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In re L.H.

Court of Appeals of Ohio, Twelfth District, Warren

June 17, 2019

IN THE MATTER OF: L.H., et al.

          APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. 17-D000163, and 18-D000031 thru D000033

          David 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

          OPINION

          M. POWELL, J.

         {¶ 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 S.H.[1] 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 2010.

         {¶ 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.[2]

         {¶ 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 S.H.'s siblings.

         {¶ 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 S.H. dependent.

         {¶ 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 ...


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