In re J.M. , 2023 Ohio 1206 ( 2023 )

[Cite as In re J.M., 2023-Ohio-1206.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE J.M. C.A. Nos. 30311
A.M. 30312
A.C. 30313
30322
30323
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 21 08 0631
DN 21 08 0632
DN 21 09 0633
DECISION AND JOURNAL ENTRY
Dated: April 12, 2023
FLAGG LANZINGER, Judge.
{¶1} Appellants, J.C. (“Mother”) and D.C. (“Father”) appeal from a judgment of the
Summit County Court of Common Pleas, Juvenile Division, that adjudicated their minor children
dependent and placed them in the temporary custody of Summit County Children Services Board
(“CSB”). This Court affirms.
I.
{¶2} Mother is the biological mother of J.M., born January 8, 2014; A.M., born July 14,
2011; and A.C., born July 2, 2021. Father is the biological father of only J.M. and A.C. The father
of A.M. did not appeal from the trial court’s judgment.
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{¶3} On August 10, 2021, CSB filed a dependency, neglect, and abuse complaint
regarding each child. The complaints alleged that Mother was not properly supervising the
children, particularly on one night when Mother went to a casino shortly before A.C. was born;
that both parents had ongoing drug abuse and domestic violence problems; and that Mother lacked
stable housing. The facts alleged in the initial complaint included that Mother had initially agreed
to work with CSB on a voluntary safety plan, but had later revoked her consent to the voluntary
plan. Before she revoked her consent, however, Mother submitted one oral swab for drug testing,
which tested positive for methamphetamine and amphetamine.
{¶4} CSB also alleged that, while working on the voluntary case plan, Mother had agreed
that the maternal grandmother (“Grandmother”) would supervise Mother’s care of the children.
Grandmother moved into Mother’s home for a couple of days, but after CSB learned that Father
and his friends had smoked methamphetamine at the home and Mother was facing eviction, Mother
agreed to move into Grandmother’s home with the children.
{¶5} At the shelter care hearing, which Mother did not attend, the trial court ordered that
the children “shall not be removed from the home of [Grandmother.]” The following week, CSB
filed amended complaints to add allegations that, since before CSB filed its original complaint,
Mother had not been working with Grandmother to care for the children. Instead, the children
remained at Grandmother’s home, but Mother did not stay there, help to provide the children with
regular care or support, or even visit them regularly.
{¶6} The case proceeded to an adjudicatory hearing. Following the hearing, the
magistrate adjudicated the children dependent. After a dispositional hearing, the magistrate placed
the children in the temporary custody of CSB. The parents filed objections to both the adjudicatory
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and dispositional decisions. The trial court overruled their objections, adjudicated the children
dependent, and placed them in the temporary custody of CSB.
{¶7} Mother and Father separately appealed, and their appeals were later consolidated.
Mother raises two assignments of error and Father raises one.
I.
MOTHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND PLAIN
ERROR WHEN IT FOUND THE CHILDREN DEPENDENT AND PLACED
THEM INTO THE TEMPORARY CUSTODY OF [CSB] BECAUSE THE
TRIAL COURT’S DETERMINATION THAT THE CONDITIONS FOR R.C.
2151.04(B) AND (C) WERE MET WAS NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
FATHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY ADJUDICATING THE MINOR CHILDREN
AS DEPENDENT CHILDREN, AS THE ADJUDICATION WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶8} Through these assignments of error, both parents challenge the trial court’s
adjudication of their children. Although Mother’s stated assignment of error also challenges the
dispositional decision, she has not presented any argument about the disposition. Consequently,
this Court will confine its review to the argument she has raised: that the adjudicatory decision
was not supported by the evidence. See App.R. 16(A)(7); In re O.A., 9th Dist Summit Nos. 30449
and 30451, 2023-Ohio-791, ¶ 27. To the extent that the parents’ arguments about the adjudication
point to evidence that was presented at the dispositional hearing and afterward, this Court cannot
consider that evidence. Our review of the adjudicatory decision is necessarily limited to the
evidence admitted at the adjudicatory hearing. See Juv.R. 29; R.C. 2151.28.
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{¶9} From the adjudicatory hearing evidence, the trial court was required to determine
whether CSB established the adjudication of dependency by clear and convincing evidence. In re
H.P., 9th Dist. Summit Nos. 29973 and 29975, 2022-Ohio-778, ¶ 28, citing In re I.K.-W., 9th Dist.
Summit No. 29100, 2019-Ohio-2807, ¶ 17; R.C. 2151.35(A)(1); and Juv.R. 29(E)(4). Clear and
convincing evidence is that which will “produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” In re Adoption of Holcomb, 18 Ohio St.3d
361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶10} When reviewing whether an adjudication of dependency is against the manifest
weight of the evidence:
this court [reviews] the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that the [adjudication] must be reversed[.]
{¶11} In re G.G., 9th Dist. Summit No. 29952, 2022-Ohio-1654, ¶ 19. The trial court
adjudicated these children dependent under R.C. 2151.04(B) and (C), which define a dependent
child as one:
(B) Who lacks adequate parental care by reason of the mental or physical condition
of the child’s parents, guardian, or custodian; [or]
(C) Whose condition or environment is such as to warrant the state, in the interests
of the child, in assuming the child’s guardianship[.]
A parent’s impaired mental condition may be demonstrated through the parent’s erratic or harmful
behaviors, including abusing drugs or continuing in a domestically violent relationship, despite
acknowledging that those activities pose a risk to their children. See, e.g., In re W.M., 6th Dist.
Lucas No. L-22-1016, 2022-Ohio-1978, ¶ 37; Disciplinary Counsel v. Wickerham, 132 Ohio St.3d
205, 2012-Ohio-2580, ¶ 9 (explicitly recognizing that ongoing drug abuse can impair one’s mental
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condition). To establish dependency under R.C. 2151.04(C), CSB “was required to present
evidence of conditions or environmental elements that were adverse to the normal development of
the children.” In re A.C., 9th Dist. Wayne Nos. 03CA0053, 03CA0054, and 03CA0055, 2004-
Ohio-3248, ¶ 14, citing In re Burrell, 58 Ohio St.2d 37, 39 (1979).
{¶12} This Court begins by noting that, at the adjudicatory hearing, CSB premised some
of its case on the fact that Mother had revoked her initial consent to work on a safety plan. To
begin with, little evidence about the content of the safety plan or the facts surrounding its execution
or revocation was admitted at the hearing. Moreover, a safety plan is a voluntary agreement
between the parent and the agency, typically executed before the parent is represented by counsel
and before the agency has filed a case in the juvenile court. See Ohio Adm.Code 5101:2-1-
01(B)(165), (210), and (286). A safety plan does not have the legal force of a court-ordered case
plan. See id.; R.C. 2151.412(F)(1). Therefore, evidence about Mother revoking her initial consent
to the safety plan and refusing to comply with its terms will not be considered in this Court’s
review of the evidence supporting the adjudication.
{¶13} Nevertheless, CSB presented other evidence about Mother’s conduct while she was
cooperating with CSB under the safety plan that is relevant to this adjudication. Specifically,
Mother submitted one oral drug swab, which tested positive for methamphetamine and
amphetamine; she and Father made voluntary admissions to the caseworker; and Mother agreed to
move into Grandmother’s home with the children to secure stable housing and additional
supervision of the children. This evidence, along with other evidence admitted at the hearing,
pertains to three separate allegations in the complaint: the parents had an ongoing history of illegal
drug use; they had a continuing pattern of domestic violence in their relationship; and Mother had
failed to provide adequate care for the children. This Court will address each allegation separately.
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Drug Use
{¶14} The parents admitted to the caseworker that they had used drugs together in the
past, but each denied recent drug use. Mother and Father admitted that their children had been
exposed to recent drug use, however, because each told the caseworker that the other parent had a
serious substance abuse problem.
{¶15} Before this case began, CSB received a referral that Father and other men had been
smoking drugs in the family’s garage. Mother admitted to the caseworker that Father had brought
methamphetamine into the home and that he and some coworkers had smoked methamphetamine
there “using some kind of smoking device.” After Mother’s admission that the children had
potentially been exposed to methamphetamine use at the home, Mother agreed to move with the
children to the home of Grandmother. Mother also informed the caseworker that she was facing
potential eviction from the home.
{¶16} Father admitted that the children had been exposed to ongoing drug use by Mother.
He told the caseworker that Mother had been abusing multiple prescription medications and that,
when she was misusing her medications, it was evident in her behavior because she “behaved
erratically.”
{¶17} Based on its concerns that the parents were abusing drugs, CSB asked them to
submit to a drug test. Mother agreed; Father did not. Before revoking her consent to the safety
plan, Mother allowed the caseworker to swab her mouth for drug testing. The expert who
evaluated the oral sample testified that, because Mother’s sample initially tested positive for
certain drugs (amphetamine and methamphetamine), he retested it using a more precise instrument,
a liquid chromatography tandem mass spectrometer, which “completely eliminate[d]” the
possibility of a false positive test result. Mother’s sample ultimately tested positive for
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amphetamine at 30 times the level required for a positive screen and positive for methamphetamine
at 20 times the level required for a positive screen.
{¶18} Mother offered no reasonable explanation to dispute the evidence that she had
abused illegal drugs. Although Mother claimed to have a prescription for Adderall, which might
have justified the positive result for amphetamine, she never offered proof of a prescription.
Moreover, when the caseworker informed Mother about her positive drug screen, Mother insisted
that she had not been taking Adderall or any other drugs at that time because she had recently
given birth to A.C. Mother’s explanation for her positive methamphetamine screen was that Father
must have slipped methamphetamine into her drink when they met for coffee one day. The
magistrate did not find Mother’s explanation to be credible.
{¶19} Given all the evidence of illegal drug use by the parents, the trial court had
substantial evidence to support its conclusion that each parent was abusing and bringing dangerous
drugs into the home, which posed a risk to the children and impaired the parents’ ability to provide
for their basic needs.
Domestic Violence
{¶20} The caseworker testified that CSB was involved with this family in 2015 and 2016
because of domestic violence in the home. No further evidence about CSB’s prior involvement
was offered into evidence.
{¶21} Shortly before this case began, Mother admitted to the caseworker that domestic
violence had continued to plague her relationship with Father. When Mother was seven months
pregnant with A.C., Father punched her in the abdomen, leading to a criminal domestic violence
charge against Father. During the criminal proceedings, Mother obtained a temporary protection
order, which prohibited Father from having any contact with her. Mother told the caseworker that
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she needed to end the cycle of violence with Father because she did not want her children to
continue to be exposed to the violence.
{¶22} Although there was no evidence of further violent incidents between Father and
Mother, Mother admitted to the caseworker that she had continued to have in-person contact with
Father after obtaining the protection order. One incident was when he allegedly slipped
methamphetamine into her coffee. Mother admitted that she also met Father at least once to be
intimate. Therefore, there was undisputed evidence that Mother recognized that domestic violence
in her relationship with Father posed a threat to the safety of the children, but she was not following
through with steps to end the cycle of violence and protect her children.
Care of the Children
{¶23} Regarding Mother’s care and supervision of the children, the parties sharply
disputed whether CSB proved, by clear and convincing evidence, that Mother left her two oldest
children without adequate supervision one night shortly before A.C. was born. Mother admittedly
left the children to go to a nearby casino that night, but she initially told CSB that she had left the
children in the care of a 14-year-old daughter of a friend. Mother later told the caseworker that
her friend drove her to the casino and returned to her home to watch the children. CSB emphasized
that her explanations were inconsistent, but it did not present any evidence to establish that Mother
had not left the children under the supervision of an adult friend and/or her 14-year-old daughter.
Consequently, as to that single incident, the trial court did not have clear and convincing evidence
to establish that Mother left the children alone or unsupervised.
{¶24} Although that single incident may not have been proven, CSB also based the
adjudication on other allegations about Mother failing to supervise or meet the basic needs of her
children. The evidence was not disputed that, shortly after Mother and the children moved into
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Grandmother's home, Mother stopped cooperating with CSB and Grandmother. Mother had no
legal obligation to comply with the reunification services offered under the voluntary safety plan,
but she also walked away from her children when she left them in Grandmother’s home. Mother
made the choice not to live with, visit, or provide care for her three young children, one of whom
was a newborn infant. Mother abdicated her legal responsibility to provide care for her children
by leaving them with Grandmother, without any formal arrangement for Grandmother to provide
for their care.
{¶25} When CSB filed the complaints in this case, J.M., A.M., and A.C. had been left
without a legal parent figure to care for them. Mother had not simply left them for an overnight
with Grandmother, as she argues on appeal, but had left them there indefinitely. Because Mother
had not granted Grandmother any formal authority to care for her children and the juvenile court
was not yet involved in this case, CSB necessarily filed complaints to assume guardianship of
these children. The trial court had clear and convincing evidence before it to conclude that Mother
was not providing supervision or adequate parental care to her children.
{¶26} Given the evidence detailed above, the trial court did not lose its way in
adjudicating the children dependent under R.C. 2151.04(B) and (C). See In re G.G., 2022-Ohio-
1654, at ¶ 19. Father’s sole assignment of error and Mother’s first assignment of error are
overruled.
MOTHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT FOUND THE CHILDREN DEPENDENT AND GRANTED [CSB]
TEMPORARY CUSTODY OF THE CHILDREN BECAUSE THE TRIAL
COURT'S DECISION WAS PARTIALLY BASED ON TESTIMONY AND
EVIDENCE THAT VIOLATED MOTHER’S CONSTITUTIONAL RIGHT TO
RAISE HER CHILDREN, AND HER CONSTITUTIONAL PRIVACY RIGHTS.
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{¶27} Mother’s second assignment of error reiterates many of the same arguments about
evidence presented at the adjudicatory hearing that this Court already addressed in the disposition
of her first assignment or error. Again, Mother does not develop an argument, so this Court will
not review whether the trial court’s dispositional order was supported by the evidence. See App.R.
16(A)(7); In re O.A., 2023-Ohio-791, at ¶ 27.
{¶28} Mother does challenge the requirements of the case plan that the trial court adopted
in its dispositional decision. “[T]his Court has repeatedly held that case plan terms * * * do not
affect the substantial rights of the parties because those issues can be appealed after the final
disposition of the child.” In re T.P., 9th Dist. Summit No. 27539, 2015-Ohio-3448, ¶ 28, citing In
re J.G., 9th Dist. Wayne No. 12CA0037, 2013-Ohio-417, ¶ 40; and In re A.P., 196 Ohio App.3d
500, 2011-Ohio-5998, ¶ 15 (9th Dist.). Consequently, because the requirements of the case plan
are not currently final and appealable, this Court lacks jurisdiction to address Mother’s arguments
about the requirements of the case plan.
{¶29} As this Court explained in In re T.P. at ¶ 26:
Unlike the adjudication, which is never re-litigated during the proceedings, the case
plan is subject to continual change throughout the case, as it is subject to mandatory
periodic review and may be changed at any time during the case by the agency or
the court that issued the dispositional order. See R.C. 2151.41[2](A); R.C.
2151.412(F)(2). In fact, the case plan may continue to change during an appeal
from the adjudication and initial disposition.
{¶30} Because this Court lacks jurisdiction to review Mother’s arguments about the
requirements of the case plan, they will not be addressed. Mother has failed to demonstrate error
regarding the appealable aspects of the adjudicatory or dispositional judgment, so the remainder
of her second assignment of error is overruled.
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III.
{¶31} Mother’s assignments of error are overruled, insofar as this Court had jurisdiction
to review their merits. The judgment of the Summit County Court of Common Pleas, Juvenile
Division, is affirmed.
Judgment affirmed.
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(C). 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.
JILL FLAGG LANZINGER
FOR THE COURT
SUTTON, P. J.
HENSAL, J.
CONCUR.
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APPEARANCES:
JAYSEN W. MERCER, Attorney at Law, for Appellant.
ALAN M. MEDVICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
HOLLY FARAH, Guardian ad Litem.