[Cite as In re J.M., 2021-Ohio-1415.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
IN THE MATTER OF: J.M., J.B., and : Case Nos. 20CA11 J.B. : 20CA12 : 20CA13 : 20CA14 Adjudicated Dependent, Neglected, : Abused Children. : : DECISION AND JUDGMENT : ENTRY : : : RELEASED: 04/19/2021 : _____________________________________________________________ APPEARANCES:
Krystin N. Martin, Assistant Pickaway County Prosecutor, Circleville, Ohio for Appellee. Brian A. Smith, Akron, Ohio for Appellant, Joshua Binkley. James A. Anzelmo, Gahanna, Ohio for Appellant, Derek Binkley. Autumn D. Adams, Toledo, Ohio for Appellant, Denise Reed. _____________________________________________________________
Wilkin, J.
{¶1} This is a consolidated appeal of three judgements (2020-JUV-118,
2020-JUV-119, and 2020-JUV-120) from the Pickaway County Court of Common
Pleas, Juvenile Division, that adjudicated J.M., J.B., and Jo.B. 1, as abused
children, and temporarily placed each child with a different relative. Prior to the
hearings in these cases, the children were in legal custody of their grandmother,
Lisa Binkley (“Lisa”), but it is the children’s parents who appeal said judgments.
Appellee is the Pickaway County Department of Job and Family Services
(agency).
1 Because there are two children involved in the cases with the initials of J.B., we distinguish Derek and Denise’s daughter by referring to her hereafter as Jo.B., but will continue to refer to Joshua and Dreema’s son as J.B. Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 2
The Parties and the Appeals
Case Nos. 20CA11 and 20CA12
{¶2} Appellant, Joshua Binkley (“Joshua”), the father of J.M. and J.B.,
appeals the judgments in In the Matter of J.B., 20CA11 and the judgments in In
the Matter of J.M., 20CA12, asserting two assignments of error: (1) the trial court
erred in proceeding to a dispositional hearing without first obtaining proper
service on appellant, mother of J.B., Dreema Glispie (“Dreema”), or mother of
J.M., Rebecca Moore (“Rebecca”) and (2) the trial court’s ruling, finding J.B. and
J.M. to be abused children under R.C. 2151.031, was an abuse of discretion.
Case Nos. 20CA13 and 20CA14
{¶3} Appellants, Derek Binkley (“Derek”) and Denise Binkley (“Denise”),
are the parents of Jo.B. and each filed a separate appeal. Derek appeals the
judgments in In the Matter of Jo.B., 20CA14, asserting four assignments of error:
(1) the trial court abused its discretion by admitting irrelevant, prejudicial
testimony into evidence, (2) the agency failed to establish by clear and
convincing evidence that Jo.B. was an abused child, (3) the trial court erred by
holding a dispositional hearing on Jo.B.’s custody without Derek being present in
violation of his due process rights under the due process clause of the
Fourteenth Amendment to the United States Constitution, and his confrontation
rights under the Sixth Amendment to the United States Constitution, and (4) the
trial court erred by holding a dispositional hearing on Jo.B.’s custody without
providing Derek notice of the dispositional hearing in violation of his due process
rights under the due process clause of the Fourteenth Amendment to the United Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 3
States Constitution, and his confrontation rights under the Sixth Amendment of
the United States Constitution.
{¶4} Denise appeals the same judgments in In the Matter of Jo.B.,
20CA13, asserting two assignments of error: (1) the trial court abused its
discretion in finding Jo.B. to be an abused child and (2) the trial court abused its
discretion in ordering Jo.B. into temporary custody of her maternal aunt rather
than return her into the care of her legal custodian, under protective supervision.
Holdings for all Four Appellate Cases
(Case Nos. 20CA11, 20CA12, 20CA13 and 20CA14)
{¶5} Having reviewed the records, the arguments presented by the
parties, and the applicable law, we affirm the trial court’s judgments of
adjudication and disposition in all four cases.
BACKGROUND
{¶6} Lisa, the grandmother of all three children, who lived at 135 Barry Dr.,
Circleville, Ohio, had legal custody of all three children: J.M. (16 years old), J.B.
(14 years old), and Jo.B. (2 years old). Testimony established that Derek and
Joshua, the fathers of the three children, also lived with Lisa (their mother) at the
Barry Dr. residence.
{¶7} Sergeant Roar of the Circleville Police Department testified that on
March 2, 2020, he opened an investigation regarding an individual that was
dropped off at the Berger Hospital in Circleville and subsequently died. The
investigation indicated that the individual had overdosed at the 135 Barry Dr.
residence. Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 4
{¶8} Pursuant to the investigation, the Circleville Police obtained a search
warrant on March 25, 2020 to search the 135 Barry Dr. residence. Inside the
house, police found several adults and two children. Testimony established that
J.B. was not at the home because he was with his aunt, Amber Binkley. Police
detained, or arrested, all the adults present on a possible homicide charge
regarding the deceased individual who died of the overdose. The police
contacted the agency because J.M. and Jo.B. were now at the house without any
adults left to care for them.
{¶9} During the search of the house, officers discovered an extensive
collection of drug paraphernalia. They also discovered an inflatable tub, toys,
children’s clothing, and a computer marked “K-12” that police believed was a
computer used for a child to do online schooling.
{¶10} When the agency’s caseworker, Mikki Vinkovich, arrived at the 135
Barry Dr. residence later that day, J.M. was in a police cruiser and Jo.B. was in
the house with her mother, Denise. Vinkovich spoke to Lisa about who might
take care of the children, and she suggested Amber Binkley. Vinkovich testified
that “[Amber Binkley] indicated [she] already had physical custody of [J.B.], he
liked to stay with, at her home but she did indicate that she would also care for
[Jo.B. and J.M.] until we found other relatives or what needed to happen.”
{¶11} The agency moved the trial court for an emergency custody order
for all three children, which was granted on March 26, 2020. On March 27, 2020,
the agency filed a complaint alleging Jo.B., J.B., and J.M. were abused. The Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 5
adjudicatory hearing was scheduled for August 24, 2020, but was rescheduled
for October 27, 2020 pursuant to continuances filed by counsel for the parents.
{¶12} On October 13, 2020, the agency filed an affidavit with the trial court
that in pertinent part averred that the addresses of Derek, Joshua, Denise, and
Dreema were unknown and could not be ascertained with “reasonable diligence.”
Therefore, affiant stated “the service of summons cannot be made and prays for
service by posting according to law.” Pursuant to the request in the state’s
affidavit, the court on October 13, 2020 posted notice that the adjudication
hearing was to take place on October 27, 2020. The court then instructed the
clerk to serve notice by regular mail to all the parents at their last known
addresses.
¶13} On October 27, 2020, the trial court held a hearing and adjudicated
all three children as abused under R.C. 2151.031(B). The court recessed, but
reconvened that same day and held the dispositional hearing, taking testimony
regarding the temporary disposition of the children. After hearing testimony, the
court ordered temporary placement of the three children with two aunts and an
uncle, respectively. The court issued judgment entries of adjudication finding all
three children abused under R.C, 2151.031(B), because their legal custodian,
Lisa, allowed the children to reside “where extensive drug activity and operations
were taking place.” The court further issued judgement entries of disposition that
ordered the children in the temporary custody of relatives. It is these judgment
entries that are being appealed. We begin by addressing Joshua’s appeal,
followed by Derek’s appeal, and then Denise’s. Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 6
Case Nos. 20CA11 (J.B.) & 20CA12 (J.M.) (Joshua’s Appeal)
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN PROCEEDING TO A DISPOSITIONAL HEARING WITHOUT FIRST OBTAINING SERVICE ON APPELLANT, THE MOTHER OF J.M., OR THE MOTHER OF J.B.
II. THE TRIAL COURT’S RULING FINDING J.B. AND J.M. TO BE ABUSED CHILDREN AS DEFINED UNDER R.C. 2151.031, WAS AN ABUSE OF DISCRETION.
ASSIGMENT OF ERROR I {¶14} In his first assignment of error, Joshua states that pursuant to R.C.
2151.35(B)(1) a trial court can hold the dispositional hearing “ ‘immediately after
the adjudicatory hearing if (1) all parties were served prior to the adjudicatory
hearing with all documents required for the dispositional hearing’ ” and (2) “ ‘all
parties consent to the dispositional hearing being held immediately after the
adjudicatory hearing,’ ” quoting In re C.T., 6th Dist. Sandusky No. S-18-005,
2018-Ohio-3823, ¶ 43. Joshua claims that the trial court failed to properly serve
him, J.M.’s mother, and J.B.’s mother with notice of the adjudicatory hearing.
Therefore, he argues, the trial court erred in proceeding directly from the
adjudicatory hearing to the dispositional hearing because it did not comply with
the service requirement in R.C. 2151.35(B)(1).
{¶15} Before proceeding with our analysis, we first find that Joshua,
pursuant to In re Shephard, 4th Dist. Highland No. 00CA12, 2001-Ohio-2499,
lacks standing to raise service arguments on behalf of Dreema (mother of J.B.)
and Rebecca (mother of J.M.). In In re Shepard, mother appealed an award of
permanent custody of her child to Highland County Children’s Services. In part,
she argued that the trial court did not comply with Juv.R. 16 in perfecting service Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 7
of process on the father. Id. at *4. We held that the mother did not have standing
to assert the defective service argument on behalf of the father because mother
did not show that the failure of service on father prejudiced her rights. Id.
Similarly, here, Joshua has put forth no evidence of injury to his rights due to any
potential failure of service on either mother. Therefore, we find that Joshua has
no standing to raise service of process issues pertaining Dreema and Rebecca.
Accordingly, we decline to address Joshua’s arguments he raises on their
behalves.
{¶16} Joshua claims the trial court erred in proceeding with service by
“posting and mail” because his address was not “unknown.” The clerk’s attempt
to serve him the notice of the hearing by certified mail at 135 Barry Dr.,
Circleville, Ohio 43113, which failed, was marked “return to sender” and “unable
to forward.” Joshua argues that the designation - unable to forward - does not
conclusively establish that he did not live at that address, or that his address was
“unknown;” therefore, the trial court improperly proceeded to serve him
notification of the hearing by publication, i.e., by posting and mail.
{¶17} Joshua also argues that the trial court’s service by posting and mail
contained two errors. First, the notice and affidavit were filed 14 days before the
adjudication hearing, as opposed to the 15-day period required by Local Rule 22
of the Pickaway County Juvenile Rules (Loc.Juv.R. 22). Second, Loc.Juv.R.
22(A) requires the trial court to issue service of publication by placing the notice
in a local newspaper and by posting the notice on the court website. Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 8
{¶18} Because of these various defects in service of notice of the
adjudication hearing, Joshua maintains, the trial court erred in proceeding
immediately from the adjudication hearing to the dispositional hearing in violation
of R.C. 2151.35(B)(1). By violating R.C. 2151.35(B)(1), he claims that he was
“deprived of [his] right to be heard and contest the allegations made against
[him.]” Therefore, Joshua argues that the trial court’s judgments of disposition
placing the children with relatives should be reversed.
{¶19} In response, the agency argues that the primary contention of
Joshua’s argument is that there was insufficient notice to the parties so as to
permit the trial court to proceed immediately from the adjudication of the children
to their disposition. According to R.C. 2151.35(B)(1), a trial court may proceed
directly from the adjudication of a child to their disposition if all parties were
served prior to the adjudication hearing with all the documents required for the
dispositional hearing. Further, notice of a rescheduled hearing upon a parent’s
counsel can constitute good notice to the parent of that hearing, citing In re J.G.,
8th Dist. Cuyahoga No. 100681, 2014-Ohio-2652; In re D.H., 177 Ohio App.3d
246, 894 N.E.2d 364 (8th Dist), ¶ 38. The agency argues that Joshua was
served prior to the adjudication hearing with all documents required and his
counsel acknowledged “good service.” Under these facts, the agency argues
that the court did not abuse its discretion in moving forward with the dispositional
hearing; therefore, the court’s dispositional judgment entries should be affirmed. Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 9
Law and Analysis
{¶20} R.C. 2151.35 and Juv.R. 29 and 34, require a court to bifurcate the
adjudicatory and dispositional determinations. In re Shifflet, 4th Dist. Athens No.
06CA13, 2006-Ohio-3576, ¶ 22, citing Baby Girl Baxter, 17 Ohio St.3d 229, 233,
479 N.E.2d 257, (1985) paragraph one of the syllabus. However, “[a] trial court
need not hold these hearings on separate days or even at separate times.” In re
Baby Boy W., 3rd Dist. Hancock No. 5-10-39, 2011-Ohio-2337, ¶ 14. But, if a
court desires to proceed immediately from the adjudication proceeding to the
disposition hearing, R.C. 2151.35(B)(1) and Juv.R. 34(A) set forth the necessary
requirements to do so. R.C. 2151.35(B)(1) provides:
If the court at an adjudicatory hearing determines that a child is an abused, neglected, or dependent child, the court shall not issue a dispositional order until after the court holds a separate dispositional hearing. The court may hold the dispositional hearing for an adjudicated abused, neglected, or dependent child immediately after the adjudicatory hearing if all parties were served prior to the adjudicatory hearing with all documents required for the dispositional hearing. (Emphasis added)
Juv.R. 34 (A) effectively mirrors the language in R.C. 2151.35(B)(1), with the
additional requirement the parties need to consent to holding the dispositional
hearing immediately after the adjudicatory hearing.2
{¶21} Regarding service, Juv.R. 16(A) provides:
2 Although Joshua cites to one case in his brief that discusses the need for service of documents and consent by the parties to allow a trial court to proceed immediately to the dispositional hearing, he makes no argument that there was a lack of consent by the parties, and we have no obligation to address issues that are not raised on appeal. State v. Brungs, 4th Dist., Pickaway No. 5CA18, 2005-Ohio-5776, ¶ 15, citing App.R.12(A); Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc., 24 Ohio St. 3d 198, 202, 494 N.E.2d 1101 (1986). Nevertheless, courts of appeals do have discretion to raise such issues sua sponte in the interests of justice. Abde's Black Angus Steak House No. III, Inc. at 202, 203. But we find no compelling circumstances herein to do so. At the onset of this case the parents only had residual rights of visitation and those rights were protected at the dispositional hearing. Additionally, the disposition in this case is merely temporarily placing the children with relatives; thus, the parents will have opportunities to voice their concerns if any, in future proceedings. Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 10
Except as otherwise provided in these rules, summons shall be served as provided in Civil Rules 4(A), (C) and (D), 4.1, 4.2, 4.3, 4.5 and 4.6. The summons shall direct the party served to appear at a stated time and place. Except as otherwise provided in this rule, when the residence of a party is unknown and cannot be ascertained with reasonable diligence, service shall be made by publication * * *. Service by publication shall be made by newspaper publication, by posting and mail, or by a combination of these methods. The court, by local rule, shall determine which method or methods of publication shall be used.
Loc.Juv.R. 22 provides in pertinent part:
(A) Service by publication can be made by newspaper publication or by posting and mail. Service by publication of a Motion for Permanent Custody must be accomplished by newspaper if the address of the party is unknown. *** (D) Publication by posting and mail: * * * 3. A request for service by publication by posting and mail shall be submitted at least fifteen (15) days before the date and time of the hearing stated in the notice. 4. The notice shall be posted on the Pickaway County Juvenile Court web site, in a section designated “Public Notices,” for seven (7) consecutive days. * * * 8. Service is complete when the notation of posting and mail is docketed by the Clerk.
{¶22} Consistent with R.C. 2151.35, we must first determine whether
Joshua was “served prior to the adjudicatory hearing with all documents required
for the dispositional hearing,” which in this case was notice of the adjudicatory
hearing. Testimony established that Lisa lived at the 135 Barry Dr. residence,
along with her sons, Joshua and Derek. In fact, the initial summons and
complaint were sent to 135 Barry Dr., and in April, Lisa signed the certified return
not only for herself, but also for both her sons. However, there was also
testimony that Lisa was subsequently evicted from the 135 Barry Dr. residence.
The record shows two failed attempts to serve Joshua in August and October at Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 11
the same 135 Barry Dr. address. The first was a failed attempt to serve him with
a copy of the judgment entry that continued the August hearing, and the second
was the failed attempt to serve him a copy of the summons of the October 27,
2020 hearing and the complaint. We find this evidence supports the assertion
that Joshua no longer lived at the 135 Barry Dr. residence by August of 2020.
{¶23} Further, pursuant to the affidavit submitted to the trial court on
August 13, 2020 the agency alleged that it tried numerous resources to ascertain
Joshua’s address without success, including the phone book, family, as well as
the data bases and records of child support and law enforcement officials.
Under these particular facts, we find that Joshua’s address was “unknown,” and
incapable of being ascertained using reasonable diligence for purposes of
permitting the trial court to proceed with service by posting and mail under Juv.R.
16(A).
{¶24} We also reject Joshua’s argument that the trial court’s service by
posting and mail violated Loc.Juv.R. 22(D). While the rule does require that a
notice be posted 15 days prior to the date of the hearing, we find that posting the
notice for 14 days still satisfies due process because it is still “reasonably
calculated, under all circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.” In re
J.T., 4th Dist. Jackson No. 18CA9, 2019-Ohio-465, ¶ 30, citing Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865
(1950). Moreover, by only serving the parties by posting and mail, we find the
trial court did not violate Loc.Juv.R. 22(A), which expressly provides that Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 12
“[s]ervice by publication can be made by newspaper publication or by posting
and mail.” (Emphasis added.) Loc.Juv.R. 22(A). The disjunctive conjunction “or”
is “[u]sed to indicate * * * [a]n alternative * * *.” State v. Coburn, 84 Ohio App. 3d
170, 173, 616 N.E.2d 567, 569 (4th Dist. 1992), citing American Heritage
Dictionary (2 College Ed.1982) 873.
{¶25} The notice of the hearing was posted for seven consecutive days,
which means that the trial court completed service of notice of the adjudicatory
hearing on Joshua under Juv.R. 16 and Loc.Juv.R. 22(D). And Joshua does not
allege that there were any additional documents that had not been served on him
that were necessary for the dispositional hearing.
{¶26} Therefore, we find that the trial court’s decision to proceed
immediately to the dispositional hearing complied with R.C. 2151.35(B)(1).
Accordingly, we overrule Joshua’s first assignment of error.
ASSIGNMENT OF ERROR II
{¶27} In his second assignment of error, Joshua argues that the trial court
abused its discretion in adjudicating J.B. and J.M. abused as defined in R.C.
2151.031, and then placing them in the custody of the agency. He states that
there is insufficient evidence that either J.B. or J.M. was living at the 135 Barry
Dr. residence. He argues that neither Sergeant Roar, Detective Farrelly, nor
Mikki Vinkovich could verify that J.B. or J.M. lived at the Barry Dr. residence.
Vinkovich testified that J.B. stayed with Amber Binkley, and she had “custody” of
him. Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 13
{¶28} Joshua also argues that the evidence did not indicate that the
children were abused. He asserts there is no evidence that the suspected drugs
taken from the house were ever tested. He claims there was no evidence that
the children have ever been evaluated for the presence of any illegal substance
in their systems and there is no evidence of any criminal charges pending
against him for drugs or endangering children. He further states that as
teenagers nearing the age of majority, J.B. and J.M. could avoid the drug
paraphernalia. And finally, he argues that there was no evidence that any of the
alleged drugs or paraphernalia were within reach of the children.
{¶29} In response, the agency argues that Lisa had legal custody of all
three children and lived at the 135 Barry Dr. residence. Toys and children’s
clothing were observed in the residence. Several witnesses testified that both
Joshua and Derek resided at the Barry Dr. residence and that adults had abused
drugs in the home. Lastly, the agency argues that there was a significant amount
of evidence supporting that the children were in a dangerous environment, citing
all the drug paraphernalia recovered from the house and that it was within reach
of the children.
{¶30} “By statute, a juvenile court has exclusive original jurisdiction
‘[c]oncerning any child who on or about the date specified in the complaint,
indictment, or information, is alleged * * * to be a[n] * * * abused, neglected, or
dependent child.’ ” State ex rel. Richland Cty. Child. Servs. v. Richland Cty. Ct. of
Common Pleas, 152 Ohio St. 3d 421, 2017-Ohio-9160, 97 N.E.3d 429, ¶ 11, Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 14
quoting R.C. 2151.23(A)(1). “[A]n ‘abused child’ includes any child who: * * * is
endangered as defined in R.C. 2919.22.” R.C. 2151.031(B). R.C. 2919.22(A)
states that a child is endangered if a person “who is the parent, guardian,
custodian, person having custody or control, or person in loco parentis of [that]
child” * * * “create[s] a substantial risk to the health or safety of the child, by
violating a duty of care, protection, or support.” “ ‘[A] juvenile court adjudication
of abuse, dependency, or neglect “is a determination about the care and
condition of a child and implicitly involves a determination of the unsuitability of
the child's custodial and/or noncustodial parents.” ’ ” In re S.N.T., 4th Dist.
Washington No. 12CA2, 2012-Ohio-3266, ¶ 14, quoting In re James, 113 Ohio
St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 22, quoting In re C.R., 108 Ohio
St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 23.
{¶31} “R.C. 2151.35(A) requires abuse, neglect, or dependency to be
established by clear and convincing evidence.” In re Forrest, 4th Dist. Athens
No. 04CA1, 2004-Ohio-4189, ¶ 50.
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 is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal. (Emphasis sic.)
Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954), citing Merrick v. Ditzler, 91 Ohio St. 256, 110 N.E. 493 (1915).
“In reviewing whether a trial court's decision is based upon clear and convincing
evidence, ‘a reviewing court will examine the record to determine whether the
trier of facts had sufficient evidence before it to satisfy the requisite degree of Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 15
proof.’ ” In re Forrest at ¶ 52, quoting Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d
54. “If a trial court's judgment is ‘supported by some competent, credible
evidence going to all the essential elements of the case,’ a reviewing court may
not reverse that judgment.” Id.
{¶32} “A trier of fact is entitled to make reasonable inferences from the
record.” In re T.C., 4th Dist. Washington No. 9CA10, 2009-Ohio-4325, ¶ 41.
Moreover, “[t]he trier of fact is free to believe all, part or none of the testimony of
each witness who appears before it.” In re Hare, 4th Dist. Scioto No. 95CA2395,
1996 WL 139673, *4 (Mar. 25, 1996); State v. Caldwell, 79 Ohio App.3d 667, 607
N.E.2d 1096 (4th Dist. 1992).
{¶33} The evidence showed that Lisa leased the 135 Barry Dr. residence
and that she had legal custody of all three children. Vinkovich testified that when
she arrived at the Barry Dr. residence on March 25, 2020 J.M. and Jo.B. were
present. She further testified that it was her understanding that while J.B. was
with Amber Binkley that day, he, J.M., and Jo.B., resided with Lisa at the Barry
Dr. residence. Furthermore, a computer with a label indicating that it was school-
owned was found during the search of the Barry Dr. residence, which could
support that school-age children like J.B. and J.M. lived in the house.
{¶34} With regard to the trial court’s finding that the children were abused,
there was a significant amount of drug paraphernalia found in the home
including: rolling papers, glass smoke pipes “commonly used for [smoking]
marijuana” and “methamphetamine[,]” “numerous used and unused syringes[,]”
digital scales, a razor blade with residue, straws “commonly used for snorting Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 16
narcotics[,]” tie offs, “spoons with burn marks” * * * that are commonly used for
administration of heroine,” and a box with Joshua’s name on it that contained
syringes and tie offs. There was also testimony from caseworker, VanGundy, that
the parents of these children had a history of substance abuse issues.
{¶35} The paraphernalia itself (e.g., syringes, ties offs, etc.) can obviously
be dangerous to any person, let alone children, and Detective Farrelly testified
that these items were within reach of children. Further, the presence of the drug
paraphernalia, and the testimony that the parents were substance abusers,
indicates that the children lived in an environment where they may have
observed illegal drug use by their parents or at minimum came across the drug
paraphernalia, which could encourage them to experiment with illegal drugs.
This environment created a substantial risk to the health and safety of J.B. and
J.M.
{¶36} Based on the aforementioned, we find that the trial court's judgment
of adjudication is supported by some competent, credible evidence going to all
the essential elements of finding that J.B. and J.M. were abused. Accordingly,
we overrule Joshua’s second assignment of error.
Case No. 20CA2013 (Jo.B.) (Derek’s Appeal)
I. THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING IRRELEVANT, PREJUDICIAL TESTIMONY.
II. CHILDREN’S SERVICES FAILED TO ESTABLISH, BY CLEAR AND CONVINCING EVIDENCE, THAT Jo.B. WAS AN ABUSED CHILD.
III. THE TRIAL COURT ERRED BY HOLDING DISPOSITIONAL HEARING ON Jo.B.’s CUSTODY WITHOUT DEREK BEING PRESENT, IN Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 17
VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND HIS CONFRONTATION RIGHTS UNDER HIS SIXTH AMENDMENT.
IV. THE TRIAL COURT ERRED BY HOLDING THE DISPOSITIONAL HEARING ON Jo.B.’S CUSTODY WITHOUT PROVIDING DEREK NOTICE OF THE DISPOSITIONAL HEARING IN VIOLATION OF DEREK’S DUE PROCESS RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND HIS CONFRONTATION RIGHTS UNDER THE SIX AMENDMENT OF THE UNITED STATE’S CONSTITUTION.
ASSIGMENT OF ERROR I
{¶37} Derek argues that the testimony from the caseworker that the
individuals who stayed in the 135 Barry Dr. residence had a history of drug abuse
was irrelevant. The complaint addressed what occurred in the house in March
2020, not before, and even if probative, its prejudicial nature outweighs its
probative nature. Therefore, Derek claims that the trial court abused its
discretion in permitting that testimony.
{¶38} In response, the agency argues that the testimony was relevant and
probative of helping determine whether Lisa, Jo.B.’s legal guardian, was aware of
ongoing drug abuse within the home prior to March 25, 2020. The agency
asserts that the trial court “properly overruled the objections and proceeded to
hear the testimony for that specific purpose[;]” therefore, the court did not abuse
its discretion in admitting the testimony.
{¶39} “A trial court enjoys broad discretion to determine whether to admit
evidence.” Clough v. Watkins, 4th Dist. Washington No. 19CA20, 2020-Ohio- Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 18
3446, ¶ 11, citing City of Urbana ex rel. Newlin, 43 Ohio St.3d 109, 113, 539
N.E.2d 140 (1989). “An abuse of discretion is more than an error, it means that
the trial court acted in an ‘unreasonable, arbitrary, or unconscionable’ manner.”
State v. Kister, 4th Dist. Athens Nos. 18CA10, 19CA11, 18CA12, 2019-Ohio-
3583, ¶ 46, quoting State v. Reed, 110 Ohio App.3d 749, 752, 675 N.E.2d 77
(4th Dist.1996), citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980). “Generally, we will not disturb the trial court's decision to admit or
exclude relevant evidence absent an abuse of discretion.” In re H.A.H., 4th Dist.
Washington No. 17CA32, 2018-Ohio-3446, ¶ 21, citing In re Lane, 4th Dist.
Washington No. 02CA61, 2003-Ohio-7055, ¶ 11; State v. Sage, 31 Ohio St.3d
173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.
{¶40} “ ‘ “Relevant evidence” means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of
action more probable or less probable than it would be without the evidence.’ ”
Kister at ¶ 48, quoting State v. Fannon, 4th Dist. Athens Nos. 17CA24, 17CA26,
2018-Ohio-5242, ¶ 80, citing Evid.R. 401. “All relevant evidence may be
prejudicial in the sense that it ‘tends to disprove a party's rendition of the facts’
and thus, ‘necessarily harms that party's case.’ ” State v. Blackburn, 4th Dist.
Jackson No. 18CA3, 2020-Ohio-1084, ¶ 53, quoting State v. Crotts, 104 Ohio
St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23. However, exclusion of
relevant evidence is “mandatory” only “if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.” Evid.R. 403(A). “ ‘Unfair prejudice does “ ‘not mean the Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 19
damage to a defendant’s case that results from the legitimate probative force of
the evidence; rather it refers to evidence which tends to suggest decision on an
improper basis.’ ” ’ ” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶ 89, quoting United States v. Bonds, 12 F.3d 540 (6th Cir.1993),
quoting United States v. Schrock, 855 F.2d 327, 335 (6th Cir., 1988),
quoting United States v. Mendez–Ortiz, 810 F.2d 76, 79 (6th Cir., 1986). And,
under Evid.R. 403(B), evidence “may be excluded if its probative value is
substantially outweighed by considerations of undue delay, or needless
presentation of cumulative evidence.”
{¶41} For purposes of R.C. Chapter 2151, an “abused child” is
“endangered” as defined in R.C. 2929.19. R.C. 2151.031. In pertinent part R.C.
2919.22(A) states: “No person, who is the * * * guardian, * * * of a child under
eighteen years of age * * * shall create a substantial risk to the health or safety of
the child, by violating a duty of care, protection, or support.” R.C. 2151.031
(Emphasis added.).
{¶42} The trial court admitted the testimony regarding drug use because it
was relevant to Lisa “having an awareness or knowledge of the parental
substance use disorder of the parents and the parents living at home or residing
in the home.” We find this testimony is relevant for the purpose of understanding
if Lisa was allowing drug abuse to occur in her home, which is probative of
whether the children were abused under R.C. 2151.031(B) in that she was
“creat[ing] a substantial risk to the health and safety of the [children].” R.C.
2919.22. Therefore, we find that the trial court’s decision to admit that testimony Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 20
was for a “proper purpose,” so it was not unfairly prejudicial, and its admission
was not otherwise unreasonable, arbitrary, or unconscionable. Accordingly, we
overrule Derek’s first assignment of error.
{¶43} In his second assignment of error, Derek argues that the agency did
not establish by clear and convincing evidence that Jo.B. was an abused child
because there is no evidence that she lived at the 135 Barry Dr. residence.
Derek claims that Sergeant Roar “was not aware” and Detective Farrelly “did not
see” Jo.B. at the Barry Dr. residence. He further asserted that even though one
of the caseworkers saw Jo.B. at the Barry Dr. residence on March 25, 2020, she
could not verify that the child lived there.
{¶44} In response, the agency argues that the evidence proves that Lisa
had custody of Jo.B., as well as the other two children. The agency further
asserts that children’s clothing and toys were found at the Barry Dr. residence.
Witnesses testified that Derek and Jo.B. lived at the Barry Dr. residence. The
agency cites the large amount of drug paraphernalia found at the Barry Dr.
residence as evidence that the child was abused. Therefore, the agency
maintains that the trial court’s finding of abuse was supported by competent,
credible evidence, and thus, was not an abuse of its discretion.
{¶45} We apply the same standard of review that we applied in reviewing
Joshua’s first assignment of error, which is whether the trial court's judgment
finding Jo.B. to be an abused child is supported by some competent, credible Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 21
evidence going to whether Jo.B. was abused because Lisa created a substantial
risk to the health or safety of the child, by violating a duty of care, protection, or
support. The evidence showed that Lisa leased the 135 Barry Dr. residence and
that she had legal custody of Jo.B. Vinkovich testified that when she arrived the
day the search warrant was issued, Jo.B. was at the Barry Dr. residence, and it
was her understanding that Jo.B. lived with Lisa at the Barry Dr. residence.
Furthermore, during the execution of the search warrant, officers found children’s
toys, clothes, and a small inflatable tub, which pursuant to its photograph could
accommodate only a small child. These items support the conclusion that a
small child, like Jo.B., lived at the Barry Dr. residence because J.B. and J.M.
were both teenagers. Although not argued by Derek, we incorporate our analysis
from Joshua’s second assignment of error and find that the drug paraphernalia in
the house created an environment with a substantial risk to the health and safety
of the Jo.B.
{¶46} Based on the aforementioned, we find that the trial court's judgment
is supported by some competent, credible evidence going to all the essential
elements of finding that Jo.B. was abused. Accordingly, we overrule Derek’s
second assignment of error.
ASSIGNMENTS OF ERROR III and IV
{¶47} We combine Derek’s third and fourth assignments of error as they
present similar issues. In his third and fourth assignments of error, Derek sets
out three arguments: (1) that he had a right to be present at Jo.B.’s dispositional
hearing, (2) that he was not provided notice of the dispositional hearing, and (3) Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 22
that by not being present at the hearing his Sixth Amendment right to
confrontation was violated. Derek claims that his trial counsel argued that neither
she nor Derek received notice of the adjudicatory hearing.
{¶48} First, there is no dispute that a parent, like Derek even with only
limited residual rights, has a right to attend his daughter’s dispositional hearing.
Second, the record shows that his counsel was notified of the hearing date, and
his counsel was in fact present and represented Derek at that adjudicatory and
dispositional hearings. Moreover, similar to our conclusion that Joshua was
served notice of the adjudication hearing by posting and mail, we find that Derek
was as well. The evidence indicated that Derek also lived with his mother Lisa at
the 135 Barry Dr. residence, that initial service on Derek at that address was
accepted and signed by Lisa, that subsequent service on Derek at that same
address failed, and then the court served notice on Derek by posting and mail.
{¶49} Third, to the extent that Derek alleges that his Sixth Amendment
right to confrontation was violated, the right to confront witnesses under the Sixth
Amendment applies to criminal prosecutions. See State v. Arnold, 126 Ohio St.
3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12. This case does not involve a
criminal prosecution. Therefore, we overrule Derek’s third and fourth
assignments of error.
Case No. 20CA13 (J.D.B.) (Denise’s Appeal)
I. THE TRIAL COURT ABUSED ITS DISCRETION IN ADJUDICATING Jo.B. AN ABUSED CHILD WHEN THE AGENCYFAILED TO PRESENT CLEAR AND CONVINCING EVIDENCE Jo.B. LIVED IN THE HOME THAT WAS SUBJECT A SEARCH WARRANT OR THAT Jo.B. WAS Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 23
PERMITTED TO BE AROUND DRUGS AND/OR DRUG PARAPHERNALIA.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING Jo.B. INTO TEMPORARY CUSTODY OF HER MATERNAL AUNT RATHER THAN RETURNING INTO THE CARE OF HER LEGAL CUSTODIAN.
ASSIGNMENT OF ERROR I
{¶50} Similar to Derek, Denise argues that the agency failed to prove that
Jo.B. lived in the residence at 135 Barry Dr. and that Jo.B. was abused.
Incorporating our analysis of Derek’s second assignment of error, we find that
that there is some competent credible evidence that Jo.B. resided at that
residence and was an abused child. Therefore, we overrule Denise’s first
assignment of error.
{¶51} In her second assignment of error, Denise alternatively argues, if we
do not reverse the trial court’s finding of abuse, then she argues that the trial
court abused its discretion in placing Jo.B. in the temporary custody of her
maternal aunt rather than back in the care of Lisa. Denise argues: (1) that
criminal charges against Lisa were dropped, as well as a protection order, (2)
Lisa secured housing with a friend, (3) Lisa was “receiving services from Scioto
Paint Valley,” (4) Lisa has maintained contact with the agency and is compliant
with her case plan, and (4) Lisa completed co-dependency counseling at Scioto
Paint Valley. Therefore, Denise argues that the trial court abused its discretion in
granting temporary custody of Jo.B. to her maternal aunt rather than returning
her to Lisa. Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 24
{¶52} In response, the agency argues that a trial court has broad
discretion when granting temporary custody and that the child’s best interest is
paramount in making that decision. The court heard testimony from the agency
regarding efforts toward reunification, temporarily placing the child and their
recommendations. Further, evidence suggested that Lisa had not completed her
treatment or located permanent housing.
{¶53} Among other alternatives, “[i]f a child is adjudicated an abused,
neglected, or dependent child,” the court may place the child in the temporary
custody of a relative. R.C. 2151.353(A)(2)(d). We review a disposition made
under this provision pursuant to an abuse of abuse of discretion standard of
review. In re Jandrew, 4th Dist. No. 97CA4, 1997 WL 802848, at * 10 (Dec. 29,
1997). “An abuse of discretion connotes an attitude that is unreasonable,
arbitrary, or unconscionable.” Id., citing In re Jane Doe, 57 Ohio St.3d 135, 137,
566 N.E.2d 1181, (1991). “In choosing among the alternatives, however, the
best interests of the child is the court's primary consideration.” Id., citing In re
Pryor, 86 Ohio App.3d 327, 620 N.E.2d 973, (4th Dist. 1993).
{¶54} The state’s caseworker, VanGundy, testified that she met Lisa twice
a month, and that Lisa was living with a friend. However, VanGundy was not
sure whether the charges against Lisa had been dismissed, or were still pending.
VanGundy also testified that Lisa had completed codependency counseling as
part of her case plan. But when VanGundy was asked if she made any referrals
for Lisa, she testified: “Lisa was already receiving services through Scioto Paint Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 25
Valley, so I didn’t have to do any referrals at that point. I did recommend things
on the case plan to [sic] and she is working on those.” (Emphasis added.)
{¶55} The evidence indicates that while Lisa has a case plan, it is a work
in progress. Further, contrary to Denise’s assertion, testimony indicated that it is
uncertain as to whether Lisa was still facing criminal charges. And, even though
it appears that Lisa has found a friend to stay with, there is no evidence of
whether she has a permanent residence, and even if she does, whether it is
suitable or permissible for the children to live there. Finally, at no time during the
dispositional hearing did anyone argue that the children should be reunited with
Lisa. In fact, VanGundy testified that “[Denise] would like her daughter [Jo.B] to
go to her sister.” Under these facts, we find that the trial court decision to
temporarily place Jo.B. with her aunt was, as opposed to reuniting her with Lisa,
was in Jo.B.’s best interest, and was not unreasonable, arbitrary, or
unconscionable. Therefore, we overrule Denise’s second assignment of error.
CONCLUSION
{¶56} We overrule all the assignments of error raised by all three parties -
Joshua, Derek, Denise - in the four appeals that are before this court (20CA11,
20CA12, 20CA13, and 20CA13). Accordingly, we affirm the trial court’s
judgment entries of adjudication and disposition of all three children.
JUDGMENTS AFFIRMED. Pickaway App. Nos. 20CA11, 20CA12, 20CA13, 20CA14 26
JUDGMENT ENTRY
It is ordered that the trial court’s judgments are AFFIRMED and costs to be split equally between the appellants.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court, Juvenile Division to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ___________________________ Kristy Wilkin, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.