[Cite as In re L.L., 2013-Ohio-599.]

                                           COURT OF APPEALS
                                       DELAWARE COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                                       JUDGES:
L.L., B.S., I.L.                                        Hon. Patricia A. Delaney, P.J.
                                                        Hon. William B. Hoffman, J.
ALLEGED DEPENDENT CHILDREN                              Hon. Sheila G. Farmer, J.

                                                        Case No. 12 CAF 07 0039

                                                        OPINION


CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas, Juvenile Division, Case Nos.
                                                        12-03-0788AB,     12-03-0789AB,12-
                                                        03-0790AB

JUDGMENT:                                               Affirmed



DATE OF JUDGMENT:                                       February 13, 2013



APPEARANCES:

For Appellant-Mother                                    For Appellee

O. ROSS LONG                                            KATHERYN L. MUNGER
125 North Sandusky Street                               140 North Sandusky Street
Delaware, OH 43015                                      3rd Floor
                                                        Delaware, OH 43015
For Steve Kuhn
                                                        Guardian ad Litem
DONALD WORLY
43 East Central Avenue                                  LYNNE SCHOENLING
Delaware, OH 43015                                      107 West Johnstown Road
                                                        Gahanna, OH 43230
For Brandon Long

THOMAS VATSURES
15 West Central Avenue
Delaware, OH 43015
Delaware County, Case No. 12 CAF 07 0039                                                 2


Farmer, J.

      {¶1}   On March 28, 2012, appellee, the Delaware County Department of Job

and Family Services, filed a complaint alleging L.L. born October 27, 2008, B.S. born

February 15, 2010, and I.L. born September 7, 2011, to be dependent children under

R.C. 2151.04(B) and (C). Mother of the children is appellant, Jessica Long; father of

L.L. and I.L. is appellant's husband, Brandon Long, and father of B.S. is Steve Kuhn.

      {¶2}   A hearing commenced on June 12, 2012.1 By judgment entry filed June

27, 2012, the trial court found the children to be dependent under R.C. 2151.04(C).

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶4}   "THE TRIAL COURT ERRED WHEN IT FOUND THE MINOR CHILDREN

TO BE DEPENDENT CHILDREN UNDER ORC 2151.04(C)."

                                           II

      {¶5}   "THE TRIAL COURT ERRED WHEN IT HEARD EVIDENCE THAT WAS

OUTSIDE THE ALLEGATIONS CONTAINED IN THE COMPLAINT."

                                            I

      {¶6}   Appellant claims the trial court erred in finding the children to be

dependent under R.C. 2151.04(C). We disagree.

      {¶7}   R.C. 2151.04 defines "dependent child."        Subsection (C) defines a

dependent child as 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."        An


1
 We note a transcript of the hearing was unavailable, so an agreed transcript was filed
for our review.
Delaware County, Case No. 12 CAF 07 0039                                                 3


adjudication of dependency requires clear and convincing evidence. Juv.R. 29(E)(4).

Clear and convincing evidence is that evidence "which will provide in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established." Cross

v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. See also, In re

Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where 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." Cross, at 477.

      {¶8}   Appellant argues at the time of the filing of the complaint, the children

were not dependent as they were in a safe, clean environment in the home of their

paternal great-grandmother, Bertha Conley. Appellant and her husband, Brandon Long,

also resided with Ms. Conley. Mr. Long is Ms. Conley's grandson. Appellee conceded

the care in Ms. Conley's home was adequate.

      {¶9}   Although the trial court acknowledged the care given by Ms. Conley, it

concluded the following in its June 27, 2012 judgment entry:



             Prior to the filing of the Complaint, DCDJFS had already informally

      intervened with the family. DCDJFS established a safety plan with the

      family in which Ms. Long was not to be left unsupervised with the children.

      Mr. and Ms. Long did not make formal arrangements for Ms. Conley to

      care for the children. Ms. Conley did so because of her own desire and

      the necessity to ensure the children's safety.

             Although the children were being cared for by Ms. Conley when the

      Complaint was filed, the children were not in a secure placement. Ms.
Delaware County, Case No. 12 CAF 07 0039                                             4


       Long could have taken the children with her at any moment and left the

       Conley residence, as she had previously done in October 2011. Although

       a safety plan prohibited Ms. Long from leaving the residence with the

       children, there were no legal or enforceable safeguards in place to guard

       against such action.



       {¶10} The trial court also noted appellant's lack of commitment to care for the

children:



             Further, Mr. and Ms. Long were not in a position to adequately care

       for the children without assistance.   The testimony presented at Trial

       demonstrates that Ms. Long was in an altered mental state.            She

       frequently fell asleep without notice and slept until late in the day. Ms.

       Long was unable to meet the children's basic needs and relied on Ms.

       Conley and Mr. Long to care for the children. Mr. Long voiced concerns

       that Ms. Long was abusing prescription medication. Though Ms. Long

       never tested positive for drug use, close family and friends all expressed

       alarm at her behaviors.

             Ms. Long herself testified that she suffered a medical condition that

       caused her to nod off throughout the day. Ms. Long testified that she had

       trouble remembering basic details about important events, a fact that was

       made evident by her testimony at Trial.         The evidence presented

       demonstrates that the children would not have been safe and adequately

       protected if Ms. Conley was not present to care for them. Mr. and Ms.
Delaware County, Case No. 12 CAF 07 0039                                                5


       Long were not ensuring that the children were being cared for. Instead,

       the children were being cared for despite Mr. and Ms. Long's actions.



       {¶11} Julie Showalter, an intake investigator for appellee, testified to Ms.

Conley's ability to care for the children, and opined appellant's attitude toward the care

of the children was one of disinterest. Lance Wise, the ongoing caseworker assigned to

the case, also testified as to the care given by Ms. Conley, and also explained that

appellant had not followed through on the case plan for drug assessment. While Mr.

Long and appellant lived in Ms. Conley's home, the care of the children was left to Ms

Conley. Mr. Long testified he was concerned about appellant's drug use, parenting

skills, and lack of care for the children. Because he was employed, the care of the

children fell to Ms. Conley. Appellant and Ms. Conley do not get along. Appellant

argues Ms. Conley does not favor B.S. and permits sibling abuse to B.S. because she is

not a blood relative.

       {¶12} Ms. Conley is 71 years of age and is responsible for the care of the three

children, ages 3, 2, and almost 1 year, even when appellant is in the home. Ms. Conley

is concerned about appellant's threats to remove the children from the home. Officer

Adam Graham, called to investigate a domestic dispute involving appellant, also

testified that appellant wanted to remove the children from Ms. Conley's home.

       {¶13} During a previous case plan, appellant disregarded the placement, left the

county, and did not tell the agency where she was. Appellant denied not informing the

agency of the move.

       {¶14} In its June 27, 2012 judgment entry, the trial court assessed the

relationships as follows:
Delaware County, Case No. 12 CAF 07 0039                                               6




              In addition, the children's young age contributes to finding of

      dependency. The children, ages 3, 2 and almost 1, are unable to protect

      themselves. The children are completely dependent on their guardian for

      care. Mr. and Ms. Long's continued instability leaves the children at risk of

      harm.

              Finally, the couple's unstable relationship leaves the children

      equally vulnerable. Testimony presented at trial reveals that the parents

      frequently argued with each other. The arguments have become physical

      at times. The arguments have resulted in law enforcement being called to

      the residence. Several of these arguments occurred in the presence of

      the children.   Testimony presented at Trial indicates that the children

      appeared scared and frightened by their parents' behavior. Both parents

      testified that the other parent is lying in their testimony. The inconsistency

      in testimony itself leads the Court to believe that the environment as it

      existed on March 28, 2012 warranted the State's involvement.



      {¶15} The trial court found the children dependent despite the fact that the father

of two of them lived in Ms. Conley's home. We do not find this to be an inconsistent

finding. The entire tenor of the testimony was that the only care and nurturing the

children received was from Ms. Conley.

      {¶16} Upon review, we find clear and convincing evidence to support the

dependency finding.

      {¶17} Assignment of Error I is denied.
Delaware County, Case No. 12 CAF 07 0039                                              7


                                           II

      {¶18} Appellant claims the trial court erred in permitting evidence outside the

complaint. We disagree.

      {¶19} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage, 31 Ohio St.3d 173 (1987). In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).

      {¶20} Appellant argues the testimony of alleged incidents of misconduct i.e., a

domestic dispute involving her brother and another at Ms. Conley's residence, were not

included in the allegations of the complaint, and they were irrelevant to the claim of

dependency. We note on June 7, 2012, the trial court granted appellee's request to

amend the complaint to include, "DCDJFS has ongoing concerns for discord between

Jessica Long and her family members."

      {¶21} "Relevant evidence" is "evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence." Evid.R. 401. Evid.R.

402 provides:



             All relevant evidence is admissible, except as otherwise provided

      by the Constitution of the United States, by the Constitution of the State of

      Ohio, by statute enacted by the General Assembly not in conflict with a

      rule of the Supreme Court of Ohio, by these rules, or by other rules
Delaware County, Case No. 12 CAF 07 0039                                                    8


       prescribed by the Supreme Court of Ohio. Evidence which is not relevant

       is not admissible.



       {¶22} Both of the incidents occurred during the pendency of the complaint and

reflected on the two issues presented: appellant's drug use and demeanor. In reading

the trial court's decision, we find it did not rely on the incidents in its legal conclusions;

any testimony concerning the incidents was not error.

       {¶23} Assignment of Error II is denied.

       {¶24} The judgment of the Court of Common Pleas of Delaware County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Hoffman, J. concur.




                                               s/ Sheila G. Farmer________________



                                              s / Patricia A. Delaney_____________



                                              s / William B. Hoffman_____________

                                                              JUDGES

SGF/sg
[Cite as In re L.L., 2013-Ohio-599.]


                  IN THE COURT OF APPEALS FOR DELAWARECOUNTY, OHIO

                                       FIFTH APPELLATE DISTRICT



IN THE MATTER OF:
L.L., B.S., I.L.                                  :
                                                  :
ALLEGED DEPENDENT CHILDREN                        :        JUDGMENT ENTRY
                                                  :
                                                  :
                                                  :        CASE NO. 12 CAF 07 0039




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

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

affirmed. Costs to appellant.




                                                  s/ Sheila G. Farmer________________



                                                  s / Patricia A. Delaney_____________



                                                  s / William B. Hoffman_____________

                                                               JUDGES
