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In re N.J.

Court of Appeals of Ohio, Twelfth District, Warren

September 5, 2017

IN THE MATTER OF: N.J., et al.


          Robyn W. Cambron, for children

          Jeffrey W. Stueve, for appellant T.H.

          David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, Justice Drive, Lebanon, for appellee Warren County Children's Services

          David E. Smith, for N.J.


          M. POWELL, J.

         {¶ 1} Appellant, T.H. (Mother), appeals a decision of the Warren County Court of Common Pleas, Juvenile Division, adjudicating her children abused and dependent.

         {¶ 2} Mother and N.J. (Father) are the parents of three minor children, K.J., Ni.J., and Ne.J. Mother and the children reside together in an apartment; Father lives nearby. Mother works 40 hours a week. Father watches the children in their home when Mother is at work. The children's paternal grandmother (Grandmother) lives nearby and frequently visits the children in their home.

         {¶ 3} On June 9, 2016, Grandmother went to Mother's home around noon. Mother was at work, Father was on the phone, K.J. and Ne.J. were asleep, and Ni.J. was sitting on the floor against a wall. At the time, K.J. was six years old, Ni.J. was four years old, and Ne.J. was 11 months old. After Father left the apartment to pick up Mother from work, Ni. J. got up and walked toward Grandmother. Upon noticing that Ni. J. was limping, Grandmother asked him to pull down his pants. When he did so, Grandmother observed bruises and marks, primarily on the left side of his body around the rib cage and buttocks. Grandmother also noticed welts on Ni. J.'s penis and that his penis was "ridiculously swollen." Suspecting that Father was the perpetrator of the abuse, Grandmother immediately called 9-1-1 and reported, "my grandbaby was abused."

         {¶ 4} Lebanon Police Officer Christopher Brock responded to the scene. Officer Brock is an experienced police officer whose training includes child abuse investigation, forensic interview of children, and evidence collection. The officer spoke with Grandmother who was visibly upset and crying. Grandmother showed the officer Ni. J.'s injuries. Officer Brock observed old injuries and scars on Ni. J.'s shoulders, lower back, forehead, and head. He further observed red, raised, fresh welts on Ni. J.'s torso. Several of the welts were "half-moon" shaped. Based upon his training and experience, the "half-moon" shape of the welts indicated to Officer Brock that Ni.J. had been struck with something that had been "doubled-over." Regarding some of Ni. J.'s injuries, the officer also observed what he believed to be the transfer of "finish" from an HDMI cable found in the home. Upon pulling down Ni.J.'s pants, the officer observed additional bruising, "a lot of redness, " and numerous half-moon shaped welts on Ni.J.'s thighs and lower abdomen. Additionally, Ni.J.'s penis was very swollen, red, and bleeding and there was blood in Ni. J.'s underwear.

         {¶ 5} Officer Brock asked Ni. J. "who did this" and "with what." Ni. J. and his brother K.J. responded by retrieving a leather belt with a buckle and a doubled-over HDMI cable from an upstairs bedroom. Neither K.J. nor Ne.J. displayed signs of physical injury. Nevertheless, Grandmother took K.J., Ni.J., and Ne.J. to the hospital for examination.

         {¶ 6} Upon learning that Father had an outstanding arrest warrant, Officer Brock arranged for Father to be arrested prior to his return to Mother's home. Upon being arrested, Father was brought to the Lebanon Police Department and questioned regarding Ni.J.'s injuries. Father admitted "whooping" Ni.J. that day for sneaking food out of the refrigerator after being told several times not to and for urinating on himself. Father told the police he struck Ni.J. five times with a belt. Father however denied using the HDMI cable on Ni.J. Father stated he believed in whipping his children and that he had a strict "three strikes and you're out policy."

         {¶ 7} Later that day, Warren County Children Services ("WCCS") supervisor Ashley Stutzman and a caseworker met with Mother at her home. Upon learning there were allegations of physical abuse regarding her children, Mother replied, "my children are disciplined; they're not abused." Stutzman then informed Mother of Ni.J.'s injuries. Mother denied seeing any injuries the previous night when she bathed Ni.J. Mother stated that she had been at work since 4:00 a.m. that day and that Father was watching the children as he customarily does during her 40-hour work week. Mother told Stutzman that the children are typically disciplined with two to three whippings with a belt, or by writing sentences, doing push-ups or sit-ups, or by verbal counselling. Mother stated that both she and Father administer discipline to the children. Mother admitted she had concerns with Father's discipline of the children, believing it was too rough, and that she had noticed marks on Ni.J.'s back in the past. Mother further admitted she had spoken with Father about her concerns that he was too rough with the children. Following this interview, Mother agreed to a safety plan for the children to be removed from her home and placed with Grandmother.

         {¶ 8} Other family members also expressed concerns with the manner in which Father disciplined the children. Father's sister stated that she regularly visits the home, had previously noticed a mark on Ni.J., and had spoken with Father about being too rough and strict with the children. Grandmother stated that it had been going on for years, that Ni.J. always had bruises on his forehead and scars on his body, and that these concerns led her to frequently visit the children. Grandmother stated she had discussed her concerns with Father about two years ago. Grandmother further stated that she had called WCCS in the past but only asked general questions, and that she had called police to report the abuse but hung up before speaking with anyone. Grandmother admitted that her failure to follow through with these calls was because she feared Father would be sent to prison.[1]

         {¶ 9} Concerned that Mother and other family members were unable or unwilling to protect the children from Father, given the family's knowledge of Father's rough manner of disciplining the children, the family's failure to report Father to the proper authorities, and Mother's routine of leaving the children in Father's care during her work week, WCCS filed complaints on June 10, 2016, alleging that K.J., Ni.J., and Ne.J. were abused children under R.C. 2151.031(B), (C), and (D), and dependent children under R.C. 2151.04(C) and (D), and moved for temporary custody. The safety plan was terminated and the children were placed in foster care together.

         {¶ 10} On August 19, 2016, and September 2, 2016, a magistrate held an adjudicatory hearing and on September 15, 2016, entered an order finding that K.J., Ni.J., and Ne.J. were abused children under R.C. 2151.031 and dependent children under R.C. 2151.04(C) and (D).[2] Following a dispositional hearing, all parties agreed it was in the children's best interest to remain in the temporary custody of WCCS. Mother subsequently moved to set aside the magistrate's order adjudicating K.J., Ni.J., and Ne.J. as abused and dependent children. Mother argued that none of the children were dependent children under R.C. 2151.04, and that neither K.J. nor Ne.J. were abused children under R.C. 2151.031. On September 27, 2016, the juvenile court denied Mother's motions to set aside the magistrate's order and adopted the magistrate's order as an order of the juvenile court.

         {¶ 11} Mother now appeals, challenging the adjudication of K.J. and Ne.J. as abused children and K.J., Ni.J., and Ne.J. as dependent children in two assignments of error. Mother does not appeal the adjudication of Ni.J. as an abused child.

         {¶ 12} The state bears the burden of proof of establishing that a child is an abused or dependent child. "A trial court's adjudication of a child as abused, neglected, or dependent must be supported by clear and convincing evidence." In re T.B., 12th Dist. Fayette No. CA2014-09-019, 2015-Ohio-2580, ¶ 12, citing R.C. 2151.35(A). "Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. * * * It does not mean clear and unequivocal." (Emphasis sic.) Cross v. Ledford, 161 Ohio St. 469, 477 (1954).

         {¶ 13} With regard to construing the statutes involved here, R.C. 2151.01(A) provides

The sections in [R.C.] Chapter 2151 * * * shall be liberally interpreted and construed so as to effectuate the following purposes: To provide for the care, protection, and mental and physical development of children subject to [R.C.] Chapter 2151, whenever possible, in a family environment, separating the child from the child's parents only when necessary for the child's welfare or in the interests of public safety.

         {¶ 14} With these guiding principles in mind, we turn to Mother's assignments of error.

         {¶ 15} Assignment of Error No. 1:


         {¶ 17} Mother argues the juvenile court erred in adjudicating K.J., Ni.J., and Ne.J. as dependent children under R.C. 2151.04(C) and (D).

         Adjudication of K.J. and Ne.J. as Dependent Children under R.C. 2151.04(C)

         {¶ 18} Mother first challenges the adjudication of K.J. and Ne.J. as dependent children under R.C. 2151.04(C). The statute 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[.]"

         {¶ 19} The determination that a child is dependent requires no showing of fault on the parent's part. In re T.B.,2015-Ohio-2580 at ¶ 20. Rather, the focus is on the child's condition or environment, and whether the child was without adequate care or support. Id. Thus, dependency under R.C. 2151.04(C) requires "evidence of conditions or environmental elements that were adverse to the normal development of the child." In re E.R., 9th Dist. Medina No. 05CA0108-M, 2006-Ohio-4816, ¶ 13. However, a court may consider a parent's conduct insofar as it forms part of the child's environment. In re T.B. at ¶ 20; In re Burrell,58 Ohio St.2d 37, 39 (1979). A parent's conduct is significant if it has an adverse impact on the child sufficient to warrant ...

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