dist. Franklin No.
14AP-284, 2014-Ohio-5046, ¶ 26.
{¶18} R.C. 2151.04(D)(1) refers to “an act that was the basis for an
adjudication.” (Emphasis added.) The General Assembly chose the word “was,”
which is a past-tense verb. State v. Johnson, 4th Dist. Scioto No. 07CA3158,
2008-Ohio-1369, ¶ 18. “The past tense indicates action already completed.” State
v. Halpin, 2d Dist. Clark No. 07CA78, 2008-Ohio-4136, ¶ 24. In the context of
R.C. 2151.04(D)(1), saying that an act was the basis of an adjudication requires
there to have been a past adjudication. In other words, for an act to have been the
basis for an adjudication, there must have been a prior adjudication that a sibling
or other child residing in the household is an abused, neglected, or dependent
child. See In re M.P., 2d Dist. Greene No. 2011 CA 71, 2012-Ohio-2334, ¶ 15
(concerning R.C. 3109.04, the statute governing the allocation of parental rights
and responsibilities in domestic-relations cases, “[t]he use of the past tense by the
General Assembly means that a modification may be ordered only after a move
from the state has already occurred”). Had the General Assembly intended to
allow simultaneous adjudications—as the Agency argues—it would have used
present-tense, not past-tense, language. See Lucas Cty. Commrs. v. Pub. Utilities
Com’n of Ohio, 80 Ohio St.3d 344, 347 (1997). Accordingly, because, under R.C.
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2151.23(A)(1), the determination of dependency is made as of the date alleged in
the complaint, the plain and unambiguous language of R.C. 2151.04(D)(1)
requires that “a sibling of the child or any other child who resides in the
household” be adjudicated abused, neglected, or dependent before the complaint is
filed.
{¶19} The Agency acknowledges that this issue appears to be one of first
impression in Ohio. Nevertheless, the Agency cites in support of its argument
cases in which it appears that there may have been no prior adjudications of abuse,
neglect, or dependency at the time the complaints were filed in those cases.
(Appellee’s Brief at 4, citing In re Rossantelli, 5th Dist. Delaware No.
01CAF12072, 2002 WL 999301, *1 (May 13, 2002); In re Yeager/Reardon
Children, 5th Dist. Tuscarawas No. 2001 AP 03 0024, 2002 WL 253815, *1 (Feb.
20, 2002); In re Atkins, 7th Dist. Carroll Nos. 705 and 706, 2001 WL 275193, *1
(Mar. 7, 2001); In Matter of Surfer, 10th Dist. Franklin No. 97APF09-1158, 1998
WL 231012, *4 (May 7, 1998); In re J.D., 5th Dist. Richland No. 12-CA-108,
2013-Ohio-2187, ¶ 26). However, as the Agency concedes, the issue presented
under Joel’s first assignment of error was not an issue in those appeals, and those
opinions lack analysis of the issue. What is more, at least two of the cases cited by
the Agency involved dependency determinations under multiple subsections of
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R.C. 2151.04—not R.C. 2151.04(D) alone. See In re Rossantelli at *1; In re J.D.
at ¶ 20.
{¶20} Just as the Agency cites cases in support of its proposition that a
simultaneous adjudication has been pursued successfully in other districts, dicta
from other cases is consistent with our conclusion that R.C. 2151.04(D)(1)
requires an adjudication predating the filing of the complaint. See In re B.B.,
2012-Ohio-2695, at ¶ 27 (stating that R.C. 2151.04(D) “expressly considers the
parent’s conduct regarding prior dependencies” (emphasis added)); State ex rel.
Swanson v. Hague, 11th Dist. Ashtabula No. 2009-A-0053, 2010-Ohio-4200, ¶ 27,
fn. 1 (noting that, for R.C. 2151.04(D) to apply, “the child in question must have a
sibling who has already been adjudicated as a neglected, abused or dependent
child” (emphasis added)); In re T.P.-M., 9th Dist. Summit No. 24199, 2008-Ohio-
6437, ¶ 15 (“R.C. 2151.04(D) * * * requires that a member of the child’s present
household committed an act that was the basis of the prior adjudication.”
(Emphasis added.)); In re W.C., 9th Dist. Summit No. 22356, 2005-Ohio-2968, ¶
18 (“[W]ith the addition of R.C. 2151.04(D), the legislature considered a parent’s
prior history with a child welfare agency significant in regard to a determination
that a subsequent child might be dependent.” (Emphasis added.)).
{¶21} For the reasons above, we conclude that, for a child to be found
dependent under R.C. 2151.04(D), R.C. 2151.04(D)(1) plainly and unambiguously
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requires that a sibling of the child or any other child who resides in the household
be adjudicated abused, neglected, or dependent before the complaint is filed. In
these cases, there were no such adjudications before the complaints were filed, and
the Agency concedes as much. Accordingly, the trial court abused its discretion
by not dismissing the Agency’s complaints against Joel as to R.C. 2151.04(D).2
{¶22} Joel’s first assignment of error is sustained.3
Erica’s Assignment of Error No. II
The Trial Court Erred in Finding L.S. and B.S. to be Dependent
Pursuant to R.C. § 2151.04(D) When No Child Had Been So
Adjudicated Prior to the Time of the Filing of the Complaints.
{¶23} In her second assignment of error, Erica makes essentially the same
arguments that Joel does under his first assignment of error.4 That is, she argues
that “the determination as to whether a child is dependent must be made as of the
date alleged in the complaint, not as of the date of the adjudicatory hearing.”
(Erica’s Brief at 6). Erica argues that “[t]he evidence submitted at the adjudication
hearing was that there had not been a finding that another child residing in the
household was an adjudicated abused child prior to” the filing of the complaints.
2
For a child to be dependent under R.C. 2151.04(D), both subsections—R.C. 2151.04(D)(1) and (2)—must
apply. See R.C. 2151.04(D). Accordingly, we need not and do not consider R.C. 2151.04(D)(2). See In re
A.W., 195 Ohio App.3d 379, 2011-Ohio-4490, ¶ 20 (9th Dist.).
3
As we stated above, we need not and do not address whether L.S. and B.S. are dependent under R.C.
2151.04(C) because the trial court allowed the Agency to amend its complaints to remove that ground, and
that ground did not serve as the basis for the trial court’s conclusion that L.S. and B.S. are dependent. See
In re D.P., 2013-Ohio-177, at ¶ 8.
4
As we stated above, Erica’s first assignment of error is identical to Joel’s first assignment of error
challenging the trial court’s failure to dismiss the complaints. However, because Erica did not file motions
to dismiss the complaints or otherwise object based on defects in the complaints, she cannot on appeal
argue that the trial court should have dismissed the complaints. In re G.J.D., 2010-Ohio-2677, at ¶ 49-54.
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(Id. at 7). Rather, Erica argues, “the evidence indicated that an adjudication of
abused and dependent child was issued on March 18, 2015, more than two months
after the Complaint was filed.” (Id. at 7-8).
{¶24} The party seeking the adjudication bears the burden of establishing
dependency by clear and convincing evidence. In re M.H., 9th Dist. Wayne No.
09CA0028, 2009-Ohio-6911, ¶ 17; In re Savchuk Children, 180 Ohio App.3d 349,
2008-Ohio-6877, ¶ 33 (11th Dist.); In re D.W., 4th Dist. Athens No. 06CA42,
2007-Ohio-2552, ¶ 18. A trial court’s determination that a child is dependent
under R.C. 2151.04 must be supported by clear and convincing evidence. In re
B.B., 2012-Ohio-2695, at ¶ 32, citing R.C. 2151.35. “Clear and convincing
evidence is that measure or degree of proof which will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). “[W]hen ‘the
degree of proof required to sustain an issue must be clear and convincing, 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.’” In re Freed
Children, 3d Dist. Hancock No. 5-08-37, 2009-Ohio-996, ¶ 26, quoting Cross at
477. Therefore, we are required to determine whether the trial court’s
determination is supported by sufficient evidence to satisfy the clear-and-
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convincing-evidence degree of proof. In re B.B. at ¶ 33, citing In re Adoption of
Holcomb, 18 Ohio St.3d 361, 368 (1985).
{¶25} In sustaining Joel’s first assignment of error above, we discussed
R.C. 2151.04(D) and held that it plainly and unambiguously requires that a sibling
of the child or any other child who resides in the household be adjudicated abused,
neglected, or dependent before the complaint is filed. Here, Erica is correct that
no evidence was presented at trial that a sibling of L.S. and B.S. or any other child
residing in the household was adjudicated abused, neglected, or dependent before
the complaints were filed on January 7, 2015. Rather, the Agency points out that,
on March 18, 2015, the trial court adjudicated S.L. an abused child and A.L. a
dependent child. The Agency argues that the trial court properly based its
dependency adjudications of L.S. and B.S. on the March 18, 2015 adjudications of
S.L. and A.L. As we pointed out in sustaining Joel’s first assignment of error, the
Agency’s position is contrary to the plain and unambiguous language of R.C.
2151.04(D) and erroneous. Accordingly, the Agency failed to prove by clear and
convincing evidence that “a parent, guardian, custodian, or other member of the
household committed an act that was the basis for an adjudication that a sibling of
the child or any other child who resides in the household is an abused, neglected,
or dependent child.” (Emphasis added.) R.C. 2151.04(D)(1). Therefore, the trial
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court’s adjudications of L.S. and B.S. are not supported by sufficient evidence to
satisfy the clear-and-convincing-evidence degree of proof.
{¶26} Erica’s second assignment of error is sustained.
Erica’s Assignment of Error No. I
The Trial Court Erred in Failing to Dismiss the Complaint of
Dependency as R.C. § 2151.04(D) is Not Applicable to the Case
at Bar as No Child Had Been Adjudicated an Abused Child at
the Time the Complaint was Filed.
Joel’s Assignment of Error No. II
The Trial Court Erred in Finding L.S. and B.S. to be Dependent
Pursuant to R.C. § 2151.04(D) When No Child Had Been So
Adjudicated Prior to the Time of the Filing of the Complaints.
Erica’s and Joel’s Assignment of Error No. III
The Trial Court’s Decision Determining that L.S. and B.S. are
Dependent Children Pursuant to R.C. § 2151.04(D)(1) and (2)
was Against the Manifest Weight of the Evidence and Not
Proven by Clear and Convincing Evidence.
Erica’s and Joel’s Assignment of Error No. IV
The Trial Court Erred By Failing to Dismiss the Complaints as
to the Alleged Dependency Pursuant to R.C. § 2151.04(C) as the
Complaints Failed to Provide Sufficient Allegations that if True
Would be Sufficient to Find the Children Dependent Pursuant to
R.C. § 2151.04(C).
Erica’s Assignment of Error No. V
The Trial Court Erred in Allowing [S.L.], a Witness, to be
Represented by Court Appointed Counsel, for Counsel for the
Witness to be in the Courtroom Despite an Order of Separation
of Witnesses Pursuant to Evid. R. 615(A), and for Counsel to
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Case Nos. 14-15-05, 14-15-06
Participate in the Proceedings by Questioning Witnesses and
Providing Legal Argument.
Joel’s Assignment of Error No. V
The Trial Court Erred in Allowing S.L., a Witness, to be
Represented by Court Appointed Counsel, for Counsel for the
Witness to be in the Courtroom Despite an Order of Separation
of Witnesses Pursuant to Evid. R. 615(A), and for Counsel to
Participate in the Proceedings by Questioning Witnesses and
Providing Legal Argument.
Erica’s and Joel’s Assignment of Error No. VI
Should this Court Construe that the Trial Court Designated S.L.
as a Party to the Action, Such Party Designation was an Abuse
of Discretion.
Erica’s and Joel’s Assignment of Error No. VII
Should this Court Determine that The Trial Court Could Have
Proceeded Under R.C. § 2151.04(D), Then the Trial Court Erred
as a Matter of Law in Disallowing the Testimony of S.L. as it
was Relevant to the Facts and Circumstances Surrounding the
Alleged Adjudication of Abuse Contemplated in R.C. §
2151.04(D)(2).
Erica’s and Joel’s Assignment of Error No. VIII
The Trial Court’s Finding that S.L.’s Testimony was Largely
Irrelevant is Against the Manifest Weight of the Evidence as S.L.
was the Only Witness to Testify Who Resided in the Home.
Erica’s Assignment of Error No. IX
Joel’s Assignment of Error No. XIV
The Juvenile Court failed to comply with Juv. R. 37(A)
requiring court to make record of adjudicatory and dispositional
proceedings in dependency case.
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Joel’s Assignment of Error No. X
The Trial Court Erred in Admitting Exhibit 6 Despite Such
Exhibit Being Inadmissible Hearsay.
Joel’s Assignment of Error No. XI
The Trial Court Erred in Admitting Exhibit 7 Despite Such
Exhibit Containing Inadmissible Hearsay.
Joel’s Assignment of Error No. XII
The Trial Court Erred in Admitting Exhibit 6 as Counsel’s
Stipulation As To Authenticity was Limited and an Appropriate
Foundation was not Laid for its Admittance.
Joel’s Assignment of Error No. XIII
The Trial Court Erred in Admitting Exhibit 7 as Counsel’s
Stipulation As To Authenticity was Limited and an Appropriate
Foundation was not Laid for its Admittance.
{¶27} In their remaining assignments of error, Erica and Joel make several
arguments supporting their position that the trial court’s dependency adjudications
of L.S. and B.S. were made in error. In light of our decision to sustain Joel’s first
assignment of error and Erica’s second assignment of error, their remaining
assignments of error are rendered moot, and we decline to address them. App.R.
12(A)(1)(c). See also In re K.M., 3d Dist. Shelby No. 17-11-15, 2011-Ohio-3632,
¶ 26.
{¶28} Having found error prejudicial to the appellants herein in the
particulars assigned and argued in appellant Joel Skaggs’s first assignment of error
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and appellant Erica Skaggs’s second assignment of error, we reverse the
judgments of the trial court and remand for further proceedings.
Judgments Reversed and
Causes Remanded
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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