In re N.I.

2024 Ohio 968

• Court: Ohio Court of Appeals
• Decided: March 14, 2024
• Docket: 112802
• Status: Published

Opinion

[Cite as In re N.I., 2024-Ohio-968.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE N.I., ET AL. :

Minor Children : No. 112802 [ Appeal by Parents] :

:

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: March 14, 2024

Civil Appeal from the Cuyahoga County Common Pleas Court Juvenile Division Case Nos. AD-22-912668 and AD-22-912669

Appearances:

Kate Pruchnicki, for appellants.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Zachary J. LaFleur, Assistant Prosecuting Attorney, for appellee.

ANITA LASTER MAYS, J.:

{¶1} Defendants-appellants, parents of N.I. and J.I. (“the children”) appeal

the trial court’s adoption of the magistrate’s decision adjudicating J.I. abused and

dependent and N.I. dependent and committing the children to the temporary custody of the Cuyahoga County Division of Children and Family Services

(“CCDCFS”). We find that the trial court erred in adopting the magistrate’s

decision and reverse the trial court’s judgment.

I. Procedural History

{¶2} On December 9, 2022, CCDCFS filed for temporary custody alleging

J.I. to be abused and dependent and alleging N.I. to be dependent pursuant to R.C.

2151.031, 2151.04, and 2151.33.1 CCDCFS was granted predispositional custody of

the children on December 21, 2022, and an adjudicatory hearing was scheduled for

April 14, 2023. On April 7, 2023, the parents moved to continue the April 14, 2023,

proceedings because their medical experts, who are located outside of Ohio, were

unable to appear at the proceedings due to scheduling conflicts. As an alternative,

the parents asked if the experts could appear via videoconferencing. The trial court

denied both requests. After the hearing, the magistrate granted temporary custody

to CCDFS. On April 19, 2023, the parents objected to the magistrate’s decision. On

May 9, 2023, the trial court overruled the parents’ objections and adopted the

magistrate’s decision.

II. Facts

{¶3} At the hearing on April 14, 2023, the facts of the case were explained

to the court. On November 2, 2022, J.I. was taken to a follow-up doctor’s

1 R.C. 2151.031 — Abused child defined; R.C. 2151.04 — Dependent child defined;

and R.C. 2151.33 — Temporary care; emergency medical treatment; reimbursement. appointment where his doctor noticed that his head circumference was increasing

at an alarming rate. The doctor ordered a CT scan and discovered liquid caused by

subdural hematomas. J.I. was referred to Dr. Joshua Friedman (“Dr. Friedman”),

a pediatrician and co-director of the Child Protection Team at the Cleveland Clinic.

Dr. Friedman testified that J.I.’s head imaging showed that there was bleeding

around the surface of his brain and that he needed an evaluation for possible child

abuse and neglect. Dr. Friedman also testified that the results of the other imaging

on J.I.’s brain were normal.

{¶4} Dr. Friedman further testified that child abuse is one of the causes of

this type of injury, however there are other causes like birth trauma and accidents.

The record reflects that J.I.’s birth was difficult in that he was born with his

umbilical cord wrapped around his neck and was not breathing. Additionally, J.I.’s

medical records demonstrate that he suffered from macrocephaly, an unusually

enlarged head, from birth. At each of his pediatric well-child visits, his head

measured abnormally large for his age and body size. On July 24, 2022, at birth,

J.I.’s head measured 34.5 cm, and at his two-month doctor’s visit, it measured 39

cm, demonstrating an abnormally rapid increase in head circumference. On

September 15, 2022, J.I. was diagnosed with Respiratory Syncytial Virus (“RSV”),

and two weeks later, his head circumference measured 42.5 cm.

{¶5} Dr. Friedman stated that after he reviewed J.I.’s imaging, he consulted

with the radiologist to further review the images and the scalable exam. The radiologist decided that J.I.’s scalable exam was normal. However, Dr. Friedman

noted that he was concerned about a possible healed rib fracture, and the

radiologist added it to the report.

{¶6} Next, Dr. Friedman testified that he did not interview or ask the

parents about a possible history of accidents or traumas. He further stated that

the likelihood of subdural hematomas from birth and birth trauma is very high,

from 25 to 50 percent of all births and that from this trauma he did not suspect

abuse. However, his opinion changed and he suspected child abuse because of the

possible healed rib fracture.

{¶7} On cross-examination, Dr. Friedman was asked if he agreed that where

a child is diagnosed with a subdural hematoma that is in fact the product of abuse

or a non-accidental trauma, it is usually accompanied with many other non-

accidental traumas such as skull fractures, visceral injuries, suspicious bruising,

acute brain injury, internal organ injury, and cervical spine injury. Dr. Friedman

agreed and stated that J.I. was not diagnosed with any of those other injuries. Dr.

Friedman further testified that there was not a definitive diagnosis of a rib fracture,

but a possible healed rib fracture. He also said that healed rib fractures present

with callous formations, bone fragments, and formation of a fracture line.

However, none of those were present in J.I.’s imaging. Dr. Friedman also agreed

with another doctor’s assessment that the possible rib fracture could have been

caused by severe coughing from J.I.’s RSV. [Cite as In re N.I., 2024-Ohio-968.] {¶8} On November 5, 2022, Therese Horvath (“Ms. Horvath”), a supervisor

of the Medical and Special Investigations Unit with the CCDCFS, received a report

of suspected abuse from Cleveland Clinic. The report stated that J.I. had subdural

hematomas and there were concerns about abuse. Ms. Horvath referred the case

to caseworker Lorianne Delsignore (“Ms. Delsignore”), who was unable to testify

at the hearing. However, Ms. Horvath testified that she and Ms. Delsignore had

regular ongoing conferences several times a week concerning J.I.’s case.

{¶9} Ms. Horvath testified that Ms. Delsignore started the investigation

immediately, interviewing the Cleveland Clinic staff, Dr. Friedman, the parents,

and other people. The agency filed a complaint alleging abuse of J.I. after four eye

exams were conducted on J.I. Ms. Horvath testified that there were conflicting

reports from each doctor on what they observed. She also testified that the agency

did not review J.I.’s birth records. Further, Ms. Horvath stated that Ms. Delsignore

reported that the parents were not always cooperative with the investigation.

{¶10} On cross-examination, Ms. Horvath testified that the agency

interviewed friends of the family, family members, caregivers, and no one

suspected abuse of J.I. According to Ms. Horvath, the agency did not uncover any

additional evidence of abuse, trauma, or injuries. Ms. Horvath also agreed that

J.I.’s hematomas could be a result of a birth injury. Additionally, Ms. Horvath

testified that police investigated the parents and daycare and decided to conclude

their investigation. Ms. Horvath also agreed that there was no knowledge if J.I. was actually abused, and if he was, there is no evidence that the parents committed

the abuse.

{¶11} Further, Ms. Horvath confirmed that N.I. was not suspected of being

abused, and the complaint as it pertains to N.I. was filed because of the suspected

abuse of J.I.

{¶12} Detective Terry Wamser (“Det. Wamser”), a detective with the Seven

Hills Police Department, the city where the parents live, testified that he

investigated a report pertaining to the abuse of J.I. Det. Wamser testified that he

spoke with the parents and the daycare and did not find anything supporting

allegations of abuse. He also testified that he obtained J.I.’s medical records, and

according to the medical records, “it could go either way.” Tr. 109. Det. Wamser

stated that he presented his findings to the prosecutor, and they declined to bring

charges because there was no evidence of abuse.

{¶13} After the hearing, and the magistrate’s decision, the trial court

affirmed the decision and issued a journal entry, stating, in part: “The Court finds

that the allegations of the complaint have been proven by clear and convincing

evidence. The child is adjudicated to be abused and dependent.” Journal Entry

Nos. 0916802188 and 0916804506 (May 10, 2023).

{¶14} The parents filed an appeal assigning four errors for our review:

1. The trial court erred when it overruled appellants’ objections to the magistrate’s decisions adjudicating J.I. to be abused/dependent and N.I. to be dependent, as the magistrate’s decisions were contrary to law;

2. The trial court erred in overruling appellants’ objections to the magistrate’s decisions denying appellants’ request for the release of CCDCFS’s unredacted activity logs, as the magistrate’s decisions were contrary to law;

3. The trial court erred in overruling appellants’ objections to the magistrate’s decisions prohibiting appellants from proffering the medical experts reports at the time of adjudication, as the magistrate’s decisions were contrary to law; and

4. The trial court erred in adopting the magistrate’s decisions and overruling appellants’ objections to the magistrate’s decisions committing J.I. and N.I. to the temporary custody of CCDCFS, as the magistrate’s decision were contrary to law.

{¶15} We will review assignments of error Nos. 1 and 4 together, because

they are dispositive of the case. App.R. 12.

III. Standard of Review

{¶16} R.C. 2151.35(A) sets forth the applicable evidentiary standard for

determining whether children are abused, neglected, or dependent at an

adjudicatory hearing. It provides, in relevant part:

If the court at the adjudicatory hearing finds from clear and convincing evidence that the child is an abused, neglected, or dependent child, the court shall proceed, in accordance with division (B) of this section, to hold a dispositional hearing and hear the evidence as to the proper disposition to be made under section 2151.353 of the Revised Code.

{¶17} “Clear and convincing evidence is that which ‘produce[s] in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be established.’” In re E.B., 2020-Ohio-4139, 157 N.E.3d 826, ¶ 46 (8th Dist.), quoting

In re Pieper Children, 85 Ohio App.3d 318, 326, 619 N.E.2d 1059 (12th Dist.1993).

“If allegations in the complaint are not proved by clear and convincing evidence at

the adjudicatory hearing, the juvenile court must dismiss the complaint. Juv.R.

29(F)(1); R.C. 2151.35(A)(1).” Id.

{¶18} ‘‘When an appellate court examines whether a trial court’s judgment

is based upon clear and convincing evidence, ‘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 ¶ 47, quoting In re C.O., 8th Dist.

Cuyahoga Nos. 99334 and 99335, 2013-Ohio-5239, ¶ 30. “If the trial court’s

judgment is ‘supported by some competent, credible evidence going to all the

essential elements of the case,’ a reviewing court may not reverse that judgment.

Id., quoting State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).

“Furthermore, ‘an appellate court should not substitute its judgment for that of the

trial court when there exists competent and credible evidence supporting the

findings of fact and conclusion of law.’” Id. at id. “Moreover, deferring to the trial

court on matters of credibility is ‘crucial’ in cases involving children, ‘where there

may be much evident in the parties’ demeanor and attitude that does not translate

to the record well.’” Id., quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674

N.E.2d 1159 (1997).

IV. Law and Analysis {¶19} In the parents’ first and fourth assignments of error, they argue that

the trial court erred when it overruled their objections and adopted the

magistrate’s decision adjudicating J.I. to be abused/dependent and N.I.

dependent, committing the children to the temporary custody of CCDCFS.

{¶20} R.C. 2151.031(D) states that an abused child “[e]xhibits 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.” “Finally, child

abuse has also been defined as ‘[a]n act or failure to act that presents an imminent

risk of serious physical harm to a child.’” State v. Moore, 8th Dist. Cuyahoga No.

94446, 2011-Ohio-454, ¶ 10, quoting Black’s Law Dictionary (9th Ed.2009).

{¶21} The record reveals that CCDCFS has failed to demonstrate that J.I.’s

subdural hematomas and potential healed rib fracture was inflicted other than by

accidental means. Dr. Friedman testified that this type of injury could be caused

by birth trauma and accidents. He further stated that the likelihood of subdural

hematomas from birth and birth trauma is very high, from 25 to 50 percent of all

births and that from this trauma he did not suspect abuse. However, his opinion

changed, and he suspected child abuse because of the possible healed rib fracture.

Though Dr. Friedman also agreed with another doctor’s assessment that the

possible rib fracture could have been caused by severe coughing from J.I.’s RSV.

{¶22} Dr. Friedman was asked if he agreed that where a child is diagnosed

with a subdural hematoma that is in fact the product of abuse or a non-accidental trauma, it is usually accompanied with many other non-accidental traumas such

as skull fractures, visceral injuries, suspicious bruising, acute brain injury, internal

organ injury, and cervical spine injury. Dr. Friedman agreed and stated that J.I.

was not diagnosed with any of those other injuries. Dr. Friedman further testified

that there was not a definitive diagnosis of a rib fracture, but a possible healed rib

fracture. He also said that healed rib fractures present with callous formations,

bone fragments, and formation of a fracture line. However, none of those were

present on J.I.’s imaging.

{¶23} Additionally, Ms. Horvath also agreed that J.I.’s hematomas could be

a result of a birth injury. Ms. Horvath also agreed that there was not any

knowledge of whether J.I. was actually abused, and if he was, there is no evidence

that the parents committed the abuse. Det. Wamser testified that he spoke with

the parents and the daycare and did not find any supported allegations of abuse.

He also testified that he obtained J.I.’s medical records, and according to the

medical records, “it could go either way.” Tr. 109. Det. Wamser stated that he

presented his findings to the prosecutor, and they declined to bring charges

because there was no evidence of abuse.

{¶24} Given the testimonies of Dr. Friedman, Ms. Horvath, and Det.

Wamser, there is no clear and convincing evidence that J.I. was abused.

Clear and convincing evidence has been defined as “that measure or degree of proof which is more than a mere preponderance of the evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

State v. Walker, 8th Dist. Cuyahoga No. 111656, 2023-Ohio-810, ¶ 14, quoting Cross

v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

{¶25} Therefore, the trial court erred in adjudicating J.I. to be

abused/dependent. Because Ms. Horvath confirmed that N.I. was not suspected

of being abused, and the complaint as it pertains to N.I. was filed because of the

suspected abuse of J.I., the trial court erred in adopting the magistrate’s decisions

committing both J.I. and N.I. to the temporary custody of CCDCFS.

{¶26} Therefore, the parents’ first and fourth assignments of error are

sustained. We need not address assignments of error Nos. 2 and 3 because our

resolution of assignments of error Nos. 1 and 4 is dispositive of the case. App.R.

12.

{¶27} Judgment reversed and remanded to the trial court for further

proceedings consistent with this opinion.

It is ordered that appellants recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

______________________________________ ANITA LASTER MAYS, JUDGE

EILEEN A. GALLAGHER, P.J., and LISA B. FORBES, J., CONCUR