[Cite as In re A.W., 2012-Ohio-2657.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

IN RE: : 

: Appellate Case No. 25039 

A.W. : 

: Trial Court Case No. JC 2009-7779 

: 

: (Juvenile Appeal from 

: (Common Pleas Court) 

: 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 15th day of June, 2012. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. 

Box 972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

PAUL D. GILBERT, Atty. Reg. #0010129, 120 West Second Street, Suite 503, Dayton, Ohio 

45402 

Attorney for Defendant-Appellant 

 . . . . . . . . . . . . . 

 

HALL, J. 

{¶ 1} M.B. (“Father”) appeals from the trial court’s dependency adjudication 

regarding his minor child, A.W., and from its dispositional order awarding temporary custody 

to Montgomery County Children Services (“MCCS”). 

{¶ 2} Father advances three assignments of error on appeal. First, he contends the 
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trial court erred in finding that A.W. is a dependent child. Second, he claims the trial court 

erred in awarding MCCS temporary custody because the record does not support a finding of 

dependency. Third, he asserts that the award of temporary custody was erroneous even if A.W. 

is a dependent child. 

{¶ 3} The record reflects that MCCS filed a dependency complaint under R.C. 

2151.04 in September 2009. The agency asserted that A.W. was dependent “due to the child’s 

mental and behavioral issues.” In relevant part, the complaint alleged: 

Child has cognitive delays and emotional and behavioral issues that 

prevent her from being able to remain in the family home. Child was charged 

with domestic violence against her mother but was found to be incompetent to 

stand trial. MCCS was granted interim temporary custody of the child due to 

the delinquency issues, but the charges [were] dismissed. Within one week of 

being placed in foster care, the child was admitted to Children’s Hospital in 

Cincinnati for aggressive behaviors. She has been hospitalized for the last two 

weeks and is frequently restrained and placed in seclusion for her own safety 

and the safety of others. Mother and Father are unable to care for the child at 

home. 

{¶ 4} The matter proceeded to a December 2009 adjudicatory hearing before a 

magistrate. Michelle Williams, an MCCS caseworker, testified that she became involved with 

the family after A.W. was charged in juvenile court with domestic violence and resisting 

arrest. (Dec. 4, 2009, transcript at 9). Those charges stemmed from 11-year-old A.W. kicking 

E.W. (“Mother”), breaking Mother’s rib, and fighting with police when they arrived. (Id. at 

28). According to Williams, Mother and Father agreed that they could not control A.W.’s 
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behavior and that the child needed to be placed in MCCS’s custody. (Id. at 9-10). Williams 

testified that Father characterized A.W. as being “out of control” and expressed fear about 

A.W. hurting a younger sibling. (Id. at 10). Williams further testified that “until things 

changed, [Father] was not willing to have [A.W.] return to his home.” (Id. at 10-11). Williams 

stated that Mother expressed a desire to have A.W. placed in an institutional setting. (Id. at 

11). 

{¶ 5} Williams also explained that Mother and Father had sought help from various 

agencies and had attempted to deal with A.W.’s behavioral problems since the child was about 

three years old. (Id. at 12). Despite these efforts, Father purportedly admitted to Williams that 

he was “unable” to handle A.W. (Id.) Williams also testified that A.W. had been diagnosed 

with mental-health disorders, including ADHD, bipolar, and oppositional-defiant disorder. (Id. 

at 13). Finally, Williams testified that A.W. had been given medications. (Id.). On 

cross-examination, she acknowledged that A.W.’s problems were behavioral in nature, were 

not related to issues in her home, and had continued to exist in foster care. (Id. at 17-18). 

{¶ 6} For his part, Father testified that he initially favored MCCS’s intervention to 

help A.W. get better. (Id. at 20-24). At the time of the adjudicatory hearing, however, Father 

wanted her to return home. The magistrate sustained an objection when Father attempted to 

testify that he believed A.W. had gotten “better.” (Id. at 25). 

{¶ 7} Mother then testified that she believed A.W. was “dependent” in the sense that 

the child “was going to need help for the rest of her life.” (Id. at 30, 44). Mother also described 

the types of help that she previously had gotten for A.W. Among other things, A.W. twice had 

received care from a hospital psychiatric unit. (Id. at 32). Mother expressed frustration, 

however, at the lack of funding for A.W. to receive additional care. (Id. at 31-33). Mother 
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admitted that A.W. sometimes “gets aggressive” with a younger sibling. (Id. at 34). But she 

was not worried because the children were never unattended. (Id.). Finally, Mother testified 

that A.W. had been on “many different medications.” (Id. at 35). 

{¶ 8} After hearing testimony from the foregoing witnesses, the magistrate issued a 

decision finding A.W. to be dependent. The trial court later denied a motion to set aside the 

magistrate’s decision and adopted the finding of dependency. This Court dismissed an appeal 

of the dependency finding for lack of an appealable order. The matter then proceeded to an 

October 2010 dispositional hearing before the same magistrate. After listening to additional 

testimony about A.W.’s condition, progress, and other issues, the magistrate granted MCCS 

temporary custody. Father filed objections to the magistrate’s decision. While the objections 

were pending, he unsuccessfully pursued a petition for a writ of habeas corpus. The trial court 

overruled Father’s objections and awarded MCCS temporary custody on February 3, 2012. 

This appeal followed.1

{¶ 9} In his first two assignments of error, which are briefed and argued together, 

Father contends a finding of dependency cannot be based on the mental illness or disability of 

a child. (Appellant’s brief at 7). He argues that “[f]rom the beginning of recorded case law the 

Courts of this State have insisted upon a showing of parental fault in order to find 

[d]ependency.” (Id. at 8). In support of this proposition, he cites, inter alia, In re Burrell, 58 

Ohio St.2d 37, 388 N.E.2d 738 (1979). He also relies on language from In re C.R., 108 Ohio 

St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 22, stating “that abuse, neglect, or 

 1

Parenthetically, we note the existence of evidence in the record indicating that Mother passed away after the trial court granted 

MCCS temporary custody. For that reason, she is not a party to this appeal. 
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dependency adjudications implicitly involve a determination of the unsuitability of the child’s 

parents.” Father argues that a finding of dependency cannot be made under R.C. 2151.04(C) 

absent evidence of “a nexus between the deficiencies found in the child’s condition and 

environment and inappropriate behavior of the parents.” (Appellant’s brief at 9). He insists 

that the there is no evidence of inappropriate parental behavior in this case, much less 

evidence of a nexus between any inappropriate parental behavior and A.W.’s problems. 

Therefore, he reasons that the trial court erred in finding A.W. to be a dependent child. 

{¶ 10} A “dependent child” includes one “[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(C). A trial court’s dependency finding must be supported by clear and 

convincing evidence. In re P.G., 2d Dist. Montgomery No. 22706, 2008-Ohio-4015, ¶ 11. 

This Court’s review is limited to determining whether the record contains sufficient, credible 

evidence to support the trial court’s decision. Id.

{¶ 11} The focus in a dependency proceeding is on the child’s condition, not on 

parental fault or a lack thereof. In re Riddle, 79 Ohio St.3d 259, 263, 680 N.E.2d 1227 (1997) 

(recognizing that a dependency case focuses on the condition or environment of the child 

rather than parental fault); State v. Frazier, 2d Dist. Montgomery Nos. 15273, 15274, 1996 

WL 517271, *3 (Sept. 13, 1996) (“Unlike a case involving neglect, fault on the part of a 

parent is not necessary to a finding of dependency. * * * In dependency cases, the focus is on 

the condition of the children, and not the fault of the parents.”). This is not to say that a 

parent’s conduct is never relevant in a dependency proceeding. A parent’s problems and 

deficiencies certainly can affect a child’s condition or environment and necessitate state 

intervention. In re Lannom, 2d Dist. Clark No. 96-CA-64, 1997 WL 761323, *5 (Dec. 12, 
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1997). But a finding of dependency does not require a showing of parental fault because fault 

is not an issue in a dependency proceeding. See, e.g., In re Ament, 142 Ohio App.3d 302, 307, 

755 N.E.2d 448 (12th Dist.2001); In re Riddle at 263. 

{¶ 12} The case law cited by Father fails to persuade us otherwise. Notwithstanding 

Father’s argument, In re Burrell, supra, does not stand for the proposition that parental fault is 

required for a finding of dependency. In that case, the Ohio Supreme Court reasoned: 

The conduct of a parent is relevant under [R.C. 2151.04(C)] 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. That impact cannot be simply inferred in general, but must 

be specifically demonstrated in a clear and convincing manner. 

In re Burrell at 39. 

{¶ 13} The foregoing language merely reaffirms that parental conduct (or 

misconduct) generally is not relevant in a dependency proceeding. It may become relevant, 

however, to the extent that it adversely impacts the child’s condition or environment. Notably 

absent from In re Burrell is any indication that parental misconduct, or fault, must exist for a 

dependency finding. 

{¶ 14} We are equally unpersuaded by Father’s reliance on the Ohio Supreme Court’s 

observation in In re C.R. “that abuse, neglect, or dependency adjudications implicitly involve 

a determination of the unsuitability of the child’s parents.” In re C.R. at ¶ 22. Father errs in 

equating the term “unsuitability” with “fault.” At least with respect to dependency actions 

parental “unsuitability” is broader than “fault.” This must be so because the Ohio Supreme 
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Court has made clear that parental “fault” is not required for a finding of dependency. In re 

Riddle at 263. Therefore, Mother and Father may have been “unsuitable” legal custodians for 

A.W., given their inability to control her behavior, notwithstanding their lack of “fault” for her 

behavioral and mental problems. See In re Myers, 3d Dist. Seneca No. 13-06-48, 

2007-Ohio-1631, ¶ 15-19. 

{¶ 15} Having determined that inappropriate parental behavior, or “fault,” is not 

required for a finding of dependency, we overrule Father’s first and second assignments of 

error. 

{¶ 16} In his third assignment of error, Father contends the trial court erred in 

awarding MCCS temporary custody of A.W. He argues that none of MCCS’s actions have 

been helpful or beneficial to A.W. and that the agency’s failure to return the child to him 

violates R.C. 2151.419. 

{¶ 17} The statute governing a trial court’s disposition of a dependent child 

authorizes committing the child to the temporary custody of a public children-services agency 

when such a disposition is in the child’s best interest. See R.C. 2151.353(A)(2); In re S.M., 

C.M., & D.M., 2d Dist. Montgomery No. 24539, 2011-Ohio-6710, ¶ 3. While an award of 

temporary custody to a children-services agency must be supported by the preponderance of 

the evidence, “a court has substantial discretion in weighing the considerations involved in 

making the determination regarding a child’s best interest.” Id. at ¶ 4. 

{¶ 18} The record reflects that A.W. had been placed in a residential-treatment 

facility at the time of the dispositional hearing. (Oct. 29, 2010, transcript at 26). She was 

receiving frequent group and individual therapy as well as regular medication management. 
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(Id. at 80). She also was attending four hours of daily special-education classes. (Id. at 81). 

Although A.W. previously had made some progress in her behavior while at the facility, she 

had regressed at the time of the dispositional hearing. (Id. at 83-84). At that time, A.W.’s 

“aggression level” was high and the child expressed fear that she might have behavioral 

problems if she went home. (Id. at 90, 114). 

{¶ 19} Although the goal for A.W. is reunification, clinical counselor Lisa Neeley 

testified that returning the child to her family would not yet be “healthy.” (Id. at 92). This was 

so, according to Neeley, because A.W.’s frequent aggressive behavior posed a risk to a 

younger sibling. (Id. at 92, 133). Neeley later opined that sending A.W. home would not be a 

“wise choice” because the child was “very unstable.” (Id. at 118). Finally, Neeley testified that 

A.W.’s behavior required staff to place her in “holds” several times a week. (Id. at 131). 

Correctly placing the child in a “hold” required two men to restrain her. (Id.). In Neeley’s 

opinion, Mother and Father would have a difficult time safely placing A.W. in a hold. (Id. at 

132). 

{¶ 20} Another witness, caseworker Nell Oliver Elliott, reiterated that MCCS’s goal 

for A.W. was reunification with her family. (Id. at 147). Elliott testified, however, that Mother 

and Father first needed to comply with a case plan and with agency recommendations to help 

them address A.W.’s behavior. (Id.). According to Elliott, Mother had expressed concerns 

about A.W. returning home, including concerns about a younger sibling’s safety. (Id. at 

149-150). In her own testimony, Mother stated that she wanted A.W. to come home but also 

wanted her to “get better” first. (Id. at 188, 203) The guardian ad litem also participated in the 

dispositional hearing and recommended that A.W. be placed in MCCS’s temporary custody. 

(Id. at 211). 
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{¶ 21} Having reviewed the record, we conclude that the trial court’s award of 

temporary custody to MCCS is supported by the evidence and does not constitute an abuse of 

discretion. Although A.W. had made sporadic progress in the residential-treatment facility, the 

trial court reasonably could have found that the child’s best-interest would be served by 

granting temporary custody to MCCS. The preponderance of the evidence indicates that A.W. 

posed a danger to others and that her parents were unable to control her behavior. Under such 

circumstances, we see no error in the trial court’s dispositional order awarding MCCS 

temporary custody. 

{¶ 22} Father’s reference to R.C. 2151.419 fails to persuade us otherwise. The statute 

provides, inter alia: 

“[A]t any hearing held pursuant to section 2151.28, division (E) of 

section 2151.31, or section 2151.314, 2151.33, or 2151.353 of the Revised 

Code at which the court removes a child from the child’s home or continues the 

removal of a child from the child’s home, the court shall determine whether the 

public children services agency or private child placing agency that filed the 

complaint in the case, removed the child from home, has custody of the child, 

or will be given custody of the child has made reasonable efforts to prevent the 

removal of the child from the child’s home, to eliminate the continued removal 

of the child from the child’s home, or to make it possible for the child to return 

safely home. 

R.C. 2151.419(A)(1). 

{¶ 23} In recommending an award of temporary custody to MCCS, the magistrate 

specifically found that MCCS “has made reasonable efforts to prevent the removal of the child 
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from the child’s home, to eliminate the continued removal of the child from the child’s home, 

or to make it possible for the child to return home * * *.” (Doc. #33 at 1). The magistrate then 

identified what MCCS had done. (Id.). 

{¶ 24} Father argues that MCCS failed to make “reasonable efforts” under R.C. 

2151.419(A)(1) because, in his view, the child has obtained no benefit from the treatment she 

has received. (Appellant’s brief at 12). Even if this assertion is true, the statute requires 

“reasonable efforts” not “positive results.” We see no violation of R.C. 2151.419(A)(1) here. 

The third assignment of error is overruled. 

{¶ 25} The judgment of the Montgomery County 

Common Pleas Court, Juvenile Division, is affirmed. . . . . . . . . . . . . . 

GRADY, P.J., and DONOVAN, J., concur. 

Copies mailed to: 

Mathias H. Heck 

Carley J. Ingram 

Paul D. Gilbert 

Hon. Nick Kuntz