In re D.M.

2014 Ohio 2160

• Court: Ohio Court of Appeals
• Decided: May 19, 2014
• Docket: 2013CA00225
• Status: Published

Opinion

[Cite as In re D.M., 2014-Ohio-2160.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: D.M. and : Hon. W. Scott Gwin, P.J. A.D. : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2013CA00225 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Juvenile Division, Case No. 2013JCV00456

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 19, 2014

APPEARANCES:

For-Appellee For Appellant

HOLLY DAVIES AARON KOVALCHIK JAMES PHILLIPS, JR. 116 Cleveland Avenue N.W. 300 Market Avenue North Suite 808 Canton, OH 44702 Canton, OH 44702 [Cite as In re D.M., 2014-Ohio-2160.]

Gwin, P.J.

{¶1} Appellant appeals the October 15, 2013 judgment entry of the Stark

County Court of Common Pleas, Juvenile Division, overruling her objections to the

magistrate’s decision and adopting the July 24, 2013 magistrate’s decision finding D.M.

abused and A.D. dependent.

Facts & Procedural History

{¶2} D.M. was born on February 17, 1996 and is the biological child of

appellant Sherry Lee (“Mother”) and Craig Mihal (“Mihal”). A.D. was born on January

13, 1999 and is the biological child of Mother and Gene Derheimer (“Derheimer”). On

May 3, 2013, Stark County Department of Job and Family Services (“SCDJFS”) filed a

complaint alleging D.M. and A.D. were abused, dependent, or neglected children and

seeking an order of temporary custody to Derheimer with protective supervision to

SCDJFS. The complaint alleged, in part, that Mother and the children had a prior

history with Carroll County Children’s Services. Further, that there were concerns about

Mother’s substance abuse and mental health issues. Specifically, the complaint alleged

Mother violated a Carroll County court order by trying to have D.M. placed on mental

health medication, that Mother abused marijuana, and that domestic violence occurred

in the home.

{¶3} In an order dated May 3, 2013, the trial court ordered Mother to complete

a parenting assessment at Northeast Behavioral Health, a drug and alcohol assessment

at Quest, to follow through with any treatment recommendations made at the

assessments, and ordered any visitation with Mother and the children be supervised

through SCDJFS. Stark County, Case No. 2013CA00225 3

{¶4} A contested evidentiary hearing was held on July 24, 2013 to determine

whether D.M. and A.D. were abused, neglected, and/or dependent children. Stephanie

Prater (“Prater”), an intake caseworker for SCDJFS, testified the agency has concerns

that Mother tried to put D.M. on medication against a Carroll County court order, about

Mother’s mental health issues, and domestic violence issues between Mother and D.M.

Prater examined the records from Carroll County Department of Job and Family

Services and determined there was a case opened in 2010 due to mental health issues

of Mother and the children, marijuana use by Mother, and ongoing issues with domestic

violence reports in the home. Prater stated D.M. did not have the mental health

diagnoses Mother reported he had. When Prater spoke with Mother, Mother admitted

she took D.M. to the doctor in violation of an order out of Carroll County. The doctor

declined to provide D.M. with medication because he was a new patient. Prater

independently confirmed the Carroll County order existed and also confirmed Mother

took D.M. to the doctor. Mother also told Prater about ongoing domestic violence

issues in the home. When Prater first requested Mother be tested for substance abuse,

Mother was positive for marijuana. However, Prater testified Mother recently screened

negative for marijuana. Prater visited Mother’s home and had no concerns about the

physical condition of the home.

{¶5} Prater testified D.M. had been charged with domestic violence against

Mother in Carroll County, which was reduced to disorderly conduct. When Prater spoke

with the children, both children reported concerns with living with Mother. A.D. told

Prater he was afraid to live with Mother. A.D. confirmed to Prater there were domestic

violence issues between Mother and D.M. and also domestic violence issues between Stark County, Case No. 2013CA00225 4

Mother and a male friend named Jimmy Cline (“Cline”). D.M. also told Prater there was

domestic violence between Mother and Cline.

{¶6} When asked whether Prater had concerns about her interview with

Mother, Prater testified she was concerned that Mother, during the interview, constantly

referred to D.M. as psychotic, an abuser, and a liar. Prater stated Mother agreed to a

safety plan and signed the safety plan. However, after Mother signed the safety plan,

D.M. informed Prater that Mother was attempting to pick him up, in violation of the plan.

Prater also expressed concern about Mother’s ongoing pattern of trying to label D.M. as

mentally ill. Prater concluded Mother cannot safely care for the children and both A.D.

and D.M. were at risk of serious mental, physical, or emotional harm if they remained

with Mother. Prater asked the trial court to find D.M. and A.D. dependent, neglected,

and abused as to Mother.

{¶7} Wendy Bogguss (“Bogguss”), Chief Probation Officer at Carroll County

Juvenile Court, testified D.M. had been on and off probation since 2010. Bogguss

stated Mother had an ongoing desire to medicate D.M. Bogguss testified D.M. was

respectful to the Carroll County Juvenile Court, she had no issues with him while he

was on probation, and the only issue the probation department had with the family was

Mother telling them D.M. needed medication and was mentally ill.

{¶8} Barbara Malavite (“Malavite”), a therapist at Pathway Caring for Children,

testified D.M. was a client of Pathway’s for approximately one year and D.M. improved

when he was placed in Derheimer’s home. Malavite stated she had concerns with

Mother’s behavior because Mother feels D.M. has mental issues which the

professionals at Pathway have not seen in D.M. Mother told the professionals at Stark County, Case No. 2013CA00225 5

Pathway that D.M. had schizophrenia and Mother wanted him medicated, but Malavite

did not see a reason to medicate D.M. and saw no signs of any mental health disorder

in D.M. Malavite evaluated D.M. during counseling and determined he had no mental

issues, but did diagnose him with Behavioral Disorder. Though Malavite told Mother

D.M. did not need medicated, Mother continued to say D.M. needed medicated.

Malavite testified a plan was put in place for D.M. to remove himself from situations

when there is conflict. However, Mother did not allow D.M. to follow the plan because

she would contact the police when D.M. removed himself from a situation. In Malavite’s

professional opinion, D.M.’s behavioral issues and conflict with Mother is rooted in

issues about medication because D.M. does not want to be medicated and cannot

function when he is medicated.

{¶9} All parties stipulated that Dr. Aimee Thomas (“Thomas”), a licensed

psychologist at Northeast Ohio Behavioral Health, was an expert witness in psychology

for purposes of the hearing. Thomas completed a parenting evaluation of Mother in

July of 2013 and met with her for two sessions of approximately one hour each.

Thomas did not meet or observe D.M. Thomas also reviewed SCDJFS’s information

related to the evaluation of D.M. in 2010 and 2012, neither of which identified any

serious mental issues of D.M or any of the mental conditions such as severe

depression, bipolar disorder, and Tourette syndrome like Mother said he had. Mother

provided Thomas with some information about D.M.’s psychological exams since 2005,

though the information Mother provided was not complete and Mother would not sign a

release for the balance of the information when requested by Thomas. Thomas stated

Mother was fixated on D.M. and his issues and Mother told her D.M. was very violent Stark County, Case No. 2013CA00225 6

with severe emotional problems. Mother told Thomas she smoked marijuana in the

past, but had stopped recently. Thomas testified Mother had a need to control people

and wanted to be needed by other people.

{¶10} Based on her evaluation and psychological testing, Thomas diagnosed

Mother with the following: Fictitious Disorder by Proxy or Munchausen by Proxy,

cannabis abuse, and Borderline Personality Disorder. Thomas further stated Mother

was co-dependent, controlling, and manipulative. Thomas testified Munchausen by

Proxy is typically diagnosed with collateral reports because the patient does not

acknowledge they are harming a child or fabricating disorders. Thus, Thomas had to

look for inconsistencies between what Mother reported was wrong with D.M. and other

documentation or evaluations of D.M. Features of Munchausen by Proxy include

fabrication of physical or psychological symptoms of someone in the individual’s care.

Thomas testified there is no treatment for the condition. Thomas stated that when a

child has a mental health condition, the primary source of information a professional

relies on to diagnose such issues is information from the child’s caregiver. As the child

gets older and starts to relay information to the professional him or herself, the reports

are inconsistent with the previous information provided by the parent. Thomas testified

she believes that is what happened in this case with Mother and D.M. Thomas stated

that Mother’s behavior with regards to D.M. is emotional abuse. When asked about

Mother’s ability to care for A.D., Thomas testified that if A.D. is in Mother’s care and

Mother does not have access to D.M., Mother will likely shift the fabrication of

symptoms to A.D. Stark County, Case No. 2013CA00225 7

{¶11} The Guardian Ad Litem, Holly Davies (“Davies”) submitted a report and

recommendation on July 17, 2013. Davies concluded both D.M. and A.D. should be

placed in the legal custody of Derheimer and D.M. should have no contact with Mother

until recommended by D.M.’s counselor. Finally, SCDJFS admitted the court order from

Carroll County and Mother’s parenting evaluation as exhibits without any objection from

any party.

{¶12} Mother did not testify, call any witnesses, or present any evidence. The

trial court proceeded to conduct a disposition hearing, where Derrick Mayle (“Mayle”),

the ongoing caseworker from SCDJFS, testified D.M. and A.D. were doing well at

Derheimer’s home. Mayle stated it was in the best interest of the children to award

temporary custody of A.D. and D.M. to Derheimer with protective supervision to

SCDJFS.

{¶13} On July 25, 2013, the magistrate issued a judgment entry finding that D.M.

is an abused child and A.D. is a dependent child. Mother filed objections to the

magistrate’s decision on August 5, 2013 and argued D.M. is not abused and A.D. is not

dependent. The trial court held an oral hearing on Mother’s objections on October 9,

2013. On October 15, 2013, the trial court issued a judgment entry overruling Mother’s

objections and adopting the magistrate’s decision of July 24, 2013. Mother filed an

appeal of the trial court’s October 15, 2013 judgment entry and raises the following

assignments of error on appeal:

{¶14} “I. THE JUDGMENT OF THE TRIAL COURT THAT A.D. WAS A

DEPENDENT WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE. Stark County, Case No. 2013CA00225 8

{¶15} "II. THE JUDGMENT OF THE TRIAL COURT THAT D.M. WAS AN

ABUSED CHILD WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF

THE EVIDENCE.”

I. & II.

{¶16} 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 the Matter

of F.M. and M.M., 5th Dist. Tuscarawas No. 2011 AP 07 0029, 2012-Ohio-1082. Clear

and convincing evidence is that evidence “which will provide in the mind of the trier of

facts a firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). “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.” Id. at 477. If some competent, credible evidence going

to all the essential elements of the case supports the trial court’s judgment, an appellate

court must affirm the judgment and not substitute its judgment for that of the trial court.

C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). Issues

relating to the credibility of witnesses and the weight to be given to the evidence are

primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is “crucial in a

child custody case, where there may be much evidence in the parties' demeanor and

attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d

415, 419, 674 N.E.2d 1159 (1997). Stark County, Case No. 2013CA00225 9

Abused Finding as to D.M.

{¶17} Mother argues the trial court erred in finding D.M. an abused child.

Specifically, Mother argues she was never charged with domestic violence against D.M.

and she was the victim of D.M. Further, that Dr. Thomas’ opinion was not credible

because she did not personally examine D.M. We disagree with Mother.

{¶18} R.C. 2151.031 provides, in pertinent 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 any injury

or death which is at variance with the history given of it. * * *

(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.

{¶19} We find competent and credible evidence exists in this case to support the

trial court’s conclusion that D.M. is an abused child pursuant to the statute. Prater

testified Mother tried to put D.M. on medication in violation of a Carroll County court

order and Mother admitted to Prater she took D.M. to the doctor in violation of the court

order. Prater was concerned Mother constantly referred to D.M. as a liar, psychotic,

and abusive. While Mother signed a safety plan, she quickly attempted to violate the

plan. Prater concluded Mother could not safely care for D.M. and he is at risk of serious

mental, physical, and emotional harm if he continues to stay with Mother. Bogguss

testified Mother had an ongoing desire to medicate D.M. Malavite stated D.M. improved Stark County, Case No. 2013CA00225 10

in Derheimer’s home and Mother told her he had serious mental health issues and

wanted him medicated, but Malavite saw no signs of a mental disorder in D.M. Malavite

also testified Mother would not follow through with the plan put in place to let D.M.

remove himself from conflict. Malavite concluded any conflict between D.M. and Mother

is rooted in Mother’s continual attempts to have D.M. medicated and D.M.’s desire not

to be medicated because he cannot function when medicated.

{¶20} Thomas, stipulated by all parties to be an expert in psychology, testified

that while she did not meet or observe D.M., she did meet with Mother and reviewed

records. She stated Mother’s interview and the records are consistent with the theme

that is typical of a patient with Munchausen’s by Proxy because when a child gets older

and can report their own symptoms to medical professionals, these reports are

inconsistent with previous information provided by the caregiver with Munchausen’s by

Proxy. Further, that the disease is typically diagnosed through collateral reports and

that is how Thomas made the diagnosis in this case. Though Mother argues Thomas

did not completely review the records, it was Mother’s failure to sign a release for the

records that prevented Thomas from reviewing them. Thomas testified that she did

review the portions of the records provided to her by Mother, but that some of the

records were incomplete and she could not obtain the full records because Mother

refused to sign a release for the remainder of the records. Thomas testified that

Mother’s behavior was emotional abuse of D.M. Accordingly, competent and credible

evidence exists to find D.M. is an abused child pursuant to R.C. 2151.031(C) and (D). Stark County, Case No. 2013CA00225 11

Dependent Finding as to A.D.

{¶21} Mother argues the trial court erred in finding A.D. to be a dependent child.

Specifically, Mother contends there was no conflict between A.D. and Mother and that

D.M. was the perpetrator of domestic violence against her and A.D. Further, that she

tested negative for marijuana, there were no physical concerns with her home, and she

was cooperating with services. We disagree with Mother’s argument that the trial court

erred in finding A.D. a dependent child.

{¶22} R.C. 2151.04 provides, in relevant part, that a dependent child means any

child:

(C) Whose condition or environment is such as to warrant

the state, in the interests of the child, in assuming the child’s

guardianship;

(D) To whom both of the following apply:

(1) The child is residing in a household in which a

parent, guardian, or 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.

(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 Stark County, Case No. 2013CA00225 12

child is in danger of being abused or neglected by that

parent, guardian, or custodian or member of the household.

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

whether the child is receiving proper care and support; the focus is on the condition of

the child. In re Bibb, 70 Ohio App.2d 117, 120, 435 N.E.2d 96 (1st. Dist. 1980). “The

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

part.” In re Bolser, 12th Dist. Butler Nos. CA99-02-038, CA99-03-048, 2000 WL 146026

(Jan. 31, 2000). 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, 2005-Ohio-

6134, 843 N.E.2d 211 (6th Dist.). Further, 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, 51 Ohio App.3d 148, 156,

555 N.E.2d 325 (4th Dist. 1988).

{¶24} We find competent and credible evidence exists in this case to support the

conclusion that A.D. is a dependent child pursuant to R.C. 2151.04(C), a child whose

condition or environment is such as to warrant the state, in the interests of the child, in

assuming the child’s guardianship. A.D. told Prater he was afraid to live with Mother

and that Mother had domestic violence issues with both D.M. and another male friend

named Cline. Though Prater testified Mother had recently tested negative for marijuana

and she did not have any physical concerns with the home, Prater also stated Mother

quickly attempted to violate the safety plan put in place. Prater concluded that Mother

cannot safely care for A.D. and he is at risk of serious mental, physical, and emotional

harm if he stays with her. Thomas, stipulated to being an expert in psychology by both Stark County, Case No. 2013CA00225 13

parties, diagnosed Mother with Munchausen’s by Proxy, for which there is no treatment.

Thomas testified that if Mother does not have access to D.M. but does live with A.D.,

she will likely shift the fabrication of symptoms to A.D. Finally, the guardian ad litem

recommended A.D. be placed in Derheimer’s custody with protective supervision by

{¶25} In addition, A.D. is a child residing in a household in which Mother

committed acts that were the basis for an adjudication that D.M., A.D.’s sibling, is an

abused child, as discussed above. Thomas stated that, because of the circumstances

surrounding Mother’s abuse of D.M. and D.M.’s removal from the home, A.D. is in

danger of being abused as Mother will likely shift the fabrication of symptoms to A.D.

Accordingly, competent and credible evidence exists to find A.D. is a dependent child

pursuant to R.C. 2151.04(D)(1) and (2). Stark County, Case No. 2013CA00225 14

{¶26} Based on the foregoing, we find the trial court did not err in finding D.M.

abused and in finding A.D. dependent. Appellant’s first and second assignments of

error are overruled. The October 15, 2013 judgment of the Stark County Court of

Common Pleas, Juvenile Division, is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur