In re A.B.C. ( 2011 )


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  • [Cite as In re A.B.C., 
    2011-Ohio-531
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    IN RE: A.B.C.                                      JUDGES:
    Julie A. Edwards, P.J.
    William B. Hoffman, J.
    Patricia A. Delaney, J.
    Case No. 2010CA00087
    OPINION
    CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
    Common Pleas, Family Court Division,
    Case No. 2010JCV00011
    JUDGMENT:                                       Reversed and Remanded
    DATE OF JUDGMENT ENTRY:                         January 31, 2011
    APPEARANCES:
    For Plaintiff-Appellant                        For Defendant-Appellee
    WILLIAM T. WHITAKER                            LISA A. LOUY
    ANDREA L. WHITAKER                             Stark County Department
    William T. Whitaker Co., L.P.A.                of Job and Family Services
    190 North Union Street, Suite 301              221 Third Street SE
    Akron, Ohio 44304                              Canton, Ohio 44702
    Stark County, Case No. 2010CA00087                                                        2
    Edwards, P.J.
    {¶1}      Appellants Kayla Pitts and Parker Crissey (“Mother”, “Father”, individually;
    “Parents”, collectively) appeal the March 19, 2010 Judgment Entry entered by the Stark
    County Court of Common Pleas, Family Court Division, which adjudicated their minor
    son dependent. Appellee is Stark County Department of Job and Family Services
    (“SCDJFS”).
    STATEMENT OF THE FACTS AND CASE
    {¶2}      Parents are the biological parents of A.B.C. (D.O.B. 7/26/09).
    {¶3}      On January 7, 2010, SCDJFS filed a Complaint in the Stark County Court
    of Common Pleas, alleging A.B.C. to be a dependent, neglected, and/or abused child.
    SCDJFS filed the Complaint after receiving information A.B.C. had a leg fracture, which
    Dr. Steiner of the Akron Children’s Hospital found to be consistent with physical abuse.
    Parents agreed to voluntarily place the child with his maternal great grandmother,
    Margie Pitts.      The trial court ordered parents to submit to parenting and drug
    assessments, and follow all recommendations. The trial court placed A.B.C. in the
    temporary custody of his maternal great grandmother, Margie Pitts, with protective
    supervision granted to SCDJFS.
    {¶4}      The trial court conducted an adjudicatory hearing on March 18, 2010.
    Karen Cirone, an SCDJFS worker, testified on December 4, 2009, the Agency received
    a call from Akron Children’s Hospital concerning A.B.C.      SCDJFS was informed A.B.C.
    had come to the hospital for blood work, but after Mother advised hospital personnel
    A.B.C. was not able to put pressure on his left leg, an x-ray was taken and a fracture
    discovered. Cirone accompanied a police detective who interviewed Parents. Parents
    Stark County, Case No. 2010CA00087                                                       3
    did not make any admissions. Mother told the detective and Cirone she had been
    changing A.B.C.’s diaper one day shortly before Thanksgiving and she heard a “pop”
    when she lifted his legs by his ankles. Mother stated she immediately called A.B.C.’s
    pediatrician, who saw A.B.C. on November 30, 2009. Mother also told Cirone and the
    detective A.B.C.’s pediatrician did not find anything of concern about the child’s leg, but
    ordered blood tests at Aultman Hospital because of the child’s propensity to easily
    bruise. Cirone stated Dr. Steiner concluded the leg fracture was the result of abuse.
    {¶5}   Dr. Richard Steiner, the Medical Director of the Akron Children’s Hospital
    Care Center, testified he and his staff see between 1100 and 1300 cases of child abuse
    each year. Dr. Steiner explained how he evaluates a child to determine whether abuse
    has occurred. With respect to A.B.C., Dr. Steiner explained the child was admitted to
    the hospital’s hematology department due to concerns over “bruising or easy bleeding,
    not proper blood coagulation.” Dr. Steiner noted bruising was observed on A.B.C.’s
    face, abdomen, and genitals, and the amount of bruising on a four month old child was
    concerning. Dr. Patton, the hematologist, consulted Dr. Steiner after x-rays revealed a
    fracture in A.B.C.’s lower left leg. Mother had informed Dr. Patton A.B.C. would not
    place any weight on his left leg. Based upon this information, Dr. Patton ordered x-rays
    and ultrasounds to determine whether A.B.C. had deeper bruising or bleeding.
    {¶6}   After reviewing the x-rays, Dr. Steiner spoke with Mother and Father to
    determine whether A.B.C. had had any falls or drops which would explain his leg injury.
    Mother recalled, approximately one week earlier, she was changing A.B.C.’s diaper and
    heard a “pop” when she lifted the child by the ankles to raise his hips so she could slide
    a diaper underneath him. Dr. Steiner commented Mother’s manner of changing the
    Stark County, Case No. 2010CA00087                                                     4
    diaper was a “very common maneuver * * * done millions of times a day by millions of
    parents”.     Dr. Steiner testified Mother’s actions were not a viable explanation for
    A.B.C.’s fractured leg. He explained the fracture would have been caused by a violent
    snatch and grab motion.
    {¶7}    Dr. Steiner continued to talk to Mother and Father about their family
    histories of bone or blood diseases, A.B.C.’s birth history, and his growth. The doctor
    found nothing in the child’s past medical history which would explain the fracture or the
    bruising. Accordingly, Dr. Steiner ordered additional x-rays, including a skeletal survey
    which is an x-ray of the entire body, and a CT scan. The x-rays and CT scan revealed
    no other fractures and the results from blood tests showed no sign of a bleeding
    disorder. A.B.C. was not presented to the hospital for repeat blood tests despite Mother
    and Father making at least three appointments to do so. After all the testing and after
    all the possible diseases which could cause the injuries were eliminated, Dr. Steiner
    concluded the only diagnosis left was physical abuse or abusive trauma. Dr. Steiner
    indicated, even if A.B.C. had been brought in for additional blood test, and such tests
    revealed a bleeding disorder, there were no diseases which would explain A.B.C.’s
    fracture.
    {¶8}    On cross-examination, Dr. Steiner testified he reached his diagnosis of
    abuse based upon both the surface injuries and the fracture. No other fractures were
    identified by the skeletal survey, and A.B.C.’s bone architecture and anatomy were
    normal. The doctor added the physical examination produced no findings which would
    lead doctors to suspect metabolic bone disease. Blood tests conducted to determine
    whether there was metabolic bone disease were normal. Dr. Steiner acknowledged a
    Stark County, Case No. 2010CA00087                                                     5
    baby could have a fractured ankle due to an accident.            He conceded medical
    professionals often times do not notice fractures.
    {¶9}   Dr. Meena Rawal, A.B.C.’s pediatrician, testified on behalf of parents. Dr.
    Rawal classified parents as “very concerned” calling her “appropriately for everything,
    for any concerns”. Parents have always presented A.B.C. for his visits on time and kept
    the child up to date with his immunizations. Dr. Rawal detailed A.B.C.’s medical history.
    She indicated the child had problems with certain baby formulas, and was subsequently
    diagnosed with allergic colitis, which caused some rectal bleeding. A.B.C. was given
    iron drops after it was learned that the child was anemic.
    {¶10} Dr. Rawal recalled she received a call from Mother who had concerns
    about A.B.C.’s ankle. Mother informed Dr. Rawal she heard a “pop” when she was
    changing A.B.C.’s diaper. As Mother did not notice any swelling, and because A.B.C.
    was scheduled the following week for a well-baby visit, Dr. Rawal did not have to see
    the child at that time. Mother presented A.B.C. to Dr. Rawal on November 30, 2009.
    Dr. Rawal found nothing concerning about A.B.C.’s leg. During this visit, the doctor
    observed two bruises on A.B.C.’s left cheek. Parents expressed concern as to the
    cause of the child’s easy bruising. Dr. Rawal ordered blood tests, which were done at
    Aultman Hospital.    The results of the test indicated abnormalities with respect to
    A.B.C.’s platelet count, the blood clotting time, and his fibrinogens and hemoglobin
    counts were low. Dr. Rawal recommended further testing at Akron Children’s Hospital.
    Dr. Rawal added Parents demonstrated real and appropriate concern for the care and
    treatment of their child. She had no reason to believe parents would injure A.B.C.
    Stark County, Case No. 2010CA00087                                                        6
    {¶11} On cross-examination, Dr. Rawal stated she was surprised by the injury
    and the characterization of it as abuse in light of her interaction with Parents. However,
    medically, she could not rule out the possibility A.B.C.’s leg fracture was the result of an
    abusive injury. Dr. Rawal noted the fact A.B.C. bruised at the sight of an injection was
    not concerning to her as such could happen to any child. The first time Dr. Rawal was
    ever informed of A.B.C.’s bruising was sometime around Thanksgiving.
    {¶12} Mother testified on her own behalf. She stated Dr. Rawal prescribed iron
    drops for A.B.C. as the child was slightly anemic and such could be the potential cause
    of his bruising. Mother described the diaper changing incident during which she heard a
    “pop”, and her subsequent conversation with Dr. Rawal, who did not think the incident
    warranted an immediate visit. Mother testified the results of the blood tests at Akron
    Children’s Hospital ruled out leukemia and other similar conditions. The hematologist
    wanted additional blood tests to rule out von Willebrand’s disease. When a diagnosis of
    leukemia as a potential cause of A.B.C.’s bruising was mentioned, Parents researched
    the disease, and learned leukemia could cause bones to break. After learning this
    information, Mother mentioned the diaper changing incident to the hematologist, who
    ordered x-rays. Parents were subsequently advised A.B.C. had a healing fracture and
    the hospital was required to keep him based upon suspected child abuse.
    {¶13} On cross-examination, Mother explained she did not take A.B.C. to the
    emergency room after the diaper changing incident as the child was not fussing and his
    leg was neither bruised nor swollen.      Mother noted she had observed a bruise on
    A.B.C.’s rib subsequent to his removal from Parents’ home. Mother conceded she had
    no explanation for A.B.C.’s fractured leg as she could not characterize the diaper
    Stark County, Case No. 2010CA00087                                                        7
    change during which she heard a “pop” as violent, which Dr. Steiner had testified would
    have been the type of force needed to cause the fracture.
    {¶14} After hearing all of the testimony, the trial court found A.B.C. to be a
    dependent child. Thereafter, the parties discussed the case plan and Parents’ visitation
    with the child. Prior to adjourning, the trial court noted:
    {¶15} “Okay. I know you’re disappointed in this, okay, this is a very strange set
    of circumstances. I don’t know what happened here. I don’t have a crystal ball, I can’t
    tell, but I’m responsible for him now, just like you are, okay, and if something this weird
    would have happened when you had him with somebody else, there’s no way that you
    would put him back there until you had as much information as possible, so that’s
    exactly where I am. I want you to work hard, do the services. It’s important that you
    see him. * * *
    {¶16} “So we’ll find compelling reasons and reasonable efforts; grant temporary
    custody to Margie Pitts with protective supervision and indicate that a planning of
    placement under the terms of the case plan is filed; * * *.” Tr. at 116-117.
    {¶17} The trial court memorialized its finding via Judgment Entry filed March 19,
    2010. It is from this entry Parents appeal, raising the following assignments of error.
    {¶18} “I. THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE TO
    SUPPORT THE FINDING OF DEPENDENCY.
    {¶19} “II. THE COMPLAINT WAS INSUFFICIENT TO STATE A CLAIM FOR
    DEPENDENCY.
    {¶20} “III. THE TRIAL COURT’S APPLIED A LOWER AND IMPROPER
    STANDARD WHEN MAKING ITS FINDING OF DEPENDENCY.
    Stark County, Case No. 2010CA00087                                                            8
    {¶21} “IV. THE TRIAL COURT ERRED IN QUALIFYING DR. STEINER AS AN
    ORTHOPEDICS AND RADIOLOGY EXPERT.
    {¶22} “V. THE JUDGMENT ENTRY FAILED TO COMPLY WITH O.R.C.
    2151.28(L).”
    {¶23} SCDJFS cross-appeals, assigning as error:
    {¶24} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD
    WAS DEPENDENT RATHER THAN ABUSED WAS AGAINST THE MANIFEST
    WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
    Appeal
    V.
    {¶25} In their fifth assignment of error, appellants contend that the trial court
    failed to comply with R.C. 2151.28(L) when issuing its decision.
    {¶26} R.C. 2151.28(L) provides:
    {¶27} “(L) If the court, at an adjudicatory hearing held pursuant to division (A) of
    this section upon a complaint alleging that a child is an abused, neglected, dependent,
    delinquent, or unruly child or a juvenile traffic offender, determines that the child is a
    dependent child, the court shall incorporate that determination into written findings of
    fact and conclusions of law and enter those findings of fact and conclusions of law in the
    record of the case. The court shall include in those findings of fact and conclusions of
    law specific findings as to the existence of any danger to the child and any underlying
    family problems that are the basis for the court’s determination that the child is a
    dependent child.”
    Stark County, Case No. 2010CA00087                                                       9
    {¶28} In its March 19, 2010 Judgment Entry, the trial court issued findings of fact
    which merely indicated that the court found “by clear and convincing evidence that
    [A.B.C.] is dependent in that his condition or environment is such as to warrant the
    State, in the best interest of the child to assume guardianship.” Although the judgment
    entry includes the statutory language of R.C. 2151.04(C), the trial court failed to include
    the specific findings upon which it based its determination that A.B.C. is a dependent
    child as required by R.C. 2151.28(L).
    {¶29} The fifth assignment of error is sustained.
    {¶30} Appellants’ first, second, third and fourth assignments of error, as well as
    appellee’s assignment of error on cross-appeal, are rendered premature by our decision
    on appellants’ fifth assignment of error.
    {¶31} The judgment of the Stark County Court of Common Pleas, Juvenile
    Division, is reversed. This case is remanded to that court to make findings of fact and
    conclusions of law in accordance with the statute.
    By: Edwards, P. J.
    Delaney, .J. concurs
    Hoffman, J. dissents
    ___________________________________
    ___________________________________
    ___________________________________
    Stark County, Case No. 2010CA00087                                                                      10
    Hoffman, P.J.,dissenting
    {¶32} In the spirit of expeditious review and determination of cases involving
    dependent children pursuant to App.R. 11.2,1 and because I believe the salient facts as
    stated by the parties in their briefs and those contained in the record, when coupled with
    the trial court’s assessment thereof as set forth in its judgment entry, are sufficient to
    allow adequate review, I respectfully dissent from the majority opinion.
    {¶33} I would address Appellant’s first assignment of error, sustain it and
    reverse the trial court’s decision. My reasons follow.
    {¶34} That a child is an abused, neglected, or dependent minor must be
    established by clear and convincing evidence. R.C. 2151.35(A). Clear and convincing
    evidence is that measure or degree of proof which is more than a mere preponderance
    of the evidence, but does not reach the extent of the certainty required to establish
    “beyond a reasonable doubt” in criminal cases. It is that quantum of evidence which will
    produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to
    be established. In re G.S., 10th Dist. No. 05AP-1321, 
    2006-Ohio-2530
    , ¶ 4, quoting
    Cross v. Ledford (1954), 
    161 Ohio St. 469
     477.
    {¶35} R.C. 2151.04 defines “dependent child” as “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”.
    1
    A.B.C. was originally removed from Appellants’ home on January 7, 2010. The adjudicatory hearing
    followed on March 18, 2010, with the entry presently under review having been filed on March 19, 2010.
    Approximately 10 months or more will have elapsed during this current appellate review. To reverse and
    remand at this stage will result in the appellate process having to begin afresh following the trial court’s
    decision on remand.
    Stark County, Case No. 2010CA00087                                                         11
    {¶36} “[A] finding of dependency under R.C. 2151.04 must be grounded on
    whether the children are receiving proper care and support. The focus is on the
    condition of the children, not the fault of the parents.” In re Bibb (1980), 
    70 Ohio App.2d 117
    , 120. See In re Alexander C., 
    164 Ohio App.3d 540
    , 553, 
    2005-Ohio-6143
    , ¶ 45.
    “The determination that a child is dependent requires no showing of fault on the parent's
    part.” In re Bolser (Jan. 31, 2000), 12th Dist. Nos. CA99-02-038 and CA99-03-048.
    Rather, the focus is solely on the child's condition or environment, and whether the child
    was without adequate care or support. See In re Ament (2001), 
    142 Ohio App.3d 302
    ,
    307. 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
    , ¶ 51,
    citing In re Burrell (1979), 
    58 Ohio St.2d 37
    , 39. A parent's conduct is significant if it has
    an adverse impact on the child sufficient to warrant state intervention. In re Ohm, 4th
    Dist. No. 05CA1, 
    2005-Ohio-3500
    , ¶ 21, citing In re Burrell, 58 Ohio St.2d at 39.
    {¶37} While the child's present “condition or environment” is the focus of a
    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 (1988), 
    51 Ohio App.3d 148
    , 156. “[T]he child does not first have to be put
    into a particular environment before a court can determine that * * * [the] environment is
    unhealthy or unsafe.” 
    Id.,
     citing In re Campbell (1983), 
    13 Ohio App.3d 34
    , 36. See In re
    East (1972), 
    32 Ohio Misc. 65
     (“a child should not have to endure the inevitable to its
    great detriment and harm in order to give the parent, guardian, or custodian an
    opportunity to prove her suitability”).
    Stark County, Case No. 2010CA00087                                                       12
    {¶38} Upon review, I find SCDJFS did not prove by clear and convincing
    evidence A.B.C. is a dependent child. Dr. Rawal testified A.B.C. was anemic, which
    could make the child susceptible to bruising.       The child bruised after being given
    immunizations and after blood draws by medical personnel.             With respect to the
    fractured ankle, Mother immediately called the pediatrician after hearing a “pop” while
    she was changing A.B.C.’s diaper. Dr. Rawal asked Mother enough questions to make
    a medical determination that the child did not need to be immediately seen. When
    A.B.C. was seen by Dr. Rawal a few days later, A.B.C.’s ankle looked normal and the
    child was using it appropriately and had good strength. Despite assurances from Dr.
    Rawal, Mother addressed A.B.C.’s ankle with Dr. Patton, the hematologist at Akron
    Children’s Hospital.     Dr. Steiner testified the manner in which Mother described
    changing A.B.C.’s diaper, despite hearing a “pop”, could not have resulted in the
    fracture. Dr. Steiner conceded, if the fracture occurred outside of Parents’ care, such
    would not be immediately apparent to them.          Accordingly to Dr. Steiner, medical
    professionals often fail to notice fractures.
    {¶39} The fact there was no direct explanation for A.B.C.’s fractured ankle is
    insufficient to find the child dependent under the totality of the circumstances in this
    case. There was not clear and convincing evidence A.B.C.’s condition or environment
    had an adverse effect on him. After hearing all the evidence, the trial court itself stated
    it did not know what happened. The trial court’s commendable concern for the future
    care of the child is not a sufficient substitute for a firmly based belief or conviction the
    child is dependent. There is evidence A.B.C. was receiving proper, timely care and
    support from Parents. The focus for an adjudication of dependency is on the condition
    Stark County, Case No. 2010CA00087                                                       13
    of the child, not the fault of the parents. In re: Bibb (1980), 
    70 Ohio App.2d 117
    .
    SCDJFS was “required to present evidence of conditions or environmental elements
    that were adverse to the normal development of the [child].” In re: A.C., 9th District No’s.
    03CA0053, 03CA0054, 03CA0055, 
    2004-Ohio-3248
    , paragraph 14.
    {¶40} I find SCDJFS failed to prove by clear and convincing evidence A.B.C.
    was a dependent child.
    _____________________________________
    HON. WILLIAM B. HOFFMAN
    Stark County, Case No. 2010CA00087                                                   14
    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    IN RE: A.B.C.                              :
    :
    :
    :
    :          JUDGMENT ENTRY
    :
    :
    :          Case No. 2010CA00087
    For the reasons stated in our accompanying Opinion, the judgment of the Stark
    County Court of Common Pleas, Juvenile Division, is reversed and this cause is
    remanded to that court to make findings of fact in accordance with the statute. Costs to
    appellee.
    ___________________________________
    ___________________________________
    ___________________________________
    

Document Info

Docket Number: 2010CA00087

Judges: Edwards

Filed Date: 1/31/2011

Precedential Status: Precedential

Modified Date: 4/17/2021