In re A.B.C.

[Cite as In re A.B.C., 2011-Ohio-6570.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. William B. Hoffman, P. J.
Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
A.B.C.
Case No. 2011 CA 00073
MINOR CHILD(REN) OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 2010
JCV 00011
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 19, 2011
APPEARANCES:
For Appellee For Appellants
LISA A. LOUY WILLIAM T. WHITAKER
SCDJFS ANDREA L. WHITAKER
221 Third Street SE 54 East Mill Street, Suite 301
Canton, Ohio 44702 Akron, Ohio 44308
Stark County, Case No. 2011 CA 00073 2
Wise, J.
{¶1} Appellants Kayla Pitts and Parker Crissey (parents) appeal the decision of
the Stark County Court of Common Pleas, Juvenile Division, which adjudicated their
minor son as a dependent child pursuant to R.C. 2151.04(C). Appellee is the Stark
County Department of Job and Family Services (“SCDJFS”).The relevant facts leading
to this appeal are as follows.
{¶2} Appellants are the parents of the child at issue in this matter, A.B.C, who
was born in July 2009.
{¶3} On January 7, 2010, SCDJFS filed a complaint in the Stark County Court
of Common Pleas, Juvenile Division, alleging A.B.C. to be a dependent, neglected,
and/or abused child. SCDJFS filed the complaint based on concerns about a leg (tibia)
fracture the child had suffered, which Dr. Richard Steiner of Akron Children's Hospital
had found to be consistent with physical abuse. Appellants agreed to voluntarily place
the child with his maternal great grandmother, Margie Pitts. The trial court ordered
A.B.C. to be placed in the temporary custody of the maternal great grandmother, with
protective supervision granted to SCDJFS.
{¶4} The matter proceeded to an adjudicatory hearing on March 18, 2010. At
the adjudication, the State offered the testimony of Dr. Steiner and the SCDJFS
caseworker, Karen Cirone. Appellants presented testimony from themselves, Dr. Meena
Rawal (A.B.C.’s pediatrician), Kayla's mother and grandmother, and Parker's sister.
After hearing the testimony, the trial court found A.B.C. to be a dependent child. The
trial court memorialized its dependency finding and disposition via a judgment entry filed
March 19, 2010.
Stark County, Case No. 2011 CA 00073 3
{¶5} Appellants Pitts and Crissey appealed therefrom. On January 31, 2011,
this Court entered a decision finding that the trial court’s judgment entry had failed to
comply with R.C. 2151.28(L) and remanding the case for the court to make findings of
fact and conclusions of law in accordance with said statute.
{¶6} On March 8, 2011, the trial court entered another judgment entry in
response to our directive of January 31, 2011. The trial court therein again found A.B.C.
to be dependent and set forth findings of fact and conclusions of law not included in the
earlier judgment entry.
{¶7} On April 7, 2011, appellants filed a notice of appeal. They herein raise the
following four Assignments of Error:
{¶8} “I. THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE TO
SUPPORT THE FINDING OF DEPENDENCY.
{¶9} “II. THE COMPLAINT WAS INSUFFICIENT TO STATE A CLAIM FOR
DEPENDENCY.
{¶10} “III. THE JUVENILE COURT APPLIED A LOWER AND IMPROPER
STANDARD WHEN MAKING ITS FINDING OF DEPENDENCY.
{¶11} “IV. THE JUVENILE COURT ERRED IN QUALIFYING DR. STEINER AS
A HEMATOLOGY, ORTHOPEDICS AND RADIOLOGY EXPERT.”
I.
{¶12} In their First Assignment of Error, appellants contend the trial court
erroneously adjudicated A.B.C. a dependent child under R.C. 2151.04(C). We disagree.
{¶13} Pursuant to R.C. 2151.35(A), a trial court must find that a child is an
abused, neglected, or dependent child by clear and convincing evidence. In re Kasper
Stark County, Case No. 2011 CA 00073 4
Children (June 30, 2000), Stark App.No. 1999CA00216. As a general rule, the trier of
fact is in a far better position to observe the witnesses' demeanor and weigh their
credibility. See State v. DeHass (1967), 10 Ohio St .2d 230, 227 N.E.2d 212. As an
appellate court, we neither weigh the evidence nor judge the credibility of the witnesses.
Our role is to determine whether there is relevant, competent and credible evidence
upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10,
1982), Stark App. No. CA–5758, unreported. Accordingly, judgments supported by
some competent, credible evidence going to all the essential elements of the case will
not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Construction (1978), 54 Ohio St. 2d 279, 281, 376 N.E.2d 578.
{¶14} Included in the Ohio statutory definition of a “dependent child” under R.C.
2151.04 is 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).
{¶15} A finding of dependency under R.C. 2151.04 must be grounded on
whether the children are receiving proper care and support; the focus is on the condition
of the children. See In re Bibb (1980), 70 Ohio App. 2d 117, 120, 435 N.E.2d 96. “The
determination that a child is dependent requires no showing of fault on the parent's
part.” In re Bolser (Jan. 31, 2000), Butler App.Nos. CA99–02–038, CA99–03–048, 2000
WL 146026. However, a court may consider a parent's conduct insofar as it forms part
of the child's environment. In re Alexander C., 164 Ohio App. 3d 540, 843 N.E.2d 211,
2005–Ohio–6134, ¶ 51, citing In re Burrell (1979), 58 Ohio St. 2d 37, 39, 388 N.E.2d
738.
Stark County, Case No. 2011 CA 00073 5
{¶16} At the time of the adjudication, Appellant Kayla was twenty years old and
Appellant Parker was twenty-four. While they were engaged, Kayla became pregnant;
the couple decided to postpone the wedding. Id. Appellants took parenting classes to
better prepare for the arrival of the child. Appellant Parker, an Army veteran, is currently
enrolled at a program at Stark State University in the area of homeland security;
Appellant Kayla is accepted but not yet taking classes at the same institution for early
childhood development.
Cirone Testimony
{¶17} Karen Cirone, an SCDJFS caseworker, testified that on December 4,
2009, the agency received a call from Akron Children's Hospital concerning A.B.C.
SCDJFS was informed A.B.C. had been brought to the hospital for blood work, but after
Appellant Kayla advised hospital personnel A.B.C. was not able to put pressure on his
left leg, an x-ray was taken and the fracture was discovered. Cirone subsequently sat in
when a Massillon police detective interviewed Kayla. During that interview, Kayla said
she had been changing A.B.C.'s diaper one day shortly before Thanksgiving 2009 and
heard a “pop” when she lifted his legs by his ankles. Kayla also said that she quickly
called A.B.C.'s pediatrician, Dr. Meena A. Rawal, who saw the child on November 30,
2009. Cirone testified that Dr. Rawal ordered blood tests at Aultman Hospital because
of the child's propensity to easily bruise. After the leg fracture was discovered, Dr.
Richard Steiner at Akron Children’s Hospital was consulted. He concluded that the
fracture could only be caused by physical abuse. SCDJFS thereafter filed its complaint
in the Stark County Court of Common Pleas, Juvenile Division.
Stark County, Case No. 2011 CA 00073 6
Dr. Steiner Testimony
{¶18} Since 1991, Dr. Richard Steiner has been the medical director of the
Akron Children's Hospital Care Center, which evaluates more than 1,000 cases of child
abuse each year. Dr. Steiner testified that A.B.C. was admitted to the hospital's
hematology department due to concerns over “bruising or easy bleeding, not proper
blood coagulation.” Tr. at 17. Dr. Steiner noted bruising was observed on A.B.C.'s face,
abdomen, and genitals. This amount of bruising on a four-month old child was
concerning. Dr. Patton, the hematologist, consulted Dr. Steiner after x-rays revealed the
fracture in A.B.C.'s lower left leg. Based upon this information, further x-rays and
ultrasounds were ordered to determine whether A.B.C. had deeper bruising or bleeding.
{¶19} Dr. Steiner testified that Kayla’s actions were not a viable explanation for
A.B.C.'s fractured leg. He explained the fracture would have been caused by a violent
“snatch and grab” motion, with “a violent jerking of the ankle.” Tr. at 20. The doctor
found nothing in the child's past medical history which would explain the fracture or the
bruising. The x-rays and a CT scan revealed no other fractures and the results from
blood tests showed no sign of a bleeding disorder. Dr. Steiner opined that there were no
diseases which would explain A.B.C.'s fracture. Tr. At 23.
{¶20} Dr. Steiner came to a conclusion that A.B.C. had been abused, based in
large part on the lack of explanation for the fracture from the claimed diaper changing
incident. Dr. Steiner also indicated that his finding of abuse was partially predicated on
the unexplained bruises. See Tr. at 23-24.
{¶21} On cross-examination, Dr. Steiner testified that no other fractures were
identified by the skeletal survey, and A.B.C.'s bone architecture and anatomy were
Stark County, Case No. 2011 CA 00073 7
normal. Dr. Steiner acknowledged a baby could have a fractured ankle due to an
accident, and he conceded medical professionals often do not immediately notice
fractures.
Dr. Rawal Testimony
{¶22} Dr. Meena Rawal, A.B.C.'s pediatrician, testified on behalf of appellants.
Dr. Rawal classified appellants as “very concerned” and “on the ball” parents and noted
they had appropriately contacted her as the child’s needs warranted. Tr. at 48. She
indicated that appellants have kept the child up to date with his immunizations. Dr.
Rawal detailed A.B.C.'s medical history, including a diagnosis of allergic colitis. She also
noted that A.B.C. was given iron supplements after it was concluded he was anemic.
{¶23} Dr. Rawal recalled she received a call from Kayla, who had concerns
about A.B.C. when she heard a “pop” while changing the baby’s diaper. Because Kayla
did not report any swelling, and because A.B.C. was scheduled the following week for a
well-baby visit, Dr. Rawal did not have to see the child at that time. Kayla brought the
child to an examination by Dr. Rawal on November 30, 2009. Dr. Rawal found nothing
concerning about A.B.C.'s leg. Dr. Rawal manipulated the leg, hip, and ankle and found
no irregularities or outside indications of a problem. However, during this visit, the
doctor observed two bruises on A.B.C.'s left cheek. Appellants expressed concern as to
the cause of the child's easy bruising. Dr. Rawal ordered blood tests, which were done
at Aultman Hospital. The results of the test indicated abnormalities with respect to
A.B.C.'s platelet count, coagulation, and fibrinogen and hemoglobin counts. Dr. Rawal
recommended further testing with Dr. Patton at Akron Children's Hospital.
Stark County, Case No. 2011 CA 00073 8
{¶24} On cross-examination, Dr. Rawal indicated she was “surprised” by the
injury and the characterization of it as abuse in light of her interaction with appellants.
Tr. at 56. However, medically, she could not rule out the possibility A.B.C.'s leg fracture
was the result of an abusive injury. Id.
Appellant Kayla’s Testimony
{¶25} Appellant Kayla testified on her own behalf. She also stated that Dr. Rawal
had prescribed iron drops for A.B.C. as the child was slightly anemic and such could be
the potential cause of his bruising. Kayla described the diaper changing incident and her
subsequent conversation with Dr. Rawal. Kayla testified the results of the blood tests at
Akron Children's Hospital ruled out leukemia and other similar conditions. The
hematologist wanted additional blood tests to rule out von Willebrand's disease. After
doing some of her own research, Kayla reported the diaper changing incident to the
hematologist, Dr. Patton, who ordered the x-rays. Appellants were subsequently
advised A.B.C. had a leg fracture.
{¶26} On cross-examination, Kayla explained she did not take A.B.C. to the
emergency room after the diaper changing incident as the child was not fussing and his
leg was neither bruised nor swollen. Kayla conceded she had no explanation for
A.B.C.'s fractured leg. She would not characterize the diaper change at issue as violent.
Analysis
{¶27} Upon review, we most certainly concur with the trial court’s observation
that this is an unusual case. However, we remain mindful that our task on appeal is to
determine whether there is relevant, competent and credible evidence upon which the
trial court could base its judgment. Cross Truck, supra. Furthermore, in issues of
Stark County, Case No. 2011 CA 00073 9
dependency determination, “the law does not require the court to experiment with the
child's welfare to see if * * * [the child] will suffer great detriment or harm.” In re
Burchfield (1988), 51 Ohio App. 3d 148, 156, 555 N.E.2d 325. In light of the expert
testimony presented by SCDJFS at trial, and despite the countervailing testimony
presented by appellants, we are not inclined to disturb the evidentiary determinations of
the trial court as the fact finder in this instance, and we hold the evidence presented
supports the conclusion that A.B.C. is a dependent child under R.C. 2151.04(C), as the
nature of the physical injury and bruising to the child warrants, at least for now, state
intervention in his best interest.
{¶28} Appellants’ First Assignment of Error is therefore overruled.
II.
{¶29} In their Second Assignment of Error, appellants contend the SCDJFS
complaint erroneously failed to state a claim for dependency. We disagree.
{¶30} As an initial matter, our review of the record does not reveal that
appellants raised this challenge to the complaint via motion, nor was it raised orally at
the adjudicatory hearing of March 18, 2010. Generally, an appellate court will not
consider any error which counsel for a party complaining of the trial court's judgment
could have called but did not call to the trial court's attention at a time when such error
could have been avoided or corrected by the trial court. See, e.g., State v. Childs
(1968), 14 Ohio St. 2d 56, 236 N.E.2d 545, paragraph three of the syllabus.
{¶31} Nonetheless, we note Juv. R. 10(B)(1) states that the complaint shall
"state in ordinary and concise language the essential facts that bring the proceeding
Stark County, Case No. 2011 CA 00073 10
within the jurisdiction of the court ***." See, also, R.C. 2151.27; In Re Hunt (1976), 46
Ohio St. 2d 378.
{¶32} In the case sub judice, we find the complaint filed by SCDJFS duly stated
the facts, concerns, and allegations leading to the filing. The complaint further explained
the initial reasons for agency involvement, the child's injuries, the medical findings
concerning those injuries and the parental explanation for the injuries. The complaint
also clearly stated, inter alia, the essential language of R.C. 2151.04(C).
{¶33} We thus find no merit in appellants’ argument in this regard. Appellants’
Second Assignment of Error is overruled.
III.
{¶34} In their Third Assignment of Error, appellants contend the trial court
applied an improper legal standard or burden of proof in adjudicating A.B.C. as
dependent. We disagree.
{¶35} A trial court must find that a child is an abused, neglected, or dependent
child by clear and convincing evidence. See R.C. 2151.35(A), supra. Clear and
convincing evidence is defined as the 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. In
re: Z.N., Licking App.No. 11–CA–0015, 2011-Ohio-3221, ¶ 18, quoting Cross v. Ledford
(1954), 161 Ohio St. 469, 120 N.E.2d 118; In re: Adoption of Holcomb (1985), 18 Ohio
St.3d 361, 481 N.E.2d 613. Furthermore, in a bench trial, a trial court judge is presumed
to know the applicable law and apply it accordingly. Walczak v. Walczak, Stark App.No.
Stark County, Case No. 2011 CA 00073 11
2003CA00298, 2004-Ohio-3370, ¶ 22, citing State v. Eley (1996), 77 Ohio St. 3d 174,
180-181, 672 N.E.2d 640.
{¶36} In the case sub judice, the judgment entry of March 19, 2010 utilized the
specific term of “clear and convincing evidence.” Following remand in the first appeal,
the trial court did not reiterate the term, but in its expanded conclusions of law, the court
recited the language of R.C. 2151.04(C) and stated, inter alia, as follows:
{¶37} “The fact that there was no direct explanation for [A.B.C.’s] fractured leg is
sufficient to find him dependent under the totality of the circumstances because he is a
child whose condition or environment is such as to warrant the state, in his best interest,
in assuming his guardianship. He did not break his own leg. Someone else broke it
either intentionally or accidentally. The injury is inconsistent with the only explanation
given for it. *** At the conclusion of the case, the parents were visibly upset and the
Court spoke to them directly, acknowledging that they were disappointed and that it was
a strange set of circumstances. The Court went on to say that it did not know what
happened. In retrospect, that was an incorrect statement. The Court did know what
happened. Someone broke [A.B.C.’s] leg. What the Court did not know was who did it
and how or why. That lack of knowledge does not change the fact that [A.B.C.’s]
condition or environment warranted the state assuming his guardianship. The Court did,
and still does, have a firmly held belief that [A.B.C.] is a dependent child. If it did not, it
would not have found him to be so.”
{¶38} Judgment Entry at 4-5 (emphasis added).
Stark County, Case No. 2011 CA 00073 12
{¶39} Upon review, we find no merit in appellants’ claim that the trial court failed
to apply the proper legal standard or burden of proof in this matter. Appellants’ Third
Assignment of Error is overruled.
IV.
{¶40} In their Fourth Assignment of Error, appellants contend the trial court erred
in its qualification of Dr. Steiner as an expert witness. We disagree.
{¶41} On appeal, a trial court's ruling with respect to a witness's qualification as
an expert will not be reversed unless there is a clear showing that the court abused its
discretion. Welch v. MB Operating Co., Tuscarawas App.No. 94AP020007, 1994 WL
590410, citing Vinci v. Ceraolo (1992), 79 Ohio App. 3d 640, 646.
{¶42} Although suggesting in the text of this assigned error that the trial court
actually qualified Dr. Steiner as an expert in hematology, orthopedics, and radiology,
appellants concede in their brief that the trial court qualified him as an expert in pediatric
and child abuse pediatric medicine alone. See Appellants’ Brief at 22. Evid.R. 703
states: “The facts or data in the particular case upon which an expert bases an opinion
or inference may be those perceived by the expert or admitted in evidence at the
hearing.” In State v. Solomon (1991), 59 Ohio St. 3d 124, 126, 570 N.E.2d 1118, the
Ohio Supreme Court stated that “where an expert bases his opinion, in whole or in
major part, on facts or data perceived by him, the requirement of Evid.R. 703 has been
satisfied.”
{¶43} In the case sub judice, Dr. Steiner's testimony did not indicate that he
personally conducted or interpreted any hematological, orthopedic or radiologic testing.
While he did interpret bloodwork results on the record, this testimony was allowed after
Stark County, Case No. 2011 CA 00073 13
Dr. Steiner had testified that he had specialized training in interpreting lab reports as
part of his experience as a pediatric physician. See Tr. at 21.
{¶44} We find no abuse of discretion in the trial court’s allowance of Dr. Steiner’s
medical testimony and opinions under the circumstances of this case. Appellants’
Fourth Assignment of Error is overruled.
{¶45} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Delaney, J., concurs.
Hoffman, P. J., dissents.
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JUDGES
JWW/d 1113
Stark County, Case No. 2011 CA 00073 14
Hoffman, P.J., dissenting
(¶46) I respectfully dissent for the reasons set forth in my previous dissent in In
Re: A.B.C., 2011-Ohio-531.
________________________________
HON. WILLIAM B. HOFFMAN
Stark County, Case No. 2011 CA 00073 15
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
:
A.B.C. : JUDGMENT ENTRY
:
:
MINOR CHILD(REN) : Case No. 2011 CA 00073
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is
affirmed.
Costs assessed to appellants.
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JUDGES