[Cite as In re V.S., 2017-Ohio-9136.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: V.S.                                           C.A. Nos.    28602
                                                                   28609



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DN 16-09-0827

                                 DECISION AND JOURNAL ENTRY

Dated: December 20, 2017



        CALLAHAN, Judge.

        {¶1}     Appellants Mother and Father appeal the judgment of the Summit County Court

of Common Pleas, Juvenile Division, that adjudicated their child V.S. a dependent child. This

Court affirms.

                                                 I.

        {¶2}     Mother and Father are the biological parents of V.S. (d.o.b. 6/16/16). Mother is

also the biological mother of A.P. and C.S. Father is the biological father of C.S. After being

adjudicated neglected and abused, A.P. and C.S. were ultimately placed in the permanent

custody of Cuyahoga County Department of Children and Family Services (“CCDCFS”). On

September 15, 2016, the Eighth District Court of Appeals affirmed the termination of Mother’s

and Father’s parental rights and the award of permanent custody of A.P. and C.S. to CCDCFS.

        {¶3}     On September 23, 2016, Summit County Children Services Board (“CSB”) filed a

complaint alleging that V.S. was a dependent child.         The agency alleged three bases for
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dependency: (1) that the child was homeless, destitute, or without adequate parental care,

through no fault of the child’s parents; (2) that the child’s condition or environment warranted

the state’s assumption of the child’s guardianship in the interest of the child; and (3) that (a) the

child was residing in a household where a parent committed an act resulting in the adjudication

of another child in the household as an abused, neglected, or dependent child; and (b) because of

the circumstances surrounding the abuse, neglect, or dependency of the other child, as well as

other conditions in the child’s household, the child was in danger of being abused or neglected

by the parent. R.C. 2151.04(A), (C), and (D)(1) and (2). V.S. was ordered into the emergency

temporary custody of CSB the same day.

       {¶4}    On the first date scheduled for adjudication, Mother requested a continuance.

Father did not oppose Mother’s request, and the magistrate rescheduled the hearing to occur

approximately five weeks later. Despite having been properly served, both Mother and Father

failed to appear for adjudication, allegedly based on a medical emergency. The magistrate

refused to further continue the matter based on statutory time constraints. She agreed to schedule

a second date for the adjudication, however, to allow Mother and Father to be present for the

caseworker’s testimony and to present their own cases in chief. Both parents appeared for the

second day of hearing. Neither testified or presented any evidence.

       {¶5}    At the conclusion of the adjudicatory hearing, the magistrate found V.S.

dependent pursuant to R.C. 2151.04(D)(1) and (2), based on the prior abuse and neglect

adjudications of the child’s siblings and the danger that V.S. might thereby be abused or

neglected in the household.      The magistrate found that CSB did not prove by clear and

convincing evidence that V.S. was a dependent child pursuant to R.C. 2151.04(A) or (C). She,

therefore, dismissed those allegations in the complaint. The matter proceeded to disposition, and
                                                3


the magistrate placed the child in the temporary custody of CSB. The juvenile court adopted

both of the magistrate’s decisions the same days they were issued.

       {¶6}    Mother and Father each filed objections to the magistrate’s decision, alleging that

the dependency adjudication was not supported by the evidence. Father requested leave to

supplement his objections. After the transcript was filed, Father supplemented his objections,

and CSB filed a brief in opposition. According to the juvenile court’s judgment entry, the parties

all appeared for oral argument on the objections, and the court granted leave to Mother and

Father to further supplement their objections. There is no transcript of the objections hearing in

the record. Although Father had earlier supplemented his objections, Mother failed to do so.

The juvenile court thereafter issued its judgment in which it overruled Mother’s and Father’s

objections and adjudicated V.S. a dependent child pursuant to R.C. 2151.04(D), and adhered to

its prior order placing the child in the temporary custody of CSB. Five days later, Mother filed a

motion to respond to CSB’s brief in opposition. The juvenile court properly did not rule on

Mother’s motion, as it was a nullity, akin to a motion for reconsideration after the juvenile court

issued its final judgment. See In re J.P., 9th Dist. Summit No. 24538, 2009-Ohio-3974, ¶ 7

(recognizing no authority for a motion for reconsideration of a final judgment pursuant to the

Ohio Rules of Juvenile Procedure).

       {¶7}    After the juvenile court ruled on the parents’ objections, Mother and Father both

filed timely notices of appeal. Each raises one assignment of error for consideration. Although

Mother and Father have filed separate briefs, their assignments of error are identical.

Accordingly, this Court consolidates the assignments of error for review.
                                                 4


                                                 II.

                 MOTHER’S AND FATHER’S ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND PLAIN
       ERROR WHEN IT FOUND V.S. TO BE A DEPENDENT CHILD PURSUANT
       TO R.C. 2151.04(D), AS THAT FINDING WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶8}    Mother and Father argue that the juvenile court’s finding that V.S. is a dependent

child pursuant to R.C. 2151.04(D) was against the manifest weight of the evidence. This Court

disagrees.

       {¶9}    Juvenile abuse, neglect, and dependency cases are initiated by the filing of a

complaint. See Juv.R. 22(A); Juv.R. 10; R.C. 2151.27(A). The complaint is “the legal document

that sets forth the allegations that form the basis for juvenile court jurisdiction.” Juv.R. 2(F).

The juvenile court must base its adjudication on the evidence adduced at the adjudicatory hearing

to support the allegations in the complaint. See In re Hunt, 46 Ohio St.2d 378, 380 (1976). If

allegations in the complaint are not proved by clear and convincing evidence at the adjudicatory

hearing, the juvenile court must dismiss the complaint. Juv.R. 29(F); R.C. 2151.35(A)(1). Clear

and convincing evidence is that which will “produce in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.” (Internal quotations omitted.) In re

Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St.

469 (1954), paragraph three of the syllabus.

       {¶10} CSB’s complaint alleged, inter alia, prior concerns arising out of Mother’s and

Father’s case with CCDCFS and alleged that neither parent worked on their case plan objectives

and, in fact, stopped participating in any services or court proceedings.

       In determining whether the juvenile court’s adjudication of dependency is against
       the manifest weight of the evidence, “this court [reviews] the entire record,
       weighs the evidence and all reasonable inferences, considers the credibility of
                                                5


       witnesses and determines whether in resolving conflicts in the evidence, the [trier
       of fact] clearly lost its way and created such a manifest miscarriage of justice that
       the [adjudication] must be reversed[.]”

In re R.L., 9th Dist. Summit No. 28387, 2017-Ohio-4271, ¶ 8, quoting In re C.S., 9th Dist.

Summit No. 26178, 2012-Ohio-2884, ¶ 5, quoting In re A.W., 195 Ohio App.3d 379, 2011-Ohio-

4490, ¶ 8 (9th Dist.).

       {¶11} Mother and Father challenge the finding that V.S. was dependent pursuant to R.C.

2151.04, which defines “‘dependent child’” as 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.

       {¶12} With regard to a finding of dependency under this subsection, this Court has

recognized the following:

       It is clear that, with 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. Further, while R.C.
       2151.04(D)(2) requires that the trial court base its finding of dependency, in part,
       on “other conditions in the household of the child,” the legislature did not limit
       which conditions may be considered.

In re W.C., 9th Dist. Summit No. 22356, 2005-Ohio-2968, ¶ 18. Moreover, “R.C. 2151.04(D)

allows the trial court to make a determination that a child is dependent before any actual harm is

suffered by the child as a result of previous acts by the parents and contemporaneous conditions

* * *[.]” (Emphasis in original.) In re T.P.-M., 9th Dist. Summit No. 24199, 2008-Ohio-6437, ¶

11. In other words, the law does not require the juvenile court to “‘experiment with the health
                                                6


and safety of a newborn baby where the state can show by clear and convincing evidence, that

placing the child in such an environment would be threatening to the health and safety of that

child.’” Id. at ¶ 17, quoting In re Campbell, 13 Ohio App.3d 34, 36 (12th Dist.1983).

       {¶13} In this case, the evidence establishes, and Mother and Father do not dispute, that

their parental rights were recently terminated as to two other children in their household who had

been adjudicated abused and neglected. Mother and Father both argue, however, that CSB failed

to prove by clear and convincing evidence that either of them committed an act that formed the

basis for those adjudications. Specifically, the parents argue that the two other children were

living with an aunt and uncle when concerns for abuse and neglect arose.

       {¶14} The caseworker for CCDCFS testified, however, that Mother, Father, and the two

children (A.P. and C.S.) were all staying with the aunt and uncle, although Mother and Father

would on occasion stay in hotels and leave the children with their relatives. She added that the

State-wide Automated Child Welfare Information System (“SACWIS”) indicated multiple

substantiated referrals for neglect regarding both Mother and Father.

       {¶15} The CSB intake caseworker was more precise. She testified that a substantiated

report of neglect against Mother in 2013, an indicated report of sexual abuse by Father against

A.P. in 2014, physical abuse arising out of domestic violence between Mother and Father, and

circumstances of general neglect led to the removal of A.P. and C.S. and their adjudications.

Accordingly, the juvenile court’s finding that Mother and/or Father committed an act that formed

the basis for the abuse and neglect adjudications of A.P. and C.S. was not against the manifest

weight of the evidence.

       {¶16} The specific concerns that gave rise to the prior adjudications of A.P. and C.S.

included a lack of appropriate housing, domestic violence between Mother and Father, and
                                                 7


substance abuse and mental health issues involving both parents. The parents’ issues prevented

them from providing adequate care to the children. The CCDCFS caseworker testified that

neither Mother nor Father actively participated in their case plan objectives to address those

issues. In fact, the agency had a difficult time locating Mother and Father during the pendency

of the case, because they moved around, often to different counties. The caseworker testified

that the prior case went on for at least two years. Mother was approximately three months

pregnant with V.S. when her parental rights to A.P. and C.S. were terminated, but she hid that

information from CCDCFS.

       {¶17} The concerns that gave rise to CSB’s involvement with V.S. included housing

issues, substance abuse, domestic violence, and concerns that the parents were neglecting the

child’s basic needs. Specifically, there were reports that the family was asking neighbors for

food and household items. Father was heard verbally abusing Mother and telling her to kill

herself. Various caseworkers from CSB went to the parents’ home on multiple occasions to

investigate. Despite seeing a television on through the window, and hearing a voice inside say,

“Let the dogs out[,]” no one would answer the door. One of the caseworkers left a card with a

phone number for the parents to call, but neither did.

       {¶18} The Stow police department received a call from the parents’ former neighbor

who reported that Mother and Father were neglecting V.S., because they were using heroin and

did not have food and diapers for the baby. As Officer Reiheld was documenting the complaint,

he received a call from a caseworker at CSB who had received a similar referral regarding the

family. The caseworker had gone to Mother’s and Father’s residence twice, but no one answered

the door. The caseworker asked the officer to assist in a welfare check of the child. When

Officer Reiheld and a partner went to Mother’s and Father’s residence, there was an eviction
                                                   8


notice on the door. Although the officer heard female voices inside the home, their conversation

stopped when he knocked. No one answered the door. Eventually the officers left. They

received an anonymous tip from a neighbor who had been watching. The neighbor reported that

Mother and Father had just left the home with another person in a silver Toyota. Officer Reiheld

did a background check on Mother and Father and discovered that there was an outstanding

warrant for Mother’s arrest. Spotting the silver Toyota, the police stopped the vehicle. Mother

and Father, along with V.S., were passengers. The police arrested Mother and told the driver of

the car to take Father and the baby to the police station to sort out the situation.

       {¶19} Upon questioning, Father lied about his and Mother’s having lost custody of other

children. In addition, although Father said that he and Mother had planned to go to a hotel for

the night, he could not articulate any plans for where the family would live after that. As for

Mother, the officer testified that he witnessed some “bizarre” behavior. Based on the allegations

of heroin use, the inability of the parents to articulate where they would be living after eviction,

Mother’s arrest warrant, and the young age of the baby, Officer Reiheld took custody of V.S.

pursuant to Juv.R. 6.

       {¶20} Both parents attended a family team decision meeting at CSB the next day. They

admitted that they were being evicted and had not secured a new residence. Father claimed to be

receiving $2,000 per month from the Veterans’ Administration, so it was unclear why the family

was not able to pay their rent. The only explanation Father offered was that he had loaned

money to someone who had not repaid it, and the family fell behind on rent. Mother and Father

both also admitted to having mental health diagnoses. Father signed a release to substantiate that

he was diagnosed with post-traumatic stress disorder and was receiving services and medication

from the Veterans’ Administration.         Mother reported that she was taking medication for
                                               9


depression, but she refused to sign a release for the agency to verify her claims with her mental

health provider that she was receiving treatment. In addition, although both Mother and Father

initially agreed to submit to drug screens, both subsequently declined, claiming that they would

have problems urinating.

       {¶21} Based on a review of the evidence, this is not the exceptional case where the

finder of fact clearly lost its way and created a manifest miscarriage of justice in adjudicating

V.S. as a dependent child. The concerns that existed when A.P. and C.S. were adjudicated

abused and neglected, and when Mother’s and Father’s parental rights were terminated as to

those children, persisted when V.S. was removed from her parents shortly thereafter. Mother

and Father did not comply with their case plan objectives or demonstrate that they had remedied

the issues necessitating the removals of A.P. and C.S. during the two-year pendency of that case.

Mother became pregnant during the Cuyahoga County case, neither reporting the pregnancy nor

recognizing it as an incentive to remedy her issues.       Instead, Mother and Father hid the

pregnancy. In addition, they moved from location to location without informing caseworkers. In

the instant case, Mother and Father avoided contact with caseworkers and police who attempted

to investigate to determine the well-being of V.S. Mother and Father were deceptive and evasive

in their dealings with the agencies charged with investigating the well-being of the child. The

parents continued to engage in abusive behaviors with one another. Despite an alleged monthly

income of $2,000, their eviction from their home was imminent, and they were unable to afford

necessities of food and diapers for the baby. Under these circumstances, the juvenile court’s

finding that three-month old V.S. was in danger of being abused or neglected by her parents

because of the circumstances surrounding the abuse and neglect of A.P. and C.S., as well as

other conditions in the child’s household, was not against the manifest weight of the evidence.
                                                10


Accordingly, the juvenile court did not err by adjudicating V.S. a dependent child pursuant to

R.C. 2151.04(D).

       {¶22} Mother’s and Father’s identical assignments of error are overruled.

                                                III.

       {¶23} Mother’s and Father’s assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas, Juvenile Division, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT
                                          11


SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.

DANIEL R. BACHE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.

SARAH HULBURT, Guardian ad Litem.
