Court of Appeals of Ohio, Twelfth District, Clermont
APPEAL FROM CLERMONT COUNTY COURT OF COMMMON PLEAS Case No.
2015 CR 00316
Vincent Faris, Clermont County Prosecuting Attorney, Nicholas
Horton, for plaintiff-appellee
P. Somers, for defendant-appellant
1} Defendant-appellant, Kaili Fitzgerald, appeals
her conviction in the Clermont County Court of Common Pleas
for felony child endangering. For the reasons detailed below,
we affirm Fitzgerald's conviction.
2} On June 4, 2015, a Clermont County grand jury
indicted Fitzgerald for one count of endangering children, a
violation of R.C. 2919.22(A). The indictment stemmed from
allegations that Fitzgerald and her husband, Michael,
neglected their son, Z.F., by failing to provide him with
adequate nourishment. The indictment specified that Z.F.
suffered "serious physical harm." This
specification elevated the charge from a misdemeanor to a
third-degree felony. The grand jury indicted Michael on an
3} Z.F. was born June 5, 2014. The Fitzgeralds took
him to a pediatrician for regular "well infant"
visits through August 2014. In August 2014, Z.F.'s
pediatrician determined that Z.F. was in the 25th percentile
for infant weight.
4} For the next four months, the Fitzgeralds did not
bring Z.F. to his pediatrician. Z.F.'s next appointment
occurred on January 9, 2015 and the pediatrician observed
that Z.F.'s weight now registered well below the third
percentile for a seven-month-old child. Z.F. had gained
only nine ounces in the four months since his last check-up.
A healthy child is expected to gain five to eight ounces
5} The pediatrician sent Z.F. to Cincinnati
Children's Hospital, where doctors admitted him and
diagnosed him with failure to thrive. Z.F. remained at the
hospital for five or six days. After receiving proper
nutrition at the hospital, Z.F. quickly gained weight.
Children's services became involved in the case and Z.F.
was released to a relative. With proper care, Z.F. returned
to a normal weight.
6} Fitzgerald told investigators that she was
depressed, that she would ignore Z.F. in favor of playing
video games, and that she would leave Z.F. alone in his crib
to cry. Michael told investigators that he worked, was away
from the home most of the time, and was unaware that
Fitzgerald was not feeding Z.F. A text exchange between
Fitzgerald and Michael, introduced at trial, reflects them
discussing and laughing about letting Z.F. "cry it
out" in his crib and how long it would take before he
would stop crying.
7} The WIC assistance program provided baby food to
the Fitzgeralds. WIC records indicated that the Fitzgeralds
received sufficient food to provide for Z.F.'s
nutritional needs. Consequently, the Fitzgeralds simply were
not feeding Z.F. regularly or in sufficient quantities.
8} The Fitzgeralds waived a jury trial and proceeded
to a joint bench trial. Prior to trial, the Fitzgeralds
stipulated to facts sufficient for the court to find them
guilty of misdemeanor child endangering. However, the
Fitzgeralds disputed that their failure to care for Z.F.
caused him serious physical harm. Accordingly, the sole issue
to be resolved by the trial court was whether Z.F. suffered
serious physical harm.
9} At trial, each party called their own pediatric
expert to testify. Although none of the experts personally
treated Z.F., they had all reviewed his relevant medical
records. Dr. Kathi Makoroff testified for the state. Dr.
Makoroff was board certified in general pediatrics as well as
child abuse pediatrics, a sub-specialty. The court recognized
her as an expert in both specialties. Dr. Makoroff worked at
the Mayerson Center, a child advocacy center at Cincinnati
Children's Hospital. Dr. Makoroff opined that Z.F.
suffered pain from starvation and that at least some of the
time between August 2014 and January 2015, Z.F. would have
experienced acute, severe, and prolonged pain. Dr. Makoroff
described the pain as "hunger pains, " a
"discomfort, " and an "emptiness." Dr.
Makoroff testified that infants express pain through crying.
10} Dr. Lisa Prock, a pediatrician at Boston
Children's Hospital, testified for Michael. The court
recognized Dr. Prock as an expert in pediatric medicine. Dr.
Prock testified that infants cry when they experience pain
and that children who are being starved would feel pain.
However, Dr. Prock could not offer a medical opinion as to
whether Z.F. experienced any pain during the four months
between pediatrics visits. Based on Z.F.'s medical
records in ...