In Re: Baby Boy Blackshear Nka Lorenzo Blackshear, Minor Child Case
| Decision Date | 07 September 1999 |
| Docket Number | 99CA00018,99-LW-4011 |
| Parties | IN RE: BABY BOY BLACKSHEAR NKA LORENZO BLACKSHEAR, MINOR CHILD Case |
| Court | Ohio Court of Appeals |
Appeal from the Court of Common Pleas, Juvenile Division, Case No JU-103261
Hon William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J.
For Appellee: PAULA M. SAWYERS 220 E. Tuscarawas Street Canton, OH 44702
For Appellant: COLLEEN M. BONK 306 Market Avenue N. Canton, OH 44702-1420
Appellant Tonya Kimbrough appeals the decision of the Stark County Juvenile Court finding her infant son an abused child pursuant to R.C. 2151.031(D). Appellant gave birth to Lorenzo Blackshear on July 14, 1998. Both appellant and Lorenzo tested positive for cocaine after the birth. On July 16, 1998 the Stark County Department of Human Services ("SCDHS") filed a complaint alleging inter alia that Lorenzo was suffering cocaine withdrawal symptoms, including tremors and uncontrolled shaking. The complaint further alleged that Lorenzo was thereby a dependent, neglected, and/or abused child under the definitions in R.C. 2151.04, 2151.03, and 2151.031. The trial court granted temporary custody of Lorenzo to SCDHS on that date. On July 17, 1998 the trial court conducted a "shelter care" hearing pursuant to R.C. 2151.28 and continued SCDHS temporary custody status. On September 30, 1998, the magistrate held an evidentiary adjudicatory hearing. In a decision filed October 6, 1998, the magistrate found Lorenzo to be an abused child. The decision additionally read that Appellant objected to the decision of the magistrate. Judge Stucki approved and adopted the decision on January 6, 1999. Appellant timely appealed and raises the following Assignment of Error:
THE TRIAL COURT'S FINDING OF ABUSE WHEN AN INFANT TESTED POSITIVE FOR COCAINE AT BIRTH VIOLATES MOTHER'S RIGHTS OF DUE PROCESS AND HER FUNDAMENTAL RIGHTS UNDER THE OHIO AND U.S. CONSTITUTION AND LAWS.
Appellant has divided her sole assignment of error into several sub-issues, which we will address in turn.
We first address the issues relating to the principles of reproductive rights. Appellant argues that defining a fetus as a child in this type of action exceeds the scope of R.C. Chapter 2151 and cannot form the foundation of an abuse complaint. In a similar vein, she maintains that the statute does not recognize prenatal fault as abuse. Appellant additionally contends that the application of R.C. Chapter 2151 to prenatal parental abuse violates fundamental constitutional rights of pregnant women. The trial court rendered its abuse finding pursuant to R.C. 2151.031(D), which reads as follows: As used in this chapter, an "abused child" includes any child who: *** (D) Because of the acts of his parents, guardian, or custodian, suffers physical or mental injury that harms or threatens to harm the child's health or welfare. *** R.C. 2151.011(B)(6)(a) defines "child" as "a person who is under eighteen years of age, except as otherwise provided in divisions (B)(6)(b) to (f) of this section." No definition of "person" is found in R.C. 2151.011; appellant therefore relies on the precedent established in Roe v. Wade (1973), 410 U.S. 113, that a fetus is not a "person" as the term is used in the Fourteenth Amendment to the U.S. Constitution, and that therefore Lorenzo was not a "child" at the times of his exposure to cocaine. She thus maintains that the trial court impermissibly applied the child abuse provisions of R.C. 2151.031 to the situation in the case sub judice. Approximately twenty years after Roe, in Planned Parenthood v. Casey (1992), 505 U.S. 833, the United States Supreme Court summarized as follows: It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. Id. at 846, emphasis added.
Thus, while Roe, et al. may have excluded a fetus from the category of "persons" under the Fourteenth Amendment, these cases nonetheless do not eliminate the interest of the State in protecting a viable fetus: "[S]ubsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Roe v. Wade, 410 U.S. 113, 164-165.
Appellant further relies on two Ohio Supreme Court holdings in the realm of criminal law. In State v. Dickinson (1971), 28 Ohio St.2d 65, the Court held that a viable fetus not subsequently born alive was not a "person" within the scope of the vehicular homicide statute. In State v. Gray (1992), 62 Ohio St.3d 514, the Court refused to allow a criminal prosecution for child endangering against a mother for substance abuse during her pregnancy. However, in Williams v. The Marion Rapid Transit, Inc. (1949), 152 Ohio St. 114, paragraph two of the syllabus, the Supreme Court of Ohio established a child who is en ventre sa mere (viable in the mother's womb) is in fact a "person": 2. Injuries wrongfully inflicted upon an unborn viable child capable of existing independently of the mother are injuries 'done him in his * * *person' within the meaning of Section 16, Article I of the Constitution and, subsequent to his birth, he may maintain an action to recover damages for the injury so inflicted. Id.
We are cognizant that Williams predated Roe; however, nearly twelve years after the latter landmark case the Supreme Court of Ohio similarly ruled that a viable fetus negligently injured en ventre sa mere, and subsequently stillborn, could be the subject of a wrongful death action under R.C. 2125.01. Werling v. Sandy (1985), 17 Ohio St.3d 45. The Court reasoned: The [Roe] court found the compelling point in the state's legitimate interest of protecting potential life to be at viability, as the fetus, at that time, has the capability of meaningful life outside the mother's womb. It follows, therefore, that our decision is entirely consistent with Roe to the effect that a viable fetus is a person entitled to protection and may be a basis for recovery under the wrongful death statute. Id. at 49.
If Ohio law thus allows for such civil remedies in tort, even in light of Roe, et al, we are not persuaded that the juvenile court's remedy of an abuse finding based on Lorenzo's prenatal exposure to cocaine is per se a violation of appellant-mother's constitutional rights. Unlike in Dickinson and Gray above, we are not required to strictly construe statutory terms in favor of the accused; the present Chapter R.C. 2151 action is civil in nature (see, e.g., In re Bolden (1973), 37 Ohio App.2d 7, 34) and brought by the State not against an "accused" parent, but brought in the name of the child for his protection. Dickinson, at 70. Moreover, the facts in the case sub judice indicate that Lorenzo suffered post-birth the aftereffects of appellant's cocaine use, a portion of which occurred "recently before giving birth." It is clear that he was subject to potential juvenile court protection upon his birth, as even under appellant's theory he met the definition of "person" upon that event. We are further cognizant of the legislative mandate regarding Ohio's juvenile court system as found in R.C. 2151.01(A). The sections in Chapter 2151. of the Revised Code, with the exception of those sections providing for the criminal prosecution of adults, shall be liberally interpreted and construed so as to effectuate the following purposes:
(A) To provide for the care, protection, and mental and physical development of children subject to Chapter 2151. of the Revised Code. * * *
In that light, 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.
In her next sub-issue, appellant argues that defining "custody" as inclusive of a pregnant woman's status in regard to her unborn or newborn child exceeds the scope of R.C. 2151. Her underlying premise is that "[i]n order to allege the prenatal fault necessary to find abuse SCDHS must prove that the parent in fact had custody of the child." Appellant's Brief at 10. We disagree. As noted supra, the trial court based its holding on R.C 2151.031(D), which uses the disjunctive phrasing "[b]ecause of the acts of [the child's] parents, guardian, or custodian ***." We are not persuaded...
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