[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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Case Nos. 14-15-05, 14-15-06


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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      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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