In re P.C. , 2021 Ohio 1238 ( 2021 )

[Cite as In re P.C., 2021-Ohio-1238.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
IN RE:
CASE NO. 8-20-39
P.C.,
OPINION
[DANIEL C. - APPELLANT]
IN RE:
CASE NO. 8-20-40
A.C.,
OPINION
[DANIEL C. - APPELLANT]
IN RE:
CASE NO. 8-20-41
C.C.,
OPINION
[DANIEL C. - APPELLANT]
IN RE:
CASE NO. 8-20-45
P.C.,
OPINION
[DANIEL C. - APPELLANT]
IN RE:
CASE NO. 8-20-46
A.C.,
OPINION
[DANIEL C. - APPELLANT]
Case No. 8-20-39, 40, 41, 45, 46 and 47
IN RE:
CASE NO. 8-20-47
C.C.,
OPINION
[DANIEL C. - APPELLANT]
Appeals from Logan County Common Pleas Court
Juvenile Division
Trial Court Nos. 18 CS 0037 A, B, C, D, E, F
Judgments Affirmed
Date of Decision: April 12, 2021
APPEARANCES:
Alison Boggs for Appellant, Father
Stacia L. Rapp for Appellee, Logan County Children’s Services
Linda MacGillivray, Guardian Ad Litem
SHAW, J.
{¶1} Father-appellant, Daniel C. (“Daniel”), brings these appeals from the
August 10, 2020, judgments of the Logan County Common Pleas Court, Juvenile
Division, adjudicating his children P.C., A.C., and C.C. dependent, placing them in
the temporary custody of Paternal Grandparents, granting Daniel supervised
parenting time subject to the approval of Logan County Children’s Services (the
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“Agency”), and placing the children under the protective supervision of the Agency.
Daniel also appeals the trial court’s August 18, 2020, judgments granting the request
of the children’s mothers to immunize the children.
Background
{¶2} On August 6, 2018, the Agency filed complaints and a motion for
temporary orders alleging that P.C. (born in 2007), A.C. (born in 2010), and C.C.
(born in 2013), were dependent children pursuant to R.C. 2151.04(C). According
to the complaints, all three children were residing with their father, Daniel, at the
time. The record establishes that Danielle F. is the mother of P.C. and A.C., and
Amy C. is the mother of C.C.; however, Daniel was married to a woman named
Jonna C. at the time the complaint was filed.
{¶3} As the basis for the complaints, the Agency alleged that it had received
“multiple referrals” regarding concerns for the well-being of the children coming
from numerous referral sources and that the reports spanned multiple months. (Doc.
No. 1 at 2).1 The complaints contained numerous allegations, beginning with a
claim that in February of 2018, Daniel had left the three younger children in the care
of their older sibling D.C., who was also a minor at the time, for eight to ten days
while Daniel and his wife travelled out of state.2 D.C. purportedly did not have
1
For ease of discussion, when making reference to the record we will use the docketing numbers assigned
to Case No. 18-CS-037B, Appellate Nos. 8-20-39 and 8-20-45.
2
At the time the complaints were filed, there was also a dependency case opened regarding the children’s
older sibling D.C. (born in 2001), who has since been emancipated and is not part of these appeals.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
access to a car or a phone. The Agency also alleged that it received reports of filthy
living conditions in Daniel’s home; that Daniel permitted the children to consume
alcoholic beverages; that Daniel smoked marijuana in front of the children; that the
children had inadequate food and clothing; and that P.C. and A.C. had a significant
amount of absences from school due to Daniel’s failure to treat a chronic lice
problem that had been an ongoing issue for the prior three years.
{¶4} The complaints further alleged that D.C., with whom the children were
left during the vacation, was “ ‘very slow’ cognitively and was ‘always in trouble
with the courts for thieving and getting into trouble;’ ” that Daniel was suspected of
selling marijuana and using it with D.C.; and that Daniel and his wife Jonna, who
was not the mother of any of the children, constantly fought in front of the children
creating an unstable environment. (Doc. No. 1). The Agency claimed that when it
tried to investigate the allegations in these referrals, Daniel refused to cooperate and
told the caseworkers to return with a court order.
{¶5} The Agency explained that it had been involved in three prior cases with
Daniel since 2011 and that in each of those cases Daniel was uncooperative and had
a history of refusing to comply with the drug screening in the case plans. These
prior cases involved concerns of improper supervision in Daniel’s home with C.C.
found wandering outside, concerns with Daniel’s drug use, an incident in which
A.C. was alleged to have struck C.C. causing him to have a nose bleed, concerns
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with P.C. and A.C. not completing their school work, and ongoing issues with the
children having lice and bed bug bites. In August of 2017, Daniel eventually
completed the case plan objectives and the cases were closed. However, the Agency
stated that based upon the most recent referrals its involvement with the family was
warranted again.
{¶6} In the ensuing months after the complaint was filed the Agency filed a
motion for emergency temporary custody of the children alleging, inter alia, that
Daniel and D.C. had been smoking marijuana together, that both D.C. and Daniel
disciplined the younger children by spanking them and leaving red marks, that the
children would often go to bed hungry because they were not fed, that the children
still dealt with lice and fleas, that the electricity had been shut off at their home for
a period of time in September of 2018, and that Daniel did not believe in doctors so
the children had not seen a doctor.
{¶7} Following a hearing the trial court issued an entry finding probable
cause to remove the children from Daniel’s home. The children were placed in the
temporary care of paternal grandfather and paternal step-grandmother.
{¶8} On October 25 and 30, 2018, the trial court conducted an adjudication
and disposition hearing on the Agency’s dependency complaints. Prior to taking
testimony, the trial court conducted in camera interviews of the children. Upon
commencement of the hearing, several witness testified for the Agency including
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ongoing Agency caseworkers, the mother of P.C. and A.C. (Danielle F.), the girl
scout leader for P.C. and A.C.,3 and paternal step-grandmother (temporary legal
custodian). Daniel presented testimony of numerous witnesses in support of his
case including that of his mother, his then-wife, and family acquaintances. Daniel
also testified at the hearing.
{¶9} On December 18, 2018, the trial court issued a judgment entry finding
clear and convincing evidence to adjudicate the children dependent under R.C.
2151.04(C). However, the entry did not contain findings of fact and conclusions of
law. Nevertheless, the trial court ordered the Agency to continue its protective
supervision of the children and placed the children in the temporary custody of
paternal grandfather and paternal step-grandmother. Daniel was granted supervised
visitation with the children subject to the Agency’s approval.
{¶10} On June 27, 2019, Danielle F. filed a Motion for Vaccination of P.C.
and A.C., and she requested a hearing on the matter. In response, Daniel filed a
motion opposing the immunization of P.C. and A.C.
{¶11} On August 22, 2019, the trial court held a hearing on the Motion for
Vaccination. At the hearing, the trial court also considered a request to vaccinate
C.C.4 Daniel testified regarding his beliefs against vaccinating his children. He
3
This scout leader was also Danielle’s cousin.
4
Although not explicitly clear from the record, it appears that Amy C. also sought to have C.C. vaccinated.
(Aug. 22, 2019 Hrg. Tr. at 72). It is important to note that the record demonstrates that the Agency
specifically stated that it took no position on the vaccination issue. (Id. at 62-63).
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Case No. 8-20-39, 40, 41, 45, 46 and 47
explained that he specifically objected to certain ingredients in some vaccines, such
as mercury and aluminum. He also expressed concerns about possible side effects
of vaccines, such as allergic reactions and death. However, he acknowledged that
some of his children had received vaccinations, and that his views had changed on
the matter as he aged. He was against vaccination at the time of the hearing, or at
the very least he was against forcing the children to receive vaccinations before they
could make the decision for themselves.
{¶12} On September 20, 2019, the trial court issued judgment entries on
Danielle F.’s motion to vaccinate P.C. and A.C., and Amy C.’s request to vaccinate
C.C. Specifically, the trial court granted the motion to vaccinate and ordered the
children to be immunized.
{¶13} Daniel then filed an appeal to this Court, challenging the trial court’s
dependency findings and the trial court’s determination on the vaccination issue.
See In re P.C., A.C., C.C., P.C., A.C., C.C., 3d Dist. Logan Nos. 8-19-45, 46, 47,
8-19-54, 55, 56, 2020-Ohio-2889. Although the trial court made its dependency
determination regarding the children at the conclusion of the October 30, 2020,
hearing, and the trial court filed a judgment entry on the matter on December 18,
2018, the record did not indicate that Daniel was ever properly served pursuant to
Civ.R. 58(B). Because of the lack of service, this Court determined under App.R.
4(A), “the time for filing a notice of appeal never began to run because of the failure
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to comply with Civ.R. 58(B).” In re P.C. at ¶ 17. Therefore we determined that
Daniel could challenge both the dependency findings and the vaccination issue on
appeal. Id.{¶14} Proceeding to Daniel’s assignments of error in his initial appeal, we
held that the trial court failed to comply with R.C. 2151.28(L) in its judgment entry
finding the children dependent because the entry was “devoid of any findings of fact
and conclusions of law.” Id. at ¶ 24. We determined that the entry did not make
any “ ‘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.” In re P.C., 3d Dist. Logan No. 8-19-45, 2020-Ohio-
2889, ¶ 24, citing R.C. 2151.28(L). Therefore the prior judgments finding the
children dependent were vacated and the cases were remanded to the trial court to
make findings of fact and conclusions of law in compliance with R.C. 2151.28(L).
Since the cases were being remanded to the trial court, we found the vaccination
issue moot because it would have to be revisited after proper judgment entries of
adjudication and disposition were filed in compliance with statutory rules. Id. at ¶
28.
{¶15} Following remand, the trial court issued a new judgment entry on
August 10, 2020, finding the children dependent by clear and convincing evidence
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and reiterating the previously stated disposition. The new judgment entry contained
extensive findings of fact and conclusions of law.
{¶16} On August 18, 2020, the trial court filed a judgment entry regarding
the immunization issue, ordering the vaccination of the children pursuant to the
mothers’ requests. The entry also contained multiple pages of findings of fact and
conclusions of law.
{¶17} Daniel now brings the instant appeals, challenging the dependency
findings of the children in the August 10, 2020, entry, and the trial court’s August
18, 2020, vaccination order. He asserts the following assignments of error for our
review.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT’S DECISION IS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE. APPELLEE DID NOT PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT THE CHILDREN WERE
DEPENDENT.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT CONDUCTED THE
DISPOSITIONAL HEARING AND ORDERED CASE PLANS
INTO EFFECT WHEN APPELLEE DID NOT PRESENT ANY
EVIDENCE REGARDING THE CONTENT OF THE CASE
PLANS, THUS PREVENTING THE COURT FROM
DETERMINING WHETHER THE REQUIREMENTS OF THE
CASE PLANS WERE IN THE BEST INTEREST OF THE
MINOR CHILDREN.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN FINDING APPELLEE USED
REASONABLE EFFORTS TO PREVENT THE REMOVAL OF
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THE CHILDREN, TO ELIMINATE THE CONTINUED
REMOVAL OF THE CHILDREN OR TO MAKE IT POSSIBLE
FOR THE CHILDREN TO RETURN HOME SAFELY AT
BOTH THE ADJUDICATION AND THE DISPOSITIONAL
HEARING.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED WHEN IT OVERRULED
APPELLANT’S OBJECTION TO THE ADMISSION OF
EVIDENCE OF WITNESSES’ PRIOR CONVICTIONS THAT
WERE OLDER THAN TEN YEARS.
ASSIGNMENT OF ERROR NO. 5
THE GUARDIAN AD LITEM FAILED TO PERFORM
NECESSARY DUTIES PURSUANT TO OHIO REVISED
CODE SECTION 2151.281 AND SUPERINTENDEN[CE] RULE
48, TO APPELLANT’S DETRIMENT AND IN VIOLATION OF
HIS DUE PROCESS.
ASSIGNMENT OF ERROR NO. 6
THE TRIAL COURT ERRED WHEN IT ALLOWED, ON
MULTIPLE OCCASIONS, IMPERMISSIBLE HEARSAY
DURING THE ADJUDICATORY HEARING.
ASSIGNMENT OF ERROR NO. 7
APPELLANT WAS DENIED A FAIR ADJUDICATORY
HEARING AS A RESULT OF THE CUMULATIVE ERRORS
THAT OCCURRED THROUGHOUT THE HEARING.
ASSIGNMENT OF ERROR NO. 8
THE JUDGE ERRED WHEN IT ORDERED THE CHILDREN
TO BE IMMUNIZED AGAINST APPELLANT’S WISHES.
{¶18} For ease of discussion, we elect to address some of the assignments of
error out of the order in which they were raised.
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First Assignment of Error
{¶19} In his first assignment of error, Daniel argues that the trial court’s
determinations that the children were dependent were not supported by sufficient
evidence and that they were against the manifest weight of the evidence.
Standard of Review
{¶20} A trial court’s determination that a child is dependent under R.C.
2151.04 must be supported by clear and convincing evidence. In re L.H., 3d Dist.
Defiance No. 4-19-14, 2020-Ohio-718, ¶ 30, appeal not allowed, 159 Ohio St.3d
1418, 2020-Ohio-3365, citing In re S.L., 3d Dist. Union Nos. 14-15-07, 14-15-08,
2016-Ohio-5000, ¶ 11, citing In re B.B., 3d Dist. Defiance No. 4-10-17, 2012-Ohio-
2695, ¶ 32, citing R.C. 2151.35. “Clear and convincing evidence is that measure or
degree of proof which will produce in the mind of the trier of facts a firm belief or
conviction as to the allegations sought to be established.” Cross v. Ledford, 161
Ohio St. 469, 477 (1954). “[W]hen ‘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.’ ” In re Freed Children, 3d Dist. Hancock No. 5-08-37,
2009-Ohio-996, ¶ 26, quoting Cross at 477. Therefore, we are required to determine
whether the trial court’s determination is supported by sufficient evidence to satisfy
the clear-and convincing-evidence degree of proof. In re S.L., supra, at ¶11,
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citing In re B.B. at ¶ 33, citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368
(1985).
{¶21} “[S]ufficiency is a test of adequacy. Whether the evidence is
legally sufficient to sustain a [judgment] is a question of law.” State v. Thompkins,
78 Ohio St.3d 380, 386 (1997). In considering whether the juvenile court’s
judgment is against the manifest weight of the evidence, this Court “weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal quotations
omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When
weighing the evidence, this Court “must always be mindful of the presumption in
favor of the finder of fact.” Id. at ¶ 21.
Controlling Statute
{¶22} Ohio Revised Code 2151.04(C) defines a dependent child as one,
“Whose condition or environment is such as to warrant the state, in the interests of
the child, in assuming the child’s guardianship.”
Trial Court’s Findings Based on the Evidence Presented
at the Adjudication Hearing
{¶23} Following remand on this matter, the trial court issued a thorough
judgment entry explaining its reasoning as to why it determined the children were
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dependent pursuant to R.C. 2151.04(C). The trial court divided its entry into
subsections, beginning with findings of fact on “Concerns for Supervision.” In this
subsection, the trial court highlighted testimony from Danielle F. who stated that in
February of 2018 she went to Daniel’s home to pick up her daughters, P.C. and A.C.
Danielle testified that there were no adults in the home at that time, that the house
was a mess, that there were no clothes in the children’s dressers, and no ready-to-
eat foods. Danielle indicated that D.C. was left in charge of the children while his
parents were away on vacation, even though D.C. had no access to a phone or a
vehicle. The trial court noted that D.C.’s probation officer testified that throughout
the year of 2018, D.C. regularly tested positive for marijuana, and once for cocaine
as well. Danielle did not believe D.C. would be an appropriate babysitter for the
younger children. The trial court agreed, finding concerns about D.C.’s maturity
level; however, the trial court stated that even if D.C. was an appropriate supervisor,
it was a threat to the well-being of the children to be left with a sibling with no
access to a phone or vehicle.
{¶24} The trial court then listed its concerns for “Basic Care and Needs of
the Minor Children.” These concerns included Danielle’s testimony about an
incident in August of 2018 wherein Daniel used marijuana while children were in
another room of the home, Danielle’s testimony that on multiple occasions she
found Daniel’s home in such disarray that she had to clean it for Daniel, and
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Case No. 8-20-39, 40, 41, 45, 46 and 47
Danielle’s testimony that Daniel yelled at the children, threw items at them, and
used explicit, inappropriate language toward the children. A recording of Daniel
yelling at the youngest children using vulgar language was played for the trial court.
{¶25} The trial court also found concerns with the care and needs of the
children through the testimony of Daphne S., who was the girl scout leader for P.C.
and A.C. Daphne testified that in July of 2018 she was in Daniel’s home and it was
very cluttered and dirty. Daphne testified that when she received the girls from
Daniel they were always hungry, much more so than average girls in the girl scout
troop, and that other scout leaders brought food for the girls to eat because of this.
Further, Daphne stated she had P.C. and A.C. overnight on occasion and they would
always be dirty and needing a bath. There was also an incident wherein Daphne had
the children overnight, with Daniel’s permission, but Daniel did not remember that
she had the children the next day.
{¶26} Further, in concerns for the basic needs of the children, the trial court
noted the testimony of Daniel’s wife, Jonna, who stated that when she left the house
because she was fighting with Daniel, she called and had the electricity shut off even
knowing that the minor children were living there in order to punish Daniel. Due
to Daniel’s financial state, it took him two days to restore the electricity, and then
only after help from a relative. The trial court found Daniel’s financial state
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concerning since he testified he was the sole source of income and Jonna provided
care for the children.
{¶27} The trial court’s entry next addressed “Concerns for the Medical Care
of the Minor Children.” The trial court emphasized testimony that indicated that
the children repeatedly had lice, so much so that when they went to be cared for at
other houses they had a regular routine to be treated for lice. Nevertheless, the
children would return from Daniel’s house the next time still having lice. The
children had missed numerous days of school because of the lice issue. Witnesses
testified that Daniel was informed of the lice issue but he did not adequately address
it to remedy the problem that had become chronic. The trial court found that Daniel
made some efforts towards removing the lice but his efforts were insufficient,
leading to the chronic issues with the children.
{¶28} In addition, the trial court noted that testimony indicated A.C. had a
urinary tract infection for months, dating as far back as September of 2017, which
Daniel did not address despite A.C. having burning and frequent urination.
Testimony indicated that Daniel merely urged A.C. to shower to resolve the
problem.
{¶29} Further, C.C. also had unaddressed health issues according to the
testimony. For example, C.C. was covered with bug bites after being at Daniel’s
residence but was not taken to the doctor by Daniel, C.C. was not treated for an
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extremely high fever, and C.C. did not even know how to brush his own teeth.
Daniel generally did not take the children to the doctor, believing he could resolve
the issues through his own research. The trial court emphasized that during its in
camera interview with C.C., the child had numerous bites that the trial court
believed C.C. had obtained prior to his removal from Daniel’s home. The trial court
specifically stated that the bite marks were “appalling.”
{¶30} Finally, the trial court addressed “Concerns for the Education of the
Minor Children” in its entry. The trial court emphasized the testimony of Mary C.,
the children’s temporary custodian, who found that C.C. was behind in his
development because he could not identify his letters or numbers and he could not
write. The trial court noted that during its in camera interview with C.C. it felt that
C.C. should have been in Kindergarten. “At the very least, [Daniel] should have
made the decision to keep him out of school for another year with trained
educational professionals, not on his own as he did.” The trial court also emphasized
that Daniel did not know the names of his children’s teachers.
{¶31} The trial court was troubled by the fact that Jonna stated she was the
primary caregiver for the children, yet she also testified that she would leave the
home for several days at a time when she fought with Daniel. In fact, she testified
that she had left the home as many as seven times in the prior year for two-to-three
days each time—the last incidence of which Jonna turned off the electricity.
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{¶32} Based on all of the factual findings and the concerns listed in the entry,
the trial court found by clear and convincing evidence that Daniel failed to provide
adequate care and supervision for the children, creating an environment for the
children such that intervention by the Agency was warranted.
Analysis
{¶33} On appeal, Daniel argues that the trial court’s entry ignored contrary
evidence presented by Daniel’s witnesses, and ignored some evidence favorable to
Daniel presented by the Agency’s witnesses. For example, Daniel claims that the
trial court ignored testimony from Daphne, whom the trial court found credible, that
she had been at Daniel’s home when the house was clean and there was food present.
Further, Daphne testified that when she went to the home during Daniel’s purported
vacation with Jonna, there was an adult female there, contrary to Danielle’s
testimony.
{¶34} Daniel also argues that dirty clothes and dishes in a residence did not
make the children living there dependent, particularly since those items established
that the children did have some clothing and presumably food since dishes were
dirty. Additionally, Daniel claims on appeal that the witnesses presented by the
Agency had a “clear bias.” Thus he maintains that the Agency did not meet its
burden by clear and convincing evidence.
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{¶35} As to Daniel’s claims regarding the trial court’s findings, many, if not
all, of these determinations rest on credibility judgments, which we will not second-
guess on appeal. Logan v. Holcomb, 3d Dist. Marion No. 9-12-61, 2013-Ohio-2047,
¶ 39; State v. DeHass, 10 Ohio St.2d 230 (1967). This is particularly true given that
this case involves children. In re E.B., 8th Dist. Cuyahoga Nos. 109093, 109094,
2020-Ohio-4139, ¶ 47. Furthermore, it is of paramount importance to note the trial
court interviewed the children in camera, and was thus able to see and evaluate them
before hearing the testimony regarding their condition and environment.
{¶36} Moreover, a key factor that Daniel attempts to minimize in his appeal
are the ongoing struggles with health issues, particularly the lice issue with the
children. The children’s lice issue was not a single isolated incidence, or even a
second incidence, but rather an ongoing struggle wherein the children had to be
treated whenever they went to their temporary caregiver’s home after being at
Daniel’s residence. There was testimony that the children had missed numerous
days of school and that the lice problem was chronic. The trial court found that
Daniel’s attempts to address the issue were woefully insufficient.
{¶37} In addition, there were other ongoing health problems with the
children that Daniel failed to address such as A.C.’s ongoing urinary tract infection
and C.C.’s bug bites—bites the trial court described after seeing them as appalling.
Daniel believed in avoiding doctors to the extent that he could, and the choice to
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consult Google rather than see a doctor or treat his children fully led to conditions
of ongoing suffering for the children.
{¶38} Moreover, although in his brief Daniel attempts to minimize the power
being shut off in the house by Jonna as a unilateral decision by her, the trial court
was troubled by this incident because Jonna was supposed to be the children’s
primary caregiver. In addition, by her own testimony, Jonna left the house for
multiple days at a time when she and Daniel got into fights. Thus regardless of the
true state of cleanliness in the house and the amount of food inside, which testimony
conflicted upon, there was clear testimony related to health issues of the children
and testimony related to a poor general environment for their care. Given the trial
court’s credibility determinations, we cannot find that the trial court erred.
{¶39} Finally, Daniel also argues that the trial court improperly relied on
Daniel’s marijuana use in the home as rendering the children dependent without
evidence that the substance was impairing his ability to supervise the children. In
support he cites this Court’s decision In re K.J., 3d Dist. Hancock Nos. 5-19-31, 5-
19-32, 2020-Ohio-3918, wherein we determined that drug use by a parent outside
of the presence of children alone is not sufficient to support a dependency finding.
However, K.J., is readily distinguishable from the case sub judice as the use of
marijuana, or other drugs, is not the sole basis for the dependency findings here,
thus we do not find K.J.’s holding applicable in this instance.
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{¶40} On the record before us, we cannot find that the trial court erred by
determining that the children were dependent by clear and convincing evidence.
The trial court’s determinations were supported by sufficient evidence, and even
given the conflicting testimony of Daniel and his witnesses, the trial court’s
determinations were not against the manifest weight of the evidence where the trial
court was able to see and hear the testimony of the witnesses. Therefore Daniel’s
first assignment of error is overruled.
Third Assignment of Error
{¶41} In his third assignment of error, Daniel argues that the trial court erred
by finding that the Agency engaged in reasonable efforts to prevent the removal of
the children from his home and to eliminate the continued removal of children.
Standard of Review
{¶42} Revised Code 2151.419 imposes a duty on the part of children services
agencies to make reasonable efforts “ ‘to prevent the removal of the child from the
child’s home, to eliminate the continued removal of the child from the child's home,
or to make it possible for the child to return safely home.’ ” In re B.P., 3d Dist.
Logan No. 8–15–07, 2015–Ohio–5445, ¶ 39, quoting R.C. 2151.419(A)(1). “[T]he
agency bears the burden of showing that it made reasonable efforts.” In re T.S., 3d
Dist. Mercer Nos. 10–14–13, 10–14–14, and 10–14–15, 2015–Ohio–1184, ¶ 26,
citing R.C. 2151.419(A)(1). “We review under an abuse-of-discretion standard a
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trial court’s finding that an agency made reasonable efforts toward
reunification.” In re A.M., 3d Dist. Marion No. 9–14–46, 2015–Ohio–2740, ¶ 24,
citing In re C.F., 113 Ohio St.3d 73, 2007–Ohio–1104, ¶ 48 and In re Sherman, 3d
Dist. Hancock Nos. 5–06–21, 5–06–22, and 5–06–23, 2006–Ohio–6485, ¶ 11. An
abuse of discretion suggests that the trial court's decision is unreasonable, arbitrary,
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Analysis
{¶43} Daniel claims on appeal that the Agency did not present any testimony
related to making reasonable efforts. Rather, Daniel claims that a caseworker from
the Agency simply testified that the Agency had tried to engage with Daniel and
provide him with services but the Agency had been unsuccessful, and that safety
concerns for the children had not been alleviated. Daniel argues that this testimony
was not specific enough to establish reasonable efforts by the Agency here.
{¶44} Contrary to Daniel’s argument, the record indicates that Daniel would
not comply with Agency services that were offered to him. Further, since the
complaint had been filed, new concerns had been raised with the Agency about
Daniel’s home and his actions, some based on recurring issues and some based on
entirely new issues such as the power in the house being shut off.
{¶45} In addition, there were a number of issues listed in the case plan to be
resolved that had not been ameliorated such as cooperating with caseworkers,
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accepting and acting on referrals, ensuring that the children were attending school
regularly, ensuring the children were being supervised appropriately, and ensuring
that Daniel and Jonna were providing for the children’s basic needs including food,
shelter, clothing, and health care.
{¶46} As Courts have held before, the issue in determining “reasonable
efforts” is not whether there was anything more that the agency could have done,
but whether the Agency’s case planning and efforts were reasonable and diligent
under the circumstances of this case. In re C.C., I.C., 3d Dist. Marion Nos. 9-16-
07, 9-16-08, 2016-Ohio-6981, ¶ 16. Given the highly deferential standard of review
in this matter, we cannot find that the trial court abused its discretion in finding that
reasonable efforts had been made by the Agency as demonstrated through the case
plan filed in the record and the statements of the Agency. Therefore Daniel’s third
assignment of error is overruled.
Fifth Assignment of Error
{¶47} In his fifth assignment of error, Daniel argues that the GAL failed to
perform necessary duties pursuant to R.C. 2151.281 and Superintendence Rule 48.
Daniel claims the record does not show what the GAL actually did as part of her
investigation.
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Standard of Review
{¶48} There is no indication in the record that Daniel objected to the actions
or performance of the GAL. As a result, Daniel has failed to preserve this error for
appeal. “It is well established that if a party fails to object at the trial court level,
that party waives all but plain error.” In re L.L., 3d Dist. Logan Nos. 8–14–25, 8–
14–26, 8–14–27, 2015–Ohio–2739, ¶ 51, quoting In re M.R., 3d Dist. Defiance No.
4–12–18, 2013–Ohio–1302, ¶ 84.
{¶49} In Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997–Ohio–401,
addressing the applicability of the plain error doctrine to appeals of civil cases, the
Supreme Court of Ohio stated:
In appeals of civil cases, the plain error doctrine is not favored
and may be applied only in the extremely rare case involving
exceptional circumstances where error, to which no objection was
made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.
Analysis
{¶50} Daniel does not specifically make a plain error argument in his brief
to this Court in his appeal. We have specifically rejected and overruled identical
assignments of error for this single failure alone. In re S.L., 3d Dist. Logan No. 8-
17-25, 2018-Ohio-1111, ¶ 47.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
{¶51} Notwithstanding this point, there is no validity to Daniel’s argument
that the GAL failed in her duties in this case. Revised Code 2151.281(I) governs a
GAL’s duties, and it reads as follows.
(I) The guardian ad litem for an alleged or adjudicated abused,
neglected, or dependent child shall perform whatever functions
are necessary to protect the best interest of the child, including,
but not limited to, investigation, mediation, monitoring court
proceedings, and monitoring the services provided the child by
the public children services agency or private child placing agency
that has temporary or permanent custody of the child, and shall
file any motions and other court papers that are in the best
interest of the child in accordance with rules adopted by the
supreme court.
The guardian ad litem shall be given notice of all hearings,
administrative reviews, and other proceedings in the same
manner as notice is given to parties to the action.
{¶52} In addition to Revised Code 2151.281(I), Superintendence Rule 48(D)
provides guidance regarding a GAL’s duties. Superintendence Rule 48 states that
a GAL should perform at minimum a certain number of duties.5 Some of the duties
include: representing the best interest of the child, maintaining objectivity,
participating in hearings, keeping accurate records, and making reasonable efforts
to become informed about the case. However, it is important to emphasize that
Sup.R. 48 does not create substantive rights, even if a GAL fails to comply with the
rule. In re: W.H., H.W., J.W. III, J.W., P.W., E.W., J.W. IV, 3d Dist. Marion No. 9-
5
The Superintendence Rules have been updated effective January 1, 2021.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
16-19, 2016-Ohio-8206, ¶ 77, citing In re E. W., 4th Dist. Washington Nos.
10CA18, 10CA19, 10CA20, 2011–Ohio–2123, ¶ 12; accord In re J.A. W., 11th
Dist. Trumbull No.2013–T–0009, 2013–Ohio–2614, ¶ 47; In re K. V., 6th Dist.
Lucas No. L–11–1087, 2012–Ohio–190, ¶ 30 (stating that the Rules of
Superintendence do not give rise to substantive rights, and so the filing of a GAL’s
report is not mandatory.). “ ‘They are not the equivalent of rules of procedure and
have no force equivalent to a statute. They are purely internal housekeeping rules
which are of concern to the judges of the several courts but create no rights in
individual defendants.’ ” Allen v. Allen, 11th Dist. Trumbull No.2009–T–0070,
2010–Ohio–475, ¶ 31, quoting State v. Gettys, 49 Ohio App.2d 241, 243, 360
N.E.2d 735, (3d. Dist.1976). Therefore, a GAL’s failure to comply with his or her
duties under Sup.R. 48 is not basis for reversal unless a parent demonstrates
prejudice. In re J.P., 10th Dist. Franklin No. 18AP-834, 2019-Ohio-1619, ¶ 45,
citing In re K.R., 12th Dist. Warren Nos. CA2017-02-015, CA2017-02-019,
CA2017-02, 024, 2017-Ohio-7122, ¶ 22; In re W.H., 3d Dist. Marion No. 9-16-19,
2016-Ohio-8206, ¶ 79; In re J.C., 4th Dist. Adams No. 07CA833, 2007-Ohio-3781,
¶ 13.
{¶53} In this case, the record reflects that the GAL regularly attended
hearings. She questioned witnesses at the adjudication hearing and made a
statement in closing arguments at the adjudication hearing that detailed some of her
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Case No. 8-20-39, 40, 41, 45, 46 and 47
involvement in this case with the parties and the children. During the dispositional
phase, the GAL further clarified her involvement in this case and presented exhibits
showing that she had been in correspondence with the children’s schools and their
teachers. She was also part of the in camera interviews of the children. Further,
she was in contact with individuals who believed they had heard Daniel threatening
the oldest child and the babysitter. She stated that she attempted to visit with Daniel,
but he declined.
{¶54} Moreover, at the dispositional hearing the GAL noted she did not file
a report prior to the dispositional phase because of the “strange timing of this
dispositional hearing.” (Oct. 30, 2018, Hrg. Tr. at 38). “I would have had to file
that seven days before today, which would have been even before the adjudicatory
hearing, so I decided not to do that because I wanted to hear the evidence.” (Id.)
{¶55} Thus contrary to Daniel’s claims, the record reflects that under
2151.281(I), the GAL investigated the matter, she was involved in court hearings,
and she was involved in pursuing what she felt were the best interests of the children.
We cannot find based on the record that the GAL failed to perform her duties.
Moreover, to any extent Daniel argues that the GAL did not comply with
Superintendence Rule 48, we again emphasize that this rule does not create
substantive rights. In re H.M., 3d Dist. Logan Nos. 18-18-46, 47, 55, 56, 2019-
Ohio-3721, ¶ 81. Furthermore, Daniel would have to demonstrate some prejudice
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Case No. 8-20-39, 40, 41, 45, 46 and 47
here based on his claimed deficiency by the GAL, and any attempt at doing so,
which is not evident in his brief, is purely speculative. Id. For all of these reasons,
Daniel’s fifth assignment of error is overruled.
Second Assignment of Error
{¶56} In his second assignment of error, Daniel argues that the trial court
erred by ordering the case plans into effect in this matter. He contends that before
the case plans could be ordered into effect the trial court had to take evidence so that
it could evaluate whether the case plan objectives were in the children’s best
interests.
Relevant Authority
{¶57} Revised Code 2151.412 discusses case plans. The implementation of
a case plan is discussed in R.C. 2151.412(D) and (E), which read as follows.
(D) Each public children services agency and private child
placing agency that is required by division (A) of this section to
maintain a case plan shall file the case plan with the court prior
to the child's adjudicatory hearing but no later than thirty days
after the earlier of the date on which the complaint in the case was
filed or the child was first placed into shelter care. If the agency
does not have sufficient information prior to the adjudicatory
hearing to complete any part of the case plan, the agency shall
specify in the case plan the additional information necessary to
complete each part of the case plan and the steps that will be taken
to obtain that information. All parts of the case plan shall be
completed by the earlier of thirty days after the adjudicatory
hearing or the date of the dispositional hearing for the child.
(E) Any agency that is required by division (A) of this section to
prepare a case plan shall attempt to obtain an agreement among
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Case No. 8-20-39, 40, 41, 45, 46 and 47
all parties, including, but not limited to, the parents, guardian, or
custodian of the child and the guardian ad litem of the child
regarding the content of the case plan. If all parties agree to the
content of the case plan and the court approves it, the court shall
journalize it as part of its dispositional order. If the agency cannot
obtain an agreement upon the contents of the case plan or the
court does not approve it, the parties shall present evidence on the
contents of the case plan at the dispositional hearing. The court,
based upon the evidence presented at the dispositional hearing
and the best interest of the child, shall determine the contents of
the case plan and journalize it as part of the dispositional order
for the child.
Analysis
{¶58} Importantly, no party formally objected to the case plan as a whole
that was filed in this matter, which was first docketed in August of 2018. However,
Daniel did repeatedly “refuse to sign” the case plan and the amendments, and he
adamantly disagreed with some of the provisions, asserting they were improper or
unnecessary. Nevertheless, the case plan was filed early in the proceedings and
presented to Daniel. Although Daniel may not have appreciated the case plan
requirements, this does not change the fact that the case plan was known to him.
See In re S.H., 12th Dist. Butler Nos. CA2020-02-023, 024, 2020-Ohio-3499,¶ 15.
{¶59} Daniel now suggests in his brief that the trial court needed to hear
evidence before implementing a case plan, specifically citing R.C. 2151.412(D) in
support; however, this requirement is simply not stated in that statutory subsection.
Daniel offers no case authority to the contrary in support of his position.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
Nevertheless, taking evidence is mentioned in subsection (E), which perhaps he
meant to reference.
{¶60} Regardless of the appropriate statutory subsection, to the extent that
Daniel contends that no evidence was introduced at the dispositional hearing for the
trial court to make its determination regarding the implementation of case plans, this
is incorrect, as the GAL entered letters from the children’s teachers into evidence
showing how well they were doing in their new temporary placement. Further,
during the dispositional phase, the trial court permitted all of the parties, including
Daniel’s attorney to make statements regarding disposition and the case plan. In
fact, Daniel’s attorney specifically stated she did not need more time to prepare for
disposition and she did not attempt to call any witnesses. She did argue on Daniel’s
behalf, however, and she made it known that Daniel did not want the children with
paternal grandparents, that he objected to supervised visitation, and that if Daniel’s
visitation had to be supervised, he requested that the visitation be somewhere other
than the Agency.
{¶61} The trial court took the arguments of Daniel’s attorney into account.
The trial court did not agree with Daniel’s request to remove the children from the
temporary care of paternal grandparents, particularly given the evidence presented;
however, the trial court did agree to modify the case plan so that visitation would
be done at Adriel.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
{¶62} Importantly, Daniel did not make any other specific objections to the
case plan at the dispositional hearing. Ohio Appellate Courts have held that
challenges to the timeliness of case plans that are not raised before the trial court are
waived for purposes of appeal. See In re Miller, 5th Dist. Licking No. 04CA32,
2005-Ohio-856. ¶ 21; In re J.J., 8th Dist. Cuyahoga No. 86276, 2007-Ohio-535, ¶
32. It similarly stands to reason that Daniel’s failure to challenge any issues related
to the case plans before the trial court would be waived for purposes of appeal.
{¶63} Notwithstanding any waiver, on the record before us, we cannot find
that the trial court erred regarding implementing case plans in this matter.
Therefore, Daniel’s second assignment of error is overruled.
Sixth Assignment of Error
{¶64} In Daniel’s sixth assignment of error, he argues that the trial court
permitted impermissible hearsay on multiple occasions at the adjudicatory hearing.
Standard of Review
{¶65} “Adjudicatory hearings require strict adherence to the Rules of
Evidence.” In re S.L., 3d Dist. Union No. 14-15-07, 2016-Ohio-5000, ¶ 23, citing
In re Beebe, 3d Dist. Allen No. 1–02–84, 2003-Ohio-1888, ¶ 10, citing In re Baby
Girl Baxter, 17 Ohio St.3d 229, 233 (1985). “Accordingly, hearsay is not
admissible in an adjudicatory hearing unless the statement falls within a recognized
exception to the hearsay rule.” In re O.H., 9th Dist. Summit No. 25761, 2011-Ohio-
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Case No. 8-20-39, 40, 41, 45, 46 and 47
5632, ¶ 21, citing Evid.R. 802. Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Evid.R. 801(C). “Under Evid.R. 802, hearsay is
inadmissible unless it falls within an exception provided by the rules of
evidence.” Secy. of Veterans Affairs v. Leonhardt, 3d Dist. Crawford No. 3-14-04,
2015-Ohio-931, ¶ 40.
{¶66} “The trial court has broad discretion concerning the admissibility of
evidence.” Leonhardt at ¶ 39, citing Beard v. Meridia Huron Hosp., 106 Ohio St.3d
237, 2005-Ohio-4787, ¶ 20. “A decision to admit or exclude evidence will be upheld
absent an abuse of discretion.” Beard at ¶ 20, citing O’Brien v. Angley, 63 Ohio
St.2d 159, 164–165, (1980). An abuse of discretion suggests the trial court's
decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, (1983). “Even in the event of an abuse of discretion, a
judgment will not be disturbed unless the abuse affected the substantial rights of the
adverse party or is inconsistent with substantial justice.” Beard at ¶ 20,
citing O’Brien at 164–165. However, “Generally, this court will not in the first
instance consider errors that the appellant could have called to the trial court's
attention.” In re J.L., 10th Dist. Franklin No. 15AP-889, 2016-Ohio-2858, ¶ 59,
citing In re Pieper Children, 85 Ohio App.3d 318, 328 (12th Dist.1993).
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Case No. 8-20-39, 40, 41, 45, 46 and 47
Analysis
{¶67} Daniel claims that there were numerous incidents in this case where
the trial court allowed impermissible hearsay. The first incident he cites was during
the testimony of Danielle F., the mother of P.C. and A.C. Danielle testified on
cross-examination by Daniel’s attorney about a time she had gone over to Daniel’s
residence and the house did not have any meat, milk or anything ready-to-eat in the
refrigerator or the freezer. Danielle then stated that the children told her that they
were hungry and that they did not eat dinner the prior night. Daniel claims this
testimony was hearsay on appeal, though no objection was made to the trial court,
which would lead to a plain error analysis.
{¶68} Notably Daniel does not even attempt to demonstrate how this
statement is prejudicial in his brief, appearing to rely on prejudice being self-
evident. His failure to demonstrate prejudice is important here because the
statements related to the children being hungry and not eating were cumulative to
others made during Daphne S.’s testimony through her own direct observations. “
‘[T]he erroneous admission or exclusion of hearsay, cumulative to properly
admitted testimony, constitutes harmless error.’ ” In re H.D.D., 10th Dist. Franklin
Nos. 12AP–134, 12AP–135, 12AP–136, 12AP–137, 12AP–146, 12AP–147, 12AP–
148, 12AP–149, 2012-Ohio-6160, ¶ 45, quoting State v. Hogg, 10th Dist. Franklin
No. 11AP–50, 2011-Ohio-6454, ¶ 46. We can find no error here where the
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Case No. 8-20-39, 40, 41, 45, 46 and 47
purported hearsay statement was elicited on cross-examination, was not objected to
by counsel, and was cumulative to other testimony.
{¶69} Daniel next argues that Danielle was impermissibly permitted to
testify about hearsay statements made by the oldest son, D.C. However, Danielle
directly observed the cited conversation, thus it could fall under a present sense
impression or excited utterance given that it was during a verbal fight between father
and son. Evid.R. 803(1), (2). Regardless, there was no objection made and Daniel
does not attempt to make an argument regarding prejudice, which is particularly
important because D.C. is emancipated and no longer part of the dependency cases
before us on appeal. We can find no error here, let alone plain error or prejudicial
error.
{¶70} Daniel next claims that the testimony of Elizabeth F. was “literally all
hearsay and was objected to but counsel was overruled.” (Appt.’s Br. at 24). Daniel
cites to various page numbers from Elizabeth’s testimony but does not point to any
specific testimony or make an argument regarding the testimony. Instead he states
that his argument regarding hearsay was necessarily limited by page limits in the
brief.
{¶71} “It is not the duty of this [C]ourt to construct legal arguments in
support of an appellant’s appeal.” Camp v. Star Leasing Co., 10th Dist. Franklin
No. 11AP–977, 2012–Ohio–3650, ¶ 67; Union Bank Co. v. Lampert, 3d Dist.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
Auglaize No. 2-13-32, 2014-Ohio-4427, ¶ 21. It is similarly not the duty of this
Court to identify the hearsay on a cited page, determine whether it fits into an
exception, then, if it does not fit into a hearsay exception, manufacture an argument
as to how the testimony might be prejudicial here, and then finally proceed to
address it in the context of all the testimony. We decline to engage in such a process
here.
{¶72} Even if we did elect to engage in such a process, some of the testimony
pointed to involves D.C., who is no longer part of the case, and some of the
testimony appears to be cumulative to other issues already raised such as lack of
food in the home and children missing meals.
{¶73} Lastly, Daniel argues that there were many other examples of hearsay
permitted throughout the testimony, but he does not even attempt to cite page
numbers or instances due to “space limitations” in his brief. We decline to engage
in manufacturing hearsay arguments for him. For all of these reasons, Daniel’s sixth
assignment of error is overruled.
Fourth Assignment of Error
{¶74} In Daniel’s fourth assignment of error, he argues that the trial court
erred by permitting testimony impeaching Daniel’s witnesses with prior convictions
that were older than ten years.
Standard of Review
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Case No. 8-20-39, 40, 41, 45, 46 and 47
{¶75} “A trial court is afforded broad discretion in determining the extent to
which such evidence may be admitted under Evid.R. 609.” State v. Brown, 100
Ohio St.3d 51, 2003-Ohio-5059, ¶ 27, citing State v. Wright, 48 Ohio St.3d 5,
(1990), syllabus. See State v. Walburg, 10th Dist. Franklin No. 10AP-1087, 2011-
Ohio-4762, ¶ 59, quoting State v. Goney, 87 Ohio App.3d 497, 501, 622 N.E.2d 688(2d Dist.1993), citing Wright (“ ‘Evid.R. 609 as amended in 1991 makes clear that
Ohio trial judges have discretion to exclude prior convictions where the court
determines that the probative value of the evidence outweighs the danger of unfair
prejudice or confusion of the issues, or of misleading the jury.’ ”). Therefore, we
review the trial court’s determination under Evid.R. 609 for an abuse of discretion.
{¶76} Despite the broad discretion generally afforded under Evid.R. 609,
Ohio Appellate Courts have held that, “ ‘[g]enerally, convictions over ten years old
rarely should be admitted under Evid.R. 609(B), and only in exceptional
circumstances.’ ” Keaton v. Abbruzzese Bros., 189 Ohio App.3d 737, 2010-Ohio-
3969, ¶ 11, quoting Ruff v. Bowden, 10th Dist. Franklin No. 94APE08-1116, 1995
WL 141045 (Mar. 28, 1995), citing Lenard v. Argento, 699 F.2d 874 (7th Cir.1983);
State v. Ross, 10th Dist. Franklin No. 17AP-141, 2018-Ohio-3027, ¶ 20.
Analysis
{¶77} Evidence Rule 609 controls impeachment by evidence of conviction
of a crime. In pertinent part, it reads as follows.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
(A) General Rule. For the purpose of attacking the credibility of
a witness:
(1) subject to Evid.R. 403, evidence that a witness other than the
accused has been convicted of a crime is admissible if the crime
was punishable by death or imprisonment in excess of one year
pursuant to the law under which the witness was convicted.
(2) notwithstanding Evid.R. 403(A), but subject to Evid.R.
403(B), evidence that the accused has been convicted of a crime is
admissible if the crime was punishable by death or imprisonment
in excess of one year pursuant to the law under which the accused
was convicted and if the court determines that the probative value
of the evidence outweighs the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.
(3) notwithstanding Evid.R. 403(A), but subject to Evid.R.
403(B), evidence that any witness, including an accused, has been
convicted of a crime is admissible if the crime involved dishonesty
or false statement, regardless of the punishment and whether
based upon state or federal statute or local ordinance.
(B) Time Limit. Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the
date of the conviction or of the release of the witness from the
confinement, or the termination of community control sanctions,
post-release control, or probation, shock probation, parole, or
shock parole imposed for that conviction, whichever is the later
date, unless the court determines, in the interests of justice, that
the probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial effect.
However, evidence of a conviction more than ten years old as
calculated herein, is not admissible unless the proponent gives to
the adverse party sufficient advance written notice of intent to use
such evidence to provide the adverse party with a fair opportunity
to contest the use of such evidence.
{¶78} The interplay between Evid.R. 609(A) and 609(B) has been stated as
follows.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
“What we have here is a rule, an exception to the rule, and then,
an exception to the exception. To attack a defendant’s credibility,
evidence of his prior convictions may be introduced. This is the
rule in Evid.R. 609(A)(2). Where the conviction is more than ten
years old, however, it is not admissible. This is the exception
in Evid.R. 609(B). Where the probative effect of the ten-year-old
conviction [substantially] outweighs the prejudicial effect of its
admission, the court may admit it. This is the exception to the
exception.”
State v. Sommerville, 9th Dist. Summit No. 25094, 2010-Ohio-3576, ¶ 5, quoting
State v. Fluellen, 88 Ohio App.3d 18, 22 (4th Dist.1993).
{¶79} In this case, Daniel argues that the trial court erred by permitting
impeachment testimony of two of Daniel’s witnesses. He contends that the
impeachment included convictions that were older than ten years, and thus the
impeachment was facially inadmissible under Evid.R. 609, absent some analysis by
the trial court, which was not done here. We will address each of Daniel’s claims
of improper impeachment in turn.
{¶80} As to the first claim of improper use of impeachment under Evid.R.
609, Daniel presented the testimony of his mother, Donna W., at the adjudication
hearing. Donna provided testimony that she was in Daniel’s house often, as often
as four times each week, and that she regularly came over to see the children and
make meals. She testified that she had never seen any bed bugs in Daniel’s home,
that the children had dishes, food, clothes, and that they ate regularly.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
{¶81} On cross-examination, the attorney for Danielle, the mother of P.C.
and A.C., asked Donna about whether she had a criminal history in the following
dialogue.
Q. To the question of veracity, do you have a criminal record?
A. What does that –
Q. Anything in court? Ever been charged with any criminal
record?
[Daniel’s Attorney]: Objection, relevance.
[Danielle’s Attorney]: It is a question of veracity on the
testimony.
THE COURT: I was waiting to see if anybody else wanted to
chime in. Overruled.
Q [Danielle’s Attorney]. Have you ever been charged with any
criminal –
A. Yes.
Q. What was that?
A. In 1996.
Q. What was the charge?
A. Theft by deception.
Q. Is what?
A. Theft by deception.
Q. Okay.
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Case No. 8-20-39, 40, 41, 45, 46 and 47
[Danielle’s Attorney]: No further questions.
(Tr. at 139-140).
{¶82} Counsel for the mother of D.C., as the next attorney to cross-examine
Donna, asked one follow up question, “Theft by deception is your only criminal
conviction?” (Tr. at 141). Donna responded, “yes.” (Id.) There was no objection
to the question at that time, and no further mention of Donna’s criminal record.
{¶83} Daniel claims on appeal that it was error for the trial court to admit the
preceding testimony related to Donna’s conviction, which was in excess of 20 years
old, well outside the 10-year window in Evid.R. 609. Further, Daniel claims that to
any extent the trial court had discretion in the matter to still admit the testimony, the
trial court conducted no analysis.
{¶84} After reviewing the record, we find that it is important to focus on the
actual sequence of questions and answers before the trial court. Donna was initially
asked about her criminal record and Daniel’s counsel objected on the grounds of
relevance. A criminal conviction could be impeachment evidence, so the trial court
overruled the objection. There is no indication that at the time the trial court
overruled Daniel’s objection that the trial court was aware that Donna had any
criminal convictions at all, let alone when they might have occurred. It was only
after the objection was overruled that Donna revealed her one criminal conviction
and the fact that it fell outside of the 10-year time window. Once the timing of the
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Case No. 8-20-39, 40, 41, 45, 46 and 47
conviction was revealed, Daniel’s attorney did not make an objection based on
Evid.R. 609. Daniel similarly did not make an objection to the one question asked
by counsel for D.C.’s mother, where the attorney seemed to be fishing for other
convictions. If an objection was made after Donna’s testimony was revealed, it
would have been clear to the trial court that the testimony regarding Donna’s prior
conviction was generally inadmissible. Once the trial court was aware of the actual
testimony, there was no objection made from which a trial court could rule that it
was inadmissible.
{¶85} Further, it is important to emphasize that, “Appellate
courts presume that in a bench trial, a trial court considered only relevant and
admissible evidence.” City of Beachwood v. Pearl, 8th Dist. Cuyahoga No. 105743,
2018-Ohio-1635, ¶ 30; State v. Crawford, 8th Dist. Cuyahoga No. 98605, 2013-
Ohio-1659, ¶ 61; State v. Chandler, 8th Dist. Cuyahoga No. 81817, 2003-Ohio-
6037, ¶ 17. The trial court, as trier-of-fact in this case, was not presented with an
opportunity to address any objection based on Evid.R. 609 once the actual testimony
related to Donna’s conviction was presented. Generally this evidence is
inadmissible. Given the presumption that a trial court considers only relevant and
admissible evidence, we presume that the trial court did not actually consider the
conviction as impeachment evidence. There is nothing in the record to suggest
otherwise.
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{¶86} Moreover, in the trial court’s extensive written findings it did not
mention anything about Donna’s conviction. Rather the trial court generally stated
at the beginning of its entry that it had applied the “usual tests of credibility to their
testimony, including, but not limited to their interest in the outcome for this case.”
This is important because Donna had a clear potential bias in this case given that
Daniel was her son.
{¶87} Based on all of the evidence presented, the fact that there is no
indication that the trial court actually considered Donna’s conviction once it was
known to be outside of the appropriate time window under Evid.R. 609, and because
Donna had other potential bias that the trial court could consider, we cannot find
that there was error here, or if there was error, it was anything other than harmless.
{¶88} Daniel next argues that the trial court allowed impermissible
impeachment evidence under Evid.R. 609 during the testimony of Gary D. Gary
was a friend of Daniel who was often over at Daniel’s residence. Gary had children
who played with Daniel’s children. Gary testified that Daniel’s house was lived-in
but there were not issues with cleanliness. He also testified he had never noticed
the children to be without sufficient clothing and that he had never seen visible
medical issues.
{¶89} Then, on cross-examination, the attorney for D.C.’s mother engaged
in the following discussion with Gary.
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Q. Mr. D[.], do you have any criminal record?
A. Yes.
Q. What was that?
A. I – you would have to refer to a background check. I couldn’t
tell you, I don’t remember.
Q. You [sic] convicted of theft in 2006?
A. It’s possible, yes. – no. No, I don’t think I was convicted of
it. I’m not sure.
Q. Were you charged with theft?
A. One time, yes.
Q. Okay. Were you convicted of something?
A. You’d have to refer to a background check. I couldn’t – I –
Q. Were you on probation?
A. I have been on probation. I couldn’t tell you what for.
Q. Okay. While you were on probation did you have any
probation violations filed against you?
A. I don’t – I don’t recall. I don’t recall if I had had [sic] a PV.
I’m not sure. I don’t think so. It’s been several years ago. This
has been – it’s been a long time ago, so I couldn’t tell you.
Q. Was it here in Logan County.
A. I think so, yes.
Q. So if I told you the Logan County records indicate you were
convicted of theft in 2006 and a misuse of credit cards is dismissed,
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and during that case you were convicted of – or that you had
violated your probation. That could all possibly be true, right?
[Daniel’s Attorney]: I’m going to object to relevance.
[Elizabeth’s Attorney]: It is relevant.
The Court: Overruled.
[Elizabeth’s Attorney]: Thank you, Your Honor. I have nothing
further.
(Tr. at 166-167).
{¶90} The preceding transcript indicates that Gary was asked no further
questions. In fact, Elizabeth’s attorney never even allowed Gary to answer her
question after the trial court overruled the objection.
{¶91} Importantly, the preceding dialogue does not establish that Gary ever
did have a conviction. Gary was evasive in his answers, and when he was directly
asked about a specific conviction, there was an objection and he never answered the
attorney’s question. Thus we cannot find that impermissible impeachment
testimony was permitted when an answer was not actually given by Gary regarding
any conviction. Therefore, we find no error here. Even if we did, there is no
indication that the trial court took Gary’s evasive answers regarding a potential
conviction into account in its decision. For all of these reasons, Daniel’s sixth
assignment of error is overruled.
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Seventh Assignment of Error
{¶92} In his seventh assignment of error, Daniel argues that he was denied a
fair adjudication hearing as a result of the cumulative errors that he claims occurred
throughout the hearing.
Standard of Review
{¶93} Generally, in criminal cases, “Under [the] doctrine
of cumulative error, a conviction will be reversed when the cumulative effect of
errors in a trial deprives a defendant of a fair trial even though each of the numerous
instances of trial court error does not individually constitute cause for
reversal.” State v. Spencer, 3d Dist. Marion No. 9-13-50, 2015-Ohio-52, ¶ 83,
citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶¶ 222-224 and State
v. Garner, 74 Ohio St.3d 49, 64 (1995). “To find cumulative error, a court must first
find multiple errors committed at trial and determine that there is a reasonable
probability that the outcome below would have been different but for the
combination of the harmless errors.” State v. Stober, 3d Dist. Putnam No. 12-13-
13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist. Putnam No. 12-11-06, 2012-
Ohio-1467, ¶ 36. Notably, the case sub judice is not a criminal case, however, we
will review the issue due to the substantial nature of parental rights involved.6
6
There is an open question as to whether the cumulative error doctrine applies at all in civil cases. For a
discussion, see Dept. of Nat. Resources v. Knapke Tr., 3d Dist. Mercer No. 10-13-25, 2015-Ohio-470, 28, ¶¶
54-56.
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Analysis
{¶94} Rather than arguing that the previously addressed assignments of error
were cumulatively prejudicial, if not individually prejudicial, Daniel contends that
there were numerous other, as yet unaddressed issues that cumulatively amounted
to prejudicial error. He cites at least ten new portions of the transcripts where he
feels some error was made; however, these claims are made with minimal discussion
of what the errors purportedly were and the claims are entirely devoid of legal
citation as to how an error occurred, let alone how any purported error was
prejudicial. This does not comply with appellate rule 12(A)(2) which states, “The
court may disregard an assignment of error presented for review if the party raising
it fails to identify in the record the error on which the assignment of error is based
or fails to argue the assignment separately in the brief, as required
under App.R. 16(A).” “ ‘The failure to argue separately assigned errors is grounds
for summary affirmance.’ ” Dulebohn v. Waynesfield, 3d Dist. Auglaize No. 2-20-
05, 2020-Ohio-4340, ¶ 22, quoting Cook v. Wilson, 10th Dist. Franklin No. 05AP-
699, 165 Ohio App.3d 202, 2006-Ohio-234, ¶ 15, citing Guerry v. Guerry,
Cuyahoga App. No. 77819, 2001 WL 1230830 (Oct. 11, 2001).
{¶95} After a review of the record, we do not find that the purported
cumulative errors, both referenced in the prior assignments of error, and those
argued under the seventh assignment of error without legal authority, deprived
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Daniel of a fair adjudication hearing. Based on the evidence we cannot say that the
issues raised by Daniel, even if accepted as erroneous, would create a reasonable
probability that the outcome of the hearing would have been different. For these
reasons, Daniel’s seventh assignment of error is overruled.
Eighth Assignment of Error
{¶96} In his eighth assignment of error, Daniel argues that the trial court
erred by granting the requests of the children’s mothers to have them vaccinated
against his wishes.
Analysis
{¶97} After the children were found to be dependent in this case, the mother
of P.C. and A.C. filed a motion to have the children vaccinated. Daniel opposed
vaccination of his children, so the trial court held a hearing on the matter on August
22, 2019. At the hearing, C.C.’s mother joined the motion to have C.C. vaccinated.
Based on the testimony and evidence presented at the hearing, the trial court made
the following findings of fact in its August 18, 2020 judgment entry.
Mother [of P.C. and A.C.] * * * filed a Motion on June 27, 2019,
for her children to be vaccinated.
The Guardian ad Litem * * * joined the motion.
Mother of [C.C.] * * * joined the Motion for her child.
Daniel C[.] objects to vaccinations.
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Father testified that he does not want his children to be
vaccinated.
Father stated that vaccinations can create death and neurological
damage.
Father stated that he has done much research on the subject.
Father stated that his research was from three websites,
ProCon.org, VacTruth.org, and the National Vaccine
Information Center.
ProCon.org is a website of opinions. Anyone may write their
opinion and it need not be based on facts. VacTruth.org and The
National Vaccine Information Center are known to be a website
against vaccinations.
The Court does not find these sources to be credible.
Father testified under oath that his decisions were made from
what was written on these sites, and so he did not base his
decisions on scientific research and recommendations.
When asked, Father did not know whether more children are hurt
from various diseases or from vaccinations.
Mother, Danielle F[.], presented vaccination information from the
Center for Disease Control (CDC).
Father was not familiar with the safety information on
vaccinations provided by the Center for Disease Control (CDC).
Mother, Danielle F[.], presented vaccination information from the
World Health Organization (WHO).
Father was not familiar with the safety information on
vaccinations provided by the World Health Organization (WHO).
Mother, Danielle F[.], presented vaccination information from the
Ohio Department of Health.
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Father was not familiar with the safety information on
vaccinations provided by the Ohio Department of Health.
Mother, Danielle F[.], presented vaccination information from the
American Academy of Pediatrics.
Father was not familiar with the safety information on
vaccinations provided by the American Academy of Pediatrics.
Father stated that he was afraid his children would be harmed if
vaccinated.
Father stated that harmful ingredients include mercury and
aluminum.
Father provided no scientific or expert evidence to support his
statement that vaccines include mercury and aluminum.
Father provided no proof that such ingredients are actually
contained in vaccines.
Father stated that he did not like the fact that a part of the disease
is in the vaccine.
Father stated that Mother, Danielle F[.], did not want the children
vaccinated when they were together.
However, Father admitted that Mother, Danielle F[.] took the
children for vaccinations when they were together.
Father agreed that the children received vaccinations when they
were younger.
Father could not remember any side effects from former
vaccinations.
Father admitted that his objection to vaccinations is not based on
any religious objection.
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Father stated that since there are no outbreaks of diseases in the
area his children are not in danger of catching these diseases.
Father stated that the children should be able to make up their
own mind about vaccination when they are old enough.
Father believes that the risk of the vaccine is greater than the risk
of the diseases.
Father provided no statistics or studies to support his belief that
vaccines carry a greater risk than the actual disease.
Father did not provide compelling evidence on the lack of safety
of vaccines.
Mother presented information from the CDC, WHO, the Ohio
Department of Health, and the American Academy of Pediatrics.
All four organizations state that vaccines are safe and that severe
side effects are rare.
All four organizations base their decisions on research and
scientific evidence.
Vaccines are credited with being safe and effective.
To the Court’s knowledge, the children attend public school.
{¶98} Based on the factual findings in its judgment entry, the trial court made
the following conclusions of law.
Ohio Revised Code Section 3313.671 requires proof of required
immunizations for a child to attend school.
These vaccinations include mumps, rubeola, rubella, chicken pox,
poliomyelitis, diphtheria, pertussis, tetanus, hepatitis B, and
meningococcal disease.
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A child may be exempted from vaccinations under Section
3313.671[B](4) for reasons of conscience, including religious
convictions.
A child may be exempted from vaccinations under Section
3313.671[B](5) if their physician certifies in writing that such
immunization against any disease is medically contradicted.
Father testified that his decision not to vaccinate is not based on
religious convictions and that his children are healthy.
Father has not provided any type of evidence from a physician
that a vaccination is medically contradicted.
Therefore, the children cannot attend school without
vaccinations.
(Id.) Ultimately the trial court denied Daniel’s motion against vaccination. The
trial court granted the mothers’ requests to have the children vaccinated.
{¶99} On appeal, Daniel argues that the trial court erred by denying his
motion against vaccination. More specifically, he takes issue with the fact that the
mothers who supported vaccination did not testify in support of their motion, relying
only on cross-examination. He also maintains that “[r]easonable, educated people
can hold differing opinions regarding vaccinating their children.” (Appt.’s Br. at
29). Further, he contends that since the evidence was in dispute as to what was
presented between the parties, the trial court placed a heavy emphasis on its own
experience with being vaccinated. Essentially, Daniel contends that the trial court
was biased. Finally, he argues that R.C. 3313.671(B)(4), contains a philosophical
objection for parents who do not want to immunize their children, which requires a
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parent to provide a written statement to the school. Daniel testified that he had
signed an exemption on many occasions.
{¶100} In our own review of the matter, we emphasize that the trial court
conducted a thorough, written analysis, indicating what he found credible and why.
Although Daniel argues that he was the only individual to present actual evidence
at the hearing through his websites, the trial court found the websites used by Daniel
to have minimal or no probative value, declaring that they were not credible sources.
To the contrary, the trial court was persuaded by the cross-examination of Daniel
with the use of, inter alia, CDC and WHO information. Thus to the extent that
Daniel seems to argue that the evidence did not support the trial court’s decision,
we disagree. Giving deference to the trial court’s factual findings, we cannot find
that the trial court erred.
{¶101} Moreover, the trial court referenced the fact that the children were in
public schools and generally had to be immunized, subject to exceptions such as for
religion, pursuant to R.C. 3313.671. Daniel specifically stated he did not object to
vaccinations on religious grounds.
{¶102} Furthermore, it is important to note that Daniel has not always been
against immunizations, as the children have had some vaccinations. Daniel could
not identify any detrimental impact as a result of these prior vaccinations. It seems
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possible that given further research, Daniel could change his mind again on
vaccinations, but by that time a child could have gotten sick.
{¶103} Finally, we would note that although there is not a body of case law
on this issue in Ohio, having children vaccinated has been addressed in juvenile
courts of other states, and vaccination orders have been upheld. See In re S.P., 53
Cal.App.5th 13, 266 Cal.Rptr.3d 770 (finding that a juvenile court has the authority
to order vaccinations for dependent children under its jurisdiction); In Interest of
A.W., 187 A.3d 247, 2018 PA Super 118 (2018) (juvenile court could order
vaccinations over parents’ objections); In re K.Y.B., 242 Md.App. 473, 215 A.3d
471 (juvenile court did not abuse its discretion in concluding that the State’s
compelling interest in protecting the health of the child outweighs mother’s belief
that vaccination contravenes her faith); In re Deng, 314 Mich.App. 615, 618, 887
N.W.2d 445, 447 (Mich.App.2016) (holding, “[b]ecause the trial court has the
authority to make medical decisions over a respondent’s objections
to vaccination for children under its jurisdiction and the court did not clearly err by
determining that vaccination was appropriate for the welfare of
respondent’s children and society, we affirm.”); New Jersey Div. of Child
Protection & Permanency v. J.B., 459 N.J.Super. 442, 457, 212 A.3d 444, 453 (N.J.
Super. Ct. App. Div.2019); In re C.R., 257 Ga.App. 159, 570 S.E.2d 609(Ga.App.2002) (“order permitting C.R. to be immunized should be affirmed.”). We
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are aware that the preceding cases are from other states, which contain differing
statutory schemes related to the care of children; however, we use the cases as an
example, and persuasive authority, that the trial court has the authority to order the
vaccination of children over the objections of a parent.
{¶104} Based on the record before us, we cannot find that the trial court erred
by granting the mothers’ request to have the children vaccinated. For all of these
reasons, Daniel’s eighth assignment of error is overruled.
Conclusion
{¶105} For the foregoing reasons, Daniel’s assignments of error are
overruled and the August 10, 2020, and August 18, 2020, judgments of the Logan
County Common Pleas Court, Juvenile Division, are affirmed.
Judgments Affirmed
ZIMMERMAN, J., concurs.
/jlr
WILLAMOWSKI, P.J., Concurring Separately.
{¶106} I concur fully with the judgments and reasoning as to the first seven
assignments of error. Although I concur with the decision to affirm the judgment
of the trial court as to the eighth assignment of error, I write separately as there is
an underlying issue that has not been raised, specifically that the children are in the
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temporary custody of the paternal grandfather and step-grandmother. Pursuant to
Ohio Adm.Code 5101:2-1-01, temporary custody is defined as a type of legal
custody of a child who has been removed from the child’s home which may be
terminated at any time at the direction of the court. (308). A person with legal
custody is the one with the right to make decisions regarding the medical care of the
child. Ohio Adm.Code 5101:2-1-01(171). Since the children are in the temporary
legal custody of the grandfather and his wife, they are the ones responsible for
determining the appropriate medical care for the children. However, the grandfather
and his wife, as the custodians of the children, did not object to the decision of the
trial court requiring the vaccination of the children. Because no objection was made
by the custodians who had the authority to make that determination, whether the
trial court had the right to consider and rule on the motion by the mothers in this
case need not be determined herein. For this reason I write separately.
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