In re A.V.
Father, pro se.
Kelly M. McKoy, for Mother.
Andrew G. Ostrowski, for CASA.
M. POWELL, J.
{¶ 1} Appellant (“Father“) appeals a decision of the Warren County Court of Common Pleas, Juvenile Division, adjudicating his children dependent.
{¶ 2} Father and Mother are the parents of four minor children, A.V., E.V., I.V., and
{¶ 3} In October 2018, the parents began divorce proceedings in the Warren County Court of Common Pleas, Domestic Relations Division. During the pendency of the divorce, the parents resided apart from one another and shared custody of the children. In November 2019, Father was designated sole custodian of the children. In December 2019, the domestic relations court ordered the parents to submit to a hair follicle drug screen. Father‘s drug screen came back positive for cocaine, opiates, and PCP; Mother‘s drug screen came back positive for cocaine and opiates.1 Consequently, the domestic relations court made a referral to WCCS.
{¶ 4} Following the referral, WCCS caseworker Katherine Mullins met with Father and the children on January 9, 2020, at Father‘s home. In discussing the hair follicle test results, Father admitted using cocaine in September and/or October 2019 and methamphetamine in December 2019. Father advised Mullins that he was engaging in individual substance abuse counseling at Talbert House. Father provided a negative drug screen on January 9, 2020. Mullins concluded that Father‘s home was appropriate, and the children were safe. Mullins left the children in Father‘s care. At some point Father provided Mullins with a release of information to permit her to monitor his treatment progress at Talbert House.
{¶ 5} Mullins met with Mother on January 23, 2020. Mother tested positive for cocaine and Xanax that day. Mother admitted using cocaine a few days earlier, admitted she was struggling with substance abuse, and advised Mullins she was actively engaged
{¶ 6} Mullins met with Father again on March 10, 2020. Father tested positive for methamphetamine that day and admitted using the drug the previous weekend. Having received information that Father was missing some of his counseling sessions at Talbert House, Mullins was concerned for the children‘s well-being. With the agreement of both Mother and Father, Mullins initiated a safety plan and placed the children with their Paternal Grandmother. Under the safety plan, Paternal Grandmother was to supervise all contact between the children and parents; the parents were required to have regular contact with WCCS and engage in substance abuse treatment.
{¶ 7} Mother was engaged in intensive outpatient substance abuse and mental health treatment at Talbert House until the end of March 2020 and provided a negative drug screen that month. Father provided a negative drug screen in May 2020. On June 25, 2020, Mother tested positive for methamphetamine; Father provided a negative drug screen.
{¶ 8} On July 14, 2020, Father tested positive for methamphetamine. On July 17, 2020, during an unannounced visit to Paternal Grandmother‘s home, WCCS caseworker Kyla New discovered that the children were not there.2 Paternal Grandmother advised they were swimming at Maternal Grandmother‘s house. However, New found the children at Father‘s home, unsupervised, in violation of the safety plan. New amended the safety plan and placed the children with Maternal Grandmother. However, this was a short-term solution as Maternal Grandmother‘s housing did not allow her to have children. After July 17, 2020, Father stopped being cooperative with WCCS.
{¶ 10} On August 26, 2020, WCCS filed a complaint alleging that A.V., E.V., I.V., and O.V. were neglected children under
{¶ 11} On October 21 and 28, 2020, a magistrate held an adjudicatory hearing. Mullins acknowledged that the children‘s basic needs were met when they lived in Father‘s home and that the children denied any knowledge of Father‘s drug use. New likewise testified that the children did well in school, their basic and medical needs were met, their housing was appropriate, and that the children denied any knowledge of their parents’ drug use. New further testified she had no personal knowledge that Father and Mother used drugs around the children.
{¶ 12} Mother acknowledged that drugs are illegal, admitted she was headed toward a serious drug problem from January to August 2020, and testified that the parents’ substance abuse issues could have impacted the children, “thank God that it didn‘t.” She further testified that a caregiver‘s drug use would be a concern because it is not safe, “things happen.” Mother denied using drugs when the children were present. She admitted she
{¶ 13} Father testified that he used methamphetamine multiple times and cocaine twice since October 2019. He admitted smoking methamphetamine in the garage two or three times when the children were asleep and he was the sole caregiver. He further admitted having methamphetamine brought to his home but denied the children were present. Father denied having drugs or drug paraphernalia in his home, denied using drugs in the children‘s presence, and testified they have never seen him use drugs. Father characterized his drug use as “recreational” and “social” and acknowledged that methamphetamine and cocaine were illegal and not appropriate to use. Father denied having a drug problem, being a drug addict, or needing counseling. Moreover, he did not think there was a concern with his drug use or his ability to parent or protect the children. Father testified he no longer uses drugs and has consistently tested negative since early September 2020.
{¶ 14} On November 2, 2020, the magistrate issued a decision finding by clear and convincing evidence that A.V., E.V., I.V., and O.V. were dependent children under
{¶ 15} Father filed objections to the magistrate‘s decision, arguing that the state failed to show the parents’ drug use had an adverse impact on the children. On March 9, 2021, the juvenile court overruled Father‘s objections and adopted the magistrate‘s decision as an order of the juvenile court. The court found that “[t]estimony presented [at the adjudication hearing] amounted to a legitimate risk of harm and therefore there was sufficient evidence for a finding of dependency under
{¶ 16} Father appeals, pro se, the dependency adjudication, raising two assignments of error.
{¶ 17} Assignment of Error No. 1:
{¶ 19} Father argues the juvenile court erred in adjudicating A.V., E.V., I.V., and O.V. dependent children under
{¶ 20} “The state bears the burden of proof of establishing that a child is abused, neglected, or dependent.” In re L.H., 12th Dist. Warren Nos. CA2018-09-106, CA2018-09-109 thru CA2018-09-111, 2019-Ohio-2383, ¶ 20. A juvenile court‘s determination that a child is dependent must be supported by clear and convincing evidence.
{¶ 21}
{¶ 22} The determination that a child is dependent under
{¶ 23} After a thorough review of the record, we find that the juvenile court‘s adjudication of A.V., E.V., I.V., and O.V. as dependent children under
{¶ 24} A dependency finding based upon a parent‘s use of an illegal substance or
{¶ 25} It is undisputed that between the time WCCS became involved and the day it filed the dependency complaint, both Father and Mother continued to abuse illegal drugs, despite knowing they would be tested and the adverse consequences of a positive test. In spite of his chronic use of methamphetamine and the fact he admitted smoking it in the garage a couple of times when the children were asleep and he was the only adult present, Father denied having a drug problem or needing counseling. Neither parent successfully completed their substance abuse treatment program at Talbert House. We agree with the juvenile court‘s characterization of methamphetamine, cocaine, and opioids as more
{¶ 26} At the adjudicatory hearing, both caseworkers testified that the children‘s needs were met, their home was appropriate for them, they were doing well in school, and they had no knowledge that Father and Mother were using drugs. The children were current with their medical and dental appointments. The parents’ testimony indicated they were both employed; there was no evidence their income was insufficient to support the children. Father denied having drugs or drug paraphernalia in his home, denied using drugs in the children‘s presence, and testified they have never seen him use drugs. Mother denied using drugs when the children were present. Their testimony was not rebutted by WCCS. There is no evidence the parents were under the influence of drugs when they were in the children‘s presence, much less in a state of such acute intoxication that they were incapable of caring for the children or presented a danger to them. There was no evidence presented as to the amount of drugs used by the parents, nor was there any evidence that their drug use impaired their parenting or adversely impacted the children in any way.
{¶ 27} Mullins generally testified about several possible ramifications of parental substance abuse, such as being involved in the criminal justice system, losing one‘s home and relationships, and being unable to meet the basic needs of children, but conceded those ramifications were not present here. Likewise, New generally testified that a parent‘s drug use is concerning because it could alter the parent‘s motor skills and change the way the parent reacts to situations. Neither caseworker identified specific examples of actual adverse impact on the children as a result of the parents’ drug use.
{¶ 29} We note that WCCS cites opinions from this court involving a parent‘s drug use and in which we upheld a dependency adjudication under
{¶ 30} This court does not condone a parent‘s use of an illegal substance or abuse of a legal substance, and certainly does not condone Father‘s and Mother‘s use of
{¶ 31} In light of the foregoing, the juvenile court erred in adjudicating A.V., E.V., I.V., and O.V. dependent children under
{¶ 32} Assignment of Error No. 2:
{¶ 33} PROCEDURAL DUE PROCESS SAFEGUARDS REQUIR[E] THAT FATHER HAS A FUNDAMENTAL RIGHT TO THE CARE, CUSTODY, AND CONTROL OF HIS CHILDREN AND THE DECISION OF THE COURT CONFLICTS WITH THE BEST INTEREST OF THE CHILDREN.
{¶ 34} Father argues he was denied due process because (1) he was forced to sign the amended safety plan which removed the children from Paternal Grandmother‘s custody and placed them with Maternal Grandmother, (2) the juvenile court denied his motion to continue the shelter care hearing, and (3) as a result, he was not represented by counsel at the hearing. Father further argues he was denied due process when the children were removed from his custody based upon his liberty interest in the care and custody of his children.
{¶ 36} Although Father filed objections to the magistrate‘s decision, he did not specifically raise the issues above and does not claim plain error in his brief. He is therefore precluded from raising these issues on appeal. While Father claims plain error in his reply brief, doing so does not properly bring the issue before this court for review. See Hunters Trail Acquisitions, L.L.C. v. Stasik, 9th Dist. Summit No. 29620, 2021-Ohio-2224; Nemeth v. Nemeth, 11th Dist. Geauga No. 2007-G-2791, 2008-Ohio-3263; Oakmont Motors v. Ohio Motor Vehicle Dealers Bd., 7th Dist. Columbiana No. 02 CO 31, 2003-Ohio-1238. The reply brief is merely an opportunity to reply to the brief of the appellee, and is not to be used by an appellant to raise new assignments of error or new issues for review. See Baker v. Meijer Stores Ltd. Partnership, 12th Dist. Warren No. CA2008-11-136, 2009-Ohio-4681, ¶ 17;
{¶ 37} Father‘s second assignment of error is overruled.
{¶ 38} Judgment reversed.
PIPER, P.J., and BYRNE, J., concur.