In re D.M. ( 2014 )

[Cite as In re D.M., 2014-Ohio-2160.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: D.M. and : Hon. W. Scott Gwin, P.J.
A.D. : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 2013CA00225
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
No. 2013JCV00456
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 19, 2014
APPEARANCES:
For-Appellee For Appellant
HOLLY DAVIES AARON KOVALCHIK
JAMES PHILLIPS, JR. 116 Cleveland Avenue N.W.
300 Market Avenue North Suite 808
Canton, OH 44702 Canton, OH 44702
[Cite as In re D.M., 2014-Ohio-2160.]
Gwin, P.J.
{¶1} Appellant appeals the October 15, 2013 judgment entry of the Stark
County Court of Common Pleas, Juvenile Division, overruling her objections to the
magistrate’s decision and adopting the July 24, 2013 magistrate’s decision finding D.M.
abused and A.D. dependent.
Facts & Procedural History
{¶2} D.M. was born on February 17, 1996 and is the biological child of
appellant Sherry Lee (“Mother”) and Craig Mihal (“Mihal”). A.D. was born on January
13, 1999 and is the biological child of Mother and Gene Derheimer (“Derheimer”). On
May 3, 2013, Stark County Department of Job and Family Services (“SCDJFS”) filed a
complaint alleging D.M. and A.D. were abused, dependent, or neglected children and
seeking an order of temporary custody to Derheimer with protective supervision to
SCDJFS. The complaint alleged, in part, that Mother and the children had a prior
history with Carroll County Children’s Services. Further, that there were concerns about
Mother’s substance abuse and mental health issues. Specifically, the complaint alleged
Mother violated a Carroll County court order by trying to have D.M. placed on mental
health medication, that Mother abused marijuana, and that domestic violence occurred
in the home.
{¶3} In an order dated May 3, 2013, the trial court ordered Mother to complete
a parenting assessment at Northeast Behavioral Health, a drug and alcohol assessment
at Quest, to follow through with any treatment recommendations made at the
assessments, and ordered any visitation with Mother and the children be supervised
through SCDJFS.
Stark County, Case No. 2013CA00225 3
{¶4} A contested evidentiary hearing was held on July 24, 2013 to determine
whether D.M. and A.D. were abused, neglected, and/or dependent children. Stephanie
Prater (“Prater”), an intake caseworker for SCDJFS, testified the agency has concerns
that Mother tried to put D.M. on medication against a Carroll County court order, about
Mother’s mental health issues, and domestic violence issues between Mother and D.M.
Prater examined the records from Carroll County Department of Job and Family
Services and determined there was a case opened in 2010 due to mental health issues
of Mother and the children, marijuana use by Mother, and ongoing issues with domestic
violence reports in the home. Prater stated D.M. did not have the mental health
diagnoses Mother reported he had. When Prater spoke with Mother, Mother admitted
she took D.M. to the doctor in violation of an order out of Carroll County. The doctor
declined to provide D.M. with medication because he was a new patient. Prater
independently confirmed the Carroll County order existed and also confirmed Mother
took D.M. to the doctor. Mother also told Prater about ongoing domestic violence
issues in the home. When Prater first requested Mother be tested for substance abuse,
Mother was positive for marijuana. However, Prater testified Mother recently screened
negative for marijuana. Prater visited Mother’s home and had no concerns about the
physical condition of the home.
{¶5} Prater testified D.M. had been charged with domestic violence against
Mother in Carroll County, which was reduced to disorderly conduct. When Prater spoke
with the children, both children reported concerns with living with Mother. A.D. told
Prater he was afraid to live with Mother. A.D. confirmed to Prater there were domestic
violence issues between Mother and D.M. and also domestic violence issues between
Stark County, Case No. 2013CA00225 4
Mother and a male friend named Jimmy Cline (“Cline”). D.M. also told Prater there was
domestic violence between Mother and Cline.
{¶6} When asked whether Prater had concerns about her interview with
Mother, Prater testified she was concerned that Mother, during the interview, constantly
referred to D.M. as psychotic, an abuser, and a liar. Prater stated Mother agreed to a
safety plan and signed the safety plan. However, after Mother signed the safety plan,
D.M. informed Prater that Mother was attempting to pick him up, in violation of the plan.
Prater also expressed concern about Mother’s ongoing pattern of trying to label D.M. as
mentally ill. Prater concluded Mother cannot safely care for the children and both A.D.
and D.M. were at risk of serious mental, physical, or emotional harm if they remained
with Mother. Prater asked the trial court to find D.M. and A.D. dependent, neglected,
and abused as to Mother.
{¶7} Wendy Bogguss (“Bogguss”), Chief Probation Officer at Carroll County
Juvenile Court, testified D.M. had been on and off probation since 2010. Bogguss
stated Mother had an ongoing desire to medicate D.M. Bogguss testified D.M. was
respectful to the Carroll County Juvenile Court, she had no issues with him while he
was on probation, and the only issue the probation department had with the family was
Mother telling them D.M. needed medication and was mentally ill.
{¶8} Barbara Malavite (“Malavite”), a therapist at Pathway Caring for Children,
testified D.M. was a client of Pathway’s for approximately one year and D.M. improved
when he was placed in Derheimer’s home. Malavite stated she had concerns with
Mother’s behavior because Mother feels D.M. has mental issues which the
professionals at Pathway have not seen in D.M. Mother told the professionals at
Stark County, Case No. 2013CA00225 5
Pathway that D.M. had schizophrenia and Mother wanted him medicated, but Malavite
did not see a reason to medicate D.M. and saw no signs of any mental health disorder
in D.M. Malavite evaluated D.M. during counseling and determined he had no mental
issues, but did diagnose him with Behavioral Disorder. Though Malavite told Mother
D.M. did not need medicated, Mother continued to say D.M. needed medicated.
Malavite testified a plan was put in place for D.M. to remove himself from situations
when there is conflict. However, Mother did not allow D.M. to follow the plan because
she would contact the police when D.M. removed himself from a situation. In Malavite’s
professional opinion, D.M.’s behavioral issues and conflict with Mother is rooted in
issues about medication because D.M. does not want to be medicated and cannot
function when he is medicated.
{¶9} All parties stipulated that Dr. Aimee Thomas (“Thomas”), a licensed
psychologist at Northeast Ohio Behavioral Health, was an expert witness in psychology
for purposes of the hearing. Thomas completed a parenting evaluation of Mother in
July of 2013 and met with her for two sessions of approximately one hour each.
Thomas did not meet or observe D.M. Thomas also reviewed SCDJFS’s information
related to the evaluation of D.M. in 2010 and 2012, neither of which identified any
serious mental issues of D.M or any of the mental conditions such as severe
depression, bipolar disorder, and Tourette syndrome like Mother said he had. Mother
provided Thomas with some information about D.M.’s psychological exams since 2005,
though the information Mother provided was not complete and Mother would not sign a
release for the balance of the information when requested by Thomas. Thomas stated
Mother was fixated on D.M. and his issues and Mother told her D.M. was very violent
Stark County, Case No. 2013CA00225 6
with severe emotional problems. Mother told Thomas she smoked marijuana in the
past, but had stopped recently. Thomas testified Mother had a need to control people
and wanted to be needed by other people.
{¶10} Based on her evaluation and psychological testing, Thomas diagnosed
Mother with the following: Fictitious Disorder by Proxy or Munchausen by Proxy,
cannabis abuse, and Borderline Personality Disorder. Thomas further stated Mother
was co-dependent, controlling, and manipulative. Thomas testified Munchausen by
Proxy is typically diagnosed with collateral reports because the patient does not
acknowledge they are harming a child or fabricating disorders. Thus, Thomas had to
look for inconsistencies between what Mother reported was wrong with D.M. and other
documentation or evaluations of D.M. Features of Munchausen by Proxy include
fabrication of physical or psychological symptoms of someone in the individual’s care.
Thomas testified there is no treatment for the condition. Thomas stated that when a
child has a mental health condition, the primary source of information a professional
relies on to diagnose such issues is information from the child’s caregiver. As the child
gets older and starts to relay information to the professional him or herself, the reports
are inconsistent with the previous information provided by the parent. Thomas testified
she believes that is what happened in this case with Mother and D.M. Thomas stated
that Mother’s behavior with regards to D.M. is emotional abuse. When asked about
Mother’s ability to care for A.D., Thomas testified that if A.D. is in Mother’s care and
Mother does not have access to D.M., Mother will likely shift the fabrication of
symptoms to A.D.
Stark County, Case No. 2013CA00225 7
{¶11} The Guardian Ad Litem, Holly Davies (“Davies”) submitted a report and
recommendation on July 17, 2013. Davies concluded both D.M. and A.D. should be
placed in the legal custody of Derheimer and D.M. should have no contact with Mother
until recommended by D.M.’s counselor. Finally, SCDJFS admitted the court order from
Carroll County and Mother’s parenting evaluation as exhibits without any objection from
any party.
{¶12} Mother did not testify, call any witnesses, or present any evidence. The
trial court proceeded to conduct a disposition hearing, where Derrick Mayle (“Mayle”),
the ongoing caseworker from SCDJFS, testified D.M. and A.D. were doing well at
Derheimer’s home. Mayle stated it was in the best interest of the children to award
temporary custody of A.D. and D.M. to Derheimer with protective supervision to
SCDJFS.
{¶13} On July 25, 2013, the magistrate issued a judgment entry finding that D.M.
is an abused child and A.D. is a dependent child. Mother filed objections to the
magistrate’s decision on August 5, 2013 and argued D.M. is not abused and A.D. is not
dependent. The trial court held an oral hearing on Mother’s objections on October 9,
2013. On October 15, 2013, the trial court issued a judgment entry overruling Mother’s
objections and adopting the magistrate’s decision of July 24, 2013. Mother filed an
appeal of the trial court’s October 15, 2013 judgment entry and raises the following
assignments of error on appeal:
{¶14} “I. THE JUDGMENT OF THE TRIAL COURT THAT A.D. WAS A
DEPENDENT WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
Stark County, Case No. 2013CA00225 8
{¶15} "II. THE JUDGMENT OF THE TRIAL COURT THAT D.M. WAS AN
ABUSED CHILD WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF
THE EVIDENCE.”
I. & II.
{¶16} Pursuant to R.C. 2151.35(A), a trial court must find that a child is an
abused, neglected, or dependent child by clear and convincing evidence. In the Matter
of F.M. and M.M., 5th Dist. Tuscarawas No. 2011 AP 07 0029, 2012-Ohio-1082. Clear
and convincing evidence is that evidence “which will provide in the mind of the trier of
facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). “Where the degree of proof required
to sustain an issue must be clear and convincing, a reviewing court will examine the
record to determine whether the trier of facts had sufficient evidence before it to satisfy
the requisite degree of proof.” Id. at 477. If some competent, credible evidence going
to all the essential elements of the case supports the trial court’s judgment, an appellate
court must affirm the judgment and not substitute its judgment for that of the trial court.
C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279, 376 N.E.2d 578 (1978). Issues
relating to the credibility of witnesses and the weight to be given to the evidence are
primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St. 3d 77, 80, 461
N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evidence in the parties' demeanor and
attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St. 3d
415, 419, 674 N.E.2d 1159 (1997).
Stark County, Case No. 2013CA00225 9
Abused Finding as to D.M.
{¶17} Mother argues the trial court erred in finding D.M. an abused child.
Specifically, Mother argues she was never charged with domestic violence against D.M.
and she was the victim of D.M. Further, that Dr. Thomas’ opinion was not credible
because she did not personally examine D.M. We disagree with Mother.
{¶18} R.C. 2151.031 provides, in pertinent part,
As used in this chapter, an “abused child” includes any child
who * * *
(C) Exhibits evidence of any physical or mental injury or
death, inflicted other than by accidental means, or any injury
or death which is at variance with the history given of it. * * *
(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.
{¶19} We find competent and credible evidence exists in this case to support the
trial court’s conclusion that D.M. is an abused child pursuant to the statute. Prater
testified Mother tried to put D.M. on medication in violation of a Carroll County court
order and Mother admitted to Prater she took D.M. to the doctor in violation of the court
order. Prater was concerned Mother constantly referred to D.M. as a liar, psychotic,
and abusive. While Mother signed a safety plan, she quickly attempted to violate the
plan. Prater concluded Mother could not safely care for D.M. and he is at risk of serious
mental, physical, and emotional harm if he continues to stay with Mother. Bogguss
testified Mother had an ongoing desire to medicate D.M. Malavite stated D.M. improved
Stark County, Case No. 2013CA00225 10
in Derheimer’s home and Mother told her he had serious mental health issues and
wanted him medicated, but Malavite saw no signs of a mental disorder in D.M. Malavite
also testified Mother would not follow through with the plan put in place to let D.M.
remove himself from conflict. Malavite concluded any conflict between D.M. and Mother
is rooted in Mother’s continual attempts to have D.M. medicated and D.M.’s desire not
to be medicated because he cannot function when medicated.
{¶20} Thomas, stipulated by all parties to be an expert in psychology, testified
that while she did not meet or observe D.M., she did meet with Mother and reviewed
records. She stated Mother’s interview and the records are consistent with the theme
that is typical of a patient with Munchausen’s by Proxy because when a child gets older
and can report their own symptoms to medical professionals, these reports are
inconsistent with previous information provided by the caregiver with Munchausen’s by
Proxy. Further, that the disease is typically diagnosed through collateral reports and
that is how Thomas made the diagnosis in this case. Though Mother argues Thomas
did not completely review the records, it was Mother’s failure to sign a release for the
records that prevented Thomas from reviewing them. Thomas testified that she did
review the portions of the records provided to her by Mother, but that some of the
records were incomplete and she could not obtain the full records because Mother
refused to sign a release for the remainder of the records. Thomas testified that
Mother’s behavior was emotional abuse of D.M. Accordingly, competent and credible
evidence exists to find D.M. is an abused child pursuant to R.C. 2151.031(C) and (D).
Stark County, Case No. 2013CA00225 11
Dependent Finding as to A.D.
{¶21} Mother argues the trial court erred in finding A.D. to be a dependent child.
Specifically, Mother contends there was no conflict between A.D. and Mother and that
D.M. was the perpetrator of domestic violence against her and A.D. Further, that she
tested negative for marijuana, there were no physical concerns with her home, and she
was cooperating with services. We disagree with Mother’s argument that the trial court
erred in finding A.D. a dependent child.
{¶22} R.C. 2151.04 provides, in relevant part, that a dependent child means any
child:
(C) Whose condition or environment is such as to warrant
the state, in the interests of the child, in assuming the child’s
guardianship;
(D) To whom both of the following apply:
(1) The child is residing in a household in which a
parent, guardian, or custodian or other member of the
household committed an act that was the basis for an
adjudication that a sibling of the child or any other child who
resides in the household is an abused, neglected, or
dependent child.
(2) Because of the circumstances surrounding the
abuse, neglect, or dependency of the sibling or other child
and the other conditions in the household of the child, the
Stark County, Case No. 2013CA00225 12
child is in danger of being abused or neglected by that
parent, guardian, or custodian or member of the household.
{¶23} A finding of dependency under R.C. 2151.04 must be grounded on
whether the child is receiving proper care and support; the focus is on the condition of
the child. In re Bibb, 70 Ohio App. 2d 117, 120, 435 N.E.2d 96 (1st. Dist. 1980). “The
determination that a child is dependent requires no showing of fault on the parent’s
part.” In re Bolser, 12th Dist. Butler Nos. CA99-02-038, CA99-03-048, 2000 WL 146026
(Jan. 31, 2000). However, a court may consider a parent’s conduct insofar as it forms
part of the child’s environment. In re Alexander C., 164 Ohio App. 3d 540, 2005-Ohio-
6134, 843 N.E.2d 211 (6th Dist.). Further, in issues of dependency determination, “the
law does not require the court to experiment with the child’s welfare to see if * * * [the
child] will suffer great detriment or harm.” In re Burchfield, 51 Ohio App. 3d 148, 156,
555 N.E.2d 325 (4th Dist. 1988).
{¶24} We find competent and credible evidence exists in this case to support the
conclusion that A.D. is a dependent child pursuant to R.C. 2151.04(C), a child whose
condition or environment is such as to warrant the state, in the interests of the child, in
assuming the child’s guardianship. A.D. told Prater he was afraid to live with Mother
and that Mother had domestic violence issues with both D.M. and another male friend
named Cline. Though Prater testified Mother had recently tested negative for marijuana
and she did not have any physical concerns with the home, Prater also stated Mother
quickly attempted to violate the safety plan put in place. Prater concluded that Mother
cannot safely care for A.D. and he is at risk of serious mental, physical, and emotional
harm if he stays with her. Thomas, stipulated to being an expert in psychology by both
Stark County, Case No. 2013CA00225 13
parties, diagnosed Mother with Munchausen’s by Proxy, for which there is no treatment.
Thomas testified that if Mother does not have access to D.M. but does live with A.D.,
she will likely shift the fabrication of symptoms to A.D. Finally, the guardian ad litem
recommended A.D. be placed in Derheimer’s custody with protective supervision by
SCDJFS.
{¶25} In addition, A.D. is a child residing in a household in which Mother
committed acts that were the basis for an adjudication that D.M., A.D.’s sibling, is an
abused child, as discussed above. Thomas stated that, because of the circumstances
surrounding Mother’s abuse of D.M. and D.M.’s removal from the home, A.D. is in
danger of being abused as Mother will likely shift the fabrication of symptoms to A.D.
Accordingly, competent and credible evidence exists to find A.D. is a dependent child
pursuant to R.C. 2151.04(D)(1) and (2).
Stark County, Case No. 2013CA00225 14
{¶26} Based on the foregoing, we find the trial court did not err in finding D.M.
abused and in finding A.D. dependent. Appellant’s first and second assignments of
error are overruled. The October 15, 2013 judgment of the Stark County Court of
Common Pleas, Juvenile Division, is affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur