In re A.W.

2011 Ohio 4490, 960 N.E.2d 489, 195 Ohio App. 3d 379
CourtOhio Court of Appeals
DecidedSeptember 7, 2011
Docket25601
StatusPublished
Cited by21 cases

This text of 2011 Ohio 4490 (In re A.W.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.W., 2011 Ohio 4490, 960 N.E.2d 489, 195 Ohio App. 3d 379 (Ohio Ct. App. 2011).

Opinions

Belfance, Presiding Judge.

{¶ 1} Appellant, Brea M. (“Mother”), appeals from the decision of the Summit County Court of Common Pleas, Juvenile Division, that adjudicated her minor child, A.W., to be dependent and placed her in the temporary custody of the Summit County Children Services Board (“CSB”). This court reverses.

INTRODUCTION

{¶ 2} The central issue in this case stems from CSB’s removal of a newly born infant directly from the hospital in the belief that she was at risk of harm because [381]*381an older sibling had suffered injuries more than two years earlier. Mother has argued that there is no evidence that this infant is at similar risk of harm, or more precisely, that she is a dependent child pursuant to R.C. 2151.04(D).

BACKGROUND

{¶ 3} Mother’s first child, F.M., was born on August 14, 2007. At four months of age, F.M. was taken to the hospital, where she was found to have a hematoma on her brain and bruising on her chest. The child was subsequently adjudicated to be abused and dependent by the juvenile court pursuant to a stipulation by the parties. No perpetrator was ever identified. There is no evidence that either of A.W.’s parents was involved in harming F.M., and no criminal charges were brought against anyone. Mother initially engaged in a reunification plan, but at 17 years of age, she ultimately decided to surrender her parental rights.

{¶ 4} At the conclusion of the proceedings regarding F.M., the CSB caseworker learned that Mother was pregnant with another child. Thereupon, the caseworker initiated inquiries to area hospitals, which resulted in CSB’s learning when and where Mother delivered A.W. Two days after the child’s birth on March 15, 2010, CSB removed the infant from the hospital, based upon a claim that she was at risk of harm. The agency sought and obtained temporary custody upon an adjudication of dependency. Mother has now appealed and has assigned six errors for review.

First Assignment of Error

The trial court committed reversible error when it improperly found dependency under [R.C.] 2151.04(D) as that finding was against the manifest weight of the evidence.

{¶ 5} In her first assignment of error, Mother argues that the trial court finding of dependency under R.C. 2151.04(D) is not supported by the weight of the evidence.

{¶ 6} In its complaint, CSB alleged that A.W. was dependent under R.C. 2151.04(C), maintaining that the child’s “condition or environment is such as to warrant the state, in the interests of the child, in assuming the child’s guardianship.” The agency subsequently amended its complaint to also include R.C. 2151.04(D).

{¶ 7} Following the adjudicatory hearing, the magistrate found A.W. to be dependent under R.C. 2151.04(C). Thereafter, the trial judge rejected that finding and found A.W. to be dependent under R.C. 2151.04(D) instead. On appeal, Mother challenges the trial court finding that A.W. was dependent under [382]*382R.C. 2151.04(D). CSB does not challenge the trial court’s determination that A.W. was not dependent pursuant to R.C. 2151.04(C).

STANDARD OF REVIEW

{¶ 8} In determining whether an adjudication of a child as abused, neglected, or dependent is against the manifest weight of the evidence, this court “ ‘[reviews] the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the [adjudication] must be reversed[.]’ ” In re M.H., 9th Dist. No. 09CA0028, 2009-Ohio-6911, 2009 WL 5150363, at ¶ 14, quoting State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541.

{¶ 9} Moreover, an adjudication of abuse, neglect, or dependency must be established by clear and convincing evidence. Juv.R. 29(E)(4) and R.C. 2151.35(A). Clear and convincing evidence is evidence that will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 18 OBR 419, 481 N.E.2d 613.

R.C. 2151.04(D)

{¶ 10} R.C. 2151.04(D) provides that a dependent child is a child to whom both of the following apply:

(1) The child is residing in a household in which a parent, guardian, custodian, or other member of the household committed an act that was the basis for an adjudication that a sibling of the child or any other child who resides in the household is an abused, neglected, or dependent child.
(2) Because of the circumstances surrounding the abuse, neglect, or dependency of the sibling or other child and the other conditions in the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household.

R.C. 2151.04(D).

{¶ 11} A finding of dependency under this section requires proof that both of the above provisions apply. Thus, a lack of clear and convincing evidence on either paragraph will prevent a finding of dependency under R.C. 2151.04(D). Under the first paragraph of the statute, CSB was required to prove by clear and convincing evidence that A.W. would be residing in a household in which a member of that household had committed an act that was the basis of an adjudication that F.M. was an abused or dependent child. Alternatively, CSB was required to prove by clear and convincing evidence that A.W. would be [383]*383residing in a household in which a member of that household committed an act that was the basis of an adjudication of abuse, neglect, or dependency as to any other child residing in A.W.’s household. See In re P.G., 2d Dist. No. 22706, 2008-Ohio-4015, 2008 WL 3199474, at ¶ 24 (statutory language suggests that if the previously harmed child is not a sibling of the child at issue, then “it would make sense” that those two children should live in the same household before R.C. 2151.04(D) is applicable). In this case, there is no evidence that any child who was not a sibling would be residing in A.W.’s household. Therefore, the focus of this matter is upon that portion of the statute that refers to an adjudication of abuse, neglect, or dependency as to a sibling.

{¶ 12} Mother contends that CSB did not present evidence that satisfies the requirements of R.C. 2151.04(D)(1) because F.M. is not AW.’s sibling, as Mother’s parental rights to F.M. were terminated at the time of A.W.’s birth. We disagree. In examining the language of the statute, the legislature did not qualify the word “sibling” in any manner. Thus, although there may have been a legal termination of Mother’s parental rights, this did not negate the sibling relationship that was established by virtue of F.M. and AW.’s common biological mother. Consequently, for purposes of R.C. 2151.04(D), F.M. and A.W. are siblings.

{¶ 13} Mother next argues that CSB failed to satisfy R.C. 2151.04(D)(1) because F.M. would not be residing in the household with A.W. Although the parties have extensively debated the meaning of the word “household” as applied to the statute, that issue is not dispositive. This court has previously rejected Mother’s interpretation of R.C.

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Bluebook (online)
2011 Ohio 4490, 960 N.E.2d 489, 195 Ohio App. 3d 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aw-ohioctapp-2011.