      [Cite as In re G.W., 2020-Ohio-3355.]

                       IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




IN RE: G.W. and A.N.                          :     APPEAL NOS. C-190388
                                                                 C-190390
                                              :     TRIAL NO. F18-1051X

                                              :        O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 17, 2020


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jonathan Halvonik,
Assistant Prosecuting Attorney, for Appellant Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Megan E. Busam,
Assistant Public Defender, Guardian ad Litem for Appellants G.W. and A.N.,

Tibbs Law Office, LLC, and Sarah E. Michel, and Ostrowski Law Firm, L.P.A., and
Andrea Ostrowski, for Appellee Mother,

Roger W. Kirk, for Appellee Father.
                       OHIO FIRST DISTRICT COURT OF APPEALS




WINKLER, Judge.

       {¶1}     The Hamilton County Department of Job and Family Services (“HCJFS”

or “agency”) and the guardian ad litem (“GAL”) for appellees’ minor children, G.W. and

A.N., appeal the judgment of the Hamilton County Juvenile Court dismissing a complaint

for temporary custody. The agency had sought custody on the grounds that G.W. and

A.N., who had multiple, internal physical injuries, were abused, neglected and dependent.

At the hearing on the agency’s motion, medical experts disagreed as to whether the

children’s injuries were due to a medical condition or physical abuse. The evidence also

showed that appellees had repeatedly taken the young children to medical appointments,

at which no abuse was suspected. The juvenile court carefully weighed the evidence

presented at the hearing, determined that the agency had failed to prove its case by clear-

and-convincing evidence, and dismissed the complaint.

       {¶2}    On appeal, the appellants argue the decision must be reversed because the

juvenile court failed to have the appellees’ expert witness sworn, and HCJFS presented

competent and credible evidence of the allegations. For the reasons that follow, we affirm.

                         I. Background Facts and Procedure

       {¶3}    This case began after mother took two-month-old A.N. to a pediatric visit

in early May 2018. She raised concerns about the fullness of his fontanelle and his lack of

feeding, an issue she had raised at several prior pediatric visits since A.N.’s difficult birth

with a forceps assist. Based on these concerns, A.N. was evaluated at Cincinnati Children’s

Hospital. Skeletal survey x-rays and computed tomography (“CAT”) scan results showed

that A.N. had multiple injuries in various stages of healing. These included a bleed in the

subdural space of the skull, and fractures to his ribs, clavicle, extremities and vertebrae.




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Dr. Kathi Makoroff, part of the child-abuse team at Children’s Hospital, diagnosed A.N.’s

injuries as due to “physical child abuse.”

        {¶4}    The medical team at the hospital then evaluated A.N.’s 15-month-old

sibling, G.W. She was found to have multiple healing rib fractures, which Dr. Makoroff

also diagnosed as due to physical child abuse.

        {¶5}    Based on the medical evaluation and the parents’ inability to present an

accidental explanation for the multiple internal injuries, the agency concluded that the

children had been subjected to a continuing pattern of physical abuse, likely by the

appellees, the biological parents with whom they lived.

        {¶6}    In June 2018, the appellees sought an alternative explanation for the

injuries from Dr. Michael Holick, specializing in the study of the genetic disorder Ehlers-

Danlos Syndrome (“EDS”) at the Boston University Medical Center. Dr. Holick diagnosed

the children as having EDS and concluded that the children’s injures were the result of the

underlying disorder.

        {¶7}    In July 2018, HCJFS filed a complaint for temporary custody and received

interim custody. Adjudicatory hearings took place on several dates before a veteran

visiting judge of the juvenile court.

        {¶8}    At the adjudication hearing, HCJFS presented testimony and reports from

Dr. Makoroff and Dr. Alan Oestreich, another member of the child-abuse team at

Cincinnati’s Children’s Hospital. Both opined that the children’s injuries were the result of

physical abuse. Dr. Makoroff, an expert on pediatric child abuse, explained that her

opinion of physical abuse was based on the medical records, including the films, the family

history she had obtained from mother, the location of the injuries, and an examination of

the children. Dr. Makoroff, however, had examined the children for less than ten minutes,




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and she had not examined A.N.’s birth records, even though A.N.’s subdural bleed and rib

fractures could have been the remnant of his difficult birth.

       {¶9}      Dr. Alan Oestreich, an expert in pediatric radiology, explained that his

opinion of physical abuse was based largely on the films, which he claimed showed no

evidence of any metabolic bone disease existing at the time. Dr. Oestreich, however, did

not examine the children. And his opinion on determining the age of A.N.’s rib fractures

conflicted with Dr. Makoroff’s opinion that some of the rib fractures could have dated to

birth. Dr. Oestreich also conceded that multiple radiologists could interpret the same x-

ray differently, as illustrated by the fact that he based his findings on a review of a

radiology report from another physician with whom he disagreed.

       {¶10} The parents’ medical expert, Dr. Michael Holick, the only expert on EDS to

testify, disagreed with the opinions of Dr. Makoroff and Dr. Oestreich. He opined,

consistent with his report that was admitted into evidence, that their injuries were the

result of EDS.

       {¶11} Dr. Holick described the children’s condition, EDS Hypermobility Type 3,

as a disorder of the collagen elastin matrix in the body, which makes bones “much more

prone to fracture” and causes infant blood vessel fragility, particularly in the subdural area

outside the brain. Additionally, he explained that the children’s skeletons at the time of

the injuries were likely compromised by a vitamin D deficiency, remedied by switching to

formula feedings.

       {¶12} Dr. Holick relayed that he had made his diagnosis and opinion after

thoroughly examining the children, their mother, maternal grandfather, and great

grandmother at the Ehlers-Danlos Clinical Research Program, obtaining a detailed family

history, and reviewing all the medical records, including the films.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} Dr. Holick’s testimony, presented by a video link, was unsworn, but HCJFS

and the GAL did not object to this defect.

       {¶14} Other testimony at the adjudication hearing from the medical experts

showed that the parents undisputedly had taken the children for frequent, routine medical

examinations since birth. Finally, the agency presented testimony from the in-take

caseworker for HCJFS assigned to the children and the Hamilton County sheriff’s

detective assigned to the criminal investigation involving the children.    This testimony

demonstrated that the parents had been indicted on charges of child endangering and

felonious assault, but they had made no incriminating admissions except that they were

the sole caretakers for the children.

       {¶15} After the presentation of the evidence, the parties submitted written closing

arguments. Subsequently, the juvenile court issued a written decision dismissing the

complaint for lack of clear-and-convincing evidence. The court also summarized the

evidence and explained why it had found Dr. Holick’s testimony more credible.

                                 II. Arguments on Appeal

       {¶16} HCJFS’s first two assignments of error claim the juvenile court’s failure to

have Dr. Holick sworn and its reliance on his testimony was either objected-to or plain

error. In its final assignment of error, HCJFS contends the court erred by failing to

adjudicate the children abused, neglected, and dependent, when HCJFS had presented

clear-and-convincing evidence of the allegations. The GAL raises two assignments of

error, both alleging that the court erred by dismissing the complaint and failing to

adjudicate the children as abused and dependent based on the evidence presented.

According to the GAL, the court clearly lost its way when evaluating the evidence.




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                         A. Failure to Have Dr. Holick Sworn

       {¶17} The record shows that Dr. Holick testified out of order at the start of the

second day of the adjudication hearing. Although Dr. Holick was located in Boston, he

testified live by a video telelink. After the court resolved technological issues, mother’s

attorney asked the court, “Are you ready for me to inquire?” The court replied, “Let’s do

some identifying testimony first.”

       {¶18} Mother’s attorney asked Dr. Holick a series of questions concerning his

qualifications. The following exchange then transpired:

       [Mother’s attorney]: Okay, Dr. Holick, we are going to need to swear you in

       here at the court. So I’m going to let – turn that over to the Judge to do.

       The Court: I’m sorry?

       [Mother’s attorney]: Do you want him sworn in?

       The Court: No. Will you stipulate to his qualifications?

       [HCJFS’s attorney]: Yeah. Job and Family Services would stipulate to his

       educational background or his curriculum vitae.

       The Court: Thank you. And will you stipulate to the expert qualification?

       [HCJFS’s attorney]: Yeah. And an expert in Ehlers-Danlos Syndrome.

       That’s what Job and Family Services will stipulate.

       The Court: Thank you. I appreciate that. Go ahead [mother’s attorney].

       {¶19} After this exchange, Dr. Holick’s testimony continued without objection.

HCJFS and the GAL cross-examined him, and the trial court asked him several questions.

       {¶20} HCJFS now contends that the juvenile court’s decision must be reversed

because the trial court “declined” to swear in Dr. Holick and then relied upon his

testimony in making its decision.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21} R.C. 2317.30 provides that “[b]efore testifying, a witness shall be sworn to

testify to the truth, the whole truth, and nothing but the truth.” Ordinarily, it is reversible

error for a court to refuse to have a witness sworn and then rely upon that witness’s

unsworn testimony in resolving the dispute.       State v. Ballou, 21 Ohio App.2d 59, 254

N.E.2d 697 (1st Dist.1969); see Arcaro Bros. Builders, Inc. v. Zoning Bd. of Appeals, 7

Ohio St.2d 32, 218 N.E.2d 179 (1966). But, the mere failure to have a witness sworn is

error that may be waived, and thus, unsworn testimony is competent evidence where the

opposing counsel neither requests that the witness be sworn nor makes a timely objection

to the testimony. See Stores Realty Co. v. City of Cleveland, Bd. of Bldg. Standards and

Bldg. Appeals, 41 Ohio St.2d 41, 322 N.E.2d 629 (1975); State v. Mason, 2d Dist.

Montgomery No. 8164, 1983 WL 4959 (Sept. 20, 1983).

       {¶22} Although the agency characterizes the juvenile court’s conduct here as a

refusal to have a witness sworn as in Ballou, the cases are distinguishable. Ballou involved

the reversal of a conviction for operating a motor vehicle while under a license suspension.

Ballou at 60. At trial, the court called the deputy clerk of court as a witness and permitted

him to testify to the defendant’s prior record without first having been sworn. Id. Defense

counsel objected, but the court overruled the objection, explaining that the witness did not

need to be sworn because he was “ ‘an officer of the court.’ ”       Id.   In this matter, the

transcript reveals that the court expressed difficulty hearing the request of appellee

mother’s attorney to have the witness sworn, and its negative reply to the attorney’s

question was combined with an inquiry to HCJFS’s attorney concerning a stipulation to

the witness’s qualifications. Thus, we conclude that the juvenile court misheard mother’s

attorney’s question, and its inapt response, when considered in context, was not an

intentional refusal to have the mother’s witness sworn, as in Ballou.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23} Further, unlike in the appellant in Ballou, HCJFS did not request that Dr.

Holick be sworn or object to his testimony. Instead, HCJFS stipulated to his qualifications

as an expert, cross-examined him, and cited parts of his testimony in support of an

adjudication, thus treating him as fully qualified and competent to testify. Under these

circumstances, we conclude that HCJFS waived any error in the court’s failure to have Dr.

Holick sworn.

       {¶24} HCJFS also raises a claim of plain error. Our application of the plain-error

doctrine to remedy error that the appellant failed to object to is strictly limited “to the

extremely rare” case “involving exceptional circumstances” where the error “seriously

affects the basic fairness, integrity, or public reputation of the judicial process, thereby

challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson,

79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus; In re E.N., 1st Dist. Hamilton No. C-

170272, 2018-Ohio-3919, ¶ 27; Matter of J.M., 4th Dist. Ross No. 18CA3633, 2018-Ohio-

5374, ¶ 28. For example, we have applied the plain-error doctrine to remedy the court’s

violation of a mother’s due-process rights at a dependency hearing when court failed to

satisfy its duty to determine whether mother was making a knowing, intelligent, and

voluntary admission to facts that resulted in the permanent loss of her parental rights. See

In re Etter, 134 Ohio App.3d 484, 731 N.E.2d 694 (1st Dist.1998).

       {¶25} This case does not meet the plain-error standard. Importantly, there is

nothing in the record to support a conclusion that Dr. Holick’s testimony would have been

different had it been presented under oath.           HCJFS stipulated to Dr. Holick’s

qualifications as an expert. Further, Dr. Holick’s testimony was consistent with his report,

which was admitted as an exhibit at the adjudication hearing. He was thoroughly cross-

examined at the hearing by HCJFS and the GAL, and the court asked several questions.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



Consequently, although the juvenile court failed to have Dr. Holick sworn, HCJFS failed to

object to the error, and the record shows that this is not “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,”

See Goldfuss at 122-123, requiring a reversal under the plain-error doctrine. Accordingly,

we overrule HCJFS’s first and second assignments of errors.

                                  B. Failure to Adjudicate

        {¶26} The remaining assignments of error, which can be addressed together, are

also not demonstrated by the record. HCJFS and the GAL argue the trial court erred in

failing to find the children abused, neglected, and dependent based on the competent and

credible evidence adduced at the adjudication hearing.

        {¶27} As set forth in the complaint, the agency requested a finding of abuse

pursuant to R.C. 2151.031(B), (C), and (D); neglect pursuant to R.C. 2151.03(A)(3) and (6);

and dependency pursuant to R.C. 2151.04(B) and (C). The underlying bases for these

allegations was the claim that the children were victims of physical abuse, by their parents

or others, that the parents failed, either willfully or through neglect, to seek proper medical

treatment for their injuries, and that the children lacked adequate care and support. The

agency was required to prove the allegations by clear-and-convincing evidence. See Juv.R.

29(E)(4). After weighing the evidence presented at the multiple-date hearing, the juvenile

court determined that the state did not meet its burden.1

        {¶28} The record shows the juvenile court applied the correct statutory tests

based on the allegations set forth in the complaint. The appellants contend, however, that



1 The juvenile court dismissed the complaint under Juv.R. 29(F)(1) for failure of proof, not under
(F)(2)(d), which provides the court with discretion to dismiss the complaint when the allegations
are admitted or proven, “if dismissal is in the best interest of the child and the community.”


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                       OHIO FIRST DISTRICT COURT OF APPEALS



the court failed in weighing the evidence presented. To review a weight-of-the-evidence

claim, this court must weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether in resolving conflicts in the evidence,

the trial court clearly lost its way and created such a manifest miscarriage of justice that

the judgment must be reversed and a new trial ordered. See In re A.B., 1st Dist. Hamilton

Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 16, citing Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; State v. Thompkins, 78 Ohio St.3d 380,

678 N.E.2d 541 (1997), cited in McKenna v. McKenna, 1st Dist. Hamilton No. C-180475,

2019-Ohio-3807, ¶ 10.

       {¶29} The burden for appellants to prevail on this claim is substantial. The

juvenile court is afforded great deference because it was the fact-finder and the case

involves the custody and welfare of children. See In re A.B. at ¶ 28. Under these

circumstances, “to reverse on the ground that the judgment was against the manifest

weight of the evidence, the judgment must be so contrary to the probative value of all the

admissible evidence that was before the trial court that we can only conclude that the court

lost its way and a manifest miscarriage of justice resulted.” Id.

                                           Abuse

       {¶30} HCJFS presented Dr. Makoroff’s and Dr. Oestreich’s opinion testimony to

show that the injuries were the result of physical abuse. The parents admitted that they

were the sole caretakers of the children, but the evidence contains no other incriminating

admissions. Dr. Holick’s opinion refuted the agency’s evidence that the injuries were

inflicted by physical abuse.

       {¶31} Appellants’ arguments that the juvenile court lost its way when weighing

the expert testimony are not persuasive. For instance, appellants argue that Dr. Holick’s




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                       OHIO FIRST DISTRICT COURT OF APPEALS



diagnosis is not credible because one tool for the EDS diagnosis, the Beighton Scale, is not

applied to children under the age of five. This limitation is due to young children’s

increased flexibility and resistance to certain evaluation tests. But Dr. Holick explained

that due to his refined techniques and his 40 years of practice, he is able to determine if a

child’s flexibility is beyond the normal range for the child’s age and gender. Further, he

explained that he relied on other indicators beyond the children’s extreme joint

hypermobility, including the family history of the genetically-acquired disease and

physical manifestations such as blue sclera in the children’s eyes and the elasticity and

transparency of their skin.

       {¶32} Appellants argue also that Dr. Holick’s opinion was undermined by

testimony from the detective indicating that neither child had medical issues after removal

from parents’ care. But the detective’s testimony conflicted with Dr. Makoroff’s testimony

that A.N. was treated for medical issues in the fall of 2018, when the children were in

foster case. Further, the caretakers would have been aware of Dr. Holick’s July 2018

diagnosis concerning the children’s frailty. Additionally, the children’s injuries were

unusual in that they would not be diagnosed without films. Finally, Dr. Holick indicated

that children’s bone structure and frailty would have improved when their vitamin D

intake increased.

       {¶33} The trial court accurately summarized the testimony at the hearing, and

explained that only Dr. Holick had performed an in-depth examination of the children.

The trial court also accurately noted that some of Dr. Oestreich’s radiology opinions

conflicted with Dr. Makoroff’s and those of another physician upon whose radiology

report he based his own findings. Further, the court noted the lack of evidence showing




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                      OHIO FIRST DISTRICT COURT OF APPEALS



any “hint of suspicion” of abuse by medical personnel who examined the children during

their many medical appointments before May 2018.

       {¶34} Ultimately, Dr. Holick was the only expert in EDS who testified. In

addition to his expertise in EDS due to 40 years of practice, he is the Director of the Bone

Health Clinic and the Vitamin D, Skin and the Bone Research Laboratory at the Boston

University Medical Center. Dr. Holick testified with specificity about the frailty of the

children in connection with the injuries. For instance, he explained that the children were

so frail that the normal burping of the children and A.N.’s difficult birth would have

caused the rib fractures, and that the forceps delivery likely caused A.N.’s subdural bleed.

He further explained that the possible serious effects of such a bleed are minimized if the

child’s cranial cavity is large enough, a circumstance he found likely in this case. He

unequivocally opined that the children’s injuries were the result of their inherited medical

condition, EDS.

       {¶35} The juvenile court recognized the “impeccable qualifications” of all the

experts and acknowledged the difficult task of weighing and balancing the expert

testimony, but permissibly afforded Dr. Holick’s testimony substantial weight when

determining that the agency failed to meet its high burden of proving the children were

the victims of abuse by clear-and-convincing evidence. Further, the court exhibited

sincere concern for the welfare of the children and due respect for the judicial process.

The record does not show that the judgment is “so contrary to the probative value of all the

admissible evidence” that this court “can only conclude that the court lost its way and a

manifest miscarriage of justice resulted.” In re A.B., 1st Dist. Hamilton No. C-150307,

2015-Ohio-3247, at ¶ 28.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



                               Neglect and Dependency

         {¶36} Similarly, there is nothing in the record to suggest the juvenile court lost its

way when dismissing the allegations of neglect or dependency. HCJFS’s and the GAL’s

primary argument is that the children’s home environment warranted the state to assume

guardianship. This argument, however, is based on the unproven allegation of physical

abuse.

         {¶37} Further, the agency presented no evidence that the parents had any

impediments that prevented them from parenting the children or that the parents had

failed to provide appropriate care or support. Dr. Marokoff testified that the pediatric

medical records she reviewed showed the parents had taken A.N. to the pediatrician five

times before his visit on May 2, 2018, at eight weeks of age, and that the parents had taken

G.W. to the pediatrician 15 times since her birth. Dr. Holick presented similar testimony

showing the parents’ appropriate attention to the children’s medical needs. Although the

actual pediatric medical records were not admitted into evidence, we cannot say the

juvenile court lost its way in relying on this unobjected-to testimony.

         {¶38} Consequently, because the appellants’ claims are not supported by the

record, we overrule the agency’s third assignment of error and the GAL’s two assignments

of error.

                                        III. Conclusion

         {¶39} This court is guided by the presumption that the juvenile court’s findings

are correct, and must be aware that as in any trial, “the weight to be given the evidence and

the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The agency’s

central allegation of physical abuse was refuted by Dr. Holick. In affording great weight to




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Dr. Holick’s testimony, the juvenile court did not so lose its way as to create a manifest

miscarriage of justice warranting a reversal. We also cannot say that the trial court’s

failure to have Dr. Holick sworn rose to the level of plain error, as there was no

demonstration that his testimony would have been different if under oath. Accordingly,

we affirm the juvenile court’s dismissal of HCJFS’s motion for temporary custody.

                                                                      Judgment affirmed.

MOCK, P.J., and CROUSE, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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