04/02/03
Karen Farkas
Cleveland Plain Dealer Reporter

Akron- Smoking marijuana daily does not make a woman an unfit parent and her four children should not have been removed by a county agency, an appeals court has ruled.

Teresa Scott is a single working mother who paid her rent and provided loving care to her children, her lawyer said, but when she admitted she smoked marijuana, the Summit County Children Services Board removed the children in August 2001.

The agency's decision was upheld in the county's Juvenile Court.

The 9th Ohio District Court of Appeals overruled that decision, 2-1, on Monday.

"While this court certainly does not condone a parent's use of an illegal substance or abuse of a legal substance, parents have a fundamental right to raise their children," said appeals Judges Donna Carr and William Batchelder.

"Without some evidence that Teresa's supervision of her children or the environment of her children has been affected in some negative way by her use of marijuana, there is not clear and convincing evidence" the children should be removed.

Judge Lynn Slaby dissented. "I believe the continued use of an illegal substance can do nothing but have a detrimental impact on the children," he wrote.

He said people may argue that alcohol abuse may not warrant the removal of children, but "I believe there is a distinction between using a legal substance and the continued use of an illegal substance."

Scott, of Akron, may soon be reunited with her children, ages 8, 11, 12 and 15, who have been living with relatives. The decision will not be appealed, and the case will go back to Juvenile Court, where Judge Linda Tucci Teodosio will decide who will have custody of the children, said Louise Miller, spokeswoman for the Children Services Board.

Juvenile Court Judge Judy Hunter, who was defeated by Teodosio in November, had ruled that Scott's drug use affected the children's environment. Hunter gave the county temporary custody.

"Her whole family was disbanded and torn apart and she absolutely wants them back," said Scott's lawyer, Richard Kutuchief. "Children Services was being overzealous as a watchdog, and the sole issue was whether her smoking marijuana was justifiable to remove and estrange the children from their parent."

According to court documents, a social worker at an Akron hospital contacted Children Services about possible child abuse after Scott took her son to the hospital.

His adult half-sister had hit him on the leg with a belt buckle when he was at his father's home.

A Children Services caseworker later spoke to Scott after receiving additional information that Scott's children were smoking marijuana and that the children were unsupervised in her home. Scott admitted that she smoked marijuana once or twice a day but that it was never done in front of her children. She agreed to have her urine tested that day for the presence of drugs.

She arrived 15 minutes too late for the urine test because she went to a job interview. The next day the county removed her children.

Assistant Summit County Prosecutor Philip Bogdanoff said he was disappointed in the appeals court decision. "If the parent is high on drugs, it does affect the environment of the child," he said.

Kutuchief said Scott visits her children and is in drug counseling. He said he was unable to find any case law dealing with the specifics of his case. "If a person uses marijuana to relax or in the same fashion as alcohol, is it bad?" he asked. "Would it be better for the court if she was on Prozac or another prescription drug that could be more intense than marijuana?"

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