Summary
finding that absent evidence showing a detrimental impact upon her children, mere fact that mother was living with her boyfriend did not support characterization of her children as "dependent"
Summary of this case from In re BicknellOpinion
No. 78-1036
Decided April 25, 1979.
Juvenile Court — Dependent child — Finding not warranted, when — R.C. 2151.04 applied erroneously.
APPEAL from the Court of Appeals for Franklin County.
On October 9, 1977, the Franklin County Children Services Board filed an action in the Juvenile Branch of the Court of Common Pleas of Franklin County alleging that the two minor daughters of Mary McDaniel were neglected children under the provisions of R.C. 2151.03(B). It was alleged further that the children lacked proper parental care and supervision essentially because the mother was living with her boyfriend in the presence of the children, Carla, aged nine years, and Tina, aged six years, and that she refused to legalize or make any change in this relationship. At the hearing on November 1, 1977, the mother moved to dismiss on the ground that the complaint failed to state sufficient facts to constitute neglect under the statute. The trial court indicated that the complaint should have been filed under R.C. 2151.04(C) with the allegation that the children were dependent on the facts stated. On motion of the prosecutor, the complaint was so amended. A further motion to dismiss upon various constitutional grounds was overruled, and the cause proceeded to hearing.
The evidence established that the children appeared to be normal, healthy, clean and well dressed, with no evidence of abuse. There was testimony from the caseworker that she found no evidence of abuse or neglect in the home nor any demonstrable ill effects upon the children as a result of the mother living with a man not her husband. The children's teachers testified that the children were average or above average students, regular in attendance and properly dressed, with no specific behavioral problems except that the older child was somewhat "defensive" when corrected. There was also testimony by the mother that the older child was defiant, but that this characteristic predated the extra-marital relationship of the mother.
The trial court determined both children to be dependent children. At the dispositional hearing, the court found that the mother was, at that time, living alone and placed the children in the mother's custody, but with supervision by the children services board "for the sole purpose of monitoring" whether the mother's male companion was residing in the home, and, if he did reside there, the children would be removed.
Upon appeal, the Court of Appeals affirmed the judgment of the trial court.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Charles K. Milless, for appellant Mary McDaniel.
Ms. Brenda Feder, for appellants Carla and Tina Burrell.
Mr. George C. Smith, prosecuting attorney, Ms. Debi S. Everson and Mr. Patrick D. Maguire, for appellee Franklin County Children Services Board.
The issue here presented fundamentally involves the application of R.C. 2151.04, which reads as follows:
"As used in sections 2151.01 to 2151.54, inclusive, of the Revised Code, `dependent child' includes any child:
"* * *
"(C) Whose condition or environment is such to warrant the state, in the interests of the child, in assuming his guardianship."
Generally, the evidence before the trial court showed no possible conditions or environmental elements adverse to the normal development of these children other than that the mother was living with a man not her husband. There was no evidence at all as to any impact of this relationship upon the younger child. As to the older child, there was some evidence that she was defensive when criticized and somewhat defiant and disturbed by the conduct of the mother's previous husband, but there was nothing to show any nexus between the child's reactions and the environmental situation described in the complaint.
In the absence of evidence showing a detrimental impact upon the child of the relationship established as here existing, that relationship, as a part of the child's environment, does not warrant the state in removing the child from parental custody in the best interest of that child. Here, the evidence is inadequate to establish a present or potential detrimental impact under the standard set forth in R. C. 2151.35 of "clear and convincing evidence" that the child is a dependent child. The conduct of a parent is relevant under the terms of this specific section solely insofar as that parent's conduct forms a part of the environment of this 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. Here, such was not the case.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, COLE, P. BROWN SWEENEY, POTTER and WHITESIDE, JJ., concur.
COLE, J., of the Third Appellate District, sitting for W. BROWN, J.
POTTER, J., of the Sixth Appellate District, sitting for LOCHER, J.
WHITESIDE, J., of the Tenth Appellate District, sitting for HOLMES, J.