[Cite as Hynd v. Roesch, 2016-Ohio-7143.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
CARRIE M. HYND, ON BEHALF OF : OPINION
J.D.R.,
:
Petitioner-Appellant, CASE NO. 2015-A-0063
:
- vs -
:
LEVI M. ROESCH,
:
Respondent-Appellee.
:
Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015 DR 0345.
Judgment: Affirmed.
Hans C. Kuenzi, Hans C. Kuenzi Co., L.P.A., Skylight Office Tower, 1660 West
Second Street, Suite 660, Cleveland, OH 44113-1419 (For Petitioner-Appellant).
William P. Bobulsky, William P. Bobulsky Co., L.P.A., 1612 East Prospect Road,
Ashtabula, OH 44004 (For Respondent-Appellee).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Carrie M. Hynd (“mother”), appeals the judgment of the
Ashtabula County Court of Common Pleas, which denied her petition for domestic
violence civil protection order against appellee, Levi M. Roesch (“father”), on behalf of
J.D.R., the parties’ two-year old son. At issue is whether the trial court committed plain
error in adopting the magistrate’s decision. For the reasons that follow, we affirm.
{¶2} The parties were divorced on September 24, 2014. Pursuant to their
divorce decree, mother was designated as J.D.R.’s primary residential parent and father
was granted parenting time pursuant to the court’s standard parenting order.
{¶3} Mother filed the instant petition on October 2, 2015. On that date, an ex
parte domestic violence civil protection order was granted, which was to be effective
until January 3, 2016. The petition came on for final hearing on October 13, 2015.
{¶4} This is mother’s second petition for domestic violence civil protection order
filed on behalf of the parties’ son. In the first case, filed earlier in 2015, the court found
there was no basis for mother’s allegations and dismissed the petition.
{¶5} During the hearing on the instant petition, father testified he had a
weekend visit with J.D.R. between September 25, 2015 and September 27, 2015. He
said that at the end of the visit, before dropping off the child with mother at the Geneva
Police Department, the designated point of exchange according to the court’s parenting
order, he took him to Conneaut Township Park. Father said the child fell after he got off
the merry-go-round. Father said the child cried for about 30 seconds, then seemed to
be fine. He ran to the slide and continued playing for about ten more minutes. They
then left the park and headed to Geneva to meet mother. Father said that J.D.R.
displayed no discomfort while being placed in his car seat and he fell asleep during the
ride to Geneva. Father said that when he carried the child to hand him to mother, he
noticed the child seemed to be favoring his right arm. Father said that after the
exchange, it occurred to him that the child may have injured his arm at the park.
{¶6} Mother testified that when father took J.D.R. out of his car seat, he
seemed fussy and whiny, and she noticed a small bruise near his eye. Mother asked
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father what was wrong with the child’s eye. Father said there was nothing wrong with it.
Father turned the child’s head and saw mother was talking about a bruise on his cheek.
Father told her the child had fallen at the park.
{¶7} After mother picked up the child, she went to her parents’ home in
Geneva. While J.D.R. was eating a snack, mother noticed the child grabbing a glass of
water with his left hand. This was unusual because he is right-handed. She touched
J.D.R.’s right arm and he started screaming. She removed his shirt and saw his right
arm looked swollen. She drove the child to Cleveland Clinic and took him to the
emergency room.
{¶8} Mother told staff at Cleveland Clinic that the child has a history of bruises
that led to a protection order against father, without telling them that the court found her
allegations to be without grounds. As a result of mother’s report, the child underwent a
“non-accidental trauma work-up;” was admitted to the hospital for three days; and was
subjected to a full-body x-ray. Five police officers came to the child’s room to
investigate, but mother failed to provide any police reports to the magistrate.
{¶9} According to the medical records, an x-ray of J.D.R.’s right elbow taken on
September 27, 2015, showed no visible fracture, but rather a joint effusion, or swelling,
which “raise[d] the possibility of a [hidden] fracture.” The child was found to be
otherwise healthy and normal. The strength of the child’s grip with his right hand was
noted to be five out of a possible score of five and there was no visible abnormality of
the bone of the right arm. The child’s right arm was placed in a splint and sling.
{¶10} The Cleveland Clinic records from the child’s October 2, 2015 follow-up
visit state:
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{¶11} He was seen in the hospital last week when there was concern for
nonaccidental trauma. Ultimately he was cleared and no objective
findings were noted except for a right elbow effusion. No
nonaccidental trauma was suspected in the child’s discharge. He’s
been in a splint since that time and feeling much better. Currently
is here for follow-up of his right elbow. He’s been comfortable in his
splint. (Emphasis added.)
{¶12} Mother testified that father returned the child to her on prior occasions
when she noticed he had a bruise. However, it was undisputed that the child is very
active and had sustained bruises while in mother’s care.
{¶13} Following the hearing, the magistrate issued a six-page, highly-detailed
decision. The magistrate found that mother failed to prove that father committed any
act that would have resulted in the child being an “abused child.” The magistrate found
that, based on father’s testimony, which the magistrate found was credible, the child’s
playground injury was accidental. The magistrate found that the child did not display
any behavior that would have caused father to believe he needed medical treatment
until the child was being handed to mother. Although the child cried initially after he fell,
he then ran to the slide and continued playing for about ten minutes before father and
son left for Geneva. The child displayed no discomfort while being placed in the car
seat and fell asleep on the way to Geneva.
{¶14} The magistrate thus recommended that mother’s petition for domestic
violence civil protection order be overruled and that the ex parte civil protection order be
vacated. Mother did not file any objections to the magistrate’s decision. Subsequently,
the trial court adopted and approved the magistrate’s decision, including its findings of
fact and conclusions of law, and dismissed mother’s petition and the ex parte domestic
violence civil protection order.
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{¶15} Mother appeals the trial court’s judgment, asserting the following for her
sole assignment of error:
{¶16} “The trial court erred in denying appellant’s petition for a domestic violence
civil protection order.”
{¶17} A petitioner seeking a domestic violence civil protection order under R.C.
3113.31 bears the burden of proof by a preponderance of the evidence, and the
decision to issue a civil protection order lies within the sound discretion of the trial court.
Kuhn v. Kuhn, 11th Dist. Lake No. 2012-L-099, 2013-Ohio-5807, ¶23, appeal not
allowed by Ohio Supreme Court at 2014-Ohio-2245, 2014 Ohio LEXIS 1245.
{¶18} As pertinent here, “domestic violence” is defined as “committing any act
with respect to a child that would result in the child being an abused child, as defined in
section 2151.031 of the Revised Code[.]” R.C. 3113.31(A)(1)(c). As pertinent here,
“abused child” is defined as any child: (1) who is endangered; (2) who exhibits
evidence of any physical injury inflicted other than by accidental means; or (3) who,
because of the acts of his parents, suffers physical * * * injury that harms or threatens to
harm the child’s health or welfare. R.C. 2151.031(B), (C), and (D). As pertinent here,
“endangering a child” means creating “a substantial risk to the health or safety of the
child, by violating a duty of care, protection, or support.” R.C. 2919.22(A).
{¶19} In general, “[t]he abuse of discretion standard is * * * the appropriate * * *
standard to apply when reviewing a trial court’s adoption of a magistrate’s decision.”
Harkey v. Harkey, 11th Dist. Lake No. 2006-L-273, 2008-Ohio-1027, ¶47. A party must
file written objections to a magistrate’s decision within 14 days of the filing of the
decision, whether or not the court has adopted the decision during that 14-day period.
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Civ.R. 53(D)(3)(b)(i). “An objection to a magistrate’s decision shall be specific and state
with particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii). “Except for a claim of
plain error, a party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion * * * unless the party has objected to that finding or
conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv).
{¶20} Mother does not argue the trial court failed to comply with any of the
statutory requirements for a domestic violence civil protection order; rather, she
challenges only father’s credibility. She thus asserts a manifest-weight challenge.
However, as noted above, she did not file any objections to the magistrate’s decision.
{¶21} This court has stated that failure to file objections to an alleged error in a
magistrate's decision waives the issue for appeal but for plain error. Marshall v. Firster,
11th Dist. Trumbull No. 99-T-0147, 2000 Ohio App. LEXIS 4589, *4-*5 (Sept. 29, 2000).
{¶22} A manifest-weight challenge to a magistrate’s decision is asserted via an
objection to that decision. See In re Jones, 1st Dist. Hamilton Nos. C-090497, et al.,
2010-Ohio-3994, ¶32. The First District in Jones held that where an objection to a
magistrate’s decision challenged the manifest weight of the evidence without
challenging any of the specific factual findings of the magistrate, such objection did not
comply with the specificity requirement of Juv.R. 40(D)(3)(b)(ii), the Juvenile Rule
counterpart of Civ.R. 53(D)(3)(b)(ii)). Jones at ¶32. The First District held that in these
circumstances, Jones waived all but plain error. Id. Here, mother did not file an
objection challenging the manifest weight of the evidence or any objections to the
magistrate’s specific findings of fact. Thus, she waived her manifest-weight challenge
on appeal for all but plain error.
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{¶23} In State v. Barnes, 94 Ohio St.3d 21, 27 (2002), the Supreme Court of
Ohio set forth strict limitations on what constitutes plain error. First, there must be an
error, i.e., a deviation from a legal rule. Id. Second, the error must be plain, i.e., the error
must be an “obvious” defect in the proceedings. Id. Third, the error must have affected
“substantial rights,” i.e., the defendant must prove the outcome would have been
different absent the error. Id. In State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,
the Supreme Court of Ohio held the party asserting plain error has the burden of
demonstrating its existence. Id. at ¶17.
{¶24} “[I]n regard to civil cases, the plain error doctrine applies only in ‘the
extremely rare cases involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the basic fairness, integrity, or
public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself.’” Phillips v. Phillips, 11th Dist. Ashtabula No. 2006-A-
0037, 2007-Ohio-3368, ¶42, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997),
syllabus.
{¶25} Mother does not acknowledge her failure to file any objections to the
magistrate’s decision. Further, she does not even attempt to demonstrate plain error on
appeal. And, from our review of the record, we do not discern such error. For this
reason, mother’s assignment of error lacks merit.
{¶26} However, even if mother had filed a manifest-weight objection and specific
objections to the magistrate’s decision, her assignment of error would still lack merit. As
noted, in such circumstances, the standard of review of the trial court’s adoption of the
magistrate’s decision would have been abuse of discretion. Harkey, supra.
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{¶27} Mother argues father gave inconsistent versions of the incident. She
argues that, according to the report of Dr. Eva Love of the Cleveland Clinic, father told
her he took the child to the Geneva Police Department for the exchange, but, because
he arrived there one-half hour early, he took the child to Geneva Township Park for
awhile. In contrast, father told Officer Cody Vadascio of the Geneva Police Department
that the incident took place at Conneaut Township Park before he drove to Geneva. As
to the location of the injury, the magistrate noted that Dr. Love did not mention in her
report the name of the park at which father said the accident happened, so there was no
inconsistency on this point. As to the sequence of events, the magistrate noted that
father testified the child’s fall occurred at Conneaut Township Park before they went to
Geneva so Dr. Love must have misunderstood him. Thus, the magistrate found that
there was no inconsistency as to the location of the accident and that Dr. Love
misunderstood father’s statement to her concerning the sequence of events.
{¶28} Mother also argues that father told Officer Vadascio that after J.D.R. fell,
he, i.e., father, knew his son was hurt. Thus, mother argues, father violated his duty of
care by not immediately providing the child with medical care. As a result, mother
argues J.D.R. was an abused child. However, father merely “acknowledged” the injury
when the officer questioned him on the phone about the accident. This is consistent
with father’s testimony that the child was favoring his right arm when he carried him
over to mother and that it occurred to him after the exchange that the child might have
injured his arm. Thus, contrary to mother’s argument, father did not tell the officer he
knew any facts that would have imposed on him a duty to provide medical attention to
the child.
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{¶29} Next, mother argues that father’s testimony that he did not know J.D.R.
suffered any significant injury as he did not exhibit any signs of pain or discomfort is not
credible since the child sustained a fracture of the right arm. However, it is well-
established that the trier of fact is entitled to determine the credibility of the witnesses.
Stovall v. Streetsboro, 11th Dist. Portage No. 2006-P-0077, 2007-Ohio-3381, ¶67. The
trier of fact is entitled to believe all, part, or none of the testimony of any witness. Id.
The trier of fact’s decision on the credibility of witnesses is owed deference since it is
best able to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use these observations in weighing the credibility of witnesses. Id.,
citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). The magistrate was
therefore entitled to believe father and to discount mother’s argument.
{¶30} Moreover, contrary to mother’s argument, according to the medical
records, the x-rays did not disclose any fracture. The radiology note for the initial x-ray
stated the presence of soft-tissue swelling raised the possibility of a hidden right
humeral fracture, but subsequent films revealed no change. Thus, the medical records
did not show that J.D.R. sustained any fracture, only that there was some swelling,
which indicated a possible hidden fracture. Further, the medical records showed that
the strength of J.D.R.’s grip with his right hand was five out of a possible five. Also,
mother failed to present any evidence contradicting father’s version of events or any
expert testimony regarding the probable level of the child’s pain immediately after the
fall. In fact, mother’s testimony corroborates father’s. She testified that, while father
took the child out of his car seat and brought him to her, the child only whined and
fussed. He did not cry, scream, yell, or exhibit the type of behavior one would expect
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from a child who recently broke his arm. Further, she said that she did not notice any
problem with the child when she took him to her parents’ home. In fact, there was no
problem until she touched his right arm while he was eating and he started screaming.
Thus, the magistrate’s finding that J.D.R. did not display any behavior that would have
caused father to believe he needed medical treatment until he was handed to mother
was supported by the record.
{¶31} Further, the magistrate was also entitled to consider mother’s credibility.
She takes the child to the hospital whenever he comes home from visitation with any
kind of bruise, although mother admitted the child is very active and has fallen and
bruised himself while with her. With respect to the present incident, mother told
Cleveland Clinic staff about the child’s past bruises, which, she said, resulted in a
protection order against father, without telling them the protection order was found by
the court to be groundless. When mother finally made a police report of the current
incident five days later on October 2, 2015, she did not tell the police that on the child’s
discharge on September 30, 2015, the hospital concluded that no nonaccidental trauma
was suspected. Further, after a previous weekend visit with father, on Sunday, July 5,
2015, mother took the child to Cleveland Clinic complaining the child was dehydrated
and had lost weight. The hospital report showed the child appeared well; he was not
notably dehydrated; his mucous membranes were moist; and he had lost just one to two
pounds. Despite this, mother had doctors call father to tell him how many calories the
child should eat in one day. Mother admitted she now takes the child to the doctor’s
office before and after each weekend visit with father. In a psychological review in April
2014, mother told forensic psychologist, Dr. Farshid Afsarifard, that she believed it
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would be in the child’s best interests if father was not involved in J.D.R.’s life at all. She
told that doctor that father and his family were abusive to the child and were “doing
strange things to him to hurt him” because they did not use the type of diapers she
wanted them to use and they had given him Tylenol. The record shows that father has
taken full advantage of the limited visitation he has had with the child, and nothing in the
record suggests that father ever did anything to harm him.
{¶32} Thus, even if mother’s manifest-weight challenge was not waived by her
failure to file objections to the magistrate’s decision, the court’s judgment adopting the
magistrate’s decision would have been supported by the record and therefore not an
abuse of discretion.
{¶33} For the reasons stated in this opinion, the assignment of error lacks merit
and is overruled. It is the order and judgment of this court that the judgment of the
Ashtabula County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.
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