In re B.B.

[Cite as In re B.B., 2018-Ohio-4087.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
:
: Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
IN RE B.B. :
: Case No. 17CA23
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Juvenile Division, Case
No. 217 2078
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 5, 2018
APPEARANCES:
For Parents-Appellants: For KCDJFS-Appellee:
DAVID M. HUNTER ASHLEY L. JOHNS
244 West Main Street 200 Civic Dr., Suite 800
Loudonville, OH 44842 Columbus, OH 43206
Knox County, Case No.17CA23 2
Delaney, J.
{¶1} The Parents-Appellants appeal the August 29, 2017 judgment entry of the
Knox County Court of Common Pleas, Juvenile Division awarding temporary custody of
B.B. to Appellee, Knox County Department of Job and Family Services.
FACTS AND PROCEDURAL HISTORY
{¶2} On June 1, 2017, Appellee Knox County Department of Job and Family
Services (“KCDJFS”) filed a complaint alleging R.B. was a dependent child pursuant to
R.C. 2151.04(C) and (D). One June 20, 2017, KCDJFS filed a complaint alleging B.B.
was an abused child pursuant to R.C. 2151.031(C) and/or dependent child pursuant to
R.C. 2151.04(C).
{¶3} An adjudicatory hearing was held before the trial court on July 20, 2017,
August 3, 2017, and August 4, 2017. The following evidence was adduced at trial.
{¶4} R.B. (born on November 4, 2014) and B.B. (born on December 14, 2016)
are the natural children on Mother-Appellant and Father-Appellant. B.B. was born
prematurely but he did not have any known abnormal health issues as a result of his early
birth.
{¶5} Mother and Father are married and both work outside of the home. When
R.B. was approximately three-months old, Mother and Father asked their friend, L.E.
(hereinafter “Babysitter”), to babysit R.B. in her home during the work week. Father and
Babysitter were high-school friends and Mother became good friends with Babysitter.
Babysitter’s child was approximately the same age as R.B. No incidents were noted with
R.B. while the child was in Babysitter’s care.
Knox County, Case No.17CA23 3
{¶6} On April 17, 2017, Babysitter started watching B.B. in her home, in addition
to R.B. and Babysitter’s two children. Mother would have lunch at Babysitter’s home to
breastfeed B.B.
{¶7} On May 16, 2017, Babysitter told Mother that B.B. was sitting in a
“jumperoo” with blanket tucked in front of B.B. to stabilize him. Babysitter said she was
not in the room to see what happened, but she heard B.B. crying and found him in the
jumperoo with the blanket on the floor. She said the older children had pulled the blanket
out from under B.B., causing a rug burn on his right arm and neck.
{¶8} On May 18, 2017, Mother took B.B. to the pediatrician because B.B. was
not eating well and was regularly vomiting. The pediatrician diagnosed B.B. with a virus.
The pediatrician also ordered an x-ray of B.B.’s abdomen area and the results were
normal. On May 23, 2017, B.B. was still vomiting. Mother contacted the pediatrician, who
diagnosed B.B. with acid reflux. The pediatrician prescribed Zantac for B.B.
{¶9} Mother dropped off B.B. and R.B. at Babysitter’s at 8:00 a.m. on May 24,
2017. Mother reported that B.B. seemed happy and content that morning. At
approximately 11:00 a.m., Babysitter called Mother at work to report that something was
wrong with B.B. Babysitter said she left B.B. sitting in a boppy in the living room while she
went to the kitchen to get his bottle. When she returned to the living room, she observed
B.B. gasping for air and his tongue was hanging out. Mother left work and arrived at
Babysitter’s home to find B.B. laying on the floor of the living room, gasping for air. Mother
told Babysitter to call 911. Father arrived at Babysitter’s home shortly thereafter.
{¶10} Emergency personnel arrived and found Mother and Babysitter at the home
with B.B. on the floor. B.B. was transported to Knox Community Hospital and during
Knox County, Case No.17CA23 4
transport, B.B.’s condition deteriorated. His heart stopped or dropped below 60 beats per
minute several times, requiring the use of CPR. At Knox Community Hospital, B.B. was
stabilized and taken by life-flight to Nationwide Children’s Hospital.
{¶11} At Nationwide Children’s Hospital, B.B. was placed on life support in the
NICU. A social worker with Nationwide spoke with Mother and Father about B.B. The
social worker asked for Babysitter’s name, but Mother was reluctant to give her the
information. Mother eventually gave the social worker Babysitter’s information.
{¶12} Dr. Heather Williams is a child abuse pediatrics fellow employed by
Nationwide Children’s Hospital. Dr. Williams became involved with B.B.’s case because
the hospital’s child assessment team was concerned that B.B.’s condition was caused by
maltreatment. Based on Dr. William’s clinical assessment, which included a review of
B.B.’s health records, lab results, imaging results, and interviews with Mother and Father,
she determined B.B. suffered from abusive head trauma caused by an acceleration and
deceleration type force. A MRI of B.B.’s brain showed B.B. suffered from chronic subdural
hematomas, showing both recent and old injuries. A MRI also showed that he suffered
injuries to the ligaments at the top of the neck and muscles around the neck. A limited
eye exam due to his severe injuries showed that B.B. had preretinal and intraretinal
hemorrhages. Dr. Williams’s clinical assessment ruled out all medical causes for B.B.’s
injuries. Dr. Williams’s investigation did not reveal any accidental cause for B.B.’s injuries,
nor were the accidents described by Babysitter and Mother consistent with B.B.’s injuries.
Dr. Williams indicated the time period of the traumatic injury to B.B. could have occurred
within minutes or hours before the presentation of symptoms requiring medical
intervention. Without medical intervention, it was the opinion of Dr. Williams that B.B.
Knox County, Case No.17CA23 5
would have died on May 24, 2017. B.B. survived his injuries, but would require
occupational therapy and medical care for seizures, an NG tube, and a cervical collar. Dr.
Williams had no opinion as to who caused the injuries to B.B.
{¶13} The social worker with Nationwide contacted Appellee Knox County
Department of Job and Family Services (“KCDJFS”) based on the concern that B.B.’s
injuries were caused by maltreatment. April Hanners was the on-call worker in the
KCDJFS intake unit investigations on May 24, 2017. Hanners spoke with Mother and
advised that based on the report of abuse and the unknown perpetrator of the abuse,
Mother and Father were required to develop a safety plan for R.B. Mother spoke with
Hanners twice. Mother told Hanners the first time she did not know how the injuries
occurred, but the second time Hanners spoke with Mother, Mother told Hanners about
the jumperoo incident. Mother also told Hanners about another incident Babysitter relayed
to her for the first time on May 24, 2017. Babysitter told Mother that she picked up B.B.
by the hands and pulled him off the carpet while she was changing his diaper. Babysitter
told Mother that B.B. had fallen about ten inches, hitting his head on the floor.
{¶14} Keisha Matheney, with the intake unit of KCDJFS, was assigned B.B.’s
case on May 25, 2017. KCDJFS filed an emergency ex parte emergency order and R.B.
was placed in the temporary custody of KCDJFS. KCDJFS conducted safety audits and
placed R.B. and B.B. with a paternal aunt. During her investigation on May 25, 1017,
Matheney interviewed Babysitter, Mother, and Father. Babysitter and Mother stated B.B.
was injured during the jumperoo incident and he fell backwards approximately eight to
twelve inches after diapering. Matheney attempted to interview Mother again but Mother
declined. As a result of Matheney’s investigation, KCDJFS determined physical abuse of
Knox County, Case No.17CA23 6
B.B. with regard to Babysitter, Mother, and Father was unsubstantiated. It substantiated
physical abuse as to an unknown perpetrator.
{¶15} At the time of the adjudicatory hearing, paternal aunt had physical custody
of both R.B. and B.B. KCDJFS was comfortable with the current placement. Mother and
Father had weekly supervised visitation with the children. While physical abuse was
unsubstantiated as to Babysitter, Mother, and Father, KCDJFS did not reunify because
abuse was substantiated as to an unknown perpetrator and based on the unknown nature
of the perpetrator, safety of the children was the primary concern.
{¶16} Babysitter testified at the hearing. Babysitter stated on May 24, 2017, she
told Mother about an incident with B.B. She testified she was working with B.B. on his
core strength by pulling him by his hands from a laying to a sitting position. Babysitter
stated B.B. pulled himself down and his head dropped about two inches to the floor.
Babysitter testified this incident and the jumperoo incident were the only two events that
occurred with B.B. while he was in her care.
{¶17} Dr. Stephen Guertin testified on behalf of Mother and Father as an expert
in child abuse. Dr. Guertin agreed B.B.’s injuries were consistent with physical abuse. It
was his opinion that Babysitter caused the injuries to B.B. It was Dr. Guertin’s medical
opinion that the onset of B.B.’s symptoms on May 24, 2017 would be instantaneous to
the harm suffered. One issue raised by Dr. Williams was the sudden increase in the
circumference of B.B.’s head during his fourth and fifth months. Dr. Williams stated this
could indicate that something may have happened intracranially over that period of time
considered in conjunction that B.B. suffered a chronic subdural hematoma. Dr. Guertin
Knox County, Case No.17CA23 7
testified the increase in B.B.’s head circumference occurred while B.B. was in Babysitter’s
care.
{¶18} The GAL filed an initial report to the trial court on July 20, 2017. Based on
her initial report, the GAL recommended Mother and Father have custody of the children
and it was in the best interests of the children for the complaints to be dismissed.
{¶19} At the time of the hearing, no criminal charges had been brought against
any party.
{¶20} On August 29, 2017, the trial court issued its judgment entry finding B.B.
was an abused child as defined under R.C. 2151.031(C) and a dependent child under
R.C. 2151.04(C). Based on the clear and convincing evidence, the trial court found no
dispute that B.B.’s injuries were the result of physical abuse and the injuries to B.B. could
have occurred while B.B. was in the care of Mother, Father, or Babysitter. It next found
R.B. was a dependent child as defined in R.C. 2151.04(C). The trial court ordered that
R.B. and B.B. remain in the temporary custody of KCDJFS and the physical custody of
paternal aunt. Mother and Father were permitted visitation with the children at paternal
aunt’s residence under their supervision.
{¶21} The trial court held a disposition hearing on October 13, 2017. Via judgment
entry filed on October 23, 2017, the trial court found it was in the best interests of the
children that they be subject to the continuing temporary custody of KCDJFS. Visitation
between the parents and children was ordered to be unsupervised at the discretion of
KCDJFS. The trial court ordered the parents to follow the case plan established by
KCDJFS.
Knox County, Case No.17CA23 8
{¶22} A review hearing was held on November 1, 2017. The trial court ordered
that custody of the children be returned to Mother and Father and the children would be
under protective supervision. (T. 18-19).
{¶23} Mother and Father filed their notice of appeal on November 22, 2017.
ASSIGNMENT OF ERROR
{¶24} Mother and Father raise one Assignment of Error as to B.B.:
{¶25} “THE DECISION OF THE TRIAL COURT FINDING B.B. TO BE AN
ABUSED CHILD IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE
PARENTS DID NOT COMMIT ANY ABUSE.”
ANALYSIS
{¶26} Mother and Father argue the trial court erred when it found B.B. was an
abused child pursuant to R.C. 2151.031(C). They contend there was no clear and
convincing evidence in the record that Mother and Father caused B.B.’s physical injuries.
Standard of Review
{¶27} In an adjudicatory hearing regarding a claim of dependency, neglect and/or
abuse, the requisite burden of proof is by clear and convincing evidence. Juv.R. 29(E)(4).
The Ohio Supreme Court has defined “clear and convincing evidence” as “[t]he measure
or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the allegations sought to be established. It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as required beyond a reasonable
doubt as in criminal cases. It does not mean clear and unequivocal.” In re M.T., 5th Dist.
Richland No. 18-CA-32, 2018-Ohio-3251, ¶ 47 quoting In re Estate of Haynes, 25 Ohio
St.3d 101, 103-104, 495 N.E.2d 23 (1986).
Knox County, Case No.17CA23 9
{¶28} The Ohio Supreme Court delineated our standard of review as follows,
Where 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. See Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526 [ (1887)
], Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264 [ (1913) ], and Frate v.
Rimenik, 115 Ohio St. 11, 152 N.E. 14 [ (1926) ].
Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). In Cross, the Supreme
Court further cautioned,
The mere number of witnesses, who may support a claim of one or the other
of the parties to an action, is not to be taken as a basis for resolving disputed
facts. The degree of proof required is determined by the impression which
the testimony of the witnesses makes upon the trier of facts, and the
character of the testimony itself. Credibility, intelligence, freedom from bias
or prejudice, opportunity to be informed, the disposition to tell the truth or
otherwise, and the probability or improbability of the statements made, are
all tests of testimonial value. Where the evidence is in conflict, the trier of
facts may determine what should be accepted as the truth and what should
be rejected as false. See Rice v. City of Cleveland, 114 [144] Ohio St. 299,
58 N.E.2d 768 [ (1944) ].
161 Ohio St. at 477-478, 120 N.E.2d 118. (Emphasis added).
Knox County, Case No.17CA23 10
An “Abused Child”
{¶29} R.C. 2151.031 provides in relevant part,
As used in this chapter, an “abused child” includes any child who:
***
(C) Exhibits 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. Except as provided in division (D) of this section,
a child exhibiting evidence of corporal punishment or other physical
disciplinary measure by a parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child is not an abused
child under this division if the measure is not prohibited under section
2919.22 of the Revised Code.
(D) Because of the acts of his parents, guardian, or custodian, suffers
physical or mental injury that harms or threatens to harm the child's health
or welfare.
{¶30} Physical harm to persons is defined as, “any injury, illness, or other
physiological impairment, regardless of its gravity or duration.” R.C. 2901.001(A)(3).
{¶31} Mother and Father argue the trial court erred in finding B.B. was an abused
child pursuant to R.C. 2151.031(C) because there was no clear and convincing evidence
of parental fault for B.B.’s injuries. We previously addressed this issue in In re Pitts, 38
Ohio App. 3d 1, 5, 525 N.E.2d 814 (5th Dist.1987). We determined that during the
adjudicatory phase of the proceedings, the trial court does not have to find any fault on
the part of a parent, guardian, or custodian in order to find the child is abused pursuant
Knox County, Case No.17CA23 11
to R.C. 2151.031(C). See also, In re M.T., 5th Dist. Richland No. 18-CA-32, 2018-Ohio-
3251, ¶ 49. Accord, In re A.A. and T.A., 11th Dist. Ashtabula No. 2002-A-0096, 2003-
Ohio-5712, ¶ 18. “All that is necessary is that the child be a victim, regardless of who is
responsible for the abuse. The focus is upon harm to the child, not upon parental or
custodial blameworthiness.” In re Pitts, 38 Ohio App. 3d at 5.
{¶32} There is no factual dispute that B.B. was abused. The lingering question in
this case is who committed the abuse. The difficult question of who, however, was not
before the trial court at the adjudicatory hearing. “The focus of a charge that a child is
dependent is on the child and his conditions and not on fault.” Id. at 3. The trial court was
tasked to determine whether KCDJFS established a claim of dependency, neglect, and/or
abuse by clear and convincing evidence. R.C. 2151.031(C) does not require KCDJFS to
establish parental fault.
{¶33} An appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, 2012 WL 1029466,
¶ 24. The trier of fact was free to accept or reject any and all of the evidence offered by
the parties and assess the witness's credibility. “While the trier of fact may take note of
the inconsistencies and resolve or discount them accordingly * * * such inconsistencies
do not render defendant's conviction against the manifest weight or sufficiency of the
evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL 29752 (Mar 23,
2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714
(May 28, 1996). Indeed, the trier of fact need not believe all of a witness' testimony, but
may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604,
Knox County, Case No.17CA23 12
2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,
2003 WL 21291042, citing State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096 (4th
Dist. 1992).
{¶34} Based upon the foregoing and the entire record in this matter we find the
trial court's finding that B.B. was an “abused child” is not against the sufficiency or the
manifest weight of the evidence. We find that there is substantial evidence presented
which if believed, proves by clear and convincing evidence that B.B. was an “abused
child.”
{¶35} The sole Assignment of Error of Mother and Father is overruled.
CONCLUSION
{¶36} The judgment of the Knox County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.