In re I. W.
Dated: May 27, 2008
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
WHITMORE, Judge.
{¶1} Appellant, F. W. (“Father“), appeals from a judgment denying his objections to an order of disposition of the Wayne County Court of Common Pleas, Juvenile Division, that adopted a case plan аnd continued a no-contact order prohibiting him from having any contact with his children, I.W. and S.W. This Court affirms.
I
{¶2} During an interview conducted by Wayne County Children Services Board (“WCCSB“) intake worker Natasha Siebert at the Children‘s Advocacy
{¶3} The court held an adjudicatory hearing on April 18, 2007. At adjudication, WCCSB called Natasha Siebert and Mary Ann Belanger to testify. Siebert testified that during her interview with S.W. on Nоvember 3, 2006, S.W. disclosed that her father had inappropriately touched her. The court admitted S.W.‘s statements pursuant to the hearsay exception for statements made for purposes of medical diagnosis or treatment.
{¶4} The court held a dispositional hearing on May 1, 2007. As a result of this hearing, the court adopted the WCCSB case plan, continued the no-contact order, placed I.W. and S.W. under protective supervision of the WCCSB, gave legal custody of the children to their mother, and designаted her as the residential parent.
{¶5} On May 10, 2007, Father filed objections to the magistrate‘s decision, claiming that the adjudication was based on inadmissible hearsay and that without the admission of S.W.‘s statements, there was insufficient evidence to support a finding of dependency. The court overruled the objections on July 3, 2007, finding that S.W.‘s statements wеre admissible pursuant to
{¶6} Father has timely appealed, raising two assignments of error for our review. For ease of analysis, Father‘s assignments of error are combined.
II
Assignment of Error Number One
“THE TRIAL COURT ERRED BY ADMITTING OUT-OF COURT STATEMENTS OF THE MINOR CHILD S.W. WITHOUT FIRST HOLDING A COMPETENCY HEARING TO DETERMINE WHETHER THE MINOR CHILD S.W. WAS COMPETENT.”
“THE TRIAL COURT ERRED BY ADMITTING THE OUT-OF COURT STATEMENTS OF THE MINOR CHILD S.W. WHEN SUCH STATEMENTS WERE HEARSAY, AND BY FINDING BOTH S.W. AND I.W. TO BE DEPENDENT CHILDREN WHEN THERE WAS NO OTHER EVIDENCE OFFERED TO PROVE EITHER S.W. OR I.W. WERE DEPENDENT CHILDREN.”
{¶7} In his assignments of error, Father argues that the trial court erred by admitting S.W.‘s out-of-court statements into evidence without a judicial determination of S.W.‘s competency and that the court erred in admitting the statements pursuant to the hearsay exception for statements made for purposes of medical diagnosis or treatment. Further, Father contends that, absent S.W.‘s statements, there was no evidеnce to find I.W. and S.W. were dependent children. We disagree.
{¶8} A trial court possesses broad discretion with respect to the admission of evidence. State v. Maurer (1984), 15 Ohio St.3d 239, 265. An appellate court will not disturb evidentiary rulings absent an abuse of discretion “that produced a material prejudice” to the aggrieved party. State v. Roberts, 9th Dist. No. 21532, 2004-Ohio-962, at ¶14. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621.
{¶10} In reliance on State v. Said (1994), 71 Ohio St.3d 473, Father argues that the Supreme Court of Ohio determined that a competency hearing is required under
{¶11} There are fundamental differences between
{¶12} Father cites State v. Wallick (2003), 5th Dist. No. 2003AP020018, 2003-Ohio-4534, to support the proposition that an
{¶13} In explaining the rationale for the presumption of reliability in the medical hearsay exception, Muttart first points to the “selfish-motive doctrine.” Id. at ¶34. Muttart describes the selfish-motive doctrine as “the belief that the declarant is motivated to speak truthfully to a physician because of the patient‘s self-interest in obtaining an accurate diagnosis and effective treatment.” Id. However, Muttart recognizes the limitations of relying upon the selfish-motive doctrine when dealing with young children:
“‘Of course, none of the courts pause to indicate how *** children of very tender years can be considered to be giving a medical professional specific symptoms and complaints to assist in diagnosis or treatment. The reason is obvious - as is the dilemma. The reason is that we really know that such a young child is not giving the doctor the information for the purposes required by
Evid.R. 803(4) . More than likely, the child does not even want to be seeing the doctor!‘” Id. at ¶35, f.n. 3, quoting State v. Boston (1989), 46 Ohio St.3d 108, 122, overruled on other grounds.
{¶15} Next, we will consider the question of whether thе trial court abused its discretion by admitting S.W.‘s out-of-court statements pursuant to the
“The trial court‘s considerations of the purpose of the child‘s statements will depend on the facts of the particular case. At a minimum, we believe that a nonexhaustive list of considerations includes (1) whether the child was questioned in a leading or suggestive manner; (2) whether there is a motive to fabricate, such as a pending legal proceeding such as a ‘bitter custody battle;’ and (3) whether the child understood the need to tell the physician the truth. In addition, the court may be guided by the age of the child making the statements, which might suggest the absence or presence of an ability to fabricate, and the consistency of her declarations. In addition, the court should be aware of the manner in which a physician or other medical provider elicited or pursued a disclosure
of abuse by a child victim, as shown by evidenсe of the proper protocol for interviewing children alleging sexual abuse.” (Internal citations omitted.) Id. at ¶49.
{¶16} In the instant case, the trial court noted that during her November 3, 2006, interview with S.W. at the Wooster Community Hospital CAC unit, Siebert used the “touch survey protocol” to encourage S.W. to discuss her family situation. During this interview, S.W. divulged that her father had tоuched her private area underneath her clothing. Siebert testified that her meeting with S.W. was the first step in a medical diagnosis according to the protocol of the CAC. The process continued six days later when Belanger, a registered nurse, performed a medical examination on S.W. at the CAC. Dr. Steiner then reviewed Belangеr‘s notes and procedures, although he did not examine S.W. himself.
{¶17} Further, the trial court cited In re A.R. & L.B., 9th Dist. No. 22836, 2006-Ohio-1548, and State v. Major, 9th Dist. No. 21662, 2004-Ohio-1423, for the proposition that statements made to social workers for the purpose of facilitating medical treatment are admissible under the medical exception to hearsay. The court noted that the fact that S.W. made her statements to Siebert, a social worker, is not grounds for excluding them from the hearsay medical exception.
{¶18} The trial court found that both caseworker Siebert and nurse Belanger were properly qualified to testify as to statements made by S.W. Further, the trial court found that S.W. made her statements involving sexual touching to
{¶19} There is nothing in the record to suggest that the trial court erred in making these findings. Siebert elicited S.W.‘s statements using standard CAC protocol. She began the interview with some age appropriate exercises to assess S.W.‘s understanding of the need to tell the truth. She determined that S.W. understood the truth and would tell the truth. While Father suggested in his testimony that there may have been a motive for others to coach S.W. not to tell the truth, we are not persuaded that S.W.‘s statements were tainted. Siebert continued the interview by using stick figure diagrams to elicit information from S.W. regarding the types of touching S.W. expеrienced and who touched her in various ways. During the course of the diagramming, S.W. revealed the inappropriate sexual touching. There is no indication that Siebert‘s interview questions were made in a leading or suggestive manner.
{¶20} Further, S.W. made the statements involving sexual touching to Siebert and other statements to Belanger in the context of medical diagnosis. While Belanger characterized her examination of S.W. as a “medical forensic exam,” she also indicated that this was a thorough head to toe trauma exam and that the results would be reviewed by Dr. Steiner to determine if further treatment was warranted.
{¶22} Applying the totality of the circumstances test, we find the trial court did not abuse its discretion in finding that S.W.‘s hearsay statements were made for purposes of medical diagnosis and thus sufficiently reliable to be admitted through the testimony of Siebert and Belanger.
{¶23} As a final matter, Father argues that absent the admission of S.W.‘s out-of-court statements, there is no evidence to support a finding that I.W. and S.W. were dependent children pursuant to
{¶24} Father‘s first and second assignments of error are overruled.
{¶25} Father‘s assignments of error are overruled. The judgment of the Wayne County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, 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 judgmеnt, 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(E). 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 Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, J.
CONCUR
APPEARANCES:
JOHN E. JOHNSON, JR., Attorney at Law. for Appellant.
WILLIAM LANDERS, Attorney at Law, for Appellee.
CONRAD OLSON, Guardian AD Litem.
MARTIN FRANTZ, Prosecuting Attorney, and JEREMY M. SZUCS, Assistant Prosecuting Attorney, for Appellee.