In re Baby Boy Blackshear

736 N.E.2d 462, 90 Ohio St. 3d 197

Opinions

Douglas, J.

Kimbrough presents us with a single proposition of law asking us to find that “[i]n enacting R.C. 2151.031, the Ohio General Assembly intended to exclude an unborn fetus from its definition of ‘child.’ ” The trial court herein apparently permitted Kimbrough to frame the issue in this way because in response to Kimbrough’s arguments, the trial court held that “[c]onsequently an unborn fetus is a ‘child’ under R.C. 2151.031.” While the court of appeals, in affirming the judgment of the trial court, discussed, inter alia, the question of whether a fetus is a child for purposes of R.C. 2151.031, it appears that the court of appeals did not directly rule on that issue, finding, presumably, that such a determination was not necessary to the resolution of the case before the court. The court of appeals did say, to be sure, that “we hold that R.C. 2151.031(D) is constitutionally applicable to a child born alive with post-birth symptoms of the exposure of illegal drugs by the child’s mother to the viable fetus.” This would seem to be something less than an affirmance of the trial court’s finding that a fetus is a child.

The issue arises because Kimbrough contends that the trial court and the court •of appeals have assumed authority that the General Assembly did not provide when the courts permitted SCDHS to take custody of Lorenzo to the exclusion of Kimbrough. The statute in question, R.C. 2151.031, and specifically subsection (D), provides:

“As used in this chapter, an ‘abused child’ includes any child who:

U * :¡: :¡;

“(D) Because of the acts of his parents, * * * suffers physical or mental injury that harms or threatens to harm the child’s health or welfare.”

R.C. 2151.011(B) provides:

“As used in this chapter:

(i * * *

“(6)(a) ‘Child’ means a person who is under eighteen years of age * * “Person” is not defined in R.C. 2151.011.

Kimbrough contends that since the definition of “child” does not include a fetus, the General Assembly meant to exclude a fetus from the definition of “child” and since, Kimbrough contends, her action of using cocaine, which caused the injury to Lorenzo, occurred while Lorenzo was a fetus — and not while Lorenzo was a fully born child — R.C. 2151.031(D), the section defining who is an abused child, cannot be used to remove Lorenzo from her custody or control. We disagree.

We do not agree with Kimbrough in either how she has framed the issue or her interpretation of the statute. Accordingly, we find that the issue is not whether a fetus is a child but rather whether the plain language of R.C. 2151.031(D) applies to Lorenzo and the facts of this case.² Again, R.C. 2151.031(D) provides that, as used in R.C. Chapter 2151, an “abused child” includes any child who, “[b]ecause of the acts of his parents, * * * suffers physical or mental injury that harms or threatens to harm the child’s health or welfare.”

It is clear that the action causing the injury to Lorenzo Was taken by one of his parents, Kimbrough. It is clear that the action taken by Kimbrough caused Lorenzo injury — both before and after birth. It is clear that after his birth, Lorenzo was a “child” as defined in R.C. 2151.011(B)(6)(a). It is clear, as the court of appeals ably noted, that the discovery of cocaine in Lorenzo’s system was by a postbirth test rather than by a prenatal test. It is clear, and there can be no doubt, that an alleged abused child, once born, falls under the jurisdiction of the appropriate juvenile court. R.C. 2151.23. It is clear that a child has legal and constitutional rights and that juvenile courts were created, in part, to protect those rights and to empower the state to provide for the care and protection of Ohio’s children. It is clear that there can be no more sacred or precious right of a newborn infant than the right to life and to begin that life, where medically possible, healthy, and uninjured. And it is clear that to ignore these facts, these rights, and the numerous problems presented in these cases is to place our collective heads in the proverbial sand and hope that the vexing questions will somehow just disappear. Well, they will not!

Thus we apply the statute as written and to the facts of this case. Accordingly, we hold that when a newborn child’s toxicology screen yields a positive result for an illegal drug due to prenatal maternal drug abuse, the newborn is, for purposes of R.C. 2151.031(D), per se an abused child.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Resnick, F.E. Sweeney and Lundberg Stratton, JJ., concur. Resnick and Lundberg Stratton, JJ., concur separately. Pfeifer and Cook, JJ., dissent.

Footnotes

2

. The appellant, amici, and appellee have all cited a number of cases for our consideration. The cases cited are not on point when the issue is framed as we have framed it and when the specific statute involved and the clear facts of the case at bar are considered.

For examples, and the list is not meant to be all-inclusive, appellant, amici, and appellee all cite Werling v. Sandy (1985), 17 Ohio St.3d 45, 17 OBR 37, 476 N.E.2d 1053, and State v. Gray (1992), 62 Ohio St.3d 514, 584 N.E.2d 710. Appellant and appellee each cite Jasinsky v. Potts (1950), 153 Ohio St. 529, 42 O.O. 9, 92 N.E.2d 809, and Williams v. Marion Rapid Transit, Inc. (1949), 152 Ohio St. 114, 39 O.O. 433, 87 N.E.2d 334. Appellant cites In re Ruiz (1986), 27 Ohio Misc.2d 31, 27 OBR 350, 500 N.E.2d 935.

The Williams, Jasinsky, and Werling cases all hinged on the rights of children, born alive or stillborn, to bring, or to have brought on their behalf, an action for injuries sustained because of the negligence of another, while they were still in their mother’s womb. The case now before us involves the rights of a mother with regard to whether her parental rights can be terminated or curtailed. Accordingly, the cited cases are not on point.

The Gray case was a criminal case and involved whether a mother could be prosecuted for child endangerment where substance abuse occurred during pregnancy. As this was a criminal case, the court was mandated by R.C. 2901.04(A) to strictly construe the criminal statute against the state and liberally construe the statute in favor of the accused. Id., 62 Ohio St.3d at 515, 584 N.E.2d at 711. The case at bar is a civil proceeding and involves R.C. Chapter 2151, whose terms are not subject to the strict construction rule. In fact, in this case the opposite is true because R.C. 2151.01 mandates the court to liberally construe and interpret the sections of R.C. Chapter 2151, so as to provide for the care and protection of children and their constitutional and legal rights. Thus, Gray has no application to the case now before us.

Distinguishing Ruiz presents a more difficult problem but, in any event, the ultimate holding of Ruiz is in accordance with our decision today. Judge Pollex of the Court of Common Pleas of Wood County, Juvenile Division, felt “compelled to hold that a viable fetus is a child under the existing child abuse statute.” Ruiz, 27 Ohio Misc.2d at 35, 27 OBR at 355, 500 N.E.2d at 939. This conclusion was reached after a review of a number of cases including Williams, Jasinsky, and Werling. We have already shown how those cases do not apply in the context of the case now before us. Thus, a child born alive who tests positive at birth for addiction to cocaine suffers from abuse and continued abuse no matter when the original abuse occurred.