[Cite as In re L.J., 2011-Ohio-98.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      HOCKING COUNTY


IN THE MATTER OF: [L.J.] and [S.J.],         :
                                             :
[Adjudicated Neglected] Children.            :          Case Nos.: 10AP8 & 10AP9
                                             :
                                             :
                                             :           DECISION AND
                                             :           JUDGMENT ENTRY
                                             :    File-stamped date: 1-10-11


                                      APPEARANCES:

David A. Sams, West Jefferson, Ohio, for Appellant.

Laina Fetherolf, Hocking County Prosecuting Attorney, and Ann Allen McDonough,
Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for Appellee.


Kline, J.:

{¶1}         Ray and Henrietta Johnson (hereinafter the “Johnsons”) appeal the judgment

of the Hocking County Court of Common Pleas, Juvenile Division, which found their

children to be educationally neglected. Because competent, credible evidence supports

the juvenile court’s decision, we disagree. Accordingly, we affirm the judgment of the

juvenile court.

                                             I.

{¶2}         The Johnsons have two daughters. S.J. was born on July 4, 1997, and L.J.

was born on October 28, 1998. (Collectively, we will refer to S.J. and L.J. as the

“Children.”) The Johnsons were approved to home school their Children for the 2008-

09 school year. But the Johnsons were not approved for home schooling the following

year, and the Children were not attending school when the 2009-10 school year began.
Hocking App. Nos. 10AP8 & 10AP9                                                    2


As a result, on October 16, 2009, the Hocking County Children Services Board

(hereinafter “Children Services”) filed two complaints alleging that the Children were

neglected.

{¶3}      On November 10, 2009, the juvenile court entered a protective order that

granted Children Services temporary custody of the Children. Several weeks later, the

Children were delivered to Children Services and placed into foster care.

{¶4}      Because the Johnsons failed to appear for several court dates, the trial court

could not hold a dispositional hearing within ninety days of the original two complaints.

See R.C. 2151.35(B)(1) (“The dispositional hearing shall not be held more than ninety

days after the date on which the complaint in the case was filed.”). As a result, on

January 6, 2010, Children Services filed two new complaints alleging neglect. (The

juvenile court eventually dismissed the October 16, 2009 complaints.)

{¶5}      At an April 5, 2010 hearing, Ray and Henrietta Johnson testified about their

Children’s educations. The Johnsons agreed (1) that they had not submitted an

academic assessment report for the 2008-09 school year and (2) that they had not been

approved for home schooling for the 2009-10 school year. But even though they failed

to comply with the requirements for home schooling, the Johnsons claimed that they

had been properly educating their Children.

{¶6}      Following the hearing, the juvenile court found the Children to be

educationally neglected. And after a subsequent hearing, the juvenile court ordered the

Children to remain in the temporary custody of Children Services.
Hocking App. Nos. 10AP8 & 10AP9                                                        3


{¶7}       The Johnsons appeal and assert the following assignment of error: I. “THE

FINDING OF NEGLECT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

                                              II.

{¶8}       Under their assignment of error, the Johnsons advance two general

arguments. Their first argument relates to R.C. 2151.23(A)(1), which “provides that the

trial court must determine the issue of neglect or dependency as of the date specified in

the complaint.” In re Barnhart, Athens App. No. 05CA8, 2005-Ohio-2692, at ¶20, citing

In re Hay (May 31, 1995), Lawrence App. No. 94CA23. In the proceedings below, the

relevant complaints were filed on January 6, 2010. As such, the Johnsons contend that

the juvenile court erred because, at that time, the Children “were properly enrolled in a

home-schooling program through the Berne Union Local School District.” Merit Brief of

Appellant Parents, R.J. & H.J. at 2. Secondly, the Johnsons argue that “there was no

evidence that [they had] refused to educate their [C]hildren[.]” Merit Brief of Appellant

Parents, R.J. & H.J. at 2. For either of these reasons, the Johnsons contend that the

trial court’s educational-neglect finding is against the manifest weight of the evidence.

{¶9}       Under R.C. 2151.35, clear-and-convincing evidence must support a finding of

neglect. See Barnhart at ¶17; In re Pieper Children (1993), 85 Ohio App.3d 318, 326

(citation omitted). To be clear and convincing, the evidence must “‘produce in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be established.’”

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

(1954), 161 Ohio St. 469, at paragraph three of the syllabus. Although the clear-and-

convincing-evidence standard is a higher degree of proof than the preponderance-of-
Hocking App. Nos. 10AP8 & 10AP9                                                      4


the-evidence standard, it is less stringent than the beyond-a-reasonable-doubt

standard. See Barnhart at ¶17, citing In re Baby Girl Doe, 149 Ohio App.3d 717, 2002-

Ohio-4470, at ¶89; State v. Schiebel (1990), 55 Ohio St.3d 71, 74.

{¶10}     “In reviewing whether a lower court’s decision is based upon clear and

convincing evidence, a reviewing court will examine the record to determine whether the

trier of fact has enough evidence before it to satisfy the requisite degree of proof. See

Schiebel * * * at 74. If there is some competent, credible evidence to support the lower

court’s judgment, then the reviewing court may not reverse it. Id.” In re D.W., Athens

App. No. 06CA42, 2007-Ohio-2552, at ¶19. See, also, Barnhart at ¶18. “The trial

court’s discretion in making the final determination should be given ‘the utmost respect,

given the nature of the proceeding and the impact the court’s determination will have on

the lives of the parties concerned.’” Id., quoting In re Alfrey, Clark App. No. 01CA0083,

2003-Ohio-608, at ¶102.

{¶11}     Under R.C. 2151.03(A)(3), a “‘neglected child’ includes any child * * * [w]hose

parents, guardian, or custodian neglects the child or refuses to provide proper or

necessary subsistence, education, medical or surgical care or treatment, or other care

necessary for the child’s health, morals, or well being[.]” (Emphasis added.)

{¶12}     We find that competent, credible evidence supports the juvenile court’s

educational-neglect finding – regardless of whether the Children were properly enrolled

in a home-schooling program on January 6, 2010. Here, there is substantial evidence

that the Johnsons refused to provide proper educations for their Children. For example,

the Johnsons did not comply with the assessment requirements of Ohio Adm.Code

3301-34-04. Under Ohio Adm.Code 3301-34-04(A), parents of home-schooled children
Hocking App. Nos. 10AP8 & 10AP9                                                    5


“shall send to the superintendent an academic assessment report * * * for the previous

school year[.]” It is undisputed that the Johnsons failed to complete the mandatory

academic assessment reports for 2008-09. Furthermore, the Johnsons were not

approved for home schooling for the 2009-10 school year. (The Children were properly

enrolled in a home-schooling program for the 2009-10 school year only after Children

Services obtained temporary custody.) And finally, aside from generalities, the

Johnsons could not testify as to their Children’s reading or math skills. Essentially, the

Johnsons (1) did not comply with the requirements for home schooling, (2) were not

approved for home schooling for the 2009-10 school year, and (3) had no effective

means of demonstrating their Children’s academic achievements. As a result, we find

that competent, credible evidence supports the juvenile court’s educational-neglect

finding.

{¶13}      Accordingly, we overrule the Johnsons’ assignment of error and affirm the

judgment of the juvenile court.

                                                                 JUDGMENT AFFIRMED.
Hocking App. Nos. 10AP8 & 10AP9                                                   6


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellants shall pay the costs
herein taxed.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Hocking County Court of Common Pleas, Juvenile Division, to carry this judgment into
execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.


       Harsha, J. and Abele, J.: Concur in Judgment and Opinion.



                                   For the Court


                                   BY:_____________________________
                                      Roger L. Kline, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
