IN RE: S.L., ABUSED AND DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]; IN RE: R.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]; IN RE: G.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]; IN RE: B.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]; IN RE: L.L., ABUSED AND DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]; IN RE: S.L., ABUSED AND DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]; IN RE: R.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]; IN RE: G.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]; IN RE: B.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]; IN RE: L.L., ABUSED AND DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]
CASE 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, 8-17-37
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
March 26, 2018
[Cite as In re S.L., 2018-Ohio-1111.]
Appeals from Logan County Common Pleas Court Juvenile Division Trial Court Nos. 17 CS 26, 17 CS 27, 17 CS 28, 17 CS 29 and 17 CS 30
Judgments Affirmed in Cases 8-17-25 – 8-17-28 and 8-17-33 – 8-17-37 Judgment Affirmed in Part and Reversed in Part in Case No. 8-17-29 and Cause Remanded
APPEARANCES:
Alison Boggs for Appellant
Stacia L. Rapp for Appellee
{¶1} Appellant, Scott Lucius (“Scott“), appeals the judgment entries (of adjudication and disposition) of the Logan County Common Pleas Court, Juvenile Division, finding two of his children, S.L. and L.L., to be abused and dependent children, and finding his remaining children, G.L., B.L., and R.L., to be dependent.
Facts and Procedural History
{¶2} This matter involves the appeal of five juvenile court adjudications and dispositions, consolidated and heard as one case in the trial court. Thus, we have consolidated these matters in this Court. While this appeal concerns ten separate appeals (five adjudications and five dispositions), we will discuss their procedural histories together, as they are intertwined.
{¶3} Scott is the adoptive father of G.L. (DOB: 1/8/04), B.L. (DOB: 4/29/09), S.L. (DOB: 12/21/09), R.L. (DOB: 11/28/08) and L.L. (DOB: 10/15/13). On May 23, 2017, Logan County Children Services (“LCCS“) received a referral from an Indian Lake School official regarding the possible physical abuse of S.L. The abuse referral stems from S.L. missing school on May 22, 2017 due to injuries she received from being punished by Scott.
{¶4} When S.L. returned to school on May 23, 2017, a school official spoke with her and observed bruising on her arm and severe bruising on her back. S.L.
{¶5} After arresting Scott, Det. Brugler re-interviewed him at the Sheriff‘s office wherein Scott admitted that he had punished S.L. by hitting her with a belt. Scott admitted to Det. Brugler that it was possible that the bruising (on S.L.‘s back) was caused by his punishment.
{¶6} On May 24, 2017, LCCS filed five abuse and dependency complaints, with motions for the emergency temporary custody of the children, in the Logan County Juvenile Court. The complaints alleged S.L. to be abused and dependent and the remaining children to be dependent. That same day, the trial court granted
{¶7} However, on July 18, 2017, LCCS filed an amended complaint as to L.L., alleging L.L. to be an abused child in addition to the original allegation of dependency. The amended complaint was filed after Scott‘s oldest child, G.L., furnished pictures to the Logan County Sheriff‘s office that she had taken of L.L. after L.L. had been spanked and pinched by Scott.
{¶8} Ultimately, an adjudicatory hearing occurred in the trial court on August 4, 2017 for all five children wherein the trial court found S.L. and L.L. to be abused and dependent and R.L., B.L. and G.L. to be dependent children. A dispositional hearing was scheduled for all of the children in the trial court on August 17, 2017. At the dispositional hearing, the trial court continued its orders of temporary custody (of the children) to LCCS. (See August 22, 2017 judgment entry).
{¶9} Scott has appealed the adjudications and dispositional orders of the trial court for all five children (ten appeals) raising the following common assignments of error in each appeal for our review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT‘S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. APPELLEE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE MINOR CHILDREN WERE ABUSED AND/OR
ASSIGNMENT OF ERROR NO. II
THE CHILDREN‘S GUARDIAN AD LITEM FAILED TO PERFORM NECESSARY DUTIES PURSUANT TO
ASSIGNMENT OF ERROR NO. III
APPELLANT‘S COUNCIL [SIC] WAS INEFFECTIVE THEREBY PREJUDICING APPELLANT, RESULTING IN A DECISION THAT IS UNRELIABLE.
{¶10} At the outset, we find that on appeal Scott only addresses errors relative to the adjudications of the children, not the trial court‘s dispositional orders. Therefore, we will not consider the five appeals relative to the trial court‘s dispositional orders. (8-17-33, 8-17-34, 8-17-35, 8-17-36 and 8-17-37). (See generally, App.R. 12(A)).
First Assignment of Error
{¶11} In his first assignment of error, Scott argues that the trial court‘s determination that S.L. and L.L. are abused and dependent children and that G.L., R.L. and B.L. are dependent children was against the manifest weight of the evidence.
{¶12} In juvenile proceedings, we apply the criminal standard for reviewing manifest-weight challenges. In re Corey Children, 11th Dist. Geauga No. 2005-G-2649, 2006-Ohio-2013, ¶17. Under this standard, when reviewing a claim that a judgment was against the manifest weight of the evidence, an appellate court must review the entire record, weigh both the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that a new trial must be ordered. State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). “The discretionary powers to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶13} The role of the appellate court is limited to weighing the evidence introduced at trial and then determine whether the state carried its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The reviewing court must defer to the factual findings of the trier of fact as to the weight to be given the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967), at paragraph one of the syllabus. Furthermore, “[i]n an adjudicatory hearing regarding a claim of dependency, neglect and/or abuse, the
{¶14} “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ * * * and 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 G.C-O., 3d Dist. Seneca No. 13-12-56, 2013-Ohio-4974, citing In re C.B., 12th Dist. Butler Nos. CA2008-01-002, CA2008-01-0003, 2008-Ohio-5543, ¶ 10. The party seeking adjudication has the burden of establishing that a child is abused or neglected before the court may enter a finding of abuse or dependency. In re Stewart, 12th Dist. Clinton No. CA99-08-024, 2000 WL 290134 (2000). “Requiring the state to prove its case by clear and convincing evidence is part of the protection afforded to parents in abuse and dependency cases“. Id.
{¶15} “Once the clear and convincing standard has been met to the satisfaction of the [juvenile] court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof“. In re Kinney, 1st Dist. Hamilton No. C-020067, 2002-Ohio-2310, citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368. Judgments which are supported by some competent, credible evidence will not be reversed by a reviewing court as being against the manifest weight of the evidence. In re Mercer, 10th Dist. Franklin No. 04AP-422, 2005-Ohio-1845, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, syllabus.
Analysis
{¶16} In the cases before us, Scott‘s primary argument is that the trial court erred in finding that S.L. and L.L. are abused children. In relation to the record before us,
(A) * * *
(B) * * *
(C) Exhibits evidence of any physical or mental injury or death, inflicted other than by accidental means, or an injury or death which is at variance with the history given of it. Except as provided in division (D) of this section, a child exhibiting evidence of corporal punishment or other physical disciplinary measure by a parent, guardian, custodian, person having custody or control, or person in loco parentis of a child 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, guardian, or custodian, suffers physical or mental injury that harms or threatens to harm the child‘s health or welfare.”
{¶17} Therefore, in a case alleging abuse under paragraph C of
{¶18} It is further of note that Ohio law recognizes a parent‘s right to administer corporal punishment.
(B) No person shall do any of the following to a child under the age of eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
(1) Abuse the child;
(2) Torture or cruelly abuse the child;
(3) Administer corporal punishment or other physical disciplinary measure, or physically restrain 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;
(4) Repeatedly administer unwarranted disciplinary measures to the child, when there is a substantial risk that such conduct, if continued, will seriously impair or retard the child‘s mental health or development;
* * *
Abuse and Dependency of S.L.
{¶20} At the adjudicatory hearing the State of Ohio presented several witnesses, including Detective Mike Brugler (“Det. Brugler“) and Dr. Karla Hauersperger (“Dr. Hauersperger“) relative to S.L.‘s abuse. Scott called just one witness and chose not to testify on his own behalf.1
{¶21} Det. Brugler testified that he was contacted by Logan County Children Services regarding the suspected abuse of S.L. He stated that during his
{¶22} Dr. Hauersperger, a physician in the emergency department and urgent care unit with Nationwide Children‘s Hospital, testified that on May 23, 2017, S.L. was brought to the urgent care unit for a medical examination. Dr. Hauersperger testified that during the examination of S.L., she found “a confluence of bruising in the lower back, lower thoracic and lumbar area here, and then she had multiple linear bruises that go up the back.” (Tr. 170-171). Dr. Hauersperger further testified that S.L.‘s bruises were the result of “the striking of the skin with some sort of straight edge” and would not have been caused by S.L. falling out of bed. Dr. Hauersperger diagnosed S.L. with child physical abuse, otherwise known as non-accidental
{¶23} The record contains competent and credible evidence that Scott struck (then) seven-year-old S.L. multiple times with a belt. Photographs admitted into evidence (Exhibits 4-10) taken two days after the incident revealed the presence of multiple bruises and linear marks on S.L.‘s back and left arm. Even if Scott was trying to strike S.L. on her buttocks to punish her, he, without question, missed that mark, causing concerning bruises and marks on S.L.
{¶24} Scott argues that he was administering corporal punishment to S.L. To that argument, the trial court found as follows:
“The Court finds that when you started with chores being punishment that when this wasn‘t working to your satisfaction that instead of continuing with hands or whatever and using more progressive steps you went straight to using a belt, and although corporal punishment in Ohio is legal, it is designed to be done in such a fashion that you wait and do it when everybody is cool, calm, and collected; it‘s used in a reasonable manner that does not leave marks or injuries on the child.
So, it is clear to the Court and the Court is convinced that based upon the pictures and testimony of the witnesses that this went far beyond of [sic] corporal punishment and it meets definition of abuse in this type of action. The Court finds that the abuse occurred because these were not accidental means. The doctor told us that she made the finding, it was her medical opinion that it was physical abuse not by accidental means. And
you cannot hang your hat on this was acceptable corporal punishment. It was not.”
(Tr. 207- 208).
{¶25} Thus, for Scott‘s argument to succeed, (as to reasonable corporal punishment of S.L.) he must show that his punishment was not excessive under the totality of the circumstances (i.e. ”Hart analysis“) and that he did not create a substantial risk of serious physical harm to S.L.
{¶26}
{¶27} “Discipline methods on a child which leave recognizable bruising and cause pain which lasts beyond the time immediately following an altercation between parent and the child may establish a finding of substantial risk of serious harm.” In re Kristen V., 6th Dist. Ottawa No. OT-07-031, 2008-Ohio-2994, ¶ 69. (Emphasis added).
{¶28} In the record before us, we find competent and credible evidence to support that Scott‘s conduct created a substantial risk of serious physical harm to S.L. under the totality of the circumstances and evidence presented. The State
{¶29} Moreover, under the totality of the evidence, we find no error with the trial court‘s determination that the State met its burden of clear and convincing evidence that S.L. was abused. See Matter of Wilson Children, 5th Dist. Stark No. 1994CA00161, 1995 WL 156326 (evidence, including admission that the parent hit the child on lower back with a belt, leaving marks on stomach and back, was sufficient to support courts’ finding that, because of parent‘s actions, child suffered physical injury that harmed or threatened to harm the child‘s health or welfare); State v. Miller, 1st Dist. Hamilton No. C-990166, 2000 WL 216632 (evidence supported finding that defendant‘s actions, including bruises from striking the child with a belt, constituted abuse, i.e. “any act which causes physical or mental injury that harms or threatens to harm the child‘s health or welfare“). Here, we find the
{¶30} Accordingly, Scott‘s first assignment of error, as it pertains to S.L., is not well taken.
Abuse and Dependency of L.L.
{¶31} As to the evidence offered to prove L.L. to be an abused and dependent child, the State called G.L., the 13-year-old sister of L.L., to testify. G.L. testified that on one particular occasion, L.L., age 3, had made a “mess” while attempting to go to the bathroom by himself. G.L. testified that after the incident, Scott told her to give L.L. a bath and clean him up. While bathing him, G.L. noticed red marks on L.L.‘s back (from being spanked with a belt) and red marks on his chest, which she claimed were from Scott pinching him. G.L. took photographs of the marks (on L.L.) with her iPad.
{¶32} The State also offered the testimony of Det. Brugler relative to L.L.‘s abuse. Det. Brugler testified that on July 13, 2017 Heather Shelt, the children‘s foster parent, brought G.L. into the Sheriff‘s office along with her (G.L.‘s) iPad. Based upon the photographs (on G.L.‘s iPad) revealing marks on L.L. and due to
{¶33} As to L.L, the trial court, in its judgment entry of adjudication, states “it is not appropriate to discipline a three-year-old because he wet himself“. However, even though the trial court engaged in a ”Hart analysis” to determine that L.L.‘s punishment was excessive, the record is void of any evidence supporting that L.L.‘s injuries amounted to “serious physical harm” as set forth under
{¶34} As we noted above, in a case charging abuse under
{¶35} Moreover, despite our agreement with the trial court that Scott‘s punishment of L.L. was excessive, we find the evidence of serious physical harm in
{¶36} Accordingly, the trial court erred in finding L.L. to be an abused child. Thus, we reverse and vacate the trial court‘s abuse adjudication of L.L.
Dependency of G.L., R.L. and B.L.
{¶37} The complaints filed by the State alleged that R.L., G.L., and B.L. were dependent pursuant to
“Whose condition or environment is such as to warrant the state, in the interest of the child, in assuming the child‘s guardianship”
An adjudication under
{¶38} The record reflects that Scott was arrested by Det. Brugler for child endangering relative to the injuries suffered by S.L. Upon Scott‘s arrest, LCCS caseworker Pratt commenced the process to obtain emergency custody of the children since Scott was the only parent of the children. The trial court, in its entry granting LCCS‘s request for temporary custody of the children, determined:
“that the removal of the Children from the custody of their Father, and the placement of the Minor Children with Logan County Children Services is necessary to prevent immediate or threatened physical or emotional harm to the Children“. (Doc 2). (Emphasis added).
{¶39} At the adjudicatory hearing, the trial court received evidence from G.L., Pratt and Det. Brugler as to the condition and environment of Scott‘s home on the issue of whether G.L., R.L. and B.L. were dependent children. As to the environment of Scott‘s home, G.L., age 13, testified that in the mornings, she would ready the girls (R.L., S.L. and B.L.) for school and get them on the bus while Scott and Walt watched t.v. in their bedroom. (Tr. 17). She further testified that the kids did a large portion of the housework. (Tr. 17-18). G.L. also testified that all the girls regularly got spanked with a belt (15 – 20 times per spanking) by either Scott or Walt. (Tr. 21). She further stated that they would frequently have bruising from the spankings. (Tr. 27).
{¶41} And finally, Det. Brugler confirmed that not only was Scott arrested for and indicted on a felony child endangering charge, but Walt, Scott‘s husband, was also indicted for child endangering. (Tr. 157).
{¶42} Thus, under the evidence presented, the children‘s home environment was permeated with excessive punishments on the children; unmotivated adults as to assisting the children with their basic needs; and two adults under indictment for felony child endangerment. As such, under the evidence adduced at trial, the State met its burden that all of the children were dependent pursuant to
{¶43} Accordingly, we overrule Scott‘s first assignment of error.
Second Assignment of Error
{¶44} In his second assignment of error, Scott claims that the guardian-ad-litem failed to perform necessary duties pursuant to
Standard of Review
{¶45} In reviewing the record, Scott failed to object to the actions and performance of the guardian ad litem at trial. As a result, Scott has failed to preserve this error for appeal. “It is well established that if a party fails to object at the trial court level, that party waives all but plain error“. In re L.L., 3d Dist. Logan Nos. 8-14-25, 8-14-26, 8-14-27, 2015-Ohio-2739, ¶ 51, quoting In re M.R., 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶ 84.
{¶46} In Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997-Ohio-401, addressing the applicability of the plain error doctrine to appeals of civil cases, the Supreme Court of Ohio stated:
“In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Id., at the syllabus.
Analysis
{¶47} Under this assignment of error, Scott fails to argue plain error. “““[T]his court will not sua sponte undertake a plain-error analysis if [an appellant] fails to do so.“” Id., quoting Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-Ohio-2577, ¶ 70, quoting McMaster v. Akron Health Dept., Housing Div., 189 Ohio App.3d 222, 2010-Ohio-3851, ¶ 20. Therefore, we need not address Scott‘s argument and accordingly, this assignment of error is not well taken and overruled.
Third Assignment of Error
{¶48} In Scott‘s third assignment of error, he claims that his trial counsel was ineffective thereby prejudicing him, resulting in a decision that was unreliable. Specifically, Scott argues that trial counsel did not know that hearsay was not permitted in an adjudicatory hearing where there are allegations of abuse, neglect and dependency.
Standard of Review
{¶49} To establish ineffective assistance of counsel, a defendant must show deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation; and prejudice – a reasonable probability that but for counsel‘s error, the proceedings result would have been different. In re E.C., 3d Dist. Defiance No. 4-15-08, 2015-Ohio-4807, citing Strickland v. Washington, 466 U.S. 668, 687-688 (1984).
Analysis
{¶50} In support of this assignment of error Scott argues that his trial counsel 1) failed to object to hearsay statements made by G.L. at trial; and 2) failed to call the children‘s family physician as a witness.
{¶51} Relative to Scott‘s hearsay argument, he directs us to eight (8) instances in the trial transcript wherein trial counsel failed to object to hearsay.3 We note at the outset that “the failure to make objections is not alone enough to sustain a claim of ineffective assistance of counsel“. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2185, ¶ 103.
{¶52} Scott argues that the transcript contains “numerous hearsay statements of G.L.” which allowed “Appellee to present damaging evidence through one child instead of calling the available child to testify“. In our review of the transcript, only pages 29, 40, 46, 50, 92, 102 contain G.L.‘s testimony. Thus, because we find no testimony of G.L. on pages 127 and 158, we need not consider such passages in light of Scott‘s argument.
{¶53} In reviewing G.L.‘s testimony on pages 29 and 40, we find no hearsay, only innocuous references (by G.L.) as to how the children in Scott‘s home got into trouble. As to the testimony (of G.L.) on pages 46 and 102 of the transcript, we find that the purported hearsay statements (albeit not clearly referenced to us by Scott) involve the reactions of the children to visitation (with Scott) since being removed from Scott by the trial court on May 24. We find the children‘s reactions (to visitation) not to be statements offered to prove whether or not the children were
{¶54} As to the purported hearsay on page 50 of the transcript, G.L. testified (that S.L. and B.L. stated) “that they were sick and would stay home“. However, S.L. and B.L.‘s statements bear no reference to the abuse or dependency allegations in question because their statements were in reference to their missing of school the previous school year. Thus, that statement is not objectionable hearsay.
{¶55} And finally, on pages 92-93 of the transcript, G.L.‘s testimony “they told me that they were crying” refers to present sense impressions of her classmates in relation to seeing her (G.L.‘s) bruises. Once again, this statement is not hearsay because “statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness” are hearsay exceptions under Evid.R. 803(1). We also find this statement is not hearsay.
{¶56} Thus, as it relates to G.L.‘s testimony, Scott has not sustained his burden in proving that trial counsel‘s failure to object to various hearsay statements resulted in ineffective assistance of counsel.
Failure to Call Witness
{¶57} In regards to Scott‘s claim that his trial counsel was ineffective for failure to call the children‘s family physician, we find such argument
{¶58} Accordingly, having found no merit in Scott‘s arguments under this assignment of error, we overrule Scott‘s third assignment of error.
{¶59} In sum, as to S.L., G.L., B.L. and R.L., having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we overrule Appellant‘s first, second and third assignments of error and affirm the judgments of the trial court in cases 8-17-25, 8-17-26, 8-17-27, 8-17-28, 8-17-33, 8-17-34, 8-17-35, and 8-17-36.
{¶60} And as to L.L., having found error prejudicial to the Appellant herein in the particulars assigned and argued, we sustain Appellant‘s first assignment of error only as to the judgment entry of the adjudication of abuse and reverse such
{¶61} Further, as to L.L., we overrule Appellant‘s first assignment of error as to L.L.‘s adjudication of dependency (case 8-17-37) and overrule Appellant‘s second and third assignments of error and affirm the judgment of the trial court in cases 8-17-29 and 8-17-37.
Judgments Affirmed in cases 8-17-25 thru 8-17-28 and 8-17-33 thru 8-17-37
Judgment Affirmed in Part and Reversed in Part and Cause Remanded in case 8-17-29
WILLAMOWSKI, P.J. and PRESTON, J., concur.
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