In re H.P. , 2022 Ohio 778 ( 2022 )

[Cite as In re H.P., 2022-Ohio-778.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: H.P. C.A. Nos. 29973
29975
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 20-10-680
DECISION AND JOURNAL ENTRY
Dated: March 16, 2022
CARR, Presiding Judge.
{¶1} Appellants, A.S. (“Mother”) and T.P. (“Father”), appeal from a judgment of the
Summit County Court of Common Pleas, Juvenile Division, that adjudicated their minor child
dependent and placed the child in the temporary custody of Summit County Children Services
Board (“CSB”). This Court affirms.
I.
{¶2} Mother is the biological mother of H.P., born October 7, 2020. Father is the child’s
alleged father, but paternity was not established during the relevant proceedings in the trial court.
{¶3} On October 15, 2020, CSB filed a complaint, alleging that H.P. was an abused and
dependent child because, among other reasons, Mother had tested positive for fentanyl and
methamphetamine at the hospital shortly before H.P. was born. The complaint further alleged that
H.P. had remained in the neonatal intensive care unit (“NICU”) for several days to be observed for
symptoms of drug withdrawal; the infant exhibited mild symptoms of withdrawal; and the child
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would be released to the home where Mother resided with Father and each parent had a history of
unresolved substance abuse problems.
{¶4} Following the adjudicatory hearing, the trial court found that CSB had failed to
prove its allegations of abuse, but it adjudicated H.P. a dependent child under R.C. 2151.04(C).
The child was later placed in the temporary custody of CSB. Mother and Father filed objections
to the magistrate’s adjudicatory decision, which were overruled by the trial court. The trial court
independently entered judgment adjudicating H.P. dependent and placing the child in the
temporary custody of CSB. Mother and Father appeal and each raise three assignments of error.
Because their assignments of error and supporting arguments are virtually identical, we will
address them jointly.
II.
APPELLANTS’ ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AT THE
ADJUDICATORY HEARING BY ADMITTING INTO EVIDENCE AND
CONSIDERING A HOSPITAL SOCIAL WORKER’S TESTIMONY IN
VIOLATION OF R.C. 2317.02(G)(1).
{¶5} The parents’ first assignment of error challenges the trial court’s admission and
consideration of the testimony of a hospital social worker that Mother admitted to her that she had
relapsed on fentanyl and snorted it “a handful of times” within the week and a half before H.P.
was born. The hospital social worker spoke to Mother on the day of H.P.’s birth because of
concerns that Mother may have used drugs while pregnant with H.P. After Mother admitted using
fentanyl while pregnant, the social worker informed Mother that she was a mandatory reporter and
would have to make a report to CSB.
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{¶6} At the adjudicatory hearing and after the magistrate’s decision, the parents timely
objected to the social worker testifying about her communication with Mother, asserting that it
was privileged under R.C. 2317.02(G)(1), which provides:
A * * * person licensed under Chapter 4757. of the Revised Code as a * * * social
worker [shall not testify] * * * concerning a confidential communication received
from a client in that relation or the person’s advice to a client unless [an enumerated
exception] applies.
{¶7} The parents have presented a lengthy argument under this assignment of error,
much of which focuses on whether the communication that Mother had with the social worker was
potentially privileged under R.C. 2317.02(G), the policy behind the privileges set forth in R.C.
2317.02, and the fact that Mother did not explicitly waive any privilege that she may have had.
This Court will not address those broader issues but will confine its review to whether the trial
court correctly ruled that the social worker’s testimony was admissible under an exception to the
privilege.
{¶8} The trial court concluded that the social worker’s communication with Mother fell
within the privilege exception set forth in R.C. 2317.02(G)(1)(a), which provides that a social
worker may testify about an otherwise privileged communication if:
[t]he communication or advice indicates clear and present danger to the client or
other persons. For the purposes of this division, cases in which there are
indications of present or past child abuse or neglect of the client constitute a clear
and present danger.
(Emphasis added.)
{¶9} This Court will first address the parents’ argument that interprets the second
sentence of this exception to mean that “indications of present or past child abuse” must involve
only child abuse of the client and not an “other person.” This argument lacks merit for numerous
reasons.
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{¶10} Evid.R. 501 provides that issues of privilege are governed by statute and by
principles of common law as interpreted by Ohio courts. “The traditional policy of the law is to
require the disclosure of all information by those in possession of it, in order that the truth may be
discovered and justice prevail.” In re Briggs, 9th Dist. Summit No. 18117, 1997 WL 416331, *6,
quoting Belichick v. Belichick, 37 Ohio App.2d 95, 96-97 (7th Dist.1974). Because privileges
against disclosure are exceptions to this general rule, “the tendency of the courts is to construe
such privileges strictly and to narrow their scope since they obstruct the discovery of the truth.”
Id. Therefore, this Court must construe the plain language of this exception in a manner that
favors, rather than restricts, disclosure of the communication.
{¶11} By the clear language of R.C. 2317.02(G)(1)(a), the sole requirement of this
exception is stated in the first sentence: “[t]he communication or advice indicates clear and present
danger to the client or other persons.” The term “clear and present danger” is commonly
understood to refer to a danger that is “immediate” and “severe.” Black’s Law Dictionary 269 (8th
Ed.2004) (defining the term as it is used in First Amendment law). For example, under this
common meaning, if a client told a social worker that she planned to kill a specific person, that
communication would indicate a “clear and present danger” to that “other person.”
{¶12} The second sentence of R.C. 2317.02(G)(1)(a) is not set forth as a definition of the
term “clear and present danger,” nor does it limit the common meaning of that term. Instead, the
second sentence broadens the scope of what might otherwise be understood to be a “clear and
present danger” by giving two examples of dangers that are not necessarily immediate and/or
severe: those that indicate “present or past child abuse” and those that indicate “neglect of the
client.”
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{¶13} Indications of past child abuse would not otherwise constitute an immediate danger
to the client or an “other person,” but the second sentence of R.C. 2317.02(G)(1)(a) explicitly
states that past child abuse falls within the meaning of “clear and present danger” as the term is
used in this exception. Another appellate district has interpreted this exception to encompass
communications that indicate present or past child abuse of a person other than the client. See,
e.g., In re Hauenstein, 3d Dist. Hancock Nos. 5-03-38 and 5-03-39, 2004-Ohio-2915, ¶ 8-13; State
v. Orwick, 153 Ohio App.3d 65, 2003-Ohio-2682, ¶ 14-15 (3d Dist.) (conducting an unnecessary
interpretation of the plain language of the exception to reach the same conclusion). Construing
the exception in this manner, the trial court concluded that Mother’s admission to the social worker
that she used fentanyl “a handful of times” shortly before H.P. was born fell within this exception
because it indicated present or past child abuse of H.P.
{¶14} The parents further argue that, even if the trial court was correct in interpretating
the exception to apply to child abuse of someone other than the client, there were no indications
of child abuse in Mother’s admission of prenatal drug use because unborn H.P. was not yet a child
and CSB did not prove that newborn H.P. had suffered any actual harm. Although Mother
admitted to the hospital social worker that she used fentanyl while she was still pregnant with H.P.,
at the time Mother communicated that admission, H.P. was a newborn child. The concern of the
social worker was on the potential effect that Mother’s prenatal drug use may have had on her
newborn baby.
{¶15} In In re Baby Boy Blackshear, 90 Ohio St.3d 197, 199-200 (2000), the Ohio
Supreme Court recognized that a mother’s prenatal drug use can lead to an adjudication of a
newborn child as abused under R.C. 2151.031(D). Although the infant in that case tested positive
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for drugs after birth, thus demonstrating that he was an abused child, the cause of the abuse was
the infant’s exposure to drugs in utero. See id.{¶16} The facts of this case do not involve a positive drug screen of H.P., or proof that
Mother’s drug use actually harmed H.P., but it was not necessary that there be actual child abuse
for Mother’s statements to the social worker to “indicate” present or past child abuse. Because
“indicate” refers to a sign or suggestion, the communication need only suggest the existence of
present or past child abuse. Orwick at ¶ 18. This privilege exception did not require proof that
Mother’s admitted drug use had actually harmed H.P., but only that Mother’s admission of prenatal
drug use reasonably indicated child abuse or a present danger to H.P. See In re Hauenstein, 2004-
Ohio-2915, at ¶ 11 (concluding that, although actual child abuse was not substantiated, Mother’s
statements to her counselor about wanting to harm the child were enough to “indicate” child
abuse).
{¶17} Moreover, during the hearing, Mother’s trial counsel conceded that the hospital
social worker had the obligation to report Mother’s admission of prenatal fentanyl use to CSB
because she was a mandatory reporter under R.C. 2151.421(A)(1). See R.C. 2317.02(G)(2). R.C.
2151.421(A)(1) requires a mandatory reporter who, while acting in her professional capacity,
“knows, or has reasonable cause to suspect” that a “child” faces a threat of suffering abuse or
neglect to make a report to the public children services agency or peace officer in the appropriate
county.
{¶18} Therefore, the parents have failed to demonstrate that the trial court erred in
allowing the social worker to testify about Mother’s admission of prenatal drug use, as it indicated
present or past child abuse of H.P. The first assignment of error is overruled.
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APPELLANTS’ ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AT THE
ADJUDICATORY HEARING BY ADMITTING INTO EVIDENCE AND
CONSIDERING A LAY[] WITNESS’S TESTIMONY ABOUT THE EFFECTS
OF DRUGS ON A PARENT, WHEN THAT WITNESS WAS NOT QUALIFIED
TO GIVE SUCH TESTIMONY.
{¶19} The parents’ second assignment of error is that the trial court erred in admitting and
considering the testimony of a caseworker about the effects of the drugs fentanyl and
methamphetamine. During the hearing, the caseworker was not qualified as an expert and did not
testify about observing Mother when she was, or the caseworker believed she was, under the
influence of either drug. Instead, the caseworker testified, based on her training, about how these
drugs generally affect a person and her ability to care for a child.
{¶20} The parents raised timely objections to this line of questioning, arguing that the
caseworker was not an expert who was qualified to testify about the effects of these drugs. The
magistrate overruled the objection at the hearing and the trial court later overruled the parent’s
objections to the magistrate’s decision, concluding that the caseworker’s testimony was admissible
as lay testimony under Evid.R. 701, which provides:
If the witness is not testifying as an expert, the witness’ testimony in the form of
opinions or inferences is limited to those opinions or inferences which are (1)
rationally based on the perception of the witness and (2) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.
{¶21} The parents’ challenge under this rule does not focus on whether the caseworker’s
testimony was helpful to the trial court’s understanding of how Mother’s drug use may have
affected her parenting ability. Instead, they assert that the caseworker’s testimony about the effects
of fentanyl and methamphetamine was not admissible as lay testimony because it was not based
on “the perception of the witness” of relevant facts.
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{¶22} Although qualified expert witnesses may be permitted to testify about how certain
drugs will affect a person in general, the testimony of lay witnesses is limited to matters about
which they have personal knowledge. See Evid.R. 602; Evid.R. 703. Evid.R. 701 “incorporates
the firsthand knowledge rule with its requirement that the opinion be ‘rationally based on the
perception of the witness.’” 2 Gianelli, Baldwin’s Ohio Practice, Evidence, Section 701.3 (4th
Ed.).
{¶23} Evid.R. 701 permits lay witnesses to testify about their opinions only if those
opinions are based on their “perception” of facts at issue in the case. For example, the Ohio
Supreme Court has recognized that lay witnesses may give opinion testimony, based on their
observations, that the alleged victim of a crime appeared to be “scared” or “not able to think;” that
the plaintiff exhibited marked emotional or habitual changes following the accident at issue; or
that the defendant demonstrated a demeanor that seemed inappropriate in the situation (such as
lack of grief following the death of her son). State v. Stojetz, 84 Ohio St.3d 452, 463 (1999);
Paugh v. Hanks, 6 Ohio St.3d 72, 80 (1983); State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
¶ 82-86. Moreover, “[i]t is generally accepted that virtually any lay witness, including a police
officer, may testify as to whether an individual appears intoxicated.” State v. Schmitt, 101 Ohio
St.3d 79, 2004-Ohio-37, ¶ 12.
{¶24} The Supreme Court has also recognized that Evid.R. 701 permits lay witnesses to
testify about their opinions that are based on their education or experience, but those opinions also
must be based on their “perception” of relevant facts in the case. For example, a police officer
may testify, based on his experience, about the similarity he observed between two sets of
footprints that were introduced into evidence. State v. Jells, 53 Ohio St.3d 22, 29 (1990). The
Court has also recognized that a drug user, if sufficiently experienced with a controlled substance,
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may offer lay opinion testimony about the identity of the alleged controlled substance that she had
observed. State v. McKee, 91 Ohio St.3d 292, 297 (2001). In each of these lay testimony
examples, the witness testified about an opinion that the witness formed after directly observing
facts in evidence and relevant to the litigation at issue. The witness must “perceive” relevant facts
in evidence, through one of his or her senses, and offer an opinion based on the facts perceived.
See, e.g., McKee and Jells.
{¶25} In this case, the caseworker did not offer an opinion about any facts in evidence in
this case. For example, she did not testify that she had perceived Mother under the influence of
either drug. Instead, the caseworker testified about the general effects of fentanyl and
methamphetamine on a person, which required the testimony of a qualified expert on the subject.
The caseworker’s testimony was based on her training, not her perception of any facts of this case,
yet she had not been qualified as an expert to provide such testimony. Because this aspect of the
caseworker’s testimony did not fall within the requirements of Evid.R. 701, the trial court erred in
admitting and considering it.
{¶26} To demonstrate that the trial court’s error constituted a reversible error, however,
the parents must establish not only that the trial court erred, but also that the error resulted in
prejudice to their defense. In re F.B., 9th Dist. Summit Nos. 28960 and 28985, 2019-Ohio-1738,
¶ 30, citing In re P.T., 9th Dist. Summit No. 24207, 2008-Ohio-4690, ¶ 17. Civ.R. 61, which
prohibits a reviewing court from reversing a harmless error of the trial court, provides:
No error in * * * the admission * * * of evidence * * * is ground for * * * setting
aside a verdict or * * * otherwise disturbing a judgment * * * unless refusal to take
such action appears to the court inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.
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See also R.C. 2309.59. Under Civ.R. 61, for this Court to find that an error is harmless, it must
weigh the prejudicial effect of the error and “determine that, if th[e] error[ ] had not occurred, the
* * * trier of the facts would probably have made the same decision.” O’Brien v. Angley, 63 Ohio
St.2d 159, 164-165 (1980), quoting Hallworth v. Republic Steel Corp., 153 Ohio St. 349 (1950),
paragraph three of the syllabus.
{¶27} The parents have failed to demonstrate that, without the testimony of the
caseworker about the general effects of methamphetamine and fentanyl, the trial court would not
have adjudicated H.P. as a dependent child under R.C. 2151.04(C). To begin with, the trial court
mentioned this testimony, but it did not hinge its dependency adjudication on it. As will be
explained in detail in this Court’s review of the third assignment of error, even without the
caseworker’s testimony about the effects of these drugs, the trial court probably would have
adjudicated H.P. as a dependent child. A dependency finding was fully supported by other
evidence presented at the adjudicatory hearing. Because Mother and Father have failed to
demonstrate reversible error, their second assignment of error is overruled.
APPELLANTS’ ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FOUND
THE CHILD TO BE A DEPENDENT CHILD UNDER R.C. 2151.04(C), AS
THAT FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶28} The parents’ final assignment of error is that the trial court’s adjudicatory decision
was not supported by the evidence presented at the hearing. The trial court found that H.P. was
dependent under R.C. 2151.04(C), which defines a dependent child as one “[w]hose condition or
environment is such as to warrant the state, in the interests of the child, in assuming the child’s
guardianship[.]” The trial court was required to find that CSB established dependency by clear
and convincing evidence. See In re I.K.-W., 9th Dist. Summit No. 29100, 2019-Ohio-2807, ¶ 17,
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citing 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.
{¶29} This Court begins by noting that CSB’s complaint had alleged facts about the
physical condition of H.P. that it did not support with evidence at the adjudicatory hearing. For
example, CSB had alleged that H.P. was admitted to the NICU for several days after birth to be
monitored for symptoms of drug withdrawal and that the infant did exhibit mild symptoms of
withdrawal. None of those alleged facts were established at the hearing.
{¶30} Nevertheless, CSB did present evidence to support its allegations that both parents
had serious drug problems that predated the birth of H.P. and continued after her birth. The parents
rely, in large part, on this Court’s decision in In re V.R., 9th Dist. Summit No. 23527, 2008-Ohio-
1457, and argue that “[t]he facts of this case are virtually indistinguishable from In re V.R[.]” This
Court disagrees.
{¶31} This Court recently rejected a similar argument in In re Z.H., 9th Dist. Summit No.
29926, 2022-Ohio-184, ¶ 19-24. In distinguishing the facts of In re Z.H., we emphasized that, in
In re V.R., the only evidence before the trial court focused on the mother’s prenatal use of
marijuana and alcohol, without any evidence of ongoing drug use or other problems in the mother’s
home. Id. In In re V.R., “[t]his Court reversed that dependency adjudication, concluding that,
standing alone, ‘[Mother’s] positive toxicology screen and admission to the one time use of
marijuana just prior to the birth of the baby is not clear and convincing evidence of dependency.’”
Id. at ¶ 19, quoting In re V.R. at ¶ 24.
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{¶32} The evidence in this case about H.P.’s dependency also involves much more than
Mother’s prenatal use of drugs. In addition to her admission to the hospital social worker about
using fentanyl during the week before H.P. was born, Mother admitted to one of CSB’s
caseworkers that she had used fentanyl and methamphetamine before and after H.P. was born and
that she had a long history of drug abuse. She told the caseworker that she had been sober since
May 2019, but that she had relapsed during September or October 2019, before H.P. was born.
Concerned about the condition of the unborn child, Mother and Father went to the hospital to
“check the baby out” and hospital personnel decided at that time to induce labor.
{¶33} Moreover, the facts were not disputed that Mother and Father resided together and
that they planned to continue living together after H.P. was born. Four days after H.P. was born,
Mother and Father met with the caseworker at their home. The caseworker asked them each to
take a drug test. Mother refused, stating that she knew the drug screen “was going to be dirty”
because she had used drugs two days earlier. Mother later admitted to another caseworker that she
and Father had gotten into an argument about choosing a color to paint H.P.’s nursery after the
child’s birth and she relapsed on fentanyl. She explained to the caseworker that she was stressed
out about H.P. coming home.
{¶34} Father agreed to take a drug test when the caseworker came to the home, but the
results of that drug screen were not admitted at the hearing. He believed his test would be negative
and told the caseworker that he had been sober since June 2020. Father’s drug treatment records
from Community Health Center Addiction Center (“CHC”) contradicted Father’s report of
ongoing sobriety, however. The 127-page CHC exhibit demonstrated that Father had been
convicted of aggravated trafficking of methamphetamine and had been referred to CHC’s
addiction center as part of his community control. Father began treatment and drug testing at CHC
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during late 2019 and early 2020 and CHC reported to Father’s probation officer about his
participation in the program.
{¶35} Father continued to test positive for drugs off and on throughout his involvement
at CHC. During an initial assessment, Father informed his counselor that he was motivated to
achieve sobriety so he could put his probation behind him and because he was expecting a child
with his girlfriend. At a group counseling session during mid-September 2020, Father stated that
his “drug of choice” was methamphetamine and that his sober support system was his girlfriend
(Mother), “who has been sober for a year and a half.”
{¶36} Progress notes throughout Father’s CHC records, however, indicate that Father did
not fully engage in counseling or drug testing. Notably, during the two months before H.P.’s birth,
Father tested positive for amphetamines on multiple occasions, missed several counseling sessions,
and missed scheduled drug tests. His counselor noted in the records that she had advised Father
to engage in intensive outpatient treatment, but he did not. By the time CSB filed the complaint
in this case, progress notes in Father’s CHC records stated that Father had not made sufficient
progress toward sobriety, and he was potentially facing discharge from the CHC program.
{¶37} Unlike the facts of In re V.R., this case did not involve a mother using drugs on one
occasion. Instead, the evidence demonstrated that both parents had long-term, serious substance
abuse problems. Father had been unable to control his problem through court-ordered treatment
and was potentially facing consequences in his criminal case if he was terminated from CHC.
Although Father had identified Mother as his sober support person, and noted that she had been
sober for well over a year, Mother had relapsed to using fentanyl and/or methamphetamine both
before and after H.P. was born. The trial court reasonably concluded that newborn H.P. living in
a home with two parents who could not control their abuse of methamphetamine and/or fentanyl
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warranted the state in assuming the child’s guardianship. See R.C. 2151.04(C). The parents’ third
assignment of error is overruled.
III.
{¶38} The parents’ assignments of error are overruled. 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 Appellants.
DONNA J. CARR
FOR THE COURT
CALLAHAN, J.
SUTTON, J.
CONCUR.
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APPEARANCES:
NEIL P. AGARWAL. Attorney at Law, for Appellant.
THOMAS C. LOEPP, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
JAMES ARMSTRONG, Guardian ad Litem.