I dissent from the majority's conclusion that the juvenile court abused its discretion in ordering appellant to undergo treatment as a sexual offender.
In pertinent part, R.C. 2151.359 provides that:
"In any proceeding wherein a child has been adjudged delinquent, unruly, abused, neglected, or dependent, on the application of a party, or the court's own motion, the court may make an order restraining or otherwise controlling the conduct of any parent, guardian, or other custodian in the relationship of such individual to the child if the court finds that such an order is necessary to:
"(A) Control any conduct or relationship that will be detrimental or harmful to the child;
"(B) Where such conduct or relationship will tend to defeat the execution of the order of disposition made or to be made."
A fair reading of the statute reveals that when a child has been adjudicated abused, the juvenile court is permitted to devise an order that controls a parent's conduct in order to prevent harm or detriment to the child. The power of the juvenile court to impose such an order is not, and should not be, unbridled. Despite the paucity of case law interpreting the statute, it appears that an order issued under R.C. 2151.359 rests within the sound discretion of the juvenile court and will not be disturbed on appeal absent an abuse of the court's discretion. See, generally, Carter v. Johnson (Sept. 25, 1986), Cuyahoga App. No. 51985, unreported, 1986 WL 10853. Abuse of discretion connotes conduct on the part of the court that amounts to more than error of law or judgment; it implies an attitude that is unreasonable, arbitrary or unconscionable.Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St. 3d 59,61, 29 OBR 441, 443, 505 N.E.2d 957, 959.
In ordering appellant to receive sex offender treatment, the juvenile court wrote:
"The most significant finding of this Court at the hearing on the GAL's [guardian ad litem's] motion was that the evidence (testimony of Doxey and Fisher) added credibility to the issue of the original allegations of abuse of the child by [appellant]. In that the possibility of abuse of the child by [appellant] is now more apparent, it is imperative that the supervisors remain ever vigilant, not only to prevent future abuse, but to protect [appellant] from unfounded allegations of abuse.
"It is now clear to this Court that [appellant] must receive treatment as an alleged sexual offender. The issue of abuse must be openly addressed, not only to protect the child in the future but to remove the potential of empowerment in *Page 459 the hands of the child, with the eventual goal of normalizing the relationship between child and parent."
In light of the juvenile court's reasoning, it is my belief the order requiring appellant to receive treatment was not arbitrary, unreasonable or capricious. The court adjudicated the child abused. The thrust of the evidence elicited at the hearing pointed to appellant as the perpetrator. In fact, the child did not levy any allegation of abuse toward anyone other than appellant. Given these facts, the order made by the court is proper in that it will help protect the child from future abuse. See Ward v. Royer (July 15, 1991), Clermont App. No. CA90-09-090, unreported, 1991 WL 129797 (where there are allegations that father sexually abused his daughter, but no evidence of such abuse, it is permissible for trial court to order the father's visits to be supervised and to eliminate overnight visitation in an effort to protect the child from potential abuse). Moreover, appellant's treatment will also protect him, as he will be educated to recognize and avoid situations which have the potential to form the basis of future abuse allegations. Under these circumstances, I am of the opinion that the juvenile court's order was intended to help stabilize the relationship between the child and appellant, and was therefore in the child's best interest.
Further, as I see it, the rule of law announced by the majority adds a condition to R.C. 2151.359 which is clearly erroneous. According to the majority, a juvenile court may not order a parent of an abused child to undergo sex offender treatment unless the finding of abuse has been made as to that parent. The statute requires no such finding. All that R.C.2151.359 demands in order for a court to make an order to control the conduct of the parent of an abused child is that the order be necessary to control conduct that is harmful or detrimental to the child. Had the General Assembly wanted to make a finding of fault a prerequisite to a R.C. 2151.359 order, it surely would have done so. For the reasons set forth above, I believe that under the facts of the instant action, the order compelling appellant to receive treatment was well within the court's power.
Accordingly, I dissent. *Page 460