IN RE BABY BOY BLACKSHEAR.
No. 99-1890
Supreme Court of Ohio
October 25, 2000
90 Ohio St.3d 197 | 2000-Ohio-173
DOUGLAS, J.
Submitted June 6, 2000. APPEAL from the Court of Appeals for Stark County, No. 1999CA00018.
When a newborn child‘s toxicology sсreen yields a positive result for an illegal drug due to prenatal maternal drug abuse, the newborn is, for purposes of
(No. 99-1890—Submitted June 6, 2000—Decided October 25, 2000.)
APPEAL from the Court of Appeals for Stark County, No. 1999CA00018.
{¶ 1} On July 14, 1998, appellant, Tonya Kimbrough, gave birth at Mercy Medical Center in Canton, Ohio, to a baby boy, Lorenzo Blackshear. Shortly after his birth, certain persons of the hospital‘s medical staff noted that Lorenzo was “jittery.” A toxicology screen of Lorenzo‘s urine indicated that Lorenzo had cocaine in his system. Kimbrough was also tested and was found, as well, to have cocaine in her system.
{¶ 2} The Stark County Department of Human Services (“SCDHS“), appellee, received a referral concerning Lorenzo. SCDHS commenced an investigation. The investigation showed the allegations concerning Lorenzo and Kimbrough to be accurate. SCDHS then, pursuant to
{¶ 4} Kimbrough appealed the judgment of the trial court. The court of appeals affirmed the trial court‘s judgment.
{¶ 5} On March 6, 2000, the Stark County Family Court granted permanent custody of Lorenzo to Robin Blackshear, Lorenzo‘s biological father.
{¶ 6} This cause is now before this court upon the allowance of a discretionary appeal.
Paula M. Sawyers, for appellee.
J. Dean Carro, for appellant.
Wolman, Genshaft & Gellman and Susan Gellman; National Advocates for Pregnant Women/Women‘s Law Project, Lynn Paltrow, Susan Frietsche and David S. Cohen, urging reversal for amici curiae, American Public Health Association, American Academy on Physician and Patient, American Nurses Association, Center for Wоmen Policy Studies, Common Sense for Drug Policy, Division of Public Health and Policy Research of Montefiore Medical Center/Albert Einstein College of Medicine, Drug Policy Foundation, Family Watch, Institute for Health and Recovery, Legal Action Center, Legal Services for Prisoners With Children, Lindesmith Center, National Abortion and Reproductive Rights Action League of Ohio, National Association of Alcoholism and Drug Abuse Counselors, Inc., National Center for Youth Law, National Council on Alcoholism and Drug Dependence, Inc., National Women‘s Health Network, NOW Legal Defense and Education Fund, Preterm, South Carоlina Nurses Association, Women in Need, Inc., and Women‘s Re-Entry Resource Network.
{¶ 7} Kimbrough presents us with a single proposition of law asking us to find that “[i]n enacting
{¶ 8} The issue arises because Kimbrough contends that the trial court and the court of appeals have assumed authority that the General Assembly did not provide when the courts permitted SCDHS to take custody of Lorenzo to the exclusion of Kimbrough. The statute in question,
“As used in this chapter, an ‘abused child’ includes any child who:
” * * *
“(D) Because of the acts of his parents, * * * suffers physical or mental injury that harms or threatens to harm the child‘s health or welfare.”
{¶ 9}
“As used in this chapter:
” * * *
“(6)(a) ‘Child’ means a person who is under eighteen years of age * * *.”
“Person” is not defined in
{¶ 10} Kimbrough contends that since the definition of “child” does not include a fetus, the General Assembly meant to exclude a fetus from the definition of “child” and since, Kimbrough contends, her action of using cocaine, which caused the injury to Lorenzo, оccurred while Lorenzo was a fetus—and not while Lorenzo was a fully born child—
{¶ 12} It is clear that the action cаusing the injury to Lorenzo was taken by one of his parents, Kimbrough. It is clear that the action taken by Kimbrough caused Lorenzo injury—both before and after birth. It is clear that after his birth, Lorenzo was a “child” as defined in
{¶ 13} Thus we apply the statute as written and to the facts of this case. Accordingly, we hold that when a newborn child‘s toxicology screen yields a positive result for an illegal drug due to prenatal maternal drug abuse, the newborn is, for purposes of
{¶ 14} For the foregoing reasons, the judgment of the court of aрpeals is affirmed.
Judgment affirmed.
MOYER, C.J., RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
RESNICK and LUNDBERG STRATTON, JJ., concur separately.
PFEIFER and COOK, JJ., dissent.
ALICE ROBIE RESNICK, J., concurring.
{¶ 15} I concur with the syllabus and the judgment of the majority. I write separately to emphasize the limited scope of the majority‘s holding.
{¶ 16} As the majority correctly concludes, the relevant issue presented for our determination is whether the plain language of
{¶ 17} This is a disturbing issue, especially in light of the fact that a child who is exposed to an illegal drug following its birth and possesses traces of the drug in its system would, without a doubt, be considered an abused child.
{¶ 19} Accounts of drug-addicted newborns elicit intense emotional responses, such as anger and disbelief. We question how mothers can inflict this type of harm on their innocent children. Moreover, the full extent of harm done is often not known and, therefore, these children face uncertain futures.
{¶ 20} While the number of drug-addicted newborns reaches epidemic proportions, and society searches fоr methods to deal with this crisis, this court must adhere to its duty to interpret the laws in accordance with the General Assembly‘s intent. To do otherwise would yield consequences reaching far beyond those either intended or anticipated by the General Assembly. The majority must be commended for exercising rеstraint.
{¶ 21} ” ’ “A court should not place a tenuous construction on [a] statute to address a problem to which the legislative attention is readily directed and which it can readily resolve if in its judgment it is an appropriate subject of legislation.” ’ ” State v. Gray (1992), 62 Ohio St.3d 514, 518, 584 N.E.2d 710, 713, quoting People v. Hardy (1991), 188 Mich.App. 305, 310, 469 N.W.2d 50, 53, and People v. Gilbert (1982), 414 Mich. 191, 212-213, 324 N.W.2d 834, 844. The courts are neither authorized nor propеrly equipped to make public policy determinations. If the General Assembly wants to include a fetus within the definition of a “child” for purposes of
LUNDBERG STRATTON, J., concurs in the foregoing concurring opinion.
COOK, J., dissenting.
{¶ 22} Appellant‘s sole proposition of law asks this court to decide that
{¶ 24} A positive result on a newborn‘s drug screen is probative evidence of in utero exposure to illegal drugs. Whether a newborn‘s in utero exposure to an illegal substance actually harms or threatens to harm the child is, however, a separate question that can only be аnswered by considering appropriate medical evidence. Such consideration is lacking in this case.
{¶ 25} Though there was evidence that Lorenzo was “jittery” soon after birth, the record contains no medical testimony linking this symptom to the positive drug screen. The agency‘s only witness at the adjudicatory hearing was a social worker who observed Lorenzo shake briefly twice during a five- to fifteen-minute period. The day after birth, Lorenzo‘s physician noted “not much jittering” and decided that he would “just observe.” The following day, Lorenzo‘s physician indicated that Lorenzo was “doing fine—no jitteriness.” Three days after birth, Lorenzo was discharged. Though Lorenzo‘s physician noted a “positive drug screen” on the discharge summary, he identified no symptoms of injury that harmed or threatened to harm the child. Nor did the physician specify the need for any medication or special care fоr Lorenzo.
{¶ 26} I would remand this cause for a determination of whether Lorenzo‘s exposure to cocaine either harmed or threatened to harm him, as the plain language of
PFEIFER, J., concurs in the foregoing dissenting opinion.
Notes
For examples, and the list is not meant to be all-inclusive, appellant, amici, and appellee all cite Werling v. Sandy (1985), 17 Ohio St.3d 45, 17 OBR 37, 476 N.E.2d 1053, and State v. Gray (1992), 62 Ohio St.3d 514, 584 N.E.2d 710. Appellant and appellee each cite Jasinsky v. Potts (1950), 153 Ohio St. 529, 42 O.O. 9, 92 N.E.2d 809, and Williams v. Marion Rapid Transit, Inc. (1949), 152 Ohio St. 114, 39 O.O. 433, 87 N.E.2d 334. Appellant cites In re Ruiz (1986), 27 Ohio Misc.2d 31, 27 OBR 350, 500 N.E.2d 935.
The Williams, Jasinsky, and Werling cases all hinged on the rights of children, born alive or stillborn, to bring, or to have brought on their behalf, an action for injuries sustained because of the negligence of another, while they were still in their mother‘s womb. The case now before us involves the rights of a mother with regard to whether her parental rights can be terminated or curtailed. Accordingly, the cited cases are not on point.
The Gray case was a criminal case and involved whether a mother could be prosecuted for child endangerment where substance abuse occurred during pregnancy. As this was a criminal case, the court was mandated by
Distinguishing Ruiz presents a more difficult problem but, in any event, the ultimate holding of Ruiz is in accordance with our decision today. Judge Pollex of the Court of Common Pleas of Wood County, Juvenile Division, felt “compelled to hold that a viable fetus is a child under the existing child abuse statute.” Ruiz, 27 Ohio Misc.2d at 35, 27 OBR at 355, 500 N.E.2d at 939. This conclusion was reached after a review of a number of cases including Williams, Jasinsky, and Werling. We have already shown how those cases do not apply in the context of the case now before us. Thus, a child born alive who tests positive at birth for addiction to cocaine suffers from abuse and continued abuse no matter when the original abuse occurred.