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In re M.E.

Court of Appeals of Ohio, Fifth District, Ashland

May 15, 2017

IN THE MATTER OF: M.E., A Dependent/Neglected Child

         Appeal from the Ashland County Court of Common Pleas, Juvenile Division, Case No. 20163027

         Affirmed.

          For Plaintiff-Appellant P.E. JOSEPH P. KEARNS, JR. Mason, Mason & Kearns.

          For Defendant-Appellee CHRISTOPHER R. TUNNELL Ashland County Prosecutor By: J. PETER STEFANIUK Assistant County Prosecutor.

          Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          Baldwin, J.

         {¶1} Appellant P.E. appeals from the July 20, 2016 and September 27, 2016 Opinions and Judgment Entries of the Ashland County Court of Common Pleas, Juvenile Division.

         STATEMENT OF THE FACTS AND CASE

         {¶2} Appellant is the biological father of M.E. (DOB 3/10/2010). On April 27, 2016, after M.E. fell out of her third floor bedroom window and broke both of her wrists, her arm and her elbow, she was removed from her home by the Ashland Police Department. On April 28, 2016, a complaint was filed by Ashland County Department of Job and Family Services alleging that M.E. was a neglected and dependent child and seeking temporary custody of her. As memorialized in Judgment Entry filed on May 6, 2016, M.E. was placed in the temporary custody of the Ashland County Department of Job and Family Services. The trial court, in a Judgment Entry filed on May 9, 2016, ordered that appellant have no contact with the child. Appellant, through his attorney, objected to the no contact order.

         {¶3} An adjudicatory hearing was held on July 14, 2016. At the hearing, Tyiaces Jackson testified that she lived in the same apartment building as appellant and that prior to the day of the fall, she saw M.E. once about a year before in the third story window. According to Jackson. M.E. got in trouble and knew that she was not supposed to be in the window. Jackson testified that she spoke with appellant a couple of months before M.E. fell and that he told her that he had taken away M.E.'s bike and tablet as punishment for being near the window. Nicole Krause testified that she also lived in the same building and that, prior to the day of the fall, she had seen M.E. up in the third floor window a couple of times and told her to get out of the window. According to Krause, appellant heard her and came into the bedroom and shut and locked the window. She was unable to recall the last time that she saw M.E. in the window prior to her fall but testified that "it was a long period of time." Transcript at 27. She further testified that while she told appellant once about M.E. being in the window and he immediately took care of it, she could not recall when the conversation occurred. Krause testified on cross-examination that M.E. was a "very stubborn child" who, in the beginning, would not listen when told to get out of the window. Transcript at 29. She also testified that the window screens in the apartment complex were not safe and easily came out and that she spoke with appellant about the problem.

         {¶4} Sergeant John Simmons of the Ashland Police Department testified that he responded to a call about a child falling from a window. He observed appellant's apartment to be unclean and testified that there was "overflowing trash of (sic) some of the walls and floors as well." Transcript at 51. He further testified that items were strewn on the floor. Photos of the apartment were admitted as exhibits. According to Sergeant Simmons, he took the pictures after speaking with Children's Services earlier and learning that both children[1] who resided with appellant were sent home from school on that particular day with head lice.

         {¶5} Sergeant Simmons testified that he spoke with appellant and that appellant stated that he had intentionally left the window open to air the room out as part of spring cleaning. The Sergeant further testified that appellant indicated that he knew that M.E., her sister and a third child were playing in the bedroom and that the children had been playing in the window in the past. When he asked appellant what steps he had taken to prevent the children from falling out of the window, appellant "indicated to me that he had not taken any steps." Transcript at 58. Appellant told the Sergeant that he was on the couch on the living room when M.E. fell and told him that he had not contacted management about the window or attempted to secure the windows with screws, although he tried to keep the window locked. Sergeant Simmons further testified that Tyiaces Jackson told him that she had seen M.E. in the window earlier that day and yelled at the child and that it was not the first time. According to the Sergeant, Nicole Krause told him that she saw the children in the window that particular day and had seen them two or three weeks earlier and notified appellant.

         {¶6} Sergeant Simmons also testified that from speaking with the Children's Services worker, he learned that the children had been sent home from school for lice before and that, while appellant said that he had the window open for spring cleaning, there did not appear to be any cleaning going on. The following testimony was adduced when he was asked if the conditions of the home concerned him in terms of it being a residence for the children:

A: Absolutely.
Q: ...

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