In re S.K.

2024 Ohio 4629

• Court: Ohio Court of Appeals
• Decided: September 23, 2024
• Docket: 4-24-07, 4-24-08, 4-24-09
• Status: Published

Opinion

[Cite as In re S.K., 2024-Ohio-4629.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

IN RE: CASE NO. 4-24-07 S.K.,

ADJUDICATED NEGLECTED AND DEPENDENT CHILD. OPINION

[KEITH K. - APPELLANT]

IN RE: CASE NO. 4-24-08 T.K.,

IN RE: CASE NO. 4-24-09 M.K.,

[KEITH K. - APPELLANT] Case Nos. 4-24-07, 4-24-08, 4-24-09

Appeals from Defiance County Common Pleas Court Juvenile Division Trial Court Nos. 35531, 35532 and 35533

Judgments Affirmed

Date of Decision: September 23, 2024

APPEARANCES:

Taylor G. Vance for Appellant

Joy S. O’Donnell for Appellee

MILLER, J.

{¶1} Appellant, Keith K. (“Keith”), appeals the December 4, 2023 judgment

issued by the Defiance County Court of Common Pleas, Juvenile Division, which

found that each of his three children were neglected and dependent. Keith argues

the trial court erred in making those findings. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶2} Keith and Lucy P. (“Lucy”) are the parents of three children: S.K., T.K.,

and M.K. All five lived together in a home in Defiance County. At the time the

matter was initiated, S.K. was seven years old, T.K. was four years old, and M.K.

was three years old.

{¶3} On October 5, 2023, Defiance/Paulding Consolidated Job and Family

Services (the “Agency”) filed a two-count complaint in the Defiance County Court -2- Case Nos. 4-24-07, 4-24-08, 4-24-09

of Common Pleas, Juvenile Division. The first count alleged that the three children

appeared to be neglected children as defined in R.C. 2151.03(A)(2). The second

count alleged that the three children appeared to be dependent children as defined

in R.C. 2151.04(C). The Agency asked the court to place the children in the

temporary custody of the Agency. The same day, the Agency sought and received

from the court an ex parte order for emergency temporary custody of the children.

The next day, October 6, 2023, the court held a hearing with the Agency, Keith, and

Lucy regarding that order. Following the hearing, the court confirmed and

continued its order.

{¶4} On November 17, 2023, the trial court held an adjudicatory hearing.

The only witness called by any of the parties was Jenny Snyder (“Snyder”), an

investigator for the Agency. On September 28, 2023, Snyder had visited the

family’s home, a single story structure, after the Agency received reports that the

children were climbing onto its roof. Keith acknowledged that the children had

climbed onto the roof several times and were hard to control. Keith also told Snyder

that the children would not listen to Lucy, so he had to be the enforcer to ensure

they would obey. To discourage the children from climbing onto the roof, Keith

had wrapped a mat around the antenna they used to get onto the roof, although the

children now were accessing the roof from another way. Additionally, he placed a

sharp plastic piece, “almost like a spike,” by the fence that the children also used to

access the roof. (Nov. 17, 2023 Tr. at 13-14). Snyder also learned that S.K. had -3- Case Nos. 4-24-07, 4-24-08, 4-24-09

killed kittens earlier in the summer and had not gone to a psychological

examination, even though Keith admitted S.K. was supposed to undergo such an

examination. After learning about this incident, Snyder recommended S.K. also go

to therapy.

{¶5} Snyder visited the home again on October 3, 2023, after being alerted

that a “domestic violence situation” had occurred there. (Id. at 16). Snyder found

the door to the home was barricaded to keep the children from leaving the home.

That barricaded door was the only working exit from the home. Additionally, Keith

had wrapped “sticky brush”—which he described as barbed wire—around the

antenna to discourage the children from using it to get onto the roof. (Id. at 17).

Snyder learned that Keith had left the home for the past two days. After Keith got

home, there was an argument, Lucy allegedly threw a box at Keith, and Lucy was

arrested. There was no evidence the children were aware of the incident.

{¶6} While Keith had been gone during the previous two days, S.K. had

climbed onto the roof again and Lucy was forced to get a neighbor to help get S.K.

off of the roof because S.K. would not listen to her. Lucy explained that she was

overwhelmed in taking care of the kids while Keith was not at home. Lucy also

explained to Snyder that she has an unspecified cognitive diagnosis, for which she

receives government benefits. Keith told the Agency that he was Lucy’s guardian

at one time. Snyder testified that, based on her interactions with Lucy, Lucy did not

seem to understand “complex concepts.” (Id. at 24). For example, it appeared to -4- Case Nos. 4-24-07, 4-24-08, 4-24-09

Snyder that Lucy could not correctly read the temperature on a thermometer when

Lucy described T.K. having a fever. Additionally, Lucy did not have a phone or

any means of communication at the home. During her visit, Snyder observed T.K.

and M.K. run onto the road, the children did not listen when Keith called to them,

and Keith had to run after them to get them to return home.

{¶7} During Snyder’s next visit, on October 5, 2023, T.K. got out of the

house—unbeknownst to Lucy—and a sheriff’s deputy who was with Snyder had to

run after T.K. Keith and Lucy were not using the door alarms and window alarms

that the Agency had previously given to them. Additionally, Keith and Lucy

reported that, since Snyder’s October 3 visit, S.K. had hidden from Keith under a

hot, running car and suffered two burns on his feet. Neither Keith nor Lucy knew

S.K. was under the car at the time. They took S.K. to a medical facility to treat the

burns. Snyder also testified that, as far as the Agency is aware, the house has

running water, heat, and food. All three children were still in diapers when the

Agency removed them from the house pursuant to the ex parte emergency

temporary custody order.

{¶8} On December 4, 2023, the trial court issued a judgment entry in which

it made various findings and decided there was clear and convincing evidence that

each of the three children were “neglected children in that they lack parental care

because of the faults and habits of the children’s parents pursuant to R.C.

2151.03(A)(2) and that the children are dependent children pursuant to R.C. -5- Case Nos. 4-24-07, 4-24-08, 4-24-09

2151.04(C) in that their condition or environment is such as to warrant the state, in

the interests of the children, in assuming the children’s guardianship.” (Dec. 4, 2023

Judgment Entry). The court ordered that the children remain in the temporary

custody of the Agency.

{¶9} The matter came before the court on December 6, 2023 for disposition.

On December 29, 2023, the trial court entered a judgment entry indicating that Keith

and Lucy agreed with the Agency’s request for the three children to remain in the

Agency’s temporary custody for a period of one year, unless terminated earlier. The

court agreed with the request, found it to be in the children’s best interest, and stated

that the Agency had established a case plan with the parents but the plan’s objectives

had not yet been completed. This appeal followed.

II. ASSIGNMENTS OF ERROR

{¶10} Keith raises two assignments of error for our review:

First Assignment of Error

The trial court erred in finding by clear and convincing evidence that the above-named children were neglected children pursuant to R.C. 2151.03(A)(2).

Second Assignment of Error

The trial court erred in finding by clear and convincing evidence that the above-named children were dependent pursuant to R.C. 2151.04(C).

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III. DISCUSSION

{¶11} Despite Keith’s agreement to the Agency’s request for the three

children to remain in the Agency’s temporary custody for a period of one year, he

argues in this appeal that the trial court erred in finding, by clear and convincing

evidence, that the children were neglected and dependent under certain sections of

Chapter 2151 of the Revised Code. Sections in Chapter 2151 of the Revised Code

are to be “liberally interpreted and construed so as to effectuate [the purpose] . . .

[t]o provide for the care, protection, and mental and physical development of

children subject to Chapter 2151. of the Revised Code, whenever possible, in a

family environment, separating the child from the child’s parents only when

necessary for the child’s welfare or in the interests of public safety.” R.C.

2151.01(A).

A. First Assignment of Error

{¶12} In the first assignment of error, Keith argues that the testimony and

evidence did not “individually or collectively amount to clear and convincing

evidence to adjudicate the Children as neglected children.” (Appellant’s Brief at

10).

1. Applicable Law and Standard of Review

{¶13} “At the adjudicatory hearing, the trial court considers whether the

child is a neglected or dependent child.” In re Riddle, 79 Ohio St.3d 259, 265, 1997- -7- Case Nos. 4-24-07, 4-24-08, 4-24-09

Ohio-39 (1997). “[C]ourts are not required to wait for a child to be injured or

harmed before finding a child is neglected or dependent, [although] there must be

some evidence presented beyond a mere possibility of harm.” In re K.J., 2020-

Ohio-3918, ¶ 14 (3d Dist.).

{¶14} Under R.C. 2151.03(A)(2), a “neglected child” includes a child who

“lacks adequate parental care because of the faults or habits of the child’s parents,

guardian, or custodian.” Thus, before finding a lack of adequate care under R.C.

2151.03(A)(2), there must be some showing that parents, a guardian, or a custodian

is at fault. In re Riddle at 262; In re O.M., 2023-Ohio-341, ¶ 29 (3d Dist.). The

definition of “adequate parental care” is “the provision by a child’s parent or parents

. . . of adequate food, clothing, and shelter to ensure the child’s health and physical

safety and the provision by a child’s parent or parents of specialized services

warranted by the child’s physical or mental needs.” R.C. 2151.011(B)(1).

{¶15} To determine that a child is a neglected child, the trial court must “find

that the essential statutory elements were proven by clear and convincing evidence.”

In re Riddle at 262. R.C. 2151.35(A)(1) provides that, if the court at the adjudicatory

hearing finds from clear and convincing evidence that the child is an abused,

neglected, or dependent child, then the court shall proceed, in accordance with R.C.

2151.35(B), to hold a dispositional hearing and hear the evidence as to the proper

disposition to be made under R.C. 2151.353.

-8- Case Nos. 4-24-07, 4-24-08, 4-24-09

{¶16} “When this Court reviews a trial court’s adjudication of a child as . . .

neglected or dependent to determine whether the judgment is supported by clear and

convincing evidence, we must determine whether the trier of fact had sufficient

evidence before it to satisfy the clear-and-convincing-evidence degree of proof.” In

re O.M. at ¶ 32. Proof by clear and convincing evidence requires that the proof

“‘produce in the mind of the trier of facts a firm belief or conviction as to the facts

sought to be established.’” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368

(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus. It is “‘more than a mere preponderance, but not to the extent of such

certainty as required beyond a reasonable doubt as in criminal cases,” and it “does

not mean clear and unequivocal.” In re Freed Children, 2009-Ohio-996, ¶ 26 (3d

Dist.), quoting In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986).

2. Analysis

{¶17} All indications are that Keith and Lucy love their children. However,

as shown above, that is not the test for determining whether a child is a neglected

child or a dependent child under the law. See also In re Corey Children, 2006-Ohio-

2013, ¶ 20 (11th Dist.) (affirming the court’s finding of neglect, premised on a lack

of parental supervision appropriate for infants and toddlers, even though the record

showed that the Coreys were doting parents, with bright, normal children).

{¶18} After reviewing the evidence before the trial court, we find that the

Agency presented sufficient evidence to support the allegation of neglect. The three -9- Case Nos. 4-24-07, 4-24-08, 4-24-09

children are all young, with the oldest being seven at the time of the adjudicatory

hearing. Among the evidence was that Lucy admitted to Snyder she has an

unspecified cognitive diagnosis, for which she receives benefits, and that Keith

represented he was Lucy’s guardian at one time. Keith acknowledged that the

children were hard to control and would not listen to Lucy. Nevertheless, he left

them alone with her for two days. While he was gone Lucy felt overwhelmed and

at least one child again climbed onto the roof—despite the measures taken by

Keith—and she needed assistance from a neighbor. See In re A.C., 2010-Ohio-

4933, ¶ 50 (6th Dist.) (among the evidence supporting a finding of neglect under

R.C. 2151.03(A)(2) was the mother’s inability to supervise, discipline, and ensure

the safety of the children).

{¶19} Despite continuing instances of the children climbing onto the roof

and wandering onto the road, Keith and Lucy did not install the door alarms and

window alarms provided to them by the Agency. Thus, they failed to implement

remedial measures given to them to help ensure the children’s safety. The evidence

also showed Keith’s measures to keep the children from climbing on top of the

house were ineffective and dangerous—including barricading the only working exit

from the home, as well as using a spike-like plastic piece of material and what Keith

described as “barbed wire” to keep the kids from climbing onto the roof. See In re

Meyer, 98 Ohio App.3d 189, 196 (3d Dist. 1994) (affirming children were neglected

where the parents “demonstrated poor child-care skills, as documented by their -10- Case Nos. 4-24-07, 4-24-08, 4-24-09

inability to maintain their home in a clean and hazard-free manner, the constant filth

of the children, and their inability to supervise the six children”).

{¶20} Additionally, Keith failed to take S.K. to a psychological examination,

even though he admitted S.K. was supposed to undergo such an examination after

he killed a litter of kittens. There also was no evidence that Keith or Lucy had taken

S.K. to therapy (or tried to schedule an appointment), as recommended by the

Agency. See In re T.C., 2018-Ohio-4369, ¶ 21, 23 (9th Dist.) (affirming child was

neglected where evidence established that mother failed to ensure child received

follow-up medical care to address physical pain and possible sexually-transmitted

infection, as well as trauma-based counseling services to address mental health

issues).

{¶21} We find that the trial court had sufficient evidence before it to satisfy

the clear-and-convincing-evidence degree of proof that each of the three children

was a neglected child due to “lack[ing] adequate parental care because of the faults

or habits of the child’s parents.” R.C. 2151.03(A)(2).

{¶22} The first assignment of error is overruled.

B. Second Assignment of Error

{¶23} In the second assignment of error, Keith asserts that “the trial court did

not have clear and convincing evidence before it to find that the Children were

dependent.” (Appellant’s Brief at 13). He argues that he and Lucy “made efforts

-11- Case Nos. 4-24-07, 4-24-08, 4-24-09

to ensure the safe environment of the children, including by blocking access to the

doors and to the roof access points.” (Id.).

{¶24} Under R.C. 2151.04(C), a “dependent child” includes a child “whose

condition or environment is such as to warrant the state, in the interests of the child,

in assuming the child’s guardianship.” “In contrast to the analysis of whether a

child is neglected, a determination of dependency focuses on the child’s condition

or environment, and not on the parent’s fault.” In re O.M., 2023-Ohio-341, at ¶ 30

(3d Dist.); see also In re Riddle, 79 Ohio St.3d at 262-263. However, a court may

consider a parent’s conduct to the extent that it forms part of the child’s

environment. In re O.M., 2023-Ohio-341, at ¶ 30 (3d Dist.); see also In re Burrell,

58 Ohio St.2d 37, 39 (1979) (“[a]s a part of the child’s environment such conduct is

only significant if it can be demonstrated to have an adverse impact upon the child

sufficiently to warrant state intervention,” and such impact “must be specifically

demonstrated in a clear and convincing manner”). Circumstances that produce a

legitimate risk of harm may suffice to support a dependency adjudication under R.C.

2151.04(C). In re O.M., 2023-Ohio-341, at ¶ 30 (3d Dist.); In re L.H., 2020-Ohio-

718, ¶ 32 (3d Dist.). The law does not require a court to experiment with a child’s

welfare to see if the child will suffer great detriment or harm before intervening. In

re B.B., 2012-Ohio-2695, ¶ 28 (3d Dist.); see also In re L.H., 2019-Ohio-2383, ¶ 41

-12- Case Nos. 4-24-07, 4-24-08, 4-24-09

(12th Dist.) (“Generally, R.C. 2151.04(C) is to be broadly applied to protect the

health, safety, and welfare of children”).

{¶25} “A trial court’s determination that a child is dependent under R.C.

2151.04 must be supported by clear and convincing evidence.” In re L.H., 2020-

Ohio-718, at ¶ 30 (3d Dist.); see also R.C. 2151.35(A)(1). We explained what clear-

and-convincing-evidence requires in our discussion above concerning the first

assignment of error. As also set forth above, when this Court reviews a trial court’s

adjudication of a child as dependent, we must determine whether the trier of fact

had sufficient evidence before it to satisfy the clear-and-convincing-evidence degree

of proof. In re O.M., 2023-Ohio-341, at ¶ 32 (3d Dist.).

{¶26} After reviewing the evidence before the trial court, we find that the

Agency presented sufficient evidence to support the allegation of dependency.

Among other things, the evidence showed Lucy was generally unable to control and

adequately supervise the children, yet she was left alone with them for extended

periods of time; the children—who are young—were able to routinely climb onto

the home’s roof and run onto the road; the parents failed to implement remedial

safety measures provided by the Agency; and Keith implemented some measures to

keep the children from climbing onto the roof that actually increased the potential

dangers of their environment. These circumstances produced a legitimate risk of

-13- Case Nos. 4-24-07, 4-24-08, 4-24-09

harm to the children. The environment subjected them to ongoing threats to their

safety and welfare.

{¶27} Therefore, we find that the trial court had sufficient evidence before it

to satisfy the clear-and-convincing-evidence degree of proof that each of the three

children was a dependent child because they were in a “condition or environment”

that “warrant[ed] the state, in the interests of the child,” to assume the child’s

guardianship. R.C. 2151.04(C). Given that the Agency has only taken temporary

custody of the children, Keith still has the opportunity to demonstrate that he can

properly care for the children in accordance with the case plan’s goal and be reunited

with them. See In re B.B., 2012-Ohio-2695, at ¶ 42 (3d Dist.).

{¶28} The second assignment of error is overruled.

IV. CONCLUSION

{¶29} For the foregoing reasons, Appellant’s assignments of error are

overruled. Having found no error prejudicial to the appellant in the particulars

assigned and argued, we affirm the judgments of the Defiance County Court of

Common Pleas, Juvenile Division.

Judgments Affirmed.

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlm

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