In re L.H.
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036 for appellee
Alexander, Wagner & Kinman, Maxwell D. Kinman, 423 Reading Road, Mason, Ohio 45040 for appellant
M. POWELL, J.
{1} Appellant (“Mother“) appeals the decisions of the Warren County Court of Common Pleas, Juvenile Division, adjudicating her children dependent.
{2} Mother is the biological mother of D.T. and his three younger half-siblings, L.H.1, L.H.2, and S.H.1 D.T.‘s biological father is deceased. Father, who is not a party to this appeal, is believed to be the biological father of L.H.1, L.H.2, and S.H. Mother and her
{3} In February 2017, the Warren County Children Services (“the Agency“) filed a complaint alleging that D.T. was an abused and dependent child. The Agency simultaneously filed complaints alleging that L.H.1 and L.H.2 were dependent children based upon the alleged abuse of D.T. The complaints alleged that Father had committed acts of domestic violence towards Mother and had beaten D.T. with a belt for urinating on himself. All three children were placed into Mother‘s custody subject to the Agency‘s protective supervision. Father was ordered to vacate the home. S.H. was not yet born.
{4} In April 2017, D.T. was adjudicated dependent under
{5} While her appeal was pending, Mother gave birth to S.H. in August 2018. In late September 2017, a caseworker with the Agency made an unannounced visit to Mother‘s home in connection with the pending cases involving D.T., L.H.1, and L.H.2. Mother did not allow the caseworker to enter her home. A few hours later, the caseworker returned with a police officer and was allowed to enter Mother‘s home. Once inside, the caseworker smelled a strong odor of marijuana. However, no drugs or drug paraphernalia were found in the home. Mother was drug screened for marijuana and tested negative. During her visit, the caseworker discovered the existence of S.H. and that Mother had custody of Brother.
{6} On September 26, 2017, the Agency filed complaints alleging that S.H. and Brother were dependent children based in part upon the prior adjudications of D.T., L.H.1, and L.H.2 as dependent children and Mother‘s failure to comply with case plan services in
{7} On November 2, 2017, the Agency moved for ex parte emergency temporary custody of Mother‘s four children and Brother. The motion was based upon Mother‘s failure to engage in case plan services, her failure to enroll Brother in mental health counseling, and Father‘s continued presence in the home. The juvenile court conducted an ex parte hearing on the motion that same day. Mother was not notified of the hearing and was not present. Mother‘s attorney was likewise not present at the hearing. The children and Brother were removed from Mother‘s home and placed in the temporary custody of the Agency. All five children have been in foster care since that time.
{8} An adjudicatory hearing was conducted in December 2017 regarding S.H. and Brother. Mother did not testify. At the hearing, the caseworker testified she smelled a strong odor of marijuana during her September 2017 visit to Mother‘s home. However, no drugs or drug paraphernalia were found in the home and the caseworker did not observe any smoke. The caseworker was able to search the entire home and found no indication of marijuana use other than the smell. The caseworker had no concerns regarding the condition of the home, the sleeping arrangements, the availability of food, or the conditions of the children. The caseworker testified that since she has been the family‘s caseworker, Mother has consistently tested negative for all substances, including marijuana. The state argued S.H. and Brother were dependent under
{10} Mother filed objections to the magistrate‘s decision which were overruled by the juvenile court. Following a dispositional hearing on January 17, 2018, S.H. was once again placed in the temporary custody of the Agency. Mother did not appeal the adjudication or disposition of S.H.
{11} On March 5, 2018, we reversed the April 2017 dependency adjudications of D.T., L.H.1, and L.H.2. In re L.H., 12th Dist. Warren Nos. CA2017-06-081, CA2017-06-083, and CA2017-06-087, 2018-Ohio-802. We found that a caseworker‘s testimony concerning what D.T. had told her about being physically abused was inadmissible hearsay. We further found that absent such evidence, there was no clear and convincing evidence that D.T., L.H.1, and L.H.2 were dependent. We consequently vacated the juvenile court‘s adjudicatory and dispositional orders regarding S.H.‘s siblings.
{12} That same day, on March 5, 2018, the Agency filed new complaints alleging that D.T., L.H.1, and L.H.2 were dependent children. The complaints referred to videos recorded in Mother‘s home and posted on Father‘s Facebook account “detailing statements
{13} Following this court‘s reversal of the prior adjudications of D.T., L.H.1, and L.H.2, Mother moved to dismiss the new complaints filed by the Agency regarding the three children. Mother further filed a
{14} On June 5, 2018, the magistrate denied Mother‘s motion to dismiss the new complaints regarding D.T., L.H.1, and L.H.2. In a separate magistrate‘s order filed that same day, the magistrate granted in part and denied in part Mother‘s
{15} An adjudicatory hearing was held in June 2018 regarding D.T., L.H.1, and L.H.2. Mother did not testify. During the hearing, portions of videos posted on Father‘s Facebook account were played. The videos showed Father smoking marijuana in Mother‘s home in the presence of D.T., L.H.1, and L.H.2. The videos further showed Father verbally threatening to physically abuse Mother and bragging that he had choked Mother and that
{16} On June 25, 2018, the magistrate journalized decisions recommending that D.T., L.H.1, and L.H.2 be adjudicated dependent under
{17} On June 25, 2018, implicitly granting Mother‘s motion for a “magistrate‘s decision” regarding S.H., the magistrate further issued a “magistrate‘s decision” granting in part and denying in part Mother‘s
{18} Mother filed objections to the magistrate‘s foregoing four decisions. On
{19} Mother now appeals, challenging the adjudication of D.T., L.H.1, L.H.2, and S.H. as dependent children in a single assignment of error.
{20} The state bears the burden of proof of establishing that a child is abused, neglected, or dependent. In re N.J., 12th Dist. Warren Nos. CA2016-10-086, CA2016-10-090, and CA2016-10-091, 2017-Ohio-7466, ¶ 12. A juvenile court‘s adjudication of a child as abused, neglected, or dependent must be supported by clear and convincing evidence. In re T.B., 12th Dist. Fayette No. CA2014-09-019, 2015-Ohio-2580, ¶ 12, citing
{21} With regard to construing the statutes involved in this case,
The sections in [R.C.] Chapter 2151 * * * shall be liberally interpreted and construed so as to effectuate the following purposes: To provide for the care, protection, and mental and physical development of children subject to [R.C.] Chapter 2151, whenever possible, in a family environment, separating the child from the child‘s parents only when necessary for the child‘s welfare or in the interests of public safety.
{22} With these guiding principles in mind, we turn to Mother‘s assignment of error:
{24} Mother argues the juvenile court erred in adjudicating D.T., L.H.1, L.H.2, and S.H. dependent children under
Adjudication of S.H. as a Dependent Child under R.C. 2151.04(C)
{25} Mother first challenges the denial of her motion for relief from the adjudication of S.H. as a dependent child under
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.
{26} To prevail on a motion brought under
{28} On June 25, 2018, the magistrate issued a magistrate‘s decision captioned with S.H.‘s name and case number but solely discussing Brother‘s case. The decision upheld the dependency adjudication under
{29} Mother argues there was insufficient evidence to adjudicate S.H. dependent under
{30} Other than the initial refusal to allow the caseworker in her home, Mother is correct that none of the evidence cited and relied upon by the magistrate in the June 25, 2018 decision as the “other evidence” supporting the adjudication under
{31} The state, however, argues that the magistrate properly relied upon the foregoing evidence to deny Mother‘s
{32} However, the state‘s ex parte motion does not mention any video posted on Father‘s Facebook account, does not allege domestic violence issues, and does not cite the evidence relied upon in the magistrate‘s June 25, 2018 decision. Furthermore, the magistrate‘s order granting emergency temporary custody to the Agency does not detail the evidence relied upon in granting the state‘s motion and simply refers to the caseworker‘s “testimony” at the hearing on the motion. Moreover, there is no transcript of the hearing on the motion from which it can be determined what evidence was presented in support of the motion. The record, therefore, does not support the state‘s argument that the magistrate was aware of the video evidence at the time she adjudicated S.H. dependent under
{33} As stated above, Mother was not notified of the ex parte emergency hearing and was not present. Mother‘s attorney was likewise not present at the hearing. Mother was therefore not given notice of the evidence relied upon by the state and did not have the opportunity to oppose or challenge the evidence presented during the ex parte emergency hearing. Mother further never agreed to incorporate the caseworker‘s testimony from the ex parte emergency hearing into the December 2017 adjudicatory hearing.
{34} Nevertheless, the state asserts that Mother had the “opportunity to contest the evidence, both on January 8, 2018, when the magistrate adjudicated the other child in Mother‘s care [i.e., Brother], and on June 7 and 21, 2018, when the magistrate adjudicated D.T., L.H.1, and L.H.2 to be dependent based on that evidence.” Based upon Mother‘s opportunity to contest the evidence during these hearings, the state asserts that Mother was not prejudiced when the magistrate relied upon the video evidence in denying Mother‘s
{35} However, all three adjudicatory hearings above were conducted after the December 2017 adjudicatory hearing for S.H. Furthermore, the January 2018 hearing solely dealt with Brother‘s case. Likewise, the June 2018 hearings solely dealt with the cases for D.T., L.H.1, and L.H.2. Therefore, contrary to the state‘s assertion, Mother did not have the opportunity to specifically contest the evidence as to S.H. during these three hearings.
{36} Moreover, “parents are entitled to due process during the adjudicatory stage of the proceedings.” In re L.F., 9th Dist. Summit Nos. 27218 and 27228, 2014-Ohio-3800, ¶ 39. A fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Id.; Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187 (1965). “‘Due process of law implies, in its most comprehensive sense, the right of the person affected thereby to be present before the tribunal * * * to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved.‘” In re L.R., 5th Dist. Holmes No. 13CA004, 2013-Ohio-3104, ¶ 72, quoting Williams v. Dollison, 62 Ohio St. 2d 297, 299 (1980). A magistrate may not rely upon evidence that was never presented at an adjudicatory hearing for a specific child in a particular case as evidence supporting the adjudication of that child. Doing so violates the principles of procedural due process above.
{37} The state further argues that even if the magistrate did not consider the video evidence, she nevertheless properly denied Mother‘s motion for relief and adjudicated S.H. dependent under
{38} In light of the foregoing, we find that the evidence cited by the state does not support the juvenile court‘s dependency adjudication of S.H. under
Adjudication of D.T., L.H.1, and L.H.2 as Dependent Children under R.C. 2151.04(C)
{39} Mother next challenges the adjudication of D.T., L.H.1, and L.H.2 as dependent children under
{40} The determination that a child is dependent requires no showing of fault on the parent‘s part. In re T.B., 2015-Ohio-2580 at ¶ 20. Rather, the focus is on the child‘s condition or environment, and whether the child was without adequate care or support. Id. Thus, dependency under
{41} Generally,
While the child‘s present “condition or environment” is the focus of a dependency determination, the law does not require the court to experiment with the child‘s welfare to see if * * * [the child] will suffer great detriment or harm. The child does not first have to be put into a particular environment before a court can determine that * * * [the] environment is unhealthy or unsafe.
In re N.J., 2017-Ohio-7466 at ¶ 20. In other words, actual harm to a child is not necessary. Rather, circumstances giving rise to a legitimate risk of harm may suffice to support an adjudication of dependency under
{42} The juvenile court found D.T., L.H.1, and L.H.2 dependent primarily based upon two videos recorded in Mother‘s home and posted on Father‘s Facebook account. Mother challenges the juvenile court‘s reliance upon the videos, arguing that they depict events that occurred in or before October 2017, months before the new dependency complaints were filed in March 2018, and that they were therefore not indicative of the children‘s current situation. The record shows that the caseworker discovered the videos in October 2017.
{43} In adjudicating D.T., L.H.1, and L.H.2 dependent under
The videos show [Father] smoking what appeared to be marijuana and he indicates in the video he is smoking marijuana, referring to it as “weed“. [Father] advised he would never stop smoking “weed” as that is how he deals with his problems. [Father] was the only one caring for the child[ren] during said video(s). This behavior is further corroborated by the testimony of the caseworker indicating a detection of an odor of marijuana during home visits.
Additionally, the video(s) also reflect classic signs of domestic violence. There is reference to choking Mother and the child(ren). Mother‘s inability to recognize these issues as problems is a concern and demonstrates a lack of protective capacity with respect to the minor children.
{44} We find that the adjudication of D.T., L.H.1, and L.H.2 as dependent children under
{45} The videos further show Father using vulgar language and profanities, bragging about choking Mother, threatening future violence against Mother, and proclaiming he had physically abused children. Mother can be heard in the background in one of the videos. The caseworker testified that when she discussed the videos with Mother, including the issue of physical violence, Mother stated she was not concerned about having Father in the home around the children.
{46} Mother is correct that she has maintained proper housing throughout the proceedings, and that the caseworker had no concerns regarding the condition of the home, the sleeping arrangements, the availability of food, or the conditions of the children. Moreover, it is true that no drugs or paraphernalia were found in the home during the caseworker‘s September 2017 visit and that Mother has consistently tested negative for all
{47} However, the fact that the physical needs of D.T., L.H.1, and L.H.2 were met and that they generally lived in an appropriate home does not automatically lead to the conclusion that they are not dependent under
{48} Furthermore, Ohio caselaw supports a finding of dependency under
Adjudication of D.T., L.H.1, and L.H.2 as Dependent Children under R.C. 2151.04(D)
{49} Mother next challenges the adjudication of D.T., L.H.1, and L.H.2 as dependent children under
(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.
{50} A finding of dependency under
{51} We have held that because a determination of dependency is made as of the date alleged in the complaint under
{52} By magistrate‘s decisions filed on June 25, 2018, and subsequently adopted by the juvenile court, D.T. and L.H.2 were adjudicated dependent under
{53} Based upon the foregoing, we affirm the juvenile court‘s adjudication of D.T., L.H.1, and L.H.2 as dependent children under
{54} Judgment affirmed in part and reversed in part, and the matter is remanded for further proceedings.
HENDRICKSON, P.J., and RINGLAND, J., concur.