Barzak, In re

• Decision Date: 24 June 1985
• Docket Number: No. 3456,3456
• Citation: 24 Ohio App.3d 180,493 N.E.2d 1011,24 OBR 270
• Parties: , 24 O.B.R. 270 In re BARZAK. DAVIS et al., Appellants, v. TRUMBULL COUNTY CHILDREN SERVICES BOARD, Appellee. *
• Court: Ohio Court of Appeals

Page 180

24 Ohio App.3d 180

493 N.E.2d 1011, 24 O.B.R. 270

In re BARZAK.

DAVIS et al., Appellants, v. TRUMBULL COUNTY CHILDREN SERVICES BOARD, Appellee. ^*

No. 3456.

Court of Appeals of Ohio, Eleventh District, Trumbull County.

June 24, 1985.

Syllabus by the Court

1. R.C. 2151.04(C) is not unconstitutionally vague.

2. Ohio statutory law requires that a guardian ad litem be appointed for the child in neglect and abuse proceedings. However, the appointment of a guardian ad litem is not required in dependency proceedings pursuant to R.C. 2151.281.

3. In a dependency proceeding, since a report containing social history information is hearsay, it may be used to clarify allegations in the complaint; however, it may not be used as proof or evidence of those allegations.

4. Where the parents of an alleged dependent child have filed a praecipe for a subpoena duces tecum of a children services board (the party filing the complaint) seeking to obtain or view the agency's records, it is error for the court to sustain a motion to quash the subpoena on the basis that the records are privileged and confidential; the court should allow counsel for the parents reasonable access to the files in order to use the parts which are relevant to the issues being presented to the court.

5. An agency of the state may not seize a person's child and then be the sole judge at how much of the evidence in respect to the agency's conduct it will refuse to divulge.

David Hazelkorn, Trumbull, for appellants.

Craig H. Neuman and William R. Biviano, Warren, for appellee.

DAHLING, Presiding Judge.

This is an appeal from a judgment of the Court of Common Pleas, Juvenile Division, Trumbull County, in which the court found the minor child, Veta Barzak, to be a dependent child. The appellants are the parents of the minor child.

The appellee, Trumbull County Children Services Board ("Children Services"), received a suspected child abuse complaint concerning Veta Barzak. Appellee sent caseworker staff to the Barzak residence to investigate the complaint by speaking with the parents and the minor child. Appellants denied the caseworkers the opportunity to see or interview the child and refused to discuss the matter with them. Appellee sought the assistance of law enforcement officers, but they were still unable to make the investigation.

Later that day, June 18, 1984, appellant Edward Davis, Jr. had a brief discussion with a caseworker at Children Services. During the course of the discussion, Davis exercised his Fifth Amendment right to remain silent and left appellee's office.

The appellee agency filed a complaint in the Juvenile Division of Trumbull County Court of Common Pleas which alleged that Veta Barzak was a dependent child pursuant to R.C. 2151.04(C). The complaint requested an emergency ex parte hearing and the issuance of temporary orders pursuant to Juv.R. 13. Juvenile Judge Thomas Norton issued an ex parte order which provided:

"(1) The custody of Veta Barzak is placed with the Trumbull County Children Services Board.

"(2) The Trumbull County Children Services Board and the Warren Police Department shall make an investigation of the report of child abuse of Veta Barzak.

"(3) The child may be left in the possession of her parents, or the child may be removed to the shelter placement of the Trumbull County Children Services Board as is necessary to protect the child's health and welfare.

"(4) The parents, Edward and Deborah Barzak [sic ], shall allow the Trumbull County Children Services Board to interview and examine Veta Barzak. If requested by the Trumbull County Children Services Board and the Warren Police Department, the parents shall immediately place the physical possession of Veta Barzak with the Trumbull County Children Services Board for purposes of shelter placement.

"(5) Edward and Deborah Davis are hereby restrained from interfering with the investigation of the Trumbull County Children Services Board in any manner whatsoever."

The complaint stated as follows:

"The undersigned, Craig H. Neuman, J.D., Executive Director, Trumbull County Children Services Board, says that the the Board has knowledge of said certain child _____, to wit:

"Veta Barzak born 3/30/75 who appears to be a dependent child _____, in that the Children Services Board has received a report of suspected child abuse pursuant to ORC 2151.421 which states that this child has been physically abused. The parents, Edward and Deborah Davis, have not permitted the Children Services Board to see or interview the child. The parents are preventing the Children Services Board from conducting the investigation of this report which is required by Ohio law. The child's circumstances cannot be determined, and this child is being denied the protection which the state affords to children in this circumstance, through careful investigation of the complaint and appropriate social welfare agency and juvenile court action.

"Therefore, the Children Services Board alleges that Veta Barzak is a dependent child pursuant to ORC 2151.04(C) in that her condition is such so as to warrant the state to assume her custody.

"The Children Services Board requests the court to issue sufficient temporary orders in this case pursuant to Juvenile Rule 13 to assure the safety and well-being of this child."

An amendment to the complaint stated:

"(1) Children Services restates the original complaint of June 21, 1984, as fully as if written herein;

"(2) The parents, Edward and Deborah Davis, reside at 2866 Red Fox Run, Warren, OH. 44485;

"(3) Children Services has investigated three previous reports of suspected child abuse or neglect concerning the subject child, Veta Barzak, and during those investigations this child was found to have exhibited contusions or lacerations, or both.

"For the reasons stated in the original complaint and this amended complaint, the Children Services Board alleges that Veta Barzak is a dependent child, and renews its prayer for temporary orders pursuant to Juvenile Rule 13 which are necessary to assure the safety and well-being of this child."

At the hearing, under Juv.R. 13(E), appellee called its intake supervisor, Phyllis Johnson, who testified to the appellee's efforts to complete this child abuse investigation. She also testified that the appellee agency had prior complaints and investigations of suspected child abuse concerning Veta Barzak. Supervisor Phyllis Johnson had little direct knowledge of the case and she testified to what she had heard from others and read in the file.

The hearing was recessed and an agreement was reached between counsel in conference with the trial judge. There was an agreement that the minor child would be medically examined with a report to the court, and that the trial judge would review the entire record of the appellee agency. Subsequently, appellants refused to have the medical examination for the child and the hearing resumed.

Appellants presented one witness, Murray Post, general manager of Jamestown Village where appellants had an apartment. He testified that he saw the child approximately ten times in the last year and saw no signs of neglect or abuse and no bumps, bruises or lacerations.

At the end of the hearings, Judge Norton ruled that Veta Barzak was dependent, remanded custody to her parents, and ordered x-rays and a physical examination.

Appellants now appeal that order.

Assignment of Error No. I

"I. The complaint * * * shall * * * state in ordinary and precise language the essential facts which bring the proceeding within the jurisdiction of the court."

This assignment of error is without merit. The complaint alleged that Veta Barzak was a dependent child pursuant to R.C. 2151.04(C). While it is true that a complaint which merely parrots the definitional statute concerning dependency is deficient per In re Hunt (1976), 46 Ohio St.2d 378, 348 N.E.2d 727 , there was an amended complaint which was filed. The complaint, as amended, stated the following facts:

(1) A report of suspected child abuse had been received by appellee agency.

(2) The parents had refused to let caseworkers see or interview the child.

(3) The parental behavior prevented the child abuse investigation required by R.C. 2151.421.

(4) There had been three prior child abuse investigations concerning Veta Barzak, and during those investigations, she was found to have contusions or lacerations, or both.

The required facts supporting the allegations of dependency were sufficiently detailed to provide adequate notice to the parents. The complaint complied with the general form requirements of Juv.R. 10 and was sufficient to bring the matter within the jurisdiction of the juvenile court.

Assignment of Error No. II

"II. R.C. 2151.04(C) is unconstitutionally vague."

This assignment of error is without merit. R.C. 2151.04(C) is not unconstitutionally vague.

The Sixth Appellate District of Ohio, in In re Forille (Feb. 12, 1982), Lucas App. No. L-81-164, unreported, held:

"We find neither R.C. 2151.03(B) nor R.C. 2151.04(C) to be unconstitutionally void for vagueness. * * * "

The First Appellate District of Ohio, in In re Brown (Nov. 1, 1978), Hamilton App. No. C-77730, unreported, held:

"In sum, the decisions of Ohio courts have limited any statutory overbreadth or vagueness so as to carefully protect the parental right to custody * * *. [T]hus limited by the statutory framework and by case law, R.C. 2151.04 is neither unconstitutionally broad nor vague."

The statute was also upheld in In re Williams (1982), 7 Ohio App.3d 324, 455 N.E.2d 1027.

Assignment of Error No. III

"III. It is reversible error for a Juvenile Court to fail to appoint a guardian ad litem for a child in a dependency case."

This assignment of error is without merit.

Ohio statutory law requires that a guardian ad litem be appointed in neglect and abuse proceedings. However, the appointment of a guardian ad litem is not required in dependency...