[Cite as In re G. McC., 2013-Ohio-5310.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN RE:                                      :       JUDGES:
                                            :
         G. McC.                            :       Hon. Sheila G. Farmer, P.J.
                                            :       Hon. John W. Wise, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
                                            :
                                            :       Case No. 2013CA00103 and
                                            :                2013CA00106
                                            :
                                            :
                                            :       OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court
                                                    of Common Pleas, Family Division,
                                                    Case No. 2012 JCV 01245


JUDGMENT:                                           Affirmed


DATE OF JUDGMENT:                                   December 2, 2013



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant Mother

LISA A. LOUY                                        STACY M. ZIPAY
Stark County Department                             Stark County Public Defender
of Job and Family Services                          201 Cleveland Ave. SW, Suite 104
300 Market Avenue North                             Canton, OH 44702
Canton, OH 44702
                                                    For Defendant-Appellant Father

                                                    RODNEY A. BACA
                                                    Schnars, Baca & Infantino, LLC
                                                    610 Market Avenue North
                                                    Canton, OH 44702
Stark County, Case No. 2013CA00103 and 2013CA00106                                           2

Baldwin, J.

      {¶1}     Appellants K. McC. and D.J. nka McC. appeal from the April 26, 2013

Judgment Entry of the Stark County Court of Common Pleas, Family Court Division.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}     G. McC.    (DOB 10/16/12) is the biological child of appellant K. McC.

(hereinafter “appellant father”) and appellant D.J. nka McC. (hereinafter “appellant

mother”).     On December 20, 2012, a complaint was filed by Stark County Department

of Job and Family Services (“SCDJFS”) alleging that G. McC. was a neglected or

dependent child. A shelter care hearing was held on December 21, 2012. Pursuant to

a Judgment Entry filed on the same date, the trial court found probable cause and the

child was placed in the temporary custody of her maternal aunt.          After appellants

refused to disclose the child’s location, appellants were placed in the custody of the

Stark County Sheriff’s Department where they remained briefly until the child was

located.

      {¶3}     On March 14, 2013, a hearing was held before a Magistrate. At the

hearing, Michele Fookes, a case worker with the Columbiana County Department of Job

and Family Services, Children’s Services Division, testified that she started working with

appellant mother in September of 2011 after appellant mother had given birth to an

older child in July of 2011. Fookes testified that the agency had concerns that appellant

mother was not bonding with such child, a son, and that she was homeless. A report

indicated that appellant mother was saying that she was going to hurt her son by

dropping him, that appellant had no diapers, bottles or clothing for her son and that

appellant did not know what her plans were going to be.
Stark County, Case No. 2013CA00103 and 2013CA00106                                         3


     {¶4}    Fookes stated that the agency drew up a case plan for appellant mother

that required her to complete a psychological examination, undergo individual

counseling, start anger management, find stable housing and income, and attend

parenting classes. She testified that appellant mother did not complete a psychological

examination or receive counseling, never completed the anger management program,

and completed parenting classes the week before the January 24, 2013 court hearing.

Appellant mother also moved from place to place and did not have any source of

income until she became involved with appellant father and relied on his income.

Fookes also testified that she had a hard time getting hold of appellant mother because

she had at least eight different residences and her telephone was not always working.

Fookes was involved with the case in Columbiana County from September of 2011 until

January of 2013.

     {¶5}    Fookes also testified that she was able to set up visitation between

appellant mother and her son, but that appellant mother did not consistently attend the

visits. According to Fookes, appellant mother attended four out of ten visits scheduled

by the agency. When temporary custody of the child was transferred to the eventual

legal guardians, the Browns, in February of 2012, they supervised the visits. Fookes

stated that she thought appellant mother attended three of such visits. The Browns,

who were appellant mother’s half sister and her husband, were granted legal custody of

appellant mother’s son on October 23, 2012. When the child at issue in this case was

born, appellant mother was residing in Stark County, Ohio.

     {¶6}    On cross-examination, Fookes testified that appellant mother stipulated to

the change of legal custody of her son to the Browns and that G. McC., the child in this
Stark County, Case No. 2013CA00103 and 2013CA00106                                          4


case, was never the subject of the Columbiana County case. She stated that when she

saw appellant mother with G. McC , the child appeared to be healthy, was clean and

that she had no concerns at that time. She also testified that when she visited appellant

mother’s house after October of 2012, she had no concerns about safety. She further

agreed that at the time of the final hearing in the Columbiana case in January of 2013,

she did not have concerns with the child in this case being with appellant and did not

make any referral to Stark County.

     {¶7}    The next witness to testify was Lindsay DeHaas, an investigative worker

assigned to G. McC.’s case after SCJFS received a referral on December 19, 2012.

SCDJFS had concerns that appellant mother had lost custody of her son in Columbiana

County and also concerns about the condition of the house because there allegedly

were bed bug infestations, animal feces on the floor and a dead fish in a fish tank. The

agency also had concerns about mental health issues. When DeHaas went to the

house in December of 2012, she did not observe feces or dead fish, although the house

was cluttered. Appellants admitted that there was a bed bug infestation, but would not

allow DeHaas     upstairs. Appellants denied that there were mental health issues and

appellant mother told DeHaas that she was in parenting classes. When DeHaas told

them that they would be asked to complete some services and agree to a voluntary

safety plan, appellants refused to sign all releases or comply with a safety plan.

Appellants were resistant to talking with DeHaas who believed that appellant father was

attempting to control appellant mother’s responses to questions.

     {¶8}    When asked about the risk to G. McC., DeHaas testified that appellant

mother had failed to complete any case plan services in Columbiana County and had
Stark County, Case No. 2013CA00103 and 2013CA00106                                          5


lost custody of her son in such case. She stated that there were no services in place to

reduce the risk to G. McC. and also testified that after the trial court ordered that the

child be placed into the temporary custody of SCJFS, appellants were uncooperative

and refused to produce the child and gave false information about where she was

located. DeHaas indicated that appellant father was aware of appellant mother’s case

in Columbiana County because both appellants answered questions about such case.

      {¶9}    On cross-examination, DeHaas testified that during the same visit,

appellant mother had adequate supplies for G. McC. and that the child did not have

observable marks or bruises on her and appeared to be happy and healthy.              She

testified that appellant mother seemed unsure how to handle the child, who was fussy,

and that appellant father had to take over. DeHaas agreed that appellants had been in

their current home for several months and that when she went to their home on

December 19, 2012 for a home visit, she did not believe that the child needed to be

removed from the home, but that a safety plan was needed. DeHaas testified that she

had information that appellant father had unaddressed mental health issues, but was

unable to verify the same and was not able to verify whether or not the bed bug

infestation had been taken care of by appellants’ landlord because appellants would not

sign a release for the landlord.

      {¶10}   During cross-examination, De Haas also testified that appellant father had

told her that he was receiving VA benefits to pay the landlord, but that she was unable

to verify VA income or rental payments due to appellants’ refusal to sign releases.

      {¶11}   At the hearing, appellant mother was called as if on cross. She testified

that she married appellant father in January of 2013. Appellant mother testified that she
Stark County, Case No. 2013CA00103 and 2013CA00106                                           6


did not complete the psychological examination in her Columbiana County Case, but

had completed one since. She also testified that she had not completed counseling

during the time of her case plan and was not in counseling. Appellant mother also

stated that she went to one anger management class and completed a parenting class

during her Columbiana County case plan.        She indicated that she currently was in

parenting classes through Incredible Years, Community Services, 1, 2, 3, 4 Parenting

Class and was currently enrolled in Goodwill Parenting. Appellant mother testified that

she voluntary enrolled in these classes and was not ordered to enroll in them.

      {¶12}   Appellant mother also testified that although she was not employed, there

was income through her husband. She admitted that when she was asked to sign

releases in December of 2012, she did not do so and did not sign the safety plan that

DeHaas asked her to sign. Appellant mother testified that she did not allow the case

worker into the upper level of her house.

      {¶13}   Jennifer Brown, appellant mother’s half sister, testified that she and her

husband had received custody of appellant mother’s son through Columbiana County.

She testified that they were supervising visits between appellant mother and such child

from February of 2012 through May of 2012 and that about twenty (20) visits had been

scheduled. She further testified that appellant mother did not attend all of them and that

they stopped doing visits because appellant mother was “violent, aggressive, loud”

towards Brown’s husband. Transcript of March 14, 2012 hearing at 43. At the time,

appellant mother’s son was present.

      {¶14}   Appellant mother also testified on direct. She testified that they were

receiving cash assistance while G. McC. was in their home and were able to purchase
Stark County, Case No. 2013CA00103 and 2013CA00106                                          7


supplies for her. She testified that they had been residing at the same location for

seven months and had a telephone. Appellant mother indicated that she refused to sign

the releases because she was overwhelmed that Children’s Services was at their house

and did not understand the consequences of her refusal to sign. She testified that they

did not allow DeHaas upstairs because they did not want her to get bit by bed bugs.

According to her, the landlord resolved the bed bug issue a week or two later.

      {¶15}   Appellant father testified that he was currently in the military and was in

the reserves. He testified that he received schooling and other assistance, but was not

enrolled in school. Appellant father testified that he received assistance with his rent

starting in November of 2012. He stated that when DeHaas came over, he was scared

because he was aware of appellant mother’s past history with Children’s Services.

Appellant father further testified that he did not remember any discussion about any

consequences or ramifications resulting from not signing the releases.

      {¶16}   Appellant father also testified that he was gone more than one weekend

per month for the reserves and that appellant mother took care of G. McC. when he was

gone. He testified that he could be gone for a day to five days to two weeks a month

depending on whether or not it was a reserve weekend.

      {¶17}   Following the hearing, the Magistrate, in a decision filed on March 15,

2013, found G. McC. to be a dependent child pursuant to R. C. 2151.04(B) and (C) and

scheduled a disposition hearing for March 19, 2013. Both parties filed objections to such

decision and the trial court scheduled an objection hearing for April 23, 2013. As

memorialized in a Judgment Entry filed on April 1, 2013, the trial court remanded the

matter to the Magistrate for findings of fact. An Amended Magistrate’s decision was
Stark County, Case No. 2013CA00103 and 2013CA00106                                        8


filed on April 18, 2013. The Magistrate, in such decision, found G. McC. to be a

dependent child pursuant to R. C. 2151.04(C). The trial court approved and adopted the

Magistrate’s Decision on the same date.

     {¶18}   After the April 23, 2013 hearing, the trial court, pursuant to a Judgment

Entry filed on April 26, 2013, approved and adopted the Magistrate’s Decision.

     {¶19}   Appellant father now appeals from the trial court’s April 26, 2013

Judgment Entry, raising the following assignment of error on appeal:

     {¶20}   THE FINDING BY THE COURT THAT THE CHILD WAS DEPENDENT

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR BASED ON

THE INSUFFICIENT EVIDENCE AND CONTRARY TO LAW.

     {¶21}   His appeal has been assigned Case No. 2013 CA 00103.

     {¶22}   Appellant mother also appeals from the        trial court’s April 26, 2013

Judgment Entry, raising the following assignment of error on appeal:

     {¶23}   THE TRIAL COURT ERRED IN FINDING THAT THE STARK COUNTY

DEPARTMENT OF JOB AND FAMILY SERVICES PROVED BY CLEAR AND

CONVINCING EVIDENCE THAT [G. Mc.] IS A DEPENDENT CHILD PURSUANT TO

R.C. 2151.04(C).

     {¶24}   Her appeal has been assigned Case No. 2013 CA 00106.

     {¶25}   For purposes of judicial economy, we shall address the two appeals

together.

     {¶26}   Case No. 2013 CA 00103 and Case No. 2013 CA 2016

     {¶27}   Appellants, in their respective assignments of error, challenge the trial

court’s finding that G. McC. was a dependent child.
Stark County, Case No. 2013CA00103 and 2013CA00106                                          9

      {¶28}   As this Court stated in In re Pierce, 5th Dist. Muskingum No. CT2008–

0019, 2008–Ohio–6716, a trial court's adjudication of a child as abused, neglected, or

dependent must be supported by clear and convincing evidence. R.C. 2151.35. Clear

and convincing evidence is that which produces “in the mind of the trier of fact a firm

belief or conviction as to the facts sought to be established.” In Re: Adoption of

Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross v. Ledford,

161 Ohio St. 469, 120 N.E.2d 118 (1954). When this Court reviews an adjudication to

determine whether the judgment is supported by clear and convincing evidence, we

must determine whether the trier of fact had sufficient evidence before it to satisfy the

clear and convincing degree of proof. In Re: Christian, 4th Dist. Athens No. 04CA10,

2004–Ohio–3146, citations omitted.

      {¶29}   Dependency is defined by R.C. 2151.04, which provides in pertinent part:

      {¶30}   “As used in this chapter, ‘dependent child’ means any child:

      {¶31}   “(C) Whose condition or environment is such as to warrant the state, in the

interests of the child, in assuming the child's guardianship;..”

      {¶32}   The focus of a charge that a child is dependent under R.C. 2151.04(C) is

on the child and his condition and not on the faults of the parents.” In Re Bishop, 36

Ohio App.3d 123, 521 N.E.2d 838 (5th Dist.1987); In re: Bibb, 70 Ohio App.2d 117, 435

N.E.2d 96 (1st Dist.1980); In re: Riddle, 79 Ohio St.3d 259, 680 N.E.2d 1227 (1977).

      {¶33}   We find that the judgment finding the child in this case to be dependent is

not against the manifest weight of the evidence. As is stated above, appellant mother,

in her previous case in Columbiana County, did not complete her case plan services

and lost custody of her son. She, in such case, did not complete anger management
Stark County, Case No. 2013CA00103 and 2013CA00106                                           10


and parenting classes and did not obtain individual counseling.            Michele Fookes

testified that a report in the Columbiana County case indicated that appellant mother

was saying that she was going to hurt her son by dropping him and appellant mother’s

own half sister testified that appellant mother was violent, aggressive and loud during a

visit with her son. With respect to the child in this case, there was testimony that

appellant mother was unsure how to handle the child when she was fussy and handed

her off to appellant husband who, by his own admission, was gone regularly. As a

result, appellant mother was sometimes home alone with the child.

      {¶34}   Moreover, both appellants, when asked to do so by DeHass, refused to

sign releases of information to comply with a safety plan and refused to cooperate with

the agency. When DeHaas visited their apartment in December of 2012, appellants

refused her access to the upper floor. In addition, there was testimony that appellant

father attempted to control what appellant mother said to DeHaas. Furthermore, after

the shelter care hearing, both appellants were ordered to produce G. McC. Not only did

they refuse to do so, but they gave false information to the court regarding her location.

      {¶35}   Based on the foregoing, we find that sufficient, credible evidence existed

to support the trial court's adjudication of the child as a dependent child.

      {¶36}   Appellant father’s sole assignment of error in Case No. 2013 CA 00103

and appellant mother’s sole assignment of error in Case No. 2013 CA 00106 are,

therefore, overruled.
Stark County, Case No. 2013CA00103 and 2013CA00106                                   11


      {¶37}   Accordingly, the judgment of the Stark County Court of Common Pleas,

Family Court Division, is affirmed.


By: Baldwin, J.

Farmer, P.J. and

Wise, J. concur.




                                      HON. CRAIG R. BALDWIN



                                      HON. SHEILA G. FARMER



                                      HON. JOHN W. WISE




CRB/dr
[Cite as In re G. McC., 2013-Ohio-5310.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                             :
                                              :
                                              :
        G. McC.                               :
                                              :       JUDGMENT ENTRY
                                              :
                                              :
                                              :
                                              :       CASE NO. 2013CA00103 and
                                                               2013CA00106


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Stark County Court of Common Pleas,           Family Court   Division is

affirmed. Costs assessed to appellants.




                                           HON. CRAIG R. BALDWIN



                                           HON. SHEILA G. FARMER



                                           HON. JOHN W. WISE
