In Re T.P.-m., 24199 (12-10-2008)
{¶ 1} Appellant, Jennifer P., (“Mother“) appeals from the decision of the Summit County Court of Common Pleas, Juvenile Division, finding her daughter, T.P.-M., to be a dependent child and placing her in the temporary custody of Summit County Children Services Board (“CSB“). This Court affirms.
I.
{¶ 2} On June 7, 2007, while the newborn T.P.-M. was still in the hospital, CSB filed a complaint, alleging that the child, born on June 1, 2007, was dependent. The complaint referred to the fact that Mother and David M. (“Father“) had previously had their parental rights to three children involuntarily terminated, following adjudications that those children were neglected and dependent. The decision granting permanent custody of those children was entered by the trial court on March 23, 2007 and was affirmed by this Court on October 10, 2007. See In re J.P.-M., D.P.-M. and X.P.-M., 9th Dist. Nos. 23694 and 23714, 2007-Ohio-5412. The three children
{¶ 3} The complaint noted that the parents were presently residing with T.P.-M‘s paternal grandmother, Marilyn Greathouse, and her boyfriend, Johnny Barnett, and recited concerns with that living arrangement. The complaint also set forth continuing concerns with the parents’ personal relationship, mental health, substance abuse, and repeated denials to the agency by Mother of her pregnancy with T.P.-M. In seeking emergency temporary custody, the agency claimed that T.P.-M. would be at risk for problems similar to those of her siblings if she were left in her parents’ care.
{¶ 4} The trial court granted emergency temporary custody of T.P.-M to CSB at the shelter care hearing. Following the adjudicatory hearing, the magistrate found that T.P.-M. was dependent under R.C.
{¶ 5} Mother timely appeals and assigns five errors for review.
II.
ASSIGNMENT OF ERROR I.
“THE TRIAL COURT ERRED IN FINDING THAT R.C. §
2151.04(D) IS NOT UNCONSTITUTIONAL AS APPLIED TO APPELLANT BECAUSER.C. § 2151.04(D) VIOLATES THE DUE PROCESS [GUARANTEES] OF THEFIFTH ,NINTH , ANDFOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION.”
{¶ 6} In her first assignment of error, Mother contends that R.C.
{¶ 7} “[S]tatutes enjoy a strong presumption of constitutionality.” State v. Cook (1998), 83 Ohio St.3d 404, 409. Before a court may declare a statutory enactment unconstitutional, “it must appear beyond a reasonable doubt that the statute and constitutional provision are clearly incompatible.” State ex rel Dickman v. Defenbacher (1955), 164 Ohio St. 142, paragraph one of the syllabus. Accordingly, we begin with a strong presumption that R.C.
{¶ 8} R.C.
“(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 the parent, guardian, custodian, or member of the household.”
{¶ 9} Mother first argues that R.C.
{¶ 10} Mother argues that R.C.
{¶ 11} Upon consideration, this Court concludes that R.C.
{¶ 12} Mother next argues that R.C.
{¶ 13} Third, Mother argues that R.C.
{¶ 14} Clearly, an irrebutable presumption of dependency based solely on a past adjudication would be unconstitutional. See Stanley v. Illinois, (1972), 405 U.S. 645, 656. The statute at issue here, though, does not presume that where a parent has had one child adjudicated abused, neglected or dependent, another of the parent‘s children will inevitably be found to be in danger of abuse or neglect. Instead, the statute requires the existence of a causal relationship between past circumstances and present conditions, on the one hand, and resultant danger to the child, on the other. This connection serves to provide an appropriate nexus and protects the integrity of the procedure.
{¶ 15} R.C.
{¶ 16} Finally, Mother claims that the statute is unconstitutional as applied to her because T.P.-M. was never in her care and CSB did not clearly and convincingly establish an imminent risk of abuse or neglect to the child. As more fully addressed in the discussion of Mother‘s third assignment of error below, we conclude that the evidence did establish that T.P.-M. was in danger of abuse or neglect.
{¶ 17} Ohio courts have specifically addressed the question of prospectively protecting children when there is clear and convincing evidence of a real risk of harm to them. Newborn infants can be found dependent before they have ever been released into their parents’ custody. See, e.g., In re Bishop (1987), 36 Ohio App.2d 123, 124. The Twelfth District has indicated: “The state need not subject a child to a potentially detrimental environment where a court has made a prospective finding of dependency pursuant to R.C.
ASSIGNMENT OF ERROR II.
“THE TRIAL COURT ERRED IN FINDING THAT REVISED CODE SECTION
2151.41(D) DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSES OF THE U.S. AND OHIO CONSTITUTIONS.”
{¶ 18} In her second assignment of error, Mother argues that R.C.
{¶ 19} Equal protection claims arise when a state treats similarly situated people differently on an arbitrary basis. Conley v. Shearer (1992), 64 Ohio St.3d 284, 288-289. Stated differently, a law that treats all people under like circumstances identically will not give rise to an equal protection violation. Id. at 289. Mother has not identified any similarly situated individuals who have been treated differently from her. The statute treats all people within its ambit equally. The statute does not discriminate because there is no unequal treatment of similarly situated persons.
{¶ 20} The classification imposed by R.C.
{¶ 21} As to Mother‘s claim that the statute places too much focus on the history of the child‘s siblings, it should be emphasized that the statute does not rely solely on the prior adjudication. Rather, the trial court is directed to also consider the current conditions in the household. R.C.
{¶ 22} Mother‘s argument that the statute is overbroad is also without merit. Initially, it appears to this Court that the application of the statute is self-limiting by the requirement that the trial court must find the child to be currently in danger of being abused or neglected as a result of past circumstances and present conditions. In addition, a “statute will be invalidated as overbroad only when its overbreadth has been shown * * * to be substantial.” State v. Tooley, 114 Ohio St.3d 366, 376, 2007-Ohio-3698, at ¶ 30, citing New York v. Ferber (1982), 458 U.S. 747, 769. Mother has not made such a demonstration. Mother‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR III.
“THE TRIAL COURT‘S JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
“THE TRIAL [COURT] ERRED IN ITS INTERPRETATION OF R.C. §
2151.04(D) AND IN ITS APPLICATION OF THE STATUTE TO APPELLANT.”
{¶ 23} In her third and fourth assignments of error, Mother argues that the judgment of the trial court is unsupported by the evidence and also that the trial court erred in its application of R.C.
{¶ 24} Mother first contends that there is no evidence of “acts” by the parents, which formed the basis of the adjudications of siblings of T.P.-M, as required by R.C.
{¶ 25} Mother next argues that, assuming this Court finds the above evidence constitutes acts which formed the basis for the adjudication of the siblings of T.P.-M. as dependent and neglected, CSB failed to prove that there is a present danger of abuse or neglect to T.P.-M. as a result of the circumstances surrounding those acts and the other conditions in the household of the child.
{¶ 26} A review of the circumstances surrounding those acts and the other conditions in the household of the child is, therefore, appropriate. The circumstances surrounding the prior
{¶ 27} Subsequently, at the time of the birth of T.P.-M., caseworker Bernadette Jablonski and caseworker Jacquelyn Feaster asked to visit the current residence of the parents. The parents were staying at the home of Father‘s mother, Mrs. Greathouse, and her boyfriend, Johnny Barnett, at that time. Upon arriving, Ms. Jablonski asked Mother and Father to sign releases, so that the agency could assess the parents’ progress on their case plan goals from the prior case, but the parents declined. At that point, Father became somewhat defensive and angry. Ms. Jablonski testified that she could not assess parental progress on case plan goals in the prior case without their releases.
{¶ 28} Ms. Greathouse and Mr. Barnett were present at the time of the visit and they were asked to sign releases for background checks. Ms. Greathouse agreed, but Mr. Barnett refused. A public records check revealed that Mr. Barnett had a three-year-old criminal conviction. These residents were said to be uncooperative in confirming who else lived in the home.
{¶ 29} Both caseworkers testified that they smelled the odor of marijuana immediately upon entering the home. Based on that observation and the additional fact that both parents had a history of marijuana use, Ms. Jablonski asked all the adults in the home to agree to a drug screen. Mr. Barnett said absolutely not and Father became very upset and yelled and screamed at that point.
{¶ 30} The caseworkers were only permitted to see two rooms in the home, the living room and the parents’ bedroom. Those rooms were clean and not comparable to the deplorable conditions at the parents’ prior residence. The residents confirmed that Mother‘s father occasionally stayed in the basement, but the caseworkers were refused access to that area of the home. Ms. Jablonski testified that the parents had been residing in this home for six or seven months, but no home visits were scheduled there during the prior case because the parents had not made substantial progress on their case plans and also because Father did not believe his mother was an appropriate supervisor.
{¶ 31} Circumstances continuing from the prior case to the present one include concerns regarding housing, anger issues, and substance abuse. The trial court found that despite the parents completing much of the prior case plan objectives, T.P.-M was in danger of being abused or neglected due to the condition of the parents’ home, Father‘s inability to manage his anger, and the fact that drugs were being used in the home. As noted by the trial court, the real issue is not completion of case plan objectives, but whether T.P.-M. is in danger of being abused or neglected. The trial court concluded that there was clear and convincing evidence that T.P.-M. was in danger of being abused or neglected by her parents due to the circumstances surrounding the abuse, neglect or dependency of her siblings and the other conditions in her household. This Court concludes that the trial court did not err in so finding.
{¶ 32} Mother‘s third and fourth assignments of error are overruled.
ASSIGNMENT OF ERROR V.
“THE TRIAL COURT ERRED IN AWARDING CSB TEMPORARY CUSTODY OF THE MINOR CHILD.”
{¶ 33} In her fifth assignment of error, Mother argues that the trial court erred in awarding CSB temporary custody of T.P.-M. and contends that the child should have been placed in her custody under protective supervision instead.
{¶ 34} R.C.
{¶ 35} At the time of the dispositional hearing regarding T.P.-M., the parents had left the paternal grandmother‘s home and had been living in their own residence for approximately one month. CSB worker, Eileen Kostich, testified that the parents had been consistent in attending visitation and had bonded well with the child. Testimony was presented regarding the parents’ efforts to complete remaining case plan objectives from the prior case. Because of the delay in obtaining releases, there was some evidence of technical compliance with attendance at service programs, but there was a lack of evidence regarding the parents’ incorporation of skills they
{¶ 36} CSB service providers and the guardian ad litem focused their concerns on the issue of housing. Two service providers visited the home. Pat McLaughlin, the guardian ad litem, conducted an unannounced visit approximately ten days prior to the dispositional hearing. She described the living room as being cluttered, the kitchen as a “disaster,” and the bathroom as “totally messy.” The kitchen had food wrappers, pizza boxes, and all kinds of things stacked on counters and the floor. She described the bathroom as very messy, with clothes and wet towels on the floor. She said so much was piled on the floor that she could not see beneath to know whether the surface was clean or not. The crib was covered with clothes and other items. She described the home as “unsanitary,” and stated she would be concerned about an infant being placed in that situation.
{¶ 37} Eileen Kostich made an announced visit on the evening of the first day of the dispositional hearing. She found a much cleaner home. In general, there were no major concerns, though the family still needed some furniture and food. Pictures were taken and introduced into evidence at the hearing. The guardian ad litem admitted that the home was cleaned up considerably from her visit.
{¶ 38} The CSB caseworker and the guardian ad litem both recommended that T.P.-M. should be placed in the temporary custody of CSB. Both witnesses were concerned with the parents’ ability to maintain housing for a period of time and believed that before the child could be returned, the parents should demonstrate an ability to maintain clean, safe, and appropriate housing. CSB service provider Eileen Kostich explained that housing has been a long-standing
{¶ 39} Based on the parent‘s chronic inability to maintain safe housing, the extremely deplorable condition of the last residence they maintained together, the recent problem with their current residence, and the very brief period for which they properly maintained their current residence, we conclude that the trial court did not abuse its discretion in determining that it was in the best interest of T.P.-M. that she be placed in the temporary custody of CSB. Mother‘s fifth assignment of error is overruled.
III.
{¶ 40} Mother‘s five assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to Appellant.
SLABY, J. DICKINSON, J. CONCUR