In re Z.H.

[Cite as In re Z.H., 2022-Ohio-184.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

IN RE: Z.H. C.A. No. 29926

APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 20 05 0358

DECISION AND JOURNAL ENTRY

Dated: January 26, 2022

SUTTON, Judge.

{¶1} Appellant, B.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 biological mother of Z.H., born May 17, 2020. The day after his

birth, Z.H. was transferred to the neonatal intensive care unit (“NICU”) at Akron Children’s

Hospital because he had been diagnosed with tachypnea, which causes breathing and feeding

difficulties. On May 20, 2020, CSB filed a complaint, alleging that Z.H. was an abused,

neglected, and/or dependent child because Mother tested positive for amphetamine at the time of

the child’s birth. The complaint further alleged that Mother had a long history of substance

abuse, domestic violence, and mental health problems; that she had lost legal custody of an older
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child because of the same problems; and that she had been convicted several times of drug-

related offenses.

{¶3} The matter proceeded to adjudicatory and dispositional hearings before a

magistrate. Mother filed objections to the magistrate’s adjudicatory decision, which were later

overruled by the trial court. Mother now appeals from the trial court’s independent judgment

that adjudicated Z.H. dependent and placed the child in the temporary custody of CSB. She

raises two assignments of error for our review.

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED PLAIN ERROR AND REVERSIBLE
ERROR BY CONSIDERING IMPROPER EVIDENCE.

{¶4} This Court will address Mother’s second assignment of error first because it

asserts that the trial court should not have considered some of the evidence presented at the

adjudicatory hearing. Specifically, under this assigned error Mother argues that the trial court

erred in considering (1) the child’s medical records and (2) court records from the legal custody

case involving Mother’s older child and the criminal cases involving some of Mother’s prior

drug convictions. We will address each argument separately.

Child’s Medical Records

{¶5} Mother asserts that the trial court erred in considering the medical records

involving Z.H.’s birth and NICU hospital stay insofar as they connected Mother’s prenatal drug

use to the child’s medical condition. Mother argues that these records were inadmissible

because, among other reasons, the physician who prepared the records did not testify and was not

subject to cross-examination about his medical conclusions. During the adjudicatory hearing,

Mother raised this same argument. The magistrate agreed that the physician statements within
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the medical records were inadmissible and explicitly stated in the adjudicatory decision that she

did not consider that evidence. Therefore, the magistrate concluded that CSB had failed to

establish a nexus between Mother’s prenatal drug use and Z.H.’s medical condition.

Nevertheless, the magistrate concluded that CSB had presented clear and convincing evidence to

prove that Z.H. was dependent under R.C. 2151.04(C).

{¶6} The trial court adopted the magistrate’s decision the same day. Mother later filed

objections to the adjudicatory decision, but CSB did not object to the magistrate’s refusal to

consider the medical records insofar as they suggested that Z.H.’s medical condition had been

caused by Mother’s drug use. In its order overruling Mother’s objections to the magistrate’s

decision, however, the trial court recited some of the medical evidence, including statements

about the child’s medical diagnosis and Mother’s drug use that the magistrate explicitly refused

to consider. For example, the trial court noted that the medical records had included statements

that Z.H. had been “affected by maternal use of other drugs of addiction[]” and that Mother’s

pregnancy had been complicated by “Amphetamine use[.]”

{¶7} The trial court did not explain that it was considering the medical evidence, that it

disagreed with the magistrate’s ruling to exclude this evidence, or that CSB had proven a causal

link between Mother’s drug use and the child’s condition. Consequently, it is not clear from the

trial court’s order how, if at all, this evidence factored into the adjudicatory decision.

Nevertheless, even if we assume that the trial court considered this medical evidence in its

adjudicatory decision, and erred in doing so, Mother has failed to demonstrate reversible error.

{¶8} To demonstrate reversible error, Mother must establish not only that the trial court

erred, but also that the error resulted in prejudice to her 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,
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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.

See also R.C. 2309.59.

{¶9} 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.

{¶10} Mother has failed to demonstrate that, without the medical evidence suggesting

that Mother’s drug use caused the child’s medical condition, the trial court would not have

adjudicated Z.H. as a dependent child under R.C. 2151.04. In fact, the record explicitly shows

that the original trier of fact, the magistrate, excluded this evidence and found that CSB

presented clear and convincing evidence of dependency. As will be explained in detail in this

Court’s review of Mother’s first assignment of error, a dependency finding was fully supported

by the other evidence presented at the adjudicatory hearing. Therefore, Mother has failed to

demonstrate reversible error, even if the trial court improperly considered the medical evidence

when ruling on her objections and entering its independent adjudication.

Mother’s Juvenile and Criminal Court History

{¶11} Mother also challenges the trial court’s admission of records from the juvenile

case involving her older child and records of her criminal drug convictions that predated this
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case. She argues that those records were inadmissible because she had not been put on notice

that the prior juvenile records were relevant to this case and the juvenile and criminal records

included evidence of her prior conduct, which was inadmissible under Evid.R. 404(B).

{¶12} Mother briefly argues that she was not given notice that her past juvenile case was

relevant in this case. The record reveals, however, that CSB explicitly alleged in the complaint

that “Mother’s older child, [A.W.], age 5 is placed in the legal custody of her paternal great

grandmother, [L.W.] due to parental substance abuse, domestic violence, lack of ability to meet

the child’s needs, and criminal drug related charges. [L.W.] was granted legal custody on July 7,

2017[.]” Therefore, Mother’s argument that she was not given notice about the relevancy of the

prior juvenile case is unfounded.

{¶13} Mother also asserts that the other child’s juvenile court case and evidence of her

prior criminal drug convictions were inadmissible under Evid.R. 404(B), which provides, in part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes[.]

Although Evid.R. 404(B) identifies specific “other” purposes for which prior acts evidence may

be admissible, “the listed exceptions are not exclusive[.] State v. Myers, 9th Dist. Summit No.

25737, 2012-Ohio-1820, ¶ 10, citing State v. Smith, 49 Ohio St.3d 137, 140 (1990). Other acts

evidence “may be admissible so long as it is admitted for any proper purpose other than proving

the defendant’s propensity to act in conformity with a particular trait of his character.” Id.

{¶14} CSB presented, and the trial court admitted, evidence that Mother’s long history

of drug use had led to several misdemeanor and felony drug convictions and to the loss of legal

custody of an older child. The trial court’s consideration of this evidence did not violate Evid.R.

404(B) because the evidence was not admitted to show that Mother acted “in conformity
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therewith” by again abusing drugs in this case. Evidence of Mother’s more recent drug use was

already before the trial court through other evidence.

{¶15} Instead, the evidence about Mother’s prior convictions, her repeated violations of

the conditions of her community control by committing further crimes and continuing to abuse

drugs, and the juvenile case involving her other child was admitted to establish that Mother had

a long-standing history of drug use and resulting problems that had seriously affected her ability

to provide a safe and stable home for herself or a child. That evidence, coupled with evidence of

Mother’s more recent drug use and violations of the conditions of her current community

control, was directly relevant to Mother’s ability to provide Z.H. with a safe and stable home.

{¶16} Mother has failed to demonstrate that the trial court committed reversible error in

its admission or consideration of the medical records, records from the prior juvenile case, or

evidence about her prior drug convictions. Mother’s second assignment of error is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED PLAIN ERROR AND REVERSIBLE
ERROR BY FINDING THE CHILD WAS DEPENDENT.

{¶17} Mother’s first assignment of error challenges the trial court’s finding of

dependency. The trial court found that Z.H. 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, 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
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of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954),

paragraph three of the syllabus.

{¶18} Mother incorrectly asserts that a finding of dependency requires proof “that [she]

was ‘willfully’ at fault in creating the dependency situation.” In fact:

[a] dependency finding under R.C. 2151.04(C) does not require specific parental
fault; rather the focus is on the child’s situation to determine whether the child is
without proper or adequate care or support. In re R.P., 9th Dist. Summit No.
26836, 2013-Ohio-5728, ¶ 19. “The conduct of the parent is relevant only insofar
as it forms a part of the child[ ]’s environment and it is significant only if it has a
detrimental impact on [him].” In re A.C., 9th Dist. Wayne Nos. 03CA0053,
03CA0054, and 03CA0055, 2004-Ohio-3248, ¶ 14, citing In re Burrell, 58 Ohio
St.2d 37, 39 (1979).

In re I.T., 9th Dist. Summit Nos. 27513, 27560, and 27581, 2016-Ohio-555, ¶ 32.

{¶19} Mother also relies on this Court’s decision in In re V.R., 9th Dist. Summit No.

23527, 2008-Ohio-1457, and argues that a positive drug screen of the mother at the birth of an

infant does not constitute clear and convincing evidence that the infant is dependent under R.C.

2151.04(C). The facts of In re V.R., however, are distinguishable from the facts of this case for

many reasons. In In re V.R., the only evidence before the court to establish dependency was that

the mother tested positive for alcohol, marijuana, and opiates prior to the birth of V.R., and that

she had been given morphine at the hospital shortly before the toxicology screen. Id. at ¶ 1, 14.

V.R. was born a healthy baby and a toxicology test had not revealed the presence of any drugs or

alcohol in the infant’s system. Id. at ¶ 2. Moreover, V.R.’s mother had demonstrated an ability

to properly care for the child and had a plan in place to raise the child in an apartment that had

been deemed suitable by CSB. Id. at ¶ 3, 14. This 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 ¶ 24.
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{¶20} In this case, CSB presented much more evidence than Mother’s positive

toxicology screen for amphetamine. To begin with, Z.H. was not a normal, healthy child, as he

suffered from breathing and feeding difficulties, which had required his admission into the

NICU. Although no toxicology screen had been performed on the infant and no evidence was

admitted at the hearing that his medical problems had been caused by Mother’s prenatal drug

use, the fact remained that the child had special medical needs that would require a higher level

of care than a healthy infant would. Mother also lacked stable housing for her and her child, as

she was facing eviction. Although Mother argues on appeal that she had not yet been evicted,

the evidence was not disputed that she was facing imminent eviction and had no alternative plan

for housing.

{¶21} Moreover, Mother’s history of drug abuse had caused other problems in her life

that had affected her ability to parent a newborn child. Mother focuses on evidence that she had

used Xanax during her pregnancy, and emphasizes that CSB had failed to prove that she did not

have a prescription. Nevertheless, Mother does not dispute the evidence before the trial court

that she admitted that she used intravenous methamphetamine while pregnant, that she had tried

to wean herself off the drug by injecting water into her arm, or that she admitted that she had

smoked marijuana that may have been laced with amphetamine shortly before the birth of Z.H.

{¶22} Although CSB did not know how many times Mother had used drugs while

pregnant with Z.H., evidence about her history of drug abuse was not limited to one or two

isolated incidents during this case. Mother has a history of misdemeanor and felony drug

convictions, dating back several years. Mother lost custody of an older child in 2017 because

she had been abusing methamphetamine in the home where she lived with the child, did not

properly care for the child, exposed the child to drugs and drug paraphernalia, and was later
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incarcerated because of criminal drug activity. That child was ultimately placed in the legal

custody of the paternal great grandmother.

{¶23} While pregnant with Z.H., Mother was convicted of aggravated possession of

drugs, a fifth-degree felony. During November 2019, she was sentenced to a 12-month period of

incarceration, but the sentence was suspended, and she was placed on community control for two

years. The conditions of Mother’s community control included that she refrain from using

illegal drugs and that she submit to drug testing as directed by her probation officer.

{¶24} Mother had not been charged with a violation at the time of the hearing, but the

evidence at the hearing demonstrated that Mother had repeatedly violated the conditions of her

community control by failing to submit to required drug tests and for testing positive for illegal

drugs in the hospital. Consequently, Mother was potentially facing incarceration on her original

sentence.

{¶25} Given all the evidence admitted at the adjudicatory hearing about Mother’s

inability to provide a suitable home for Z.H., the trial court did not err in finding that the child’s

“condition or environment” warranted the state “in assuming the child’s guardianship.” R.C.

2151.04(C). Mother’s first assignment of error is overruled.

III.

{¶26} Mother’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Juvenile Division, is affirmed.

Judgement 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.

BETTY SUTTON
FOR THE COURT

CARR, P. J.
CALLAHAN, J.
CONCUR.

APPEARANCES:

DENISE E. FERGUSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.

JAMES BRIGHTBILL, Attorney at Law, for Appellee.

NEIL P. AGARWAL, Guardian ad Litem.