In re S.M. ( 2011 )

[Cite as In re S.M., 2011-Ohio-6710.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
IN RE: S.M., C.M. and D.M. :
: C.A. CASE NO. 24539
: T.C. NO. 2009-5910
2009-5911
: 2009-5912
: (Civil appeal from Common
Pleas Court, Juvenile
Division)
:
:
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OPINION
Rendered on the 23rd day of December , 2011.
..........
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301
th
W. Third Street, 5 Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BRADLEY BALDWIN, Atty. Reg. No. 0070186, 854 E. Franklin Street, Dayton, Ohio
45459
Attorney for Plaintiff-Appellee
ADRIAN KING, Atty. Reg. No. 0081882, 36 N. Detroit Street, Suite 104, Xenia, Ohio
45385
Attorney for Defendant-Appellant
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JEFFREY LIVINGSTON, Atty. Reg. No. 0062466, 120 W. Second Street, Suite
2000, Dayton, Ohio 45402
Guardian Ad Litem
SAM MOSER, 5700 Mallard Drive, Dayton, Ohio 45424
Defendant-Appellant
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FROELICH, J.
{¶ 1} Sam Moser (“Moser”) appeals from a judgment of the Montgomery
County Court of Common Pleas, Juvenile Division, which found that one of his
children, S.M., was dependent and neglected and that his other children, C.M. and
D.M., were dependent, and which granted temporary custody of the children to their
mother, Donabel Moser.
{¶ 2} Moser’s attorney filed a brief pursuant to Anders v. California (1967),
386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493, stating that after a thorough review of
the record, no meritorious issues for appellate review were found. Moser was
informed of his counsel’s brief, and he was granted time to file a pro se brief, if he
chose to do so. No pro se brief has been filed. The case is now before us for our
independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct.
346, 102 L.Ed.2d 300.
{¶ 3} If a child is adjudicated an abused, neglected, or dependent child, the
court may commit the child to the temporary custody of a public children services
agency, a private child placing agency, either parent, a relative residing within or
outside the state, or a probation officer for placement in a certified foster home, or in
any other home approved by the court. R.C. 2151.353(A)(2). “In choosing among
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the alternatives, the best interest of the child is the court’s primary consideration.”
In re L.C., Clark App. No. 2010 CA 90, 2011-Ohio-2066, ¶13.
{¶ 4} A court’s award of temporary custody must be supported by a
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preponderance of the evidence. In re Willmann (1986), 24 Ohio App.3d 191, 198.
A trial court has substantial discretion in weighing the considerations involved in
making the determination regarding a child’s best interest, and the court’s
determination will not be reversed absent an abuse of that discretion. In re K.H.,
Clark App. No.2009-CA-80, 2010-Ohio-1609, ¶66. A trial court abuses its
discretion when its decision is “unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 5} An order of temporary custody that emanates from an adjudication of
dependency, neglect, or abuse is final and appealable under R.C. 2501.02 and R.C.
2505.02. In re Murray (1990), 52 Ohio St.3d 155.
{¶ 6} In June 2009, Montgomery County Children Services (“MCCS”) filed a
neglect and dependency complaint with respect to S.M., age 6, and a dependency
complaint with respect to C.M., age 5. Two months later, MCCS filed a
dependency complaint with respect to D.M, age 10 months. Moser is the father of
S.M., C.M., and D.M. The complaint of dependency and neglect of S.M. arose from
MCCS’s discovery that S.M.’s teeth were “severely deteriorated” and required
significant, immediate treatment; the complaints related to C.M. and D.M. were
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A higher standard of proof, clear and convincing evidence, is required when permanent
custody is at issue, because permanent custody is “such a drastic remedy” and involves the
termination of parental rights. In re A.W., Montgomery App. No. 21309, 2006-Ohio-2103, ¶6.
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based on the allegation that their sibling had not been receiving proper care. A
guardian ad litem was appointed for the children.
{¶ 7} After a two-day hearing, the magistrate found the children to be
neglected and/or dependent, awarded temporary custody to their mother, and
ordered that Moser’s contact with the children be limited and supervised. Moser
filed objections to the magistrate’s decision, pro se, shortly after the decision was
issued, but before the transcript was filed; he did not supplement these objections
after the transcript was filed. The trial court overruled Moser’s objections and
adopted the decision of the magistrate.
{¶ 8} Moser appeals from the trial court’s decision awarding temporary
custody of the children to their mother.
{¶ 9} At a hearing in July 2009, MCCS presented the following evidence:
{¶ 10} MCCS caseworker Caitlyn Royster testified that she became involved
in the case when MCCS became aware that Moser was not getting dental care for
S.M., who had serious problems with his teeth. Although Moser had visited some
dentists with the child, “he would start talking about aliens and Freemasons, and the
Medical Society being against him. And *** he would become aggressive, and the
providers would say he couldn’t come back, they did not want the child to come
back.”
{¶ 11} In the course of dealing with him about dental care, Royster also
became concerned that Moser’s mental health posed a risk to the children. Moser
talked about preparing a spaceship to leave the planet, about S.M. being the Son of
God, and about giving S.M. back to God, with the help of C.M. and D.M. He also
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expressed concern that, during the recommended dental surgery, the doctors were
going to perform a vasectomy on S.M.; Moser wanted to be present in the operating
room to be sure no vasectomy was performed.
{¶ 12} Moser also insisted on the use of Novocain rather than Lidocaine, the
medication currently preferred by dentists. Royston attempted to help him find a
dentist who would use Novocain but, according to Royston, “[n]obody in Ohio or in
the United States *** uses Novocain” anymore. After consulting several dentists
(with whom Moser was dissatisfied), Royston helped to arrange for surgery at
Children’s Medical Center. Moser agreed to let S.M.’s mother take the child for the
surgery, but then he came to the hospital himself and challenged the
anesthesiologist’s plan for medicating S.M. However, with the intervention of
MCCS, the surgery was performed on the scheduled date.
{¶ 13} Royston noted that Moser had been treated previously for mental
health concerns, but that he believed “that psychologists only write down everything
you say and use it against you, and that he wasn’t going to incriminate himself.”
{¶ 14} Some of the dentists with whom Moser consulted about S.M. also
testified on behalf of the State. Dr. Robert Muster saw and treated S.M. in January
2009 for “rampant severe decay.” He testified that S.M. presented with three
draining abscesses and fifteen cavities. Muster pulled some of S.M.’s front baby
teeth without anesthetic and talked about a treatment plan with Moser. During this
discussion, Moser refused to consider the use of Lidocaine, the most common local
anesthetic, in any of the procedures, because he associated it with evil or the devil.
After the initial visit and conversation, Moser called and visited Muster’s office
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numerous times to debate the use of Novocain instead of Lidocaine. Dr. Muster
testified that Novocain has not been used since the 1960s because of a high
incidence of allergic reactions. On one of Moser’s subsequent visits to the office
during which he discussed anesthetics with Dr. Muster, Muster felt “intimidated” and
“unsure of [Moser’s] mental stability,” so he called the police. Muster also testified
that he reported the dental neglect to authorities because the infections posed a
serious medical risk to S.M., including the risk of death, and Muster was not
confident that Moser would be able to follow through with treatment, given his
insistence on the use of Novocain.
{¶ 15} Dr. Kyle Hensley, a pediatric dentist, testified that Moser and the
MCCS caseworker came to him in March 2009 about S.M.’s teeth. Like Muster,
Hensley recounted that all of S.M.’s primary molars had cavities and that many teeth
were “nonrestorable.” Hensley recommended surgery because of the significant
amount of decay and because the child was “uncooperative” with and “leery” of
being examined. Hensley testified that the extent of decay in S.M.’s teeth would
have taken years to develop, and that infection from his teeth and gums could seep
into his bloodstream and cause problems with his brain or heart.
{¶ 16} Like Muster, Hensley testified that Moser wanted S.M. treated with
Novocain, which had not been used in thirty to forty years, or, in the alternative, that
Moser wanted S.M. “to actually be strapped down and just numbed and treated in
the office.” Hensley described such an approach as “cruel” and stated that he
“would never treat anyone in the office that way that needed the amount of care that
[S.M.] needed.” Moser eventually agreed to have Hensley perform the surgery.
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{¶ 17} S.M.’s surgery was to be performed at Children’s Medical Center.
James Doebele, a pediatric anesthesiologist, met with Moser and S.M.’s mother
prior to the surgery to explain his plans and check the child; Moser had also
requested and picked up a list of the medications Doebele planned to use a few
days prior to the surgery. Doebele testified that, when he met with Moser, Moser
had “a lot of reservations about most, if not all, those medications.” Moser
attempted to exclude many medications from his consent form, but the hospital
would not allow him to do so. Doebele stated that the proposed medications were
“medically sound, safe and necessary,” that “quite a lot of time [was] spent in
discussion” with Moser, and that his interaction with Moser was a “most unusual
situation,” “quite an ordeal.” In Doebele’s view, Moser’s concerns were “quite
extreme, quite irrational,” and both he and the dentist had doubts about proceeding
with the surgery in light of Moser’s continued resistance. With the help of the
caseworker, the procedure did go forward.
{¶ 18} Moser also testified at the hearing, but he had fired his attorney, and
his testimony was unfocused. He spent a significant amount of effort attempting to
convince the court as to the benefits of Novocain over Lidocaine, which he believed
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could cause cardiovascular collapse. More generally, Moser stated that he had
“religious objections to medicines” and viewed them as “poisons.” He also
challenged Dr. Muster’s explanation, in their earlier conversations, that the copper
serpent on the medical symbol, or caduceus, was a symbol of healing. Moser
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The trial court repeatedly redirected Moser’s attention, pointing out that
his views on these specific medications were not the issue before the court.
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suggested that the dentists could have used a “papoose” to restrain S.M. for the
dental procedure and that the child’s natural production of epinephrine, or
adrenaline, would have helped him through the procedure. Moser admitted that he
had been diagnosed as “schizoeffective” and had recently been involuntarily
committed to a hospital, but he stated that he was not taking medication. Moser did
not dispute the dentists’ or anesthesiologist’s accounts of their conversations about
his son’s treatment.
{¶ 19} After the hearing, the magistrate found that Moser had an “irrational
level of obsessive concern” and distraction with details that prevented him from
“sufficiently parenting” his children. Further, the magistrate found that Moser was
angry and aggressive in the courtroom, was unable or unwilling to follow the court’s
instructions, and that his significant mental health issues “caused the court great
concern about [his] ability to act and talk appropriately with his children.” The
magistrate was also troubled by Moser’s “willingness to subject [S.M.] to great pain
in order to satisfy his concerns about anesthesia,” despite the fact that those
concerns were not shared by any of the medical professionals.
{¶ 20} The magistrate found that S.M. was a dependent and neglected child,
that his siblings, C.M. and D.M., were dependent children, and that it was in the
children’s best interests to grant temporary custody to their mother on the condition
that the children’s contact with Moser be supervised and limited. The court also
approved the case plan developed by MCCS. Having thoroughly reviewed the
record, we conclude that the trial court did not abuse its discretion in reaching these
conclusions.
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{¶ 21} Moser’s appellate counsel identified religious discrimination as a
potential assignment of error. However, at trial, Moser did not identify any particular
religious beliefs upon which his opposition to the various medications that had been
proposed was based. His general assertion that he had religious objections and
that the medications were “evil” provide an insufficient basis for us to conclude that
he was discriminated against based on his religious views.
{¶ 22} We have also considered, as a potential assignment of error, the fact
that Moser was not represented by an attorney throughout these proceedings. A
parent is entitled to representation by legal counsel at all stages of the proceedings
under Chapter 2151, including the right to have counsel appointed if the parent is
indigent. R.C. 2151.352; Juv.R. 4(A). However, a parent can waive this right. See
In re Ramsey Children (1995), 102 Ohio App.3d 168, 169-170.
{¶ 23} The record demonstrates that Moser strongly resisted his initial
representation by attorney James Armstrong, because the attorney allegedly
insulted S.M.’s “Jewish name,” gave Moser “bad ‘vibes,’” and was deliberately
working toward the destruction of Moser’s family and marriage. The magistrate
stated that “the Court will not insist the father be represented by counsel,” but it also
refused to allow further delay as a result of counsel’s dismissal, noting that Moser
had “already been directly responsible for some delay, and indirectly responsible for
more.” The court concluded that “father has persisted sufficiently in his quest for
dismissal of counsel,” and that resolution of the arrangements for the children and
the need to commence services for the parents weighed against further delay.
{¶ 24} After attorney Armstrong was dismissed at Moser’s request, the trial
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court appointed an attorney, Jeffrey Livingston, to serve “in the dual role of attorney
and guardian ad-litem” for Moser, due, in part, to his indigency. Although the entry
reflecting Livingston’s appointment to this role was not filed until several months
after the hearing, Livingston was present at and participated in the hearing.
Moser also participated at the hearing in a manner that suggests he was
representing himself. The issue of Moser’s representation was not addressed at
the hearing.
{¶ 25} After the hearing, Moser filed objections to the magistrate’s decision
and a petition for custody, visitation, or support modification on his own behalf.
Later, he filed an affidavit of indigency, and another attorney, Patrick Conboy, was
appointed to represent him.
{¶ 26} From the record, it is unclear to what extent, if any, Livingston provided
legal advice to Moser during the period when Moser was unrepresented by other
counsel. However, even assuming that Moser was unrepresented by counsel, the
trial court’s entry allowing Moser’s first attorney to withdraw suggests that Moser had
repeatedly asserted his desire to represent himself. And the trial court’s
appointment of a guardian ad litem who was also an attorney served to protect
Moser, to some extent, from his desire to represent himself. When Moser later
requested an attorney, a separate attorney was appointed. When Moser filed his
notice of appeal, he was again acting pro se, and he asserted his desire to
represent himself on appeal. To the extent that there were gaps in his
representation, these gaps were created by Moser’s own insistence that he
represent himself.
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{¶ 27} Although representation by an attorney may have been preferable, the
record contains significant evidence that Moser did not want an attorney to
participate on his behalf. Considering Moser’s actions and the fact that these
proceedings only determined temporary custody of the children, we conclude that
the trial court acted reasonably in handling the matter as it did. We find no
arguably meritorious issue for appeal related to Moser’s legal representation.
{¶ 28} The judgment of the trial court will be affirmed.
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GRADY, P.J. and DONOVAN, J., concur.
Copies mailed to:
Carley J. Ingram
Bradley Baldwin
Adrian King
Jeffrey Livingston
Sam Moser
Hon. Nick Kuntz