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In re I.K.-W.

Court of Appeals of Ohio, Ninth District, Summit

July 10, 2019

IN RE: I.K.-W.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN-17-07-0578

          NICHOLAS KLYMENKO, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          WILLIAM WHITAKER, Attorney at Law, for Appellee.

          DIANNE MARIE CURTIS, Attorney at Law, for Appellee.

          JOSEPH KERNAN, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL JUDGE.

         {¶1} Appellant, S.K. ("Mother"), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that adjudicated her minor child dependent and placed the child in the temporary custody of the child's father, R.W. ("Father"). This Court reverses and remands.

         I.

         {¶2} Mother and Father are the parents of I.K.-W., born April 30, 2012. According to the allegations in the initial complaint in this case, Summit County Children Services Board ("CSB") had a prior case with I.K.-W., which resulted in an adjudication that the then three-year-old child was abused and dependent based on her sexualized knowledge and behavior, but no one was identified as the perpetrator of the abuse. The child was returned to Mother's custody under an order of protective supervision. Protective supervision was later terminated, and the prior case was closed.

         {¶3} On July 31, 2017, CSB filed the complaint to commence this case, again alleging that I.K.-W. had been sexually abused. This time, the complaint alleged that Father had been the perpetrator of the abuse. At the time this case began, the child was living with Mother in Summit County and Father lived in Lucas County. CSB's complaint sought a disposition of protective supervision and a no contact order against Father.

         {¶4} Prior to the scheduled adjudicatory hearing, CSB filed a case plan, which focused on providing services to address the allegations in the complaint. Notably, the only concerns identified by CSB in the case plan pertained to Father's alleged sexual abuse of the child.

         {¶5} The parties convened for an adjudicatory hearing before a magistrate on October 2, 2017. During an off-the-record discussion between the parties and their counsel, Mother and Father purportedly agreed that the trial court could adjudicate their child dependent. They signed and initialed written waivers and the magistrate spoke to them on the record.

         {¶6} The magistrate later issued an adjudicatory decision, which incorporated the allegations in an amended complaint that was filed at the same time. The amended complaint deleted some of the allegations about Father sexually abusing the child. It also added several unsworn statements of Father that he denied abusing the child, he had experts who could support his defense, and he "believe[d] that [Mother] ha[d] created a false belief in [the child] that sexual abuse has occurred[.]"

         {¶7} The matter proceeded to a contested dispositional hearing, during which Father presented numerous expert and lay witnesses, attempting to prove that he had not abused I.K.-W. but that Mother had coached the child to make false allegations and/or traumatized the child by overreacting to the child's disclosures. Mother presented the testimony of lay witnesses but was not prepared to present an expert witness to contradict the testimony of Father's experts. Ultimately, the trial court adjudicated the child dependent and placed her in the temporary custody of Father, under an order of protective supervision.

         {¶8} Mother appealed and raised two assignments of error. After an initial review of the record in this case, this Court ordered the parties to brief additional issues regarding whether the trial court's adjudication of I.K.-W. complied with statutory and juvenile rule requirements to protect the due process rights of the parents. Because the due process issue is ...


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