Opinion
113323
05-23-2024
IN RE B.F., ET AL. Minor Children Appeal by Mother, R.B.
Bartos & Bartos, L.P A., and David Bartos, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Zachary J. Lafleur, Assistant Prosecuting Attorney, for appellee.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-23907828 and AD-23907829
Bartos & Bartos, L.P A., and David Bartos, for appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Zachary J. Lafleur, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION
ANITA LASTER MAYS, JUDGE
{¶ 1} Appellant RB. ("Mother") appeals the juvenile court's termination of Mother's parental rights to minor children B.F. (d.o.b. 12-18-15) and L.F. (d.o.b. 8-15-22) and the award of permanent custody to the Cuyahoga County Division of Children and Family Services ("CCDCFS" or the "Agency"). After a thorough review of the record and the applicable law, we find merit to Mother's claimed error that the juvenile court improperly admitted privileged evidence in violation of R.C. 2317.02(B). For that reason, we vacate the juvenile court's judgment.
I. Procedural History and Background
{¶ 2} The complaints in this case for neglect, dependency, and permanent custody to the Agency were filed July 11, 2023. The complaints recited that B.F. was previously adjudicated neglected and removed from the home on September 21, 2020, and reunified with Mother on September 12, 2022, under an order of protective supervision. (Case No. AD-20-907796.)
{¶ 3} Previous complaints for neglect, dependency, and permanent custody to the Agency for B.F. and temporary custody to the Agency for L.F. were filed on October 19, 2022, and January 13, 2023, respectively. Emergency temporary custody to the Agency was granted on December 6, 2022, and the children have remained in the custody of the Agency since that time. A complaint for neglect, dependency, and permanent custody was filed on April 12, 2023. The prior cases could not be resolved within the statutory time periods and were dismissed. (Case Nos. AD-22-910671-72, AD-23-900472-73, and AD-23-904493-94).
"The refiling of complaints in permanent custody proceedings to comply with the 90-day requirement of R.C. 2151.35(B)(1) is common practice." In re Ja.S., 2023-Ohio-722, 210 N.E.3d 53, ¶ 24 (10th Dist.), citing In re Lu.M-R, 10th Dist. Franklin No. 21AP-681, 2022-Ohio-4779, ¶ 19, [citing Howard v. Catholic Soc. Servs. Of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 144, 637 N.E.2d 890 (1994)] ("[W]hen a complaint is dismissed, without prejudice, and refiled to comply with the 90-day requirement of R.C. 2151.35(B)(1), the juvenile court retains jurisdiction to take up the refiled complaint, and, in the case of 'multiple dismiss-refile situations,' the time limits on temporary custody run continuously from the date the child is first taken into emergency custody.").
{¶ 4} On July 11, 2023, the Agency filed complaints for emergency pre-dispositional temporary custody of the children in the instant case. Also on that date, complaints were filed to award permanent custody of the neglected and dependent children to the Agency. On July 12, 2023, after a hearing, emergency temporary custody was granted finding that despite the Agency's reasonable efforts, the services provided for "substance abuse, mental health, domestic violence and housing" did not prevent removal. The arraignment was scheduled for August 17, 2023. Adjudication and disposition were set for October 5, 2023.
{¶ 5} On July 26, 2023, the Agency filed a motion for an order to release substance abuse and mental health treatment records for Mother from ten residential treatment centers. On July 27, 2023, Mother opposed the motion. On August 2, 2023, the juvenile court granted the motion, the subpoenas were issued for records for September 2020 forward to be provided to the parties for use in court proceedings.
{¶ 6} On October 5, 2023, the evidentiary hearing for adjudication was held. The Agency's witness testified regarding the subpoenaed records. The records were admitted over Mother's objection. In the final combined journal entry for adjudication and disposition, the juvenile court noted that the exhibits were admitted into evidence for purposes of adjudication and disposition. "All records were properly certified. Counsel for the mother enters into the record an ongoing objection to CCDCFS obtaining the mother's mental health records and submitting them into evidence. The Court notes that mother's mental health is a major factor in this matter. The objections are overruled." Journal Entry No. 0917304041, p. 1. (Oct. 23, 2023).
{¶ 7} The evidentiary hearing for disposition immediately followed the adjudication hearing without objection by the parties. On October 23, 2023, the children were adjudicated neglected and dependent and permanent custody was awarded to CCDCFS.
II. Assignments of Error
{¶ 8} Mother assigns two errors:
I. The juvenile court committed reversible error in considering and admitting the defendant's mental health and medical records in derogation of R.C. 2317.02(B), and in derogation of Juv. R. 32(A).
II. The juvenile court committed reversible error in granting permanent custody to the CCDCFS of the appellant's minor children which to the CCDCFS which not supported by the manifest weight of the evidence or the sufficiency of the evidence.
III. Mental Health and Medical Records
{¶ 9} Mother contends in the first assignment of error that the juvenile court's consideration and admission of Mother's mental health and medical records was in violation of R.C. 2317.02(B) and Juv.R 32(A). We agree.
A. Standard of Review
{¶ 10} Generally,
"A trial court has broad discretion regarding the admission of evidence, including whether evidence constitutes hearsay and whether it is admissible hearsay." State v. Wingfield, 8th Dist. Cuyahoga No. 107196, 2019-Ohio-1644, ¶ 29, citing Solon v. Woods, 8th Dist. Cuyahoga No. 100916, 2014-Ohio-5425, ¶ 10. "We therefore will not disturb a trial court's decision regarding the admissibility of hearsay evidence absent an abuse of discretion and the defendant suffers material prejudice." Id., citing Woods, citing State v. Maurer, 15 Ohio St.3d 239, 265, 15 Ohio B. 379, 473 N.E.2d 768 (1984).State v. Gray, 2023-Ohio-215, 206 N.E.3d 842, ¶ 18 (8th Dist.).
{¶ 11} An abuse of discretion occurs where '"the trial court's attitude, in reaching its decision, was arbitrary, unreasonable, or unconscionable.'" Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 34, quoting Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557, ¶ 19 (plurality opinion).
B. Analysis
1. Motion to Release Records
{¶ 12} In July 2023, the Agency moved for an order to release Mother's mental health and substance abuse treatment records. The proposed subpoenas covered services provided from September 2020 forward - prior to the inception of the instant case. Mother refused to sign a release. The Agency cited Mother's involvement with an extensive list of substance abuse and mental health service providers during Mother's history with CCDCFS. It argued that the information was required for the juvenile court's consideration of the best interest of the children and whether the children can be placed with Mother within a reasonable period for purposes of the pending dispositional request for permanent custody. R.C. 2151.353(A)(4) and 2151.404(D) and (E).
{¶ 13} The Agency contended that the Health Insurance Portability and Accountability Act ("HIPAA") authorizes disclosure of personal healthcare information without patient authorization in response to a court order of the information to the extent it is expressly authorized by the court. Cited in support was 45 C.F.R. 164.512(e)(5)(a).
{¶ 14} The Agency also asserted that Ohio case law supports the release of confidential medical information where the need for disclosure is outweighed by a countervailing interest, based on the following:
In the absence of prior authorization, a physician or hospital is privileged to disclose otherwise confidential medical information in those special situations where disclosure is made in accordance with a statutory mandate or common-law duty, or where disclosure is necessary to protect or further a countervailing interest that outweighs the patient's interest in confidentiality.Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 715 N.E.2d 518 (1999), paragraph two of the syllabus.
{¶ 15} Mother denied that the cited portion of HIPAA supported the Agency's argument and countered that while 45 C.F.R. 164.512(B)(1)(ii) might be applicable, that section only permits disclosure to a public health authority. This court observes that the language in 45 C.F.R. 164.512(e)(1)(i) tracks the Agency's description of the exception:
(e) Standard: Disclosures for judicial and administrative proceedings.
(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such orderId.
{¶ 16} Mother also argued that Biddle does not support the Agency's argument because "at issue in Biddle is when a hospital may disclose confidential information, not when a court can order a hospital to disclose confidential information" and "the balance of confidentiality interests against countervailing interests is a matter of public policy, which are most appropriately dealt with by the legislature."
{¶ 17} Additionally, Mother advanced that none of the privileged communication exceptions under R.C. 2317.02 applied. Mother suggested that rather than abridge Mother's privacy right, the Agency could have subpoenaed the records and litigated the matter if the providers resisted disclosure.
{¶ 18} The juvenile court granted the motion on August 2, 2023. In the final journal entry, the juvenile court noted that the exhibits were admitted into evidence for purposes of adjudication and disposition. "All records were properly certified. Counsel for the mother enters into the record an ongoing objection to CCDCFS obtaining the mother's mental health records and submitting them into evidence. The Court notes that mother's mental health is a major factor in this matter. The objections are overruled." Journal Entry No. 0917304041, p.1. (Oct. 23, 2023).
{¶ 19} Prior to the beginning of the adjudication portion of the hearing, defense counsel advised the juvenile court "we're continuing our objection to the use of the records" "for the reasons that are detailed in the brief in opposition that was filed. * * * That being said, all of these records are properly certified, so I have no objection to their authenticity or that they are what they purport to be." "I am objecting to their admission because I do not believe that the Agency should have been able to obtain them." Tr. 7-8.
{¶ 20} Regarding the Agency's HIPAA argument, this court observes that, in a plurality opinion, the Ohio Supreme Court held that where "state law is more stringent than the HIPAA regulation, the state law applies." Menorah Park Ctr. for Senior Living v. Rolston, 164 Ohio St.3d 400, 2020-Ohio-6658, 173 N.E.3d 432, citing Grove v. Northeast Ohio Nephrology Assoc, Inc., 164 Ohio App.3d 829, 2005-Ohio-6914, 844 N.E.2d 400, ¶ 22-23 (9th Dist.) (protection for patient's health information from discovery in a civil action is more stringent under Ohio law, R.C. 2317.02(B)(1), than under HIPAA). Thus, R.C. 2317.02(B)(1)(b) preempts HIPAA.
{¶ 21} Menorah held that "HIPAA does not preclude a claim under our decision in Biddle when the limited disclosure of medical information was part of a court filing for the purpose of obtaining a past-due payment on an account for medical services. (Emphasis added.) Id. at ¶ 2, citing Biddle, 86 Ohio St.3d 395, 715 N.E.2d 518 (1999).
{¶ 22} The court discussed its holding in Biddle, cited in the Agency's motion to support the premise that HIPAA allows the disclosure of privileged information when outweighed by a countervailing interest. The court explained that Biddle authorized an independent tort action for unprivileged disclosure of physician-patient information but that, in some instances, the information could be disclosed. R.C. 2317.02(B)(1)(b) is one of those instances.
{¶ 23} Mother maintains that R.C. 2317.02(B)(1)(b) barred the juvenile court from obtaining the records:
The following persons shall not testify in certain respects:
(B)(1) A physician, advanced practice registered nurse * * * concerning a communication made to the physician, advanced practice registered nurse * * * by a patient in that relation or the advice of a physician, advanced practice registered nurse * * * given to a patient, except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, and except that, if the patient is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the physician or advanced practice registered nurse may be compelled to testify on the same subject.
The testimonial privilege established under this division does not apply, and a physician, advanced practice registered nurse, or dentist may testify or may be compelled to testify, in any of the following circumstances:
(a) In any civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, or in connection with a claim under Chapter 4123. of the Revised Code, under any of the following circumstances:
(i) If the patient or the guardian or other legal representative of the patient gives express consent; * * *
(b) In any civil action concerning court-ordered treatment or services received by a patient, if the court-ordered treatment or services were ordered as part of a case plan journalized under section 2151.412 of the Revised Code or the court-ordered treatment or services are necessary or relevant to dependency, neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151 of the Revised Code.(Emphasis added.) Id. [ ]
"If the testimonial privilege described in division (B)(1) of this section does not apply to a physician, advanced practice registered nurse, or dentist as provided in division (B)(1)(c) of this section, the physician, advanced practice registered nurse, or dentist, in lieu of personally testifying as to the results of the test in question, may submit a certified copy of those results, and, upon its submission, the certified copy is qualified as authentic evidence and may be admitted as evidence in accordance with the Rules of Evidence." (Emphasis added.) R.C. 2317.02(B)(3)(b).
{¶ 24} Mother contends she did not expressly consent to release of the records per R.C. 2317.02(B)(1)(a)(i) or sign off on her case plan under the exception set forth in R.C. 2317.02(B)(1)(b).
{¶ 25} R.C. 2317.02(B)(1)(b) waives the privilege for "court-ordered treatment or services" that are "ordered as part of a case plan journalized under section 2151.412" or are "necessary or relevant to dependency, neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151 of the Revised Code." RC. 2317.02(B)(1)(b).
{¶ 26} As advanced by the Agency, this court has recognized that under R.C. 2317.02(B)(1)(b) and 2317.02(G)(1)(g), "[communications between a Mother and her physicians or the social workers are exempt from protection normally afforded to doctor-patient communications." (Fn. omitted.) In re D.E.P., 8th Dist. Cuyahoga No. 92226, 2009-Ohio-3076, ¶ 17, citing R.C. 2317.02(B)(1)(b) and 2317.02(G)(1)(g). The case involved the mother's treatment as part of a case plan per R.C. 2317.02(B)(1)(b). "[A] parent who is required to undergo court-ordered treatment as part of a case plan prepared by CCDCFS effectively waives his or her rights to confidentiality of communications with a treating physician or social worker." Id. at ¶ 17, citing R.C. 2317.02.
R.C. 2317.02(G)(1)(g) echoes the language of R.C. 2317.02(B)(1)(b) for professionals such as school guidance counselors, licensed professional clinical counselors, licensed professional counselors, social workers, independent social workers, and marriage and family therapists.
Not only did the report conform to the statute, "at no time during the hearing did any witness read portions of the medical records into evidence or refer to their contents; Mother's records remain under seal." Id. at fn. 8.
{¶ 27} In D.E.P., as the juvenile court stated in the instant case, "Mother's ability to provide and care for" the child "was the pivotal issue before the court in determining whether to find the child dependent and to grant permanent custody to CCDCFS. As such, Mother's medical records were critical to the court's determination." Id. at ¶ 18. However, the acquisition of those communications must meet the statutory requirements. That is not true in the instant case.
{¶ 28} R.C. 2151.412 governs case plans. It mandates, in part, that the Agency prepare a case plan and attempt to obtain the agreement of all parties "including, but not limited to, the parents, guardian, or custodian of the child and the guardian ad litem of the child regarding the content of the case plan." R.C. 2151.412(B). "If all parties agree to the content of the case plan and the court approves it, the court shall journalize it as part of its dispositional order." Id. "If the agency cannot obtain an agreement upon the contents of the case plan or the court does not approve it, the parties shall present evidence on the contents of the case plan at the dispositional hearing." Id. "The court, based upon the evidence presented at the dispositional hearing and the best interest of the child, shall determine the contents of the case plan and journalize it as part of the dispositional order for the child." Id.
See also Juv.R. 34(F) ("If all parties agree to the content of the case plan and the court approves it, the court shall journalize the plan as part of its dispositional order. If no agreement is reached, the court, based upon the evidence presented at the dispositional hearing and the best interest of the child, shall determine the contents of the case plan and journalize it as part of the dispositional order for the child.").
{¶ 29} "It is only after the trial court approves the case plan or determines the contents of the case plan following the taking of evidence, that the trial court journalizes the case plan as part of the dispositional order for the child and it becomes binding on the parties. R.C. 2151.412(E) and (F)(1)." In re S.D-M, 9th Dist. Summit Nos. 27148 and 27149, 2014-Ohio-1501, ¶ 26.
{¶ 30} The evidence does not support that the records were for court-ordered treatments and services under R.C. 2317.02(B)(1)(b). The current case was filed on July 11, 2023. Mother states she did not sign the case plan, indicating that she did not agree with the plan, nor did she give express consent to the release of the records per R.C. 2317.02(B)(1)(a)(i).
{¶ 31} The unsigned case plan was emailed to Mother on August 1, 2023. The order to grant the subpoenas was issued on August 2, 2023. The case plan was approved on October 23, 2023, via the final journal entry for adjudication and disposition. Thus, the treatment and services were not rendered as part of a journalized case plan under R.C. 2317.02(B)(1)(b).
{¶ 32} Consequently, the evidence reflects that Mother did not expressly consent to the release of the records, and the treatment and services were not part of a court-ordered case plan, or other court order for treatment or services under R.C. 2317.02(B)(1)(b). The children were adjudicated to be neglected and dependent children and permanent custody awarded based on evidence that was not properly before the court. In re L.F., 9th Dist. Summit Nos. 27218 and 27228, 2014-Ohio-3800, ¶ 38, citing R.C. 2317.02(B)(1)(b).
Juv.R. 32, also cited by Mother, authorizes a court to "order and utilize a * * * physical or mental examination at any time after the filing of a complaint" "[w]here a material allegation of a neglect, dependency, or abused child complaint relates to matters that a history or examination may clarify." Juv.R. 32(A)(3). "Until there has been an admission or adjudication that the child who is the subject of the proceedings is * * * neglected, dependent, or abused, no * * * physical examination or mental examination shall be ordered except as authorized under subdivision (A)." Thus, the medical records in this case are also inadmissible under Juv.R. 32. See In re L.F., 9th Dist. Summit Nos. 27218 and 27228, 2014-Ohio-3800.
C. Analysis absent the medical records
{¶ 33} An appellate court presumes that, in a bench trial, '"the court considered only relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.'" In re K.L., 11th Dist. Portage No. 2021-P-0022, 2021-Ohio-3080, ¶ 57, quoting State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968). Also, it is true that "even if inadmissible evidence was admitted by the trial court, it must be shown that the court actually relied on that evidence in its judgment. (Citations omitted.)" In re M.H., 8th Dist. Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 73.
{¶ 34} The complaint for neglect, dependency, and permanent custody was based on the following grounds as to Mother: Mother's lack of stable housing and discharge from multiple shelters since September 2022 creating hazardous living conditions; Mother's untreated mental health issues "including bipolar disorder, PTSD, opioid use disorder, cocaine/methamphetamine/stimulant use disorder, alcohol use disorder, and ADHD" rendering Mother unable to appropriately care for and supervise the children; Mother's substance abuse issue for "alcohol, marijuana, cocaine, methamphetamines, stimulants, and opiates that interferes with her ability to care for the children"; Mother's failure to "remain engaged in recommended services and treatment to address her substance concerns"; and Mother's failure to "consistently and appropriate address" B.F.'s special needs and send B.F. to school during reunification.
{¶ 35} Additional grounds cited were the alleged Father M.F.'s domestic violence with Mother; criminal conviction for importuning arising from then 22-year-old M.F.'s relationship with then 15-year-old Mother resulting in a sexual offender designation. M.F. was incarcerated at the time of the filing and failed to establish paternity, provide support, and communicate with or visit B.F. for most of her life. J.A., established father for L.F., failed to support, visit, or communicate with L.F. regularly.
{¶ 36} The sole witness at the adjudication hearing was CCDCFS child protection specialist and social worker Creeshia Murry ("Murry") who was assigned to the case in September 2022. Murry confirmed that she had fully reviewed the case file.
{¶ 37} Murry testified regarding medical records from each facility, offered on a per record basis, revealed the names of the residential treatment centers, number of residential treatment hospitalizations for the subpoenaed period, reasons for the hospitalizations, mental health diagnoses, toxicology screen results, progress report information, disclosures by Mother to the provider, the treatment center's recommendations, admission and discharge dates, and discharge summaries.
Due to this court's finding that the medical records were inadmissible, the medical records information is provided in summary form.
{¶ 38} Excluding the content of the inadmissible medical records contained in Murry's testimony, the following testimony was offered supporting the complaints. Murry's testimony, supported by certified documents, confirmed the history of filings and custody removals and the cited grounds set forth in the complaint including M.F.'s criminal convictions. During the reunification period, Murry arranged for B.F.'s school transportation and attended the school Individual Education Program ("IEP") meeting. Mother failed to attend the meeting and to take B.F. to her developmental behavior appointments. B.F. attended school for a single day during the period. J.A., the established father of L.F., communicated with L.F. once or twice around January 2023 after L.F.'s removal from Mother's home in December 2022. J.A. provided no support and could not provide housing.
The report of Mother's GAL was filed on September 27, 2023, and provides that the GAL reviewed the Agency records, educational records, therapeutic records, and medical records. It also lists several of the diagnoses contained in the medical records.
{¶ 39} On December 6, 2022, B.F. and L.F. were committed to the emergency temporary custody of the Agency. The Agency was concerned with Mother's mental health, Mother's failure to meet B.F.'s special and educational needs, parenting deficiencies, and lack of safe, stable housing.
{¶ 40} M.F. was a registered sex offender due to an importuning conviction involving then 15-year-old Mother, had a domestic violence history with Mother, and was convicted of drug trafficking, possessing criminal tools and two counts of escape.[ M.F. also lacked stable housing and had not consistently visited, communicated with, or provided support to B.F.
Mother was nearly 24 years old at the time of the hearings.
{¶ 41} The other parties declined to cross-examine the witness; the exhibits were admitted over Mother's objections to the certified treatment records. The court held that, "based on the testimony and evidence presented, the Agency has shown by clear and convincing evidence neglect and dependency." Tr. 54.
{¶ 42} The journal entry and findings of fact provided regarding the adjudication proceeding stated as follows:
CCDCFS Exhibits 1-27 were admitted into evidence. All records were properly certified. Counsel for the mother enters into the record ongoing objection[s] to CCDCFS obtaining the mother's mental health records and submitting them into evidence. The Court notes that mother's mental health is a major factor in this matter. The objections are overruled. The exhibits are admitted into evidence.
The Court heard sworn testimony and evidence regarding the allegations in the complaint.
The Court finds that the allegations of the complaint have been proven by clear and convincing evidence. The Court finds the child to be Neglected and Dependent.
Journal Entry No. 0917304041, p. 1, (Oct. 23, 2023).
{¶ 43} We reiterate that the medical records were not properly before the court under R.C. 2317.02(B)(1)(b). In re L.F., 9th Dist. Summit Nos. 27218 and 27228, 2014-Ohio-3800, ¶ 38, citing R.C. 2317.02(B)(1)(b). Excluding the medical records evidence, and upon review of the juvenile court's findings, we cannot say that the juvenile court did not actually rely on the inadmissible evidence in its judgment. In re M.H., 8th Dist. Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 73.
{¶ 44} The children were found to be neglected and dependent by clear and convincing evidence. '"Clear and convincing evidence' is that 'measure of or degree of proof that 'produce[s] in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.'" In re I.S., 2022-Ohio-3923, 199 N.E.3d 1130, ¶ 116 (8th Dist.), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, at ¶ 8. '" It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.'" (Emphasis deleted.) Cross at 477.
{¶ 45} The adjudication of neglect was made under R.C. 2151.03(A)(2) that provides a neglected child is one "[w]ho lacks adequate parental care because of the faults or habits of the child's parents, guardian, or custodian." The dependent child finding was based on R.C. 2151.04(B), a child "[w]ho lacks adequate parental care by reason of the mental or physical condition of the child's parents, guardian, or custodian," and R.C. 2151.04(D) for 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.
(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.Id.
{¶ 46} Accordingly, we also cannot say that the adjudication of the children as neglected and dependent based on the remaining evidence was clearly and convincingly supported.
{¶ 47} This finding renders the remaining arguments under the first and second assigned errors moot. App.R. 12(A)(1)(c).
IV. Conclusion
{¶ 48} The juvenile court's judgment is vacated.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, P.J., and MICHAEL JOHN RYAN, J., CONCUR