STATE OF OHIO v. MARY EMERY
CASE NO. CA2014-09-062
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
4/20/2015
[Cite as State v. Emery, 2015-Ohio-1487.]
HENDRICKSON, J.
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2014CRB02471
R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Mary Emery, appeals from her sentence in the Clermont County Municipal Court for domestic violence. For the reasons discussed below, we affirm.
{¶ 2} On May 29, 2014, appellant was arrested and charged by complaint with domestic violence in violation of
{¶ 3} A motion for a temporary protection order was filed the same day as the complaint. However, the following day, H.E. sought to withdraw the motion for a temporary protection order, stating that she had “no fear” that appellant would cause her harm. Appellant was released on bond, with the condition that she have no uninvited contact with her daughter. H.E. went to live with her grandparents and Children‘s Protective Services (CPS) instituted a security plan for H.E.
{¶ 4} On August 6, 2014, appellant entered a no contest plea to the amended charge of domestic violence in violation of
On 5-28-14 [appellant] struck her daughter [H.E.] in the face several times and threatened to kill her. On a separate date there is an audio recording where the [appellant] can be heard striking [H.E.] and telling her she is going to “beat the shit out of her and fucking kill her.”
{¶ 5} The trial court accepted appellant‘s no contest plea and sentenced her to 30 days in jail, with 28 days suspended and credit for two days served. The court placed appellant on community control for a period of two years and imposed the following relevant conditions: (1) appellant shall not violate any laws of the United States, including federal, state, county, and city, (2) appellant shall complete counseling as directed by Life Point Solutions, and (3) appellant shall have no uninvited contact with H.E. other than such contact expressly authorized by CPS or the juvenile court.
{¶ 6} At the time of sentencing, appellant claimed that the security plan instituted by CPS had been discontinued, and she objected to the condition that she have no uninvited contact with H.E. on the basis that the condition interfered with her parental rights. In response, the trial court advised appellant as follows:
THE COURT: And you are to have no uninvited contact with [H.E.] other than such contact which is expressly authorized by Children‘s Protective Services or juvenile court. It is not my desire in any way, shape or form [sic.], I don‘t have jurisdiction to interfere with your parental rights with [H.E.]. But juvenile . . . you told me there‘s a protection plan in place. Okay? I don‘t know the details of that. If Children‘s Protective Services indicates that you can have contact with [H.E.] then that‘s . . . I‘m authorizing that. If juvenile court says you can have contact with [H.E.], I‘m authorizing that. Those are the entities that have jurisdiction from a parental right type of standpoint. But I think they need to be making that decision rather than me. Now again it‘s no uninvited contact. If you‘re talking with [H.E.] on the phone, she‘s agreeable with that, she agrees to meet with you then nobody has to approve that contact if she says it‘s okay. But if there are issues with you communicating or having contact with [H.E.], juvenile court and Children‘s Protective Services is the entity [sic] that can authorize you to have uninvited contact with her.
* * *
[I]f you feel that you are being deprived of the opportunity to see your daughter and you believe that your parental rights are being infringed upon, then I‘m encouraging you and advising you to talk to juvenile court to see what you need to do to exercise that. I‘m in a difficult situation. She‘s the victim of a criminal offense here, an offense of violence. I‘m going to err on the side of caution in terms of protecting her. But I‘m indicating I‘m cognizant of the fact that this is a parental type situation. And again, I don‘t know what the status, the specific status of Children‘s Protective Services is. And it may be something that they can clarify very simply for you. But my order is it‘s no uninvited contact unless it‘s approved by Children‘s Protective Services or juvenile court.
{¶ 7} Appellant timely appealed from the imposition of her sentence, raising three assignments of error in which she challenges the no-uninvited-contact condition.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT VIOLATED [APPELLANT‘S] CONSTITUTIONAL RIGHTS UNDER THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.
{¶ 10} In her first assignment of error, appellant argues the trial court‘s condition that she have no uninvited contact with her daughter resulted in a de facto termination of her
{¶ 11}
{¶ 12} “The Fourteenth Amendment provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.‘” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054 (2000). The United States Supreme Court has “long recognized that the Amendment‘s Due Process Clause * * * ‘guarantees more than fair process.‘” Id., quoting Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258 (1997). “The Clause also includes a substantive component that ‘provides heightened protection against government inference with certain fundamental rights and liberty interests.‘” Id., quoting Glucksberg at 720.
{¶ 13} Where a party argues that a statute or regulation impinges upon a fundamental constitutional right, courts must apply a strict-scrutiny standard of review. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, ¶ 39. Under the strict-scrutiny standard, a statute or regulation that infringes on a fundamental right is unconstitutional unless the statute or regulation is narrowly tailored to promote a compelling governmental interest. Id., citing Chavez v. Martinez, 538 U.S. 760, 775, 123 S.Ct. 1994 (2003).
{¶ 14} “[I]t cannot * * * be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel, 530 U.S. at 66; Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982). As such, a strict-scrutiny standard of review applies. Harrold at ¶ 39. The issue before us, then, is whether the trial court‘s implementation of the no-uninvited-contact condition of appellant‘s community control, as authorized by
{¶ 15} The state‘s interest in protecting the safety and welfare of children has long been recognized as a compelling governmental interest. See Santosky at 766; Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438 (1944); In re McCrary, 75 Ohio App.3d 601, 608 (12th Dist.1991). Parents’ constitutionally protected interest in their family integrity “is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is necessary as against the parents themselves.” Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir.2006). In this case, we find that the application of the no-uninvited-contact condition, in conjunction with the trial court‘s directive that contact may be authorized by CPS or the juvenile court, was narrowly tailored to promote the compelling governmental interest of protecting the safety and welfare of H.E., a child-victim of domestic violence.
{¶ 16} Appellant contends that the no-uninvited-contact condition is not narrowly tailored because it “turn[s] the parental relationship on its head” by preventing “all contact between [appellant] and her daughter unless [H.E.] approves it first.” This does not
{¶ 17} Appellant asserts that CPS no longer has an open case regarding appellant and H.E., and that neither CPS nor the juvenile court have jurisdiction over the matter. From the record, it is apparent that CPS became involved in the matter once the allegations of appellant striking her daughter came to light. The trial court recognized that CPS had instituted a security plan for H.E. Although appellant claimed that the security plan had been terminated by the time of sentencing, the trial court indicated that it was unaware of the “specific status” of CPS‘s security plan. The court believed that CPS was still actively involved in appellant‘s case and instructed appellant to contact CPS if she felt that she was being deprived of the opportunity to have contact with her daughter. As the record is devoid of evidence demonstrating that the security plan had been terminated or that CPS‘s involvement had concluded, we find no error in the court‘s imposition of the no-uninvited-contact condition. Furthermore, as a juvenile court has jurisdiction over certain specified matters relating to children, including custody, visitation, and other parenting issues, we find
{¶ 18} Accordingly, we find that the no-uninvited-contact condition was specifically adapted to the exigencies of this situation and narrowly tailored to serve the state‘s interest in protecting the welfare and safety of H.E. while observing appellant‘s fundamental right to the care, custody, and control of her child. The imposition of the no-uninvited-contact provision was, therefore, constitutional as applied in this case.
{¶ 19} Appellant‘s first assignment of error is overruled.
{¶ 20} Assignment of Error No. 2:
{¶ 21} THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING, AS A CONDITION OF COMMUNITY CONTROL, THAT [APPELLANT] HAVE NO UNINVITED CONTACT WITH HER DAUGHTER.
{¶ 22} In her second assignment of error, appellant argues the trial court abused its discretion in imposing the no-uninvited-contact condition of her community control. Appellant argues that the condition has no rehabilitating component and is not related to her criminal conduct.
{¶ 23}
{¶ 24} The Ohio Supreme Court has set forth a test to determine whether a community-control condition is proper. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888. Under the Talty test, courts must consider whether the condition “(1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was
{¶ 25} Applying Talty to the facts of the present case, we find that the trial court did not abuse its discretion by imposing the no-uninvited-contact condition. The no-uninvited-contact condition is reasonably related to appellant‘s rehabilitation and bears some relation to the crime, as it restricts appellant‘s access to her daughter, the victim, for two years while appellant undergoes counseling at Life Point Solutions and learns how to better interact and discipline her daughter. Moreover, the condition is reasonably related to appellant‘s future criminality, as it helps to maintain some degree of control over appellant‘s interactions with her daughter and helps protect H.E. from future physical abuse at the hands of her mother. Contrary to appellant‘s arguments, the no-uninvited-contact condition is not overly broad as it is a temporary order that does not terminate appellant‘s parental rights or prohibit her from having “all” interaction with her daughter. Rather, the no-uninvited-contact condition serves the statutory ends of community control by rehabilitating appellant, ensuring her good behavior, and providing justice and protection to H.E. while simultaneously allowing appellant to have contact with H.E. whenever H.E. invites contact or when CPS or the juvenile court authorizes contact.
{¶ 26} Community-control conditions that restrict parental rights, including those that prohibit contact where the defendant‘s children were the victims of the crime for which the
{¶ 27} Applying the test set forth in Talty, the First District Court of Appeals rejected McClure‘s argument. The First District found that the no-contact condition of McClure‘s community control was related to the crimes for which she was convicted and protected the children from future harm. Id. at ¶ 12. In upholding the no-contact condition, the First District specifically noted that the “community-control condition is a temporary order that does not permanently terminate [McClure‘s] parental rights or cause any change in the legal custody of either child.” Id.
{¶ 28} Similarly, in Sommerfeld, the Eighth District Court of Appeals upheld a community-control condition which prohibited a father from being a custodial parent for five years. 2004-Ohio-6101 at ¶ 40-45. Over the course of a weekend, Sommerfeld had paddled his three-year-old daughter a number of times when he felt she was misbehaving, often times with a piece of wooden floorboard. Id. at ¶ 4-12. The paddling left the three-year-old with
{¶ 29} The Eighth District upheld Sommerfeld‘s sentence, finding that “[p]recluding [Sommerfeld] for a time from taking on the responsibility of child custodial care is both related and germane to the crime of child endangering.” Id. at ¶ 44. The court further noted that the purpose behind the prohibition was to “ensure [Sommerfeld] had the time to ‘rehabilitate’ his parental behavior over the period of community control.” Id. Applying the test set forth in Talty, the Eighth District concluded that the trial court acted within its discretion in choosing to limit Sommerfeld‘s “custodial authority over any potential victims of his physically injurious parental style.” Id. at ¶ 45.
{¶ 30} Like the conditions set forth in McClure and Sommerfeld, the no-uninvited-contact condition of appellant‘s community control is related to the crime for which she was convicted and serves the purpose of protecting H.E. from future domestic violence incidents while appellant is being rehabilitated. We therefore conclude that the trial court did not abuse its discretion in imposing the no-uninvited-contact condition of appellant‘s community control.
{¶ 31} Appellant‘s second assignment of error is overruled.
{¶ 32} Assignment of Error No. 3:
{¶ 33} THE TRIAL COURT DID NOT HAVE JURISDICTION TO RENDER AN ORDER OF THIS NATURE AS IT WAS TANTAMOUNT TO A CUSTODY DETERMINATION WHICH
{¶ 34} In her third assignment of error, appellant argues that the municipal court lacked jurisdiction to impose the no-uninvited-contact condition of her community control. Appellant contends that the condition was “tantamount to a custody determination,” over which the juvenile court has exclusive jurisdiction.
{¶ 35} We find no merit to appellant‘s argument. As we recognized above, “[c]ourts have upheld conditions that restrict parental rights, including those that allow no contact, when the defendant‘s children were the victims of the crime for which the defendant was convicted.” McClure, 2005-Ohio-777 at ¶ 13, citing Sommerfeld, 2004-Ohio-6101 at ¶ 40-45. While
{¶ 36} Accordingly, we conclude that the trial court acted within its jurisdiction in imposing the condition that appellant have no uninvited contact with her daughter, except as authorized by CPS or the juvenile court, as a result of her domestic violence conviction.
{¶ 37} Appellant‘s third assignment of error is overruled.
M. POWELL, P.J., and S. POWELL, J., concur.