Eighth District: Prosecutor, Social Worker Not in Contempt for Failing to Obey Magistrate’s Illegal Order
A Cuyahoga County juvenile court was wrong to hold a county social worker and assistant county prosecutor in contempt for failing to remove a child from a home in a manner that is not allowed by law, an Ohio appeals court ruled.
The Eighth District Court of Appeals last week reversed the contempt-of-court-ruling and $100 fines against Amy Bond, a Cuyahoga County Department of Children and Family Services social worker, and Cuyahoga County Assistant Prosecutor Laura Brewster. The court scolded the magistrate holding the two in contempt for failing to follow a prior Eighth District ruling, which did not allow an order to immediately remove a child from a home without notice to the parent unless there is a clear emergency.
Children and Family Services (CFS) filed a complaint in juvenile court in March 2014, to declare a minor child, listed in court records by the initials J.A., dependent because of his mother’s substance abuse. CFS asked the court to order J.A. into its protective supervision. The magistrate hearing the case granted CFS’s request and then set conditions for the prospective removal of the child. The magistrate ordered the mother to be drug tested the next day, and if the mother tested positive for drugs, or if the child missed any medical appointments, the information was to be brought to the court immediately and J.A. was to be removed from the home.
The mother tested negative for drugs the next day and a case plan was implemented by CFS. In May 2014, the mother tested positive for opiates. Bond was supervising the matter and learned the mother received a pain pill from her mother, who said she accidentally gave her daughter a pill that included an opiate. Bond did not report the matter to the prosecutor’s office because she did not determine J.A. was at risk and she did not notify the court because she interpreted the March order by the magistrate to only apply to the March drug test or if the child missed medical appointments. The mother continued to take drug tests and passed until September 2014, when she again testified positive for opiates. Bond then discovered J.A. was missing medical appointments.
CFS did not remove J.A. from the home, based on the prosecutor’s advice that the agency could not remove the child without a court hearing. The prosecutor’s office filed a notice of violation and requested a court hearing. In October 2014, the magistrate conducted the hearing, granted temporary custody to CFS, and issued notice of contempt of court against Bond and Brewster for not immediately removing the child from the home as outlined in the March order. The magistrate found the two in contempt and imposed the $100 fines, and a juvenile judge affirmed the decision. The county appealed.
Writing for the Eighth District, Judge Tim McCormack wrote the magistrate’s order lacked clarity, including specifying which agency or individual was responsible for removing the child, and who would have custody of the child if the mother failed a drug test or failed to take the child to medical appointments. He also cited the Eighth District’s 2015 In re B.W. decision that except for a few specific circumstances, any order to automatically remove a child from a home without notice to the parent is unlawful.
Judge McCormack cited state laws allowing the county to remove a child if there are reasonable grounds to believe removal is “necessary to prevent immediate or threatened physical or emotional harm,” and to protect against neglect. He noted that except for those instances of immediate harm or emergencies, the parent or custodian of the child must receive notice and an opportunity to be heard, and that situation had to show more than a threat of future harm.
“As this court concluded in B.W., the removal of a child requires a hearing to determine the immediacy of harm and best interest of the child, in light of the totality of circumstances existing at the time. In this case, the significant passage of time between the initial order and the mother’s positive drug test made such an inquiry even more essential,” he wrote.
Judge McCormack found the magistrate had no authority to issue the order without a hearing and that the juvenile court could not hold Bond and Brewster in contempt for failing “to carry out its unsustainable order.”
Judges Mary Eileen Kilbane and Eileen T. Gallagher concurred in the decision.
In re Contempt of Brewster, 2015-Ohio-4984
Civil Appeal from: Cuyahoga County Common Pleas Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: Dec. 3, 2015
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