In re N.C.
Dated: September 2, 2009
WHITMORE, Judge.
{¶1} Appellant/Cross-Appellee, the Summit County Children Services Board (“CSB“), appeals from the decision of the Summit County Court of Common Pleas, Juvenile Division, which found that CSB failed to prove by clear and convincing evidence that N.C. and G.C. are dependent, neglected, or abused children. Appellees/Cross-Appellants, Michael C. (“Father“) and Marjorie C. (“Mother“), cross-appeal on other grounds. This Court affirms.
I
{¶2} On October 23, 2008, CSB filed complaints in the Summit County Juvenile Court seeking the removal of Father from his children‘s home, a no contact order, and protective supervision on the basis that Father‘s children, N.C. and G.C., were abused, neglected, and dependent. According to CSB, Father exposed N.C., born June 6, 2002, and G.C., born October 10, 1999, to profane and sexually graphic language in podcasts that Father created and posted on
{¶3} Subsequently, the magistrate conducted a shelter care hearing and ordered that Dr. Michael Esson conduct a psychological evaluation of the children. On November 14, 2008, the magistrate terminated the no contact order, indicating that he had received Dr. Esson‘s report and had spoken with Dr. Esson by telephone. On November 24, 2008, CSB filed a motion for a second expert opinion. CSB alleged that Mother and Father had chosen Dr. Esson and CSB was not afforded an opportunity to provide Dr. Esson with “collateral information” before he conducted the children‘s evaluation. The record does not indicate the nature of the “collateral information.”
{¶5} After receiving evidence at the adjudication hearing, the trial court vacated its December 1, 2008 decision ordering a second evaluation for the children. The trial court determined that, despite the testimony presented at the hearing and the content of the podcasts, CSB failed to prove that N.C. and G.C. were dependent, neglected, or abused children. The trial court journalized its order, dismissing the action, on January 6, 2009.
{¶6} CSB now appeals from the trial court‘s order and raises two assignments of error for our review. Father and Mother cross-appeal and raise one cross-assignment of error.
II
Assignment of Error Number One
“THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE CHILDREN WERE NOT DEPENDENT, NEGLECTED, OR ABUSED AS DEFINED BY THE OHIO REVISED CODE AND ERRED IN DISMISSING CBS‘S (sic) COMPLAINT.”
{¶7} In its first assignment of error, CSB argues that the trial court erred in dismissing its complaint on the basis that N.C. and G.C. are not dependent, neglected, or abused children. We disagree.
{¶8}
“If the court at [an] adjudicatory hearing finds from clear and convincing evidence that [a] child is an abused, neglected, or dependent child, the court shall
proceed *** to hold a dispositional hearing and hear the evidence as to the proper disposition to be made ***. “If the court does not find the child to *** be an abused, neglected, [or] dependent *** child ***, it shall order that the case be dismissed[.]”
Clear and convincing evidence is that which will “produce in 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 (1985), 18 Ohio St.3d 361, 368, quoting Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. “Where the proof required must be clear and convincing, a reviewing court will examine the record to determine whether the trier of fact had sufficient evidence before it to satisfy the requisite degree of proof.” In re K.B., 9th Dist. No. 21365, 2003-Ohio-3784, at ¶13, quoting State v. Schiebel (1990), 55 Ohio St.3d 71, 74. “A reviewing court ‘should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court judge.‘” In re V.R., 9th Dist. No. 23527, 2008-Ohio-1457, at ¶16, quoting Schiebel, 55 Ohio St.3d at 74.
{¶9} “[A]n ‘abused child’ includes any child who *** [b]ecause of the acts of his parents, *** suffers physical or mental injury that harms or threatens to harm [his] health or welfare.”
“(2) Who lacks adequate parental care because of the faults or habits of the child‘s parents, *** [or]
“(3) Whose parents *** neglect[] the child or refuse[] to provide proper or necessary subsistence, education, medical or surgical care or treatment, or other care necessary for the child‘s health, morals, or well being[.]”
R.C. 2151.03(A) .
“[A] ‘dependent child’ means any child *** [w]hose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child‘s guardianship[.]”
{¶11} Detective Daniel Lance testified that he began investigating this case after receiving information that Father had engaged N.C. and G.C. in sexually graphic and otherwise profane conversations, recorded those conversations, and broadcast them as podcast episodes on his website. After listening to several of the podcasts, Detective Lance interviewed Mother. Mother informed Detective Lance that she had not listened to the podcasts involving N.C. and G.C. Detective Lance testified that when he began describing the podcasts to Mother she became “very upset, crying, and at that point begged me to stop due to the content” and because she did not want the children to hear their discussion. He further testified that Mother defended Father and said “that he was great with the kids and that it was just his way of sharing time with them.” As for Father, he told Detective Lance that he “consider[ed] himself a progressive parent and *** fe[lt] [it was] necessary to teach his children about the terminology and the issues that he brings up in these podcasts.” Father indicated that he did not believe that he had done anything wrong.
{¶12} Detective Lance admitted that although he heard N.C.‘s and G.C.‘s voices on the podcasts, there was no evidence that N.C. and G.C. ever saw their Father‘s website or listened to
{¶13} Annette Lucarelli, an intake social worker with CSB, testified that she met with Mother and the children after CSB initiated its investigation in this matter. Lucarelli indicated that Mother had a loving, close relationship with N.C. and G.C. Lucarelli found N.C. to be “very mature.” N.C. described the podcasts as “a fun activity” that he shared with Father, but also “said that there were some bad words that *** he was embarrassed to say [and] *** would rather not repeat[.]” Lucarelli described G.C. as “pretty calm and pretty collected.” G.C. indicated to Lucarelli that her Father‘s podcasts sometimes made her feel uncomfortable. According to Lucarelli, both N.C. and G.C. seemed to be “pretty intelligent children.” Lucarelli testified that it appeared to her N.C. and G.C. “would not be inhibited to tell if something had happened to them *** [because] they seem[ed] to be pretty aware.”
{¶14} Dr. Michael Esson, a clinical psychologist, conducted N.C. and G.C.‘s psychological evaluation. Dr. Esson testified that he met with N.C. and G.C. and looked for responses from them that might indicate some type of physical, emotional, or sexual abuse. He testified that N.C. and G.C. appeared “outgoing, well dressed, clean, no bruises, interacted well with each other, communicated well with me, [and] seemed to be of average or above-average intelligence.” According to Dr. Esson, N.C. and G.C. understood “good touches” and “bad touches” and that some of the verbiage from Father‘s podcasts was not to be used around friends or others.
{¶16} Contrary to CSB‘s argument, it did not present clear and convincing evidence sufficient to support a finding of abuse, dependency, or neglect and neither this Court or the trial court is permitted to indulge in speculation otherwise. While everyone who testified at the adjudication hearing expressed concern about N.C. and G.C.‘s exposure to the content of Father‘s podcasts, no one testified that N.C. and G.C. had actually suffered any harm (mental, emotional, psychological, or otherwise) as a result. Any reasonable reviewer of Father‘s podcasts would agree with Dr. Esson‘s conclusion that they amount to extremely poor judgment and decision-making on Father‘s part and that the children and Mother were very uncomfortable
Assignment of Error Number Two
“THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING CSB‘S MOTION FOR A SECOND EXPERT OPINION AND FAILING TO ADDRESS CSB‘S SHOW CAUSE MOTION PRIOR TO THE START OF THE ADJUDICATION.”
{¶17} In its second assignment of error, CSB argues that the trial court abused its discretion by refusing CSB‘s request to have a second expert evaluate N.C. and G.C. We disagree.
{¶18} A trial court has the discretion to admit or exclude evidence and to determine whether expert testimony is warranted. Hudkins v. Stratos, 9th Dist. No. 22188, 2005-Ohio-2155, at ¶10-12; Harrold v. Collier, 9th Dist. No. 02CA0005, 2002-Ohio-3864, at ¶18. Accordingly, this Court reviews a trial court‘s decision to admit or exclude evidence for an abuse of discretion. In re J.F., 9th Dist. No. 24490, 2009-Ohio-1867, at ¶7. An abuse of discretion is not merely an error of law or judgment, but means that the trial court‘s attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶19} The trial court initially granted CSB‘s motion to obtain a second expert evaluation for N.C. and G.C. in light of CSB‘s assertions that: (1) Dr. Esson had been “chosen by the parents“; (2) CSB had not had any “opportunity to provide Dr. Esson with collateral information prior to his evaluation“; and (3) it was unclear whether Dr. Esson had reviewed the podcasts before interviewing the children. After the adjudication hearing, however, the court vacated its
{¶20} Father‘s counsel indicated at the adjudication hearing that the magistrate, not Father or Mother, had selected Dr. Esson to evaluate the children. Moreover, Dr. Esson testified as follows:
“[CSB]: And at some point fairly recently you were contacted I believe by [Father and Mother], correct?
“[DR. ESSON]: I was contacted by Magistrate Vuillemin.
“[CSB]: Okay, and what was your understanding of the purpose of your involvement in this case?
“[DR. ESSON]: He called and told me that there was a case involving some podcasts and two children and that the podcasts were considered inappropriate. *** [H]e asked me if I would be willing to evaluate the children for possible harm that resulted from the podcasts.
“[CSB]: Prior to that date, did you have any connection to either [Father] or [Mother]?
“[DR. ESSON]: No. I had never met them.
“[CSB]: And so how was an appointment scheduled then with you?
“[DR. ESSON]: The magistrate contacted [Father‘s] attorney, and then I was contacted and set up an appointment.”
Dr. Esson was apparently chosen at the shelter care hearing before the magistrate. No record of the hearing‘s content exists, however, because the hearing was not recorded and CSB never sought to create a record of the hearing‘s content through alternate means. See, e.g.,
{¶21} Although CSB filed a show cause motion to initiate contempt proceedings against Father and Mother several weeks before the adjudication hearing occurred, CSB took no further action to ensure that a second expert evaluation took place before the hearing. Nor did CSB insist upon a continuance at the hearing. See Fugo v. Fugo (Jan. 8, 1986), 9th Dist. No. 12140, at *2 (“[I]f plaintiff needed more time to prepare his case, his remedy was to request a continuance.“) Instead, CSB called Dr. Esson as its own witness and agreed with the court‘s determination that the court would decide upon the necessity of an additional expert after receiving the evidence at the hearing. That evidence reflected the following: (1) the magistrate contacted Dr. Esson to perform N.C. and G.C.‘s evaluation; (2) Dr. Esson interviewed N.C. and G.C. and based his evaluation on risk-factor criteria, which he indicated were approved by the Medina County Court system; and (3) Dr. Esson listened to several of the podcasts to aid in his psychological evaluation of the children. Accordingly, the evidence adduced at the hearing arguably satisfied all of the concerns CSB raised when it initially sought the appointment of a second expert. When the parties reconvened after the adjudication hearing, the trial court noted the foregoing and concluded that the children “would benefit more from therapy than they would from another assessment.” As such, the trial court vacated its initial order that provided for a second psychological evaluation. Based on all of the foregoing, we cannot conclude that this constituted an abuse of discretion. CSB‘s second assignment of error is overruled.
Cross-Assignment of Error
“THE TRIAL COURT ERRED IN REPEATEDLY AND SUMMARILY GRANTING MOTIONS FILED BY THE CROSS-APPELLEE WITHOUT NOTICE OR HEARING BEING AFFORDED TO CROSS-APPELLANTS,
THUS DENYING TO THEM THEIR DUE PROCESS RIGHTS IN VIOLATION OF BOTH STATE AND FEDERAL CONSTITUTIONS.”
{¶22} In their sole cross-assignment of error, Father and Mother argue that the trial court offended their due process rights by not affording them opportunities to respond to CSB‘s motions. Specifically, Father and Mother argue that the trial court repeatedly “rubber stamp[ed]” CSB‘s motions before they had notice of or a chance to respond to them.
{¶23} Initially, we note that Father and Mother do not identify the motions to which they claim they were not afforded the opportunity to respond. See
III
{¶24} CSB‘s assignments of error are overruled. Father and Mother‘s cross-assignment of error is overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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
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.
Costs taxed to Appellant/Cross-Appellee.
BETH WHITMORE
FOR THE COURT
DICKINSON, P. J.
BELFANCE, J.
CONCUR
APPEARANCES:
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellant/Cross-Appellee.
EDMUND M. SAWAN, Attorney at Law, for Appellee/Cross-Appellant.
ALEXANDRA HULL, Attorney at Law, for Appellee/Cross-Appellant.