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In re S.L.

Court of Appeals of Ohio, Third District, Logan

March 26, 2018

IN RE: S.L., ABUSED AND DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT] IN RE: R.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT] IN RE: G.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT] IN RE: B.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT] IN RE: L.L., ABUSED AND DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT] IN RE: S.L., ABUSED AND DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT] IN RE: R.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT] IN RE: G.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT] IN RE: B.L., DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT] IN RE: L.L., ABUSED AND DEPENDENT CHILD. [SCOTT LUCIUS - APPELLANT]

          Appeals from Logan County Common Pleas Court Juvenile Division Trial Court Nos. 17 CS 26, 17 CS 27, 17 CS 28, 17 CS 29 and 17 CS 30 Judgments Affirmed in Cases 8-17-25 - 8-17-28 and 8-17-33 - 8-17-37 Judgment Affirmed in Part and Reversed in Part in Case No. 8-17-29 and Cause Remanded

          Alison Boggs for Appellant.

          Stacia L. Rapp for Appellee.

          OPINION

          ZIMMERMAN, J.

         {¶1} Appellant, Scott Lucius ("Scott"), appeals the judgment entries (of adjudication and disposition) of the Logan County Common Pleas Court, Juvenile Division, finding two of his children, S.L. and L.L., to be abused and dependent children, and finding his remaining children, G.L., B.L., and R.L., to be dependent.

         Facts and Procedural History

         {¶2} This matter involves the appeal of five juvenile court adjudications and dispositions, consolidated and heard as one case in the trial court. Thus, we have consolidated these matters in this Court. While this appeal concerns ten separate appeals (five adjudications and five dispositions), we will discuss their procedural histories together, as they are intertwined.

         {¶3} Scott is the adoptive father of G.L. (DOB: 1/8/04), B.L. (DOB: 4/29/09), S.L. (DOB: 12/21/09), R.L. (DOB: 11/28/08) and L.L. (DOB: 10/15/13). On May 23, 2017, Logan County Children Services ("LCCS") received a referral from an Indian Lake School official regarding the possible physical abuse of S.L. The abuse referral stems from S.L. missing school on May 22, 2017 due to injuries she received from being punished by Scott.

         {¶4} When S.L. returned to school on May 23, 2017, a school official spoke with her and observed bruising on her arm and severe bruising on her back. S.L. advised the school official that she was spanked with a belt (by Scott) a couple of days prior. With that information, the school official immediately notified LCCS of the child's condition, which was received by Ryan Pratt ("Pratt") intake supervisor with LCCS. That same day, Pratt and Detective Mike Brugler ("Det. Brugler"), of the Logan County Sheriffs office, contacted Scott at his residence. Initially, Scott advised Pratt that while he and his husband, Walt, do spank the children with a belt, he suggested that S.L.'s bruises were a result of her falling out of bed. However, after interviewing Scott, Walt and some of the children, Det. Brugler arrested Scott for felony child endangering. (Tr. 157). Upon Scott's arrest, Pratt contacted the Logan County Prosecutor's office seeking a temporary custody order of the five children.

         {¶5} After arresting Scott, Det. Brugler re-interviewed him at the Sheriffs office wherein Scott admitted that he had punished S.L. by hitting her with a belt. Scott admitted to Det. Brugler that it was possible that the bruising (on S.L.'s back) was caused by his punishment.

         {¶6} On May 24, 2017, LCCS filed five abuse and dependency complaints, with motions for the emergency temporary custody of the children, in the Logan County Juvenile Court. The complaints alleged S.L. to be abused and dependent and the remaining children to be dependent. That same day, the trial court granted LCCS's motions for emergency temporary custody of the children. (Doc. 2). On June 9, 2017, the trial court appointed a guardian ad litem on behalf of the children.

         {¶7} However, on July 18, 2017, LCCS filed an amended complaint as to L.L., alleging L.L. to be an abused child in addition to the original allegation of dependency. The amended complaint was filed after Scott's oldest child, G.L., furnished pictures to the Logan County Sheriff's office that she had taken of L.L. after L.L. had been spanked and pinched by Scott.

         {¶8} Ultimately, an adjudicatory hearing occurred in the trial court on August 4, 2017 for all five children wherein the trial court found S.L. and L.L. to be abused and dependent and R.L., B.L. and G.L. to be dependent children. A dispositional hearing was scheduled for all of the children in the trial court on August 17, 2017. At the dispositional hearing, the trial court continued its orders of temporary custody (of the children) to LCCS. (See August 22, 2017 judgment entry).

         {¶9} Scott has appealed the adjudications and dispositional orders of the trial court for all five children (ten appeals) raising the following common assignments of error in each appeal for our review.

ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT'S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. APPELLEE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE MINOR CHILDREN WERE ABUSED AND/OR DEPENDENT AND THE TRIAL COURT INCORRECTLY INTERPRETED THE PERTINENT STATUTES AND THE APPLICATION TO THE FACTS OF THE CASE.
ASSIGNMENT OF ERROR NO. II
THE CHILDREN'S GUARDIAN AD LITEM FAILED TO PERFORM NECESSARY DUTIES PURSUANT TO OHIO REVISED CODE SECTION 2151.281 AND SUPERINDENT [SIC] RULE 48, THEREBY NOT ACTING IN THE CHILDREN'S BEST INTEREST, TO APPELLANT'S DETRIMENT AND IN VIOLATION OF HIS DUE PROCESS.
ASSIGNMENT OF ERROR NO. III
APPELLANT'S COUNCIL [SIC] WAS INEFFECTIVE THEREBY PREJUDICING APPELLANT, RESULTING IN A DECISION THAT IS UNRELIABLE.

         {¶10} At the outset, we find that on appeal Scott only addresses errors relative to the adjudications of the children, not the trial court's dispositional orders. Therefore, we will not consider the five appeals relative to the trial court's dispositional orders. (8-17-33, 8-17-34, 8-17-35. 8-17-36 and 8-17-37). (See generally, App.R. 12(A)).

         First Assignment of Error

         {¶11} In his first assignment of error, Scott argues that the trial court's determination that S.L. and L.L. are abused and dependent children and that G.L. R.L. and B.L. are dependent children was against the manifest weight of the evidence.

          Standard of Review

         {¶12} In juvenile proceedings, we apply the criminal standard for reviewing manifest-weight challenges. In re Corey Children, 11th Dist. Geauga No. 2005-G-2649, 2006-Ohio-2013, ¶17. Under this standard, when reviewing a claim that a judgment was against the manifest weight of the evidence, an appellate court must review the entire record, weigh both the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that a new trial must be ordered. State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). "The discretionary powers to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id.

         {¶13} The role of the appellate court is limited to weighing the evidence introduced at trial and then determine whether the state carried its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The reviewing court must defer to the factual findings of the trier of fact as to the weight to be given the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967), at paragraph one of the syllabus. Furthermore, "[i]n an adjudicatory hearing regarding a claim of dependency, neglect and/or abuse, the requisite burden of proof is by clear and convincing evidence". In re Anthony, 11th Dist. Ashtabula No. 2002-A-0096, 2003-Ohio-5712, citing Juv.R. 29(E)(4).

         {¶14} "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence, ' * * * 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." In re G.C-O., 3d Dist. Seneca No. 13-12-56, 2013-Ohio-4974, citing In re C.B., 12th Dist. Butler Nos. CA2008-01-002, CA2008-01-0003, 2008-Ohio-5543, ¶10. The party seeking adjudication has the burden of establishing that a child is abused or neglected before the court may enter a finding of abuse or dependency. In re Stewart, 12th Dist. Clinton No. CA99-08-024, 2000 WL 290134 (2000). "Requiring the state to prove its case by clear and convincing evidence is part of the protection afforded to parents in abuse and dependency cases". Id.

         {¶15} "Once the clear and convincing standard has been met to the satisfaction of the [juvenile] court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof". In re Kinney, 1st Dist. Hamilton No. C-020067, 2002-Ohio-2310, citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368. Judgments which are supported by some competent, credible evidence will not be reversed by a reviewing court as being against the manifest weight of the evidence. In re Mercer, 10th Dist. Franklin No. 04AP-422, 2005-Ohio-1845, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St2d 279, syllabus.

         Analysis

         {¶16} In the cases before us, Scott's primary argument is that the trial court erred in finding that S.L. and L.L. are abused children. In relation to the record before us, R.C. 2151.031(C) and (D) defines an 'abused child' as "any child who:

(A) * * *
(B) * * *
(C) Exhibits 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. Except as provided in division (D) of this section, a child exhibiting evidence of corporal punishment or other physical disciplinary measure by a parent, guardian, custodian, person having custody or control, or person in loco parentis of a child is not an ...

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