[Cite as In re S. Children, 2018-Ohio-3559.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: S. CHILDREN : JUDGES: CARLA LYCAN : : Hon. William B. Hoffman, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : Case Nos. 2018CA00040 : 2018CA00041 : : : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Juvenile Division, Case Nos. 2017JCV01408, 2017JCV01409
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 4, 2018
APPEARANCES:
For Objector-Appellant: For Appellee:
DONALD GALLICK BRANDON J. WALTENBAUGH 190 North Union St. #102 STARK COUNTY JFS Akron, OH 44304 402 2nd St. SE Canton, OH 44702 Stark County, Case Nos. 2018CA00040, 2018CA00041 2
Delaney, J.
{¶1} Appellant Carla Lycan (“Aunt”) appeals from the February 12, 2018 journal
entries of the magistrate and April 3, 2018 judgment entries of the trial court of the Stark
County Court of Common Pleas, Juvenile Division. Appellee is Stark County Jobs and
Family Services (the “Agency”).
FACTS AND PROCEDURAL HISTORY
{¶2} This case involves legal custody of Jane Doe (D.O.B. 3-14-2003) and Mary
Doe (D.O.B. 11-08-2004). Aunt is the legal guardian of the sisters and is married to Tim
Lycan (“Uncle”).
{¶3} This case arose when Jane Doe passed a note to another student at school
stating she was being hurt at home. Jane was interviewed by a caseworker from the
Agency, police officers, and a social worker at Akron Children’s Hospital. Jane’s account
was consistent: she said Aunt yelled at her, pulled her hair, grabbed her by the throat,
and hit her head against a refrigerator. Jane said her body “went fuzzy” during the
incident and she saw black spots. Marks were observed on Jane’s neck consistent with
fingernail marks.
{¶4} Deputy Simek further investigated Jane’s allegations. He too observed the
scratch marks on her neck, a bump on her forehead, and minor redness and bruising on
her neck. Simek spoke to Aunt, who denied the allegations, and to Uncle, who said he
was not home when the incident occurred. Simek arrested Aunt for felonious assault and
placed Jane and Mary Doe into the emergency custody of the Agency. By the time the
instant case proceeded to the evidentiary hearing, the charges were amended to Stark County, Case Nos. 2018CA00040, 2018CA00041 3
misdemeanor domestic violence and child endangering but remained pending with a no-
contact order.
{¶5} On November 21, 2017, the Agency filed complaints alleging dependency,
neglect, and/or abuse of Jane Doe and dependency of Mary Doe, and the girls were
placed in the temporary custody of the Agency. The trial court found probable cause
existed for involvement of the Agency, that continued residence of the children in Aunt’s
home would be contrary to their best interest and welfare, and that the Agency made
reasonable efforts to prevent the need for placement and/or to make it possible for the
children to return home or to remain in the home.
{¶6} Aunt requested evidence and the matter was set for trial on the initial
complaints.
{¶7} On January 31, 2018, the Guardian ad Litem of the children filed a report
recommending that the children remain in foster placement.
{¶8} Both sides presented evidence at a hearing commencing on February 7,
2018 and concluding on February 12, 2018.
{¶9} Carrie Schnirring testified on behalf of the Agency as an expert witness.
She performed separate trauma evaluations of Jane and Mary. Both girls are
developmentally disabled, and Schnirring testified there is no evidence suggesting
children with developmental delays are less truthful than anyone else. Jane told
Schnirring that Aunt choked her and hit her head against the refrigerator. She diagnosed
Jane with an Adjustment Disorder with anxiety. She determined Jane needed trauma
therapy and Aunt was the primary cause of the trauma. For treatment to be effective,
therefore, Jane needed to be removed from the environment. Stark County, Case Nos. 2018CA00040, 2018CA00041 4
{¶10} Mary’s developmental delays are more severe and her evaluation was more
difficult. Mary was defensive and easily frustrated, and didn’t understand why Schnirring
asked the same questions repeatedly when Mary had already told her what happened.1
Schnirring could not identify new trauma to Mary which had occurred since reunification
with Aunt, but she also diagnosed Mary with an Adjustment Disorder with anxiety.
{¶11} In Schnirring’s opinion, both Jane and Mary have experienced trauma due
to Aunt’s abuse and require trauma therapy. For such therapy to be effective, they must
be removed from the environment so the sisters can resolve their anxiety. Returning the
sisters to Aunt’s home would be detrimental if significant progress was not made to ensure
trauma would not recur.
{¶12} Dr. Thomas Pickton testified on behalf of Aunt. He met with the children
twice prior to their removal, but in Aunt’s presence. He opined that Jane Doe’s
developmental delays made her more likely to “embellish” stories because children with
delays are “needy” and seek attention. He further testified, though, that he was unaware
of the physical evidence corroborating the allegations and had not reviewed the records
of Akron Children’s Hospital.
{¶13} Uncle also testified on Aunt’s behalf. He said he returned home on the date
of the incident after a Cleveland Browns game and there were no signs of distress or
1 The Agency has been involved with this family since May 2017, and the children were separated from Aunt and placed in foster care once prior to the events described in the instant appeal. Evidence about the prior history was limited at the hearing, and the magistrate restricted the evidence to the most recent issues, but the prior removal was in the background of testimony in the instant case because the witnesses were asked to describe events which occurred since reunification. For example, Mary became frustrated in attempting to distinguish which events occurred before reunification and which occurred after. Stark County, Case Nos. 2018CA00040, 2018CA00041 5
upset among the family. In his opinion, Jane either caused her own injuries, or had an
accomplice at school who caused them.
{¶14} Aunt’s adult son and daughter, cousins of Jane and Mary, also testified.
They did not see any signs that the girls were distressed or had been disciplined.
{¶15} The magistrate found both Jane Doe and Mary Doe to be dependent
children, but also found the evidence did not rise to the level of clear and convincing upon
the allegations of abuse and neglect of Jane Doe.
{¶16} The matter proceeded to disposition. Both sides presented evidence
regarding disposition and the Guardian ad Litem recommended that the children remain
in foster care.
{¶17} The magistrate placed the children in the temporary custody of the Agency.
The magistrate further found that there were compelling reasons to preclude a request
for permanent custody, the children’s continued residence in or return to the home would
be contrary to their best interest and welfare, the Agency made reasonable efforts to
prevent the need for placement and/or make it possible for the children to return home,
and approved and adopted the initial case plan.
{¶18} The magistrate’s decision regarding disposition stated in pertinent part:
* * * *. There is currently a [no contact order] with both this
court and the criminal court. The agency requested temporary
custody of the children to allow for services to begin and for the
children to begin counseling. * * * *.
The Court finds that temporary custody to the agency would
allow time to get services in place for the family. Stark County, Case Nos. 2018CA00040, 2018CA00041 6
* * * *. Upon the resolution of Aunt’s criminal case, and Aunt
getting the parenting evaluation completed and initiation of services,
the Court shall review (upon request of Aunt) the matter of placement
of the children.
* * * *.
{¶19} Aunt objected to the magistrate’s decision on February 21, 2018 and
arguments were heard before the trial court on March 26, 2018.
{¶20} On April 3, 2018, the trial court approved and adopted the magistrate’s
decision, overruling Aunt’s objections.
{¶21} Aunt now appeals from the decision of the trial court.
{¶22} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶23} “I. THE TRIAL COURT ERRED IN ADOPTING A MAGISTRATE RULING
BECAUSE THE JUDGMENT ENTRY WAS DEVOID OF ANY LEGAL ANALYSIS OR
FACTUAL BASIS.”
{¶24} “II. THE TRIAL COURT ERRED IN ADOPTING A MAGISTRATE RULING
THAT FAILED TO CONSIDER THE BEST INTERESTS OF THE CHILDREN.”
{¶25} “III. THE TRIAL COURT ERRED IN ADOPTING A MAGISTRATE RULING
THAT DECLARED CHILDREN DEPENDENT SOLELY BECAUSE THEY ARE IN NEED
OF COUNSELING.” Stark County, Case Nos. 2018CA00040, 2018CA00041 7
ANALYSIS
I.
{¶26} In her first assignment of error, Aunt argues the magistrate’s ruling “fails to
reference and fails to consider any of the testimony of 10 witnesses who testified during
the February 7 and February 12 hearings,” a ruling which she further argues the trial court
approved and adopted with insufficient analysis. We disagree.
{¶27} First, we disagree with Aunt’s characterization of the decisions of the
magistrate and trial court. Our review of the judgment entries indicates the magistrate
cited the following relevant evidence in the decision dated February 16, 2018:
* * * *. Evidence showed that [Jane Doe] was consistent in
her reports of being choked by Aunt. Children had updated trauma
evaluations which indicated Adjustment Disorder with Anxiety for
both girls. An examination from Akron Children’s Hospital showed a
“Small, semicircular mark on R side of neck, possibly from fingernail;
2 linear scratches on L side of neck…” Testimony revealed that Aunt
had begun to get psychological services/counseling for the girls, but
only had 2 sessions in so far. * * * *.
Although [Jane Doe] had some evidence of small marks per
the ACH report which are not inconsistent with the allegations of
abuse, the Court does not find the level of proof to rise to “clear and
convincing” as required by Juv.R. 29 & O.R.C. 2151.31 as to make
a finding of abuse or neglect. The children’s evaluations indicate that
the children have been diagnosed with Adjustment Disorder Anxiety Stark County, Case Nos. 2018CA00040, 2018CA00041 8
(sic) and that they are in need of services, so a finding of
Dependency is made as to both children (per R.C. 2151.04(C) as to
[Jane] and R.C. 2151.04(D) as to [Mary]. * * * *.
{¶28} And in the Judgment Entry of the trial court dated April 3, 2018, the trial
court stated in pertinent part: “The Court, having made an independent analysis of the
facts and the applicable law, hereby approves and adopts the Magistrate’s Decision
issued 2/16/18 and orders it entered as a matter of record. * * * *.
{¶29} We find the magistrate’s decisions comply with Juv.R. 40(D) and are not
insufficient. We note Aunt does not specify how the decisions are deficient, and her
allegation that the magistrate overlooked the witness testimony is belied by the entries
themselves. The magistrate clearly weighed the testimony of Aunt’s witnesses as well
because the magistrate found in Aunt’s favor as to the allegations of abuse and neglect
against Jane Doe. Juv.R. 40(D)(3)(a)(ii), Findings of Fact and Conclusions of Law, states:
Subject to the terms of the relevant reference, a
magistrate's decision may be general unless findings of fact
and conclusions of law are timely requested by a party or
otherwise required by law. A request for findings of fact and
conclusions of law shall be made before the entry of a magistrate's
decision or within seven days after the filing of a magistrate's
decision. If a request for findings of fact and conclusions of law is
timely made, the magistrate may require any or all of the parties to
submit proposed findings of fact and conclusions of law. (Emphasis
added). Stark County, Case Nos. 2018CA00040, 2018CA00041 9
{¶30} As the Agency points out, the record is devoid of any request for findings of
fact or conclusions of law. A trial court order entry that delineated basis of adjudication
of dependency was not required, where neither party made such a request for findings
and conclusions of law. In re Ware, 2nd Dist. Montgomery No. 19302, 2002-Ohio-4686,
¶ 9, opinion modified on reconsideration, 2nd Dist. Montgomery No. 193022002-Ohio-
6086. We find, moreover, the magistrate’s decision in the instant case sufficiently
delineate the basis of the adjudication of dependency.
{¶31} As to the trial court’s review of the magistrate’s decision, Juv.R. 40(D)(4)(b)
and (d) state:
(b) Action on Magistrate's Decision. Whether or not objections
are timely filed, a court may adopt or reject a magistrate's decision in
whole or in part, with or without modification. A court may hear a
previously-referred matter, take additional evidence, or return a
matter to a magistrate.
(d) Action on Objections. If one or more objections to a
magistrate's decision are timely filed, the court shall rule on those
objections. In ruling on objections, the court shall undertake an
independent review as to the objected matters to ascertain that the
magistrate has properly determined the factual issues and
appropriately applied the law. Before so ruling, the court may hear
additional evidence but may refuse to do so unless the objecting
party demonstrates that the party could not, with reasonable Stark County, Case Nos. 2018CA00040, 2018CA00041 10
diligence, have produced that evidence for consideration by the
magistrate.
{¶32} Aunt has not cited any relevant authority supporting her argument that the
entries here are insufficient. Her argument is premised upon the assumption that the
decisions are insufficiently detailed to permit meaningful review, but such is not the case.
Ohio appellate courts have recognized that in some situations, if a trial court's judgment
entry is not “sufficiently detailed,” the reviewing court is “left in the unfortunate position of
being unable to provide meaningful review.” Schlauch v. Schlauch, 5th Dist. Holmes No.
14 CA 008, 2015-Ohio-577, ¶ 27, citing Stephens v. Stephens, 9th Dist. Wayne No.
12CA0049, 2013–Ohio–2797, ¶ 5 (additional citations omitted). In those situations, an
appellate court may reverse the judgment and remand the matter so the trial court can
create an entry sufficient to permit appellate review. Id., citing MSRK, LLC v.
Twinsburg, 9th Dist. Summit No. 24949, 2012–Ohio–2608, ¶ 10.
{¶33} We have thoroughly reviewed the record, including the transcript of the
evidentiary hearing and the resulting decisions of the magistrate and trial court, and find
our review is not precluded by any deficiencies therein. We therefore find the entries to
be sufficiently detailed, and the trial court did not err in approving and adopting the
decisions of the magistrate.
{¶34} Aunt’s first assignment of error is therefore overruled.
II., III
{¶35} Aunt’s second and third assignments of error are related and will be
considered together. In her second assignment of error, Aunt argues the trial court erred
in adopting the magistrate’s decision because the magistrate did not weigh the best Stark County, Case Nos. 2018CA00040, 2018CA00041 11
interests of the children. In her third assignment of error, Aunt contends the trial court
erred in finding Jane and Mary Doe to be dependent children “solely” because they are
in need of counseling. We disagree with Aunt’s characterization of the record in both
arguments.
{¶36} First, we note Aunt states in her brief that the magistrate “ignored” the best
interests of the children, but as the Agency points out, the entry of February 12, 2018
contains the following finding of fact, “The children’s continued residence in or return to
the home would be contrary to the children’s best interest and welfare.”
{¶37} Aunt cites our decision in Matter of C.B-W for the proposition that the best
interest of the children in the paramount consideration in matters of child custody. Matter
of C.B-W., 5th Dist. Muskingum No. CT2017-0025, 2017-Ohio-8901, ¶ 28. We find ample
evidence in the record of the instant case that the trial court weighed the best interests of
the sisters in placing them in the temporary custody of the Agency.
{¶38} Additionally, Matter of C.B-W. is instructive upon the deference we are to
afford to the trial court’s evaluation of the evidence and underscores our analysis of Aunt’s
summary arguments. It is well-established that the trial court, as the fact finder, is free to
believe all, part, or none of the testimony of each witness. Matter of C.B-W., 5th Dist.
Muskingum No. CT2017-0025, 2017-Ohio-8901, ¶ 48, citing State v. Caldwell, 79 Ohio
App.3d 667, 679, 607 N.E.2d 1096 (4th Dist.1992). In contrast, 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. Id., 2017-Ohio-8901 at ¶ 49, citing Cross Truck v.
Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911 (February 10, 1982). The discretion Stark County, Case Nos. 2018CA00040, 2018CA00041 12
granted to the trial court in custody matters “should be accorded the utmost respect given
the nature of the proceedings and the impact the court's determination will have on the
lives of the parties concerned.” Id., citing Miller v. Miller, 37 Ohio St. 3d 71, 74, 523 N.E.2d
846 (1998).
{¶39} Because custody issues are some of the most difficult and agonizing
decisions a trial judge must make, he or she must have wide latitude in considering all
the evidence and such a decision must not be reversed absent an abuse of
discretion. Matter of C.B-W., supra, 2017-Ohio-8901 at ¶ 38, citing Davis v. Flickinger, 77
Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997), and Miller, supra, 37 Ohio St.3d at 74. The
Ohio Supreme Court has also explained: “A reviewing court should not reverse a decision
simply because it holds a different opinion concerning the credibility of the witnesses and
evidence submitted before the trial court. A finding of an error in law is a legitimate ground
for reversal, but a difference of opinion on credibility of witnesses and evidence is not.” Id.,
citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984).
Furthermore, “[e]very reasonable presumption must be made in favor of the judgment and
the findings [of the juvenile court]. * * * If the evidence is susceptible to more than one
construction, we must give it that interpretation which is consistent with the verdict and
judgment, and most favorable to sustaining the [juvenile] court's verdict and
judgment.” Id., citing Karches v. Cincinnati, 38 Ohio St.3d 12, 526 N.E.2d 1350 (1988).
{¶40} In the instant case, the trial court provided findings of fact and conclusions
of law in support of its decision to grant the Agency’s motion for temporary custody.
Despite Aunt’s contentions, it is apparent the magistrate took into account the testimony
of all of the witnesses, including Aunt’s. We note the magistrate cited the testimony of Stark County, Case Nos. 2018CA00040, 2018CA00041 13
female Cousin, Aunt’s adult daughter, who was ruled out as a placement possibility for
the sisters because she did not believe Jane Doe and she failed to comply with the no-
{¶41} Aunt’s premise that the trial court’s decisions are based solely upon
“counseling” is incongruous with the record. Her arguments in her second and third
assignments of error ignore the criminal case underlying the custody matter. At the time
of the evidentiary hearing, no-contact orders were in place and Aunt still faced
misdemeanor charges of domestic violence and child endangering.2 Her arguments
further ignore the history of her involvement with the Agency, the physical evidence of
abuse of Jane Doe in the instant case, and the pending criminal charges against Aunt.
The trial court took all of these elements into account, noting the issue of custody could
be revisited when the criminal case was resolved and if the entire family undertook case
plan services.
{¶42} Based on all of the testimony, the trial court ultimately decided that it was in
the best interests of the children to continue in care and custody of the Agency.
{¶43} Based on the foregoing, we find the trial court did not err in awarding
temporary custody to the Agency. Aunt’s second and third assignments of error are
overruled.
2 The resolution of the criminal charges, if any, is not in the record before us. Stark County, Case Nos. 2018CA00040, 2018CA00041 14
CONCLUSION
{¶44} Aunt’s three assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Baldwin, J., concur.