The opinion
[Cite as In re K.K., 2024-Ohio-2595.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
K.K., et al. : CASE NOS. CA2023-03-025
CA2023-03-026
: CA2023-03-027
: OPINION
7/8/2024
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. JN2022-0314; JN2022-0315; JN2022-0317
Billy W. Guinigundo, for appellant, father.
Jeannine C. Barbeau, for appellee, mother.
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee, Butler County Department of Job & Family
Services.
Nicole Stephenson, guardian ad litem
BYRNE, J.
{¶ 1} Father appeals from decisions of the Butler County Court of Common
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Pleas, Juvenile Division, which found Father's three minor children to be "dependent"
children under R.C. 2151.04. We affirm the juvenile court decisions.
I. Factual and Procedural Background
A. The Complaints
{¶ 2} According to the briefs filed in this case, on March 31, 2022, the Butler
County Department of Job and Family Services, Children Services Division ("the
agency") filed complaints alleging that Father's three minor children were dependent
children. After the filing of the initial complaints, the juvenile court placed the children
in the agency's temporary custody. Following a contested shelter care hearing in April
2022, the court placed the children in Mother's temporary custody. The complaints
were refiled a second time in June 2022 and another contested shelter care hearing
was held in August 2022.
{¶ 3} The agency refiled the complaints for the third time in September 2022,
which complaints form the basis of the decisions appealed from in this appeal. The
refiled complaints alleged that Father's three minor children were dependent children
under R.C. 2151.04. That statute's subsections provide four alternative definitions of
"dependent child." The agency's complaint specifically alleged that the three children
were dependent children under the (D) subsection of R.C. 2151.04. That subsection
provides that a "dependent child" is a child
(D) To whom both of the following apply:
(1) The child is residing in a household in which a
parent, guardian, custodian, or other member of the
household committed an act that was the basis for
an adjudication that a sibling of the child or any
other child who resides in the household is an
abused, neglected, or dependent child. [and]
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(2) Because of the circumstances surrounding the
abuse, neglect, or dependency of the sibling or
other child and the other conditions in the
household of the child, the child is in danger of
being abused or neglected by that parent, guardian,
custodian, or member of the household.
(Emphasis added.) R.C. 2151.04(D)(1) and (2).
{¶ 4} The refiled complaints alleged that on March 30, 2022 (that is, the day
before the first complaints were filed), the agency received a referral that one of
Father's children, "Carrie,"1 had visible marks on her neck as the result of Carrie
intervening in a domestic violence incident between Father and the children's mother
("Mother"). The complaints alleged that the other two children, "Katherine" and "Walt,"
were present during this incident.
{¶ 5} The complaints explained that Mother and Father had shared parenting
of the children, and that on the evening of March 29, 2022, Mother was at Father's
home in violation of an existing protection order. The complaints stated that both
Mother and Father had regularly violated the protection order and there had been
domestic violence issues between Mother and Father for years.
{¶ 6} The complaints further alleged that Father refused to speak to the
agency or the police regarding the incident and would not answer the door. However,
the complaints alleged that Father "later" admitted to grabbing Mother and pulling her
down the stairs in front of the children. In addition, Father allegedly admitted to
pushing Carrie and breaking "another child's" cell phone during the incident. The
1. We use pseudonyms to refer to the minor children, to preserve their privacy and for purposes of
readability. See In re A.P., 2022-Ohio-3181, ¶ 2, fn.1 (12th Dist.).
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complaints alleged that Mother had advised the Hamilton Police that she did not want
to press charges against Father for either herself or Carrie in connection with the
March 29 incident, but that the Hamilton Police had advised the agency they would be
filing domestic violence and child endangering charges against Father as a result of
the incident. The complaints requested that the court grant temporary custody of the
three children to the agency.
B. Adjudication Hearing
{¶ 7} A juvenile court magistrate held an adjudication hearing in October 2022.
At the beginning of the hearing, the agency requested to modify the complaints with
respect to all three children to assert that the agency was alleging dependency under
R.C. 2151.04(C), rather than under R.C. 2151.04(D)(1) and (2) as previously
indicated. R.C. 2151.04(C) provides that a child is dependent if the child's "condition
or environment is such as to warrant the state, in the interests of the child, in assuming
the child's guardianship." No parties objected to this modification, and the court
granted the request.
{¶ 8} For its case, the agency called Father as if upon cross-examination.
Father agreed with the state's characterization that on the evening of March 29, 2022,
Mother had come to his house because of "something to do with money." Father also
agreed that during the incident between he and Mother, he broke the cell phone used
by Katherine—though he qualified this statement by explaining that the phone was his
property, not Katherine's. Father admitted that Katherine could have been video
recording the incident between he and Mother, but he denied he broke the phone
because Katherine was recording. Father explained that he instead broke Katherine's
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phone because she was "interjecting" herself in the "situation."
{¶ 9} Regarding the allegation that he dragged Mother down the stairs, Father
declined to testify, pleading the Fifth Amendment right against self-incrimination.
However, he later admitted to holding Mother "up" while walking her down the stairs.
Specifically, he testified that he was "holding" her, but he denied "pulling" her. At that
time, he admitted, he "might" have turned around and pushed Carrie. And he admitted
it was a "possibility" that he shoved Carrie to the ground.
{¶ 10} The children's guardian ad litem called Mother to provide direct
testimony. Mother testified that Father dragged her down the stairs, and then Carrie
came and intervened and "body pushed" Father off Mother. Then, according to
Mother, Father lifted Carrie into the air. When presented with a photograph depicting
Carrie's neck, Mother identified scratches on Carrie's neck and stated that the
scratches were not present prior to the March 29 incident with Father.
{¶ 11} Mother further testified that Father physically dragged her out of the
home that evening. She stated that Father had perpetrated verbal abuse against her
"for years." Regarding the ongoing fighting between herself and Father, Mother stated
that they typically sent the children to their rooms when they had "issues," but she was
sure the children "heard it."
{¶ 12} At the conclusion of the adjudication hearing, the parties presented
closing arguments. As part of his closing argument, Father's attorney cited this court's
precedent in In re A.V., 2021-Ohio-3873 (12th Dist.). Father argued that the agency
failed to submit clear and convincing evidence that the children were negatively
impacted by the incident that occurred in the home on March 29, and therefore,
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pursuant to A.V., the court should not find the children dependent.
C. Magistrate's Adjudication Decision
{¶ 13} On October 4, 2022, the magistrate issued an adjudication decision.
Because some of Father's arguments discussed below concern certain of the
magistrate's factual findings with which Father disagrees, we now quote from the
magistrate's factual findings in the adjudication decision at length:
6. Father removed mother from the home by physically
carrying or dragging her down the steps and out of the
door to his residence . . .
7. Father did not call the police at any time to report that
mother had violated the restraining order.
8. While he was dragging or carrying mother out of the
home, one of the children, [Carrie], attacked father in an
apparent effort to separate father and mother.
9. At some point, father shoved or pushed [Carrie],
eventually picking her up by the neck causing injury to her.
Father denied doing this, but mother's testimony and
photographic evidence clearly contradict his denial.
10. At some point, [Carrie] retrieved a knife from the
kitchen and attempted to attack Father.
11. After father had successfully removed mother from the
home, father took a cell phone, ordinarily used by and in
the possession of [Katherine], from [Katherine] and
destroyed it.
{¶ 14} The magistrate went on to analyze the case and specifically addressed
this court's decision in A.V. The magistrate distinguished A.V., finding that in that case,
unlike this one, there was no evidence presented that the children were harmed as a
result of their parents' conduct. The magistrate then concluded that, based on its
factual findings and its analysis of A.V. as distinguishable, the agency demonstrated
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"by clear and convincing evidence" that the children were dependent under R.C.
2151.04.
D. Objections to Magistrate's Decision, Additional Evidence, and Decision
Overruling Objections
{¶ 15} Father timely objected to the Magistrate's adjudication decision.
Relevant to this appeal, Father argued that the magistrate erred in finding clear and
convincing evidence that the children were dependent. Father contended that the
agency failed to satisfy its burden and that the magistrate improperly analyzed the
issue of adverse impact pursuant to A.V.
{¶ 16} In December 2022, before the juvenile court had ruled on Father's
objections to the magistrate's decision, Father moved for the admission of additional
evidence. Father proffered a USB drive containing three digital video files. Father
stated that he was submitting the video evidence to "rebut the erroneous testimony of
[Mother]."
{¶ 17} On February 6, 2023, the juvenile court issued its decision on Father's
objections to the magistrate's decision. Initially, the court addressed Father's motion
to admit the three digital video files. The court noted that based on the lack of any
opposition to Father's motion, the court viewed the video files in considering Father's
objections and marked them as exhibits. The court described the content of the videos
as follows:
• All three video clips were dated March 29, 2022 and were
less than 1 minute in length. The first video began at
approximately 8:15 p.m. The second video began at
approximately 9:44 p.m. The third video began at
approximately 10:29 p.m. None of the videos has audio.
• The first video appears to show Mother entering the front
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door of the house and Mother and Father talking in the
family room area.
• The second video appeared to show Father dragging
Mother down the stairs to the area at the bottom of the
stairs. Mother's sweatshirt came off during the process.
What appears to be one of the children is observed
pushing Father in the back while he has a hold of Mother
while Mother is on the floor at the bottom of the stairs. The
push to Father's back appears to be a slight push that did
not warrant Father's reaction. Father's reaction was to
swing his left arm back where it appeared it could have
struck the child in the area of her neck. He immediately
pushed the child to the ground. The child got up from the
ground on her own and was not pulled up by her neck.
What is important to note is that this occurred
approximately an hour and a half after Mother arrived.
• The third video showed Father grabbing a cellphone and
slamming it to the ground.
• Video's two and three were not helpful to Father's case.
Even though the videos may not show everything that is
mentioned in the Magistrates decision, what they do show
illustrates the Magistrate was correct in his decision. It is
important to note that the time stamps on the videos cover
a span of almost 2 hours and 15 minutes, yet less than a
few minutes of video was provided as evidence.
{¶ 18} The court thereafter stated that it was in the "best interest" of the children
to overrule Father's objections to the magistrate's adjudication decision. The court
also overruled Father's objections to an October 12, 2022 disposition decision. Father
objected to that disposition decision but did not raise any specific issues regarding
disposition, and instead focused his argument solely on the adjudication. In that
disposition decision, the court continued the temporary orders in place and adopted
the agency's case plan.
{¶ 19} Father appealed, raising one assignment of error.
II. Law and Analysis
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A. Jurisdiction to Hear Appeal
{¶ 20} Before we address Father's argument on appeal, we will address a
jurisdictional issue raised by the agency in its brief. The agency contends that Father
did not timely file his notice of appeal.
{¶ 21} The agency points out that on February 6, 2023, the juvenile court
overruled Father's objections to the magistrate's October 4, 2022 adjudication
decision and the magistrate's October 12, 2022 disposition decision. The agency
argues that Father had 30 days from the court's February 6, 2023 decision to notice
his appeal of the adjudication decision. (Father did not appeal the disposition
decision.) That is, the agency argues that Father had until March 8, 2023, to appeal
the court's February 6, 2023 decision adopting the adjudication decision. The agency
states that Father did not file his notice of appeal until March 15, 2023, making that
appeal untimely.
{¶ 22} Our review of the record indicates the following. The magistrate issued
his adjudication decision finding the children dependent on October 4, 2022. On
October 11, 2022, Father objected to the adjudication decision. On October 12, 2022,
the magistrate held a dispositional hearing, and the magistrate issued his disposition
decision the same day. On October 20, 2022, Father objected to the magistrate's
October 12 disposition decision. On December 12, 2022, the court held a hearing on
Father's objections. The court issued an entry the same day as the hearing, indicating
that it was taking Father's objections under advisement and would issue a decision.
{¶ 23} On February 6, 2023, the court filed its decisions overruling Father's
objections to the October 4, 2022 adjudication decision and the October 12, 2022
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disposition decision. On February 10, 2023, the court, through its magistrate, held a
second dispositional hearing. The magistrate issued a new disposition decision the
same day that recommended adopting a case plan filed prior to the hearing and
continuing all previously issued orders in the case. On February 13, 2023, after an
independent review, the court adopted the magistrate's February 10, 2023 disposition
decision. Father did not object to the February 10, 2023 magistrate's disposition
decision.
{¶ 24} On February 21, 2023, Father filed a notice of appeal with the juvenile
court. The time stamp indicates the document was filed "In Juvenile Court Butler
County, Ohio." In that notice of appeal, Father indicated that he was appealing the
"judgment of the Butler County Court of Common Pleas, Juvenile Division, entered on
the 10th day of February, 2023." The only judgment entered on that day was the
magistrate's updated disposition decision. But in the civil docketing statement filed
with his notice of appeal, Father indicated that the general nature of the appeal
involved juvenile/permanent custody and specifically "Depe[n]dency of Child." Father
indicated that the probable issue for review was "Failure to present clear and
convincing evidence of actual adverse impact of parental acts; improper call of BIO
FATHER as if on cross-examination." Though these statements in the civil docketing
statement referred to the adjudication decision, Father attached a copy of the
magistrate's February 10, 2023 disposition decision to his notice of appeal.
{¶ 25} Duplicates of the February 21, 2023 notice of appeal and docketing
statement were filed in this court on March 15, 2023. The duplicate notice of appeal
bore the February 21, 2023 time stamp from the juvenile court clerk.
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{¶ 26} Contrary to the agency's argument, Father timely filed his notice of
appeal with the juvenile court clerk on February 21, 2023, pursuant to App.R. 3(A).
That appellate rule provides that "An appeal as of right shall be taken by filing a notice
of appeal with the clerk of the trial court within the time allowed by Rule 4." (Emphasis
added.) App.R. 3(A). The March 15, 2023 notice of appeal filed in the court of appeals
and referenced by the agency was a duplicate of the February 21, 2023 notice of
appeal filed with the juvenile court clerk. It appears the February 21, 2023 notice of
appeal filed in the juvenile court was simply refiled in the appeal, resulting in the later
March 15, 2023 time stamp. Accordingly, Father's notice of appeal of the adjudication
decision was filed with the juvenile court clerk as required by App.R. 3(A) and was
timely.
{¶ 27} The state also argues that Father attached the wrong order to his notice
of appeal. The record does reflect that Father attached the February 10, 2023
disposition decision to his notice of appeal, rather than the October 4, 2022
adjudication decision or the February 6, 2023 decision of the court overruling Father's
objections to that magistrate's adjudication decision, which are the subjects of Father's
appeal.
{¶ 28} App.R. 3(D) governs the content of the notice of appeal. The rule
provides in relevant part that "The notice of appeal shall specify the party or parties
taking the appeal; shall designate the judgment, order or part thereof [appealed] from;
and shall name the court to which the appeal is taken." The question thus becomes
whether Father's notice of appeal is defective because he indicated he was appealing
from a different order than he intended to appeal, and incorrectly attached that
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document to the notice of appeal.
{¶ 29} In Maritime Mfrs. Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257 (1982),
the Ohio Supreme Court held that "the law favors and protects the right of appeal and
[] a liberal construction of the rules [including App.R. 3(D)] is required in order to
promote" the right to appeal "and to assist the parties in obtaining justice." Id. at 258.
The court held that the appellate rules are to be construed in light of the purpose to
which they are to serve. Id. at 259. That purpose is to apprise the opposite party of
the taking of an appeal. Id. If this is accomplished, beyond the "'danger of reasonable
misunderstanding, the purpose of the notice of appeal is accomplished.'" Id. at 259,
quoting Couk v. Ocean Accident & Guar. Corp. Ltd., 138 Ohio St. 110, 116 (1941).
And the Ohio Supreme Court concluded that if the other party had notice of what was
actually being appealed and was not prejudiced thereby, the reviewing court maintains
jurisdiction to review the judgment intended to be appealed because the mistake of
attaching the wrong order or judgment was harmless error. Id. at 260.
{¶ 30} Here, the notice of appeal mistakenly referred to and attached the
February 10, 2023 disposition decision as the order being appealed from. But in the
civil docketing statement that Father filed with his notice of appeal, Father identified
the "general nature of case" as being "Depe[n]dency of Child." Father specified that
the "probable issue for review" by the appellate court was "Failure to present clear
and convincing evidence of actual adverse impact of parental acts; improper call of
BIO Father as if on cross-examination."2 Thus the civil docketing statement
2. In his appellate briefing, Father only contested the finding of dependency and did not raise the issue
of whether the state improperly cross-examined him on his testimony in the shelter care hearing.
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information reflected an intention by Father to challenge the trial court's adjudication
of dependency. The agency was aware of this and was not prejudiced as evidenced
by the secondary argument in its brief, namely, that the trial court's dependency finding
was supported by clear and convincing evidence and should be affirmed on the merits.
{¶ 31} Based on the Ohio Supreme Court's decision in Maritime Mfrs., in this
case, Father's failure to strictly comply with the requirements of App.R. 3(D) does not
require this court to dismiss Father's appeal. Maritime Mfrs., 70 Ohio St.2d at 258.
B. The Finding of Dependency
{¶ 32} Having addressed the jurisdictional issue raised by the state, we now
turn to Father's sole assignment of error, which states:
THE COURT ERRED WHEN IT FOUND CLEAR AND
CONVINCING EVIDENCE THAT THE CHILDREN WERE
DEPENDENT PURSUANT TO R.C. 2151.04(C) T.d. 17
and T.d. 41.
{¶ 33} Father contends that the juvenile court's dependency finding was not
supported by clear and convincing evidence and cites this court's opinion in A.V. in
support. Father argues that the agency failed to prove that his conduct had an adverse
impact on the children and that Mother's testimony lacked credibility.
1. Applicable Law, Burden of Proof, and Standard of Review
{¶ 34} "The determination that a child is dependent under R.C. 2151.04(C)
focuses on the child's condition or environment, and not on the parent's fault." A.V.,
2021-Ohio-3873 at ¶ 22, citing In re Riddle, 79 Ohio St.3d 259, 263 (1997); In re M.W.,
2021-Ohio-1129, ¶ 13 (12th Dist.). A finding of dependency under R.C. 2151.04(C)
requires evidence of "conditions or environmental elements adverse to the normal
development of the child." M.W. at ¶13.
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{¶ 35} "[A]ctual harm to a child is not necessary. Rather, circumstances giving
rise to a legitimate risk of harm may suffice to support an adjudication of dependency
under R.C. 2151.04(C)." In re N.J., 2017-Ohio-7466, ¶ 20 (12th Dist.). A court may
consider a parent's conduct under R.C. 2151.04(C) "solely insofar as that parent's
conduct forms a part of the environment of [the] child." In re Burrell, 58 Ohio St.2d 37,
39 (1979). "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." Id. "That impact cannot be simply inferred in general, but must be
specifically demonstrated in a clear and convincing manner." Id.
{¶ 36} "The state bears the burden of proof of establishing that a child is
abused, neglected, or dependent." In re L.H., 2019-Ohio-2383, ¶ 20 (12th Dist.). "A
juvenile court's determination that a child is dependent must be supported by clear
and convincing evidence." A.V. at ¶ 20, citing R.C. 2151.35(A); In re T.B., 2015-Ohio-
2580, ¶ 12 (12th Dist.). "Clear and convincing evidence is that measure or degree of
proof which will produce in the mind of the trier of facts a firm belief or conviction as
to the allegations sought to be established." Cross v. Ledford, 161 Ohio St. 469, 477
(1954). "Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof." Id.
2. Analysis
{¶ 37} After a thorough review of the record, we find that the juvenile court's
adjudication of the children as dependent under R.C. 2151.04(C) was supported by
sufficient clear and convincing evidence that the children's condition or environment
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was such as to warrant the state in assuming their temporary custody.
{¶ 38} There was sufficient evidence presented at the adjudication hearing to
establish that all three children were present in the home during a domestic violence
incident between Mother and Father. Mother's testimony was sufficient to establish
that during that incident, Father dragged Mother down a flight of stairs. Mother's
testimony was also sufficient to establish that Carrie attempted to prevent Father from
harming Mother by grabbing at Father's back, and that Father responded by striking
at Carrie with his arm and then lifting her into the air by the neck. Finally, Father's own
testimony was sufficient to establish that he broke Katherine's phone.3 All of this
testimony was sufficient to establish that Father acted in a violent manner towards
Mother and Carrie, at a minimum.
{¶ 39} It is reasonable to conclude that Father's admission that he was
"holding" Mother while "walking" her down the stairs was his way of putting a self-
serving positive spin on Mother's description of Father as dragging her down the
stairs.4 Likewise, Father's admission that he "might" have pushed Carrie and that
there was a "possibility" that he shoved Carrie to the ground was consistent with
3. During his testimony, Father repeatedly emphasized that while Katherine was the person who
normally used the phone, the phone was his personal property, not Katherine's. He suggested that he
was therefore free to destroy his own personal property. This may be true as a matter of property law,
but Father misses the point. The point is not who owned the phone or who had the right to dispose of
it, but Father's behavior in taking the phone from Katherine and violently destroying it in front of her, in
anger. As we understand it, the magistrate essentially found that Father's violent behavior in destroying
the phone underscored his other violent behavior towards Mother and Carrie on the evening of March
29, 2022. We agree. Our conclusion on this point should not be taken to suggest that a parent is in
any way lawfully prohibited from restricting a child's use of a cell phone or even destroying that phone;
rather, our conclusion focuses on Father's violent behavior.
4. The video shows that Father dragged Mother down the stairs with sufficient roughness that her
sweatshirt was removed from her body in the process. The video therefore undermines Father's effort
to characterize himself as merely "holding" Mother while he "walked," rather than "pulled," her down
the stairs. Sweatshirts do not magically remove themselves from a person's body because someone
else "held" them while "walking" them down the stairs.
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Mother's description of his violent behavior towards Carrie.
{¶ 40} We have reviewed the proffered digital videos and agree with the
juvenile court's assessment of them as not being helpful to Father's case. One video
depicts Father physically assaulting Mother and Carrie. Another video depicts Father
violently destroying Katherine's phone by slamming it to the ground while the family
was nearby. Father apparently submitted these videos because certain details shown
in the videos differ slightly from the magistrate's findings of fact. For example, one of
the videos shows Father shoving Carrie to the ground during the incident, rather than
picking her up by her neck. Another video shows Mother voluntarily leaving the home,
rather than showing her being physically removed from the home by Father. And the
third shows Father destroying Katherine's phone when Mother was present, rather
than destroying it after Mother left the home as the magistrate indicated. But while
Father is correct that there are certain differences between the events depicted in the
videos and the magistrate's findings of fact regarding those events, those differences
are insignificant in the overall context of what happened on the evening of March 29
and the videos do not in any way present Father in a more favorable light. To the
contrary, the videos depict extremely concerning behavior by Father and bolstered the
case for finding the children dependent. Furthermore, while the videos do not depict
Father lifting Carrie up by the neck, the absence of this particular action from the
videos does not mean it did not occur outside the periods of time covered by the
videos. Nor did the absence of this incident from the videos require the magistrate to
ignore Mother's testimony that Father lifted Carrie up by the neck. This is particularly
true when there was photographic evidence of scratches or red marks on Carrie's
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neck taken soon after the incident. Therefore, while the testimony presented at the
adjudication hearing was sufficient for the magistrate and court to conclude that Father
acted in a violent manner toward Mother and two of his children on the evening at
issue, the videos proffered by Father after the hearing were consistent with this
conclusion and do not require us to reverse the dependency adjudication.
{¶ 41} Father argues that the finding of dependency in this case conflicts with
the rationale set forth in A.V., 2021-Ohio-3873. In A.V., this court reversed a juvenile
court's dependency finding after concluding that the state failed to prove by clear and
convincing evidence that the parents' drug use had an adverse impact upon the
children. In so holding, this court stated:
We recognize that a parent's drug use may or can result in
environmental risks to his or her children. However, to warrant state
intervention under R.C. 2151.04(C), a negative consequence must be
shown "to have an adverse impact upon the child[.] That impact cannot
be simply inferred in general, but must be specifically demonstrated in
clear and convincing manner." In re Burrell, 58 Ohio St.2d at 39. Such
was not the case here as the record is devoid of any evidence
demonstrating that Mother's and Father's drug use had an adverse
impact on their children. Without some evidence that the children's
environment has been affected in some negative way by Mother's and
Father's drug use, there is no clear and convincing evidence of
dependency.
Id. at ¶ 28.
{¶ 42} Father argues that the mere fact that he acted as he did, as testified to
by Mother and as seen in the videos, was not, in and of itself, sufficient to demonstrate
clear and convincing evidence that his conduct had any adverse impact on the
children. Father contends that there was no evidence presented as to how Father's
conduct affected the children, such as testimony from the children themselves or
testimony from a caseworker or teacher.
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{¶ 43} We find A.V. distinguishable. In A.V., there was no evidence presented
of harm to the children's environment because of the parents' drug use. In fact, there
was no evidence that the parents ever used drugs in the children's presence, no
evidence the parents were ever under the influence of drugs in the children's
presence, and no evidence the children were even aware that their parents used
drugs. A.V. at ¶ 26. Here, however, there was direct evidence of Father physically
assaulting one child and violently destroying another child's phone in the children's
presence during or shortly after Father's acts of violence. In addition, Father physically
assaulted the children's Mother in the children's presence. The children would have
suffered harm simply from witnessing their Mother being harmed by Father and this is
evident based on the children's body language in the videos and Carrie's effort to
physically stop her Father. As such, the court was presented with evidence
demonstrating how Father's conduct negatively affected the children's safety while
under his care.
{¶ 44} Father also argues that there was no evidence suggesting that Walt was
harmed by his actions. However, as stated above, "[A]ctual harm to a child is not
necessary. Rather, circumstances giving rise to a legitimate risk of harm may suffice
to support an adjudication of dependency under R.C. 2151.04(C)." N.J., 2017-Ohio-
7466 at ¶ 20. The fact that Father assaulted one child was sufficient to demonstrate
that Walt was in an environment adverse to his development. M.W., 2021-Ohio-1129
at ¶13. The agency was not required to wait until something happened to Walt in order
to demonstrate that he was at risk. See In re Pieper Children, 85 Ohio App. 3d 318,
327 (12th Dist.1993) ("A finding of dependency pursuant to R.C. 2151.04[C] is justified
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as the potentially abusive environment to which these children would otherwise be
subject warrants the state, in the interests of these children, in assuming their
guardianship").
{¶ 45} For these reasons, we find no error in the court's determination that the
children were dependent. We overrule Father's sole assignment of error.
{¶ 46} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
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