Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re R.K.

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 9, 2020

IN RE R.K. A Minor Child

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. PO19303000

          Zukerman Lear & Murray, Co., L.PA., Brian A. Murray and Larry W. Zukerman, for respondent-appellant

          Carolyn Kaye Ranke and Nancy T. Jamieson, for petitioners-appellees.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶ 1} Respondent-appellant, R.K. ("appellant"), brings the instant appeal challenging the trial court's judgment granting a juvenile civil protection order ("JCPO") filed by petitioners-appellees. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶ 2} The instant matter arose from an ongoing, two-year dispute between neighbors. Appellant and his family have lived next door to petitioners-appellees (collectively "petitioners") for approximately ten years. At some point, a dispute arose regarding which family owned the tree lawn near the end of petitioners' driveway. The police had been contacted on multiple occasions regarding the dispute. At some point in 2018, the tree lawn dispute ended.

         {¶ 3} The petitioners' family consists of D.W., mother, L.W., father, and two daughters, Sa.W. and St.W. Appellant and Sa.W. are in the same grade and attend the same school. This appeal primarily focuses on several incidents that have occurred between appellant and Sa.W. after the tree lawn dispute subsided.

         {¶ 4} D.W. alleged that appellant was engaging in conduct in order to deliberately annoy Sa.W. and cause her and the family mental distress. Several incidents purportedly occurred between March 2018 and March 2019. D.W. alleged that appellant committed the offense of menacing and caused the family mental distress by (1) whistling at Sa.W., (2) building a snow and ice barrier in February 2018 that prevented the family from entering their driveway, (3) building a "graphic" snowman that had a penis and testicles in March 2018, (4) posting a photo and video on Instagram[1] in February 2019 in which appellant alleged that Sa.W. was stalking him, and (5) blocking Sa.W.'s path on the sidewalk to the school bus in February 2019. The specific details of these incidents will be set forth in further detail below.

         {¶ 5}On March 14, 2019, D.W. filed a petition for a protection order, pursuant to R.C. 2151.34, against appellant. D.W. sought protection for herself, her husband L.W., her 11-year old daughter Sa.W., and her 9-year old daughter St.W. In her petition, D.W. alleged, in relevant part,

7. Most recently on [February 18, 2019, ] in the evening [appellant] posted a photo of [Sa.W.] in her bathroom closing the blinds. The next morning, [appellant and his step brother] stood in the path of [Sa.W.] physically blocking her access to the bus stop. That afternoon, [appellant] posted a video online stating (1) He threw a stick at [Sa.W.], (2) Whistled inappropriate[e]ly at her in school, in public, and on the bus (3) and put a snowman in her driveway blocking her access to her driveway.
* * *
On [March 2, 2018, ] [appellant] built a snowman with a penis [and] testicles on the [petitioners'] property facing [Sa.W.'s] bedroom. The snowman appeared to have urine [and] blue liquid on it.
[Appellant and] his family were warned to stop this behavior by the police or they could face criminal menacing charges.
Shaker schools have determined that the incidents from [February 19 through February 20, 2019] are cyber bullying.
Shaker school has also documented [appellant] inapprop[riately] whistling beginning in 2011.
Shaker police have multiple reports dating back to 2011.
[Appellant] may be encouraged by his family to continue abusing [Sa.W. and] her family/property due to Father's action: theft of [petitioners'] property, [h]arassment to [D.W. and L.W.]
8. [Appellant's] actions have caused [Sa.W. and] our family mental distress. [Sa.W.] is anxious [and] afraid because of (1) Online posts [and] videos, (2) physical actions by [appellant and] friends/family make her feel that she is immediate danger. She is afraid, sad, embarrassed [because] of [appellant's] conduct. She feels this way at school [and] at home since [appellant] lives next door. She worries that [appellant] may physically hurt her, her family, her friends, her property [and] her dog.
[Sa. W.] is very worried that [appellant and] his family will retaliate with their words [and] physical actions * * * [b]ecause of the repeated pattern of conduct by [appellant and] his family/friends.

         {¶ 6} A magistrate granted an ex parte JCPO on March 14, 2019, designating D.W., L.W., and both daughters as protected parties. A magistrate held a full hearing on the petition on March 22, 2019. During the hearing, D.W., Sa.W., appellant, and appellant's father testified.

         {¶ 7} On March 26, 2019, the magistrate granted D.W.'s petition for a JCPO. The magistrate ordered the protection order to remain in effect until June 6, 2027, at which point appellant would reach the age of 19. On March 27, 2019, the trial court adopted the magistrate's decision.

         {¶ 8} Appellant filed objections to the trial court's judgment adopting the magistrate's decision on April 9, 2019. On May 1, 2019, the trial court issued a judgment entry overruling appellant's objections and adopting the magistrate's decision.

         {¶ 9} Appellant filed the instant appeal on May 13, 2019, challenging (1) the magistrate's March 26, 2019 judgment entry granting the protection order, and (2) the trial court's May 1, 2019 judgment overruling his objections to the magistrate's decision. Appellant assigns six errors for review:

I. The petitioner failed to offer sufficient evidence to support the issuance of a juvenile civil protection order against the respondent.
II. The juvenile court's judgment was against the manifest weight of the evidence because the petitioner never established that the respondent committed any of the enumerated offenses set forth in R.C. 2151.34(C)(2).
III. The juvenile court's judgment was against the manifest weight of the evidence because there was no evidence, let alone competent, credible evidence that the petitioner and/or any of her family members were in danger of future harm by the respondent.
IV. The juvenile court's judgment was against the manifest weight of the evidence because the court never found that the respondent committed any of the enumerated offenses set forth in R.C. 2151.34(C)(2) and/or all the elements of such an offense.
V. The juvenile court abused its discretion in including the petitioner, the petitioner's husband, and her youngest daughter on the protection order.
VI. The juvenile court abused its discretion in ordering that the terms of the protection order it issued against the respondent shall be effective for more than eight years, until June 6, 2027.

         {¶ 10} To the extent that appellant's assignments of error and the arguments raised therein are interrelated, they will be addressed together.

         II. Law and Analysis

         A. Standard of Review

         {¶ 11} R.C. 2151.34 authorizes juvenile courts to issue and enforce protection orders against juvenile respondents, regardless of the familial relationship between the parties. The statute became effective on June 17, 2010, after the General Assembly passed Am.Sub.H.B. 10. See In re E.P., 8th Dist. Cuyahoga No. 96602, 2011-Ohio-5829, ¶ 6.

         {¶ 12} In order to obtain a JCPO under R.C. 2151.34(C)(2), the petitioner must allege in the petition that the respondent violated one of the offenses enumerated in the statute. Specifically, R.C. 2151.34(C) provides, in relevant part,

(2) The petition shall contain or state all of the following:
(a) An allegation that the respondent engaged in a violation of section 2903.11 [felonious assault], 2903.12 [aggravated assault], 2903.13 [assault], 2903.21 [aggravated menacing], 2903.211 [menacing by stalking], 2903.22 [menacing], or 2911.211 [aggravated trespass] of the Revised Code, committed a sexually oriented offense, or engaged in a violation of any municipal ordinance that is substantially equivalent to any of those offenses against the person to be protected by the protection order, including a description of the nature and extent of the violation;
* * *
(c) A request for relief under this section.

         {¶ 13} In In re E.P., this court set forth the applicable standard of review for a trial court's decision with respect to a protection order:

whether the protection order should have been issued at all (i.e., whether the petitioner met his or her burden by a preponderance of the evidence) is essentially a manifest weight of the evidence review. Rauser v. Ghaster, 8th Dist. [Cuyahoga] No. 92699, 2009[-]Ohio[-]5698, ¶ 12, citing Caban v. Ransome, 7th Dist. [Mahoning] No. 08MA36, 2009[-]Ohio[-]1034, ¶ 7. Judgments supported by competent, credible evidence going to all the essential elements of the claim will not be reversed on appeal as being against the manifest weight of the evidence. Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007[-]Ohio[-]4918, 874 N.E.2d 1198, ¶ 3. See also Young v. Young, 2d Dist. [Greene] No. 2005-CA-19, 2006[-]Ohio[-]978, ¶ 22 (When an appellant challenges whether the protection order should have been issued at all, the standard of review is whether the trial "court's decision was supported by sufficient competent, credible evidence.").

In re E.P. at ¶ 18.

         {¶ 14}As an initial matter, the record reflects that petitioners properly petitioned the court, in compliance with R.C. 2151.34. In the petition, petitioners alleged that appellant committed the offense of "criminal menacing."

         {¶ 15} The record also reflects that the magistrate complied with the requirements set forth in R.C. 2151.34(D). After granting the ex parte protection order on March 14, 2019, the magistrate held a full hearing on the petition on March 22, 2019. Following the hearing, the magistrate determined, by a preponderance of the evidence, that appellant engaged in menacing by stalking, in violation of R.C. 2903.211. (Tr. 135.)

         {¶ 16} Furthermore, before turning to the merits of this appeal, we will address appellant's legislative intent argument regarding the juvenile civil protection order statute. Specifically, appellant argues that R.C. 2151.34 was enacted in response to the Shynerra Grant and Johanna Orozco tragedies and in order to prevent teenage dating violence, not to encourage every juvenile that has a fight or an issue with a classmate to run to the courthouse and file a petition.

Shynerra Grant was a 17-year-old high school graduate from Toledo who was headed to college on a scholarship. She was shot and killed by her ex-boyfriend in 2005. For more than a year before this tragic shooting, her ex-boyfriend stalked and abused her, including an incident in 2004 when he broke into her home and broke her jaw. Shynerra had tried to obtain a protection order against her ex-boyfriend, but was turned away from the courts.
Johanna Orozco, was shot in the face by her ex-boyfriend in 2007 -days after he was released from juvenile prison for raping her. Orozco lived, but has disfiguring injuries. During their relationship, her ex-boyfriend had repeatedly hit, pushed, and kicked her. Orozco had also tried to obtain a protection order against her ex-boyfriend, but was unable to get one due to the law regarding protection orders at that time.

In re E.P., 8th Dist. Cuyahoga No. 96602, 2011-Ohio-5829, at ¶ 7-8.

         {¶ 17} In support of his legislative intent argument, appellant directs this court's attention to In re E.P. In re E.P. involved two sixth graders that got into a fight on the school bus during which the petitioner sustained a broken nose. Although the boys offered conflicting accounts of the fight, this court recognized that the record was devoid of any evidence that petitioner was in danger of future harm by respondent:

The two boys had never been in a fight with each other before this incident. There was no evidence that E.P., who had never before gotten into a fight with anyone or had any disciplinary issues, had ever threatened A.G. with harm - before or after the bus incident. Nor was there any evidence that E.P. had engaged in any pattern of conduct that would amount to harassing A.G. or bullying him - physically or mentally. And notably, A.G. testified that he was not afraid of E.P.

Id. at ΒΆ 44. Regarding the legislature's intent in enacting R.C. 2151.34, this court explained, "[t]his court does not believe that the legislature intended for every child who gets into a fight at school to be able to obtain a juvenile civil protection order. The potential ramifications of such a holding would be far reaching. This could not have been what ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.