[Cite as In re R.R. , 2021-Ohio-2369.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: JUDGES: Hon. Crai g R. Baldwin, P.J. R.R., C.G., C.G., R.G., & J.G. H on. William B. Hoffman, J. Hon. John W. Wise, J. Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015

O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Juvenile Division, Case Nos. 2020JCV835, 2020JCV836, 2020JCV837, 2020JCV838, & 2020JCV839

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: Jul y 7, 2021

APPEARANCES:

For Plaintiff-Appellee For Mother Defendant-Appellan t

BRANDON J. WALTENBAUGH BERNARD L. HUNT Stark Count y Departmen t 2395 McGint y Road, N.W. Of Jobs and Famil y Services North Canton, Ohio 44720 402

– 2 nd Street, S.E. Canton, Ohio 44702Stark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 2

Hoffman, J. {¶1} Defendant-appellant R.R. (herei nafter “Mother”) appeals the jud gment entered by the Stark County Common Pleas Court, Juvenile Divisi on, finding her child R.R. (DOB 4/27/03) to be abused, finding her children C.G. (DOB 1/15/11), C.G. (DOB 1/5/12), R.G. (DOB 4/26/13) and J.G. (DOB 7/16/17) to be neglec ted, and awarding temporary custody of all five children to Plaintiff-appellee St ark County Job and Family Services (hereinafter “JFS”).

STATEMENT OF THE FACTS AND CASE {¶2} JFS became involved with Mother and the children on February 5, 2020. Prior to this time, the Canton Police Department had numerous i nteractions with Mother’s home based on complaints of her children “running amok,” starti ng fights, stealing, going missing, and being found by the park police near a river in col d weather conditions. Tr. (11/4/20) 20. JFS became involved in February of 2020, based on complaints of deplorable conditions in the home, lack of supervision of the c hildren, the presence of an uncle in the home who was using drugs, and Mother’s abuse of pr escription medications. Mother was uncooperative with the caseworker’s attempts to inve stigate and address

these concerns. {¶3} Between February 5, 2020, and May 21, 2020, JFS received six ad ditional reports of concerns with the family. On May 21, 2020, the case worker received a report R.G. was punched and stomped on by his father. The caseworker also received a video in which R.R. told Mother she had been sexually abused by the f ather of the younger four children, and a video showing deplorable conditions of the home

.Stark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 3

{¶4} On May 21, 2020, the caseworker asked Canton police to accompan y her to the home to attempt to interview the children. JFS intended to remove the children from the home pursuant to Juv. R. 6 if Mother would not allow t he caseworker to speak

with the children. {¶5} When the caseworker and police arrived, the home was very quiet . Police found this unusual because normally the children are loud and r unning around. Police were also concerned Mother was not home, as the vehicle which n ormally was parked at the home was absent, and normally when they arrived at the hous e, Mother came to the porch to yell at them. The porch was stacked with mounds of gar bage. Police announced their presence and knocked on the door. The door was ajar, and when police knocked, the door partially opened. A strong odor of feces, urine, spoi led food, and garbage came from the home when the door opened. {¶6} Canton police practice is to enter a home if the door is either open or ajar and they get no response upon identifying themselves. They do this to assure the safety of persons inside, as it is unusual to find a door left open or ajar in the area, and police have found persons overdosed, passed out, stabbed, etc. in simi lar circumstances.

Police entered the home while the caseworker remained outside. Mother and the children eventually came downstairs. Mother initially waved the casewor ker inside when the caseworker indicated she wanted to speak to the children. Howe ver, Mother changed her mind and interfered with the caseworker’s attempts to talk with the children. Mother was arrested and the children were taken into custody.Stark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 4

{¶7} The inside of the home was deplorable. Throughout the home, po lice found garbage and feces, dirty diapers, rotten food which had attract ed flies, and a rabbit hopping from room to room. The p lumbing on the first floor was not functional. {¶8} R.R. was not living in the home at the time, but was pregnant a nd residing with her boyfriend’s family. R.R. underwent an assessment with Carrie Schnirring, a sexual abuse and trauma expert. R.R. told Ms. Schnirring Mothe r’s boyfriend, who is the father of the other four children, had been physically violent to Mother and the children, and had sexually abused R.R. R.R. stated the sexual abuse bega n when she was six years old, and continued to the age of 15. R.R. stated she tol d Mother about the sexual abuse when she was 13 years old, yet Mother allowed the boyfrie nd to stay in the home. Ms. Schnirring found R.R.’s claims of sexual abuse to be credib le, and diagnosed R.R. with PTSD and adjustment disorder with depression and anxiety b ased on the trauma she experienced in the home. {¶9} JFS filed a complaint on May 22, 2020, alleging the children we re dependent, neglected, and/or abused, and seeking temporary cust ody of the children. Following a shelter care hearing, the children were placed in t he temporary custody of JFS. The case was dismissed due to an inability to comply with the statutory time mandates, and refiled in August of 2020. {¶10} Appellant filed a motion in limine, arguing evidence taken from the home should be excluded because police and the caseworker entered th e home without a warrant in violation of the Fourth Amendment. The motion proce eded to a hearing before a magistrate on November 4, 2020. The magistrate found exigent circumstances existed for the warrantless entry and denied the motion in limine. The case proceeded to aStark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 5

hearing on the complaint on November 10, 2020 before a differen t magistrate. Following the hearing, the magistrate upheld the prior ruling on the moti on in limine, found R.R. to be abused and the remaining children to be neglected, and conti nued temporary custody

in JFS. {¶11} Mother filed objections to the reports of the magistrate, argui ng the magistrate erred in overruling her motion in, and the magistrat e erred in finding the children to be abused and neglected. Upon hearing objections t o the magistrate’s report, the trial court overruled the objections and entered judgment i n accordance with the report of the magistrate. It is from the February 3, 2021 judgment en tered by the Stark County Common Pleas Court, Juvenile Division, Mother prosecutes this a ppeal, assigning as

error:

I. THE TRIAL COURT ERRED WHEN IT OVERRULED

APPELLANT’S OBJECTION TO THE MAGISTRATE’S DENIAL OF

APPELLANT’S MOTION IN LIMINE.

II. THE TRIAL COURT ERRED WHEN IT OVERRULED

APPELLANT’S OBJECTION TO THE MAGISTRATE’S DECISION IN

FINDING R.R. ABUSED AND THE REST OF THE CHILDREN NEGLECTED, IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES AND SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION.Stark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 6

I.

{¶12} Mother argues the trial court erred in overruling her motion in limine to exclude all evidence taken from her home on the basis the polic e and caseworker entered

her home without a warrant in violation of the Fourth Amendment , and no exigent circumstances existed to justify the entry. {¶13} In the trial court, JFS argued the exclusionary rule does not a pply to dependency, neglect, and abuse actions, which are civil in natu re. We agree. {¶14} While this appears to be a case of first impression in Ohio, ot her states have uniformly held the Fourth Amendment’s exclusionary rule does no t apply in child protection cases. State of N.M. ex rel. CYFD v. Michael T. , 143 N.M. 75, 2007-NMCA163, 172 P.3d 1287 (purpose of the exclusionary rule is not ser ved in abuse and neglect proceeding whose focus is the health and safety of innocent chi ldren); People ex rel.

A.E.L ., 181 P.3d 1186 (Colo. 2008) (societal costs of applying exclu sionary rule would exceed any deterrent effect exclusion would have on the departm ent or the police in investigating a child welfare issue); State ex rel. A.R. v. C.R., 1999 UT 43, 982 P.2d 73 (Fourth Amendment exclusionary rule is inapplicable to child pr otection proceedings); Idaho Dept. of Health & Welfare v. Doe , 150 Idaho 103, 113, 244 P.3d 247, 257 (interests at stake in child protective proceedings are not the same as li berty interest at stake in criminal prosecutions, and purpose of the exclusionary rule is not served in abuse and neglect proceedings); Matter of Diane P ., 110 A.D.2d 354, 356, 494 N.Y.S.2d 881, 884 (1985) (exclusionary ru le should not be utilized in a child pro tective proceeding); In re Corey P., 269 Neb. 925, 935, 697 N.W.2d 647, 655 (Fourth Amendment exclu sionary rule is inapplicable in child protection proceedings); State ex rel. Dept. of Human Services v.Stark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 7

W.L.P., 345 Or. 657, 669, 202 P.3d 167 (exclusionary rule does not app ly in juvenile dependency proceedings). {¶15} We agree with the reasoning of the Utah Supreme Court, which he ld as follows in concluding the exclusionary rule should not apply in child protection proceedings:

Applying the principles enunciated in Calandra and its progeny, we conclude that the Fourth Amendment exclusionary rule is inappli cable to child protection proceedings. As described above, it is well es tablished that the deterrence of unreasonable searches and seizures is the pri ncipal purpose of the exclusionary rule and, as such, governs its appl ication. See 1 Wayne R. LaFave, Search and Seizure § 1.1(f), at 18–20 (3d ed .1996) (citing I.N.S. v. Lopez–Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984); United States v. Janis , 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L .Ed.2d 1067 (1976); United States v. Calandra , 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)). “The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in t he only effectively available way—by removing the incentive to disregar d it.” Elkins

v. United States , 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), quoted in 1 LaFave, § 1.1(f), at 18. Conversely, the exclusiona ry rule is “ ‘powerless to deter invasions of constitutionally guaranteed ri ghts where the police either have no interest in prosecuting or are willing to foregoStark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 8

successful prosecution in the interest of serving some other go al.’ ” 1 LaFave, § 1.2(b), at 30 (quoting Terry v. Ohio , 392 U.S. 1, 14, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In light of the purpose of the exclusionary rule, as well as t he State's interest in protecting children, it is improper to exclude evid ence discovered during a warrantless search in subsequent child protection proc eedings. State officials confronting t he possibility of child abuse or n eglect— emergencies that occasionally lead to child protection proceedi ngs—do not ordinarily seek to uncover incriminating evidence during the wa rrantless searches incidental to these investigations. There is little in centive to violate the Fourth Amendment because these officers do not usually act with the object of obtaining evidence for criminal prosecution. There appears to be little likelihood that any substantial det errent effect on unlawful police intrusion would be achieved by applyi ng the exclusionary rule to child protection proceedings. Whatever det errent effect there might be is far outweighed by the need to provide for the safety and health of children in peril. Although it is difficult to empiri cally document the impact of the exclusionary rule, see Janis , 428 U.S. at 446, 96 S.Ct. 3021, the very paucity of exclusionary rule cases in the context of c hild welfare proceedings indicates that allegations of improperly obtained e vidence in such proceedings are rare. Thus, extension of the exclusionary rule to such cases does not promise to “add significant protection to ... Fo urth Amendment rights.” Lopez–Mendoza , 468 U.S. at 1046, 104 S.Ct. 3479.Stark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 9

{¶16} State ex rel. A.R. v. C.R., 1999 UT 43, 982 P.2d 73, ¶¶ 19-21. {¶17} Further, with the exception of the right to counsel, Ohio court s have generally not applied criminal constitutional protections to ch ild protection proceedings,

which are civil in nature. This Court and other Ohio courts hav e found the protection afforded by the Confrontation Clause does not apply in dependen cy, neglect and abuse proceedings in Juvenile Court. In re Yeager/Reardon Children , 5th Dist. Tuscarawas No. 2001 AP 03 0024, 2002-Ohio-777; In re Burchfield , 51 Ohio App.3d 148, 154, 555 N.E.2d 325, 331 (4th Dist. Athens 1988); In re M.W., 8th Dist. Cuyahoga No. 83390, 2005-Ohio1302, ¶ 3. Terminating parental rights does not constitute dou ble jeopardy where the parent has previously been convicted of child endangering based on the same conduct.

In re Jones , 9th Dist. Summit 20766, 2002-Ohio-1748. Due process does not require a parent in a termination of parental rights proceeding be afford ed the right to a delayed appeal . In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 27. {¶18} Accordingly, we find the trial court did not err in overruling Mother’s motion in limine because the exclusionary rule does not apply in the i nstant dependency, neglect, and abuse proceeding in Juvenile Court. The first assignment o f error is overruled.

II. {¶19} In her second assignment of error, Mother argues the court erre d in admitting into evidence the report of Carrie Schnirring, the ex pert who conducted the sexual abuse trauma evaluation of R.R., because the report incl uded hearsay statements by R.R. which constituted inadmissible hearsay and violated Mot her’s right to confront witnesses against her.Stark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 10

{¶20} Mother did not object to the admission of the report, nor to Ms . Schnirring’s testimony concerning the statements of the child, at either the hearing before the magistrate or in her objections to the magistrate’s report. Mo ther has therefore waived all but plain error. The plain error doctrine is applicable in civil cases only where the error “seriously affects the basic fairness, integrity, or public rep utation of the judicial process.” Lowder v. Domingo , 5th Dist. Stark No. 2016CA00043, 2017-Ohio-1241, ¶ 21. {¶21} We find no plain error in the admission of the report and Ms. S chnirring’s testimony concerning what she was told by R.R. This Court has previously held the Confrontation Clause does not apply in dependency, neglect and abuse proceedings in

Juvenile Court. In re Yeager/Reardon Children , 5th Dist. Tuscarawas No. 2001 AP 03 0024, 2002-Ohio-777. {¶22} As for Mother’s claim the report constituted inadmissible hears ay, Evid. R. 803(4) provides:

The following are not excluded by the hearsay rule, even thoug h the

declarant is available as a witness: (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external

source thereof insofar as reason ably pertinent to diagnosis or treatment.Stark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 11

{¶23} Mother stipulated to Ms. Schnirring’s certification as an exper t witness in child sexual abuse and trauma. Ms. Schnirring testified the go al of a sexual abuse assessment is to obtain as much information as possible about t rauma which might have occurred, in order to use the information provided to come up w ith a diagnosis and make treatment recommendations. She further testified any statemen ts made to her by the child are used for the purposes of medical evaluation. Tr. (1 1/10/20) 31. We find had Mother objected, most likely the report would have been admitte d pursuant to Evid. R. 803(4). {¶24} Further, while R.R. was found to be abused based on the informa tion she provided to Ms. Schnirring, the other children were found to be neglected based primarily on the observations of the police and the caseworker of the con ditions existing in Mother’s home. Although R.R. had moved out of the home and into her boyfriend’s family home at the time, even in the absence of the report of the sexual ab use and physical abuse in the household, R.R. would likely have been found to be dependen t or neglected by Mother based solely on the conditions which existed in the home provid ed by Mother, and temporary custody awarded to JFS along with her half-siblings.Stark County, Case Nos. 2021CA00011, 2021CA00012, 2021CA00013, 2021CA00014, & 2021CA00015 12

{¶25} The second assignment of error is overruled. {¶26} The judgment of the Stark County Common Pleas Court, Juvenile D ivision

is affirmed.

By: Hoffman, J. Baldwin, P.J. and Wise, John, J. concur