Court of Appeals of Ohio, Twelfth District, Warren
FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION
Case Nos. 17-D000163, and 18-D000031 thru D000033
P. Fornshell, Warren County Prosecuting Attorney, Kirsten A.
Brandt, 520 Justice Drive, Lebanon, Ohio 45036 for appellee
Alexander, Wagner & Kinman, Maxwell D. Kinman, 423
Reading Road, Mason, Ohio 45040 for appellant
1} Appellant ("Mother") appeals the
decisions of the Warren County Court of Common Pleas,
Juvenile Division, adjudicating her children dependent.
2} Mother is the biological mother of D.T. and his
three younger half-siblings, L.H.1, L.H.2, and
D.T.'s biological father is deceased. Father, who is not
a party to this appeal, is believed to be the biological
father of L.H.1, L.H.2, and S.H. Mother and her four children
reside together. The record indicates that Mother was granted
custody of her minor brother X.W. ("Brother") in
3} In February 2017, the Warren County Children
Services ("the Agency") filed a complaint alleging
that D.T. was an abused and dependent child. The Agency
simultaneously filed complaints alleging that L.H.1 and L.H.2
were dependent children based upon the alleged abuse of D.T.
The complaints alleged that Father had committed acts of
domestic violence towards Mother and had beaten D.T. with a
belt for urinating on himself. All three children were placed
into Mother's custody subject to the Agency's
protective supervision. Father was ordered to vacate the
home. S.H. was not yet born.
4} In April 2017, D.T. was adjudicated dependent
under R.C. 2151.04(C) and adjudicated abused. L.H.1 and L.H.2
were adjudicated dependent under R.C. 2151.04(C). Mother
appealed the adjudications to this court.
5} While her appeal was pending, Mother gave birth
to S.H. in August 2018. In late September 2017, a caseworker
with the Agency made an unannounced visit to Mother's
home in connection with the pending cases involving D.T.,
L.H.1, and L.H.2. Mother did not allow the caseworker to
enter her home. A few hours later, the caseworker returned
with a police officer and was allowed to enter Mother's
home. Once inside, the caseworker smelled a strong odor of
marijuana. However, no drugs or drug paraphernalia were found
in the home. Mother was drug screened for marijuana and
tested negative. During her visit, the caseworker discovered
the existence of S.H. and that Mother had custody of Brother.
6} On September 26, 2017, the Agency filed
complaints alleging that S.H. and Brother were dependent
children based in part upon the prior adjudications of D.T.,
L.H.1, and L.H.2 as dependent children and Mother's
failure to comply with case plan services in those cases.
S.H. and Brother remained in Mother's custody subject to
the Agency's protective supervision. Mother was ordered
to complete the case plan services associated with D.T.,
LH.1, and L.H.2.
7} On November 2, 2017, the Agency moved for ex
parte emergency temporary custody of Mother's four
children and Brother. The motion was based upon Mother's
failure to engage in case plan services, her failure to
enroll Brother in mental health counseling, and Father's
continued presence in the home. The juvenile court conducted
an ex parte hearing on the motion that same day. Mother was
not notified of the hearing and was not present. Mother's
attorney was likewise not present at the hearing. The
children and Brother were removed from Mother's home and
placed in the temporary custody of the Agency. All five
children have been in foster care since that time.
8} An adjudicatory hearing was conducted in December
2017 regarding S.H. and Brother. Mother did not testify. At
the hearing, the caseworker testified she smelled a strong
odor of marijuana during her September 2017 visit to
Mother's home. However, no drugs or drug paraphernalia
were found in the home and the caseworker did not observe any
smoke. The caseworker was able to search the entire home and
found no indication of marijuana use other than the smell.
The caseworker had no concerns regarding the condition of the
home, the sleeping arrangements, the availability of food, or
the conditions of the children. The caseworker testified that
since she has been the family's caseworker, Mother has
consistently tested negative for all substances, including
marijuana. The state argued S.H. and Brother were dependent
under R.C. 2151.04(C) based upon the marijuana odor and
Mother's failure to engage in the case plan services
regarding D.T., L.H.1, and L.H.2. The state further argued
S.H. and Brother were dependent under R.C. 2151.04(D) based
upon the prior adjudications of D.T., L.H.1, and L.H.2.
9} On December 6, 2017, a magistrate issued a
decision recommending that S.H. be adjudicated dependent
under R.C. 2151.04(C) and (D) based upon the prior dependency
adjudications of her siblings. In support of her
recommendation, the magistrate further noted Mother's
refusal to initially allow the caseworker in her home in
September 2017, the strong odor of marijuana present in her
home, the absence of any drugs or drug paraphernalia in the
home, and Mother testing negative for drug use. The juvenile
court adopted the decision on the same day.
10} Mother filed objections to the magistrate's
decision which were overruled by the juvenile court.
Following a dispositional hearing on January 17, 2018, S.H.
was once again placed in the temporary custody of the Agency.
Mother did not appeal the adjudication or disposition of S.H.
11} On March 5, 2018, we reversed the April 2017
dependency adjudications of D.T., L.H.1, and L.H.2. In re
L.H., 12th Dist. Warren Nos. CA2017-06-081,
CA2017-06-083, and CA2017-06-087, 2018-Ohio-802. We found
that a caseworker's testimony concerning what D.T. had
told her about being physically abused was inadmissible
hearsay. We further found that absent such evidence, there
was no clear and convincing evidence that D.T., L.H.1, and
L.H.2 were dependent. We consequently vacated the juvenile
court's adjudicatory and dispositional orders regarding
12} That same day, on March 5, 2018, the Agency
filed new complaints alleging that D.T., L.H.1, and L.H.2
were dependent children. The complaints referred to videos
recorded in Mother's home and posted on Father's
Facebook account "detailing statements about abusing
mother and children while the children were present."
The complaints further noted there were "concerns of
drug abuse in the home in front of the children."
13} Following this court's reversal of the prior
adjudications of D.T., L.H.1, and L.H.2, Mother moved to
dismiss the new complaints filed by the Agency regarding the
three children. Mother further filed a Civ.R. 60(B) motion
for relief from the December 2017 judgment entry adjudicating
14} On June 5, 2018, the magistrate denied
Mother's motion to dismiss the new complaints regarding
D.T., L.H.1, and L.H.2. In a separate magistrate's order
filed that same day, the magistrate granted in part and
denied in part Mother's Civ.R. 60(B) motion regarding
S.H. Specifically, in light of this court's reversal of
the prior dependency adjudications of S.H.'s siblings,
the magistrate vacated S.H.'s adjudication as a dependent
child under R.C. 2151.04(D). The magistrate, however, upheld
S.H.'s adjudication as a dependent child under R.C.
2151.04(C). In support of her determination, the magistrate
cited the evidence presented at the December 2017
adjudicatory hearing, namely, Mother's initial refusal to
allow the caseworker in her home, the strong odor of
marijuana, the fact S.H. was less than six months old at the
time, and the fact Mother was the only adult present in the
home. Subsequently, Mother moved the magistrate to issue a
"magistrate's decision" under Juv.R. 40(D)(3)
regarding S.H.'s adjudication and her Civ.R. 60(B)
motion, as opposed to a "magistrate's order"
under Juv.R. 40(D)(2).
15} An adjudicatory hearing was held in June 2018
regarding D.T., L.H.1, and L.H.2. Mother did not testify.
During the hearing, portions of videos posted on Father's
Facebook account were played. The videos showed Father
smoking marijuana in Mother's home in the presence of
D.T., L.H.1, and L.H.2. The videos further showed Father
verbally threatening to physically abuse Mother and bragging
that he had choked Mother and that he would choke the
children. Following the caseworker's testimony, Mother
orally moved to dismiss the new complaints filed in May 2018
regarding D.T., L.H.1, and L.H.2. The motion was denied.
16} On June 25, 2018, the magistrate journalized
decisions recommending that D.T., L.H.1, and L.H.2 be
adjudicated dependent under R.C. 2151.04(C) and (D). The
adjudications under R.C. 2151.04(D) were based upon the prior
adjudications of S.H. and Brother as dependent children. The
adjudications under R.C. 2151.04(C) were based upon
Father's use of marijuana in the children's presence
and the "classic signs of domestic violence" as
evidenced by the videos, and "Mother's inability to
recognize these issues as problems * * * and [her] lack of
protective capacity with respect to the minor children."
17} On June 25, 2018, implicitly granting
Mother's motion for a "magistrate's
decision" regarding S.H., the magistrate further issued
a "magistrate's decision" granting in part and
denying in part Mother's Civ.R. 60(B) motion for relief.
Specifically, the magistrate vacated the dependency
adjudication under R.C. 2151.04(D) in light of this
court's March 5, 2018 opinion. The magistrate, however,
upheld the dependency adjudication under R.C. 2151.04(C).
Although this magistrate's decision is captioned with
S.H.'s name and case number, the body of the decision
solely and consistently refers to Brother and proceedings
related to him. Indeed, the decision refers to appellant as
Brother's "custodian" and not as Mother and
refers to a motion for relief filed by appellant as
Brother's custodian and joined by Brother's
biological mother. The magistrate's analysis further
refers to and quotes the magistrate's January 8, 2018
decision which solely adjudicated Brother dependent and
relies upon evidence presented in Brother's case on that
date. S.H.'s name only appears once in the
magistrate's decision, that is, in the caption.
18} Mother filed objections to the magistrate's
foregoing four decisions. On August 20, 2018, the juvenile
court overruled Mother's objections and adopted the
magistrate's June 25, 2018 decisions adjudicating D.T.,
L.H.1, and L.H.2 dependent. The juvenile court further
adopted the magistrate's June 25, 2018 decision ...