In re K.K.

[Cite as In re K.K., 2023-Ohio-2083.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
IN THE MATTER OF: K.K., K.K., K.K. :
:
: C.A. No. 2023-CA-2
:
: Trial Court Case No. 21930015;
: 21930016; 21930017
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
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OPINION
Rendered on June 23, 2023
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KELLY M. SCHROEDER, Attorney for Appellee
ALEXANDER S. PENDL, Attorney for Appellant
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HUFFMAN, J.
{¶ 1} Father appeals from the judgments of the juvenile court that continued the
grant of temporary custody of his three children to the Darke County Children Services
Unit (“CSU”). Father argues that the juvenile court erred in taking judicial notice of prior
proceedings involving two of Mother’s other children and in considering evidence that was
not presented at the adjudicatory hearing. He argues that the dependency adjudications
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were not supported by sufficient evidence. For the following reasons, we agree with
Father. The judgments of the trial court are reversed.
Facts and Procedural History
{¶ 2} On September 23, 2022, CSU filed a complaint alleging that the children
were dependent and lacked adequate parental care due to the mental or physical
condition of the children’s parents. CSU also filed a motion for temporary disposition ex
parte. The trial court held a shelter care hearing on September 26, 2022, at which Father
was unrepresented and the testimony of CSU’s witnesses was not subject to cross-
examination. The court entered a denial of the allegations in the complaint on Father’s
behalf and ordered the children to remain in the temporary custody of CSU.
{¶ 3} An adjudicatory hearing occurred on December 12, 2022. Greenville Chief
of Police Eric Roberts and Teresa Maples, a social worker for CSU, were the only
witnesses to testify. On December 14, 2022, the court issued a judgment entry finding
that CSU had provided clear and convincing evidence establishing that the children were
dependent. In its judgment, the court took judicial notice of two prior dependency cases
involving the children herein and two other children of Mother, as well as a decision by
this Court affirming the grant of permanent custody of Mother’s two other children to CSU.
{¶ 4} A dispositional hearing occurred on January 6, 2023. On January 10,
2023, the court issued a judgment entry finding that the children should remain in the
temporary custody of CSU and placing them in the care of a relative.
Assignments of Error and Analysis
{¶ 5} Father asserts two assignments of error, which we will consider together:
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THE TRIAL COURT ERRED BY CONSIDERING EVIDENCE NOT
PRESENTED AT THE ADJUDICATORY HEARING IN MAKING A
FINDING OF DEPENDENCY,
THE DEPENDENCY ADJUDICATIONS WERE NOT SUPPORTED
BY SUFFICIENT EVIDENCE.
{¶ 6} In his first assignment of error, Father argues that there was no evidence to
support the trial court’s determination in its December 14, 2022 judgment entry that Father
was in jail and unable to care for his children when the September 23, 2022 complaint
was filed. He contends that there was also no evidence to support the court’s
determination that there was no parent immediately available to provide care for the
children at that time. According to Father, the only explanation for the court’s findings is
that it considered evidence that was not presented at the adjudicatory hearing, such as
testimony from the shelter care hearing. Finally, Father argues that the court erred by
taking judicial notice of the two prior dependency cases involving the children herein and
two of Mother’s other children.
{¶ 7} CSU responds that the evidence to which Father objects was available to the
court from previous proceedings in this case, which was in the same docket and had been
heard by the same judge. Mother responds that the court did not err in considering
evidence outside of the adjudicatory hearing, as a majority of the evidence was taken
“from the proceedings in the immediate case,” and that the police chief’s testimony
supported the inference that Father had been incarcerated when the complaint was filed.
{¶ 8} Father argues that the court relied upon evidence not in the record to support
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its conclusion that he had been incarcerated and unable to care for his children when the
complaint was filed. Father asserts that, although the dependency complaint alleged
that he had experienced two psychotic episodes, had been hospitalized at Haven
Behavioral Health Hospital, and had been diagnosed with bipolar disorder, no evidence
was presented at the adjudicatory hearing relating to Father’s mental or physical condition
at the time of the hearing. Father notes that the trial court made no mention of his mental
or physical condition in its December 14, 2022 entry. He asserts that no evidence was
presented that the children lacked adequate parental care. Father argues that the fact
that he may have been incarcerated on felony charges was insufficient to establish the
children’s dependency. He asserts that his due process rights were violated by the
court’s dependency findings “on grounds neither alleged in the Complaint nor argued at
the Adjudicatory Hearing.”
{¶ 9} We begin our review by noting that the “United States Supreme Court has
stated that the right to raise one’s children is an ‘essential’ and ‘basic civil right.’ ”
(Citations omitted.) In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990). This
legal right is “protected by law and, thus, comes within the purview of a ‘substantial right.’ ”
Id. Based upon these principles, the Supreme Court of Ohio has concluded that a parent
“ ‘must be afforded every procedural and substantive protection the law allows.’ ” (Citation
omitted.) In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997).
{¶ 10} R.C. 2151.35(A)(1) provides: “If the court at the adjudicatory hearing finds
from clear and convincing evidence that the child is an abused, neglected, or dependent
child, the court shall proceed * * * to hold a dispositional hearing * * *.” (Emphasis
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added.) Dependency is governed by R.C. 2151.04. CSU alleged in its complaint that
the children were dependent pursuant to R.C. 2151.04(B), which defines a dependent
child as one “[w]ho lacks adequate parental care by reason of the mental or physical
condition of the child’s parents, guardian, or custodian.” “In proving that a child is
dependent under R.C. 2151.04(B), the evidence must demonstrate not only that the
parent had a mental incapacity, but also that the child lacked adequate care because of
the mental incapacity.” In re Z.P., 5th Dist. Stark No. 2008CA00209, 2009-Ohio-378,
¶ 18, citing In re Pierce, 5th Dist. Muskingum No. CT2008-0019, 2008-Ohio-6716, ¶ 17.
“ ‘Adequate parental care’ means the provision by a child’s parent or parents * * * of
adequate food, clothing, and shelter to ensure the child’s health and physical safety and
the provision by a child’s parent or parents of specialized services warranted by the child’s
physical or mental needs.” R.C. 2151.011(B)(1).
{¶ 11} “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 Z.P. at ¶ 16, citing In re Christian, 4th Dist. Athens No. 04CA10, 2004-Ohio-3146.
“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.’ ” (Citations omitted.) Id.{¶ 12} The dependency complaint contained the following allegations: On
September 14, 2022, Father had a psychotic episode and threatened to harm the
children; he was subsequently admitted to Haven Behavioral Health Hospital, where he
was diagnosed with bipolar disorder. After receiving treatment, he was discharged on
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September 19, 2022. Following his discharge, CSU was engaged with the family and
monitored the children. On September 22, 2022, Father appeared to have a second
psychotic episode while driving, resulting in a police pursuit and felonious assault
charges. The children were not in the vehicle during the pursuit. On the date of the
complaint, Father was incarcerated at the Darke County Jail, and the children were in
temporary CSU custody “due to the obvious mental health issues” of Father and safety
concerns for the children. Regarding Mother, the complaint provided that CSU was “not
required to make reasonable efforts to reunify the children with her” in accordance with
R.C. 2151.419(A)(2)(e).1
{¶ 13} At the adjudicatory hearing, Chief Roberts testified that he had been aware
of the “situation” with Father since September 14, 2022, and that he (Roberts) became
“actively involved” when an Amber Alert was issued because the children were absent
from school. He stated that many jurisdictions and states had been involved and the FBI
had been contacted. On September 22, 2022, Roberts was also involved in a “normal
speed pursuit” of Father. In the course of the pursuit, a passenger, B.K., got out of
Father’s vehicle; Roberts picked up B.K. and transported her to the police station to see
if she needed medical attention. Roberts did not testify regarding B.K.’s relationship to
Father. Roberts then proceeded to Wayne Hospital, where he observed extensive
1
“If any of the following apply, the court shall make a determination that the agency is not
required to make reasonable efforts to prevent the removal the child from the child’s
home, and return the child to the child’s home: * * * * (e) The parent from whom the child
was removed has had parental rights involuntarily terminated with respect to a sibling of
the child pursuant to section 2151.353, 2151.414, or 2151.415 of the Revised Code or
under an existing or former law of this state, any other state, or the United States that is
substantially equivalent to those sections.” R.C. 2151.419(A)(2)(e).
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damage to two police cruisers and to the entrance to the hospital emergency room.
Photos of a “totaled” police vehicle and of the damaged hospital entrance were admitted
into evidence. Roberts testified that he advised a lieutenant to “make sure the cruiser’s
videos were downloaded for complete review.”
{¶ 14} By the time Roberts arrived at the hospital, Father had already been
arrested and taken from the scene. Roberts subsequently authorized the removal of the
children from Father’s care on “the basis since the 14th of September, we had been
dealing with this.” He stated that officers had responded to Father’s home on September
14, 2022. Roberts was aware that Father had previously been hospitalized. Two police
reports had been prepared, but Roberts did not recall if he had prepared one. Roberts
testified that the “totality of the circumstances and [Father’s] behavior on the 22nd was
enough for me” to order the removal of the children. Father had been charged “with the
pursuit and the felonious assault upon the officers,” and Roberts was not aware whether
the charges had been resolved at the time of the hearing. Multiple objections were
sustained in the course of Chief Robert’s testimony for lack of personal knowledge.
{¶ 15} Caseworker Maples testified that, by the time CSU learned of the vehicular
pursuit of Father, she already had a dependency case open based upon concerns about
the children from September 14, 2022. She stated that the children had not been
removed from the home then. At the time of the incident on September 22, 2022, CSU
was working with Father regarding prior incidents involving the children. Upon learning
of the police pursuit, Maples contacted Roberts to check on the children’s welfare.
Maples executed the removal of the children from the home.
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{¶ 16} Officer Alan Smith was called to testify at the hearing, but both Father and
Mother objected because Smith had not been on the witness list. CSU withdrew the
witness. Father did not cross-examine either of CSU’s witnesses., and neither Mother
nor Father called any witnesses.
{¶ 17} In its December 14, 2022 entry, the trial court found that CSU’s presentation
of evidence was “unnecessarily limited and lacking in detail.” The court found that
Roberts and Maples had “frequently repeated inadmissible hearsay which prompted
proper objections,” and that evidence and documents referred to during the testimony,
such as police reports and cruiser camera footage, were not offered. The court noted
that a certified copy of Father’s charges could have easily been presented but was not.
The court further noted that the September 14, 2022 investigation and the Amber Alert
were mentioned without any elaboration.
{¶ 18} Despite acknowledging the deficiencies in the evidence, the court
concluded:
These shortcomings, however, do not eliminate the basic facts in
place when the Complaint was filed on September 23, 2022. As of
September 14, 2022, there were concerns sufficient for CSU to open a
Dependency investigation. This coincided with work and investigation by
the Greenville Police Department, which at one point included the issuance
of an Amber Alert. On September 22, 2022, the Father was arrested for
Felonious Assault on a Police Officer. Chief Roberts made the decision to
remove the children. When the complaint was filed the next day, Father
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was still in jail and unable in any way to care for his children. For the
reasons described above, CSU was reasonable in not considering Mother
as an immediate placement. The children had no parent immediately
available to provide care at that point in time. Based upon these
circumstances and the evidence presented, the Court finds that CSU has
met its burden of providing clear and convincing evidence establishing the
children as Dependent as of the time of the filing of the Complaint.
{¶ 19} We agree with Father that the court’s dependency determination should
have been limited to consideration of the evidence presented at the adjudicatory hearing.
We also conclude that the record lacks sufficient credible evidence to support a finding of
dependency by clear and convincing evidence. Regarding Father’s alleged mental
incapacity, the record fails to support the allegations that Father experienced two
“psychotic episodes,” threatened his children, was treated at a behavioral health hospital,
and was diagnosed with bipolar disorder. Chief Roberts testified that Father had been
previously hospitalized, but no further details were provided, such as where he was
hospitalized, his diagnosis and prognosis, and whether any medications were prescribed.
While Father allegedly caused extensive damage to police vehicles and the hospital
following the police pursuit, there was no testimony regarding his alleged mental
incapacity on the date of incident. Roberts did not interact with Father that day beyond
pursuing his vehicle, because Father had been arrested and removed by the time Roberts
arrived. Without discounting the seriousness of the issuance of the Amber Alert, the fact
of its issuance was not probative of Father’s alleged mental incapacity. There was no
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testimony regarding Father’s physical condition before or after the incident on September
22, 2022. Maples testified that CSU had an open file on Father based on concerns from
September 14, 2022, without any specific testimony regarding what had occurred on that
date. Roberts also provided no specific testimony about the alleged initial “psychotic
episode” on that date. There was no evidence presented that the children were not
provided adequate food, clothing, and shelter to ensure their health and safety as a result
of Father’s mental incapacity. There was no testimony regarding whether anyone else
resided in the children’s home or its condition, and there was no evidence presented
regarding Mother. Given the deficiencies in the evidence as acknowledged by the trial
court, we conclude that the court erred in adjudicating the children dependent.
{¶ 20} Because CSU failed to establish that Father had a mental incapacity and
that the children lacked proper care as a result of that mental incapacity, CSU failed to
establish dependency under R.C. 2151.04(B) by clear and convincing evidence.
Father’s two assignments of error are sustained.
{¶ 21} We need not address Father’s argument related to judicial notice, given our
disposition of Father’s assignments of error.
{¶ 22} The judgments of the trial court are reversed.
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WELBAUM, P.J. and TUCKER, J., concur.