R.Y.D. v. M.M.

[Cite as R.Y.D. v. M.M., 2022-Ohio-4116.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
[R.Y.D.] :
(on behalf of M.M.) :
: Appellate Case No. 2022-CA-14
Petitioner-Appellant :
: Trial Court Case No. 2021-DV-233
v. :
: (Appeal from Common Pleas
[M.M. – FATHER] : Court – Domestic Relations Division)
:
Respondent-Appellee :
...........
OPINION
Rendered on the 18th day of November, 2022.
...........
BYRON K. BONAR, Atty. Reg. No. 0002602 & CARA J. WILLIAMS, Atty. Reg. No.
0085921, 20 South Limestone Street, Suite 220, Springfield, Ohio 45502
Attorney for Petitioner-Appellant
M.M. – Father, Ohio
Respondent-Appellee, Pro Se
.............
DONOVAN, J.
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{¶ 1} Petitioner-Appellant Mother, on behalf of her daughter, M.M., appeals from
the trial court’s denial of Mother’s petition for a domestic violence civil protection order
against M.M.’s father (Father). In considering Mother’s objections to the magistrate’s
decision, the trial court listened to the recording of the hearing before the magistrate and
specifically found M.M.’s testimony that her father had molested her to be credible and
Father’s testimony not to be credible. Accordingly, the trial court abused its discretion in
denying the petition; the judgment of the trial court is reversed and remanded for
proceedings consistent with this opinion.
{¶ 2} Mother filed her petition for a protection order on September 14, 2021. The
petition stated that M.M. had disclosed to her brother that their father had sexually abused
her while he thought she was sleeping. The petition further stated that no charges had
been filed because of a lack in physical evidence, but that M.M. had been having
nightmares was “having to see sleep specialist for meds to sleep now.” The petition
concluded: “Yet Judge is still wanting me to continue shared parenting!” Mother
requested temporary parental rights and responsibilities for M.M. and her brother, I.M.,
and indicated that there was an open custody case involving the children in Miami County.
{¶ 3} An emergency hearing on the petition occurred the same day. At the
hearing, Mother testified that M.M. was 14 years old and again stated that M.M. had told
her son, M.M.’s brother, that Father “had been sexually abusing her while she was
sleeping”; the son had told Mother about the alleged abuse in June 2021. Mother further
testified that M.M. was “having to see a sleep specialist,” was taking anxiety medicine,
and couldn’t sleep at night. Mother reported that she had filed for “full custody” and was
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told that shared parenting had to continue until the order was changed, but M.M. was
“begging” Mother not to let her go. Mother further testified that the issue had been
“presented to the Juvenile Court,” which ordered her to continue shared parenting,
unsupervised.
Q. This hearing this afternoon is only for one purpose and that’s.
This is something you learned about back in June and - -
A. Well, I consider it an emergency because they’re expecting me
to drop her off this coming weekend like nothing even happened.
{¶ 4} The magistrate stated that the sole purpose of the hearing was to determine
“whether there’s an emergency that exists right now,” noting that Mother had learned of
the abuse allegation a few months earlier. Mother responded that it was an emergency
because she was supposed to “drop M.M. off this coming weekend like nothing ever
happened.” However, the magistrate concluded that he could not enter an emergency
order because Mother have an obligation under a court order (the shared parenting
order), and the court that issued that order had been made aware of the allegation. The
magistrate concluded that a trial would have to be help before granting a protection order,
and a trial was scheduled. The magistrate advised Mother that these “are not easy
cases to prove” and that “this would be an even more difficult case to prove since they’ve
already tried once to prove it in Juvenile Court.”
{¶ 5} On December 15, 2021, Mother filed a “First Trial Memorandum,” in which
she argued that the trial court had jurisdiction to issue a civil protection order to protect
an abused child even if the court could not address custody or visitation regarding the
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protected child.
{¶ 6} After Father requested two continuances, the hearing occurred on December
17, 2021. Several witnesses testified at the hearing.
{¶ 7} Andrea King, a mental health therapist and licensed social worker at
Samaritan Behavioral Health, testified to her credentials and that she had been trained in
interviewing abused children and had several years of experience doing so. King
testified that the protocol for interviewing abused children was to ask them open-ended
questions and non-leading questions to “let them tell their story.” She stated that she
asked M.M. non-leading and open-ended questions and did not “have any pre-conceived
notions” before the interview process.
{¶ 8} King stated that, on October 1, 2021, she received a referral from the
guidance counselor at M.M.’s school advising her that M.M. was present and “having a
panic attack,” and then M.M. “disclosed what had happened to her.” She stated that
M.M. and her mother then came in for “an intake”; when asked why Mother was present,
King responded that she had needed input from Mother and Mother had to be there “for
the intake to be completed.” At the time of the hearing, King had interviewed M.M. six
times, the first time being October 25, 2021. King testified that the purpose of the
interviews was to assess M.M.’s needs, to diagnose, and then to form a treatment plan.
She testified that the first interview lasted an hour, and the next five were between 40 and
60 minutes.
{¶ 9} King testified that M.M.’s statements were spontaneous, “very consistent,”
and did not vary when Mother was present and when she was not. According to King,
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throughout the interview, M.M. became “extremely anxious, especially when talking about
the incident that happened between her and her father.” She also stated that she
believed that M.M. knew the difference between the truth and a falsehood because her
story “ha[d] been consistent each time that it [was] brought up in conversation.”
{¶ 10} King stated that, in the first interview, M.M. “physically appeared anxious,”
was “very soft spoken,” and was “fidgety.” When asked if M.M. had a motive to fabricate,
King responded, “I don’t believe that she does.” She testified that M.M. used terminology
appropriate for a 14-year-old girl.
{¶ 11} When asked if, based upon her training and experience, she suspected that
something had happened to M.M., King responded, “Yes, I believe that something did
happen, yes.” When King was asked what it was she believed had happened, Father’s
attorney objected, stating that King was “going to bolster the credibility” of M.M., and it
was the court’s job to assess her credibility after hearing her testimony. The magistrate
responded by asking Mother’s attorney if the point of the testimony was to get King to
express an opinion about “whether she believed what the client told her”; Mother’s
attorney then suggested asking what M.M. had said first, “and then we can get into that.”
{¶ 12} King then testified that M.M. had stated that, while she was in her room at
her father’s residence, he had come into her bedroom and laid in bed with her, touched
her on the outside of her clothing as she pretended to be asleep, and then had “penetrated
his fingers into her vagina” as she continued to pretend to be asleep; then he got up and
got ready for work.
{¶ 13} When asked if M.M. could have dreamed the experience, King responded
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that she did not believe so, “[b]ecause of how it impacted her since that event.” She
stated that it happened in August 2020, and that M.M. had not yet disclosed “how that
made her feel emotionally.” King testified that M.M. reported not wanting to have a
relationship with her father and that she was uncomfortable, fearful, and anxious around
him. King stated that M.M. reported having a “very trusting, good relationship” with
Mother.
{¶ 14} Regarding having continued contact with Father, King testified that
continued contact could be harmful to M.M. because, in her opinion, “it would impact her
mental and emotional health in a negative way,” because M.M. already felt extremely
anxious about even having a conversation with Father. She stated that even meeting
Father in a public place would impact M.M.’s mental health in a negative way.
{¶ 15} When asked if she believed M.M. was credible, King answered affirmatively.
When she was asked to elaborate on how she arrived at that conclusion, Father’s attorney
objected to King’s rendering an opinion as to the credibility of a witness who had not yet
testified. The magistrate sustained the objection. Mother’s attorney asked another
question about whether M.M.’s “mental state indicate[d] trustworthiness,” and Father’s
attorney objected again. Mother’s attorney responded that the question called for “a
description of [M.M.’s] mental state,” which was within King’s area of expertise. The
magistrate rejected the argument, finding that counsel had not laid a foundation that King
had “any particular knowledge; expertise; training; or experience that makes her an expert
in the area of trustworthiness or truthfulness.” Mother’s attorney then asked King
whether she had had any such training (in determining whether clients are trustworthy or
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being truthful), and Father’s attorney objected again. The exchange continued as
follows:
MAGISTRATE: I’m going to let her answer that, but I think we’re
going to end up in the same place.
A [KING]. It’s impossible to predict behavior from the children, but
if there is enough evidence that is stated in a case, I would feel that they
are trustworthy.
Q. Do you study factors that would indicate whether a child is
truthful or not? Do you study factors that would indicate that?
A. What would those factors be?
Q. That’s what I’m asking. That’s my question.
A. I would have to say no.
Q. If someone molested a child, and you said that you had studied
pedophiles, if someone had molested a child, how likely are they to
reoffend?
A. Very high.
Q. Even if they received treatment, how likely are they to reoffend?
A. It is still high.
Q. What dangers are there if a pedophile has contact with a child?
ATTORNEY KING: Your honor, I hate to interrupt again, but may
we know what this training consisted of about which the witness is
testifying?
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MAGISTRATE: Well, he hasn’t established that, but she did testify
earlier that she’s had some treatment and has some knowledge about the
characteristics of pedophiles, but we haven’t had any testimony about what
- - - she says she’s studied pedophiles, but I think you need to go into that.
Q. Can you go into more details about the studies regarding
pedophiles? What training and education have you received regarding
that?
A. As far as specific trainings, I can’t recall what the actual names
of them are, but I have been to seminars and I’ve also done online trainings.
Q. So you are familiar with the characteristics and behavior of
pedophiles, is that correct?
A. Yes.
{¶ 16} King testified that she “absolutely [would] not” recommend that a pedophile
live with or have contact with a child. She was not familiar with any charges pending
against Father. King testified that Mother’s actions after her son told her about M.M.’s
disclosure had been appropriate.
{¶ 17} On cross-examination, King acknowledged that allegations of abuse should
be viewed with some suspicion when they arise in the context of a domestic relations
case. King testified that she had not had any contact with Father; her training would
permit her to examine Father and make a diagnosis regarding pedophilia, but she had
not done so.
{¶ 18} King testified that Mother told her that there had been no physical findings
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of abuse as a result of M.M.’s examination at the hospital because “too much time * * *
had passed”; Mother also reported that the matter had been investigated by law
enforcement “but there was not any evidence.” King did not find those conclusions
“persuasive,” but she did not talk to any of the investigating officers. King stated that she
was aware that contempt proceedings had been initiated due to Mother’s failure to provide
parenting time to Father.
{¶ 19} King testified that, based on Mother’s and M.M.’s statements, King believed
that Father was a pedophile and that M.M. should not live with or even have any contact
with him, because M.M. was not comfortable with that and “expressed extreme anxiety”
about even public, limited contact with Father. King noted that M.M. had not had contact
with Father for “months.” Although King acknowledged that she had not spoken to
Father in making her “diagnosis,” she felt that the information provided by M.M. and
Mother was “adequate,” even considering that Mother was involved in “a contentious
domestic relations case” with Father.
{¶ 20} M.M. testified that she was 14, lived with her mother and two older brothers,
and got mostly As and Bs in school. M.M. testified that she knew that truth is “[w]hen
you’re stating a fact” and a lie is “[w]hen you’re dishonest.” M.M. stated that if one fails
to tell the truth, one gets “in trouble,” and that an “oath” is “[w]hen you’re swearing that
you would tell the truth,” which she stated she was doing.
{¶ 21} M.M. stated that she also knew the difference between dreams and reality,
noting that “[r]eality is when you’re awake and its real.” She testified that she had asked
Mother to file the petition for a protection order for her because she is “scared” of Father,
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who she described as “abusive.” M.M. described an incident in August 2020, when she
was at Father’s home with her brother, her sister, her grandparents, and Father. M.M.
testified that she had been pretending to be asleep on the floor of the living room when
Father “inappropriately touched” her; she described that he had touched her “private
parts” with his hand, “rubbing his fingers.” M.M. further testified that Father had put his
fingers “in her crotch” for “about 20 minutes.” M.M. stated that this could not have been
a dream because she was awake. Then Father got up and got ready for work. M.M.
denied that anyone had “suggested” that she tell this story and that she felt “very anxious
and scared” when she repeated the story. She testified that she told her bother, I.M.,
about the incident months later; I.M. then told Mother about the alleged abuse, and Mother
took her to Dayton Children’s Hospital.
{¶ 22} M.M. expressed concern that Father would abuse her again, “[b]ecause
once you do it, you will probably do it again.” When asked how she had been affected
by the alleged abuse, M.M. stated, “I’m very anxious and I have multiple panic attacks a
day;” she was fearful of Father and had received treatment from King at school. She
stated that she did not want to have contact with Father.
{¶ 23} On cross-examination, M.M. stated that in August 2020, she resided at
Father’s home; her grandparents, with whom she had a good relationship, also lived
there, and her brother and sister “would sometimes come over.” She stated that her
brother I.M. was 15 years old. She acknowledged that, although the alleged abuse was
traumatic for her, she did not tell her grandparents about it. There had been no prior
incidents with Father. M.M. stated that her step-father had sexually abused her “a couple
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years” earlier, but that there “wasn’t enough evidence.”
{¶ 24} M.M. stated that she had a week on/week off parenting schedule with her
parents; while she was at Father’s house, phones and television were not allowed a lot
and they had to play outside, whereas at Mother’s house, they could have their phones,
watch TV, and hang out with friends. M.M. testified that her school performance was
important to Father, and his rules were stricter than Mother’s. M.M. stated that she
preferred to be at Mother’s home. She testified that she had spoken one time to two
detectives from the Dayton Police Department about Father’s alleged abuse. She stated
there had been significant periods of time when Mother had been away, and M.M. did not
like it. M.M. stated that Mother had lived in Indiana for a period of time.
{¶ 25} Mother testified that she had filed the petition for a protection order
because her “kids were in fear of their father.” She stated that she knew to ask an
abused child “non-leading questions.” Mother stated that on June 20, 2021, her son had
told her that his sister had told him that Father had been touching her while she was
“asleep.” Mother stated that M.M. did not visit with Father after that. When asked if she
had noticed anything unusual about M.M.’s behavior prior to learning of the alleged
abuse, Mother replied that when the police had tried to make M.M. go to Father’s prior to
the disclosure, “she had a mental breakdown panic attack,” was crying, shaking, and “just
very distraught”; Mother did not know why at the time.
{¶ 26} Mother testified that, after she learned of the abuse, her lawyer suggested
that she “wait a couple days” and see if M.M. told Mother anything, but when M.M. did not
do so, Mother eventually brought it up to M.M. Mother stated that M.M. had confirmed
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the truth of what I.M. had told Mother and said that she had been afraid to tell anyone.
According to Mother, M.M. was crying and “very distraught and anxious” during this
conversation, her tone of voice was shaky, and she was fidgeting with her hands and
“very scared.” Mother testified that she had asked M.M. non-leading questions about the
alleged abuse, that M.M.’s statements about the incident were consistent, and that she
used the terminology of a 14-year-old girl.
{¶ 27} Mother testified that M.M. did not supply details about the alleged abuse
until they were at the hospital, specifically Care House. Regarding counseling, Mother
stated that M.M. need counseling very much because of her panic attacks and not being
able to sleep at night; she got counseling through her school. Mother also took M.M. to
a sleep specialist , who put her on anxiety medication to help her sleep at night.
{¶ 28} Mother testified that she did not think that M.M. should see Father due to
her fear and panic attacks and because M.M. was old enough to say who she wanted to
spend time with. Mother stated that she had not discussed the issue with Father. She
asked the court to allow her children to have protection orders until they were 18.
{¶ 29} On cross-examination, Mother testified that in October 2020, there had
been an agreement for a one-year protection order with respect to I.M., but it did not apply
to M.M. because “[t]hat’s what the lawyers talked me into agreeing to.” Mother admitted
that, after the agreement was entered with respect to I.M, and knowing nothing about the
alleged abuse of M.M. by Father, she did not return to the week on/week parenting
schedule with M.M., because M.M. “refused to go without her brother.” Mother testified
that she had tried to get M.M. to go and had “call[ed] the cops,” who told her she did not
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have to make M.M. go. Mother acknowledged that M.M. had not seen Father since
October 2020. Mother also testified that I.M. wanted “nothing to do with” Father.
{¶ 30} Mother testified that detectives in Dayton Police Department had
investigated M.M.’s allegation but no charges had been filed. Mother also confirmed that
there had been “a similar situation before” in which M.M.’s stepfather had been charged
with rape, but the case “went away.” With respect to residing in Indiana, Mother
responded that she had had a job at the casino there, but that she Face Timed with M.M.
every day and saw her every other weekend during that period. Mother had “no
relationship at all” with Father at the time of the hearing.
{¶ 31} Father testified in opposition to the protection order. Father had been
employed by the same company for four years. He stated that he had a criminal history,
most recently for two felony burglaries out of Darke and Miami Counties, but that he had
served his sentences from 2011 to 2015O and had finished his parole. He also
acknowledged some prior felony forgeries for which he had served a sentence but said
he had never been convicted of a sex offense.
{¶ 32} Regarding I.M., Father testified that their relationship with “great” and that,
for a long time, the week on/week off shared parenting of M.M. and I.M. had worked well.
According to Father, then one week he went to pick up the children from Mother, and
neither child was bathed or had brushed their teeth, and they were “pretty dirty.” Father
stated that he “kind of got on them,” about this, and then I.M. “decided to rebel” and say
that he did not want to live with Father; Father immediately returned I.M. to Mother, and
M.M. continued her visit with him because she “said she wanted to come home.”
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{¶ 33} According to Father, I.M. stayed away for about two weeks before Mother
called Father and asked him to come and get I.M. because she couldn’t handle him.
When Father went to get I.M., law enforcement went with him and told I.M. he must go
with Father because Mother was telling him to go. When Father and I.M. arrived at
Father’s home, they talked outside and I.M. “decided to cuss at” Father. Father stated
that he had “reached back with [his] right arm and * * * smacked [I.M.] with the back of
[his] hand” in the mouth. Father returned I.M. to Mother the following Sunday, and on
the following Tuesday Father was arrested at his mother’s house for domestic violence
against I.M. The charge was dropped Wednesday morning and Father was released,
but he had not seen I.M. since then, because Mother had “been fighting” with him. Father
testified that he had agreed to a one-year protection order regarding I.M. because he
knew he had been wrong to smack I.M. in the mouth. According to Father, his father
had ”definitely smacked [him] in the mouth plenty of times,” so he “was wrong and * * *
admitted to it and * * * took that year of punishment away from” I.M., but at the time of the
hearing he wanted to “get [his] kid” back.
{¶ 34} With respect to M.M., Father testified that he had never touched her
inappropriately or hurt her, but he was a strict and demanding father because he had not
had one himself, and he attributed his time ‘in the system” to this fact. When asked how
M.M. responded to the discipline in his home, Father testified that she didn’t like it or
agree with it; she wanted more phone and TV time. But other than that, he also testified
that M.M. was “totally fine” with “coming back and forth and the discipline.” He stated
that he had never hit or spanked either of the children except for the time I.M. cussed at
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him.
{¶ 35} Regarding the sleeping arrangements at the home, Father testified that he
and his children -- I.M., M.M., and a two-year old daughter – generally slept in a
downstairs living room on the floor, where they often watched movies and the children
“all fall asleep in [his] arms.” He said that this sleeping arrangement had been in place
“ever since their stepfather was accused of inappropriateness” with M.M. and Father “got
full custody of them” from Mother; the children always wanted to sleep with him and be
around him, so they all slept on “folded out blankets” on the floor in a makeshift bed in
the living room.
{¶ 36} Father stated that, prior to the investigation into M.M.’s allegations, Mother
“had been ordered to give” him M.M., but she hadn’t done so as of April 1, 2021; on that
date, they had a court date, but Mother did not show up. According to Father, that was
Mother’s “second no show to court for this same thing,” so the judge granted him full
custody of M.M. He stated that he picjed M.M. up at the Piqua police, and while “she
might have cried and been distraught,” she got into his car willingly and then stayed with
him for a month. Father testified that he let Mother see M.M. on weekends until their
court date in the middle of May for a full custody hearing; the Friday before the Monday
court date, he took M.M. to Mother at the Huber Heights police station, and he had not
seen M.M. since then.
{¶ 37} Father stated that on Saturday night around 10:30 p.m., he started getting
texts from the mother of his other child telling him that Mother was saying that she was
taking M.M. to “get a rape kit” in anticipation of pressing charges against Father for
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“molesting” his daughter. This was the Saturday before the final custody hearing on
Monday, “[n]ot before; not after; not when [I.M.] was told; not when [M.M.] was crying with
the cops there that she could have said, hey, mom, no, he raped me, none of those times
was anything said” until late Saturday right before the hearing in a desperate last attempt
by Mother to keep custody of M.M.
{¶ 38} Father stated that he had been awarded “full custody” of M.M. on April 1,
2021, and then the report of abuse happened by mid-May before the court date, so “the
magistrate didn’t believe it and ordered a quick resolve.” However, nothing had been
quickly resolved; almost six months later, at the hearing in this matter, he was “very upset”
because the detectives had “talked to everybody” and the “only person you have is a
school guidance counselor that took an online course on a computer.”
{¶ 39} Father testified that Mother had not given him visitation with M.M. as she
had been ordered to do, until the judge finally told her “either you give him the daughter
or else,” but she still did not. According to Father, he “had to take the cops over there”
with the April 1 order, but when they got to Mother’s house, she “wasn’t even there” and
“she tried to leave, so the cops had to pull her over and bring her back” for Mother to give
him M.M. At that point, M.M. “cried and made a little scene,” as would be expected under
the circumstances, but she was fine once they got to his house. Later that week, M.M.
asked for $70 to get her nails done, and Father refused; “[t]he next day she went home
and then this happened.”
{¶ 40} On cross-examination, Father testified that it was not appropriate for a
father to molest or rape his daughter. When asked about whether such a father should
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get visitation or have contact with the child, Father said it would depend whether the claim
was a lie, and he and Mother’s attorney quibbled about whether it was a lie in this case.
The magistrate eventually said that the record should reflect Father’s refusal “to answer
[an] appropriate question” and instructed the parties to move on.
{¶ 41} The magistrate denied Mother’s petition for a protection order on behalf of
M.M. The magistrate noted that the case arose in the context of a contested custody
proceeding in the Miami County Juvenile Court and that neither party had called I.M. to
testify about when M.M. had told him about the allegation of abuse, when he told Mother,
or why he waited until he was at a lawyer’s office with Mother in June 2021 to mention
that his sister had been sexually abused ten months earlier. The magistrate also noted
that, although there was testimony that the one-year protection order issued in October
2020 had pertained only to I.M., the record of that case showed that the one-year consent
agreement filed on October 22, 2020, named both I.M. and M.M. as protected parties.
{¶ 42} Additionally, the magistrate found that Mother’s September 2020 petition for
a protection order was based on I.M. and M.M.’s report to Mother about Father’s assault
of I.M.; in light of that information, Mother did not think it was safe to send either child to
Father. The magistrate reasoned:
* * * Since [Mother] was allegedly attempting to protect [M.M.] from
her father, it raises a question as to why [M.M.] did not tell her mother at
that time that she had been abused by her father barely a month earlier.
[M.M.] testified she never told her mother about the incident. In contrast,
[Mother] said that she discussed it with [M.M.] a few days after [I.M.] told
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her about it at the lawyer’s office.
At the trial on the petition, [M.M.], now age 14, was the only witness
to testify about the alleged incident. She was obviously very reluctant to
talk about the incident, although her reluctance can have multiple
explanations. She used the phrase “touched me inappropriately” three
times when asked to explain what happened. Her affect during her
testimony was flat and she did not display any outward signs of emotion in
response to the questions. She also showed that she could easily be led
to change her testimony when suggested there was another answer. It
was also clear the allegation attributed to [M.M.] was divulged during a time
of contentious custody litigation. If [Father] is correct, it was revealed on
the eve of a final custody hearing and after he had previously been given
temporary custody of [M.M.].
The testimony of the counselor, Andrea King, was apparently offered
to corroborate that [M.M.] told King about this incident during their
counseling sessions in October of 2021. King testified quite specifically
that [M.M.] told her that [Father] came “into her bedroom” and that he “laid
in bed with her.” At the trial, [M.M.] described the location as being “in the
living room” and “on the floor”. King’s testimony also contradicted
[Mother’s] in the particulars of how [M.M.] came into counseling. [Mother]
testified that she called the school to ask for counseling for [M.M.]. [M.M.]
and King testified [M.M.] was referred to King by the guidance counselor
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because [M.M.] [was] having a panic attack at school. Also, [Mother]
testified [M.M.] had been having panic attacks and trouble sleeping while
she had been staying at her father[’]s, but she had not seen her father since
June of 2021. However, [Mother] apparently did not seek counseling for
[M.M.] if she did at all, until October of 2021 when she claims she called the
school for help about the panic attacks.
While the Magistrate has concerns about the testimony in support of
the petition, it should not be inferred that the respondent’s testimony was
accepted at face value. The respondent has multiple felony convictions,
including offenses of dishonesty. [Father] was argumentative, defiant and
disrespectful when being cross-examined, and at one point refused to
answer a question from counsel for the petitioner.
* * * While a delay in reporting an incident of this nature is not
uncommon, there was never any explanation provided by [M.M.] as to why
she couldn’t tell her mother or her grandmother to whom she was also close.
Or why she couldn’t tell her mother about the alleged incident at the time
when [Mother] was trying to get a protection order to keep [M.M.] and [I.M.]
away from [their] father.
* * * Also, as noted, [M.M.] showed herself to be amenable to
changing her testimony in response to suggestions (or testimony) from
counsel. While the leading questions may have provided more accurate
information, they had the perhaps unintended consequence of also
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demonstrating how easily the child can be influenced by an adult.
The testimony offered in support of the petition raises many
questions which preclude it from outweighing even the diminished credibility
of the respondent. In this case, the magistrate is unable to find the
evidence offered in support of the petition outweighs the evidence offered
by the respondent. The court finds in favor of the respondent on the
petition for a domestic violence civil protection order. The petition is
dismissed, with prejudice.
{¶ 43} The trial court’s judgment entry (attached to the magistrate’s decision)
stated that the court had reviewed the decision and found no error of law or other defect
on the face of the magistrate’s decision. The court adopted the decision and signed the
entry, citing Civ.R. 65.1.
{¶ 44} Mother filed objections on January 13, 2022, along with a request to file
supplemental objections once the transcript had been completed. In her objections,
Mother asserted that the magistrate had erred in denying the petition for three reasons.
First, she asserted that the “weight of the evidence” showed that M.M. had been raped
by her father; M.M.’s conduct was consistent with being a rape victim, she was and is
“deathly afraid of him,” she had sought counseling and therapy for her fear, and, since
she had first disclosed the rape, she had consistently maintained that she had been raped
even during and after cross-examination. Second, Mother asserted that an “error of law
occurred” in that King testified “forcefully” that M.M., in her opinion, should not be
compelled to have further contact with Father. According to Mother, this “critical piece
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of evidence” was ignored by the magistrate. Finally, citing Evid. R. 704, Mother argued
that the magistrate erred in refusing to admit King’s opinion as to M.M.’s truthfulness and
trustworthiness solely on the basis that it embraced the ultimate issue to be decided by
the trier of fact. King’s attached an affidavit from King stating that King “absolutely finds
[M.M.] to be credible for a number of reasons.”
{¶ 45} Father responded to Mother’s objections on February 7, 2022. He argued
that King’s testimony was properly excluded because it did not establish “any educational
background in psychology or forensics or hands on experience with any former alleged
rape victims.” Father also asserted that there was no “independent evidence” that M.M.
feared being around Father or that her panic attacks somehow verified that a rape had
occurred. Father argued that Mother misinterpreted Evid.R. 704, because “[e]xpert
testimony often embraces the ultimate issue if properly presented,” but it does not permit
one witness to testify about the credibility of another witness Finally, Father asserted
that King’s claim that M.M.’s reporting of the incident had been “consistent all along” was
“suspect,” given that the testimony at the hearing wasn’t even consistent as to where the
alleged rape occurred and who was in the room. Father pointed out that the magistrate
noted this inconsistency in its decision.
{¶ 46} In supplemental objections filed on February 16, 2022, Mother repeated the
three arguments described above; additionally, she objected to the magistrate’s failure to
recognize that R.C. 3113.31 is remedial in nature and failure to construe the evidence in
favor of M.M.
{¶ 47} In its decision overruling Mother’s objections, the trial court noted in a
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footnote that its adoption of the magistrate’s order on January 4, 2022, did not preclude
Mother from filing objections, citing Civ.R.53(D)(4)(b) and (d). The trial court also noted
that, under Civ.R. 65.1(F)(3)(d)(i), a party has 14 days to file written objections to a trial
court’s adoption of a protection order. However, the court pointed out that, “unlike Civ.R.
53, a party may not object to the magistrate’s grant or denial of a protection order under
Civ.R. 65.1,’ ” citing Insa v. Insa, 2016-Ohio-7425, 72 N.E.3d 1170, ¶ 26 (2d Dist.).
{¶ 48} The trial court found that the magistrate had appropriately applied the law.
Regarding the weight of the evidence, the court noted that Mother’s argument was
primarily based on whether M.M. was credible in the absence of physical evidence, a
criminal charge or conviction, witnesses, or an admission to the alleged conduct. The
court stated that it had reviewed the written transcript and listened to the audio recording
of the hearing on the petition and that it was not required to defer to the magistrate’s
determinations of witness credibility. The court did not find that M.M. had been
influenced by counsel or was “led” in her answers; rather, she had “responded
appropriately to each question” had not simply repeated or rephrased an answer, and
had not appeared to be coached on how to answer. The trial court observed that M.M.
had testified in a “calm and monotone manner” and had quickly responded to questions.
{¶ 49} With respect to Father’s testimony, the court found that he “lacked
credibility.” The court noted that he would not answer questions, “was rude,
argumentative, and disrespectful of counsel.” The court found that Father “expressed
clear anger” and his tone was “demanding” as he testified, “ ‘now I’m here to get my kid.’ ”
The court noted that, while Father asserted that M.M. had created a story because she
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did not like the rules at his house, he had been “just as culpable in not having a strong
relationship with his daughter.” With respect to Father’s testimony that M.M. had asked
to get her nails done, in response to which Father had turned off her phone, the court
commented that Father’s “anger was obvious” on the audio recording and his behavior
was “intentional,” revealing “a very controlling personality.” The court did not find that
M.M. lacked credibility and rejected Father’s argument that M.M. had a motive to lie
because she did not like her father’s rules. The court pointed out that M.M. “also had a
history that prevented her from being completely open about the incident and finding the
need to report the incident”; it was undisputed that M.M. had previously been sexually
abused by her stepfather and, while that incident had been reported and investigated,
“charges for rape were filed and then nothing happened.”
{¶ 50} The court concluded that, although it found M.M. to be credible, her
testimony alone did “not rise to the level necessary to grant the civil protection order.”
The court had no doubt that M.M. was having panic attacks, but it found no evidence from
which to conclude that those panic attacks were the result of “inappropriate” touching by
Father. The court found that there was undisputed testimony of prior sexual conduct by
the stepfather that had not been taken into consideration regarding M.M.’s issues.
Finally, the trial court stated that the therapist’s role was to address the panic attacks, not
to determine if Father had committed sexual abuse, and that a police investigation
“presumably did not rise to a level of probable cause.”
{¶ 51} Regarding the alleged error of the magistrate in not considering “critical
evidence,” i.e., King’s assessment of M.M.’s truthfulness, the court found that Evid.R.
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701, which governs opinion testimony by lay witness, applied. The court rejected
Mother’s argument that King should have been permitted to testify as to her personal
observations of M.M.’s fear of her father, because “while there was personal observation,
it was based on M.M.’s conclusive statement that her father had ‘penetrated’ her with his
fingers”; King had not explored any other reason for the panic attacks or fear, and she
did not speak to Father or law enforcement officers. Because King’s testimony was
based only on what M.M. had told her, the court concluded that King had not testified as
an expert witness, and her opinions had not been admissible as lay testimony because
“rather than being personal observations, they were based on the statements of M.M.”
{¶ 52} Further, the court rejected Mother’s arguments that King’s testimony was
admissible pursuant to Evid.R. 704. Noting that King was never qualified as an expert
witness and that even an expert could not be permitted to testify about the veracity of a
child, the court questioned how a lay witness “could testify to such opinion.” The court
emphasized that King’s testimony was The court found that “the testimony prohibited was
solely related to the truthfulness of M.M. There is no error in prohibiting tnot based on
her personal observations but on what M.M. had relayed to her.
{¶ 53} As to Mother’s argument with regard to R.C. 3113.31, the trial court did not
disagree ith Mother that the statue was remedial in nature, but it found no evidence that
the magistrate had not recognized the remedial nature of the statute. Despite its
remedial nature, the petitioner (Mother) has the burden to establish by a preponderance
of the evidence that the abuse occurred in order to obtain a protection order. The trial
court agreed with the magistrate that this burden had not been satisfied. The court found
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no error, noting that Mother had “other means” of addressing the visitation and/or custody
issue.
{¶ 54} In conclusion, the court noted the following factors, which it found to be
determinative: there was no medical evidence of any abuse, no criminal charges had
been filed despite an investigation, the abuse was never reported by M.M. to Mother or
to her grandmother, with whom M.M. had a close relationship, M.M.’s account of the
incident had “very little description”; while Father was “an unlikeable person,” he
presented evidence that M.M. had a motive to lie (Father’s strictness an discipline); M.M.
agreed she preferred [Mother’s] home due to the lack of rules and discipline * * *), and
the incident “allegedly took place with M.M.’s brother and half-sister present.” The court
also concluded that, while M.M.’s hesitancy and lack of openness about the “alleged
single incident” may likely be explained by the fact that her report o prior sexual abuse by
her stepfather had led to a charge of rape but “then the case disappeared without an
outcome,” that prior incident could also explain why M.M. was having panic attacks,
anxiety, and trouble sleeping. The court noted that there had been no evidence offered
about the timing of the incident with the stepfather or M.M.’s emotional or psychological
issues after that incident, notwithstanding a finding of probable cause for rape. NO
charges had been filed against Father. Moreover, Mother stated that she had requested
the protection order because M.M. was “old enough” to make her own decision about with
whom she wanted to spend time.
{¶ 55} Mother appeals from the trial court’s denial of a protection order on behalf
of M.M.
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{¶ 56} Mother asserts one assignment of error with multiple subparts, which largely
mirror the arguments raised in her objections. Additionally, Mother argues that finding
“that a victim was abused and then refusing to give that victim a remedy under R.C.
3113.31 because that victim is a non-marital child, denies that non-marital child due
process and equal protection of the law” and that the court erred in failing to “liberally
interpret” domestic relations laws as required by R.C. 1.11. Father did not file a brief.
{¶ 57} Mother argues that , insofar as the trial court found M.M.’s testimony to be
credible and claimed to have applied the preponderance of the evidence standard, it erred
in not granting the civil protection order. Mother also argues that King’s testimony should
have been admitted as expert testimony under Evid.R. 702 or lay opinion under Evid.R.
701, and the trial court abused its discretion in failing to consider this evidence. Citing
R.C. 1.11, Mother further asserts that the trial court “recognized that domestic violence
laws were remedial statutes but did not apply a liberal interpretation to any domestic
violence law or to this proceeding,” which was error.
A.
{¶ 58} Mother argues that she was held to a higher standard of proof than the
preponderance of the evidence standard. She argues that, in a civil protection order
case, the standard of proof “is just more likely than not,” and the Ohio Supreme Court has
expressly rejected the position that corroborating evidence must be presented. Citing
Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997), Mother argues that M.M.’s
testimony alone, if credible, was sufficient to meet the preponderance of the evidence
standard, and the trial court did find M.M. to be credible. Mother points out that therapist
-27-
King also corroborated M.M.’s testimony and that the trial court specifically found Father’s
testimony not to be credible. Thus, Mother asserts that there was “more than sufficient
evidence” to support the issuance of a protection order and the court should have issued
such an order.
B.1.
{¶ 59} Citing R.C. 3113.31(G), Mother argues that the “remedies available in R.C.
3113.31 are in addition to any other civil or criminal remedy.” Noting that one of the
reasons given by the trial court for the denial of the civil protection order was the potential
availability of other civil remedies, she argues that the court’s reasoning was “contrary to
the explicit language in R.C. 3113.31(G)” and its intent. Mother asserts that M.M. had
been raped and that she was reasonably fearful of her abuser and of being raped again,
that civil protection orders are available to other rape victims, and that it was arbitrarily
denied in this case.
B.2.
{¶ 60} Mother also asserts that interpreting R.C. 3113.31 “to deny recovery to non-
marital children for a civil protection order” despite a finding that domestic violence
occurred, “unlawfully discriminates against non-marital children * * *.” She argues that
the trial c essentially held “that every victim of domestic violence is entitled to a remedy
under R.C. 3113.31 except children,” because it “would deny every non-marital child the
possibility of a remedy under domestic violence laws because they would have a remedy
for custody or visitation.” According to Mother, the trial court denied M.M., a non-marital
child, “even the possibility of a remedy under R.C. 3113.31,” despite “egregious” domestic
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violence, by denying the petition because there was “a possibility of a remedy available
through custody or visitation. She concludes that the trial court thereby unconstitutionally
discriminated against a non-marital child, although the United States Supreme Court has
enunciated constitutional protections for such children.
C.1.
{¶ 61} Mother asserts that “at least some or all” of the evidence from M.M.’s
therapist, King, should have been considered and admitted by the trial court. Mother
points to King’s testimony about her qualifications and experience and about working with
M.M.
C. 2.
{¶ 62} Mother asserts that the trial court should not have “ignored” King’s
testimony that M.M. should not be forced to have further contact with Father because
such contact could be detrimental to M.M.’s mental health and cause her continued fear
and panic attacks. She argues that King should have been treated as an expert, citing
Evid.R. 702 and Ohio Adm.Code 4757-21-02, which “defines the scope of practice for a
licensed social worker.” Mother also cites State v. Blanton, 4th Dist. Adams No.
16CA1031, 2018-Ohio-1275, arguing that other courts have “recognized licensed social
workers as experts in interviewing abused children and determining the truthfulness of
their patients.”
C.3.
{¶ 63} Mother asserts that King was not precluded from opining on M.M.’s
truthfulness, because a social worker “is licensed by the State of Ohio to provide therapy,”
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which includes determining whether the patient is telling the truth. Mother asserts that
the court cited criminal cases that prohibit a therapist from giving an opinion as to a
victim’s truthfulness, but those cases cited State v. Boston, 46 Ohio St.3d 108, 128, 545
N.E.2d 1220 (1989). According to Mother, King’s testimony should not have been
excluded “because of the Sixth Amendment’s Confrontation Clause.”
C.4.
{¶ 64} Citing Evid. R. 701, Mother alternatively argues that King’s testimony should
have been considered and admitted as lay testimony, because King was “qualified to give
her lay opinion as to M.M.’s fear of her father and the consistency of her story.” Mother
argues that one does not need to be a trained and licensed therapist “to recognize fear in
a person’s face.”
D.
{¶ 65} Mother argues that the trial court “did not liberally interpret domestic
violence laws or this case as required by R.C. 1.11,” again pointing out that R.C. 3113.31
is a “remedial statute” under R.C. 1.11. She argues that, because the object of R.C.
31113.31 is to prevent further abuse, and that the statute specifically states that the
remedies provided therein are in addition to, and not in lieu of, any other available civil
remedy, whether another court was considering custody and visitation issues was
irrelevant to the issuance of a civil protection order. According to Mother, “[c]ustody and
visitation are not the same as a civil protection order or an adequate remedy for a rape
victim. A civil protection order is enforceable by the police.” Mother argues that a civil
protection order enforceable by the police is better suited to protecting a victim from
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further domestic violence.
{¶ 66} On July 28, 2022, Mother filed a citation to additional authority, R.C.
3109.051(A); she argues that although custody was awarded in the Miami County
Juvenile Court, the trial court had jurisdiction to make a finding of domestic violence and
to issue a protection order for M.M.
{¶ 67} Civ.R. 65.1(F)(3)(d)(iii) provides:
A party filing objections under this division has the burden of showing
that an error of law or other defect is evident on the face of the order, or that
the credible evidence of record is insufficient to support the granting or
denial of the protection order, or that the magistrate abused the magistrate's
discretion in including or failing to include specific terms in the protection
order.
{¶ 68} We have observed:
R.C. 3113.31(E)(1) authorizes a trial court to issue a CPO “to bring
about the cessation of domestic violence against [ ] family or household
members.” To obtain a CPO, a petitioner must demonstrate by a
preponderance of the evidence that the person for whom protection is
sought is in danger of domestic violence. Tyler v. Tyler, 2d Dist.
Montgomery No. 26875, 2016-Ohio-7419, ¶ 18, citing Felton v. Felton, 79
Ohio St.3d 34, 679 N.E.2d 672 (1997), paragraph two of the syllabus.
K.A. v. A.V., 2d Dist. Champaign No. 2018-CA-12, 2018-Ohio-4144, ¶ 16.
{¶ 69} R.C. 3113.31(A)(1)(a)(iv) defines domestic violence in part as “[c]ommitting
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a sexually oriented offense.”
{¶ 70} We further noted:
To assess whether a protection order should have been issued, “the
reviewing court must determine whether there was sufficient credible
evidence to prove by a preponderance of the evidence that the petitioner
was entitled to relief.” Insa v. Insa, 2016-Ohio-7425, 72 N.E.3d 1170, ¶ 45
(2d Dist.), quoting Weismuller v. Polston, 12th Dist. Brown No. CA2011-06-
014, 2012-Ohio-1476, ¶ 19. “Under the civil manifest-weight standard, ‘[i]f
competent, credible evidence exists to support the trial court's decision, it
must be affirmed.’ ” Id., quoting Wise v. Wise, 2d Dist. Montgomery No.
23424, 2010-Ohio-1116, ¶ 9. To perform a civil manifest-weight analysis,
the appellate court reviews the trial court's rationale and the evidence cited
in support of its decision, remaining mindful of the trial court's primary role
in evaluating evidence and assessing witness credibility. Id.K.A. at ¶ 15.
{¶ 71} We agree with Mother’s assertion that the trial court held her to a higher
standard of proof than the preponderance of the evidence. The trial court found M.M.
“to be credible in her testimony” and that she had not been influenced by counsel or led
in her answers. The court found that she had “responded appropriately to each question”
and that it did not appear that “she had to be coached on how to answer.” The court
found that M.M. testified in a calm manner. The court further found that Father “lacked
credibility.” Despite specifically finding that the victim was credible and the respondent
-32-
was not credible, the court found that M.M.’s testimony alone did “not rise to the level
necessary to grant the civil protection order,” pointing out that there was “undisputed
testimony of prior sexual conduct by the stepfather.”
{¶ 72} Based upon the foregoing, we conclude that the trial court erred when it
found that there was not sufficient credible evidence to prove by a preponderance of the
evidence that M.M. was in danger of domestic violence and entitled to a civil protection
order. Hence, the trial court’s judgment was against the manifest weight of the evidence
and an abuse of discretion. M.M. was not required to establish the molestation beyond
a reasonable doubt, as seems to be suggested by the trial court’s noting of no criminal
prosecution.
{¶ 73} Given our determination that the trial court erred in denying Mother’s
petition, we need not address her argument that the trial court failed to comply with the
requirements of R.C. 3113.31(G). We also decline to address Mother’s argument that
the trial court violated M.M.’s equal protection and due process rights by treating M.M., a
non-marital child, differently from marital children, because Mother raises it for the first
time on appeal. “The ‘[f]ailure to raise at the trial court level the issue of the
constitutionality of a statue or its application, which is apparent at the time of trial,
constitutes a waiver of such issue and a deviation from this state’s orderly procedure, and
therefore need not be heard for the first time appeal.’ ” Trammel v. Powell, 2d Dist.
Montgomery No. 23832, 2011-Ohio-2978, ¶ 15.
{¶ 74} Regarding the admissibility of King’s testimony, we note that “[t]he
admission of evidence lies within the sound discretion of the trial court, and the trial court’s
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ruling will not be reversed absent an abuse of discretion.” Googash v. Conrad, 2d Dist.
Montgomery Nos. 20184, 20191, 2004-Ohio-5796, ¶ 16. We have stated:
* * * To constitute an abuse of discretion, a trial court's action must
be arbitrary, unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees
of Ohio State Univ., 12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984). “It is
to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.” State v. Malloy, 2d Dist. Clark No. 2011-CA-
21, 2012-Ohio-2664, ¶ 24. A court's decision is unreasonable “if there is
no sound reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de novo, would
not have found that reasoning process persuasive.” AAAA Ents., Inc. v.
River Place Community Urban Redevelopment, Corp., 50 Ohio St.3d 157,
161, 553 N.E.2d 597 (1990).
Wilkes v. Wilkes, 2d Dist. Montgomery No. 29456, 2022-Ohio-3080, ¶ 11.
{¶ 75} Evid.R. 702 governs testimony by experts and provides:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the knowledge
or experience possessed by lay persons or dispels a misconception
common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the
-34-
testimony;
(C) The witness' testimony is based on reliable scientific, technical, or
other specialized information. To the extent that the testimony reports the
result of a procedure, test, or experiment, the testimony is reliable only if all
of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is
objectively verifiable or is validly derived from widely accepted knowledge,
facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the
theory;
(3) The particular procedure, test, or experiment was conducted in a way
that will yield an accurate result.
{¶ 76} Evid.R. 701 governs opinion testimony by lay witnesses and states: “If the
witness is not testifying as an expert, the witness' testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of the witness' testimony
or the determination of a fact in issue.”
{¶ 77} We conclude that Blanton, 4th Dist. Adams No. 16CA1031, 2018-Ohio-
1275, which recognized licensed social workers as experts in interviewing abused
children and determining their truthfulness, is distinguishable. In that case, the Fourth
District determined as follows:
Whether a victim's statements are “consistent with” a sex crime is
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beyond the knowledge and experience possessed by lay persons.
Ordinary citizens in their everyday affairs do not typically interview,
evaluate, and analyze sex victims. See State v. Stowers, 81 Ohio St.3d
260, 262, 690 N.E.2d 881 (1998) (Internal quotations omitted.) (“Most jurors
would not be aware, in their everyday experiences, of how sexually abused
children might respond to abuse. * * * [T]he common experience of a juror
may represent a less-than-adequate foundation for assessing whether a
child has been sexually abused.”) Colliers [a social worker] provided the
jury with her professional insight to allow the jury to better assess, examine,
and scrutinize [the victim] J.S.'s statements about the incident, as well as
understand the overall evidence of the case and the issue of consent.
***
A review of the transcript reveals that Colliers is a licensed social
worker at the Mayerson Center, where she regularly conducts forensic
interviews of children victimized by sex crimes. She has been employed
in this capacity since 2005—specifically at the Mayerson Center since
2012—and has a Master's Degree in social work from the University of
Cincinnati. She estimated that, since 2005, she has conducted over 1,000
interviews of sexually-victimized children. Moreover, prior to Blanton's trial,
Colliers had testified as an expert witness in Ohio on two other occasions.
Given this record of specialized training and professional experience, we
conclude that Colliers did not lack the requisite qualifications under Evid.R.
-36-
702(B) to render an expert opinion. See State v. Barnes, 12th Dist. Brown
No. CA2010-06-009, 2011-Ohio-5226, ¶¶ 51-53 (social worker was
qualified expert in forensic interviewing where witness had master's degree,
interviewed over 800 children in alleged sexual abuse cases, and provided
prior expert testimony).
* * * In addition to J.S.'s statements, Colliers was able to observe
J.S.'s demeanor during the interview. She was also able to rely on her vast
experience interviewing victims of sexual abuse. Thus, we conclude that
Collier's opinion was supported by specialized information in addition to the
statements made by J.S. See State v. Coleman, 2016-Ohio-7335, 72
N.E.3d 1086, ¶ 29 (6th Dist.) (an expert may not base his or her opinion that
a child was sexually abused solely on the child's statements, but instead
must analyze the statements in conjunction with the physical evidence, the
expert's observations of the child's demeanor, or other indicators tending to
show the presence of sexual abuse); State v. Lawson, 4th Dist. Highland
No. 14CA5, 2015-Ohio-189, ¶ 21 (“During the interview [the expert] had the
opportunity to observe the children's behavior and speech patterns. Often
the physical reactions to questioning provide important clues to determining
whether the conduct alluded to in statements have a basis in fact.”).
***
While an expert witness may not testify as to the veracity of the
child's statements, State v. Boston, 46 Ohio St.3d 108, 545 N.E.3d 1220-37-
(1989), syllabus, the expert may offer testimony that provides “additional
support for the truth of the facts testified to by the [victim], or which assists
the fact finder in assessing the [victim's] veracity.” (Emphasis sic.) Stowers,
81 Ohio St.3d at 262-263, 690 N.E.2d 881. “Therefore, an expert in child
sexual abuse can testify as to his or her opinion on whether the child was
abused, but the expert may not testify as to the veracity of the child's
statements.” Coleman at ¶ 29.
Blanton at ¶ 50, 52-53, 55.
{¶ 78} King was not designated as an expert in childhood sexual abuse, and she
testified that she had not studied factors that indicate whether a child is truthful. She did
not have a master’s degree or testify to previous experiences of being qualified to provide
expert testimony. She testified that she was “informed * * * yesterday” that the conduct
that M.M. alleged constituted rape and not touching. King worked in a high school setting
for Samaritan Behavioral Health, and she testified that she received a referral for M.M.
from the guidance department. While King is a licensed social worker, her testimony
was not adduced in the context of attempting to help a jury/factfinder better understand
the characteristics of child sexual abuse in general. Her testimony was limited to her
interaction with M.M. and Mother, and she improperly bolstered M.M.’s credibility by
stating that she found M.M. to be credible. We see no abuse of discretion in the trial
court’s prohibiting King’s testimony as to whether M.M. was being truthful, as such a
determination was for the trier of fact to make.
{¶ 79} Finally, we note that R.C. 1.11 provides: “Remedial laws and all
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proceedings under them shall be liberally construed in order to promote their object and
assist the parties in obtaining justice. The rule of the common law that statutes in
derogation of the common law must be strictly construed has no application to remedial
laws * * *.” The trial court acknowledged that R.C. 3113.31 “not only addresses a
particular act but is to stop future abuse” and that it is remedial in nature. This portion of
Mother’s assignment of error lacks merit.
{¶ 80} Mother’s assignment of error is sustained in part and overruled in part.
Having found that Mother established, by a preponderance of the evidence, that M.M.
had been sexually abused by Father, an abuse of discretion in the denial of the civil
protection order is demonstrated.
{¶ 81} The judgment of the trial court is reversed, and the matter is remanded for
proceedings consistent with this opinion, with instructions to include appropriate
conditions in the protection order.
.............
TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Byron K. Bonar
Cara J. Williams
M.M. - Father
Hon. Stacy M. Wall