In re J.A. , 2020 Ohio 4677 ( 2020 )

[Cite as In re J.A., 2020-Ohio-4677.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: J.A. C.A. No. 29462
R.P.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 18 07 0602
DN 18 07 0603
DECISION AND JOURNAL ENTRY
Dated: September 30, 2020
CARR, Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that adjudicated her child R.P. abused and dependent and her child J.A.
dependent. This Court affirms in part, reverses in part, and remands.
I.
{¶2} Mother and Father are the biological parents of J.A. (d.o.b. 2/3/13) and R.P. (d.o.b.
9/18/17). The parents were never married and do not live together. In the summer of 2017 when
Mother was pregnant with R.P., she and J.A. moved from Ohio to North Carolina to stay with an
aunt. R.P. was born prematurely at 29 weeks’ gestation. It was a difficult and prolonged birth,
leaving the baby significantly bruised over much of her body. Mother admitted she had used
marijuana during her pregnancy to ease severe bouts of morning sickness, so R.P. tested positive
for THC at birth. Accordingly, the local child protective services agency opened a case regarding
Mother and her children. Due to medical issues stemming from prematurity, R.P. remained in the
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hospital NICU for the first two months of her life. By the time the child was released, the North
Carolina agency had closed its case, and Mother was able to bring R.P. home.
{¶3} At the end of December 2017, Mother brought the children to Ohio. They all stayed
in the home of the children’s maternal grandfather. On January 8, 2018, Mother left J.A. with
Father and took R.P. to Aultman Hospital because the baby was congested, feverish, and had a
bulge in her groin area. While providing healthcare for R.P., the hospital discovered that the infant
had a broken rib. After staying at Aultman for at least eight hours without receiving any treatment
or answers regarding the child, Mother left with R.P. The following day, Mother took the infant
to Akron Children’s Hospital (“ACH”) in hopes of getting the necessary treatment for the child.
{¶4} Mother told ACH staff that she had taken R.P. to Aultman the day before. ACH
took additional images of the child. After confirming the broken rib, ACH performed a head CT
scan per their protocol whenever a child under the age of six months presents with a rib fracture.
The hospital ordered an MRI based on the results of the CT scan and discovered that R.P. also had
a subdural hematoma. The emergency staff referred R.P. to the Child at Risk Evaluation
(“CARE”) Center based on suspicions of abuse due to the child’s injuries.
{¶5} After an evaluation in the CARE Center, the hospital’s division director of child
abuse prevention and child protection diagnosed R.P. as a victim of abuse. ACH made a referral
to Summit County Children Services Board (“CSB” or “the agency”), which removed both R.P.
and J.A. from the parents’ physical custody and filed complaints alleging that R.P. was an abused
and dependent child and that J.A. was a dependent child. Because adjudication and initial
disposition could not be completed within the statutory 90-day period, the agency dismissed and
refiled the complaints. The agency dismissed and refiled the complaints a second time for the
same reason. This case involves the third set of complaints involving the children.
3
{¶6} By the time the juvenile court held an adjudicatory hearing, the children had been
in the emergency temporary custody of CSB for almost nine months. Mother was granted four
hours of supervised visitation each week until the juvenile court reduced that to two one-hour
closely supervised visits per week on the agency’s motion.
{¶7} After a five-day hearing, the magistrate found R.P. to be an abused child pursuant
to R.C. 2151.031(B), (C), and (D), and a dependent child pursuant to R.C. 2151.04(C). J.A. was
also found dependent pursuant to R.C. 2151.04(C). The magistrate dismissed the agency’s
allegations of dependency pursuant to R.C. 2151.04(D) for each child as having not been proven.
By agreement of the parties, the matter proceeded immediately to disposition, after which the
magistrate placed the children in the temporary custody of CSB and adopted the agency’s case
plan as the order of the court. Mother and Father both filed timely objections to the magistrate’s
adjudicatory/dispositional decisions. Mother challenged the juvenile court’s jurisdiction, the
magistrate’s order directing Mother to merely proffer a portion of the testimony of a certain
medical doctor, and the findings that the children were abused and/or dependent.
{¶8} The juvenile court issued its judgment, overruling Mother’s and Father’s
objections. The trial court concluded that it had jurisdiction to consider CSB’s complaints.
Although it did not expressly address Mother’s challenge to the order that she proffer certain
testimony, the juvenile court implicitly rejected Mother’s argument when it both failed to cite to
any evidence presented by that witness in its discussion and overruled all objections. Upon
consideration, but disregarding the evidence regarding the timing or age of the child’s injuries, the
juvenile court found that R.P. was an abused child pursuant solely to R.C. 2151.031(C). It
dismissed the remaining allegations of abuse pursuant to subsections (B) and (D). It found both
children dependent pursuant to R.C. 2151.04(C) and dismissed the remaining allegations of
4
dependency pursuant to subsection (D). The children were retained in the temporary custody of
CSB.
{¶9} CSB subsequently returned the children to Mother’s legal custody under an order
of protective supervision by the agency pursuant to a joint agreed entry. Thereafter, Mother filed
a timely appeal in which she raises four assignments of error for review. Father has not appealed.
This Court rearranges and consolidates some assignments of error.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN FINDING THAT THE JUVENILE COURT
HAD JURISDICTION OF THIS CASE WHEN IT WAS UNDISPUTED THAT
THE CHILDREN DID NOT LIVE IN OHIO AND NO INJURY WAS
SUSTAINED IN OHIO.
{¶10} Mother argues that the juvenile court lacked jurisdiction over these cases. It is
unclear whether Mother is arguing a lack of personal jurisdiction or a lack of subject matter
jurisdiction. In either case, this Court disagrees.
{¶11} As an initial matter, this Court notes that Mother failed to cite to any law in support
of her argument that the juvenile court lacked jurisdiction in this matter. She makes one brief
reference to the juvenile court’s citation to R.C. 2151.31 to say that the children were not taken
into custody pursuant to that statute. She fails to explain why that would be dispositive to the issue
of jurisdiction. In addition, Mother makes a reference to “the UCCJEA” without identifying any
specific provision or explaining how that body of law is dispositive of her challenge. Nevertheless,
as a party or any court may raise the lack of subject matter jurisdiction at any time, this Court will
address Mother’s jurisdictional challenges. See In re J.N., 9th Dist. Summit Nos. 24090 and
24115, 2008-Ohio-3435, ¶ 33.
{¶12} As to personal jurisdiction, this Court has held that “[t]he juvenile court acquires
personal jurisdiction over a party in a custody proceeding once the party has been duly served with
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summons and provided notice of the proceedings.” In re H.T., 9th Dist. Summit No. 24087, 2008-
Ohio-3436, ¶ 9. A party waives any challenge to personal jurisdiction if she fails to raise it
“through the first pleading, motion, or appearance in the trial court.” In re M.T-B., 9th Dist.
Summit No. 26866, 2013-Ohio-4998, ¶ 7, citing In re J.P., 9th Dist. Summit No. 23937, 2008-
Ohio-2157, ¶ 7.
{¶13} Mother claims that she raised the issue by motion in the children’s prior cases.
However, those cases were dismissed, so nothing remained pending. Accordingly, she could not
have “renewed” any motion that did not exist. Nevertheless, she orally raised the jurisdictional
challenges at the hearing.
{¶14} Mother does not dispute that she was properly served below. The record evidences
proper service on Mother. Therefore, her argument that the juvenile court lacked personal
jurisdiction fails.
{¶15} As to subject matter jurisdiction, it is well settled that
“Subject matter jurisdiction focuses on the court as a forum and on the case as one
of a class of cases, not on the particular facts of a case or the particular tribunal that
hears the case.” State v. Swiger, 125 Ohio App. 3d 456, 462 (9th Dist.1998)[,
abrogated on other grounds by State v. Hutton, 100 Ohio St. 3d 176, 2003-Ohio-
5607]. The juvenile court has exclusive original jurisdiction over children who are
alleged to be [abused,] neglected or dependent, R.C. 2151.23(A)(1), and also has
exclusive original jurisdiction to determine the custody of any child not a ward of
another state court. R.C. 2151.23(A)(2). State ex rel. Brooks v. O’Malley, 117
Ohio St. 3d 385, 2008-Ohio-1118, ¶ 8.
In re H.T. at ¶ 8.
{¶16} R.P. was alleged to be abused and dependent, while J.A. was alleged to be
dependent, thereby invoking the subject matter jurisdiction of the juvenile court pursuant to R.C.
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2151.23(A)(1). Moreover, there were no other cases involving the children pending in any other
state court, thereby alleviating any bar to jurisdiction pursuant to R.C. 2151.23(A)(2).1
{¶17} Mother has failed to demonstrate that the juvenile court lacked jurisdiction in the
proceedings regarding J.A. and R.P. Accordingly, her fourth assignment of error is overruled.
ASSIGNMENT OF ERROR III
DR. GANAPATHY’S TESTIMONY WAS IMPROPERLY LIMITED AND
DISREGARDED.
{¶18} Mother argues that the juvenile court erred by limiting and disregarding the
testimony of one of R.P.’s treating physicians, Dr. Ganapathy. This Court concludes that Mother
fails to allege any reversible error.
{¶19} The juvenile court did not expressly discuss Mother’s objection to the magistrate’s
limitation of the witness’ testimony. Nevertheless, by not making any reference to the proffered
testimony, the juvenile court implicitly rejected Mother’s argument in that regard. There is no
dispute, and the record demonstrates, that the juvenile court expressly overruled all of Mother’s
objections before entering judgment. C.f. Young v. Young, 9th Dist. Wayne No. 08CA0058, 2009-
Ohio-5050, ¶ 10 (concluding that a judgment that finds that objections should or ought to be
overruled is not definitive enough to create a final, appealable order), and Deutsche Bank Natl.
Trust Co. v. Omar, 9th Dist. Summit No. 28647, 2018-Ohio-2563, ¶ 8 (remanding for further
consideration because the trial court did not mention some issues to which appellant had objected
and failed to expressly rule on any of the objections, but merely entered judgment). Accordingly,
this Court will address Mother’s assigned error.
1
No other proceedings involving the children were pending in either Ohio or any other
state, as the North Carolina child protective services agency had closed its case without filing any
complaints regarding the children in that state.
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{¶20} Dr. Ganapathy treated R.P. after the child’s admission to ACH. The magistrate
allowed him to testify to matters relating to the child’s subdural hematoma. In fact, the witness’
admitted testimony consisted of approximately 60 pages of the transcript. The magistrate only
required a proffer of Dr. Ganapathy’s testimony relating to the child’s rib fracture. That proffered
testimony, elicited via both direct and cross-examination, consisted of an additional 15 pages of
the transcript. At no time did Mother seek to elicit Dr. Ganapathy’s opinion as to whether or not
R.P. was a victim of abuse, i.e., the critical inquiry at the adjudicatory hearing. In fact, during
preliminary discussions regarding the admissibility of the doctor’s testimony, due to notice issues
regarding the identity of witnesses, Mother asserted that she did not plan to ask Dr. Ganapathy to
render an opinion as to abuse.
{¶21} All transcript pages of Dr. Ganapathy’s testimony cited by Mother were admitted
by the juvenile court, so that testimony was not limited. Mother fails to cite to any parts of the
record which the magistrate required Mother to proffer. She does not explain how the absence of
any excluded evidence impacted her case. Accordingly, Mother has not demonstrated either
prejudice or the existence of any reversible error on appeal as to the limitation of Dr. Ganapathy’s
testimony.
{¶22} This Court emphasizes, however, that a substantial portion of Dr. Ganapathy’s
testimony was admitted. While the juvenile court referenced the other physicians in its judgment
entry, it did not mention Dr. Ganapathy at all. While we cannot affirmatively state that the juvenile
court disregarded the admitted evidence, the absence of any reference to Dr. Ganapathy indicates
a possible disregard of all of his testimony. Upon reconsideration of the children’s dispositions
on remand, the juvenile court must consider all relevant evidence, including the testimony of Dr.
Ganapathy that was admitted at the hearing.
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{¶23} To the extent that Mother’s third assignment of error challenges the limitation on
Dr. Ganapathy’s testimony, it is overruled. This Court directs the juvenile court, however, to
consider the testimony of Dr. Ganapathy that was properly before it.
ASSIGNMENT OF ERROR I
[CSB] DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE THAT
R.P. AND [J.A.] WERE ABUSED OR DEPENDENT AND, THEREFORE, THE
FINDINGS OF ABUSE AND DEPENDENC[Y] WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR II
THE DECISION THAT R.P. WAS ABUSED AND THAT SHE AND [J.A.]
WERE DEPENDENT WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE
EVIDENCE.
{¶24} Mother argues that the trial court erred by adjudicating R.P. an abused and
dependent child, and J.A. a dependent child. This Court concludes that the juvenile court’s failure
to properly consider the facts and issues relevant to a finding of abuse requires reversal and remand
for reconsideration. Moreover, as the findings of dependency were premised on the finding that
R.P. was abused, those findings too require reversal.
{¶25} The juvenile court’s adjudication of a child as dependent, neglected, or abused must
be based on clear and convincing evidence. R.C. 2151.35(A)(1). “‘Where the proof required must
be clear and convincing, a reviewing court will examine the record to determine whether the trier
of fact had sufficient evidence before it to satisfy the requisite degree of proof.’” In re K.B., 9th
Dist. Summit No. 21365, 2003-Ohio-3784, ¶ 13, quoting State v. Schiebel, 55 Ohio St. 3d 71, 74
(1990), cert. denied Warner v. Ohio, 499 U.S. 961 (1991). “In the absence of clear and convincing
evidence that the child is dependent, neglected, or abused, the juvenile court must dismiss the
complaint * * *.” In re C.S., 9th Dist. Lorain Nos. 16CA010989 and 16CA010990, 2017-Ohio-
4345, ¶ 14, citing R.C. 2151.35(A)(1) and Juv.R. 29(F)(1). Clear and convincing evidence is
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evidence that “‘produce[s] in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.’” In re C.G., 9th Dist. Summit No. 29171, 2019-Ohio-2102, ¶ 9, quoting
In re Adoption of Holcomb, 18 Ohio St. 3d 361, 368 (1985).
{¶26} Mother challenges the finding that R.P. was abused, as well as the related findings
that R.P. and J.A. were also dependent. The juvenile court premised its adjudications of
dependency solely on the fact that it found R.P. to be an abused child. Accordingly, if the finding
that R.P. was abused is determined to be error, then the findings of dependency will also fail in
this case.
{¶27} In relevant part, R.C. 2151.031(C) defines an “abused child” as one who “[e]xhibits
evidence of any physical * * * injury * * *, inflicted other than by accidental means, or an injury
* * * which is at variance with the history given of it.” R.C. 2151.04(C) defines a “dependent
child” as one “[w]hose condition or environment is such as to warrant the state, in the interests of
the child, in assuming the child’s guardianship.”
{¶28} In this case, multiple medical professionals testified regarding how and when R.P.’s
injuries might have occurred. Mother’s experts and other medical providers opined that the child’s
injuries likely existed while the newborn R.P. was still a patient in the NICU, so that her injuries
would have been the accidental result of either birth trauma or subsequent medical care. CSB’s
expert disagreed, but modified his opinion regarding the timing of the injuries multiple times. He
initially believed that the child could only have been injured while in Ohio and in Mother’s care.
He later reported that R.P. sustained her injuries after her release from the NICU into Mother’s
care, but that the child may have been injured while the family was still in North Carolina.
Ultimately, however, he acknowledged the possibility that R.P. may have sustained her injuries
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during her last week in the NICU, while the child was under the care and control of medical
professionals.
{¶29} After determining jurisdiction, in rendering her decision on the issue of abuse, the
magistrate expressly stated that the timing or “age of [R.P.]’s injuries [is] not relevant. The
primary focus is on whether the injuries were accidental or non-accidental.” However, the timing
or age of the child’s injuries is in fact key to a determination of whether the child was abused. If
the medical professionals could not rule out the injuries as having occurred while the child was
receiving care in the NICU, then accidental trauma was a reasonable cause. On the other hand, if
the child’s injuries could only have occurred after her release from the NICU into Mother’s
admitted sole care, then non-accidental trauma, i.e., abuse, may have been the cause.2
{¶30} Mother challenged via objections the magistrate’s assertion in her analysis that the
timing or age of the injuries was not relevant to the determination of abuse. In overruling Mother’s
objections, the juvenile court did not discuss the significance of the medical opinions regarding
the age of R.P.’s injuries, including the continuing modifications that CSB’s expert made to his
own opinion as to when the child’s injuries may have occurred. It moreover overruled Mother’s
objection to the magistrate’s finding that timing was irrelevant. On appeal, Mother again argues
that the age of R.P.’s injuries, and therefore the time at which they occurred, is key to a sound
determination of whether the child was abused or merely a victim of accidental trauma. This Court
agrees.
2
This Court renders no opinion at this time as to whether any injuries that might have
occurred while R.P. was in Mother’s care were a result of abuse.
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{¶31} The juvenile court adopted and applied the magistrate’s erroneous analytical basis
for determining whether R.P. was an abused child. This Court declines to render any conclusions
regarding the children’s adjudications, as they would necessarily be based on factual findings and
other bases that we would have made in the first instance. As a reviewing court, we decline to
assume the role of the juvenile court to engage in an analysis of the relevant facts in the first
instance to determine whether CSB met its burden of proof to establish abuse and dependency.
See In re A.S., 9th Dist. Summit No. 29472, 2020-Ohio-1356, ¶ 24-25. Because the juvenile court
premised its judgment on an incorrect analysis and failed to consider the relevance of evidence
addressing the timing or age of R.P.’s injuries, this Court is compelled to reverse the findings of
abuse and dependency and to remand the matter for further consideration of all the admitted
evidence adduced at the multi-day adjudicatory hearing. Accordingly, this Court declines to
address the substance of Mother’s first and second assignments of error.
III.
{¶32} Mother’s third and fourth assignments of error are overruled. This Court declines
to address the substance of Mother’s first and second assignments of error. The judgment of the
Summit County Court of Common Pleas, Juvenile Division, is affirmed in part, reversed in part,
and the cause remanded for further proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
CALLAHAN, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
WILLIAM T. WHITAKER and ANDREA L. WHITAKER, Attorneys at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.