Court of Appeals of Ohio, Twelfth District, Warren
FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION
Case No. 16-D000079
W. Cambron, for children
Jeffrey W. Stueve, for appellant T.H.
P. Fornshell, Warren County Prosecuting Attorney, Kirsten A.
Brandt, Justice Drive, Lebanon, for appellee Warren County
E. Smith, for N.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.
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). 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
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
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
14} With these guiding principles in mind, we turn
to Mother's assignments of error.
15} Assignment of Error No. 1:
16} THE TRIAL COURT ERRED BY ADJUDICATING THE MINOR
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).
of K.J. and Ne.J. as Dependent Children under R.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 ...