[Cite as In re B.B., 2018-Ohio-4087.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
                                                :   Hon. William B. Hoffman, J.
                                                :   Hon. Patricia A. Delaney, J.
 IN RE B.B.                                     :
                                                :   Case No. 17CA23
                                                :
                                                :
                                                :
                                                :
                                                :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Knox County Court of
                                                    Common Pleas, Juvenile Division, Case
                                                    No. 217 2078



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             October 5, 2018




APPEARANCES:

 For Parents-Appellants:                            For KCDJFS-Appellee:

 DAVID M. HUNTER                                    ASHLEY L. JOHNS
 244 West Main Street                               200 Civic Dr., Suite 800
 Loudonville, OH 44842                              Columbus, OH 43206
Knox County, Case No.17CA23                                                            2

Delaney, J.

         {¶1} The Parents-Appellants appeal the August 29, 2017 judgment entry of the

Knox County Court of Common Pleas, Juvenile Division awarding temporary custody of

B.B. to Appellee, Knox County Department of Job and Family Services.

                         FACTS AND PROCEDURAL HISTORY

         {¶2} On June 1, 2017, Appellee Knox County Department of Job and Family

Services (“KCDJFS”) filed a complaint alleging R.B. was a dependent child pursuant to

R.C. 2151.04(C) and (D). One June 20, 2017, KCDJFS filed a complaint alleging B.B.

was an abused child pursuant to R.C. 2151.031(C) and/or dependent child pursuant to

R.C. 2151.04(C).

         {¶3} An adjudicatory hearing was held before the trial court on July 20, 2017,

August 3, 2017, and August 4, 2017. The following evidence was adduced at trial.

         {¶4} R.B. (born on November 4, 2014) and B.B. (born on December 14, 2016)

are the natural children on Mother-Appellant and Father-Appellant. B.B. was born

prematurely but he did not have any known abnormal health issues as a result of his early

birth.

         {¶5} Mother and Father are married and both work outside of the home. When

R.B. was approximately three-months old, Mother and Father asked their friend, L.E.

(hereinafter “Babysitter”), to babysit R.B. in her home during the work week. Father and

Babysitter were high-school friends and Mother became good friends with Babysitter.

Babysitter’s child was approximately the same age as R.B. No incidents were noted with

R.B. while the child was in Babysitter’s care.
Knox County, Case No.17CA23                                                                 3


       {¶6} On April 17, 2017, Babysitter started watching B.B. in her home, in addition

to R.B. and Babysitter’s two children. Mother would have lunch at Babysitter’s home to

breastfeed B.B.

       {¶7} On May 16, 2017, Babysitter told Mother that B.B. was sitting in a

“jumperoo” with blanket tucked in front of B.B. to stabilize him. Babysitter said she was

not in the room to see what happened, but she heard B.B. crying and found him in the

jumperoo with the blanket on the floor. She said the older children had pulled the blanket

out from under B.B., causing a rug burn on his right arm and neck.

       {¶8} On May 18, 2017, Mother took B.B. to the pediatrician because B.B. was

not eating well and was regularly vomiting. The pediatrician diagnosed B.B. with a virus.

The pediatrician also ordered an x-ray of B.B.’s abdomen area and the results were

normal. On May 23, 2017, B.B. was still vomiting. Mother contacted the pediatrician, who

diagnosed B.B. with acid reflux. The pediatrician prescribed Zantac for B.B.

       {¶9} Mother dropped off B.B. and R.B. at Babysitter’s at 8:00 a.m. on May 24,

2017. Mother reported that B.B. seemed happy and content that morning. At

approximately 11:00 a.m., Babysitter called Mother at work to report that something was

wrong with B.B. Babysitter said she left B.B. sitting in a boppy in the living room while she

went to the kitchen to get his bottle. When she returned to the living room, she observed

B.B. gasping for air and his tongue was hanging out. Mother left work and arrived at

Babysitter’s home to find B.B. laying on the floor of the living room, gasping for air. Mother

told Babysitter to call 911. Father arrived at Babysitter’s home shortly thereafter.

       {¶10} Emergency personnel arrived and found Mother and Babysitter at the home

with B.B. on the floor. B.B. was transported to Knox Community Hospital and during
Knox County, Case No.17CA23                                                                  4


transport, B.B.’s condition deteriorated. His heart stopped or dropped below 60 beats per

minute several times, requiring the use of CPR. At Knox Community Hospital, B.B. was

stabilized and taken by life-flight to Nationwide Children’s Hospital.

       {¶11} At Nationwide Children’s Hospital, B.B. was placed on life support in the

NICU. A social worker with Nationwide spoke with Mother and Father about B.B. The

social worker asked for Babysitter’s name, but Mother was reluctant to give her the

information. Mother eventually gave the social worker Babysitter’s information.

       {¶12} Dr. Heather Williams is a child abuse pediatrics fellow employed by

Nationwide Children’s Hospital. Dr. Williams became involved with B.B.’s case because

the hospital’s child assessment team was concerned that B.B.’s condition was caused by

maltreatment. Based on Dr. William’s clinical assessment, which included a review of

B.B.’s health records, lab results, imaging results, and interviews with Mother and Father,

she determined B.B. suffered from abusive head trauma caused by an acceleration and

deceleration type force. A MRI of B.B.’s brain showed B.B. suffered from chronic subdural

hematomas, showing both recent and old injuries. A MRI also showed that he suffered

injuries to the ligaments at the top of the neck and muscles around the neck. A limited

eye exam due to his severe injuries showed that B.B. had preretinal and intraretinal

hemorrhages. Dr. Williams’s clinical assessment ruled out all medical causes for B.B.’s

injuries. Dr. Williams’s investigation did not reveal any accidental cause for B.B.’s injuries,

nor were the accidents described by Babysitter and Mother consistent with B.B.’s injuries.

Dr. Williams indicated the time period of the traumatic injury to B.B. could have occurred

within minutes or hours before the presentation of symptoms requiring medical

intervention. Without medical intervention, it was the opinion of Dr. Williams that B.B.
Knox County, Case No.17CA23                                                             5


would have died on May 24, 2017.          B.B. survived his injuries, but would require

occupational therapy and medical care for seizures, an NG tube, and a cervical collar. Dr.

Williams had no opinion as to who caused the injuries to B.B.

       {¶13} The social worker with Nationwide contacted Appellee Knox County

Department of Job and Family Services (“KCDJFS”) based on the concern that B.B.’s

injuries were caused by maltreatment. April Hanners was the on-call worker in the

KCDJFS intake unit investigations on May 24, 2017. Hanners spoke with Mother and

advised that based on the report of abuse and the unknown perpetrator of the abuse,

Mother and Father were required to develop a safety plan for R.B. Mother spoke with

Hanners twice. Mother told Hanners the first time she did not know how the injuries

occurred, but the second time Hanners spoke with Mother, Mother told Hanners about

the jumperoo incident. Mother also told Hanners about another incident Babysitter relayed

to her for the first time on May 24, 2017. Babysitter told Mother that she picked up B.B.

by the hands and pulled him off the carpet while she was changing his diaper. Babysitter

told Mother that B.B. had fallen about ten inches, hitting his head on the floor.

       {¶14} Keisha Matheney, with the intake unit of KCDJFS, was assigned B.B.’s

case on May 25, 2017. KCDJFS filed an emergency ex parte emergency order and R.B.

was placed in the temporary custody of KCDJFS. KCDJFS conducted safety audits and

placed R.B. and B.B. with a paternal aunt. During her investigation on May 25, 1017,

Matheney interviewed Babysitter, Mother, and Father. Babysitter and Mother stated B.B.

was injured during the jumperoo incident and he fell backwards approximately eight to

twelve inches after diapering. Matheney attempted to interview Mother again but Mother

declined. As a result of Matheney’s investigation, KCDJFS determined physical abuse of
Knox County, Case No.17CA23                                                             6


B.B. with regard to Babysitter, Mother, and Father was unsubstantiated. It substantiated

physical abuse as to an unknown perpetrator.

       {¶15} At the time of the adjudicatory hearing, paternal aunt had physical custody

of both R.B. and B.B. KCDJFS was comfortable with the current placement. Mother and

Father had weekly supervised visitation with the children. While physical abuse was

unsubstantiated as to Babysitter, Mother, and Father, KCDJFS did not reunify because

abuse was substantiated as to an unknown perpetrator and based on the unknown nature

of the perpetrator, safety of the children was the primary concern.

       {¶16} Babysitter testified at the hearing. Babysitter stated on May 24, 2017, she

told Mother about an incident with B.B. She testified she was working with B.B. on his

core strength by pulling him by his hands from a laying to a sitting position. Babysitter

stated B.B. pulled himself down and his head dropped about two inches to the floor.

Babysitter testified this incident and the jumperoo incident were the only two events that

occurred with B.B. while he was in her care.

       {¶17} Dr. Stephen Guertin testified on behalf of Mother and Father as an expert

in child abuse. Dr. Guertin agreed B.B.’s injuries were consistent with physical abuse. It

was his opinion that Babysitter caused the injuries to B.B. It was Dr. Guertin’s medical

opinion that the onset of B.B.’s symptoms on May 24, 2017 would be instantaneous to

the harm suffered. One issue raised by Dr. Williams was the sudden increase in the

circumference of B.B.’s head during his fourth and fifth months. Dr. Williams stated this

could indicate that something may have happened intracranially over that period of time

considered in conjunction that B.B. suffered a chronic subdural hematoma. Dr. Guertin
Knox County, Case No.17CA23                                                                7


testified the increase in B.B.’s head circumference occurred while B.B. was in Babysitter’s

care.

        {¶18} The GAL filed an initial report to the trial court on July 20, 2017. Based on

her initial report, the GAL recommended Mother and Father have custody of the children

and it was in the best interests of the children for the complaints to be dismissed.

        {¶19} At the time of the hearing, no criminal charges had been brought against

any party.

        {¶20} On August 29, 2017, the trial court issued its judgment entry finding B.B.

was an abused child as defined under R.C. 2151.031(C) and a dependent child under

R.C. 2151.04(C). Based on the clear and convincing evidence, the trial court found no

dispute that B.B.’s injuries were the result of physical abuse and the injuries to B.B. could

have occurred while B.B. was in the care of Mother, Father, or Babysitter. It next found

R.B. was a dependent child as defined in R.C. 2151.04(C). The trial court ordered that

R.B. and B.B. remain in the temporary custody of KCDJFS and the physical custody of

paternal aunt. Mother and Father were permitted visitation with the children at paternal

aunt’s residence under their supervision.

        {¶21} The trial court held a disposition hearing on October 13, 2017. Via judgment

entry filed on October 23, 2017, the trial court found it was in the best interests of the

children that they be subject to the continuing temporary custody of KCDJFS. Visitation

between the parents and children was ordered to be unsupervised at the discretion of

KCDJFS. The trial court ordered the parents to follow the case plan established by

KCDJFS.
Knox County, Case No.17CA23                                                                    8


       {¶22} A review hearing was held on November 1, 2017. The trial court ordered

that custody of the children be returned to Mother and Father and the children would be

under protective supervision. (T. 18-19).

       {¶23} Mother and Father filed their notice of appeal on November 22, 2017.

                                 ASSIGNMENT OF ERROR

       {¶24} Mother and Father raise one Assignment of Error as to B.B.:

       {¶25} “THE DECISION OF THE TRIAL COURT FINDING B.B. TO BE AN

ABUSED CHILD IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE

PARENTS DID NOT COMMIT ANY ABUSE.”

                                          ANALYSIS

       {¶26} Mother and Father argue the trial court erred when it found B.B. was an

abused child pursuant to R.C. 2151.031(C). They contend there was no clear and

convincing evidence in the record that Mother and Father caused B.B.’s physical injuries.

                                    Standard of Review

       {¶27} In an adjudicatory hearing regarding a claim of dependency, neglect and/or

abuse, the requisite burden of proof is by clear and convincing evidence. Juv.R. 29(E)(4).

The Ohio Supreme Court has defined “clear and convincing evidence” as “[t]he measure

or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction

as to the allegations sought to be established. It is intermediate, being more than a mere

preponderance, but not to the extent of such certainty as required beyond a reasonable

doubt as in criminal cases. It does not mean clear and unequivocal.” In re M.T., 5th Dist.

Richland No. 18-CA-32, 2018-Ohio-3251, ¶ 47 quoting In re Estate of Haynes, 25 Ohio

St.3d 101, 103-104, 495 N.E.2d 23 (1986).
Knox County, Case No.17CA23                                                               9


      {¶28} The Ohio Supreme Court delineated our standard of review as follows,

      Where the degree of proof required to sustain an issue must be clear and

      convincing, a reviewing court will examine the record to determine whether

      the trier of facts had sufficient evidence before it to satisfy the requisite

      degree of proof. See Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526 [ (1887)

      ], Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264 [ (1913) ], and Frate v.

      Rimenik, 115 Ohio St. 11, 152 N.E. 14 [ (1926) ].

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). In Cross, the Supreme

Court further cautioned,

      The mere number of witnesses, who may support a claim of one or the other

      of the parties to an action, is not to be taken as a basis for resolving disputed

      facts. The degree of proof required is determined by the impression which

      the testimony of the witnesses makes upon the trier of facts, and the

      character of the testimony itself. Credibility, intelligence, freedom from bias

      or prejudice, opportunity to be informed, the disposition to tell the truth or

      otherwise, and the probability or improbability of the statements made, are

      all tests of testimonial value. Where the evidence is in conflict, the trier of

      facts may determine what should be accepted as the truth and what should

      be rejected as false. See Rice v. City of Cleveland, 114 [144] Ohio St. 299,

      58 N.E.2d 768 [ (1944) ].

161 Ohio St. at 477-478, 120 N.E.2d 118. (Emphasis added).
Knox County, Case No.17CA23                                                                10


                                    An “Abused Child”

       {¶29} R.C. 2151.031 provides in relevant part,

       As used in this chapter, an “abused child” includes any child who:

       ***

       (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.

       {¶30} Physical harm to persons is defined as, “any injury, illness, or other

physiological impairment, regardless of its gravity or duration.” R.C. 2901.001(A)(3).

       {¶31} Mother and Father argue the trial court erred in finding B.B. was an abused

child pursuant to R.C. 2151.031(C) because there was no clear and convincing evidence

of parental fault for B.B.’s injuries. We previously addressed this issue in In re Pitts, 38

Ohio App.3d 1, 5, 525 N.E.2d 814 (5th Dist.1987). We determined that during the

adjudicatory phase of the proceedings, the trial court does not have to find any fault on

the part of a parent, guardian, or custodian in order to find the child is abused pursuant
Knox County, Case No.17CA23                                                                 11

to R.C. 2151.031(C). See also, In re M.T., 5th Dist. Richland No. 18-CA-32, 2018-Ohio-

3251, ¶ 49. Accord, In re A.A. and T.A., 11th Dist. Ashtabula No. 2002-A-0096, 2003-

Ohio-5712, ¶ 18. “All that is necessary is that the child be a victim, regardless of who is

responsible for the abuse. The focus is upon harm to the child, not upon parental or

custodial blameworthiness.” In re Pitts, 38 Ohio App.3d at 5.

       {¶32} There is no factual dispute that B.B. was abused. The lingering question in

this case is who committed the abuse. The difficult question of who, however, was not

before the trial court at the adjudicatory hearing. “The focus of a charge that a child is

dependent is on the child and his conditions and not on fault.” Id. at 3. The trial court was

tasked to determine whether KCDJFS established a claim of dependency, neglect, and/or

abuse by clear and convincing evidence. R.C. 2151.031(C) does not require KCDJFS to

establish parental fault.

       {¶33} An appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, 2012 WL 1029466,

¶ 24. The trier of fact was free to accept or reject any and all of the evidence offered by

the parties and assess the witness's credibility. “While the trier of fact may take note of

the inconsistencies and resolve or discount them accordingly * * * such inconsistencies

do not render defendant's conviction against the manifest weight or sufficiency of the

evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL 29752 (Mar 23,

2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714

(May 28, 1996). Indeed, the trier of fact need not believe all of a witness' testimony, but

may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604,
Knox County, Case No.17CA23                                                             12

2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,

2003 WL 21291042, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th

Dist. 1992).

          {¶34} Based upon the foregoing and the entire record in this matter we find the

trial court's finding that B.B. was an “abused child” is not against the sufficiency or the

manifest weight of the evidence. We find that there is substantial evidence presented

which if believed, proves by clear and convincing evidence that B.B. was an “abused

child.”

          {¶35} The sole Assignment of Error of Mother and Father is overruled.

                                      CONCLUSION

          {¶36} The judgment of the Knox County Court of Common Pleas, Juvenile

Division, is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.
