In re K.B.B.

2011 Ohio 4600

• Court: Ohio Court of Appeals
• Decided: September 12, 2011
• Docket: 2011 CA 00038
• Status: Published

Opinion

[Cite as In re K.B.B., 2011-Ohio-4600.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Julie A. Edwards, J.

KBB AND KRB Case No. 2011 CA 00038

MINOR CHILDREN OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2010 JCV 01144

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 12, 2011

APPEARANCES:

For Appellee For Appellant

JAMES B. PHILLIPS NICHOLAS J. MARINO STARK COUNTY JFS 697 West Market Street 300 Market Avenue North Suite 300 Canton, Ohio 44702 Akron, Ohio 44303 Stark County, Case No. 2011 CA 00038 2

Wise, J.

{¶1} Appellant-Mother Nikki Rothacher appeals the decision of the Stark

County Court of Common Pleas, Juvenile Division, which found her twin minor

children, K.B. and K.B., to be dependent under R.C. 2151.04. The relevant procedural

facts leading to this appeal are as follows.

{¶2} On October 7, 2010, Appellee Stark County Department of Job and Family

Services ("SCDJFS") filed a dependency/neglect complaint, seeking temporary custody

of K. B. and K.B., born in 2002. After a shelter care hearing on October 8, 2010, the

court ordered the children into the emergency temporary custody of SCDJFS.

{¶3} On December 7, 2010, following an evidentiary hearing before a

magistrate, the children were found to dependent under R.C. 2151.04(B) and (C). The

court at that time ordered the children to remain in the temporary custody of the

agency.

{¶4} On December 20, 2010 appellant filed an objection to the magistrate's

decision. Following a hearing on January 24, 2011, the trial court approved and

adopted the dependency finding under both R.C. sections 2151.04(B) and (C). The

court made its determination despite disregarding some of the records-based

testimony that it found to be hearsay.

{¶5} Appellant filed a notice of appeal on February 22, 2011. She herein raises

the following sole Assignment of Error:

{¶6} “I. THE FINDING BY THE COURT THAT THE CHILDREN WERE

DEPENDANT (SIC) WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

AND/OR BASED ON INSUFFICIENT EVIDENCE AND CONTRARY TO LAW.” Stark County, Case No. 2011 CA 00038 3

I.

{¶7} In her sole Assignment of Error, Appellant-Mother contends the trial court

erroneously adjudicated K.B. and K.B. as dependent children under the statute. 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. 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]ho lacks adequate parental care by reason of the mental or

physical condition of the child's parents, guardian, or custodian” or “[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(B) and (C).

{¶10} In the case sub judice, the SCDJFS investigative caseworker, Kristie

Baker, testified that she had a phone conversation with appellant in October 2010 Stark County, Case No. 2011 CA 00038 4

during which appellant stated that she planned to pick up her children from the bus and

drive them to Carroll County. Tr. at 5. Appellant sounded incoherent to Baker during

the phone conversation. The case worker testified that appellant was slurring her

words and her communication “seemed to be delayed.” Baker advised appellant to go

directly to Quest Recovery Services to submit a urine screen. Tr. at 6. Appellant did

so, and thereupon tested positive for Benzodiazepines. Id. Baker further testified

appellant informed her that she was taking numerous different prescription medications

and seeing three different doctors. Tr. at 6-7. The medications included Cymbalta,

Zyprexa, Lyrica, Percocet, Valium, Xanax, Cyclobenzaprine, Zolpidem, Ranitidine,

Promethazine, and Ibuprofen. Tr. at 7.

{¶11} Baker also recalled that she interviewed appellant in person the same day

as the phone conversation and observed her to be lethargic, almost unable to carry on

a conversation, and falling asleep during the interview. Tr. at 8. The case worker

testified appellant admitted to her that the staff at Quest would not allow her to leave

the facility alone due to her being under the influence of some substance. Tr. at 11.

She also testified that in her professional opinion, appellant was not able to safely care

for her children on that day. Tr. at 9.

{¶12} Appellant presently urges that the agency failed to demonstrate a

“chronic” problem that affected her parenting abilities. However, even though this

matter involves a relatively limited time frame, the testimony strongly indicates

appellant is dealing with a host of drug management and personal judgment issues

significantly impacting the environment and welfare of her two elementary school age

children. In such a situation, we are inclined to invoke the adage that “[t]he law does Stark County, Case No. 2011 CA 00038 5

not require the court to experiment with the child's welfare to see if he will suffer great

detriment or harm.” See In re Bishop (1987), 36 Ohio App.3d 123, 126, 521 N.E.2d

838, quoting In re East (1972), 32 Ohio Misc. 65, 69, 288 N.E.2d 343, 346.

{¶13} Upon review, we are not inclined to disturb the determinations of the trial

court as the fact finder in this instance, and we hold the evidence presented supports

the conclusion that K.B. and K.B. are dependent children under R.C. 2151.04(B) and

(C).

{¶14} Appellant’s sole Assignment of Error is therefore overruled.

{¶15} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.

___________________________________

JUDGES JWW/d 0818 Stark County, Case No. 2011 CA 00038 6

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : : KBB AND KRB : JUDGMENT ENTRY : : MINOR CHILDREN : Case No. 2011 CA 00038

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is

affirmed.

Costs assessed to appellant.

JUDGES