[Cite as In re A.B.C., 2011-Ohio-6570.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                  JUDGES:
IN THE MATTER OF:                                 Hon. William B. Hoffman, P. J.
                                                  Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
        A.B.C.
                                                  Case No. 2011 CA 00073

        MINOR CHILD(REN)                          OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No. 2010
                                               JCV 00011


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        December 19, 2011



APPEARANCES:

For Appellee                                   For Appellants

LISA A. LOUY                                   WILLIAM T. WHITAKER
SCDJFS                                         ANDREA L. WHITAKER
221 Third Street SE                            54 East Mill Street, Suite 301
Canton, Ohio 44702                             Akron, Ohio 44308
Stark County, Case No. 2011 CA 00073                                                    2

Wise, J.

       {¶1}   Appellants Kayla Pitts and Parker Crissey (parents) appeal the decision of

the Stark County Court of Common Pleas, Juvenile Division, which adjudicated their

minor son as a dependent child pursuant to R.C. 2151.04(C). Appellee is the Stark

County Department of Job and Family Services (“SCDJFS”).The relevant facts leading

to this appeal are as follows.

       {¶2}   Appellants are the parents of the child at issue in this matter, A.B.C, who

was born in July 2009.

       {¶3}   On January 7, 2010, SCDJFS filed a complaint in the Stark County Court

of Common Pleas, Juvenile Division, alleging A.B.C. to be a dependent, neglected,

and/or abused child. SCDJFS filed the complaint based on concerns about a leg (tibia)

fracture the child had suffered, which Dr. Richard Steiner of Akron Children's Hospital

had found to be consistent with physical abuse. Appellants agreed to voluntarily place

the child with his maternal great grandmother, Margie Pitts. The trial court ordered

A.B.C. to be placed in the temporary custody of the maternal great grandmother, with

protective supervision granted to SCDJFS.

       {¶4}   The matter proceeded to an adjudicatory hearing on March 18, 2010. At

the adjudication, the State offered the testimony of Dr. Steiner and the SCDJFS

caseworker, Karen Cirone. Appellants presented testimony from themselves, Dr. Meena

Rawal (A.B.C.’s pediatrician), Kayla's mother and grandmother, and Parker's sister.

After hearing the testimony, the trial court found A.B.C. to be a dependent child. The

trial court memorialized its dependency finding and disposition via a judgment entry filed

March 19, 2010.
Stark County, Case No. 2011 CA 00073                                                   3


      {¶5}   Appellants Pitts and Crissey appealed therefrom. On January 31, 2011,

this Court entered a decision finding that the trial court’s judgment entry had failed to

comply with R.C. 2151.28(L) and remanding the case for the court to make findings of

fact and conclusions of law in accordance with said statute.

      {¶6}   On March 8, 2011, the trial court entered another judgment entry in

response to our directive of January 31, 2011. The trial court therein again found A.B.C.

to be dependent and set forth findings of fact and conclusions of law not included in the

earlier judgment entry.

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

following four Assignments of Error:

      {¶8}   “I.    THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE TO

SUPPORT THE FINDING OF DEPENDENCY.

      {¶9}   “II. THE COMPLAINT WAS INSUFFICIENT TO STATE A CLAIM FOR

DEPENDENCY.

      {¶10} “III.   THE JUVENILE COURT APPLIED A LOWER AND IMPROPER

STANDARD WHEN MAKING ITS FINDING OF DEPENDENCY.

      {¶11} “IV. THE JUVENILE COURT ERRED IN QUALIFYING DR. STEINER AS

A HEMATOLOGY, ORTHOPEDICS AND RADIOLOGY EXPERT.”

                                            I.

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

erroneously adjudicated A.B.C. a dependent child under R.C. 2151.04(C). 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
Stark County, Case No. 2011 CA 00073                                                     4

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, unreported. Accordingly, judgments supported by

some competent, credible evidence going to all the essential elements of the case will

not be reversed as 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} Included in the Ohio statutory definition of a “dependent child” under R.C.

2151.04 is any child “[w]hose condition or environment is such as to warrant the state,

in the interests of the child, in assuming the child's guardianship.” R.C. 2151.04(C).

       {¶15} 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,

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

738.
Stark County, Case No. 2011 CA 00073                                                      5


       {¶16} At the time of the adjudication, Appellant Kayla was twenty years old and

Appellant Parker was twenty-four. While they were engaged, Kayla became pregnant;

the couple decided to postpone the wedding. Id. Appellants took parenting classes to

better prepare for the arrival of the child. Appellant Parker, an Army veteran, is currently

enrolled at a program at Stark State University in the area of homeland security;

Appellant Kayla is accepted but not yet taking classes at the same institution for early

childhood development.

                                    Cirone Testimony

       {¶17} Karen Cirone, an SCDJFS caseworker, testified that on December 4,

2009, the agency received a call from Akron Children's Hospital concerning A.B.C.

SCDJFS was informed A.B.C. had been brought to the hospital for blood work, but after

Appellant Kayla advised hospital personnel A.B.C. was not able to put pressure on his

left leg, an x-ray was taken and the fracture was discovered. Cirone subsequently sat in

when a Massillon police detective interviewed Kayla. During that interview, Kayla said

she had been changing A.B.C.'s diaper one day shortly before Thanksgiving 2009 and

heard a “pop” when she lifted his legs by his ankles. Kayla also said that she quickly

called A.B.C.'s pediatrician, Dr. Meena A. Rawal, who saw the child on November 30,

2009. Cirone testified that Dr. Rawal ordered blood tests at Aultman Hospital because

of the child's propensity to easily bruise. After the leg fracture was discovered, Dr.

Richard Steiner at Akron Children’s Hospital was consulted. He concluded that the

fracture could only be caused by physical abuse. SCDJFS thereafter filed its complaint

in the Stark County Court of Common Pleas, Juvenile Division.
Stark County, Case No. 2011 CA 00073                                                    6

                                 Dr. Steiner Testimony

      {¶18} Since 1991, Dr. Richard Steiner has been the medical director of the

Akron Children's Hospital Care Center, which evaluates more than 1,000 cases of child

abuse each year. Dr. Steiner testified that A.B.C. was admitted to the hospital's

hematology department due to concerns over “bruising or easy bleeding, not proper

blood coagulation.” Tr. at 17. Dr. Steiner noted bruising was observed on A.B.C.'s face,

abdomen, and genitals. This amount of bruising on a four-month old child was

concerning. Dr. Patton, the hematologist, consulted Dr. Steiner after x-rays revealed the

fracture in A.B.C.'s lower left leg. Based upon this information, further x-rays and

ultrasounds were ordered to determine whether A.B.C. had deeper bruising or bleeding.

      {¶19} Dr. Steiner testified that Kayla’s actions were not a viable explanation for

A.B.C.'s fractured leg. He explained the fracture would have been caused by a violent

“snatch and grab” motion, with “a violent jerking of the ankle.” Tr. at 20. The doctor

found nothing in the child's past medical history which would explain the fracture or the

bruising. The x-rays and a CT scan revealed no other fractures and the results from

blood tests showed no sign of a bleeding disorder. Dr. Steiner opined that there were no

diseases which would explain A.B.C.'s fracture. Tr. At 23.

      {¶20} Dr. Steiner came to a conclusion that A.B.C. had been abused, based in

large part on the lack of explanation for the fracture from the claimed diaper changing

incident. Dr. Steiner also indicated that his finding of abuse was partially predicated on

the unexplained bruises. See Tr. at 23-24.

      {¶21} On cross-examination, Dr. Steiner testified that no other fractures were

identified by the skeletal survey, and A.B.C.'s bone architecture and anatomy were
Stark County, Case No. 2011 CA 00073                                                      7


normal. Dr. Steiner acknowledged a baby could have a fractured ankle due to an

accident, and he conceded medical professionals often do not immediately notice

fractures.

                                   Dr. Rawal Testimony

       {¶22} Dr. Meena Rawal, A.B.C.'s pediatrician, testified on behalf of appellants.

Dr. Rawal classified appellants as “very concerned” and “on the ball” parents and noted

they had appropriately contacted her as the child’s needs warranted. Tr. at 48. She

indicated that appellants have kept the child up to date with his immunizations. Dr.

Rawal detailed A.B.C.'s medical history, including a diagnosis of allergic colitis. She also

noted that A.B.C. was given iron supplements after it was concluded he was anemic.

       {¶23} Dr. Rawal recalled she received a call from Kayla, who had concerns

about A.B.C. when she heard a “pop” while changing the baby’s diaper. Because Kayla

did not report any swelling, and because A.B.C. was scheduled the following week for a

well-baby visit, Dr. Rawal did not have to see the child at that time. Kayla brought the

child to an examination by Dr. Rawal on November 30, 2009. Dr. Rawal found nothing

concerning about A.B.C.'s leg. Dr. Rawal manipulated the leg, hip, and ankle and found

no irregularities or outside indications of a problem. However, during this visit, the

doctor observed two bruises on A.B.C.'s left cheek. Appellants expressed concern as to

the cause of the child's easy bruising. Dr. Rawal ordered blood tests, which were done

at Aultman Hospital. The results of the test indicated abnormalities with respect to

A.B.C.'s platelet count, coagulation, and fibrinogen and hemoglobin counts. Dr. Rawal

recommended further testing with Dr. Patton at Akron Children's Hospital.
Stark County, Case No. 2011 CA 00073                                                     8


       {¶24} On cross-examination, Dr. Rawal indicated she was “surprised” by the

injury and the characterization of it as abuse in light of her interaction with appellants.

Tr. at 56. However, medically, she could not rule out the possibility A.B.C.'s leg fracture

was the result of an abusive injury. Id.

                               Appellant Kayla’s Testimony

       {¶25} Appellant Kayla testified on her own behalf. She also stated that Dr. Rawal

had prescribed iron drops for A.B.C. as the child was slightly anemic and such could be

the potential cause of his bruising. Kayla described the diaper changing incident and her

subsequent conversation with Dr. Rawal. Kayla testified the results of the blood tests at

Akron Children's Hospital ruled out leukemia and other similar conditions. The

hematologist wanted additional blood tests to rule out von Willebrand's disease. After

doing some of her own research, Kayla reported the diaper changing incident to the

hematologist, Dr. Patton, who ordered the x-rays. Appellants were subsequently

advised A.B.C. had a leg fracture.

       {¶26} On cross-examination, Kayla explained she did not take A.B.C. to the

emergency room after the diaper changing incident as the child was not fussing and his

leg was neither bruised nor swollen. Kayla conceded she had no explanation for

A.B.C.'s fractured leg. She would not characterize the diaper change at issue as violent.

                                           Analysis

       {¶27} Upon review, we most certainly concur with the trial court’s observation

that this is an unusual case. However, 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
Stark County, Case No. 2011 CA 00073                                                     9


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. In light of the expert

testimony presented by SCDJFS 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 A.B.C. is a dependent child under R.C. 2151.04(C), as the

nature of the physical injury and bruising to the child warrants, at least for now, state

intervention in his best interest.

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

                                            II.

       {¶29} In their Second Assignment of Error, appellants contend the SCDJFS

complaint erroneously failed to state a claim for dependency. We disagree.

       {¶30} As an initial matter, our review of the record does not reveal that

appellants raised this challenge to the complaint via motion, nor was it raised orally at

the adjudicatory hearing of March 18, 2010. Generally, an appellate court will not

consider any error which counsel for a party complaining of the trial court's judgment

could have called but did not call to the trial court's attention at a time when such error

could have been avoided or corrected by the trial court. See, e.g., State v. Childs

(1968), 14 Ohio St.2d 56, 236 N.E.2d 545, paragraph three of the syllabus.

       {¶31} Nonetheless, we note Juv. R. 10(B)(1) states that the complaint shall

"state in ordinary and concise language the essential facts that bring the proceeding
Stark County, Case No. 2011 CA 00073                                                     10

within the jurisdiction of the court ***." See, also, R.C. 2151.27; In Re Hunt (1976), 46

Ohio St. 2d 378.

       {¶32} In the case sub judice, we find the complaint filed by SCDJFS duly stated

the facts, concerns, and allegations leading to the filing. The complaint further explained

the initial reasons for agency involvement, the child's injuries, the medical findings

concerning those injuries and the parental explanation for the injuries. The complaint

also clearly stated, inter alia, the essential language of R.C. 2151.04(C).

       {¶33} We thus find no merit in appellants’ argument in this regard. Appellants’

Second Assignment of Error is overruled.

                                            III.

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

applied an improper legal standard or burden of proof in adjudicating A.B.C. as

dependent. We disagree.

       {¶35} A trial court must find that a child is an abused, neglected, or dependent

child by clear and convincing evidence. See R.C. 2151.35(A), supra. 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.
Stark County, Case No. 2011 CA 00073                                                        11

2003CA00298, 2004-Ohio-3370, ¶ 22, citing State v. Eley (1996), 77 Ohio St.3d 174,

180-181, 672 N.E.2d 640.

       {¶36} In the case sub judice, the judgment entry of March 19, 2010 utilized the

specific term of “clear and convincing evidence.” Following remand in the first appeal,

the trial court did not reiterate the term, but in its expanded conclusions of law, the court

recited the language of R.C. 2151.04(C) and stated, inter alia, as follows:

       {¶37} “The fact that there was no direct explanation for [A.B.C.’s] fractured leg is

sufficient to find him dependent under the totality of the circumstances because he is a

child whose condition or environment is such as to warrant the state, in his best interest,

in assuming his guardianship. He did not break his own leg. Someone else broke it

either intentionally or accidentally. The injury is inconsistent with the only explanation

given for it. *** At the conclusion of the case, the parents were visibly upset and the

Court spoke to them directly, acknowledging that they were disappointed and that it was

a strange set of circumstances. The Court went on to say that it did not know what

happened. In retrospect, that was an incorrect statement. The Court did know what

happened. Someone broke [A.B.C.’s] leg. What the Court did not know was who did it

and how or why. That lack of knowledge does not change the fact that [A.B.C.’s]

condition or environment warranted the state assuming his guardianship. The Court did,

and still does, have a firmly held belief that [A.B.C.] is a dependent child. If it did not, it

would not have found him to be so.”

       {¶38} Judgment Entry at 4-5 (emphasis added).
Stark County, Case No. 2011 CA 00073                                                       12


       {¶39} Upon review, we find no merit in appellants’ claim that the trial court failed

to apply the proper legal standard or burden of proof in this matter. Appellants’ Third

Assignment of Error is overruled.

                                             IV.

       {¶40} In their Fourth Assignment of Error, appellants contend the trial court erred

in its qualification of Dr. Steiner as an expert witness. We disagree.

       {¶41} On appeal, a trial court's ruling with respect to a witness's qualification as

an expert will not be reversed unless there is a clear showing that the court abused its

discretion. Welch v. MB Operating Co., Tuscarawas App.No. 94AP020007, 1994 WL

590410, citing Vinci v. Ceraolo (1992), 79 Ohio App.3d 640, 646.

       {¶42} Although suggesting in the text of this assigned error that the trial court

actually qualified Dr. Steiner as an expert in hematology, orthopedics, and radiology,

appellants concede in their brief that the trial court qualified him as an expert in pediatric

and child abuse pediatric medicine alone. See Appellants’ Brief at 22. Evid.R. 703

states: “The facts or data in the particular case upon which an expert bases an opinion

or inference may be those perceived by the expert or admitted in evidence at the

hearing.” In State v. Solomon (1991), 59 Ohio St.3d 124, 126, 570 N.E.2d 1118, the

Ohio Supreme Court stated that “where an expert bases his opinion, in whole or in

major part, on facts or data perceived by him, the requirement of Evid.R. 703 has been

satisfied.”

       {¶43} In the case sub judice, Dr. Steiner's testimony did not indicate that he

personally conducted or interpreted any hematological, orthopedic or radiologic testing.

While he did interpret bloodwork results on the record, this testimony was allowed after
Stark County, Case No. 2011 CA 00073                                                    13


Dr. Steiner had testified that he had specialized training in interpreting lab reports as

part of his experience as a pediatric physician. See Tr. at 21.

       {¶44} We find no abuse of discretion in the trial court’s allowance of Dr. Steiner’s

medical testimony and opinions under the circumstances of this case. Appellants’

Fourth Assignment of Error is overruled.

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

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


By: Wise, J.

Delaney, J., concurs.

Hoffman, P. J., dissents.




                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                  JUDGES
JWW/d 1113
Stark County, Case No. 2011 CA 00073                                                  14

Hoffman, P.J., dissenting

      (¶46) I respectfully dissent for the reasons set forth in my previous dissent in In

Re: A.B.C., 2011-Ohio-531.



                                               ________________________________
                                                HON. WILLIAM B. HOFFMAN
Stark County, Case No. 2011 CA 00073                                         15


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




IN THE MATTER OF:                      :
                                       :
                                       :
      A.B.C.                           :         JUDGMENT ENTRY
                                       :
                                       :
      MINOR CHILD(REN)                 :         Case No. 2011 CA 00073




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

judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is

affirmed.

      Costs assessed to appellants.




                                       ___________________________________


                                       ___________________________________


                                       ___________________________________

                                                         JUDGES
