[Cite as Delaware Cty. Job & Family Servs. Dept. v. Bagby, 2011-Ohio-3812.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
DELAWARE COUNTY DJFS
Plaintiff-Appellee
-vs-
DENA J. BAGBY
Defendant-Appellant
JUDGES: Hon. Patricia A. Delaney, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.
Case No. 11 CAF 01 002
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 10-09-2151-01/02-c
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 1, 2011
APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant Mother
KATHERYN MUNGER PAMELLA A. LAMMON ASSISTANT PROSECUTOR 103 North Union Street 140 North Sandusky Street Suite D Delaware, Ohio 43015 Delaware, Ohio 43015
Guardian ad Litem for Minors
JENNIFER MYERS THOMAS & COMPANY, LPA 163 North Sandusky Street, Suite 103 Delaware, Ohio 43015
Wise, J.
{¶1} Appellant-Mother Dena J. Bagby appeals the decision of the Delaware
County Court of Common Pleas, Juvenile Division, which found her minor child, D.J.,
born in February, 2010, to be dependent under R.C. 2151.04(C). The relevant facts
leading to this appeal are as follows.
{¶2} This case was initiated by Appellee Delaware County Department of Job
and Family Services (“DJFS”) on September 9, 2010, when a complaint for neglect and
dependency was filed in the Delaware County Juvenile Court. The complaint involved
appellant-mother’s two children, L.B. and D.J., and was based primarily upon concerns
about appellant's mental health, as further analyzed infra.
{¶3} On November 22, 2010 an evidentiary hearing was held on the complaint.
The trial court issued a judgment entry which was journalized on December 1, 2010.
The court therein dismissed the complaint for neglect and dependency involving
appellant’s older child, L.B., and dismissed the complaint for neglect and that portion of
the dependency complaint filed under 2151.04(B) regarding the younger child, D.J.
However, the court found dependency under 2151.04(C) had been proven by clear and convincing evidence regarding D.J. The court proceeded to disposition and awarded
temporary custody of D.J. to her father, Christopher Jordan, who is now living separate
and apart from appellant.
{¶4} On January 3, 2011, Appellant-Mother filed a notice of appeal. She herein
raises the following two Assignments of Error:
{¶5} “I. WHETHER THE JUDGMENT OF THE TRIAL COURT WAS AN
ABUSE OF DISCRETION WHEN IT FOUND [D.J.] DEPENDENT UNDER R.C.
2151.04(C).
{¶6} “II. WHETHER THE JUDGMENT OF THE TRIAL COURT FINDING [D.J.]
DEPENDENT UNDER R.C. 2151.04(C) WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
I., II.
{¶7} In her First and Second Assignments of Error, Appellant-Mother contends
the trial court erroneously adjudicated D.J. a dependent child under R.C. 2151.04(C).
We disagree.
{¶8} Pursuant to R.C. 2151.35(A), a trial court must find that a child is an
abused, neglected, or dependent child by clear and convincing evidence. In re Kasper
Children (June 30, 2000), Stark App.No. 1999CA00216. As a general rule, the trier of
fact is in a far better position to observe the witnesses' demeanor and weigh their
credibility. See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. As an
appellate court, we neither weigh the evidence nor judge the credibility of the witnesses.
Our role is to determine whether there is relevant, competent and credible evidence
upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, unreported. Accordingly, judgments supported by some
competent, credible evidence going to all the essential elements of the case will not be
reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley
Construction (1978), 54 Ohio St.2d 279, 281, 376 N.E.2d 578.
{¶9} Included in the Ohio statutory definition of a “dependent child” under R.C.
2151.04 is 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.” R.C. 2151.04(C).
{¶10} The record in the case sub judice indicates that Delaware County DJFS
was first referred to appellant's family in February 2010, shortly after the birth of D.J.
The first referral focused on concerns with the proper care of D.J., who during birth had
been injured and needed to have her arm pinned against her clothes. The department’s
concern was that appellant had allowed the child's arm to remain unpinned at various
times. The investigative caseworker, Julie Showalter, later classified the referral as
unsubstantiated and indicated that the child’s arm had healed. See Tr. at 20-21. There
was further concern that due to her pregnancy and desire to nurse D.J. after birth,
appellant had gone off her mental health medications. There were also concerns about
appellant holding the infant and falling asleep and that there were cats in the house that
could access the crib.
{¶11} The second referral DJFS received regarding appellant's care of D.J.
occurred in July 2010. The concerns were that appellant was not taking her medication,
that she had thrown clothing owned by D.J.'s father into a pond and had thrown a bowl
of cereal across the room while the children were present. {¶12} The third referral involved concerns about appellant’s compliance with
taking medication, as well as an incident where appellant had taken the baby into the
woods and kept her there at night. Delaware County DJFS thereupon recommended
temporary removal of both L.B. and D.J. from appellant's custody due to concerns about
the continued instability of appellant-mother’s mental health. See Complaint,
September 9, 2010.
{¶13} Appellant presently contends that there were significant gaps in the
agency’s proof of these referrals, and she maintains that there have always been
secondary caregivers involved in providing care for the children. However, the record is
replete with evidence that appellant’s failure to take her medications had led to repeated
instances of angry or violent outbursts and volatile, bizarre behaviors unsuitable for
parental coping with an infant. Appellant would “go off” in front of the children and would
be very difficult to calm down, requiring warnings that law enforcement would be
summoned. By the time of the adjudicatory hearing, appellant had been hospitalized for
mental health reasons six times. Appellant had expressed her belief that people were
watching her through the television set. She has demonstrated questionable decision-
making skills and has acted out by biting at adult family members. On several
occasions, she failed to re-diaper the baby after changing her, leading in one instance
to the baby defecating on appellant inside a restaurant. In regard to the incident of
taking D.J. into the woods at night, appellant told people either that she feared the
father killing her or that it was an attempted cure for the baby’s constipation. {¶14} Upon review, we are not inclined to disturb the evidentiary determinations
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[Cite as Delaware Cty. Job & Family Servs. Dept. v. Bagby, 2011-Ohio-3812.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
DELAWARE COUNTY DJFS
Plaintiff-Appellee
-vs-
DENA J. BAGBY
Defendant-Appellant
JUDGES: Hon. Patricia A. Delaney, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.
Case No. 11 CAF 01 002
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 10-09-2151-01/02-c
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 1, 2011
APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant Mother
KATHERYN MUNGER PAMELLA A. LAMMON ASSISTANT PROSECUTOR 103 North Union Street 140 North Sandusky Street Suite D Delaware, Ohio 43015 Delaware, Ohio 43015
Guardian ad Litem for Minors
JENNIFER MYERS THOMAS & COMPANY, LPA 163 North Sandusky Street, Suite 103 Delaware, Ohio 43015
Wise, J.
{¶1} Appellant-Mother Dena J. Bagby appeals the decision of the Delaware
County Court of Common Pleas, Juvenile Division, which found her minor child, D.J.,
born in February, 2010, to be dependent under R.C. 2151.04(C). The relevant facts
leading to this appeal are as follows.
{¶2} This case was initiated by Appellee Delaware County Department of Job
and Family Services (“DJFS”) on September 9, 2010, when a complaint for neglect and
dependency was filed in the Delaware County Juvenile Court. The complaint involved
appellant-mother’s two children, L.B. and D.J., and was based primarily upon concerns
about appellant's mental health, as further analyzed infra.
{¶3} On November 22, 2010 an evidentiary hearing was held on the complaint.
The trial court issued a judgment entry which was journalized on December 1, 2010.
The court therein dismissed the complaint for neglect and dependency involving
appellant’s older child, L.B., and dismissed the complaint for neglect and that portion of
the dependency complaint filed under 2151.04(B) regarding the younger child, D.J.
However, the court found dependency under 2151.04(C) had been proven by clear and convincing evidence regarding D.J. The court proceeded to disposition and awarded
temporary custody of D.J. to her father, Christopher Jordan, who is now living separate
and apart from appellant.
{¶4} On January 3, 2011, Appellant-Mother filed a notice of appeal. She herein
raises the following two Assignments of Error:
{¶5} “I. WHETHER THE JUDGMENT OF THE TRIAL COURT WAS AN
ABUSE OF DISCRETION WHEN IT FOUND [D.J.] DEPENDENT UNDER R.C.
2151.04(C).
{¶6} “II. WHETHER THE JUDGMENT OF THE TRIAL COURT FINDING [D.J.]
DEPENDENT UNDER R.C. 2151.04(C) WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
I., II.
{¶7} In her First and Second Assignments of Error, Appellant-Mother contends
the trial court erroneously adjudicated D.J. a dependent child under R.C. 2151.04(C).
We disagree.
{¶8} Pursuant to R.C. 2151.35(A), a trial court must find that a child is an
abused, neglected, or dependent child by clear and convincing evidence. In re Kasper
Children (June 30, 2000), Stark App.No. 1999CA00216. As a general rule, the trier of
fact is in a far better position to observe the witnesses' demeanor and weigh their
credibility. See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. As an
appellate court, we neither weigh the evidence nor judge the credibility of the witnesses.
Our role is to determine whether there is relevant, competent and credible evidence
upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, unreported. Accordingly, judgments supported by some
competent, credible evidence going to all the essential elements of the case will not be
reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley
Construction (1978), 54 Ohio St.2d 279, 281, 376 N.E.2d 578.
{¶9} Included in the Ohio statutory definition of a “dependent child” under R.C.
2151.04 is 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.” R.C. 2151.04(C).
{¶10} The record in the case sub judice indicates that Delaware County DJFS
was first referred to appellant's family in February 2010, shortly after the birth of D.J.
The first referral focused on concerns with the proper care of D.J., who during birth had
been injured and needed to have her arm pinned against her clothes. The department’s
concern was that appellant had allowed the child's arm to remain unpinned at various
times. The investigative caseworker, Julie Showalter, later classified the referral as
unsubstantiated and indicated that the child’s arm had healed. See Tr. at 20-21. There
was further concern that due to her pregnancy and desire to nurse D.J. after birth,
appellant had gone off her mental health medications. There were also concerns about
appellant holding the infant and falling asleep and that there were cats in the house that
could access the crib.
{¶11} The second referral DJFS received regarding appellant's care of D.J.
occurred in July 2010. The concerns were that appellant was not taking her medication,
that she had thrown clothing owned by D.J.'s father into a pond and had thrown a bowl
of cereal across the room while the children were present. {¶12} The third referral involved concerns about appellant’s compliance with
taking medication, as well as an incident where appellant had taken the baby into the
woods and kept her there at night. Delaware County DJFS thereupon recommended
temporary removal of both L.B. and D.J. from appellant's custody due to concerns about
the continued instability of appellant-mother’s mental health. See Complaint,
September 9, 2010.
{¶13} Appellant presently contends that there were significant gaps in the
agency’s proof of these referrals, and she maintains that there have always been
secondary caregivers involved in providing care for the children. However, the record is
replete with evidence that appellant’s failure to take her medications had led to repeated
instances of angry or violent outbursts and volatile, bizarre behaviors unsuitable for
parental coping with an infant. Appellant would “go off” in front of the children and would
be very difficult to calm down, requiring warnings that law enforcement would be
summoned. By the time of the adjudicatory hearing, appellant had been hospitalized for
mental health reasons six times. Appellant had expressed her belief that people were
watching her through the television set. She has demonstrated questionable decision-
making skills and has acted out by biting at adult family members. On several
occasions, she failed to re-diaper the baby after changing her, leading in one instance
to the baby defecating on appellant inside a restaurant. In regard to the incident of
taking D.J. into the woods at night, appellant told people either that she feared the
father killing her or that it was an attempted cure for the baby’s constipation. {¶14} Upon review, we are not inclined to disturb the evidentiary determinations
of the trial court as the fact finder in this instance, and we hold the evidence presented
supports the conclusion that D.J. is a dependent child under R.C. 2151.04(C).
{¶15} Appellant’s First and Second Assignments of Error are therefore
overruled.
{¶16} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Delaware County, Ohio, is hereby affirmed.
By: Wise, J.
Delaney, P. J., and
Farmer, J., concur.
___________________________________
JUDGES JWW/d 0707
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
DELAWARE COUNTY DJFS : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DENA J. BAGBY : : Defendant-Appellant : Case No. 11 CAF 01 002
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Delaware County, Ohio, is
affirmed.
Costs assessed to appellant.
JUDGES