[Cite as In re. S.L., 2018-Ohio-1111.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY


IN RE:
                                               CASE NO 8-17-25
        S.L.,
ABUSED AND DEPENDENT CHILD.
                                               OPINION
[SCOTT LUCIUS - APPELLANT]


IN RE:
                                               CASE NO 8-17-26
        R.L.,
DEPENDENT CHILD.
                                               OPINION
[SCOTT LUCIUS - APPELLANT]


IN RE:
                                               CASE NO 8-17-27
        G.L.,
DEPENDENT CHILD.
                                               OPINION
[SCOTT LUCIUS - APPELLANT]


IN RE:
                                               CASE NO 8-17-28
        B.L.,
DEPENDENT CHILD.
                                               OPINION
[SCOTT LUCIUS - APPELLANT]
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37




IN RE:
                                                CASE NO 8-17-29
      L.L.,
ABUSED AND DEPENDENT CHILD.
                                                OPINION
[SCOTT LUCIUS - APPELLANT]


IN RE:
                                                CASE NO 8-17-33
      S.L.,
ABUSED AND DEPENDENT CHILD.
                                                OPINION
[SCOTT LUCIUS - APPELLANT]


IN RE:
                                                CASE NO 8-17-34
      R.L.,
DEPENDENT CHILD.
                                                OPINION
[SCOTT LUCIUS - APPELLANT]


IN RE:
                                                CASE NO 8-17-35
      G.L.,
DEPENDENT CHILD.
                                                OPINION
[SCOTT LUCIUS - APPELLANT]




                                    -2-
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37




IN RE:
                                                  CASE NO 8-17-36
      B.L.,
DEPENDENT CHILD.
                                                  OPINION
[SCOTT LUCIUS - APPELLANT]


IN RE:
                                                  CASE NO 8-17-37
      L.L.,
ABUSED AND DEPENDENT CHILD.
                                                  OPINION
[SCOTT LUCIUS - APPELLANT]



            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

                     Date of Decision: March 26, 2018




APPEARANCES:

      Alison Boggs for Appellant

      Stacia L. Rapp for Appellee



                                    -3-
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37




ZIMMERMAN, J.

       {¶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.


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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


advised the school official that she was spanked with a belt (by Scott) a couple of

days prior. With that information, the school official immediately notified LCCS of

the child’s condition, which was received by Ryan Pratt (“Pratt”) intake supervisor

with LCCS. That same day, Pratt and Detective Mike Brugler (“Det. Brugler”), of

the Logan County Sheriff’s office, contacted Scott at his residence. Initially, Scott

advised Pratt that while he and his husband, Walt, do spank the children with a belt,

he suggested that S.L.’s bruises were a result of her falling out of bed. However,

after interviewing Scott, Walt and some of the children, Det. Brugler arrested Scott

for felony child endangering. (Tr. 157). Upon Scott’s arrest, Pratt contacted the

Logan County Prosecutor’s office seeking a temporary custody order of the five

children.

       {¶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




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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


LCCS’s motions for emergency temporary custody of the children. (Doc. 2). On

June 9, 2017, the trial court appointed a guardian ad litem on behalf of the children.

          {¶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

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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


       DEPENDENT AND THE TRIAL COURT INCORRECTLY
       INTERPRETED THE PERTINENT STATUTES AND THE
       APPLICATION TO THE FACTS OF THE CASE.

                        ASSIGNMENT OF ERROR NO. II

       THE CHILDREN’S GUARDIAN AD LITEM FAILED TO
       PERFORM NECESSARY DUTIES PURSUANT TO OHIO
       REVISED CODE SECTION 2151.281 AND SUPERINDENT
       [SIC] RULE 48, THEREBY NOT ACTING IN THE
       CHILDREN’S BEST INTEREST, TO APPELLANT’S
       DETRIMENT AND IN VIOLATION OF HIS DUE PROCESS.

                       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.



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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


                                  Standard of Review

       {¶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




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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


requisite burden of proof is by clear and convincing evidence”. In re Anthony, 11th

Dist. Ashtabula No. 2002-A-0096, 2003-Ohio-5712, citing Juv.R. 29(E)(4).

       {¶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




                                         -9-
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


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, R.C. 2151.031(C) and (D) defines an ‘abused child’ as “any child who:

       (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 R.C.

2151.031, the State of Ohio must prove, by clear and convincing evidence, that (1)

a child sustained physical or mental injury and (2) the injury was caused by non-

accidental means, or was at variance with the history given. With that in mind, Ohio

law has recognized that parents have a right of restraint over their children, and the

duty to correct and punish them for their misbehavior. In re Schuerman, 74 Ohio


                                         -10-
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


App.3d 528, 531 (1991).       Parents have the right to use reasonable physical

discipline, or corporal punishment, to prevent and punish a child’s misconduct.

State v. Hauenstein, 121 Ohio App.3d 511, 516, citing State v. Suchomski, 58 Ohio

St.3d 74, 75. The right of parents to administer reasonable corporal punishment is

deeply rooted in the history and traditions of this nation. See State v. Hoover, 5

Ohio App.3d 207, 211, quoting Quinn v. Nolan, 7 Dec.Rep 585, 586 (1879) (“From

the time of Solomon to the present, parents have had the right, in a proper manner

and to a proper degree, of inflicting corporal punishment upon their children * * *”).

       {¶18} It is further of note that Ohio law recognizes a parent’s right to

administer corporal punishment. R.C. 2919.22(B) provides in relevant part,

       (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;

            ***

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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


        {¶19} Whether parental discipline is “extreme or excessive” is determined in

light of the totality of the circumstances. Hauenstein, supra, citing State v. Hart,

110 Ohio App.3d 250. “In analyzing the totality of the circumstances, a court should

consider the following factors: (1) the child’s age; (2) the child’s behavior leading

up to the discipline; (3) the child’s response to prior non-corporal punishment; (4)

the location and severity of the punishment; and (5) the parent’s state of mind while

administering the punishment.” State v. Luke, 3d Dist. Union No. 14-10-26, 2011-

Ohio-4330, ¶22, citing In re J.L., 176 Ohio App.3d 186, 199, 2008-Ohio-1488

(citations omitted). This inquiry is necessary to protect and balance a parents’

fundamental right to raise and control their children and the state’s interest in the

protection and safety of children and in the reporting of child abuse. In re Horton,

10th Dist. Franklin No. 03AP-1181, 2004-Ohio-6249.

                                 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


1
 The record suggests that Scott chose not to testify due to the child endangering criminal charges pending
against him.

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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


investigation, he interviewed Scott and Walt. When Det. Brugler questioned (Scott)

about the bruising on S.L.’s back, Scott indicated that her injuries were most likely

caused as a result of her falling out of bed. (Tr. 145). However, during a second

interview with Det. Brugler, Scott acknowledged that the bruising of S.L. “could

have been caused by him hitting her with a belt”. (Id. at 150). Scott told Det.

Brugler that he had spanked S.L. with a leather belt, administering approximately 8

strikes, but stopped due to S.L.’s squirming. (Tr. 150). Scott further stated, during

his interview with Det. Brugler, that the day after the ‘spanking’, S.L. complained

of back pain. Scott also told Det. Brugler that S.L. laid on the couch all day with

ice on her back the day after his spanking and that he permitted her to stay home

from school on Monday (two days after the incident), due to the injury to her back.

       {¶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


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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


trauma. (Tr. 173). Dr. Hauersperger further testified that “[t]he location of the

bruises, being from up on the lower part of the chest wall and lower part of the back,

the - - these are where the kidneys sit, so depending on the strength of the strike,

there would be kidney injury”. Id.

       {¶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

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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


       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} R.C. 2901.01(A)(5)(e) defines “serious physical harm to a person” as

“[a]ny physical harm that involves acute pain of such duration as to result in

substantial suffering or that involves any degree of prolonged or intractable pain”.

R.C. 2901.01(A)(8) defines “substantial risk” as “a strong possibility, as contrasted

with a remote or significant possibility, that a certain result may occur or that certain

circumstances may exist”.

       {¶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

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introduced photographs of S.L.’s back revealing an excessive amount of bruising to

the 7-year old child. Dr. Hauersperger testified to the “multiple bruising” on S.L.’s

back and, that due to the location of the bruising, there was a possibility of injury to

S.L.’s kidneys. Further, Dr. Hauersperger diagnosed S.L.’s injury as “physical

abuse, non-accidental trauma”.       (Tr. 173).     The testimony of Det. Brugler

established that S.L. experienced pain for (at least) two days following the incident.

According to the record, Scott’s punishment incapacitated S.L. and resulted in Scott

deciding to keep her home from school ‘due to her back pain’.              As such, a

reasonable inference can be made that S.L.’s back pain was prolonged in nature.

       {¶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


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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


trial court’s “Hart analysis” (as to whether S.L.’s punishment was excessive) is

supported by competent and credible evidence that S.L. suffered acute pain of such

duration as to result in substantial suffering. As such, the trial court’s adjudications

(of S.L.) as an abused and dependent child were proper.

       {¶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




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the ongoing investigation of Scott’s alleged abuse, Det. Brugler contacted the

prosecutor.2

        {¶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 R.C.

2901.01(A)(5)(e).

        {¶34} As we noted above, in a case charging abuse under R.C. 2151.031(C),

the State must prove by clear and convincing evidence, that (1) the child sustained

physical or mental injury and (2) the injury was caused by non-accidental means, or

was at variance with the history given. And, R.C. 2901.01(A)(5)(e) defines “serious

physical harm to a person” as “[a]ny physical harm that involves acute pain of such

duration as to result in substantial suffering or that involves any degree of prolonged

or intractable pain”. R.C. 2901.01(A)(8) defines “substantial risk” as “a strong

possibility, as contrasted with a remote or significant possibility, that a certain result

may occur or that certain circumstances may exist”.

        {¶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


2
 The record suggests that Scott was also indicted by the Logan County Grand Jury for child endangering
with regards to L.L.

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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


the record to be non-existent. Thus, upon our review of the record and the evidence

provided, we cannot conclude that the punishment inflicted upon L.L. caused a

substantial risk of serious physical harm. Thus, the State failed in its burden under

R.C. 2151.031(C) to prove that L.L. was an abused child. Nonetheless, we do find

that the excessive punishment of L.L. by Scott supports the trial court’s finding of

dependency.

         {¶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 R.C. 2151.04(C), which defines a dependent child as any

child:

         “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 R.C. 2151.04(C) requires evidence that the parent’s conduct

is having “an adverse impact upon the child sufficiently to warrant state

intervention”. In re Burrell, 58 Ohio St.2d 37, 39 (1979). “That impact cannot be

simply inferred in general, but must be specifically demonstrated in a clear and

convincing manner.” Id. Furthermore, an adverse impact that supports a finding of

dependency and the intervention of the state must be more than an “upset” child or



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a “temporary unhappiness”. In re Holzwart, 3d Dist. Seneca Nos. 13-04-32, 13-04-

33, 13-04-34, & 13-04-40, 2005-Ohio-1602, ¶12.

       {¶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).


                                         -20-
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


       {¶40} Next, LCCS caseworker Pratt testified that during his interview with

Scott and Walt, both (Scott and Walt) admitted to spanking the children with a belt

approximately 8-9 strikes per spanking. (Tr. 134). Pratt further testified as to the

bruising on S.L. stating he saw different shades of brown, blue, purple and green on

her. (Tr. 136). Pratt testified that due to the extent of S.L.’s injuries, LCCS was

concerned for the safety and well-being of the other children and was not

comfortable with the children to remain in Scott’s home. (Id).

       {¶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 R.C. 2151.04(C)

due to the condition of the children’s environment in Scott’s home.

       {¶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 R.C. 2151.281 and


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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


Superintendent Rule 48, thereby not acting in the children’s best interest, which

violated his due process rights. We disagree.

                                  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-


                                           -22-
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


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, 104 S.Ct. 2052 (1981).

                                      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.


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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


                                            Hearsay Objections

           {¶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



3
    Transcript of 8/4/17, pgs. 29, 40, 46, 50, 92, 102, 127 and 158.

                                                      -24-
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


either abused or dependent. Rather, such reactions represent the children’s present

sense impressions to visitation and are not hearsay herein.

       {¶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


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Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


underdeveloped as to the prejudice he experienced from such failure. “The decision

whether to call or not call witnesses is generally a matter of trial strategy and, absent

a showing of prejudice, does not deprive a defendant of effective assistance of

counsel.” State v. Bofia, 3d Dist. Henry No. 7-03-12, 2004-Ohio-3018, quoting

State v. Utz, 3d Dist. Crawford No. 3-03-38, 2004-Ohio-2357, ¶12. Since trial

strategy dictates whether or not a witness should or should not be called (as a

witness), we cannot speculate that the failure to call the children’s family doctor

prejudiced Scott. It is perfectly reasonable that the testimony of the children’s

doctor could lead to damaging evidence against Scott. Thus, without a showing of

prejudice, Scott’s argument fails.

       {¶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


                                          -26-
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37


abuse adjudication and remand this matter to the trial court to vacate such abuse

adjudication in its record in case 8-17-29.

       {¶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.

/jlr




                                        -27-
