Smith, In re

• Decision Date: 30 August 1991
• Docket Number: No. 90-OT-038,90-OT-038
• Citation: 77 Ohio App.3d 1,601 N.E.2d 45
• Parties: In re SMITH et al.
• Court: Ohio Court of Appeals

Page 1

77 Ohio App.3d 1

601 N.E.2d 45

In re SMITH et al.

No. 90-OT-038.

Court of Appeals of Ohio, Sixth District, Ottawa County.

Decided Aug. 30, 1991.

Thomas G. Zraik, for appellants.

Ernest E. Cottrell, Jr., guardian ad litem.

Lowell S. Petersen, Pros. Atty., Barbara Peterson and Patricia J. Clark, for appellees.

SHERCK, Judge.

This is an appeal from an order of the Ottawa County Court of Common Pleas, Juvenile Division, granting permanent custody of four of appellants' children to the Lucas County Children Services Board. Because we find the trial court improperly accepted the parents' admission that their children were neglected and dependent and because appellants were prejudiced by the children's denial of proper counsel, we reverse.

Appellants, Ward and Vickie Smith, are the parents of six children: Richard, eighteen, now emancipated; Ward, Jr., fifteen; Forest, thirteen; Dawn, eleven; Maurice, nine; and Ronald, eight. In May 1983, the Smith family received a visit from Janice Briggs, a caseworker for the Ottawa County Department of Human Services ("OCDHS"). Briggs was responding to a complaint that appellants' eldest son, Richard, had come to school with a black eye. Richard told Briggs that he had sustained the black eye when struck with a board wielded by his sister, Dawn. Briggs also spoke to appellants during this visit. Appellants indicated that they were having difficulty controlling Richard's behavior.

Briggs visited the Smiths twice more in 1983. Richard's behavior continued to be a topic of discussion between Briggs and appellants during these visits. Appellants reported that Richard had been violent toward his siblings and threatening to his mother. Briggs discussed with appellants the possibility of placing Richard in a more structured environment. In December 1983, Richard was placed in St. Anthony's Villa, in Toledo, where he could receive psychological counseling.

During early September 1984, Briggs investigated an anonymous complaint about the treatment of the remaining Smith children. It was alleged that appellant Vickie Smith had been seen chasing the children with a baseball bat, and that both appellants had picked up one of the children and swung him back and forth while threatening to throw him on the stones of the driveway. It was also reported that there was incessant use of profanity among family members and that the children had been given demeaning nicknames such as "Rat," "Worm," "Jughead" and "Hotdog."

Appellant Vickie Smith denied chasing any child with a baseball bat. Appellants admitted swinging their children, but characterized this activity as play. Appellants also conceded profanity was used in the household and that the children were indeed nicknamed "Rat," "Worm," "Jughead" and "Hotdog." No further action was taken on this complaint.

At some point in the fall of 1984, appellant Ward Smith was injured and unable to work. By late September 1984, when Richard was returned to the home from St. Anthony Villa, the family, although receiving aid for dependent children, was behind in rent and utility payments. It was also at this point that appellant Vickie Smith stopped attending counseling sessions.

Richard's reintegration into the Smith home did not go smoothly. During the winter of 1984-1985, Briggs heard complaints that Richard was stealing and that he was becoming abusive to his younger brothers and sisters. Appellants and Briggs discussed again placing Richard outside the home. Appellant Vickie Smith opposed this until May 1985 when Richard overdosed on his father's prescription Valium and was hospitalized.

In August 1985, Richard was placed in a residential psychiatric treatment center in Dayton. In June 1986, Richard completed his treatment in Dayton and was transferred to a group home in Norwalk.

About the time of Richard's transfer to Norwalk, appellants began experiencing behavior difficulties with another son, Forest, then ten, whose behavior seemed to follow the path created by Richard. During the next few months Forest's activities included vandalism, shoplifting, yelling obscenities, threatening school officials, and attempting to poison his youngest brother, Ronald, using their father's Valium pills. Appellants discussed this behavior with social worker Briggs who agreed to attempt to find Forest an emergency placement out of the home. In January 1987, Forest was placed in a residential care facility in Toledo.

At the same time that Forest's difficulties were developing, Richard alleged to counselors at his group home that he had been sexually abused by his maternal grandfather and stated that he, in turn, had sexually abused his younger siblings. Following this revelation it was determined that Richard's stay at his group home be extended so that he might receive sexual abuse therapy. This counseling was begun, but in May 1987, Richard ran away from the group home. Richard was returned and eventually placed in the Erie County Juvenile Detention Center as a runaway.

Following Richard's allegations and similar allegations from Forest, appellants began counseling through St. Anthony Villa, which was Forest's residential treatment center. During this time, however, appellants' relations with OCDHS began to cool.

Meanwhile, Richard's behavior deteriorated. He made several suicide attempts and was required to be restrained. In September 1987, Richard was placed at the Bury Road group home in Oregon, Ohio, for treatment. Initially, Richard's behavior improved at the Bury Road group home. In November 1987, however, following a home visit, Richard returned to the Bury Road group home with some pills, which he gave to another resident, a younger boy, telling him the pills were candy. As a result of this incident Richard was taken to the Lucas County Child Study Institute and eventually found delinquent. In early December 1987, Richard was sentenced to the custody of the Ohio Department of Youth Services.

Also in December 1987, appellants' youngest boy, Ronald, then four, was hospitalized for a drug overdose after he took some pills he had apparently removed from his father's trousers.

December 1987 and January 1988 were financially stressful times for the Smith family. In December 1987, appellant Ward Smith stated to social worker Briggs that the family was without income and was being forced to move from their home by the end of January.

On February 3, 1988, appellant Ward Smith called social worker Briggs and informed her of the family's new address in Lucas County. The same day the OCDHS filed a complaint in the Ottawa County Juvenile Court alleging that all six children were neglected and dependent in that:

"they lack proper parental care because of the faults and habits of their parents and whose environment is such as to warrant the State, in the interest of the children, in assuming their guardianship; in that their parents have failed to provide adequate supervision, causing the children to behave like wild, undisciplined animals in public places, to suffer variously from recurrent head lice, filthy skin, overdoses from ingestion of their father's medication, inadequate winter clothes, school truancy, sexual abuse, and numerous injuries, both accidental and inflicted. Parents have in past threatened to discipline children with a chainsaw, and on December 13, 1987, placed Ward Smith, Jr. in a commercial dryer for 'fun'. Agency attempts to improve family life since 1980 have made no difference."

The OCDHS requested that the court grant it permanent custody of all six Smith children. At the same time the OCDHS moved the court for temporary custody and an emergency shelter order for the Smith children. This motion was granted, and the children were removed from appellant's home.

The adjudicatory hearing on the OCDHS complaint was scheduled for August 15, 16, 17, 22, 23, 24, 29, 30 and 31, 1988. Appellee, OCDHS, called as its first witness social worker Janice Briggs. Briggs testified to the events that had occurred within the Smith family for the previous five years. She also detailed her agency's involvement in these events.

Briggs testified that in addition to the agency's involvement with the problems of Richard and Forest that she had also investigated numerous other complaints relative to the other Smith children. These complaints ranged from appellant Ward Smith's slapping one of the children in public, to head lice, to unexplained cuts and bruises, to inadequate clothing, to appellant Ward Smith allowing one of his children to enter a laundromat dryer while playing. Briggs testified that she had contemporaneously investigated each complaint, but she had failed to find any single instance of any act by the parents which she believed constituted abuse or neglect. Briggs testified that, although she disagreed with slapping children in public for disciplinary purposes and felt that nicknaming children "rat" and "worm" was demeaning, she did not believe that this constituted neglect. She also stated that she did not consider a commercial dryer an appropriate place for a child to hide while playing hide and seek. Briggs's testimony failed to mention the use of a chainsaw in child rearing or any alleged sexual abuse by the parents.

Briggs did testify that appellants had failed to attend all the counseling sessions and parenting classes that had been imposed upon them by virtue of Richard and Forest's placement in treatment facilities. On cross-examination Briggs admitted that at the time of the hearing appellants had attended all but one of the prescribed parenting classes and that, although appellants frequently missed therapy and counseling sessions due to transportation and baby-sitting problems, appellants had attended numerous therapy and counseling sessions during the preceding five years. Briggs also admitted that in her frequent visits to the Smith homes she generally found them clean.

Social worker Briggs remained on...