In re C.K.

[Cite as In re C.K., 2022-Ohio-3121.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: C.K. C.A. No. 30183
A.W.
D.V.
K.E.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 21 04 0319
DN 21 04 0320
DN 21 04 0321
DN 21 04 0322
DECISION AND JOURNAL ENTRY
Dated: September 7, 2022
HENSAL, Presiding Judge.
{¶1} Appellant, C.E. (“Mother”), appeals from a judgment of the Summit County Court
of Common Pleas, Juvenile Division, that adjudicated one of her minor children abused and
dependent and her other three children dependent. This Court reverses and remands.
I.
{¶2} Mother is the biological mother of C.K., born April 4, 2008; A.W., born August 9,
2016; D.V., born January 6, 2019; and K.E., born August 3, 2020. The fathers of the children did
not appeal from the trial court’s judgment.
{¶3} On April 26, 2021, CSB filed complaints, alleging that all four children were
neglected and dependent and that A.W. was abused, neglected, and dependent. The allegations
were based primarily on an incident from two days earlier, during which Mother had allegedly
disciplined A.W. with a belt after the child had started her doll’s hair on fire. The next day, while
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A.W. was at the home of her grandfather (“Grandfather”), Grandfather contacted the police, who
observed bruising on A.W.’s back, arms, and legs. Because the police were concerned about the
safety of the other children, they invoked Rule 6 of the Ohio Rules of Juvenile Procedure to take
all four children into custody.
{¶4} The matter proceeded to an adjudicatory hearing before a magistrate. The evidence
focused almost exclusively on Mother’s act of discipling A.W. with a belt and trial counsel’s
arguments about whether that corporal punishment was so excessive that it constituted abuse under
Revised Code Section 2151.031. The evidence about the incident did not include any testimony
from Mother or A.W., and Grandfather did not testify about what Mother apparently told him
about the incident.
{¶5} Following the hearing, the magistrate decided that A.W. was an abused child and
that all four children were dependent under Section 2151.04(C) because of Mother’s abuse of A.W.
The trial court adopted the adjudicatory decision the same day, pending the filing of timely, written
objections. The trial court later adopted the magistrate’s dispositional decisions as to each child.
Mother did not raise objections to the dispositional orders, nor has she challenged them on appeal.
{¶6} Mother filed timely written objections to the magistrate’s adjudicatory decision,
which she supplemented after the transcript of the adjudicatory hearing was filed. She asserted
that the adjudication of A.W. as an abused child was not supported by the evidence presented at
the hearing. Because the dependency adjudications of all four children were based solely on the
finding that A.W. was abused under Section 2151.031, Mother asserted that her objections to the
magistrate’s decision should be sustained, and the complaints as to all four children should be
dismissed.
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{¶7} The trial court overruled Mother’s objections and adjudicated A.W. an abused
child under Sections 2151.031(B), (C), and (D) and adjudicated all four children dependent under
Section 2151.04(C) based on its finding that Mother abused A.W. Mother appeals and raises two
assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S DECISION FINDING THAT A.W. WAS ABUSED WAS
NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
{¶8} Mother’s first assignment of error is that the trial court’s adjudication of A.W. as
an abused child was not supported by the evidence presented at the adjudicatory hearing. The trial
court found that A.W. was an abused child under Revised Code Sections 2151.031(B), (C), and
(D). In relevant part, those provisions define an abused child as one who:
(B) Is endangered as defined in section 2919.22 of the Revised Code * * *;
(C) Exhibits evidence of any physical * * * injury * * *. Except as provided in
division (D) of this section, a child exhibiting evidence of corporal punishment or
other physical disciplinary measure by a parent * * * 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, * * * suffers physical * * * injury that harms
or threatens to harm the child’s health or welfare.
Of relevance here, Section 2919.22(B)(3) prohibits a person from: [a]dminister[ing] corporal
punishment or other physical disciplinary measure or physically restrain[ing] the child in a cruel
manner or for a prolonged period, which punishment, discipline, or restraint is excessive under the
circumstances and creates a substantial risk of serious physical harm to the child[.]”
{¶9} The trial court was authorized to adjudicate A.W. an abused child only if it found
that clear and convincing evidence demonstrated that Mother abused A.W. See R.C.
2151.35(A)(1) and Juv.R. 29(E)(4). Clear and convincing evidence is that which will “produce in
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the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford, 161 Ohio
St. 469 (1954), paragraph three of the syllabus. Where the proof required must be clear and
convincing, this Court will examine the evidence presented at the adjudicatory hearing to
determine whether the trial court had sufficient evidence before it to satisfy the requisite degree of
proof. In re J.A., 9th Dist. Summit No. 29462, 2020-Ohio-4677, ¶ 25.
{¶10} The sole reason for the trial court’s abuse adjudication was the single incident
during which Mother disciplined A.W. with a belt because the child had started her doll’s hair on
fire in her bedroom. Mother asserted in the trial court and again on appeal, however, that CSB
failed to present clear and convincing evidence that this single incident of corporal punishment
constituted abuse of A.W. This Court agrees.
{¶11} We begin by emphasizing that a parent’s use of corporal punishment to discipline
her minor child does not necessarily constitute abuse. See In re K.B., 9th Dist. Summit No. 21365,
2003-Ohio-3784, ¶ 14. CSB has asserted on appeal that a parent’s use of a belt to discipline a
child, in and of itself, constitutes abuse. That argument is not supported by Ohio law. In fact, this
Court has stressed that the appearance of a slight injury that resulted from a parent’s use of corporal
punishment does not necessarily constitute abuse. Id. at ¶ 15. To determine whether Mother’s
punishment of A.W. exceeded the bounds of reasonableness and constituted abuse, the trial court
was required to examine the totality of the circumstances surrounding the incident. Id. “Specific
factors to be considered * * * include the circumstances giving rise to the harm to the child, the
past history of the child, the nature and manner of the discipline administered to the child and the
measure of discipline.” (Internal citation and quotations omitted.) Id.
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Extent of Injury
{¶12} In reviewing the totality of circumstances surrounding an alleged incident of abuse,
courts often focus on the extent of the injury. In In re K.B., 2003-Ohio-3784, ¶ 24, an appeal from
an adjudication of abuse, this Court agreed with the trial court that the child had not injured himself
accidentally and that, even if the child’s injuries had been the unintended result of corporal
punishment, the punishment was excessive under the totality of the circumstances. This Court’s
decision was primarily based on extensive medical evidence from a doctor who had examined the
child at Akron’s Children’s Hospital. Id. at ¶16-18. The doctor detailed the extent of the child’s
injuries and explained that they were in unusual places that would not normally have been the
result of a two-year-old child accidentally falling, as the mother had claimed. Moreover, he opined
that, because of the extent of the child’s bruising and other tissue damage, K.B. would have
experienced prolonged pain. Id.
{¶13} In support of its assertion that discipline with a belt is enough to establish abuse,
CSB cites two cases that affirmed an abuse finding on appeal, In re M.C., 9th Dist. Summit No.
23788, 2008-Ohio-116, and State v. Neal, 4th Dist. Lawrence Nos. 14CA31 and 14CA32, 2015-
Ohio-5452, which do not support the agency’s argument. The abuse findings in these cases were
affirmed on appeal because extensive evidence about the extent of the child’s injuries and other
surrounding circumstances demonstrated that the use of corporal punishment in each case was
excessive.
{¶14} In In re M.C., 2008-Ohio-116, CSB presented the testimony of several witnesses to
explain the child’s injury and other circumstances relevant to the father’s use of corporal
punishment to discipline M.C. The child’s language pathologist and school principal testified
about speaking to the child about the incident and observing his injuries. Id. at ¶ 12-13. Each also
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testified that the child’s bruises and red marks, which M.C. stated were caused by his father, were
sore to the touch. Id. A police officer and CSB intake worker also testified in detail about their
interviews of M.C. about the incident. Id. at ¶ 14-15. Finally, a pediatric nurse practitioner
testified about her medical examination of the child. Id. at ¶ 16. She described the child’s injuries
and testified that M.C. informed her that he was in significant pain. Id. She also testified that
M.C. told her that his father had been using a belt to discipline him for the past several years. Id.
{¶15} In State v. Neal, 2015-Ohio-5452, there was also significant evidence about the
extent of the child’s injury and other circumstances surrounding the parents’ admitted use of a belt
to discipline their six-year-old child. The school nurse examined the child’s injuries after the
child’s teacher expressed concern. Id. at ¶ 12. The nurse testified that the child told her that he
was in pain, and she observed significant bruising on his back. Id. A county sheriff’s detective
testified about his observation of the child and his interviews of the child and his parents. Id. at ¶
13. The detective testified that the bruises on the child were “probably the worst [bruising on a
child] that I’ve seen in twelve years of law enforcement.” Id. at ¶13, 46. Finally, the child’s
pediatrician testified at length about her physical examination of the child. Id. at ¶ 14. She
described the extensive bruising and welts across the child’s torso that were so severe that she
ordered chest and rib x-rays to ensure that the child did not have any broken bones. She also
ordered urinalysis to check for kidney damage. Id. The doctor opined that “a substantial force”
was used to inflict the child’s injuries. Id.
{¶16} Abuse cases often focus on medical testimony about the extent of the child’s
injuries, or direct evidence that the child suffered from significant pain. In In re J.L., 176 Ohio
App.3d 186, 2008-Ohio-1488, ¶ 44 (3d Dist.), the court held that evidence that corporal
punishment caused bruising, in and of itself, was not sufficient to establish abuse. In reversing the
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trial court’s findings of abuse based on excessive corporal punishment, the appellate court
emphasized that “notably missing from the record is any medical evidence or reports to show that
J.L.’s injuries amounted to serious physical harm.” (Emphasis in original.) Id. Compare 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 (affirming the trial court’s adjudication of abuse where
the court heard extensive medical testimony about the extent of the child’s injuries and her
prolonged back pain, including testimony that the location of the injuries could have caused
damage to the child’s kidneys; and the father ultimately admitted that he had struck the child
repeatedly with a belt, causing her to complain of back pain for several days).
{¶17} Unlike the cases referenced above, the evidence in this case failed to include any
medical or other evidence about the extent of A.W.’s injuries, nor was there any evidence that
A.W. suffered pain from the alleged injuries. Although CSB presented testimony that the agency
believed that a relative or relatives took A.W. to Akron’s Children Hospital to be examined, it did
not present any medical records or testimony of a witness with first-hand knowledge about a
medical examination of the child.
{¶18} The only evidence about the extent of A.W.’s injures came from two pictures taken
by Grandfather and the testimony of one police officer who responded to Grandfather’s home and
observed bruising on A.W.’s back, legs, and arms. She further testified, however, that A.W. did
not appear to be in any pain or discomfort but was “running around playing.” The officer attempted
to authenticate two pictures that Grandfather had taken of A.W. on his cell phone. The pictures,
which were admitted into evidence, are only of the child’s back and appear to depict two round
red marks and markings that could be bruises, but it is unclear from the quality of the photographs
what injuries are shown. The photographs do not clearly and convincingly depict extreme bruising
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on the child. Moreover, the police officer did not testify that she was qualified to offer opinions
about the severity of the child’s injuries, nor did she offer any such testimony.
{¶19} The officer further testified that she had learned about the disciplinary incident and
the causes of A.W.’s bruises from Grandfather, who was not present during the disciplinary
incident. The officer did not explain what Grandfather told her, nor did Grandfather testify about
what Mother told him. The officer testified that she had the opportunity to speak to A.W., who
told her that the bruises were the result of Mother hitting her. The officer did not explain, however,
what she asked the child or what A.W. specifically told her about the incident or her bruises. The
officer testified that she had been a police officer for five years, but she did not testify about
whether she had any experience or training in interviewing alleged child victims.
{¶20} A thorough review of the evidence presented at the adjudicatory hearing reveals
that there was inadequate evidence presented about the extent of A.W.’s injuries. One police
officer testified about seeing bruises on the child, but the source of the bruises and their severity
was not established by clear and convincing evidence. Therefore, as to the physical injury aspect
of the abuse statute, CSB failed to establish abuse under Section 2151.031(B), (C), or (D).
Surrounding Circumstances
{¶21} In addition to a lack of evidence about the extent of A.W.’s injuries, CSB failed to
present much evidence about other circumstances surrounding Mother’s act of using a belt to
discipline A.W. As demonstrated through her admissions to some of the witnesses, Mother
disciplined A.W. with a belt because A.W. started a fire in the house. Notably, although the trial
court’s judgment entry and CSB’s brief on appeal state that Mother hit A.W. with a belt buckle,
there was no evidence at the adjudicatory hearing that Mother hit the child with anything other
than the strap of a belt.
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{¶22} The reason for Mother disciplining A.W. and other surrounding circumstances were
directly relevant to whether Mother had disciplined A.W. in an excessive manner. See In re K.B.,
2003-Ohio-3784, at ¶ 15. In In re J.L., 2008-Ohio-1488, at ¶ 24, 42, in reversing the trial court’s
finding of abuse due to a lack of medical testimony, the court also emphasized that the parent had
struck her young child with a belt after he ran away from her in the water park at King’s Island
and had to be located by security. The court emphasized that the mother had used the belt to
discipline the child for a dangerous act of misbehavior, not because she was upset or angry. Id.{¶23} This Court made a similar observation in In re A.D., 9th Dist. Summit No. 29976,
2022-Ohio-777, ¶ 23, a legal custody appeal that involved allegations that the father had
inappropriately disciplined the child by spanking her with a belt after she bit into the cord of live
Christmas lights. In examining the circumstances surrounding the incident of discipline, this Court
emphasized that the caseworker was not concerned about the isolated incident of physical
discipline because the father had not caused injury to the child, and he had a good reason to use
discipline on the child.
Father had not impulsively reacted out of anger but had made a rational decision to
discipline the child. A.D. had not harmed herself through an unpreventable
accident. She burned herself because she moved her dresser and bit into an
electrical cord, and Father explained that he wanted her to learn that she should
never play with an electrical cord again.
Id.{¶24} In this case, no one disputed that Mother disciplined A.W. for an act of extreme
misbehavior that potentially jeopardized her safety, as well as the safety of the entire family, which
warranted some manner of discipline. CSB failed to present evidence of the totality of the
circumstances surrounding that discipline, however.
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{¶25} It is unclear from the evidence whether anyone witnessed the incident of corporal
punishment other than Mother and A.W., and neither of them testified about the incident.1
Moreover, although a few witnesses offered testimony about brief admissions that Mother made
about the incident, there were no details offered about interviews of Mother or the child, and none
of the witnesses investigated the child’s bedroom to determine whether A.W. had, in fact, started
a fire in the house.
{¶26} CSB presented the testimony of three witnesses who spoke to Mother about the
incident, but their testimony offered few details about the circumstances surrounding the incident.
A CSB intake worker spoke to Mother the day after the incident when the police removed the
children from Mother’s custody. He testified as follows:
[Mother] admitted to whooping the child’s ass because [A.W.] had been messing
with a lighter. She felt like—mom felt like she jeopardized the house, the other
family members, by playing with a lighter. Felt it warranted discipline.
Although the officer initially testified that he did not recall what kind of discipline Mother used,
he later stated on cross-examination that Mother did not deny spanking the child with a belt
because Mother was fearful that A.W. might have started the house on fire.
{¶27} Next, a second police officer testified that he went to Mother’s home that day and
she told him about the incident.
She said that her daughter was playing with a doll and she got ahold of a lighter and
tried to light the baby doll on fire. And she just kind of threw it in the corner and
that kind of scared her.
And obviously because, you know, concerns of her lighting the house on fire. So
she got upset and she said she whooped her. That was about it.
1
Although Mother took the witness stand during the hearing, she testified only about
paternity of the four children and matters that did not pertain to the corporal punishment incident
in question.
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According to this officer, Mother did not tell him what she used to “whoop” A.W., nor did she say
anything about leaving marks on the child.
{¶28} Finally, CSB presented the testimony of a second CSB intake worker, who spoke
to Mother on the phone two days after the incident. This was the only witness to testify that Mother
admitted that her discipline left marks on A.W. She testified that Mother admitted that she used
a belt to spank A.W. six to seven times because A.W. lit her doll’s hair on fire and threw it into
the corner. The witness testified that Mother made the following additional admissions:
She stated she felt that [the discipline] was appropriate because [A.W.] almost
burned down the house, which could have caused a lot of issues obviously for the
family.
She said she was concerned because she had had a family friend whose house had
caught fire and children had unfortunately passed away. So she was very concerned
that [A.W.] had acted in this manner.
***.
[Mother] had stated that she did feel bad about the marks that she had left on her
daughter, but that wasn’t her intention.
But she then, in the next breath, would go on to say she would do it again to save
her life.
The trial court asked this witness whether Mother found an actual fire in A.W.’s bedroom. The
witness responded that it was not entirely clear, but her understanding was that the child’s act of
“using the lighter to burn the doll’s hair was enough to set off the smoke detectors in the home[.]”
{¶29} Given the lack of medical or other evidence about the actual extent of A.W.’s
injuries, and the scant evidence about the circumstances surrounding Mother’s use of a belt to
discipline A.W. in this case, this Court must conclude that the adjudication of A.W. as an abused
child was not supported by clear and convincing evidence. Mother’s first assignment of error is
sustained.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT’S DECISION FINDING THAT [THE CHILDREN] WERE
DEPENDENT WAS NOT SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE.
{¶30} Mother’s second assignment of error challenges the adjudications of all four of her
children as dependent. The trial court found that the four children were dependent under Revised
Code Section 2151.04(C), which 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[.]” The trial court found that the children’s “condition or environment” warranted
state intervention solely based on its finding that Mother had abused A.W. in the home, and the
other children resided in that home and were at risk of future excessive corporal punishment by
Mother.
{¶31} Because this Court has concluded that the abuse adjudication was not supported by
clear and convincing evidence, the dependency adjudications based on that adjudication must also
be reversed. Mother’s second assignment of error is sustained.
III.
{¶32} Mother’s assignments of error are sustained. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is reversed and remanded for proceedings consistent
with this opinion.
Judgment reversed
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 to Appellee.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JAMES K. REED, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
ALEXANDRA HULL, Attorney at Law, for Appellee.