[Cite as In re J.Q. , 2020-Ohio-4507.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

IN RE: J.Q. :

:

:

: CASE NO. CA2020-02-003

O P I N I O N

9/21/2020

APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 20193109

A.Q., 218 N. Barron Street, Eaton, Ohio 43520, pro se Martin P. Votel, Preble County Prosecuting Attorney, Kathryn M. West, 101 East Main Street, Courthouse, First Floor, Eaton, Ohio 45320, for appelle e

PIPER, J. {¶1} Appellant, A.Q. ("Mother"), appeals a decision of the Preble Co unty Court of Common Pleas, Juvenile Division, finding her child, J.Q., depen dent and awarding temporary custody of J.Q. to the Preble County Job and Family S ervices, Children's Services Division ("the Agency"). {¶2} J.Q. appeared before the Preble County Juvenile Court for a pro bation violation after failing to atte nd school. The court placed J.Q . into the Agency's protective supervision. The Agency then filed a complaint alleging that J .Q. was dependent. MotherPreble CA2020-02-003

- 2 - denied the allegation of dependency, and the court scheduled an adjudication hearing. After the hearing, in which Mother participated, the court foun d J.Q. dependent and granted temporary custody of J.Q. to the Agency. {¶3} Mother now appeals, pro se, the juvenile court's decisions, rai sing the following assignments of error. {¶4} Assignment of Error No. 1: {¶5} THE TRIAL COURT ERRORED BY GRANTING TEMPORARY CUSTODY

TO AGENCY WITH NO PROOF OF REASONABLE EFFORTS MADE TO PROVE DEPENDENCY. [SIC]. {¶6} Mother argues in her first assignment of error that the court e rred in granting temporary custody of J.Q. to the Agency based on a finding of d ependency. {¶7} The state bears the burden of proof of establishing that a chil d is abused, neglected, or dependent. In re N.J. , 12th Dist. Warren Nos. CA2016-10-086, CA2016-10- 090, and CA2016-10-091, 2017-Ohio-7466, ¶ 12. A juvenile court 's adjudication of a child as abused, neglected, or dependent must be supported by clear a nd convincing evidence.

In re T.B. , 12th Dist. Fayette No. CA2014-09-019, 2015-Ohio-2580, ¶ 12. {¶8} Clear and convincing evidence is that measure or degree of proo f which will produce in the mind of the trier of facts a firm belief or conv iction as to the allegations sought

to be established. In re L.H. , 12th Dist. Warren Nos. CA2018-09-106, and CA2018-09-109 thru CA2018-09-111, 2019-Ohio-2383, ¶ 20. An appellate court's review of a juvenile court's decision finding clear and convincing evidence is limit ed to whether there is sufficient, credible evidence in the record supporting the juve nile court's decision. In re L.J. , 12th Dist. Clermont No. CA2007-07-080, 2007-Ohio-5498, ¶ 12. {¶9} The juvenile court determined that J.Q. was dependent pursuant to R.C. 2151.04(C), which defines a dependent child as one "whose condi tion or environment isPreble CA2020-02-003

- 3 - such as to warrant the state, in the interests of the child, in assuming the child's guardianship." The determination that a child is dependent req uires no showing of fault on the parent's part. In re A.P. , 12th Dist. Butler No. CA2005-10-425, 2006-Ohio-2717, ¶ 27. Rather, the focus is solely on the child's condition or environ ment, and whether the child is without adequate care or support. Id . While the child's present condition or environment is the focus of a dependency determination, the law does not requi re the court to experiment with the child's welfare to see if the child will suffer great detriment or harm. Id

. {¶10} The record indicates that J.Q. had very poor attendance at scho ol, failing grades in all but two classes, and was lacking necessary credit s to advance to the next school level. An Agency intake worker testified that J.Q. had missed 48 days of school the prior year and had begun missing school again in the new year. Despite needing 18 credits to be a senior, J.Q. only had five and one-half in his third ye ar. The intake worker also testified that there were allegations that the child was thin, and that Mother denied J.Q.

food. {¶11} J.Q.'s probation officer also testified and explained the physi cal safety

concerns she had for the child. These concerns included Mother not permitting J.Q. to prepare food, J.Q. hiding food in the closet to eat later, and also J.Q. being out past courtordered curfew with Mother's permission. The probation officer also testified that the child

told her that Mother removed door handles to the kitchen to den y access and locks the child in the bedroom. The probation officer testified that J.Q. is " very thin" and reports eating only once a day. Mother has also refused mental health care to the child, including mental health evaluations that were recommended by the probation depar tment. {¶12} The child's high school principal also testified regarding J.Q. 's precarious situation as a high school junior, needing 24 credits to gradua te but having only less than a third of that amount. J.Q. was also receiving six F's in the c urrent school semester. ThePreble CA2020-02-003

- 4 - principal also testified that when he spoke with J.Q. about con tacting Mother specific to school-related issues, that J.Q would become fearful and worry about Mother becoming upset. For example, the principle related that Mother had beco me upset when J.Q. voluntarily participated in a mental health screening held at t he school during which the child noted interest in receiving mental health assistance. Mo ther became upset that J.Q. participated in the screening, telling the principal that they had a family doctor J.Q. should

see for health-related issues. {¶13} Mother admitted during the adjudication hearing that she had di fficulty getting J.Q. to school, which was an ongoing issue during J.Q.'s high s chool career. The juvenile court specifically relied upon the facts related to J.Q.'s scho oling to adjudicate the child dependent, and those unrefuted facts demonstrated Mother had di fficulty ensuring J.Q.'s attendance in school. Thus, the record indicates that the juve nile court's adjudication of the child as dependent was supported by clear and convincing eviden ce. {¶14} Mother's first assignment of error is, therefore, overruled. 1 {¶15} Assignment of Error No. 2: {¶16} COURT ERRORED IN GRANTING A NINETY DAY EXTENSION OF TEMPORARY CUSTODY DUE TO INEFFECTIVE COUNSEL. [SIC]. {¶17} Mother argues in her second assignment of error that she was de nied the

effective assistance of counsel. {¶18} In order to prove ineffective assistance of counsel, one must d emonstrate that his or her counsel's performance was deficient and that such de ficient performance prejudiced the defense so that the results of the hearing would have been different absent

1. Mother also claims she was never provided with a complaint and that the Agency asked for protective supervision, not temporary custody. However, the record indica tes that Mother received the complaint, and that the Agency amended its complaint to include a request for temporary custody.Preble CA2020-02-003

- 5 - counsel's unprofessional errors. In re P.G. , 12th Dist. Warren Nos. CA2015-01-009, CA2015-01-010, 2016-Ohio-1433, ¶ 31. {¶19} Mother argues that her counsel was ineffective for interjecting during the hearing that Mother was willing to admit that she had trouble g etting J.Q. to go to school. During the hearing, Mother refused to admit J.Q.'s dependency. However, counsel indicated Mother's willingness to admit that she had difficulty getting the child to school. Yet, counsel made clear that Mother was not admitting to the ot her allegations such as denying the child food. {¶20} There is no indication of deficient conduct on counsel's part, as Mother specifically admitted to having difficulty getting the child to school even after the juvenile court specifically told Mother that if she denied the allegatio ns, a full hearing would progress. After the juvenile court asked if Mother was "admitting" that s he could not get the child to attend school, Mother stated, "I was having difficulty yes. Th at's all I'm saying. It was hard to get him up and wanting to go. He did not want to be there." {¶21} Mother did not admit all facts in dispute, and showed resistanc e to admitting any facts other than those related to school. After the juveni le court stated, "I mean if we need to have a hearing we can have a hearing," Mother stated, " no." She followed her statement denying the need for continuing the hearing by admitt ing that it was "difficult getting [J.Q.] to school. That was the only issue I was having . [The child] doesn't want to go. Doesn't want to be there. Doesn't like it." {¶22} As noted earlier, the juvenile court based its finding of depen dency upon the

school-related issues which inc luded Mother's admitted inabilit y to ensure the child's attendance. Thus, Mother's counsel was not ineffective where M other, herself, conceded her difficulty in having the child attend school. This is espe cially true where the juvenile court informed Mother that the hearing would progress if Mother disputed the school-relatedPreble CA2020-02-003

- 6 - facts and gave Mother multiple chances to explain the limitatio ns of her admission. However, Mother chose to admit to the school-related facts and did not receive ineffective assistance of counsel before doing so. {¶23} Mother's second assignment of error is overruled. {¶24} Assignment of Error No. 3: {¶25} COURT ERRORED IN NOT ENFORCI NG OR SUPERVISING A CASE PLAN. [SIC]. {¶26} Mother argues in her final assignment of error that the juvenil e court erred by granting temporary custody of the child to the Agency without t here being a case plan in place. {¶27} According to R.C. 2151.412(D), "all parts of the case plan shal l be completed by the earlier of thirty days after the adjudicatory hearing or the date of the dispositional hearing for the child." {¶28} The record reflects that the Agency submitted its case plan to the juvenile court within the statutory period. The juvenile court issued a n entry indicating Mother refused to sign the case plan generated by the Agency, and that the Agency had otherwise been unable to obtain signatures from the child's guardian ad l item and probation officer. {¶29} To allow mother to voice her objections to the case plan, the j uvenile court ordered a hearing. However, before the hearing occurred, Mothe r filed her notice of appeal with this court and filed an "answer" to the juvenile court's e ntry setting the hearing. Within the juvenile court filing, Mother stated her belief that she wa s "not required to appear" at the hearing and was relying upon this court's review of her appeal rather than participate in the case plan hearing. Of her own volition, rather than any error of the Agency or juvenile court, Mother expressed her refusal to participate and filed a notice of appeal, thus divesting the juvenile court of jurisdiction.Preble CA2020-02-003

- 7 - {¶30} Once the issue was appealed, the juvenile court lacked jurisdic tion to rule on the matter further. As such, Mother's final assignment of erro r is overruled. 2 {¶31} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.

2. The juvenile court will regain jurisdiction over this matte r upon the disposition of this appeal and can rule accordingly on the case plan issue.