In re L.S.

[Cite as In re L.S., 2020-Ohio-5469.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
IN RE:
L.S., CASE NO. 1-20-19
ADJUDICATED DEPENDENT
AND ABUSED CHILD.
OPINION
[CHEYENNE HOOPER - APPELLANT]
Appeal from Allen County Common Pleas Court
Juvenile Division
Trial Court No. 2019 JG 36259
Judgment Affirmed
Date of Decision: November 30, 2020
APPEARANCES:
Linda Gabriele for Appellant
Rebecca S. King-Newman for Appellee
Case No. 1-20-19
ZIMMERMAN, J.
{¶1} This is an appeal from the Allen County Court of Common Pleas,
Juvenile Division, adjudicating L.S. to be an abused and dependent child. For the
reasons that follow, we affirm.
{¶2} L.S., was born in 2018, to her mother, Cheyenne Hooper (“Cheyenne”),
and her father, Ebin Stratton (“Ebin”). (Doc. No. 42). Cheyenne and Ebin were
never married to each other. On March 13, 2019, the Allen County Children
Services Board (“the agency”) was notified through a physical-abuse report that L.S.
had been life-flighted from St. Rita’s Medical Center (“SRMC”) to Nationwide
Children’s Hospital (“NCH”). (See Doc. No. 9); (Aug. 12, 2019 Tr. at 38); (Aug.
15, 2019 Tr. at 18).
{¶3} After investigating the abuse report, the agency sought to establish an
out-of-home-safety plan with Dawn Stratton, the paternal grandmother of L.S.1
(Id.); (Aug. 15, 2019 Tr. at 7). Regardless, at the shelter-care hearing on July 15,
2019, the trial court determined that probable cause existed to believe that L.S. was
an abused and dependent child; that it was in L.S.’s best interest to be placed in the
temporary custody of Ebin; and that
reasonable efforts were made by the Allen County Children Services
Board to prevent the placement and removal of [L.S.] from [her] home
prior to July 15, 2019, and thereafter to eliminate the continued
1
It appears from our review of the record that the agency filed its complaint under a separate case number (a
record we do not presently have before us) and that its complaint was later dismissed and refiled under the
existing case number where a shelter-care hearing was held. (See Aug. 12, 2019 Tr. at 9).
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removal of [L.S.] from the home, and to make it possible for [L.S.] to
return and/or remain in the home.
(Emphasis sic.) (Doc. No. 7). The following day, the agency filed a complaint in
the trial court alleging L.S. to be an abused child under 2151.031(B) and (C), and a
dependent child under R.C. 2151.04(C). (Doc. No. 8).
{¶4} After the adjudicatory hearing (on August 12 and 15, September 17,
and October 10, 17, and 29, 2019), the magistrate took the matter under advisement
and later issued a decision finding L.S. to be an abused and dependent child under
R.C. 2151.031(C) and R.C. 2151.04(C). (Doc. No. 77). Further, the magistrate
found that “the agency did make reasonable efforts to prevent the removal of [L.S.]
from the home/to make it possible for [L.S.] to return home[]” through case-
management and investigation, placement of L.S. with Ebin, and orders limiting
Cheyenne’s contact with L.S. (Id.).
{¶5} On November 22, 2019, the parties presented a proposed agreement as
to the disposition of L.S. to the magistrate. (Nov. 22, 2019 Tr. at 2). The magistrate
accepted and adopted the parties’ agreement which included: the grant of legal
custody of L.S. to Ebin with a graduated-supervised-parenting-time-visitation
schedule for Cheyenne. (Id.); (Doc. No. 85). Importantly, the parties agreed
dispositional order provided that reasonable efforts were made by the agency to
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prevent the removal of L.S. through case management and investigation services,
placement with Ebin, and orders limiting Cheyenne’s contact with L.S.2 (Id.).
{¶6} Nevertheless, on November 22, 2019, Cheyenne filed objections to the
magistrate’s decision on adjudication. (Doc. No. 79, 80, 81, 82, 83, 84). Notice
was sent to the parties on January 10, 2020 that the transcripts had been filed by the
court reporter. (Doc. No. 88). After which, Cheyenne filed supplemental objections
to the magistrate’s decision on adjudication, Cheyenne objected to the magistrate’s
findings of fact. (Doc. No. 89). The agency filed its memorandum in opposition to
Cheyenne’s objections on February 6, 2020. (Doc. No. 90).
{¶7} The trial court conducted its independent review of adjudication and
determined that the magistrate properly decided the factual issues and appropriately
applied the law and denied Cheyenne’s objections. (Doc. No. 91). On March 6,
2019, the trial court journalized its judgment entries on adjudication and disposition.
(Doc. Nos. 92, 93).
{¶8} Cheyenne filed a notice of appeal on April 1, 2020 and presents two
assignments of error, which we will address together. (Doc. No. 94).
2
Cheyenne and Ebin resided together as an intact family in the same home located in Lima, Ohio 45801 at
the time the physical-abuse report was made. (See Aug. 12, 2019 Tr. at 37-40); (See Aug. 15, 2019 Tr. at 4-
6). However, following the physical-abuse report and prior to the shelter-care hearing in this case, Cheyenne
moved out of the home, and at all times relevant to this proceeding, Ebin continued to reside in the same
home with L.S. (See Doc. No. 1, 5, 6, 7, 8, 9).
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Assignment of Error No. I
The Trial Court’s Decision Is Against The Manifest Weight Of
The Evidence. Appellee Did Not Prove By Clear And Convincing
Evidence That The Minor Child Was Abused And/Or Dependent.
Assignment of Error No. II
The Trial Court Committed Prejudicial Error In Finding That
The Allen County Children Services Board Made Reasonable
Efforts To Return The Child To The Custody Of The Appellant.
{¶9} In her first assignment of error, Cheyenne argues that the trial court’s
determination that L.S. is an abused and dependent child is against the manifest
weight of the evidence. In her second assignment of error Cheyenne asserts that the
trial court erred in finding that the agency made reasonable efforts to return L.S. to
Cheyenne.
Standard of Review
{¶10} Abuse, neglect, and dependency cases are initiated by the filing of a
complaint in juvenile court. See Juv.R. 22(A); Juv.R. 10; R.C. 2151.27(A). The
complaint is “the legal document that sets forth the allegations that form the basis
for juvenile court jurisdiction.” Juv.R. 2(F). See R.C. 2151.23. The juvenile court
must base its adjudication on the evidence adduced at the adjudicatory hearing to
support the allegations in the complaint. See In re Hunt, 46 Ohio St. 2d 378, 380
(1976). If allegations in the complaint are not proven by clear and convincing
evidence at the adjudicatory hearing, the juvenile court must dismiss the complaint.
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Juv.R. 29(E)(4), (F); R.C. 2151.35(A)(1). “‘“Clear and convincing evidence is that
measure or degree of proof which is more than a mere ‘preponderance of the
evidence,’ * * * and which will produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.”’” In re S.L., 3d Dist. Logan
Nos. 8-17-25, 8-17-26, 8-17-27, 8-17-28, 8-17-29, 8-17-33, 8-17-34, 8-17-35, 8-17-
36, and 8-17-37, 2018-Ohio-1111, ¶ 14, quoting In re G.C-O., 3d Dist. Seneca No.
13-12-56, 2013-Ohio-4974, ¶ 7, quoting In re C.B., 12th Dist. Butler Nos. CA2008-
01-002 and CA2008-01-003, 2008-Ohio-5543, ¶ 10. Here, Cheyenne argues that
weight of the evidence does not support the trial court’s determination that L.S. is
an abused and dependent child or that the agency made reasonable efforts to return
L.S. to Cheyenne, thus, reunifying the family.
{¶11} We apply the criminal-manifest-weight-of-the-evidence standard for
reviewing challenges in juvenile proceedings. In re S.L., 2018-Ohio-1111, at ¶ 12,
citing In re Corey Children, 11th Dist. Geauga No. 2005-G-2649, 2006-Ohio-2013,
¶ 17. Under this standard, when reviewing a claim that a judgment is against the
manifest weight of the evidence, we must review the entire record, weighing both
the evidence and all reasonable inferences, considering the credibility of witnesses,
and determining whether in resolving conflicts, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that a new trial must be ordered.
Id. at ¶ 12, citing State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). “‘The
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discretionary powers to grant a new trial should be exercised only in the exceptional
case in which the evidence weighs heavily against the conviction [, or in this case,
an adjudication of abuse and dependency].’” Id., quoting Martin at 172. Our role
is limited to weighing the evidence introduced at trial and then determining whether
the state carried its burden of persuasion. Id. at ¶ 13, citing State v. Thompkins, 78
Ohio St. 3d 380, 387 (1997). We must defer to the factual findings of the trier of
fact as to the weight to be given the evidence and the credibility of the witnesses.
Id., citing State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus.
{¶12} “‘Once the clear and convincing standard has been met to the
satisfaction of the [juvenile] court, the reviewing court must examine the record and
determine if the trier of fact had sufficient evidence before it to satisfy this burden
of proof.’” Id. at ¶ 15, quoting In re Kinney, 1st Dist. Hamilton No. C–020067,
2002-Ohio-2310, 2002 WL 950266, *2, (May 10, 2002), citing In re Adoption of
Holcomb, 18 Ohio St. 3d 361, 368. We will not reverse the judgment of a trial court
as being against the manifest weight of the evidence which is supported by some
competent, credible evidence. Id. at ¶ 15, citing In re Mercer, 10th Dist. Franklin
No. 04AP-422, 2005-Ohio-1845, ¶ 20, citing C.E. Morris Co. v. Foley Constr. Co.,
54 Ohio St. 2d 279, syllabus.
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Manifest-Weight Analysis
{¶13} Here, Cheyenne challenges the trial court’s finding that L.S. is an
abused and dependent child. An abused child includes any child who “[e]xhibits
evidence of any physical or mental injury or death, inflicted other than by accidental
means, or an injury or death which is at variance with the history given of it.” R.C.
2151.031(C). A dependent child means any child “[w]hose condition or
environment is such as to warrant the state, in the interests of the child, in assuming
the child’s guardianship[.]” R.C. 2151.04(C).
{¶14} To establish abuse and dependency the State presented two witnesses
in its case in chief: Dr. Catherine Huber (“Dr. Huber”), an expert in general
pediatrics specifically in the area of child-abuse pediatrics, and the agency’s
investigative caseworker, Nicole Mikesell. (Aug. 12, 2019 Tr.); (Aug. 15, 2019
Tr.); (Sep. 17, 2019 Tr.). Cheyenne presented three witnesses in her case in chief:
Patty Doering, Cheyenne’s mother (L.S.’s maternal grandmother), Dr. Todd
Hixenbaugh (“Dr. Hixenbaugh”) the emergency room (“ER”) doctor who treated
L.S. at SRMC, and Dr. Marcus DeGraw (“Dr. DeGraw”) an expert in child-abuse
pediatrics.3 (Sep. 17, 2019 Tr.); (Oct. 10, 2019 Tr.); (Oct. 17, 2019 Tr.). Further,
Lima Police Department Detective, Matt Woodworth, testified for the State as a
rebuttal witness. (Oct. 29, 2019 Tr.).
3
Doering also happens to be a pediatric nurse at SRMC, but was not qualified as an expert witness in the
instant case.
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{¶15} Here, it is important to note that there were no independent eye
witnesses to L.S.’s injuries according to the history reported to medical providers
by the parents. (See Aug. 12, 2019 Tr. at 38); (Aug. 15, 2019 Tr. at 6); (Oct. 10,
2019 Tr. at 44); (Oct. 29, 2019 Tr. at 21). On appeal, Cheyenne’s avers that Dr.
DeGraw’s and Dr. Hixenbaugh’s testimonies contradicted Dr. Huber’s findings.
For the reasons that follow, we disagree.
{¶16} Dr. Huber’s testimony revealed that she performed a physical
examination of L.S. and obtained the relevant medical, developmental, and family
histories (of L.S.) from Cheyenne and Ebin. (Aug. 12, 2019 Tr. at 26). Ultimately,
Dr. Huber testified that her expert opinion as to L.S. injuries was:
[t]he history that was provided of the accidental fall off of the bed was
not sufficient for the degree of injury that the child had sustained, and
therefore, the diagnosis of abusive head trauma and physical abuse
were made.
(Id. at 45).
{¶17} Dr. Huber further testified that based upon a skeletal survey and the
radiological study of L.S.’s body, the likely “mechanism for abusive-head trauma is
a rapid acceleration/deceleration injury” and the most common form of such injury
is shaking. (Id. at 47-48). According to Dr. Huber, L.S.’s injuries (i.e., a large left
subdural hemorrhage with a mid-line shift and a small right subdural hemorrhage)
created a substantial risk to her health and safety. (Id. at 30, 32, 48, 52).
Importantly, Dr. Huber testified that while a fall off of a bed at the height reported
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by Cheyenne would cause direct trauma, it would not have caused the
acceleration/deceleration injury. (Id. at 52). Dr. Huber further testified that the
bleeding in two of the three layers of L.S.’s retinal layers indicated that an excessive
amount of force was used upon her. (Id. at 53). Moreover, Dr. Huber testified that
L.S.’s neck injury supports the acceleration/deceleration mechanism, and thus, her
abusive-head-trauma and physical-abuse diagnoses. (Id. at 55).
{¶18} Dr. Hixenbaugh (a general and trauma surgeon at SRMC) testified that
he had no independent recollection of treating L.S., other than his notes, and
according to his notes, he saw no signs of abuse. (Oct. 10, 2019 Tr. at 7-8).
{¶19} Dr. DeGraw, Cheyenne’s expert witness, testified that he reviewed
documents related to L.S.’s treatment (i.e., medical records, the radiological reports
and images, and Dr. Huber’s testimony), and disagreed with Dr. Huber’s opinion
that L.S.’s injuries were abusive-head trauma. (Id. at 18-21). Specifically, Dr.
DeGraw disputed the primary mechanism (i.e., cause of the injury) identified by Dr.
Huber, and thus he could not rule out a direct-impact mechanism. (Id. at 45).
According to Dr. DeGraw, if L.S. had an occipital impact (a direct injury to the back
of L.S.’s head) or mechanics (L.S.’s head struck something) that such a direct-
impact mechanism could lead to the type of injuries L.S. sustained. (Id. at 21, 45).
{¶20} Importantly, and in our review of the record, there is no evidence in
the record that L.S. actually suffered either an occipital impact or was found lying
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on her back. (Id. at 48). Dr. DeGraw testified that L.S.’s neck injuries were
extremely rare, and that there has never been an identified study with those type of
neck injuries. (Id. at 47). Nevertheless, Dr. DeGraw testified that the most typical
explanation for the compilation of injuries that L.S. sustained was “blunt-force,
repetitive blunt force, or shaking injury to the head of a child”, and that those
explanations would be more likely than an occipital fall. (Id.). Thus, in our review,
we conclude that Dr. Hixenbaugh’s and Dr. DeGraw’s opinions do not contradict
Dr. Huber’s ultimate diagnosis of abuse.
{¶21} Based on the foregoing, we conclude that there is competent, credible
evidence to support the trial court’s determination that L.S. is an abused and
dependent child. Thus, we will not reverse this judgment of the Allen County Court
of Common Pleas, Juvenile Division, as being against the manifest weight of the
evidence.
{¶22} Accordingly, Cheyenne’s first assignment of error is overruled.
Reasonable-Efforts Analysis
{¶23} Turning to the Cheyenne’s reasonable-efforts argument, we recognize
that the Supreme Court of Ohio has held that
[n]o one section of the Revised Code addresses the concept of
reasonable efforts. Overall, Ohio’s child-welfare laws are designed
to care for and protect children, “whenever possible, in a family
environment, separating the child from the child’s parents only when
necessary for the child’s welfare or in the interests of public safety.”
R.C. 2151.01(A). To that end, various sections of the Revised Code
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refer to the agency’s duty to make reasonable efforts to preserve or
reunify the family unit.
In re C.F., 11 Ohio St. 3d 73, 2007-Ohio-1104, ¶ 29. In particular, under R.C.
2151.419, when a trial court
removes a child from the child’s home or continues the removal of a
child from the child’s home, the court shall determine whether the
public children services agency * * * has made 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.
R.C. 2151.419(A)(1). The Supreme Court of Ohio has further held that
the trial court is only obligated to make a determination that the
agency has made reasonable efforts to reunify the family at
“adjudicatory, emergency, detention, and temporary-disposition
hearings, and dispositional hearings for abused, neglected, or
dependent children, all of which occur prior to a decision transferring
permanent custody to the state.”
In re B.S., 3d Dist. Allen No. 1-15-44, 2015-Ohio-4805, ¶ 36, quoting In re C.F. at
¶ 41.
{¶24} Here, the trial court concluded at the shelter-care hearing that case-
management and investigation, relative-placement, and child-abuse-assessment
services did not prevent removal of L.S. at the shelter-care hearing as a result of the
nature of L.S.’s neck injury, a large left subdural hemorrhages with a mid-line shift,
a small right subdural hemorrhage, and retinol hemorrhages, which were
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inconsistent with Cheyenne’s explanation of a short fall off of the bed.4 (Doc. Nos.
7, 8). Nevertheless, and immediately thereafter, L.S. was placed in Ebin’s
temporary custody in lieu of removal from the home pending adjudication. (Doc.
No. 7). Further, at adjudication, the magistrate again made findings in her decision
that “the agency did make reasonable efforts * * * to make it possible for [L.S.] to
return home[]” through case-management and investigation, placement of L.S. with
Ebin, and orders limiting Cheyenne’s contact with L.S. (Doc. No. 77).
{¶25} Finally, the magistrate, once again, addressed reasonable efforts at the
November 22, 2019 dispositional hearing, to which the parties agreed, through
management and investigation services, placement with Ebin, and orders limiting
Cheyenne’s contact with L.S. enabled L.S. to return home. (Doc. No. 85).
{¶26} In this case, the magistrate specifically found the agency had made
reasonable efforts at the shelter-care hearing, at adjudication, and finally at
disposition by placing her first into the temporary custody and later legal custody of
Ebin (L.S.’s biological father). (See Doc. Nos. 7, 9, 42, 77). These findings were
adopted by the trial court. (Doc. No. 92).
{¶27} Thus, under the facts before us, we conclude that the trial court did not
err by determining that the agency had made reasonable efforts to reunify the family,
4
Ebin had left for work and was not home at the time that L.S. sustained her injuries. (Doc. Nos. 7, 9, 77);
(Aug. 12, 2019 Tr. at 37-39); (Aug. 15, 2019 Tr. at 5).
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and that such a determination is supported by clear and convincing evidence in the
record.
{¶28} Accordingly, Cheyenne’s second assignment of error is overruled.
{¶29} Having found no error prejudicial to the appellants herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/jlr
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