Knotts, In re

• Decision Date: 12 February 1996
• Docket Number: Nos. 10-95-9,s. 10-95-9
• Citation: 671 N.E.2d 1357,109 Ohio App.3d 267
• Parties: In re KNOTTS. (Three Cases.) to 10-95-11.
• Court: Ohio Court of Appeals

Page 267

109 Ohio App.3d 267

671 N.E.2d 1357

In re KNOTTS. (Three Cases.)

Nos. 10-95-9 to 10-95-11.

Court of Appeals of Ohio,

Third District, Mercer County.

Decided Feb. 12, 1996.

Peter R. Van Arsdel, Celina, for appellant Patsy Knotts.

Paul E. Howell, Mercer County Prosecuting Attorney, and Andrew J. Hinders, Assistant Prosecuting Attorney, Celina, for appellee Mercer County Department of Human Services.

John Sacher, Celina, guardian ad litem.

EVANS, Judge.

This appeal is brought by Patsy Knotts, appellant, from the judgments of the Court of Common Pleas of Mercer County, Juvenile Division, terminating her parental rights.

On April 12, 1995, the Mercer County Department of Human Services ("Human Services"), appellee, filed amended complaints alleging abuse and dependency concerning appellant's three children, Bridgett, Megan and Charlotte. The complaints asked the court to find Bridgett and Megan abused children in violation of R.C. 2151.031(A) and Charlotte a dependent child pursuant to R.C. 2151.04(C). In their prayer for disposition, the complainants requested that Human Services be granted permanent custody of the girls. A hearing on the matter was held on June 29, 1995. In judgment entries dated July 13, 1995, the trial court found the children abused or dependent as alleged and granted permanent custody to appellee. Appellant now appeals these decisions, asserting five assignments of error. These cases have been consolidated on appeal.

ASSIGNMENT OF ERROR NO. 1

"The trial court erred in ruling on a 'Motion for Permanent Custody' when no such motion had been made in the case."

ASSIGNMENT OF ERROR NO. 2

"The trial court erred in proceeding on an erroneous stipulation that the parties agreed to proceed with hearing of the Complaint and Motion for Permanent Custody."

ASSIGNMENT OF ERROR NO. 3

"The trial court erred in not bifurcating the hearing on alleged abuse and dependency from the dispositional hearing."

ASSIGNMENT OF ERROR NO. 4

"The trial court erred in not setting forth appropriate findings of fact and conclusions of law in finding abuse or dependency."

ASSIGNMENT OF ERROR NO. 5

"The trial court erred in finding the children the subject of this appeal to be abused and/or dependent as such a finding is not supported by clear and convincing evidence."

We will address appellant's first and fifth assignments of error together. In these assignments of error appellant argues that a motion for permanent custody was never filed and, therefore, an order for permanent custody is improper. Appellant contends that the motion in this case alleged that the children were abused, neglected or dependent, and that the finding by the court on this issue was not supported by clear and convincing evidence.

Based on the record, we must agree with the appellant on these issues. Appellee filed three amended complaints labeled "Complaint, Abuse, Neglect or Dependency," wherein it was alleged that two of appellant's children had been sexually abused and a third child was dependent by virtue of living in a household where a parent had abused a sibling, thus placing the child in danger of similar abuse. In each prayer for disposition, appellee asked the court to "find the child to be as alleged, and make disposition pursuant to O.R.C. 2151.353(4), specifically, that the Court grant Permanent Custody of the child to the Mercer County Department of Human Services." While the hearing that followed was repeatedly described by the judge as a hearing on a motion for permanent custody and was referred to as such in his journal entry, both the form and the substance of the complaints clearly sought an adjudication that the children were abused, neglected or dependent. A finding or adjudication of abuse, neglect, or dependency is a prerequisite to an order of permanent custody under R.C. 2151.353(A)(4), which states:

"If a child is adjudicated an abused, neglected, or dependent child, the court may make any of the following orders of disposition:

" * * *

"(4) Commit the child to the permanent custody of a public children services agency or private child placing agency, if the court determines in accordance with division (E) of section 2151.414 of the Revised Code that the child cannot be placed with one of his parents within a reasonable time or should not be place with either parent and determines in accordance with division (D) of section 2151.414 of the Revised Code that the permanent commitment is in the best interest of the child. * * * "

After reviewing the record, it is clear that the appellee presented no evidence to demonstrate that the children were abused, neglected, or dependent. Instead, it appears that appellee relied on a judgment entry dated July 25, 1994, adjudicating the children abused or dependent, to demonstrate clear and convincing evidence of abuse and dependency in the instant case. Appellee requested that the court take judicial notice of the previous adjudication and journal entry to establish abuse and dependency in this case but failed to incorporate the entry into this record. The fault in appellee's action is twofold. First, while the trial judge in this case attempted to take judicial notice of the previous order, stating, "Certainly these are records and journals of this court, and of course the court will take judicial notice of its own records," this was not within its authority. "Courts do not take judicial knowledge of their own proceedings, but only of their own proceedings in the immediate case under consideration." Burke v. McKee (1928), 30 Ohio App. 236, 238, 164 N.E. 776, 776; Diversified Mtg. Investors v....