In re L.F.

Ohio Court of Appeals

In re L.F.

2014 Ohio 3800

Ohio Court of Appeals·Decided September 3, 2014·No. 27218, 27228·Published·Cited by 6 cases

Opinion

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: L.F. C.A. Nos. 27218 27228

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE No. DN 12-10-0656

DECISION AND JOURNAL ENTRY Dated: September 3, 2014

BELFANCE, Presiding Judge.

{¶1} Appellants, George F. (“Father”) and Jennifer S. (“Mother”), appeal from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that adjudicated their minor child dependent and placed him in the temporary custody of Summit County Children Services Board (“CSB”). Because Father was denied his due process right to have the adjudication and disposition of the minor child conducted within a meaningful time and in a meaningful manner, this Court reverses and remands.

I.

{¶2} Mother and Father are the natural parents of L.F., born August 31, 2012. CSB made contact with Mother shortly after the birth of L.F. because it had been involved with her several years earlier after the sudden death of another infant child, who was fathered by another man. Although the death of L.F.’s older half-sibling was ultimately ruled accidental, CSB was concerned that Mother continued to suffer from depression afterward.

{¶3} After CSB became involved with Mother and L.F., it learned that Father, who resided with Mother, was a Tier III registered sex offender. In 2009, prior to his relationship with Mother, Father was convicted of sexual battery against his then step-daughter and was sentenced to a two-year period of incarceration. After he was released from prison, Father was subject to post-release control by the Ohio Adult Parole Authority (“APA”), which included restrictions on his interaction with minor children. Consequently, CSB worked with the APA and the parents to develop a voluntary safety plan for L.F., which required that the maternal grandmother live with the parents and supervise their interaction with L.F.

{¶4} On October 6, 2012, however, the grandmother got into a verbal altercation with the parents and threatened to move elsewhere with L.F. The police responded to the altercation and removed L.F. from the home pursuant to Juv.R. 6. On October 9, CSB filed a complaint, alleging that L.F. was a dependent child under R.C. 2151.04(C) and/or (D), but it later dismissed its allegations under R.C. 2151.04(D). The complaint alleged drug abuse by both parents and that Father posed a risk to L.F. because he was a sex offender. Because this case focused primarily on Father’s potential risk to L.F. as a convicted sex offender, this Court will confine its review to that aspect of the case.

{¶5} On November 5, 2012, CSB filed a proposed case plan and requested that the trial court journalize it and make it part of the dispositional order for the child. See R.C. 2151.412(E). The case plan set forth goals for the parents, including that Father complete another sex offender risk assessment (“supplemental assessment”) and follow any treatment recommendations. Although the case plan had not yet been journalized by the trial court, Father voluntarily began the process of obtaining the supplemental assessment by meeting with mental health

professionals. CSB did not seek a court order that Father complete an assessment prior to the adjudicatory hearing. See Juv.R. 32(A)(3).

{¶6} Instead, the matter proceeded to an adjudicatory hearing before a magistrate at the end of November 2012. At that time, the only sex offender risk assessment of Father was the one prepared by the APA. Through the testimony of Father’s parole officer, her supervisor, and the APA specialist who performed Father’s sex offender risk assessment, CSB attempted to demonstrate that Father posed a significant risk of harm to L.F because he was a convicted sex offender.

{¶7} The primary focus of CSB’s dependency case was whether Father’s history as a sex offender posed a current risk of harm to his infant son. The evidence revealed that the victim of Father’s 2009 conviction was his then 15-year-old step-daughter, who no longer lived within the vicinity of Father. Shortly after Father’s release from prison in 2011, an APA sex offender specialist reviewed his record and performed a Static-99 risk assessment, which revealed that Father was at low risk of reoffending. Consequently, the APA did not require him to undergo any further evaluations, nor did it require him to participate in sex offender treatment.

{¶8} Father’s parole officer explained that she was not concerned about Father committing a sexual offense against his infant son. The APA witnesses further explained that, after CSB became involved with Father, they supported the agency’s recommendation that Father undergo a supplemental assessment and comply with any resulting treatment recommendations. Father’s parole officer explained that she was not concerned that Father posed a threat to L.F. but that she agreed with CSB’s recommendation for supervision to “cover [Father’s] butt” because “any time a sex offender is around a kid,” people tend to make

accusations about the offender harming the child. Consequently, the parole officer conditioned Father’s contact with L.F. upon the recommendations of CSB.

{¶9} The three witnesses who testified about visiting the family home and observing the parents with L.F. expressed no concerns about the condition of the home or the parents’ ability to provide suitable care for L.F. In fact, they testified that L.F. appeared fine and that the parents were meeting his basic needs.

{¶10} CSB rested its adjudicatory case after presenting the testimony of the APA witnesses and the caseworkers. Notably, CSB had not sought a court order under Juv.R. 32(A)(3) that Father undergo a supplemental assessment prior to the adjudicatory hearing, nor did it assert during the hearing that a supplemental assessment was relevant or necessary to the court’s determination of whether L.F. was a dependent child under R.C. 2151.04(C).

{¶11} Shortly after the adjudicatory hearing, the magistrate issued a brief decision that CSB had failed to prove that L.F. was dependent under R.C. 2151.04(C), that the complaint should be dismissed, and that a more detailed decision would follow. That same day, CSB filed an objection to the magistrate’s decision, disputing the magistrate’s conclusion that it had failed to present clear and convincing evidence that L.F. was a dependent child.

{¶12} On December 20, 2012, the magistrate issued a more detailed decision, explaining that CSB had failed to demonstrate a lack of parental care or that L.F., an infant boy and Father’s biological child, was at risk of harm because of Father’s past sexual offense against a 15-year- old, unrelated female. Based on that finding, the magistrate decided that the complaint should be dismissed. See Juv.R. 29(F)(1); R.C. 2151.35(A)(1).

{¶13} That same day, the trial court adopted the magistrate’s decision. By its terms, the trial court’s judgment was stayed by CSB’s timely-filed objection. See Juv.R. 40(D)(4)(e)(i).

The trial court later denied the parents’ request for an interim order that would have allowed L.F. to return to their custody. Consequently, L.F. remained in the emergency temporary custody of CSB.

{¶14} For several reasons not clear from the record, the transcript of the adjudicatory hearing was not requested or prepared in a timely manner, postponing the resolution of the objection process by nearly four months. Moreover, after the transcript was filed, CSB supplemented its objection and, for the first time, asked the court to look beyond the evidence presented at the hearing and consider the supplemental assessment that Father had obtained more than five months earlier. It argued that the supplemental assessment should be considered because it was not available at the time of the adjudicatory hearing.

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