[Cite as In re F.M., 2012-Ohio-1082.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                                 JUDGES:
IN THE MATTER OF:                                Hon. William B. Hoffman, P. J.
                                                 Hon. Sheila G. Farmer, J.
                                                 Hon. John W. Wise, J.
        F.M. AND M.M.
                                                 Case No. 2011 AP 07 0029

        ABUSED, NEGLECTED and
        DEPENDENT CHILDREN                       OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of
                                              Common Pleas, Juvenile Division,
                                              Case No. 11 JN 00181

JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       March 15, 2012



APPEARANCES:

For Appellee                                  For Appellants-Parents

DAVID W. HAVERFIELD                           DAN GUINN
TUSCARAWAS DJFS                               407 Sixth Street, NW
389 16th Street, SW                           New Philadelphia, Ohio 44663
New Philadelphia, Ohio 44663

Guardian ad Litem

GERRIT DENHEIJER
121 East Main Street
Ravenna, Ohio 44266
Tuscarawas County, Case No. 2011 AP 07 0029                                               2

Wise, J.

       {¶1}    Appellants Charles Meese and Linda Meese (parents) appeal the decision

of the Tuscarawas County Court of Common Pleas, Juvenile Division, which

adjudicated their minor child, F.M., as dependent, neglected, and abused, and their

minor child, M.M., as dependent. Appellee is the Tuscarawas County Department of Job

and Family Services (“TCJFS”). The relevant facts leading to this appeal are as follows.

       {¶2}    Appellants are the parents of the children at issue in this matter, F.M., who

was born in 1996, and M.M., who was born in 1998.

       {¶3}    On or about April 4, 2011, TCJFS filed a complaint in the Tuscarawas

County Court of Common Pleas, Juvenile Division, alleging F.M. and M.M. to be

dependent, neglected, and/or abused children. TCJFS filed the complaint based on

concerns raised by middle school officials after noticing extensive leg bruising on F.M.,

as further discussed infra.

       {¶4}    The trial court initially placed the two children with their maternal

grandmother.

       {¶5}    The matter proceeded to an adjudicatory hearing on May 18, 2011.

       {¶6}    The trial court thereupon found F.M. to be a dependent, neglected, and

abused child and M.M. to be dependent. The matter proceeded to disposition on May

31, 2011. At that time, appellants stipulated to the agency’s case plan. Placement of

both children was maintained with the maternal grandmother, with protective

supervision of TCJFS. See Judgment Entry, June 3, 2011.

       {¶7}    On July 5, 2011, appellants filed a notice of appeal. They herein raise the

following four Assignments of Error:
Tuscarawas County, Case No. 2011 AP 07 0029                                             3


      {¶8}   “I. THE COURT ERRED IN FINDING F.M. TO BE AN ABUSED CHILD

UNDER OHIO REVISED CODE SECTION 2151.031.

      {¶9}   “II.   THE COURT ERRED IN FINDING F.M. TO BE A NEGLECTED

CHILD UNDER OHIO REVISED CODE SECTION 2151.03.

      {¶10} “III. THE COURT ERRED IN FINDING BOTH F.M. AND M.M. TO BE

DEPENDENT CHILDREN UNDER OHIO REVISED CODE SECTION 2151.04.

      {¶11} “IV. APPELLANTS WERE DENIED DUE PROCESS OF LAW AND THE

RIGHT TO A FAIR TRIAL WHERE THE TRIAL JUDGE EXHIBITED BIAS TOWARDS

THEM THROUGHOUT THE PROCEEDINGS.”

                                            I.

      {¶12} In their First Assignment of Error, appellants contend the trial court

erroneously adjudicated F.M. as an abused child under R.C. 2151.031. We disagree.

      {¶13} Pursuant to R.C. 2151.35(A), a trial court must find that a child is an

abused, neglected, or dependent child by clear and convincing evidence. In re Kasper

Children (June 30, 2000), Stark App.No. 1999CA00216. As a general rule, the trier of

fact is in a far better position to observe the witnesses' demeanor and weigh their

credibility. See State v. DeHass (1967), 10 Ohio St .2d 230, 227 N.E.2d 212. As an

appellate court, we neither weigh the evidence nor judge the credibility of the witnesses.

Our role is to determine whether there is relevant, competent and credible evidence

upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10,

1982), Stark App. No. CA–5758. Accordingly, judgments supported by some competent,

credible evidence going to all the essential elements of the case will not be reversed as
Tuscarawas County, Case No. 2011 AP 07 0029                                                 4

being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction

(1978), 54 Ohio St.2d 279, 281, 376 N.E.2d 578.

       {¶14} Clear and convincing evidence is defined as the 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. In re: Z.N., Licking App.No. 11–CA–0015, 2011-Ohio-3221,

¶ 18, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118; In re:

Adoption of Holcomb (1985), 18 Ohio St.3d 361, 481 N.E.2d 613. Furthermore, in a

bench trial, a trial court judge is presumed to know the applicable law and apply it

accordingly. Walczak v. Walczak, Stark App.No. 2003CA00298, 2004-Ohio-3370, ¶ 22,

citing State v. Eley (1996), 77 Ohio St.3d 174, 180-181, 672 N.E.2d 640.

       {¶15} R.C. 2151.031 defines an “abused child,” in pertinent part, as any child

who:

       {¶16} “ ***

       {¶17} “(B) Is endangered as defined in section 2919.22 of the Revised Code,

except that the court need not find that any person has been convicted under that

section in order to find that the child is an abused child;

       {¶18} “(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
Tuscarawas County, Case No. 2011 AP 07 0029                                                5


child is not an abused child under this division if the measure is not prohibited under

section 2919.22 of the Revised Code.

       {¶19} “(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.

       {¶20} “ ***.”

       {¶21} In turn, R.C. 2919.22 states in pertinent part:

       {¶22} “ ***

       {¶23} “(B) No person shall do any of the following to a child under eighteen

years of age or a mentally or physically handicapped child under twenty-one years of

age:

       {¶24} “(1) Abuse the child;

       {¶25} “(2) Torture or cruelly abuse the child;

       {¶26} “(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;

       {¶27} “(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;

       {¶28} “ ***.”

       {¶29} Our review of the record reveals the following summary of evidence:1



1
   The witnesses included Jeffery Duvall, a martial arts student who trains at Charles’
studio; Samuel Hitchcock, a Dover police captain; and Donald Woods, a New
Philadelphia police officer who studies tae kwon do at the studio. Although we have
Tuscarawas County, Case No. 2011 AP 07 0029                                              6

                                      F.M. Testimony

      {¶30} F.M. recalled that on the Friday before spring break (March 25, 2011), she

went to a friend’s house without permission from her parents. She and the friend then

began walking to a male acquaintance’s house. According to F.M., when Appellant

Charles Meese found her, he grabbed her by the hair, punched her in the back of her

head, and forced her into the car. When they got back home, appellant again grabbed

her hair, punched her, and dragged her into the house. Charles further “kicked [her] up

against the cupboard.” Tr. at 9-10. One of the punches landed near her eye and caused

a nosebleed. F.M. also testified that Charles threatened her with a knife after they got

inside. Dover police officers later arrived at the house, but they were simply told a

“screaming fight” had occurred. Tr. at 13. F.M. noted that Charles told her to stay in the

bathroom when the police arrived. F.M. also recalled other unspecified fights between

herself and Charles that week, and stated that Charles has gotten physical with her

mother and M.M. in the past as well.

      {¶31} F.M. testified that she has extensively trained in martial arts, and that

Charles runs a martial arts instruction studio. She maintained that she had never

received any extensive injuries or bruising from her martial arts weapon training, except

for a cut elbow on one occasion.

                                   Julie Smith Testimony

      {¶32} The next witness for TCJFS was Julie Smith, the middle school guidance

counselor. She noted that neither F.M. nor M.M. had any significant behavioral

problems at school. She recounted the events of April 4, 2011, when F.M. reported the


reviewed their testimony, in the interest of judicial economy we will not herein recite the
details thereof.
Tuscarawas County, Case No. 2011 AP 07 0029                                            7


March 25th incident to school authorities. Smith also discussed F.M.’s apparent incident

of intentionally cutting herself, stating this activity was not inconsistent with F.M.’s

description of her home environment prior to agency intervention.

                                Crystal Lawless Testimony

       {¶33} Crystal Lawless, an investigator from TCJFS, testified regarding the

results of her investigation. After school authorities contacted the agency about F.M.,

she went to the middle school and observed and took photographs of the child. During

her interview, F.M. advised her that Charles had caused the injuries ultimately shown in

the photographs. When Lawless discussed the concerns with F.M.'s and M.M.’s mother,

Linda Meese, she did not appear to be surprised by the same. Linda acknowledged to

her that she was aware of the bloody nose and the hair pulling incidents, but Linda

essentially attributed the extensive bruising on F.M. to martial arts.

                                      M.M. Testimony

       {¶34} Appellants called their son, M.M., as their first witness. He indicated that

he has gotten bruised on his legs before in martial arts training, on some occasions

because of using nunchuck weapons (nunchakus). He testified that he did not see

Charles hit F.M. on the nose during the March 25th incident, although he was present at

that time.

                           Appellant Charles Meese Testimony

       {¶35} Appellant Charles testified concerning the situation with his children,

particularly with F.M. He stated he has used spanking in the past, describing the family

as a “taekwondo family.” Tr. at 133. Prior to the events of March and April 2011, Charles

took her cell phone back and cut off her use of Facebook over concerns that she was
Tuscarawas County, Case No. 2011 AP 07 0029                                              8


not following parental rules regarding meeting with her friends. Charles also testified

that she was sending and receiving inappropriate text messages and cell phone photos.

He recalled that F.M. was “distraught” after losing her social media connections, and

that he “observed her pounding her legs in the karate school and at home.” Tr. at 143,

144. He also claimed that F.M. had bruised herself in the past while using or practicing

with nunchucks.

       {¶36} Charles also gave his version of the March 25th incident. After F.M. had

left the house and could not be immediately located, Charles went out to look for her.

He testified that he thereafter saw her outside with two boys, one of whom she was

grabbing in the groin and “butt area.” Tr. at 150. Charles recalled using force to get F.M.

into the car and subsequently into the house. He also admitted to spanking F.M. with an

open hand on this occasion, but not striking her in the eye or nose. He elaborated as

follows:

       {¶37} “Okay, so she, she’s on her back, she’s got her feet up, and she started

kicking at me, so I took my left hand and I pinned down her, her left leg, and I said, what

in the fuck do you think you’re doing, so about ten times I spanked her with an open

hand. Then I got up and I went back into the kitchen where my plate and my stuff was

at, and she was in the living room, two completely separate rooms, we’re about twenty

feet apart at this point. I picked up my, I picked up my cup and I stepped out and I

scolded her, and I can’t even remember exactly what I was saying, but I was just

scolding her about the stress that she put the family under when we go and we do all

these stranger danger classes and things like that, that she put the whole family under

this stress * * *.” Tr. at 152.
Tuscarawas County, Case No. 2011 AP 07 0029                                                9


       {¶38} In regard to the allegation that he threatened F.M. with a knife, he stated

he never approached her with it, recalling the reason he had the knife as follows:

       {¶39} “Because my nervous energy was here on [F.M.], I just spanked her, I was

upset at her, and I don’t usually deal with, with any kind of disciplinary act, uh, when I’m,

when I’m angry because I don’t want to, I don’t want to hurt them, you know, I don’t

want to be an abuser like I’m being accused of, but, uh, sometimes they do need to be

disciplined for whatever reason, but I took that nervous energy into a different room and

that nervous energy went to clean up my plate and my utensils”. Tr. at 155.

       {¶40} Charles also told the court that F.M. participated in a martial arts

demonstration, including using nunchucks, at an area mall on March 26, 2011, and that

she did not act like she was hurt. A video of the demonstration was played and entered

into evidence.

       {¶41} On cross-examination, the agency challenged Charles on his testimony in

earlier proceedings in the case wherein he never admitted spanking F.M. with an open

hand. He acknowledged leaving out details previously, especially the claim that F.M.

had been “pounding” her legs. He noted: “I was answering the questions the way I was

told to answer them[,] just truthfully and, and, uh, without going into much detail.” Tr. at

182.

                                Anne Crabtree Testimony

       {¶42} Appellants also called Anne Crabtree as a witness. Her daughter also

takes classes at the Meese's martial arts school. Tr. at 193. She stated that F.M. had

visited her home the Saturday before the children were removed by the agency. She

saw F.M.'s lower legs and recalled that "[s]he had four to six bruises on her shin and
Tuscarawas County, Case No. 2011 AP 07 0029                                              10


when I asked her where they came from she said bow staff practice." Tr. at 194. She

stated she is a mandated reporter and has been trained in this area, but she did not

think F.M. was abused at that time. Tr. at 196. However, after viewing the photographs

at the adjudicatory hearing, Anne was admittedly “startled” and testified: “If I’d have

seen [F.M.] looking like that I’d have called Child Services on the spot.” Tr. at 200.

                                      K.C. Testimony

       {¶43} Another witness called by appellants was K.C., age 13, who testified that

she attends classes at the martial arts school. She stated she has trained with

nunchucks and has hit herself a lot. Also, due to her martial arts training, she has

typically received bruising all over her legs.

                            Appellant Linda Meese Testimony

       {¶44} Linda Meese testified that F.M. had been “real disrespectful” during the

times in question (Tr. at 207), and she conceded that Charles had spanked F.M. on

March 25, 2011, but “that was about it.” Tr. at 210. Linda recalled that the knife incident

was essentially part of Charles’ picking up his plates and utensils after dinner, and that

Charles did not come at F.M. with the knife. She observed that F.M. acted normally on

the next day, when the mall demonstration took place. Linda denied that Charles had

ever hit her or their son, M.M.

       {¶45} On cross-examination, Linda admitted to leaving out details, in earlier

proceedings, concerning Charles’ spanking of F.M.

                                  Analysis and Conclusion

       {¶46} This case involved the thorough evidentiary presentation of widely varying

versions of difficult events within the four walls of a family home. As such, the guidance
Tuscarawas County, Case No. 2011 AP 07 0029                                                 11

of DeHass, that the trier of fact is in a far superior position to gauge demeanor and

credibility, is even more pronounced. Upon review, in light of the testimony presented by

TCJFS at trial, and despite the countervailing testimony presented by appellants, we are

not inclined to disturb the evidentiary determinations of the trial court as the fact finder in

this instance, and we hold the evidence presented supports the conclusion that F.M. is

an abused child pursuant to the statute, as we determine that there was at least

competent, credible evidence for the juvenile court judge to conclude that Charles’

actions in repeatedly striking the child and grabbing her hair went beyond the bounds of

legitimate corporal punishment.

       {¶47} Appellants’ First Assignment of Error is therefore overruled.

                                               II.

       {¶48} In their Second Assignment of Error, appellants contend the trial court

erroneously adjudicated F.M. as a neglected child under R.C. 2151.03. We disagree.

       {¶49} Pursuant to R.C. 2151.03(A), a “neglected child” includes any child:

       {¶50} “(1) Who is abandoned by the child's parents, guardian, or custodian;

       {¶51} “(2) Who lacks adequate parental care because of the faults or habits of

the child's parents, guardian, or custodian;

       {¶52} “(3) Whose parents, guardian, or custodian neglects the child or refuses 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;

       {¶53} “(4) Whose parents, guardian, or custodian neglects the child or refuses to

provide the special care made necessary by the child's mental condition;
Tuscarawas County, Case No. 2011 AP 07 0029                                            12


       {¶54} “(5) Whose parents, legal guardian, or custodian have placed or attempted

to place the child in violation of sections 5103.16 and 5103.17 of the Revised Code;

       {¶55} “(6) Who, because of the omission of the child's parents, guardian, or

custodian, suffers physical or mental injury that harms or threatens to harm the child's

health or welfare;

       {¶56} “(7) Who is subjected to out-of-home care child neglect.”

       {¶57} In the case sub judice, TCJFS concedes that much of the above statute

does not apply to the present circumstances. However, as the agency properly

responds, a parent who turns a blind eye to abuse suffered by one of his or her children

violates a duty of care and support sufficient to place the affected child within the

purview of a neglected child. Cf. In re A.C., Cuyahoga App.No. 89191, 2007-Ohio-5539,

¶ 23. In the case sub judice, as more fully set forth under the first assigned error, the

evidence demonstrates that Linda knew about abusive activity in the home (see Tr. at

210, 217), but she took no action and effectively blamed F.M. for the injuries at issue.

Under these circumstances, we find the trier of fact could have properly found F.M. to

be a neglected child pursuant to statute.

       {¶58} Accordingly, appellants’ Second Assignment of Error is overruled.

                                            III.

       {¶59} In their Third Assignment of Error, appellants contend the trial court

erroneously adjudicated F.M. and M.M. as dependent children under R.C. 2151.04. We

disagree.

       {¶60} Pursuant to R.C. 2151.04, a “dependent child” means any child:
Tuscarawas County, Case No. 2011 AP 07 0029                                             13


       {¶61} “(A) Who is homeless or destitute or without adequate parental care,

through no fault of the child's parents, guardian, or custodian;

       {¶62} “(B) Who lacks adequate parental care by reason of the mental or physical

condition of the child's parents, guardian, or custodian;

       {¶63} “(C) Whose condition or environment is such as to warrant the state, in the

interests of the child, in assuming the child's guardianship;

       {¶64} “(D) To whom both of the following apply:

       {¶65} “(1) The child is residing in a household in which a parent, guardian,

custodian, or other member of the household committed an act that was the basis for an

adjudication that a sibling of the child or any other child who resides in the household is

an abused, neglected, or dependent child.

       {¶66} “(2) Because of the circumstances surrounding the abuse, neglect, or

dependency of the sibling or other child and the other conditions in the household of the

child, the child is in danger of being abused or neglected by that parent, guardian,

custodian, or member of the household.”

       {¶67} A finding of dependency under R.C. 2151.04 must be grounded on

whether the children are receiving proper care and support; the focus is on the condition

of the children. See In re Bibb (1980), 70 Ohio App.2d 117, 120, 435 N.E.2d 96. “The

determination that a child is dependent requires no showing of fault on the parent's

part.” In re Bolser (Jan. 31, 2000), Butler App.Nos. CA99–02–038, CA99–03–048, 2000

WL 146026. However, a court may consider a parent's conduct insofar as it forms part

of the child's environment. In re Alexander C., 164 Ohio App.3d 540, 843 N.E.2d 211,
Tuscarawas County, Case No. 2011 AP 07 0029                                            14

2005–Ohio–6134, ¶ 51, citing In re Burrell (1979), 58 Ohio St.2d 37, 39, 388 N.E.2d

738.

       {¶68} We remain mindful that our task on appeal is to determine whether there

is relevant, competent and credible evidence upon which the trial court could base its

judgment. Cross Truck, supra. Furthermore, in issues of dependency determination,

“the law does not require the court to experiment with the child's welfare to see if * * *

[the child] will suffer great detriment or harm.” In re Burchfield (1988), 51 Ohio App.3d

148, 156, 555 N.E.2d 325.

       {¶69} Upon review, and in light of our previous analysis regarding the abuse and

neglect allegations in this case, we again are not inclined to disturb the evidentiary

determinations of the trial court, and we hold the evidence presented supports the

conclusion that F.M. and M.M. are dependent children under the statute.

       {¶70} Appellants’ Third Assignment of Error is overruled.

                                           IV.

       {¶71} In their Fourth Assignment of Error, appellants contend the trial court’s

alleged bias during the proceedings denied them of due process of law and a fair trial.

       {¶72} Appellants’ brief rather disparagingly charges, among other things, that

the trial court judge essentially assisted Appellee TCJFS in the presentation of its case

(Appellant’s Brief at 35) and that “it was as if [the judge’s] mind was already made up

and she did not want to hear anything that the Appellants or their witnesses had to say.”

(Appellant’s Brief at 37). However, it is well-established that pursuant to R.C. 2701.03,

the Chief Justice of the Supreme Court of Ohio has exclusive jurisdiction to determine a

claim that a common pleas judge is biased or prejudiced. See Jones v. Billingham
Tuscarawas County, Case No. 2011 AP 07 0029                                            15


(1995), 105 Ohio App.3d 8, 11, 663 N.E.2d 657. If a common pleas litigant wishes to

raise a challenge to a trial judge's objectivity, he or she must utilize the procedure set

forth in R.C. 2701.03. See In re Baby Boy Eddy (Dec. 6, 1999), Fairfield App.No. 99 CA

22, 2000 WL 1410. In the case sub judice, there is no indication that appellants followed

the necessary procedures to bring a bias claim before the Chief Justice, particularly

during the window of time between the adjudication hearing of May 18, 2011 and the

dispositional hearing of May 31, 2011.

      {¶73} Appellants’ Fourth Assignment of Error is therefore overruled.

      {¶74} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Tuscarawas County, Ohio, is hereby affirmed.


By: Wise, J.

Farmer, J., concurs.

Hoffman, P. J., concurs separately.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
JWW/d 0224
Tuscarawas County, Case No. 2011 AP 07 0029                                              16

Hoffman, P.J., concurring

       {¶75} I concur in the majority’s analysis and disposition of Appellants’ first,

second and third assignments of error.

       {¶76} I further concur in the majority’s disposition of Appellants’ fourth

assignment of error. While I recognize Appellants failed to follow the procedure set

forth in R.C. 2701.03, I also recognize the practical difficulties that arise in doing so

once a trial has commenced and the alleged instances of bias are both progressive and

cumulative in nature. If the alleged bias is so obvious upon the record to the extent the

record reflects the complete abandonment of a fair trial (i.e. a plain error type analysis),

I am inclined not to find waiver for failure to seek recusal. However, upon my review of

Appellants’ claims, I find they do not affirmatively demonstrate bias, let alone a bias that

would rise to the level of plain error.



                                                 ________________________________
                                                 HON. WILLIAM B. HOFFMAN
Tuscarawas County, Case No. 2011 AP 07 0029                                    17


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                        :
                                         :
                                         :
       F.M. AND M.M.                     :        JUDGMENT ENTRY
                                         :
                                         :
       ABUSED, NEGLECTED AND             :
       DEPENDENT CHILDREN                :        Case No. 2011 AP 07 0029




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Juvenile Division, Tuscarawas County, Ohio,

is affirmed.

       Costs assessed to appellants.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                           JUDGES
