Another Violation of Rights


COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: DAKOTA RAINE BONNER
JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. 2008-CA-00236
: 2008-CA-00241
:
: O P I N I O N
CHARACTER OF PROCEEDING: Civil appeals from the Stark County Court
of Common Pleas, Juvenile Division, Case
No. 2008JCV00723
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 30, 2009
APPEARANCES:
For-SCDJFS For-Appellant Mother
QUAY COMPTON AARON KOVALCHIK
SCDJFS 111 Second Street N.W.
221 Third Street S.E. Suite 302
Canton, OH 44702 Canton, OH 44702
For-Appellant Father
KELLY S. MURRAY
116 Cleveland Ave. NW
Suite 303
Canton OH 44702
Gwin, P.J.
{¶1} These are two appeals consolidated for purposes of this opinion, brought by
Kizzy Bonner, the natural mother of Dakota Raine Bonner, a minor child, and Fred
Strong, the putative father, from judgments finding Dakota to be a dependent child,
terminating the parents’ parental rights, and granting permanent custody of the child to
appellee Stark County Department of Job and Family Services.
{¶2} Appellant Strong assigns three errors to the trial court:
{¶3} “I. THE TRIAL COURT’S DECISION TO AWARD THE STATE
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶4} “II. THE TRIAL COURT ERRED IN FAILING TO HOLD SEPARATE
ADJUDICATORY AND DISPOSITIONAL HEARINGS PRIOR TO GRANTING
PERMANENT CUSTODY.
{¶5} “III. THE TRIAL COURT ERRED IN ADMITTING HEARSAY TESTIMONY
DURING THE PERMANENT CUSTODY HEARING.”
{¶6} Appellant Bonner also assigns three errors to the trial court:
{¶7} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD
WAS DEPENDENT WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF
THE EVIDENCE.
{¶8} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD
CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
OF THE EVIDENCE.
Stark County, Case No. 2008-CA-00236 & 2008-CA-00241 3
{¶9} “III. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
{¶10} Dakota was born on June 27, 2008. On June 30, 2008, JFS filed a
complaint requesting the court to find Dakota to be a dependent child, and asking for
permanent custody. On July 1, 2008, the court held an emergency shelter care hearing,
and placed the child into the emergency temporary custody of JFS. The court set the
adjudicatory hearing for July 30, 2008, but the matter was continued because appellant
Strong’s first appointed attorney withdrew and a new attorney was appointed to
represent him. The court reset the adjudicatory hearing to be heard prior to the
dispositional hearing on September 4.
{¶11} On September 4, 2008, the court called the matter for hearing. The State
indicated it prepared to proceed in both the adjudicatory and dispositional hearings.
Neither counsel for the parents objected, although counsel for appellant Strong
requested a continuance because of lack of contact with his client. The court overruled
the motion to continue, as well as both parents’ motions to dismiss the complaint.
{¶12} The State first called appellant Bonner as on cross examination. Bonner
admitted she was currently incarcerated for violating the terms of her probation. The
violations were living with a felon and moving without permission. She did not indicate
how long she was to be imprisoned. She testified Strong was the felon she lived with,
and he is a registered sex offender. Bonner testified Strong is Dakota’s father. Bonner
testified she had been given no opportunity to provide any care or support for her baby.

{¶13} Bonner testified her parental rights had been involuntarily terminated as to
five other children, although the case involving two of the children was on appeal at the
time of the hearing. (The case has since been affirmed by this court, see In the Matter
of: Calhoun/Bonner Minor Children, Stark App. No. 2008-CA-00118, 2009-Ohio-5458.)
{¶14} JFS then called appellant Strong as on cross examination. Strong
testified he had been out of prison for about a year, but was still getting himself together
and back into society. Strong testified he is Dakota’s father, but he had not established
paternity because there was a problem with the court order. Strong admitted he had
previously lost permanent custody of a child. Strong testified he was waiting for a
determination on his disability claim, and is unable to work. His family supported him
financially, and he was living in a large efficiency apartment.
{¶15} JFS then called Cynthia Moore, a supervisor from JFS. Over the objection
of counsel for Bonner, she testified she supervised the worker assigned to this case and
had information relating to Bonner at the time of the complaint. Moore testified Bonner
was incarcerated on a probation violation in January of 2008, and prior to that time,
lived with Strong. She did not know of anyone else contacting the agency claiming to
be Dakota’s father. Moore did not know the address where Strong and Bonner had
lived, and had never met Strong. Moore testified her contact with Bonner had been
prior to Dakota’s birth and during the previous case. Both parents moved to strike
Moore’s testimony, arguing it was hearsay, but the court overruled the motions.
{¶16} Neither Bonner nor Strong presented any evidence, but they and JFS
made closing arguments regarding whether the child was dependent. The court
indicated it would take the case under advisement, and ended the hearing.
Stark County, Case No. 2008-CA-00236 & 2008-CA-00241 5
{¶17} On September 9, 2008, the court entered a judgment finding by clear and
convincing evidence Dakota is a dependent child.
{¶18} On September 19, 2008, the court called the matter for further hearing.
Both Bonner’s and Strong’s Counsel informed the court that although their clients were
present in the building, they had advised them not to attend the hearing because JFS
could not prove its case without the parents’ testimony.
{¶19} The court then called the matter for dispositional hearing on the best
interest of the child. Both Strong and Bonner objected, asserting they believed the
hearing on September 4 was only the adjudicatory hearing, and the present hearing
was to be the entire dispositional hearing. JFS stated it believed the present hearing
was for the best interest portion, and agreed with the court the hearing on the first
portion of the dispositional hearing regarding the termination of appellants’ parental
rights had occurred on September 4.
{¶20} Thereafter, the court received evidence from the on-going worker
assigned to Dakota’s case, and the testimony of Cynthia Moore, her supervisor.
Bonner’s Assignment of Error I
{¶21} In her first assignment of error, Bonner argues the trial court’s finding that
Dakota is a dependent child was against the manifest weight and sufficiency of the
evidence.
{¶22} R.C. 2151.04 provides the definition of dependency:
{¶23} “(A) Who is homeless or destitute or without adequate parental care,
through no fault of the child’s parents, guardian, or custodian;
Stark County, Case No. 2008-CA-00236 & 2008-CA-00241 6
{¶24} (B) Who lacks adequate parental care by reason of the mental or physical
condition of the child’s parents, guardian, or custodian;
{¶25} (C) Whose condition or environment is such as to warrant the state, in the
interests of the child, in assuming the child’s guardianship;
{¶26} (D) To whom both of the following apply:
{¶27} (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.
{¶28} (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.”
{¶29} A finding of dependency must be supported by clear and convincing
evidence. R.C. 2151.35; Juv. R. 29. The Ohio Supreme Court has defined “clear and
convincing evidence” as “[t]he measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re: Estate of Haynes (1986), 25 Ohio St.3d
101, 103-104, 495 N.E.2d 23.
{¶30} Even under the clear and convincing standard, our review is deferential. If
some competent, credible evidence going to all the essential elements of the case

supports the trial court’s judgment, an appellate court must affirm the judgment and not
substitute its judgment for that of the trial court. State v. Schiebel (1990), 55 Ohio St.3d
71, 74, 564 N.E.2d 54, C.E. Morris Company v. Foley Construction Company (1978),
54 Ohio St. 2d 279, 8 O.O. 3d 261, 376 N.E. 2d 578. The credibility of witnesses and
weight of the evidence are issues primarily for the trial court, as the trier of fact.
Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.
{¶31} Bonner urges although she was incarcerated, Strong had independent
housing and family support to provide for Dakota. She also argues the evidence of the
prior permanent custody proceedings with the other children did not describe any
present circumstances that would place Dakota in danger of being abused or neglected.
{¶32} In the case of In Re: Pieper Children (1993), 85 Ohio App. 3d 318, 619
N.E. 1059, the Court of Appeals for the 12th District, Preble County, stated: “Ohio courts
have held that newborn infants can be dependent before they have ever been released
into their parent’s custody. *** The state need not subject a child to a potentially
detrimental environment where a court has made a prospective finding of dependency
pursuant to R.C. 2151.04. A juvenile court should not be forced to experiment with the
health and safety of a newborn baby where the state can show, by clear and convincing
evidence, that placing the child in such an environment would be threatening to the
health and safety of that child.” Pieper at 325, citations deleted.
{¶33} We have reviewed the record, and we find the trial court did not err in
determining Dakota meets the definition of a dependent child as set forth in the statute.
Accordingly, we find the trial court did not abuse its discretion, nor was its finding
against the manifest weight and sufficiency of the evidence
{¶34} Appellant Bonner’s first assignment of error is overruled.
Strong’s Assignment of Error II
{¶35} Appellant Strong argues the trial court erred in failing to hold separate
adjudicatory and dispositional hearings prior to granting permanent custody. We agree.
{¶36} In the seminal case of In Re: Baby Girl Baxter (1985), 17 OhIo St. 3d 229,
479 N.E. 2d 257, the Ohio Supreme Court held: “In proceedings where parental rights
are subject to termination, both the Juvenile Rules and the Revised Code prescribe that
such proceedings be bifurcated into separate adjudicatory and dispositional hearings
(R.C.2151.35 and Juv. R. 29 and 34, construed and applied.)” Syllabus by the court,
paragraph 1.
{¶37} In a separate concurrence in Baxter, supra, Chief Justice Celebrezze
stated: “*** the Juvenile Rules and Revised Code do not require actual separation into
two hearings as the majority implies. A single proceeding may be held as long as there
is a shift in emphasis*** from an adjudicative to a dispositional prospective.” Citing In
Re: Cunningham (1979), 59 Ohio St. 2d 100, 108, 391 N.E. 2d 1034.
{¶38} Juv. R. 34 states in pertinent part:
{¶39} “Where a child has been adjudicated as an abused, neglected or
dependent child, the court shall not issue a dispositional order until after it holds a
separate dispositional hearing. The dispositional hearing for an adjudicated, abused,
neglected, or dependent child shall be held at least one day but not more than 30 days
after the adjudicatory hearing is held. The dispositional hearing may be held
immediately after the adjudicatory hearing if all parties were served prior to the
adjudicatory hearing with all documents required for the dispositional hearing and all
parties consent to the dispositional hearing being held immediately after the
adjudicatory hearing.
{¶40} R.C. 2151.35 contains parallel language.
{¶41} It appears undisputed that the complaint gave notice to the parents JFS
had requested permanent custody. It is also undisputed the judgment entry continuing
and re-setting the date of the adjudicatory hearing notified all parties the court intended
to conduct both the adjudicatory and the dispositional hearings on the same day.
{¶42} Here, the trial court did not make a finding of dependency after the
adjudicatory hearing, and the transcript of proceedings shows it did not shift the focus of
the proceedings from the child’s status to an examination of the statutory factors to be
considered in determining whether to terminate the parties’ parental rights. Both
parents’ counsel indicated they did not understand the first hearing had included the
issue of whether the parents’ parental rights should be terminated. Both parties
objected to the court’s proceeding to the best interest hearing. Both counsel suggested
to their clients they should not attend the hearing on the termination of their rights in
order to avoid being cross-examined, given that the proceedings on September 4 was
almost exclusively cross examination. This is a tactic useful for the portion of the
dispositional hearing regarding terminating the parental rights, but not for a best interest
hearing, where JFS did not need the parents’ testimony.
{¶43} We find the trial court erred in failing to bifurcate the proceedings on
September 4, 2008. Appellant’s Strong’s second assignment of error is sustained.
{¶44} Appellant Strong’s first and third assignments of error challenge evidence
admitted during the permanent custody hearing, as do Appellant Bonner’s second and third assignments. Because we reverse and remand the matter for a new dispositional
hearing on both termination of the parental rights and the best interest of the child, the
evidence may well be presented differently. We find the balance of the assignments of
error are moot.
{¶45} Appellant Bonner does not raise the issue of the court’s failure to bifurcate
the proceedings.
{¶46} It is well recognized that the right to raise a child is an “essential” and
“basic” civil right. In re: Hayes (1997) 79 Ohio St.3d 46, 48, reconsideration denied 79
Ohio st.3d 1492, quoting In re: Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d
1169, 1171, quoting Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212,
31 L.Ed.2d 551, 558. Furthermore, a parent’s right to the custody of his or her child has
been deemed “paramount.” In re: Perales (1977), 52 Ohio St.2d 89, 97, 6 O.O.3d 293,
297, 369 N.E.2d 1047, 1051-1052. Permanent termination of parental rights has been
described as “the family law equivalent of the death penalty in a criminal case.” In re:
Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54.
{¶47} This failure to bifurcate the hearings affected the proceedings as they
pertain to Bonner as well as to appellant Strong. It would be unfair in the extreme to
reverse the court’s judgment as to Strong, but not as to Bonner after the procedural flaw
is brought to our attention.
{¶48} In the interests of justice, we reverse the judgment as to both appellants
and we remand the matter to the court for further proceedings in accord with law and
consistent with this opinion.
By Gwin, P.J., and
Wise, J., concur;
Hoffman, J., concurs
in part; dissents in part
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0319

Hoffman, J., concurring in part and dissenting in part
{¶49} I concur in the majority’s analysis and disposition of Appellant Bonner’s
first assignment of error.
{¶50} I dissent from the majority’s disposition of Appellant Bonner’s second
assignment of error.1 The majority states the trial court did not make a finding of
dependency after the adjudicatory hearing. Majority Opinion at ¶42. I disagree.
Following the September 4, 2008 adjudicatory hearing, the trial court issued a judgment
entry declaring the child to be dependent on September 9, 2008. Therein the trial court
set the dispositional hearing for September 16, 2008. I find the trial court did bifurcate
the proceedings in accordance with Juv. R. 34 and R.C. 2151.35.

About yvonnemason

Background:  The eldest of five children, Yvonne was born May 17, 1951 in Atlanta, Georgia. Raised in East Point, Georgia, she moved to Jackson County, Ga. until 2006 then moved to Port St. Lucie, Florida where she currently makes her home.  Licensed bounty hunter for the state of Georgia. Education:  After a 34 year absence, returned to college in 2004. Graduated with honors in Criminal Justice with an Associate’s degree from Lanier Technical College in 2006. Awards:  Nominated for the prestigious GOAL award in 2005 which encompasses all of the technical colleges. This award is based not only on excellence in academics but also leadership, positive attitude and the willingness to excel in one’s major. Affiliations:  Beta Sigma Phi Sorority  Member of The Florida Writer’s Association – Group Leader for St Lucie County The Dream:  Since learning to write at the age of five, Yvonne has wanted to be an author. She wrote her first novel Stan’s Story beginning in 1974 and completed it in 2006. Publication seemed impossible as rejections grew to 10 years. Determined, she continued adding to the story until her dream came true in 2006. The Inspiration:  Yvonne’s brother Stan has been her inspiration and hero in every facet of her life. He was stricken with Encephalitis at the tender age of nine months. He has defied every roadblock placed in his way and has been the driving force in every one of her accomplishments. He is the one who taught her never to give up The Author: Yvonne is currently the author of several novels, including:  Stan’s Story- the true story of her brother’s accomplishments, it has been compared to the style of Capote, and is currently being rewritten with new information for re-release.  Tangled Minds - a riveting story about a young girl’s bad decision and how it taints everyone’s life around her yet still manages to show that hope is always possible. This novel has been compared to the writing of Steinbeck and is currently being written as a screenplay. This novel will be re-released by Kerlak Publishing in 2009  Brilliant Insanity – released by Kerlak Publishing October 2008  Silent Scream – Released by Lulu.com October 2008- Slated to be made into a movie Yvonne’s Philosophy in Life - “Pay it Forward”: “In this life we all have been helped by others to attain our dreams and goals. We cannot pay it back but what we can do is ‘pay it forward’. It is a simple
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