[Cite as Delaware Cty. Job & Family Servs. Dept. v. Bagby, 2011-Ohio-3812.]




                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



DELAWARE COUNTY DJFS

        Plaintiff-Appellee

-vs-

DENA J. BAGBY

        Defendant-Appellant

JUDGES:
Hon. Patricia A. Delaney, P. J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.

Case No. 11 CAF 01 002


OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of
                                                      Common Pleas, Juvenile Division,
                                                      Case No. 10-09-2151-01/02-c

JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               August 1, 2011



APPEARANCES:
For Plaintiff-Appellee                       For Defendant-Appellant Mother

KATHERYN MUNGER                              PAMELLA A. LAMMON
ASSISTANT PROSECUTOR                         103 North Union Street
140 North Sandusky Street                    Suite D
Delaware, Ohio 43015                         Delaware, Ohio 43015

Guardian ad Litem for Minors

JENNIFER MYERS
THOMAS & COMPANY, LPA
163 North Sandusky Street, Suite 103
Delaware, Ohio 43015

Wise, J.

      {¶1}    Appellant-Mother Dena J. Bagby appeals the decision of the Delaware

County Court of Common Pleas, Juvenile Division, which found her minor child, D.J.,

born in February, 2010, to be dependent under R.C. 2151.04(C). The relevant facts

leading to this appeal are as follows.

      {¶2}    This case was initiated by Appellee Delaware County Department of Job

and Family Services (“DJFS”) on September 9, 2010, when a complaint for neglect and

dependency was filed in the Delaware County Juvenile Court. The complaint involved

appellant-mother’s two children, L.B. and D.J., and was based primarily upon concerns

about appellant's mental health, as further analyzed infra.

      {¶3}    On November 22, 2010 an evidentiary hearing was held on the complaint.

The trial court issued a judgment entry which was journalized on December 1, 2010.

The court therein dismissed the complaint for neglect and dependency involving

appellant’s older child, L.B., and dismissed the complaint for neglect and that portion of

the dependency complaint filed under 2151.04(B) regarding the younger child, D.J.

However, the court found dependency under 2151.04(C) had been proven by clear and
convincing evidence regarding D.J. The court proceeded to disposition and awarded

temporary custody of D.J. to her father, Christopher Jordan, who is now living separate

and apart from appellant.

      {¶4}     On January 3, 2011, Appellant-Mother filed a notice of appeal. She herein

raises the following two Assignments of Error:

      {¶5}     “I.   WHETHER THE JUDGMENT OF THE TRIAL COURT WAS AN

ABUSE OF DISCRETION WHEN IT FOUND [D.J.] DEPENDENT UNDER R.C.

2151.04(C).

      {¶6}     “II. WHETHER THE JUDGMENT OF THE TRIAL COURT FINDING [D.J.]

DEPENDENT UNDER R.C. 2151.04(C) WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

                                          I., II.

      {¶7}     In her First and Second Assignments of Error, Appellant-Mother contends

the trial court erroneously adjudicated D.J. a dependent child under R.C. 2151.04(C).

We disagree.

      {¶8}     Pursuant to R.C. 2151.35(A), a trial court must find that a child is an

abused, neglected, or dependent child by clear and convincing evidence. In re Kasper

Children (June 30, 2000), Stark App.No. 1999CA00216. As a general rule, the trier of

fact is in a far better position to observe the witnesses' demeanor and weigh their

credibility. See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. As an

appellate court, we neither weigh the evidence nor judge the credibility of the witnesses.

Our role is to determine whether there is relevant, competent and credible evidence

upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10,
1982), Stark App. No. CA-5758, unreported. Accordingly, judgments supported by some

competent, credible evidence going to all the essential elements of the case will not be

reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley

Construction (1978), 54 Ohio St.2d 279, 281, 376 N.E.2d 578.

      {¶9}    Included in the Ohio statutory definition of a “dependent child” under R.C.

2151.04 is any child “[w]hose condition or environment is such as to warrant the state,

in the interests of the child, in assuming the child's guardianship.” R.C. 2151.04(C).

      {¶10} The record in the case sub judice indicates that Delaware County DJFS

was first referred to appellant's family in February 2010, shortly after the birth of D.J.

The first referral focused on concerns with the proper care of D.J., who during birth had

been injured and needed to have her arm pinned against her clothes. The department’s

concern was that appellant had allowed the child's arm to remain unpinned at various

times. The investigative caseworker, Julie Showalter, later classified the referral as

unsubstantiated and indicated that the child’s arm had healed. See Tr. at 20-21. There

was further concern that due to her pregnancy and desire to nurse D.J. after birth,

appellant had gone off her mental health medications. There were also concerns about

appellant holding the infant and falling asleep and that there were cats in the house that

could access the crib.

      {¶11} The second referral DJFS received regarding appellant's care of D.J.

occurred in July 2010. The concerns were that appellant was not taking her medication,

that she had thrown clothing owned by D.J.'s father into a pond and had thrown a bowl

of cereal across the room while the children were present.
      {¶12} The third referral involved concerns about appellant’s compliance with

taking medication, as well as an incident where appellant had taken the baby into the

woods and kept her there at night. Delaware County DJFS thereupon recommended

temporary removal of both L.B. and D.J. from appellant's custody due to concerns about

the continued instability of appellant-mother’s mental health.             See Complaint,

September 9, 2010.

      {¶13} Appellant presently contends that there were significant gaps in the

agency’s proof of these referrals, and she maintains that there have always been

secondary caregivers involved in providing care for the children. However, the record is

replete with evidence that appellant’s failure to take her medications had led to repeated

instances of angry or violent outbursts and volatile, bizarre behaviors unsuitable for

parental coping with an infant. Appellant would “go off” in front of the children and would

be very difficult to calm down, requiring warnings that law enforcement would be

summoned. By the time of the adjudicatory hearing, appellant had been hospitalized for

mental health reasons six times. Appellant had expressed her belief that people were

watching her through the television set. She has demonstrated questionable decision-

making skills and has acted out by biting at adult family members. On several

occasions, she failed to re-diaper the baby after changing her, leading in one instance

to the baby defecating on appellant inside a restaurant. In regard to the incident of

taking D.J. into the woods at night, appellant told people either that she feared the

father killing her or that it was an attempted cure for the baby’s constipation.
       {¶14} Upon review, we are not inclined to disturb the evidentiary determinations

of the trial court as the fact finder in this instance, and we hold the evidence presented

supports the conclusion that D.J. is a dependent child under R.C. 2151.04(C).

       {¶15} Appellant’s First and Second Assignments of Error are therefore

overruled.

       {¶16} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Delaware County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, P. J., and

Farmer, J., concur.



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                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
JWW/d 0707

             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT




DELAWARE COUNTY DJFS                        :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :          JUDGMENT ENTRY
                                            :
DENA J. BAGBY                            :
                                         :
      Defendant-Appellant                :         Case No. 11 CAF 01 002




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

judgment of the Court of Common Pleas, Juvenile Division, Delaware County, Ohio, is

affirmed.

      Costs assessed to appellant.




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                                                           JUDGES
