In re K.J.

2020 Ohio 3918

Opinion

[Cite as In re K.J., 2020-Ohio-3918.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

IN RE: CASE NO. 5-19-31 K.J.,

ALLEGED NEGLECTED AND DEPENDENT CHILD. OPINION

[NATALIE GRILLIOT - APPELLANT]

IN RE: CASE NO. 5-19-32 M.C.,

Appeals from Hancock County Common Pleas Court Juvenile Division Trial Court Nos. 20193042 and 20193043

Judgments Reversed

Date of Decision: August 3, 2020

APPEARANCES:

Dorothy L. Williams for Appellant

Wesley R. True for Appellee Case Nos. 5-19-31 and 5-19-32

WILLAMOWSKI, J.

{¶1} Appellant Natalie Grilliot (“Grilliot”) brings this appeal from the

judgments of the Court of Common Pleas of Hancock County, Juvenile Division

finding that the children, K.J. and M.C. were neglected and dependent children and

placing the children in the temporary custody of Natalie Boggs (Boggs) with

protective supervision by the Hancock County Job and Family Services – Children’s

Protective Services Unit (“the Agency”). Grilliot claims that the trial court erred in

determining that the children were neglected and dependent and that the trial court

erred in removing the children from the home. For the reasons set forth below, the

judgments are reversed.

{¶2} Grilliot is the mother of K.J. (born in 2008) and M.C. (born in 2017).

ADoc. 1 and BDoc. 1.1 On April 11, 2019, the Agency received a report claiming

that the children were not being properly cared for, that Grilliot was using

methamphetamine in the home and leaving chunks of meth on the floor where M.C.

was crawling. Id. The report also alleged that there was no food in the home

because Grilliot was selling her food stamps to buy drugs, that M.C.’s diaper was

not being changed, and she was not being fed or bathed regularly. Id. An

investigator went to the home on April 12, 2019, and observed M.C., who appeared

happy and healthy at that time, though K.J. was at school at the time. Id. Grilliot

1 K.J.’s case is identified as ADoc. M.C.’s case is identified as BDoc.

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and Jesse Bibler (“Bibler”), her boyfriend, admitted to using marijuana and agreed

to submit to drug screens. Id. On April 17, 2019, the agency received the results of

the drug screens which showed that both Grilliot and Bibler tested positive for THC,

methamphetamines, and amphetamines. Id. At that time, the Agency moved the

children to Boggs’ home pursuant to a previously determined safety plan. On May

8, 2019, the Agency filed complaints alleging that K.J. and M.C. were neglected

and dependent children. Id. The basis for the complaints were the positive drug

screens of Grilliot and Bibler. Id. The complaints also noted that Gilliot had been

diagnosed with multiple mental health disorders. Id. The Agency requested that

the children be removed from the home and placed in the temporary custody of their

maternal grandmother, Boggs, under the protective supervision of the Agency. Id.

A hearing was held on May 16, 2019, regarding the pre-dispositional interim orders.

ADoc. 8 and BDoc. 11. The trial court awarded temporary custody of the children

to the Agency at that time as Boggs’ home study had yet to be completed. Id.

{¶3} A guardian ad litem (“the GAL”) was appointed for the children on June

6, 2019. ADoc. 11 and BDoc. 16. On July 12, 2019, the GAL filed her report and

recommendations. ADoc. 19 and BDoc. 25. The GAL noted that the children had

been placed in the temporary custody of Boggs in April of 2019 on a safety plan.

Id. The GAL reported that the children appeared physically healthy and

developmentally on track, but that Grilliot apparently had severe mental health

issues. Id. Both children were considered to be safe in their placement with Boggs.

Id. The GAL report indicated that Grilliot has tested positive in April 2019 for use

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of methamphetamines, amphetamines, and THC. Id. After that first screen, Grilliot

has continued to test positive for THC, but does have a medical marijuana card that

became active May 2, 2019. Id. Grilliot was diagnosed with PTSD, Persistent

Depressive Disorder, Generalized Anxiety Disorder, Bipolar Disorder, Borderline

Personality Disorder, and Multiple Personality Disorder. Id. The GAL

recommended that temporary custody of the children continue with Boggs under the

protective supervision of the Agency. Id.

{¶4} On July 9, 2019, a case plan was submitted to the trial court. ADoc.15

and BDoc. 21. The case plan required Grilliot to 1) maintain a safe, stable home for

the children; 2) complete substance abuse treatment and mental health treatment2;

3) not permit anyone else to use drugs around the children; and 4) receive parent

education. Id. The case plan noted that the reason for the removal of both children

was that Grilliot and Bibler “both tested positive for multiple substances” and that

M.C. was vulnerable towards maltreatment as she was too young to report it. Id.

{¶5} A joint adjudication and disposition hearing was held on August 1,

2019. ADoc. 22 and BDoc. 28. At the hearing, the Agency presented the testimony

of two witnesses. Amanda Sosa (“Sosa”) testified that she is an investigator for the

Agency and had been a case worker since May 17, 2018. Tr. 6, 38. Sosa testified

as to the report of the alleged neglect and dependency and the actions she took after

the report was received. Tr. 7-14. Sosa went to the home on April 11, 2019, to

2 Interestingly, this requirement prohibited Grilliot from using “any * * * prescription medication or other substances.”

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conduct the investigation. Tr. 8. As part of the investigation, Grilliot submitted to

a drug test via mouth swab. Tr. 13-14. The results of the drug test showed that

Grilliot was positive for amphetamines, methamphetamines and THC. Tr. 15-16.

Grilliot also tested positive solely for THC in a subsequent test. Tr. 16. The day

Sosa went to the home to investigate, M.C. had been left with Bibler who Sosa

claimed was under the influence of an illegal substance at the time he was watching

the baby. Tr. 17. The basis for this claim was that Bibler had tested positive for

illegal substances that day. Tr. 17. Sosa testified that she returned to Grilliot’s

home on April 16, 2019, to place the children with Boggs as was set forth in the

safety plan. Tr. 18. Sosa indicated that in her opinion, the children were being

neglected and dependent due to Grilliot’s continued drug usage and Grilliot and

Bibler being under the influence while caring for the children, one of which was an

infant. Tr. 20-21.

{¶6} On cross-examination Sosa admitted that the house did not contain any

hazardous conditions when she saw it and that the children appeared healthy. Tr.

22. Sosa indicated there was food in the home. Tr. 22. She did not observe any

evidence of drugs in the home. Tr. 22. Sosa admitted that after the initial test,

Grilliot tested positive for only THC. Tr. 29. When questioned about whether there

was any evidence that Grilliot had used drugs in front of the children, Sosa admitted

there was none. Tr. 35. When asked if there was anything in the report that she

could verify the day of the visit, Sosa admitted there was not. Tr. 22.

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{¶7} The Agency’s second witness was Rebecca Shoemaker (“Shoemaker”)

who was the caseworker for the children. Tr. 45. She testified that the children

were in the temporary custody of Boggs and there were no concerns with the

placement. Tr. 46. According to Shoemaker, a homestudy of Boggs’ home was

completed and she was approved for placement. Tr. 47. The Agency requested that

the children remain in the temporary custody of Boggs. Tr. 47. Shoemaker testified

that the goal of the Agency was to reunify the children with Grilliot, but the children

would remain under the protective supervision in the meantime. Tr. 48. Shoemaker

stated that the temporary custody should be continued with Boggs until there was

time for Grilliot to make progress on the case plan. Tr. 49.

{¶8} Shoemaker indicted on cross-examination that they wanted Grilliot to

“maintain a safe and stable drug-free home” and receive parent education. Tr. 49-

50. Shoemaker testified that the home-based coach would look at the issues of the

family and tailor services to the family. Tr. 51. Shoemaker admitted that these

services could happen while the children were still in the home. Tr. 52. Shoemaker

also admitted that since April, the tests have shown that the only drug used by

Grilliot was THC. Tr. 53. Shoemaker testified that Grilliot had already completed

the GAIN assessment and that there was no further treatment recommended. Tr.

54. Shoemaker admitted that she did not know how a medical marijuana card would

affect the case, but indicated that before the Agency would allow the children to be

returned to the home, the Agency would need “a physician’s understanding of what

the Agency’s requesting to make sure that the children are able to be cared for in a

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safe manner.” Tr. 55. Shoemaker admitted that she did not feel qualified to

determine how a medical marijuana card affects the Agency’s requirement that a

home be drug-free. Tr. 58.

{¶9} Following Shoemaker’s testimony, the Agency rested its case. Grilliot

then testified on her own behalf. Grilliot testified that there were not

methamphetamines in her home and there had never been any in the home. Tr. 62.

Grilliot identified Ex. D as a letter from Blanchard Valley Health System noting that

she came for an office visit on July 17, 2019, where she had a drug screen

completed. Tr. 64. The screen showed she only tested positive for THC. Tr. 64.

The letter further stated that the author did not believe Grilliot was misusing drugs.

Ex. D. Grilliot then identified Ex. E as a letter from her doctor that provided with

her authorization for a medical marijuana card. Tr. 65. The letter stated that Grilliot

was compliant with all treatment recommendations and was under the care of the

doctor and a mental health practitioner. Ex. E. The letter also stated that the doctor

did not deem her to be a threat to herself, her children, or others. Ex. E. Grilliot

identified Ex. F as her diagnostic assessment from Century Health. Tr. 66. Exhibit

F stated that Grilliot went to the facility for a drug and alcohol assessment. Ex. F.

According to Grilliot, the results showed she did not have an addiction problem and

no recommendations were made. Tr. 66.

{¶10} The father of K.J. also testified. He indicated that he thought it would

be in the best interest of K.J. for her to return to Grilliot’s home. Tr. 84. He testified

that the only drugs he ever knew Grilliot to use was marijuana and that he knew she

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had a medical card for the use at this time. Tr. 84. At the conclusion of the hearing,

the GAL made the following statement.

Your Honor, I agree with [the Agency’s] case plan. And I do think that [Grilliot] has made great progress in getting things squared away in her home so she’s able to effectively parent her children.

I would like to see the children remain with their grandmother for a few more months, awhile longer, so that both [Bibler] and [Grilliot] can establish a consistent pattern of mental health treatment and counseling and drug substance abuse treatment.

Tr. 90. The Agency requested that the trial court find the children to be neglected

based upon the positive drug tests for drugs in April, and the fact that Grilliot

allowed Bibler to watch the children even though he tested positive for prior drug

use. Tr. 91. The trial court then found by clear and convincing evidence that the

children were neglected and dependent children and placed them in the temporary

custody of Boggs with protective supervision by the Agency.3 Tr. 97, ADoc. 22,

and BDoc. 28. Grilliot filed a timely notice of appeal. ADoc. 23 and BDoc. 30. On

appeal, she raises the following assignments of error.

First Assignment of Error

The trial court erred in finding the children neglected and dependent based largely on the mother’s use of medical marijuana, said finding being contrary to statute.

3 A review of the transcript shows that the Agency also indicated a concern that Grilliot had allowed a convicted felon in the home. There was no evidence that Grilliot ever had any knowledge that this neighbor had a felony conviction in his past. This was never an allegation made in the complaints. Additionally, the issue was resolved prior to the filing of the complaint by Grilliot obtaining a restraining order to keep the man away from the home.

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Second Assignment of Error

The trial court’s finding that the children were neglected and dependent was against the manifest weight of the evidence.

Third Assignment of Error

The trial court erred in finding a questionable drug screen to be clear and convincing evidence of neglect.

Fourth Assignment of Error

The trial court erred in removing the children from the home when the recommended services could be provided with the children residing in the home.

Fifth Assignment of Error

The trial court erred in finding the children to be neglected and dependent based on their mother’s disability without giving appropriate weight to her compliance with treatment.

{¶11} In the first and second assignments of error, Grilliot alleges that the

trial court erred in finding the children to be neglected and dependent. To show that

a child is neglected or dependent, the Agency must prove the allegations by clear

and convincing evidence. R.C. 2151.35(A)(1). Clear and convincing evidence is a

measure of proof which produces in the mind of the trier of facts a firm belief as to

the allegations sought to be established. In re Stoll, 165 Ohio App.3d 226, 2006-

Ohio-346, ¶ 20, 845 N.E.2d 581 (3d Dist.) citing Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954).

{¶12} A dependent child is defined as one

(A) Who is homeless or destitute or without adequate parental care, through no fault of the child’s parents, guardian, or custodian;

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(B) Who lacks adequate parental care by reason of the mental or physical condition of the child’s parents, guardian, or custodian;

(C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child’s guardianship;

(D) To whom both of the following apply:

(1) The child is residing in a household in which a parent, guardian, custodian, or other member of the household committed an act that was the basis for an adjudication that a sibling of the child or any other child who resides in the household is an abused, neglected, or dependent child.

(2) Because of the circumstances surrounding the abuse, neglect, or dependency of the sibling or other child and the other conditions in the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household.

R.C. 2151.04. Here, the Agency alleged that the children were dependent under

R.C. 2151.04(C), the condition and environment of the home. A determination of

dependency requires no showing of fault by the parents, but instead focuses

exclusively on the child’s situation to determine whether the child is without proper

or adequate care. In re Riddle, 79 Ohio St.3d 259, 262, 680 N.E.2d 1227 (1997).

The parent’s conduct is significant only if it has an adverse impact on the child

sufficient to justify state intervention. In re C.T., 6th Dist. Sandusky No. S-18-005,

2018-Ohio-3823, ¶ 60, citing In re Burrell, 58 Ohio St.2d 37, 39, 388 N.E.2d 738

(1979). “A dependency finding based on a parent's use of illegal substances or abuse

of legal substances ‘requires ‘some evidence that [the parent's] supervision of her

children or the environment of her children has been affected in some negative way’

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by the behavior of the parent.’ ” In re C.T., supra quoting In re O.H., 9th Dist.

Summit No. 25761, 2011-Ohio-5632, ¶ 9, quoting In re R.S., 9th Dist. Summit No.

21177, 2003-Ohio-1594, ¶ 20.

{¶13} A neglected child is defined as one

(1) Who is abandoned by the child’s parents, guardian, or custodian;

(2) Who lacks adequate parental care because of the faults or habits of the child’s parents, guardian, or custodian;

(3) Whose parents, guardian, or custodian neglects the child or refuses to provide proper or necessary subsistence, education, medical or surgical care or treatment, or other care necessary for the child’s health, morals, or well being;

(4) Whose parents, guardian, or custodian neglects the child or refuses to provide the special care made necessary by the child’s mental condition;

(5) Whose parents, legal guardian or custodian have placed or attempted to place the child in violation of sections 5103.16 and 5103.17 of the Revised Code;

(6) Who, because of the omission of the child’s parents, guardian, or custodian, suffers physical or mental injury that harms or threatens to harm the child’s health or welfare;

(7) Who is subjected to out-of-home care child neglect.

R.C. 2151.03(A). Here, the complaint alleges that the children were neglected

pursuant to R.C. 2151.03(A)(2), because the children allegedly lacked adequate

parental care due to an action or habit of the parents. “ ‘Adequate parental care’

means the provision by a child's parent or parents, guardian, or custodian of

adequate food, clothing, and shelter to ensure the child's health and physical safety

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and the provision by a child's parent or parents of specialized services warranted by

the child's physical or mental needs.” R.C. 2151.011(B)(1).

{¶14} In this case, Sosa testified that there was a positive drug test of Grilliot

and Bibler in April for methamphetamines, amphetamines, and THC. However, she

did not testify that Grilliot or Bibler appeared to be under the influence of any

regulated substance at that time. Sosa testified that Grilliot’s and Bibler’s

interactions with the children were appropriate. Tr. 24. Sosa also indicated that she

observed no odd behavior on the part of Grilliot as part of her investigation. Tr. 34.

Instead, she testified that M.C., the only child she observed, appeared clean and

healthy. Tr. 21-22.. The home was clean, safe, and there was sufficient food. Tr.

22. Sosa also testified there was no sign of drug usage in the home. Tr. 22. Despite

the alleged report of neglectful conditions, the environment was appropriate and

Sosa left the children in the care of Grilliot and Bibler when she left the home,

having seen nothing of significant enough concern to cause her to remove the

children at that time. Sosa did not remove the children until the positive drug screen

results were returned and did not file the complaint alleging the children to be

neglected and dependent for approximately three weeks after the children were

removed pursuant to the safety plan. No evidence was presented that would indicate

that there was an actual issue with the children’s environment. The only allegation

in the report received by the Agency which was confirmed was that Grilliot and

Bibler had used methamphetamines, amphetamines, and marijuana at some point

prior to the time of the test. No evidence was presented that such use occurred in

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the presence of the children or that it had an effect on the environment of the

children. None of the allegations regarding the environment of the children, i.e. the

drugs on the floor, the lack of food, and the failure to properly care for M.C., were

supported by the testimony of either Sosa or Shoemaker. Although courts are not

required to wait for a child to be injured or harmed before finding a child is neglected

or dependent, there must be some evidence presented beyond a mere possibility of

harm. Without the environment having any effect on the children or a demonstration

of lack of adequate parental care, this Court cannot find that the Agency proved by

clear and convincing evidence that the children were dependent or neglected. Thus

the first and second assignments of error are sustained.

{¶15} Having determined that the Agency failed to present clear and

convincing evidence that the children were dependent or neglected, we need not

address the remaining assignments of error. App.R. 12(A)(1)(c). However, this

Court notes that this case raised an interesting issue about the effect of permission

to possess and use marijuana via a state issued medical marijuana card on a case

plan requirement that a home be completely drug free. The Court notes the

existence of new statutory language stating “[u]nless there is clear and convincing

evidence that a child is unsafe, the use, possession or administration of medical

marijuana in accordance with this chapter shall not be the sole or primary basis for

any of the following: (1) an adjudication under section 2151.28 of the revised code

determining that a child is an abused, neglected, or dependent child . . .” R.C.

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3796.24. How this will affect future case plans remains undetermined. At this point

in time, the question is not addressed by this court.

{¶16} Having found error in the particulars assigned and argued, the

judgments of the Court of Common Pleas of Hancock County, Juvenile Division is

reversed and the matter is remanded for further proceedings in accord with this

opinion.

Judgments Reversed And Causes Remanded

SHAW, P.J. and PRESTON, J, concur in Judgment Only.

/hls

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