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In re Blackshear9/7/1999
JUDGMENT: Affirmed
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 " * an unborn fetus is a 'child' under R.C. 2151.031. Therefore harm which occurred prior to birth may constitute abuse. A newborn who tests positive for an illegal narcotic is abuse (sic) per se." 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.
ISSUES PERTAINING TO APPELLANT'S REPRODUCTIVE RIGHTS
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
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