[Cite as In re J.C.,

.]

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

IN RE: J.C. C.A. Nos. 26229 J.C. 26233

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 11-05-360 DN 11-05-361

DECISION AND JOURNAL ENTRY

Dated: July 11, 2012

WHITMORE, Presiding Judge.

{¶1} Appellant, Juanana C. (“Mother”), appeals from the judgment of the Summit

County Court of Common Pleas, Juvenile Division, adjudicating her children dependent and

granting temporary custody to Summit County Children Services (“SCCS”). Additionally,

Dakota P. (“Father”) appeals from the same judgment. This Court affirms.

I

{¶2} On May 17, 2011, Mother brought Jo.C. and Ju.C. into the emergency room at

Barberton Hospital. Mother told the physician’s assistant that she had received a phone call in

the middle of the night telling her that the children had been sexually abused by a former

boyfriend and that she should have the children examined. The examination did not reveal any 2

evidence of abuse, which did not surprise the physician’s assistant because it had been

approximately two months since Mother had last seen this former boyfriend.

{¶3} Because there was an allegation of sexual abuse the police were called and an

officer arrived at the hospital and prepared a report. The next day, the case was assigned to

Detective Shannon Davis. Detective Davis spoke with Mother on May 18th to explain the

investigation process, which first required Detective Davis to schedule an appointment for the

children to have a risk evaluation at Children’s Hospital. Detective Davis told Mother that she

would be in touch as soon as the appointment was scheduled.

{¶4} At approximately 7:00 a.m. the following morning, Mother arrived with the

children at the police station to inquire about the investigation of her case. Mother appeared to

be disheveled, her hair was in disarray, she was wearing a tank top without any undergarments,

and she had a very strong body odor. Mother was also exhibiting erratic behavior with extreme

emotional mood swings. The children had runny noses and appeared to be sick or very sleepy.

The youngest child was without a diaper. After approximately 45 minutes, Detective Davis

decided to remove the children from Mother’s care pursuant to Juv.R. 6 and a call was placed to

SCCS. Sarah-Maria Riffle, a SCCS intake caseworker, went to the police station and took

custody of the children.

{¶5} Later that morning, Louanne Jenkins, a service coordinator with Help Me Grow,

arrived at Mother’s apartment for a scheduled visit. Mother had emptied all of the furniture out

of her apartment and had placed all of her belongings on the lawn. There was an intense odor of

bleach and puddles of bleach on the floor of the apartment. Mother informed Jenkins that she

had cleaned everything with bleach in an attempt to rid the apartment of evil. Mother appeared

distraught, confused, and could not focus. Jenkins, having never seen Mother this way before, 3

placed a call to 911. The police responded to the call, but informed Jenkins that there was

nothing they could do. Jenkins took Mother to the hospital, but Mother left before being

evaluated by a doctor.

{¶6} After an adjudicatory hearing, the magistrate issued a decision finding Jo.C. and

Ju.C. dependent children. After a subsequent dispositional hearing, the magistrate granted

temporary custody of the children to SCCS. Mother and Father filed objections to both of the

magistrate’s decisions. The trial court overruled the objections and adopted the magistrate’s

decisions. Both parties appealed from that judgment, and this Court consolidated the matters on

appeal. Father raises one assignment of error, and Mother raises three assignments of error for

our review. For ease of analysis, we address some assignments of error out of order.

II

Father’s Assignment of Error

THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS THE COMPLAINT OF THE APPELLANT FOR LACK OF JURISDICTION[.]

{¶7} In his sole assignment of error, Father argues that the juvenile court lacked

jurisdiction to hear the case because the complaint was deficient. Specifically, Father argues that

the complaint was deficient because its accompanying affidavit was not based on the personal

knowledge of the affiant and the affidavit was not incorporated into the complaint, which left it

devoid of required facts.

{¶8} “A complaint under Juv.R. 10 and R.C. 2151.27 alleging that a child is dependent

must state the essential facts which bring the proceedings within the jurisdiction of the court.” In

re Hunt,

(1976), paragraph one of the syllabus. However, “[t]he Hunt case

does not stand for the proposition that the juvenile court is without jurisdiction to act upon a 4

defective complaint.” In the Matter of Daniels, 9th Dist. Nos. 9794, 9795, 9796, & 9802,

, *2 (1981).

{¶9} Any alleged defect in a complaint may be raised by motion and must be heard

before the adjudicatory hearing. Juv.R. 22(D)(2). If such a prehearing motion is filed, it must

“be filed by the earlier of: (1) seven days prior to the hearing, or (2) ten days after the appearance

of counsel.” Former Juv.R. 22(E)1. A “defect [in a complaint] must be raised by motion or it is

[forfeited].” In the Matter of Daniels at *2. While this might appear to be a harsh result, it

should be remembered that even if a complaint is defective, the State must nevertheless prove

sufficient facts at the adjudicatory hearing for the court to find dependency or neglect. The

rights of the parties, therefore, are “amply protected.”

{¶10} Here, Father made an oral motion to dismiss at the start of the adjudicatory

hearing on July 14, 2011. However, Father was required to raise any defects in the complaint at

least seven days prior to the hearing, which was earlier than ten days after the appearance of his

counsel. See Former Juv.R. 22(E). Because Father failed to do so, the motion was untimely and

any challenge to a defect in the complaint has been forfeited. See In the Matter of Daniels at *2.

While forfeiture leaves open a claim of plain error, Father has not made such an argument.

Because Father has not presented an argument of plain error, we decline to address it. See State

v. Hairston, 9th Dist. No. 05CA008768,

; App.R. 16(A)(7). Father’s

sole assignment of error is overruled.

{¶11} We pause here to draw attention to matters of concern with the complaint in this

case. The complaint consists of three separate pages. The first page is a form affidavit which

provides boxes to be checked in order to specify whether the child is alleged to be abused,

1 We note that Juv.R. 22(E) was amended on July 1, 2012, and that the current version of the rule is not applicable here. 5

neglected, dependent or deserted, and other boxes are to be checked to indicate which orders are

being sought from the court. The second page consists of another form with boxes to be checked

which specify which part of the statute is alleged to have been violated. The third page is a

narrative which purports to contain the factual basis for the complaint. The second and third

pages are not signed, initialed, or incorporated by reference into the complaint page in any way.

While not dispositive here, we note that it does not represent best practice and it could be

dispositive in a future case.

Mother’s Assignment of Error Number Two

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE STATE TO PRESENT EVIDENCE OF PREVIOUS INVOLVEMENT WITH CSB, IN VIOLATION OF THE OHIO RULES OF EVIDENCE RULE 404(B).

{¶12} In her second assignment of error, Mother argues that the court erred when it

allowed the admission of other acts evidence during the adjudication hearing. Specifically,

Mother argues that it was improper for the court to allow testimony regarding Mother’s prior

involvement with SCCS.

{¶13} Evid.R. 404(B) prohibits evidence of other acts “to prove the character of a

person in order to show action in conformity therewith.” Evidence may be admissible to show

“proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Evid.R. 404(B); see also R.C. 2945.59. “Trial court decisions regarding

the admissibility of other-acts evidence under Evid.R. 404(B) are evidentiary determinations that

rest within the sound discretion of the trial court. Appeals of such decisions are considered by an

appellate court under an abuse-of-discretion standard of review.” State v. Morris, Slip Opinion

No.

, syllabus. 6

{¶14} At the adjudicatory hearing, testimony was heard from Sarah-Maria Riffle, an

intake caseworker with SCCS. Mother points to two instances during direct examination in

which Riffle referred to a previous SCCS case. First, Riffle said that she had worked with

Mother on a previous referral. Second, Riffle said that she was aware that Father “had only been

allowed to have supervised visitation with” Jo.C., and that he had failed to complete his case

plan objectives.

{¶15} The basis of the prior SCCS case was not discussed. The testimony that Riffle

had previously met Mother was merely a foundational question to establish that Mother’s

appearance and demeanor on May 19, 2011, was not the same as it had been in the past. Riffle

testified that Mother “previously had always been very well put together physically. She had

always had clean clothes on, she had always had appropriate undergarments on, her hair was

always done very well, [and] I never smelled any body odor.” This is not inadmissible character

evidence. Further, Riffle’s testimony regarding Father’s failure to complete his previous case

plan objectives and his restriction to supervised visits with Jo.C. did not implicate any prior act

by Mother.

{¶16} Riffle’s testimony was not inadmissible character evidence offered to show that

Mother acted in conformity therewith. Accordingly, Mother’s second assignment of error is

overruled.

Mother’s Assignment of Error Number One

THE TRIAL COURT’S DECISION TO FIND THESE CHILDREN DEPENDENT IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶17} In her first assignment of error, Mother argues that the court’s finding of

dependency is against the manifest weight of the evidence. We disagree. 7

{¶18} “When reviewing an appeal from the trial court’s ruling on objections to a

magistrate’s decision, this Court must determine whether the trial court abused its discretion in

reaching its decision.” Fields v. Cloyd, 9th Dist. No. 24150,

. “In so doing,

we consider the trial court’s action with reference to the nature of the underlying matter.”

Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M,

, ¶18.

{¶19} In evaluating whether a civil judgment is against the manifest weight of the

evidence, the standard of review is the same as that in a criminal case. See Eastley v. Volkman,

Slip Opinion No.

.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine 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 conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986). A weight of evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. State v. Thompkins,

(1997). “When a court of appeals

reverses a judgment of a trial court on the basis that the verdict is against the weight of the

evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s

resolution of the conflicting testimony.”

The court’s “discretionary power to grant a new

trial should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.”

. See also State v. Martin,

(1st

Dist. 1983).

A dependent child is any child “[w]ho lacks proper care or support by reason of the mental or physical condition of his [or her] parents, guardian, or custodian,” or “[w]hose condition or environment is such as to warrant the state, in the interest of the child, in assuming the guardianship.” R.C. 2151.04(B) and (C). The burden of proof to demonstrate that a child is dependent is reposed with the state 8

by clear and convincing evidence. In re Bishop,

(5th Dist. 1987).

In re Bassette, 9th Dist. No. 20751,

, *1 (Mar. 27, 2002).

{¶20} “[A] child may be declared dependent if [his or] her prospective condition or

environment would be threatening to the health or well-being of the infant. The state is not

required to take the ‘long odds gamble’ on the life of a child before intervening.” (Emphasis

added and internal citations omitted.) In re Massengill,

(6th

Dist. 1991).

The conduct of a parent is relevant [in adjudicating a child dependent] solely insofar as that parent’s conduct forms a part of the environment of [the] child. As 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.

In re Burrell,

(1979).

{¶21} Mother argues that the evidence presented focused on the concerns of her mental

health and did not demonstrate that the children’s environment warranted state intervention.

However, Mother’s mental health is directly related to the children’s environment and was

properly considered by the court.

{¶22} Mother cites In re V.R., 9th Dist. No. 23527,

, for the proposition

that her behavior alone cannot warrant state intervention. We disagree. First, In re V.R. is

distinguishable in its facts. When V.R. was born, her mother tested positive for marijuana,

alcohol, and opiates. Id. at ¶ 2. V.R. was placed with the maternal grandmother, and her mother

immediately began working on her case plan objectives, which included weekly drug screening.

Id. at ¶ 25. Mother was consistently and frequently involved with V.R.’s care, which was

observed as being appropriate. Id. at ¶ 4, 10, 11-12, 19. 9

{¶23} Here, Mother has not been compliant with her case plan objectives (i.e., following

through with mental health evaluation and recommendations). Joselyn Vasquez-Molina, the

assigned SCCS protective caseworker, testified that “Mother does not really communicate with

me at all * * *.” While Mother’s visits with the children have been going well overall, she had

missed visitation appointments without informing SCCS or her caseworker. Additionally,

Vasquez-Molina testified that Mother had informed her that she no longer had housing.

Vasquez-Molina said that she had been unable to verify this because Mother was not

communicating with her.

{¶24} Mother’s erratic behavior goes directly to the children’s environment and their

safety. Mother placed all of the contents of her apartment on the front lawn of her apartment and

doused everything in bleach. She then threw her keys to the apartment away because there was

“evil” in the apartment. In the early morning hours of May 19th, Mother drew three symbols on

the sidewalk where she sat with the children until she felt safe from the evil, at which point she

took the children and ran to the police station.

{¶25} Louanne Jenkins, a service coordinator with Help Me Grow, testified that she had

met with Mother every two weeks for the past two years. Jenkins testified that when she saw

Mother outside of her apartment in the late morning on May 19th, she was not herself. Jenkins

testified that the children were not with Mother and that she was scared that something had

happened to the children. Jenkins said she was so scared that she “didn’t want to go into the

apartment alone” so she called 911. The police responded, but informed Jenkins that there was

nothing they could do for Mother. Jenkins, concerned for Mother’s mental health, drove her to

St. Thomas hospital, but Mother left before seeing a doctor. 10

{¶26} The testimony of Detective Shannon Davis and Sarah-Maria Riffle was also

consistent with Jenkins’. Mother’s conversations were hard to follow, as she would jump from

subject to subject. Mother had drastic and quick mood swings. “She would get very angry and

very agitated and talk very quickly, and then she would be almost eerily calm and silent for a few

moments, and then – a few seconds and then she would start again.”

{¶27} After reviewing the record, we cannot conclude that the court abused its

discretion in finding Mother’s conduct created an environment for the children that warranted

state intervention. Mother’s first assignment of error is overruled.

Mother’s Assignment of Error Number Three

THE TRIAL COURT’S DECISION TO PLACE THESE CHILDREN IN THE TEMPORARY CUSTODY OF SUMMIT COUNTY CHILDREN’S SERVICES BOARD IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶28} In her third assignment of error, Mother argues that the court’s decision to grant

SCCS temporary custody is against the manifest weight of the evidence. We disagree.

{¶29} Because Mother’s third assignment of error also challenges the weight of the

evidence, we incorporate the manifest weight standard of review laid out in the previous

assignment of error.

Although the statutory scheme regarding an award of legal custody does not include a specific test or set of criteria, this Court has previously held that the trial court must base such a decision on the best interest of the child. In re S.J., 9th Dist. No. 23199,

, citing In re N.P., 9th Dist. No. 21707,

. Consequently, “[i]n legal custody cases, trial courts should consider all factors relevant to the best interest of the child.” In re S.J. at ¶ 34.

In re R.R., 9th Dist. No. 23641,

.

{¶30} Mother has not complied with her case plan, which was to undergo a

psychological evaluation and follow the recommendations, if any, of that evaluation.

Consequently, there are continued concerns about Mother’s mental health and the effect that it 11

could have on the children. One of the factors the court should consider when determining the

best interest of the child is “whether the parent has substantially remedied the conditions that

caused the child’s removal.” In re Pittman, 9th Dist. No. 20894,

, ¶ 60. See

also In re S.J. at ¶ 32 (statutory factors for permanent custody may provide trial courts guidance

in making an award of legal custody). Here, the court found that “[t]he initial concerns regarding

Mother’s mental health remain” and that it was in the best interest of the children to remain in

the temporary custody of SCCS. After reviewing the record, we cannot conclude that the trial

court abused its discretion in reaching that conclusion. Accordingly, Mother’s third assignment

of error is overruled.

III

{¶31} Father’s sole assignment of error and Mother’s assignments of error are overruled.

The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 12

Costs taxed to Appellants.

BETH WHITMORE FOR THE COURT

MOORE, J. CONCURS.

BELFANCE, J. CONCURRING IN JUDGMENT ONLY.

{¶32} I concur in the judgment. Father has not challenged the juvenile court’s

determination that he had failed to timely object to the deficiency in the complaint. Therefore,

based on the limited arguments Father makes on appeal, I would affirm. See App.R. 16(A)(7);

Cardone v. Cardone, 9th Dist. No. 18349,

, *8 (May 6, 1998). In addition, I do

not concur in the application of In the Matter of Daniels, 9th Dist. Nos. 9794, 9795, 9796, &

9802,

(Mar. 18, 1981), to this matter, and I believe the holding in In the Matter of

Daniels is overly broad and misconstrues the actual holding of In re Hunt,

(1976).

APPEARANCES:

DAVID M. WATSON, Attorney at Law, for Appellant.

GREGORY A. PRICE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.