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In Re: D.N. A Minor Child

October 27, 2011


Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 10116176

The opinion of the court was delivered by: Sean C. Gallagher, J.:

Cite as In re D.N.,



BEFORE: S. Gallagher, J., Stewart, P.J., and Cooney, J.

{¶1} Appellant D.N.*fn1 appeals the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, that adjudicated her delinquent and committed her to the custody of the Ohio Department of Youth Services ("ODYS"). For the reasons stated herein, we reverse the judgment of the trial court and remand the matter for a new trial.

{¶2} On September 3, 2010, a delinquency complaint was filed against appellant, a then 17-year-old child, alleging she was delinquent by reason of having committed acts that, if committed by an adult, would constitute two felonious assaults with a hammer in violation of R.C. 2903.11(A)(2), one against her mother and one against her 18-year-old sister. The complaint also alleged that appellant committed an act, which, if committed by an adult, would constitute the offense of domestic violence in violation of R.C. 2919.25(A), against a family or household member, who was her one-year-old brother.

D.N. denied the allegations in the complaint, and the case proceeded to an adjudicatory hearing.

{¶3} The testimony at the hearing reflected the following. Appellant had been removed from her mother's custody and placed in long-term foster care, because of concerns about mother's substance abuse and parenting skills. About two months prior to the incidents herein, appellant ran away from the Berea Children's Home and returned to her mother's house. On September 3, 2010, appellant and her mother engaged in an argument after mother's phone was dropped in the toilet by her one-year-old. The argument escalated, and eventually mother went and got a hammer. Mother testified that "D.N. thought I was going to hit her with it, which I didn't. And I told her that all I wanted her to do was leave[.]" When defense counsel attempted to ask about prior acts involving mother threatening appellant with objects, the trial court sustained objections to the questioning.

{¶4} There was also testimony that mother keeps several weapons in her closet, including a stick with nails coming out of it, a hammer, and a gun. However, the judge would not allow testimony as to whether mother had ever used the weapons on appellant.

{¶5} Mother conceded that she threatened appellant with the hammer and that appellant "had every reason to believe that [mother] would use the hammer against her[.]" Appellant's sister indicated that mother did not try to use the weapon, but was threatening appellant to get her to leave the house.

{¶6} Appellant went to grab the hammer from mother. She stated she went to grab the hammer "because I didn't want [mother] to hit me with it." Appellant indicated that she did not feel safe to leave and referenced a prior incident in which mother beat her with a broom and would not let her leave. She also stated that she was not going to leave without all of her clothes.

{¶7} Appellant's sister tried to break up the contest over the hammer and was struck in the mouth during the tussle. Appellant testified that at this point, she and her sister began to fight, her mother put her hands around appellant's neck, and her sister was "just pounding on me." She further stated that her mother got on top of her and "yanked out the hammer and hit me with it" and her sister "was just stomping me." She claimed that after this occurred, a neighbor walked into the house. Appellant suffered a split lip and a black eye. She was taken to a hospital, given a CAT scan, and treated with ice. At the time of the hearing, appellant still had a knot near her eye.

{¶8} After getting the hammer away, appellant began swinging the hammer "everywhere" and struck her sister and mother. Appellant testified she was afraid of her mother and that she was defending and protecting herself. She denied intentionally hitting anyone with the hammer.

{¶9} When the neighbor entered the apartment, she witnessed yelling and saw that mother was trying to hold appellant to keep her from hitting mother. The neighbor testified that appellant "grabbed the hammer and was just swinging it." The neighbor saw mother get hit with the hammer and heard mother saying "why won't you just leave" to appellant. Mother was also asking for the police.

{ΒΆ10} Appellant's one-year-old brother was knocked out of his stroller during the incident. A ...

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