In re C.T. , 2018 Ohio 3823 ( 2018 )

[Cite as In re C.T., 2018-Ohio-3823.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
In re C.T. Court of Appeals No. S-18-005
Trial Court No. 21730237
DECISION AND JUDGMENT
Decided: September 21, 2018
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Sarah A. Nation, for appellant.
Dean E. Ross, for appellee.
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MAYLE, P.J.
{¶ 1} Appellant, B.F. (“mother”), appeals the January 31, 2018 judgment of the
Sandusky County Court of Common Pleas, Juvenile Division, that adjudicated her child,
C.T. (“child”), neglected and dependent, awarded temporary custody of child to A.F.
(“aunt”), child’s maternal aunt, and granted appellee, Sandusky County Job and Family
Services (“JFS”), protective supervision over child.1 For the following reasons, we
affirm.
I. Background and Facts
{¶ 2} On September 8, 2017, mother overdosed on heroin while at her home. JFS
received a report about mother’s overdose and initiated an investigation even though
child was not home when mother overdosed. Two JFS investigators interviewed mother
after her discharge from the hospital that day. Following that interview, mother signed a
safety plan that placed child with aunt.
{¶ 3} On November 2, 2017, JFS filed a complaint alleging that child was
neglected pursuant to R.C. 2151.03(A)(2) and (6) and dependent pursuant to R.C.
2151.04(C). JFS based the allegations on mother’s overdose, her subsequent drug use,
and her refusal to provide JFS with releases that would allow the agency to discuss her
medicines with her doctors and follow the progress of her drug and alcohol counseling.
{¶ 4} On December 1, 2017, the trial court held the initial hearing on the
complaint. JFS and mother stipulated to the reasons that the agency removed child from
the home and agreed that JFS had made reasonable efforts to prevent the removal of child
from the home. Mother also consented to a finding of probable cause that the removal of
child from the home should continue.
1
Child’s father is not a party to this case.
2.
{¶ 5} The adjudicatory hearing was scheduled for January 2, 2018. At the hearing,
mother moved to have JFS’s attorney recuse herself; JFS’s attorney agreed to the recusal,
and the trial court granted a continuance to allow JFS to prepare another attorney from
the agency to handle the case. The court also addressed a discovery issue and ordered the
parties to provide all discovery and file any motions by January 9, 2018. Prior to
adjourning, the trial court addressed an earlier representation by mother’s attorney that
mother might be willing to combine the adjudicatory and dispositional hearings. After
consulting with mother, her attorney indicated that mother’s preference was “to combine
the Adjudication and the Disposition, put them together * * *.” None of the other parties
objected to combining the hearings. The court then stated that it would “grant mother’s
request to combine—to waive any notices and combine the Adjudication and Disposition
* * *.” The trial court also stated in its judgment entry on the January 2 hearing that the
adjudicatory and dispositional hearings would be combined “as allowed by ORC
§2151.353 [sic].” In addition to the judgment entry, the court sent a notice of “Combined
Adjudicatory and Dispositional Hearing” dated January 2, 2018, to all parties and their
attorneys.
{¶ 6} On January 29, 2018, the trial court held the combined adjudicatory and
dispositional hearings. Prior to hearing testimony, the court addressed a motion that
child’s maternal grandmother, P.B.-F. (“grandmother”), filed on January 23, 2018, asking
to “put [her] back on case.” The gist of grandmother’s motion was that she wanted
visitation with and custody of child. The court added grandmother as a party to the case
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over the agency’s and the guardian ad litem’s objections. Notably, mother did not object
to grandmother being made a party and participating in the case. Her attorney
specifically stated that “[w]e do not object to [grandmother] being a party to this case.”
Grandmother, who appeared pro se, asked questions of the witnesses and participated in
the proceedings along with the other parties.
{¶ 7} During the adjudicatory hearing, JFS, mother, and grandmother each
presented witnesses. The following facts were developed at the hearing.
{¶ 8} On the morning of September 8, 2018, mother overdosed on heroin at her
home. Mother believed that the drug she was snorting was fentanyl, but later learned that
the fentanyl was laced with heroin. She also said that she received eight doses of Narcan
to revive her and save her life.
{¶ 9} JFS received a referral regarding mother’s overdose even though child was
not at home at the time. Mother works a midnight shift, so child was at a babysitter’s
home that morning. Mother left child with the babysitter whenever she worked and
would usually pick up child in the morning and take him to school. One of the police
officers who responded to mother’s house contacted the babysitter, who told the officer
that she would take child to school and could keep child longer, if necessary. JFS
contacted aunt, who agreed to pick up child from school and allow him to reside with her
temporarily. Although mother was unable to make arrangements for child, she said that
child “would have gotten taken care of somehow or another,” regardless of JFS
involvement on September 8.
4.
{¶ 10} Two JFS investigators, Samantha Reamer and Halle Rice, spoke to mother
after her release from the hospital on September 8. They spoke to mother the same day
as her overdose because the agency considered the situation emergent and needed to take
immediate action. Mother was lethargic and had trouble concentrating, but Reamer
believed that mother understood what was happening. Mother also read and agreed to
sign a safety plan placing child with aunt and requiring mother’s visits with child to be
supervised. Reamer testified that the safety plan was put into place because of “drug use
in the home.” Mother claimed that she was unaware of the full ramifications of signing
the safety plan and that she only signed it because the investigators threatened to put
child in foster care if she did not.
{¶ 11} To facilitate reunification with child, mother agreed to seek alcohol and
drug treatment services, submit to drug screens, and work with a case manager at
Treatment Alternatives to Street Crime (“TASC”). Mother would not, however, sign
releases of information to allow JFS to contact her providers for updates on her progress.
Mother provided a release to TASC that allowed it to provide information to JFS, so JFS
received mother’s drug test results. JFS could not, however, contact TASC to discuss the
results because mother would not sign a release allowing JFS to speak to TASC. Mother
completed a drug and alcohol assessment and attended eight counseling sessions, which
she finished the week before the hearings.
{¶ 12} Despite completing drug and alcohol counseling, mother’s drugs screens
were consistently positive for oxycodone, amphetamine, and benzodiazepine.
5.
Additionally, mother tested positive for cocaine twice—the second time only nine days
before the hearings—and alcohol once.
{¶ 13} According to Cassidy Guzman, mother’s case manager at TASC, the list of
prescription medicines that mother provided to Guzman included medicines that could
explain the positive results for oxycodone, amphetamine, and benzodiazepine. Some of
the prescriptions were outdated and mother refused to sign releases of information to
allow Guzman to confirm all of the prescriptions. Guzman was able to speak to two of
mother’s doctors, however; one stopped prescribing an amphetamine after learning of
mother’s overdose and one told Guzman that mother tested positive for cocaine while she
was a patient, so mother should not be prescribed any narcotics, including oxycodone.
Guzman also said that the amounts of drugs in mother’s urine—particularly
amphetamine—were elevated, leading Guzman to conclude that mother was abusing her
prescription medicines. Even though JFS did not know exactly what medicines mother
was prescribed, Reamer also concluded based on the drug test results that mother was
abusing her prescription drugs. Mother denied abusing her medicines. She said that she
was treating with new doctors, receiving her prescriptions from them, and taking her
medicine as prescribed.
{¶ 14} On October 4, 2017, JFS held a family team meeting to address a conflict
that had arisen between mother and aunt. Meagan Myers, a supervisor at JFS, was at the
meeting. She testified that mother suggested grandmother as an alternative placement for
child, but the workers at the meeting brought up the agency’s concerns with
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grandmother’s alcohol use. Grandmother then became upset, began yelling, said “fuck
all of you,” told mother that she could “find somewhere else for [child] to go,” and left
the agency. After this, Myers called aunt, who agreed to keep child as long as visits were
no longer held at her home.
{¶ 15} Shortly after grandmother left JFS, JFS received a call from child’s school
because grandmother was at the school demanding to see child and “causing a big scene.”
JFS sent mother and a caseworker to the school to pick up child and bring him back to the
agency to wait for aunt to take him home.
{¶ 16} Between the time grandmother left and the school called, mother twice
“began to nod off” while speaking to Myers and another JFS worker. Mother denied
having trouble staying awake. At the hearing, she claimed that she was “in shock”
because she needed to find a new placement for child. Myers suggested during the
meeting that mother go to in-patient drug treatment, which mother refused, claiming that
she was not a drug addict.
{¶ 17} Following the October 4 meeting, mother briefly had supervised visits with
child at Village House. On October 24, 2017, Sue Fuller, the executive director of
Village House, emailed Myers about mother’s visits. In her email, Fuller said that
mother’s “behavior tonight raised some concern’s [sic] which prompted me to ask [aunt]
if she would be willing to allow me to make a copy of the safety plan to hopefully gain a
better insight to the bigger picture.” Fuller sent the email to let Myers know that Fuller
changed the level of supervision for mother’s visits based on the requirement in the safety
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plan that mother’s visits be observed by “direct eye contact.” Mother would not sign a
release of information to allow Village House to provide JFS with information about her
visits, however, so JFS was not able to learn the specifics of Fuller’s concerns. Because
it could not find out the details of the incident, JFS chose to move mother’s visits to the
agency.
{¶ 18} According to Fuller, during the October 24 visit mother “seemed to kind of
detach a little bit from the visitation, lose concentration and somewhat just become
distracted almost as if—as if she may have been nodding off * * *.” She also said that
mother would reengage with child when he talked to her. Fuller checked on mother
because mother had mentioned at her orientation that she had some medical issues.
Fuller asked mother “if she was okay, and she said that she was fine, she’d just had a
rather challenging day and had just been running all day * * *.” Fuller got mother a drink
and snack, after which mother seemed to improve, although mother became distracted on
“another occasion or two during the visit * * *.” Mother also testified that she was not
feeling well that evening because “my sugar went low and my Potassium,” but that she
was fine after having a piece of candy and some juice.
{¶ 19} Mother said that the visits at JFS were going “terrible.” She complained
that JFS required her to be at the agency 45 minutes before her scheduled visit time,
agency workers would “badger” her while she was there, and she did not get her full
visitation time with child. She claimed that the agency’s restrictions on her visits were
the result of her failure to attend the agency’s Christmas party. She said that she was out
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of town at the time, and that she had received a call from someone telling her that aunt
and child were also out of town and would not be at the party. Mother attempted to
confirm with someone at the agency that child would not be at the party, but no one
called her back, so she did not attend.
{¶ 20} In addition to the current case, JFS had prior involvement with mother and
child. Reamer testified that the agency substantiated a domestic violence referral in May
2010 after father physically assaulted mother. This resulted in a no-contact order
between child and father (who was in prison at the time of the hearings). In May 2017,
the agency opened another investigation due to concerns that mother was using heroin,
had left child outside alone, and had nodded off while driving, nearly causing an
accident. The investigation did not result in a disposition because it was an alternative
response investigation. JFS closed the investigation because mother obtained an attorney
and then told JFS that it did not need to be involved with her because she had an attorney.
{¶ 21} On cross-examination, mother testified to an incident that happened shortly
before the hearing where she blacked out while getting gas. She said that she was not
using any drugs or alcohol at the time, and told the police officer who responded to the
gas station that she has narcolepsy. She said that she still drives and that she has been
cleared by her doctors to do so.
{¶ 22} Mother’s refusal to sign releases of information was discussed extensively
at the adjudicatory hearing. Mother testified that she initially signed releases to allow
JFS to speak to her doctors, but that JFS only made one phone call after receiving the
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releases. Based on mother’s perception of her treatment by JFS, mother said that she
would not provide any other requested releases until Reamer, Rice, and Myers were no
longer working on her case. Mother testified on direct that she signed the releases
requested by the GAL and brought the releases requested by TASC to court that day. On
cross-examination, however, mother testified that she would not provide TASC with the
requested releases until Reamer, Rice, and Myers were off the case.
{¶ 23} Based on her investigation and her knowledge of the case, Reamer testified
that mother had “not really” been cooperative with JFS’s investigation. Reamer
concluded that child lacked adequate parental care because of mother’s faults or habits,
child’s environment was such that JFS’s continued involvement with the family was
necessary, and staying with aunt was in child’s best interest.
{¶ 24} Following the presentation of the testimony and evidence, the court
recessed to deliberate about the adjudication of JFS’s neglect and dependency complaint.
The court found that child was neglected because he lacked adequate parental care due to
the faults or habits of mother and was dependent because his condition or environment
was such that it warranted the state assuming guardianship of child in the interest of
child.
{¶ 25} The court based its findings on mother overdosing and requiring lifesaving
measures on September 8, 2017, which left her unable to ensure that child went to school
that day or that he would be cared for after school. The court also found that mother was
given the opportunity to work a safety plan to address her drug use, but had continued to
10.
test positive for drugs—including cocaine—and was unable to adequately explain the
positive drug screens by providing current prescription information. Further, mother
refused to acknowledge that she has a substance use problem. The court also noted that
mother had not cooperated with JFS in getting treatment or allowing JFS to follow her
treatment progress. Additionally, the court noted that mother had nodded off at JFS,
Village House, and TASC, and while driving. Despite that, mother indicated that she
drove child and intended to continue driving child.
{¶ 26} The court then proceeded to the dispositional hearing. During the hearing,
JFS, mother, aunt, and the GAL each called witnesses. The court also considered
testimony that Guzman, mother’s case manager at TASC, gave at the adjudicatory
hearing. The trial court expressly allowed Guzman to provide testimony during the
adjudicatory hearing that would be used during the dispositional hearing. So although
Guzman did not testify at the dispositional hearing, the court properly considered her
testimony for disposition. The following facts were developed at the hearing.
{¶ 27} Gabrielle Henry, an ongoing caseworker for JFS, testified that the agency
sought to reunify mother and child. To help mother achieve reunification, Henry drafted
a case plan that included the requirements that mother: be clean and sober; have a clean
and sober support system; comply with the instructions of her doctors and pain
management program; establish healthy relationships with her family members; sign
releases of information; follow all recommendations of her treatment providers; attend
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AA, NA, or CA meetings and provide proof of attendance; and attend, actively
participate in, and successfully complete a drug and alcohol program.
{¶ 28} The substance abuse treatment elements of the case plan were included
because, based on her conversations with mother, Henry believed that mother had an
ongoing drug problem and would benefit from further drug treatment monitored by JFS.
Henry gave mother a drug test on January 18, 2018, during the most recent visit between
mother and child. The test came back positive for amphetamine and cocaine.
{¶ 29} Mother said that she was willing to comply with certain parts of the case
plan that Henry drafted, including complying with information requests, taking drug tests,
staying clean and sober, and following treatment recommendations. She was not willing
to work on her family relationships or sign all requested releases of information,
however. Mother vacillated on whether she was willing to sign any releases of
information requested by JFS. Although she said several times that she would sign the
releases “if it came down to it,” she also said that she was unwilling to sign releases for
JFS because “last time the lady messed it up” and there were some medical records that
mother believed “don’t pertain to” JFS. In fact, mother twice responded “no” when the
trial court asked her directly if she would “follow the Case Plan” relative to the releases
and “would sign all of the releases requested on behalf of the Children Service Agency.”
{¶ 30} Henry said that mother was visiting with child at the agency, but that her
behavior had been “inconsistent.” That is, mother did not interact much with child at
some visits, but did at others. According to observations that the agency documented
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during a visit on December 7, 2017, mother “acted and moved in slow motion” when the
worker observing the visit got mother from the lobby. Other than this note, Henry did not
see any concerns with the visit. At a visit on December 14, 2017, however, the worker
observing the visit noted that mother sat on a chair or the couch for the whole visit and
did not interact with child. Mother was also “very quiet and didn’t have any
expressions.” Henry said that mother “was pretty much zoned out during the visit and in
slow motion.” Mother believed that she was “badgered” during visits at JFS and wanted
visits with child moved back to Village House. She agreed that she would sign releases
of information to allow JFS and the GAL to speak to staff at Village House about her
case.
{¶ 31} At both the December 7 and 14 visits, JFS gave mother a flyer with
information about the agency Christmas party on December 21. Mother did not attend
the party. Henry spoke to mother on the phone about the Christmas party that morning,
but did not remember the specifics of the conversation or whether she was supposed to
have called mother back. When mother did not come to the party, Henry and a
supervisor called mother and then went to mother’s house, but they could not reach her.
Henry then called aunt, who came to the party and spent time with child. Henry
described child as “sad” until aunt arrived at the party. After that, his demeanor changed.
Mother did not address the issue of the Christmas party during the dispositional hearing.
{¶ 32} Henry testified that she believed that it was in child’s best interest to award
temporary custody of him to aunt with JFS maintaining protective supervision. He was
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happy, healthy, and generally interacted well with the other children in aunt’s home.
Henry said that child’s school performance had improved since being placed with aunt;
he was having fewer angry outbursts, attending school regularly, and getting better
grades. Aunt was also meeting all of child’s needs, including taking him to all of his
appointments, and there were no issues that might prevent child from continuing to reside
in aunt’s home. Additionally, Henry said that aunt’s drug screens had all been negative.
Aunt testified that she wanted to see mother and child reunified and was willing to care
for child until mother could regain custody. She also said that she was willing to follow
the case plan and any court orders related to child.
{¶ 33} The GAL agreed that giving aunt temporary custody was in child’s best
interest. He said that child was doing “wonderfully” in school and that child had made
“major improvements.” Child was also “flourishing” in his current environment and
“getting the * * * safety and security that he needs in the home right now.” The GAL
wanted mother and child reunified when mother was capable of caring for child and
noted that child said at every appointment that he wanted to live with mother. To
facilitate reunification, the GAL recommended that mother visit child regularly and stay
alert during visits, comply with case plan services and recommended service providers,
and get and stay sober. Based on the testimony he heard at the hearings, the GAL said
his only additional concern was about mother following the case plan.
{¶ 34} Regarding grandmother, Henry testified that she had concerns about
placing child with grandmother, despite her limited interactions with grandmother.
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Primarily, Henry did not know what grandmother’s motivation for seeking temporary
custody of child was and did not know how child would respond to living with
grandmother. Henry also had concerns about grandmother’s anger, behavior, and
willingness to cooperate with the agency’s recommendations. She also believed that
disrupting child’s placement with aunt was not in his best interest because “moving a
child for the sake of moving does not benefit the child. It sets him back, so, no, I
wouldn’t want to place him just for the sake of moving him when he is doing so well.”
{¶ 35} The GAL also had reservations about placing child with grandmother. In
his report, the GAL noted that there were allegations that grandmother had an alcohol
addiction and that her home was not safe for children. His report also described an
incident where police were called to child’s school because grandmother was heard
telling child to “‘f**king kill them’” if anyone at home tried to hurt him. Additionally,
the GAL overheard grandmother telling someone that she intended to move child to
Tennessee if she received custody of him. Grandmother confirmed that she made the
statement “‘cause that’s my plans.” The GAL believed that moving child would be
detrimental to child because child was doing well in school and doing well with aunt.
The GAL did not “think moving him away from his family into another state would be
helpful.”
{¶ 36} After hearing the evidence at the dispositional hearing, the court again
recessed to deliberate. The court determined that it was in child’s best interest to grant
aunt temporary custody with JFS maintaining protective supervision. The court also
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adopted the case plan that JFS submitted into evidence; ordered that mother have
visitation as determined by JFS, but no less than once a week; ordered that grandmother
have supervised visitation as determined by JFS; and ordered that father continue to have
no contact with child.
{¶ 37} The court based its decision on the reports that child was doing better in
school since his placement with aunt, child had been integrated into aunt’s family, aunt
was addressing child’s basic and medical needs, and child was generally doing “very,
very well.” The court found that mother tested positive for cocaine shortly before the
hearings, was not as engaged in treatment as she should have been, and refused to
acknowledge that she had a drug problem. Mother also “blames others for her lack of
follow through on treatment or in providing information * * *” related to her medical
care. Further, the court found that mother had been “uncooperative” and said that
[m]other testified that she is unwilling to provide all of the information that
has been—that has been and would be requested of Children Services under
the Case Plan. That causes great concern for this Court, because I have
concern about her ability to work towards reunification, if, in fact, she is
not cooperative.
{¶ 38} As to grandmother, the court found that she intended to take child to
Tennessee if she were awarded temporary custody, which would hamper mother’s ability
to work toward reunification and would take child away from his mother, whom he loves.
16.
{¶ 39} The trial court’s factual findings in its January 31, 2018 judgment entry
mirror the findings that the court made on the record at the hearings. As to adjudication,
the court found that mother overdosed, requiring lifesaving measures, which left her
unable to care for or arrange for the care of child. When mother’s doctors refused to
prescribe narcotics after the overdose, mother found new doctors from whom to obtain
prescriptions for narcotics. Mother continued to take narcotics and continued to test
positive for elevated levels of prescription drugs, as well as test positive for cocaine and
alcohol. The court also determined that mother was uncooperative with JFS and would
not provide releases of information to allow JFS to follow her progress. Additionally,
mother nodded off during visits, while driving, and while paying for gas, but did not
provide any verification of her claimed narcolepsy. Mother testified that she intends to
continue driving child. The trial court specifically found that mother’s
ongoing and habitual use of drugs has resulted in her inability to provide
adequate parental care of the minor child and her inability to recognize her
substance abuse and access treatment places the child at risk of potential
harm. The current condition of the environment should the child be
returned to Mother, is not appropriate for the minor child.
{¶ 40} Regarding disposition, the court found that child was doing well
with aunt, was performing better in school, and had been integrated into aunt’s
family. It also found that mother continued to be uncooperative with JFS,
continued to use street drugs, and was “not able to adequately and appropriately
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provide for the minor child * * *.” Additionally, the court found that grandmother
had told mother to find someone else to take care of child when grandmother
became upset during a meeting with JFS and intended to move child to Tennessee
if she were given custody. Based on these facts, combined with the agency’s and
the GAL’s recommendations that aunt receive temporary custody of child, the
court found that placing child in the temporary custody of aunt was in child’s best
interest.
{¶ 41} Mother now appeals, raising three assignments of error:
I. THE TRIAL COURT ERRED IN FAILING TO BIFURCATE
ADJUDICATION AND DISPOSITION.
II. THE TRIAL COURT ERRED IN PERMITTING MATERNAL
GRANDMOTHER TO PARTICIPATE IN ADJUDICATION AND
DISPOSITIONAL PROCEEDINGS.
III. THE TRIAL COURT ERRED IN ADJUDICATING C.T. AS A
NEGLECTED AND DEPENDENT CHILD.
II. Law and Analysis
A. The Trial Court Properly Combined the Hearings
{¶ 42} In her first assignment of error, mother argues that the trial court erred by
combining the adjudicatory and dispositional hearings because mother did not properly
consent to combined hearings. JFS counters that the trial court properly held the hearings
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on the same day because mother waived her right to have them on separate days and
received notice of the combined hearings. We agree with JFS.
{¶ 43} Dispositional hearings in abuse, neglect, and dependency cases are
governed by Juv.R. 34 and R.C. 2151.35. Under Juv.R. 34(A), after a juvenile court
adjudicates a child abused, neglected, or dependent, the court is required to hold “a
separate dispositional hearing” before issuing a dispositional order. The court may hold
the dispositional hearing “immediately after” the adjudicatory hearing if (1) “all parties
were served prior to the adjudicatory hearing with all documents required for the
dispositional hearing” and (2) “all parties consent to the dispositional hearing being held
immediately after the adjudicatory hearing.” Id.
{¶ 44} Similarly, R.C. 2151.35(B)(1) requires the juvenile court to hold “a
separate dispositional hearing” before issuing a dispositional order in an abuse, neglect,
or dependency case and allows the court to hold the dispositional hearing “immediately
after the adjudicatory hearing if all parties were served prior to the adjudicatory hearing
with all documents required for the dispositional hearing.” While R.C. 2151.35 does not
require the parties’ consent to immediately holding the dispositional hearing, it contains
the additional requirement that the court give all parties and the GAL “notice of the
adjudicatory and dispositional hearings in accordance with the Juvenile Rules.” R.C.
2151.35(C).
{¶ 45} The fundamental requirement of due process is notice “reasonably
calculated, under all the circumstances,” to apprise interested parties of the pendency of
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the proceedings. In re A.G., 139 Ohio St. 3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 64,
quoting Armstrong v. Manzo, 380 U.S. 545, 550, 85 S. Ct. 1187 14 L. Ed. 2d 62 (1965),
and Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94
L. Ed. 865 (1950). “However, the Rules of Juvenile Procedure do not specify the manner
in which the court must supply a party notice of an adjudicatory or a dispositional
hearing.” In re J.M.B., 4th Dist. Ross No. 07CA2978, 2008-Ohio-1285, ¶ 16. Generally
speaking, a party receives proper notice of a hearing when the notice is sent to her or her
attorney pursuant to Juv.R. 20(A) and (B), which provide that “[w]ritten notices * * * be
served upon each of the parties” and when “service is required or permitted to be made
upon a party represented by an attorney, the service shall be made upon the attorney
* * *.” See J.M.B. at ¶ 17, citing In re Keith Lee P., 6th Dist. Lucas No. L-03-1266,
2004-Ohio-1976, ¶ 8.
{¶ 46} Here, mother expressly consented to the combined hearings. On January 2,
2017, the trial court asked mother’s attorney if mother wanted to combine the
adjudicatory and dispositional hearings, and, after conferring with mother, her attorney
said that mother’s preference was “to combine the Adjudication and the Disposition, put
them together * * *.” Because mother chose to proceed with the dispositional hearing
“immediately after” the adjudicatory hearing, she cannot assert the issue as error on
appeal. In re Rector, 5th Dist. Tuscarawas No. 96AP100087, 1997 Ohio App LEXIS
3975 (Aug. 4, 1997). Further, although mother asserts that her waiver was ineffective
because “[t]he question was directed to her attorney,” the relevant rules and statute do not
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require the court to address the parties, personally, to obtain consent to combined
hearings.
{¶ 47} Mother also complains that the trial court erred by finding that mother
waived “any notices” of the combined hearings. But despite this finding, the court did, in
fact, send a notice of “Combined Adjudicatory and Dispositional Hearing” to all parties
and their attorneys, including mother and her attorney, on January 2, 2018. This
complies with the notice requirements in the Rules of Juvenile Procedure and R.C.
2151.35(C). See J.M.B. at ¶ 17. Because mother consented to the combined hearings and
received proper notice of the hearings, we find that her first assignment of error is not
well-taken.
B. Mother Waived any Objection to Grandmother Intervening
{¶ 48} In mother’s second assignment of error, she argues that the trial court erred
by allowing grandmother to intervene in the case and participate in the adjudicatory and
dispositional hearings. Prior to the adjudicatory hearing, however, when the court asked
the parties if they objected to either the lack of notice of grandmother’s motion (which
was filed six days before the hearing) or to grandmother being added as a party to the
case, mother’s attorney responded, “We do not object to her being a party to this case.”
{¶ 49} A party’s “failure to timely advise a trial court of possible error, by
objection or otherwise, results in a waiver of the issue for purposes of appeal.” Goldfuss
v. Davidson, 79 Ohio St. 3d 116, 121, 679 N.E.2d 1099 (1997). Moreover, “a party will
not be permitted to take advantage of an error that [she] invited or induced the trial court
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to make.” State ex rel. Beaver v. Konteh, 83 Ohio St. 3d 519, 521, 700 N.E.2d
1256 (1998).
{¶ 50} Here, mother expressly told the trial court that she did not object to
grandmother being added to the case, so mother waived this issue on appeal. And even
assuming that the trial court committed some error relating to grandmother’s motion to
intervene, mother invited the error by explicitly telling the court that she did not object to
grandmother being made a party. Mother cannot not now “take advantage of an error that
[she] invited or induced the trial court to make.” Beaver at 521. Accordingly, we find
that mother’s second assignment of error is not well-taken.
C. Competent and Credible Evidence Supports the Trial Court’s Findings that
JFS Proved Neglect and Dependency by Clear and Convincing Evidence
{¶ 51} In her third assignment of error, mother argues that the trial court’s findings
that child was neglected and dependent are not supported by the manifest weight of the
evidence because child was not present when mother overdosed and there was no
evidence that child was harmed by mother’s overdose or drug use. JFS contends that the
record contains competent, credible evidence that supports the trial court’s findings of
neglect and dependency.
{¶ 52} A trial court’s adjudication of a child as abused, neglected, or dependent
must be supported by clear and convincing evidence. R.C. 2151.35(A)(1); Juv.R.
29(E)(4). Proof by clear and convincing evidence requires that the evidence “‘produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
22.
established.’” In re Adoption of Holcomb, 18 Ohio St. 3d 361, 368, 481 N.E.2d 613
(1985), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus. Clear and convincing evidence is a higher degree of proof than
preponderance of the evidence, but a lower degree than beyond a reasonable doubt. In re
Alexander C., 164 Ohio App. 3d 540, 2005-Ohio-6134, 843 N.E.2d 211, ¶ 37 (6th Dist.).
{¶ 53} When an appellate court reviews a trial court’s adjudication to determine
whether the judgment is supported by clear and convincing evidence, the reviewing court
must determine whether the trial court had before it evidence sufficient to satisfy the
requisite degree of proof. Id. at ¶ 7. That is, we examine the record to determine whether
the agency sustained its burden of producing clear and convincing evidence of
dependency or neglect as defined by R.C. 2151.03 and 2151.04. An appellate court will
not reverse a trial court’s adjudication where competent and credible evidence supports
the findings of fact and conclusions of law. Id.
{¶ 54} In this case, the trial court found that JFS proved two of the allegations of
neglect and dependency in its complaint.2 The court relied on (1) mother’s overdose on
heroin, which left her hospitalized and unable to ensure that her seven-year-old child got
2
We note that the trial court did not specify the statutory subsections under which it
found that the child was neglected and dependent. Nevertheless, because the judgment
entry mirrors the language of neglect under R.C. 2151.03(A)(2) and dependency under
R.C. 2151.04(C), but does not include language consistent with neglect under R.C.
2151.03(A)(6), we determine that the trial court found clear and convincing evidence to
support the allegations of neglect under R.C. 2151.03(A)(2) and dependency under R.C.
2151.04(C), but not neglect under R.C. 2151.03(A)(6).
23.
to school or had someone to care for him after school; (2) mother’s positive drug screens,
including tests that were positive for cocaine; (3) mother’s unwillingness to give JFS
access to her treatment providers so that the agency could verify mother’s prescriptions
and treatment progress; (4) mother finding new doctors so she could obtain medicines
that her former doctors refused to prescribe after her overdose; (5) mother “nodding off”
at JFS and Village House, while driving, and while attempting to pay for gas; and
(6) mother’s testimony that she has narcolepsy (which was not verified by medical
providers or records), but intends to continue driving the child. The court concluded that:
Mother Continues [sic] to engage in a pattern of behavior that prevents her
from adequately providing for and meeting the needs of her 7 year old [sic]
child. Her ongoing and habitual use of drugs has resulted in her inability to
provide adequate parental care of the minor child and her inability to
recognize her substance abuse and access treatment places the child at risk
of potential harm. The current condition of the environment should the
child be returned to Mother, is not appropriate for the minor child.
{¶ 55} After carefully reviewing the record, we find that JFS proved neglect and
dependency by clear and convincing evidence, and that the trial court’s findings of
neglect and dependency are supported by competent and credible evidence.
1. Neglect
{¶ 56} As relevant here, a “neglected child” is a child “[w]ho lacks adequate
parental care because of the faults or habits of the child’s parents * * *.” R.C.
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2151.03(A)(2). “Adequate parental care” means that the parent provides “adequate food,
clothing, and shelter to ensure the child’s health and physical safety and * * * specialized
services warranted by the child’s physical or mental needs.” R.C. 2151.011(B)(1).
{¶ 57} A finding of neglect requires proof “‘that the parents were willfully at fault
in abandoning or neglecting the children or refusing to perform their parental duties’ * *
*.” Alexander C. at ¶ 45, quoting In re Bibb, 70 Ohio App. 2d 117, 120, 435 N.E.2d 96
(1st Dist.1980). A parent’s drug use and refusal to cooperate with case plan services is
sufficient “fault” to support a finding of neglect under R.C. 2151.03(A)(2), even if the
child has adequate food, clothing, and shelter. See, e.g., In re L.C., 10th Dist. Franklin
Nos. 12AP-1057 and 12AP-1059, 2013-Ohio-2564 (upholding finding of neglect despite
testimony that the children always had food, clothing, shelter, and supervision because
mother was not complying with treatment program, continued to test positive for illegal
substances, and refused to give agency access to her treatment providers, and agency had
received reports that mother “appeared intoxicated or on a drug”).
{¶ 58} The evidence presented at the hearing showed that mother overdosed on
heroin (that she thought was fentanyl), which prevented her from ensuring that child
would be taken to school and cared for after school. She used prescription drugs that she
refused to verify for JFS or TASC and used cocaine, which led to positive drug screens
even while she was participating in drug counseling. Mother also nodded off at
inappropriate times and in inappropriate places—including while driving and in front of
child—but did not provide JFS or the trial court with any information from her medical
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providers to verify her claimed diagnosis of narcolepsy. And mother refused to cooperate
with JFS so that it could monitor her progress.
{¶ 59} The facts of this case are similar to those in L.C. There, the Tenth District
Court of Appeals upheld the trial court’s finding of neglect under R.C. 2151.03(A)(2)
even though the children services agency presented “little direct evidence of the
children’s condition.” Id. at ¶ 18. We agree with the Tenth District’s conclusion that
[a]lthough the evidence in this case borders on the line of clear and
convincing evidence of neglect, our standard of review in these cases is to
determine whether there was competent credible evidence to support the
trial court’s determination. The trial court found appellant’s faults and
habits would prevent her from meeting the needs of her children, and there
was no evidence appellant had undertaken appropriate actions to remedy
these faults and habits. Therefore, we conclude that the court had clear and
convincing evidence before it to find the children were neglected. Id.
Therefore, we find that JFS presented clear and convincing evidence that child was a
neglected child under R.C. 2151.03(A)(2), and that the trial court’s finding of neglect was
supported by competent and credible evidence.
2. Dependency
{¶ 60} In contrast to a neglected child, a dependent child, as relevant here, is a
child “[w]hose condition or environment is such as to warrant the state, in the interests of
the child, in assuming the child’s guardianship.” R.C. 2151.04(C). A finding of
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dependency “requires no showing of fault, but focuses exclusively on the child’s situation
* * *.” In re Riddle, 79 Ohio St. 3d 259, 262, 680 N.E.2d 1227 (1997). A trial court may
only consider a parent’s conduct as far as the conduct forms part of the child’s
environment. In re A.C., 6th Dist. Lucas No. L-10-1025, 2010-Ohio-4933, ¶ 74. Further,
the parent’s conduct is significant only if the conduct has an adverse impact on the child
sufficient to warrant state intervention. In re Burrell, 58 Ohio St. 2d 37, 39, 388 N.E.2d
738 (1979). A dependency finding based on a parent’s use of illegal substances or abuse
of legal substances “requires ‘some evidence that [the parent’s] supervision of her
children or the environment of her children has been affected in some negative way’ by
the behavior of the parent.” In re O.H., 9th Dist. Summit No. 25761, 2011-Ohio-5632,
¶ 9, quoting In re R.S., 9th Dist. Summit No. 21177, 2003-Ohio-1594, ¶ 20.
{¶ 61} In determining that child was dependent, the trial court found that mother’s
overdose, drug use, and failure to address her substance use issues prevented her from
ensuring that child was adequately cared for, which created an environment that was “not
appropriate for the minor child.” Mother’s inability to care for child when she overdosed
is “some evidence” that mother’s supervision of child was negatively affected by
mother’s behavior and drug use, which is sufficient to support a finding of dependency
under R.C. 2151.04(C) based on substance use. O.H. at ¶ 9. Accordingly, we find that
JFS presented clear and convincing evidence that child was a dependent child under R.C.
2151.04(C), and that the trial court’s finding of dependency was supported by competent
and credible evidence. Mother’s third assignment of error is not well-taken.
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III. Conclusion
{¶ 62} Based on the foregoing, the January 31, 2018 judgment of the Sandusky
County Court of Common Pleas, Juvenile Division, is affirmed. Mother is ordered to pay
the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
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