[Cite as In re T.H., 2016-Ohio-5597.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: T.H. C.A. No. 28010
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 14-09-573
DECISION AND JOURNAL ENTRY
Dated: August 31, 2016
MOORE, Presiding Judge.
{¶1} Appellant, Caprice H. (“Mother”), appeals from a judgment of the Summit
County Court of Common Pleas, Juvenile Division, that adjudicated her 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 mother of T.H., born November 23, 2011. The child’s father
(“Father”) did not appeal from the trial court’s judgment.
{¶3} According to the record in this juvenile court case and the evidence adduced at the
adjudicatory hearing, on September 3, 2014, the Akron Police Department executed a search
warrant at the home of both parents, who were under investigation for heroin trafficking. In this
juvenile dependency case, neither parent challenged the validity of the search of their home or
their persons.
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{¶4} The police searched the home and both parents. During a search of Mother’s
person, she admitted that she had “dope” in her pants and that Father had told her to hide it there.
Mother pulled a baggie out of her underwear, which contained approximately 1.5 grams of
heroin, one Percocet pill, and “meth[.]” Mother admitted at the scene that the substance believed
to be heroin was, in fact, heroin. Although the meth was initially confirmed by a field test to be
methamphetamine, it was later determined to be methadone. Mother and Father were arrested at
the scene and charged with felony drug offenses.
{¶5} Because the narcotics unit had been investigating the parents’ home for several
months, they were aware that the parents had a young child, but he was not with them at the time
the search warrant was executed and the parents were arrested. The police asked the parents
about the whereabouts of T.H., but they refused to tell them where he was. Police eventually
located T.H. at the home of a relative and removed him from the legal custody of his parents
pursuant to Juv.R. 6. CSB filed a complaint the next day to allege that T.H. was a dependent
child.
{¶6} The matter proceeded to an adjudicatory hearing before a magistrate, after which
the magistrate decided that CSB had failed to prove that T.H. was a dependent child. The
magistrate’s decision focused primarily on the fact that T.H. was not at home at the time of the
search and the parents’ arrest and was later located at the home of a suitable relative.
{¶7} CSB timely objected to the magistrate’s decision. Following a review of the
evidence presented at the adjudicatory hearing, the trial court sustained CSB’s objection and
adjudicated T.H. a dependent child. The trial court’s decision focused on the drug activity in the
family home, the arrest of the parents on felony drug charges, and their failure to disclose the
location of their child. T.H. was later placed in the temporary custody of the relative with whom
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he was eventually found after the parents’ arrest. Mother appeals and raises three assignments of
error, which will be consolidated and rearranged for ease of review.
I.
ASSIGNMENT OF ERROR II
THE JUVENILE COURT ERRED WHEN IT FOUND THAT [CSB] WAS NOT
REQUIRED TO MAKE REASONABLE EFFORTS TO PREVENT THE
CONTINUED REMOVAL OF T.H. FROM HIS PARENTS[’] HOME[.]
{¶8} Mother’s second assignment of error is that the trial court erred in finding that
CSB was not required to make reasonable efforts to prevent the removal of T.H. from the home
because the record fails to support CSB’s request for a reasonable efforts bypass under R.C.
2151.419(A)(2). Although CSB had filed a motion pursuant to R.C. 2151.419(A)(2)(e) to excuse
it from making reasonable reunification efforts in this case because Mother’s parental rights to
older siblings of T.H. had been involuntarily terminated in prior juvenile cases, the trial court did
not grant a reasonable efforts bypass in this case. Because Mother assigns error to a finding that
the trial court did not make, her second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE JUDGMENT ENTRY ADJUDICATING T.H. DEPENDENT FAILED TO
COMPLY WITH []R.C. 2151.28(L).
ASSIGNMENT OF ERROR III
THE JUVENILE COURT COMMITTED REVERSIBLE ERROR WHEN IT
FOUND BY CLEAR AND CONVINCING EVIDENCE THAT T.H. WAS A
DEPENDENT CHILD UNDER [R.C.] 2151.04(C).
{¶9} These assignments of error will be addressed together because they are closely
related. Mother’s first assignment of error is that the trial court failed to comply with the
requirements of R.C. 2151.28(L), which provides:
If the court * * * determines that the child is a dependent child, * * * [t]he court
shall include * * * specific findings as to the existence of any danger to the child
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and any underlying family problems that are the basis for the court’s
determination that the child is a dependent child.
Mother does not dispute that the trial court made specific factual findings about the basis of its
dependency adjudication, but contends that those findings do not support an adjudication of
dependency. Similarly, Mother’s third assignment of error is that the trial court’s adjudication of
T.H. as a dependent child was not supported by the evidence presented at the hearing.
{¶10} The trial court adjudicated T.H. as dependent pursuant to 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[.]” An adjudication under
R.C. 2151.04(C) “should concentrate on whether the children are receiving proper care and
support and look to environmental elements that are adverse to the normal development of
children.” In re D.H., 9th Dist. Summit No. 25095, 2010-Ohio-2998, ¶ 5, citing In re Bibb, 70
Ohio App.2d 117, 120 (1st Dist.1980).
{¶11} CSB presented the testimony of a police detective who executed the search
warrant and arrested the parents. The caseworker who eventually located T.H. at his relative’s
home also testified. The detective, a 23-year veteran of the Akron Police Department who had
been in the narcotics unit for 12 years, testified that her unit had been investigating the parents’
home for more than two months before executing the search warrant on September 3.
{¶12} Akron Police had searched the home on June 18 but had not found any drugs.
The detective testified that, in her experience, the police will sometimes fail to find drugs in a
suspected drug house because the residents are out of drugs or have a good hiding spot. Through
Father’s cross-examination of the detective about whether the police had searched his home a
second time because he had bragged on social media about the police “missing dope on him and
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his wife” during the prior search, she agreed that Father’s social media bragging had been part of
the reason for the second search, but that it was not the sole reason.
{¶13} Through its ongoing investigation, the narcotics unit was aware that the parents
had a young child and that Father had conducted drug deals from their home with the child
present. The detective testified that the child had been present during some of the prior drug
transactions. When Father asked the detective why the police had not removed the child during
the prior drug activity, she responded that they had considered removing him from the home
before but did not.
{¶14} When the police executed the warrant on September 3, T.H. was not at the home
and the parents refused to tell them where he was. The police attempted to locate T.H. for
several hours and were eventually contacted by a relative late that night. The relative informed
them that, although the child had been elsewhere, he was with her at that time. Because the
relative was deemed to be a suitable custodian, the police allowed the child to remain with her
overnight. They removed T.H. pursuant to Juv.R. 6 the following morning.
{¶15} Mother does not dispute that the police found her in possession of heroin and
other illegal drugs in her home, arrested her and Father, that they both remained incarcerated on
felony drugs charges at the time of the adjudicatory hearing, or that they refused to disclose the
location of T.H. when they were arrested. Instead, she asserts that CSB failed to prove that their
drug activity had a detrimental impact on T.H.
{¶16} First, Mother argues that T.H. was not at home at the time the police found the
drugs or arrested the parents but was instead found at the home of a suitable relative. There was
no evidence before the trial court that T.H. was living with the relative or that the parents had
made arrangements for him to stay with her, however. In fact, the testimony was that T.H. was
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at another, undisclosed location at the time of the parents’ arrest and that he later went to the
relative’s home. Moreover, the parents refused to cooperate with the police in their efforts to
locate T.H. It was not until the relative contacted the police that they learned of the whereabouts
of T.H.
{¶17} The “environment” at issue in this case was T.H.’s home, where he resided with
Mother and Father. Police had been conducting an ongoing investigation of drug trafficking in
the home and ultimately found Mother in possession of several illegal drugs in the family home
and arrested both parents on felony drug charges.
{¶18} Mother also argues that her admitted possession of heroin and other illegal drugs
and her arrest on felony drugs charges did not establish a detrimental impact on T.H. She relies
on two decisions from this Court, In re R.S., 9th Dist. Summit No. 21177, 2003-Ohio-1594 and
In re D.H., 2010-Ohio-2998. Neither of these decisions supports her argument.
{¶19} In In re R.S., CSB based its dependency allegations solely on the mother
admitting to regularly using marijuana outside the presence of her children. In re R.S. at ¶ 6.
CSB presented no evidence at the adjudicatory hearing that mother’s home or parenting ability
were unsuitable or negatively affected by her marijuana use. Id. at ¶ 18-19. Moreover, her use
and possession of “a minimal quantity of marijuana” would not subject her to potential
incarceration. Id. at ¶ 21. Consequently, this Court reversed the trial court’s adjudication of
dependency. Id. at ¶ 22.
{¶20} Similarly, in In re D.H., although the police had conducted a search of the
parents’ home for cocaine and other drugs, the only evidence before the trial court at the
adjudicatory hearing was that the search uncovered a small quantity of marijuana in an
unspecified location. In re D.H. at ¶ 8-9, 12. There was no evidence to demonstrate that the
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marijuana was found in a location that was accessible by the children or that they were otherwise
affected by the drug. Id. at ¶ 12. As in In re R.S., the condition of the home was otherwise
suitable for children. In re D.H. at ¶ 16.
{¶21} We agree with the trial court that this case is legally distinguishable from In re
R.S. and In re D.H. In this case, there was evidence at the adjudicatory hearing that the police
had been conducting an ongoing drug trafficking investigation; had observed drug sales
occurring in the home while T.H. was present; ultimately found Mother in possession of heroin
and other illegal drugs; arrested both parents on felony drug charges; and both parents remained
incarcerated at the time of the adjudicatory hearing on those felony drug charges. Moreover, at
the time of their arrest, the parents refused to disclose the location of their child. Until a relative
came forward to assist them, the police were unable to check on the safety and well-being of
T.H.
{¶22} Mother has failed to demonstrate that the trial court’s adjudication of T.H. as a
dependent child was not supported by the evidence or that the trial court’s factual findings upon
adjudication were not sufficient to satisfy R.C. 2151.28(L). Mother’s first and third assignments
of error are overruled.
III.
{¶23} Mother’s 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.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, J.
HENSAL, J.
CONCUR.
APPEARANCES:
AVIVA L. WILCHER, Attorney at Law, for Appellant.
LAWRENCE DELINO, JR., Attorney at Law, for Appellee.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.