[Cite as In re. S.L., 2018-Ohio-1111.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

IN RE: 

 CASE NO 8-17-25 

 S.L., 

ABUSED AND DEPENDENT CHILD. 

 O P I N I O N 

[SCOTT LUCIUS - APPELLANT] 

 

IN RE: 

 CASE NO 8-17-26 

 R.L., 

DEPENDENT CHILD. 

 O P I N I O N 

[SCOTT LUCIUS - APPELLANT] 

 

IN RE: 

 CASE NO 8-17-27 

 G.L., 

DEPENDENT CHILD. 

 O P I N I O N 

[SCOTT LUCIUS - APPELLANT] 

 

IN RE: 

 CASE NO 8-17-28 

 B.L., 

DEPENDENT CHILD. 

 O P I N I O N 

[SCOTT LUCIUS - APPELLANT] 

 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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IN RE: 

 CASE NO 8-17-29 

 L.L., 

ABUSED AND DEPENDENT CHILD. 

 O P I N I O N 

[SCOTT LUCIUS - APPELLANT] 

 

IN RE: 

 CASE NO 8-17-33 

 S.L., 

ABUSED AND DEPENDENT CHILD. 

 O P I N I O N 

[SCOTT LUCIUS - APPELLANT] 

 

IN RE: 

 CASE NO 8-17-34 

 R.L., 

DEPENDENT CHILD. 

 O P I N I O N 

[SCOTT LUCIUS - APPELLANT] 

 

IN RE: 

 CASE NO 8-17-35 

 G.L., 

DEPENDENT CHILD. 

 O P I N I O N 

[SCOTT LUCIUS - APPELLANT] 

 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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IN RE: 

 CASE NO 8-17-36 

 B.L., 

DEPENDENT CHILD. 

 O P I N I O N 

[SCOTT LUCIUS - APPELLANT] 

 

IN RE: 

 CASE NO 8-17-37 

 L.L., 

ABUSED AND DEPENDENT CHILD. 

 O P I N I O N 

[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 

Date of Decision: March 26, 2018 

 

APPEARANCES: 

 

Alison Boggs for Appellant 

 Stacia L. Rapp for Appellee 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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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. 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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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 Sheriff’s 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 Sheriff’s 

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 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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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 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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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. 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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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-G2649, 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 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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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-Ohio4974, 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 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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No. 04AP-422, 2005-Ohio-1845, citing C.E. Morris Co. v. Foley Constr. Co., 54 

Ohio St.2d 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 abused child under this division if the 

measure is not prohibited under section 2919.22 of the Revised Code. 

(D) Because of the acts of his parents, guardian, or custodian, suffers 

physical or mental injury that harms or threatens to harm the child's 

health or welfare.” 

{¶17} Therefore, in a case alleging abuse under paragraph C of R.C. 

2151.031, the State of Ohio must prove, by clear and convincing evidence, that (1) 

a child sustained physical or mental injury and (2) the injury was caused by nonaccidental means, or was at variance with the history given. With that in mind, Ohio 

law has recognized that parents have a right of restraint over their children, and the 

duty to correct and punish them for their misbehavior. In re Schuerman, 74 Ohio 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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App.3d 528, 531 (1991). Parents have the right to use reasonable physical 

discipline, or corporal punishment, to prevent and punish a child’s misconduct. 

State v. Hauenstein, 121 Ohio App.3d 511, 516, citing State v. Suchomski, 58 Ohio 

St.3d 74, 75. The right of parents to administer reasonable corporal punishment is 

deeply rooted in the history and traditions of this nation. See State v. Hoover, 5 

Ohio App.3d 207, 211, quoting Quinn v. Nolan, 7 Dec.Rep 585, 586 (1879) (“From 

the time of Solomon to the present, parents have had the right, in a proper manner 

and to a proper degree, of inflicting corporal punishment upon their children * * *”). 

{¶18} It is further of note that Ohio law recognizes a parent’s right to 

administer corporal punishment. R.C. 2919.22(B) provides in relevant part, 

(B) No person shall do any of the following to a child under the age 

of eighteen years of age or a mentally or physically handicapped child 

under twenty-one years of age: 

(1) Abuse the child; 

(2) Torture or cruelly abuse the child; 

(3) Administer corporal punishment or other physical 

disciplinary measure, or physically restrain the child in a cruel 

manner or for a prolonged period, which punishment, discipline, 

or restraint is excessive under the circumstances and creates a 

substantial risk of serious physical harm to the child; 

(4) Repeatedly administer unwarranted disciplinary measures 

to the child, when there is a substantial risk that such conduct, if 

continued, will seriously impair or retard the child’s mental 

health or development; 

* * * 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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{¶19} Whether parental discipline is “extreme or excessive” is determined in 

light of the totality of the circumstances. Hauenstein, supra, citing State v. Hart, 

110 Ohio App.3d 250. “In analyzing the totality of the circumstances, a court should 

consider the following factors: (1) the child’s age; (2) the child’s behavior leading 

up to the discipline; (3) the child’s response to prior non-corporal punishment; (4) 

the location and severity of the punishment; and (5) the parent’s state of mind while 

administering the punishment.” State v. Luke, 3d Dist. Union No. 14-10-26, 2011-

Ohio-4330, ¶22, citing In re J.L., 176 Ohio App.3d 186, 199, 2008-Ohio-1488 

(citations omitted). This inquiry is necessary to protect and balance a parents’ 

fundamental right to raise and control their children and the state’s interest in the 

protection and safety of children and in the reporting of child abuse. In re Horton, 

10th Dist. Franklin No. 03AP-1181, 2004-Ohio-6249. 

Abuse and Dependency of S.L. 

{¶20} At the adjudicatory hearing the State of Ohio presented several 

witnesses, including Detective Mike Brugler (“Det. Brugler”) and Dr. Karla 

Hauersperger (“Dr. Hauersperger”) relative to S.L.’s abuse. Scott called just one 

witness and chose not to testify on his own behalf.1

{¶21} Det. Brugler testified that he was contacted by Logan County Children 

Services regarding the suspected abuse of S.L. He stated that during his 

 

1

 The record suggests that Scott chose not to testify due to the child endangering criminal charges pending 

against him. 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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investigation, he interviewed Scott and Walt. When Det. Brugler questioned (Scott) 

about the bruising on S.L.’s back, Scott indicated that her injuries were most likely 

caused as a result of her falling out of bed. (Tr. 145). However, during a second 

interview with Det. Brugler, Scott acknowledged that the bruising of S.L. “could 

have been caused by him hitting her with a belt”. (Id. at 150). Scott told Det. 

Brugler that he had spanked S.L. with a leather belt, administering approximately 8 

strikes, but stopped due to S.L.’s squirming. (Tr. 150). Scott further stated, during 

his interview with Det. Brugler, that the day after the ‘spanking’, S.L. complained 

of back pain. Scott also told Det. Brugler that S.L. laid on the couch all day with 

ice on her back the day after his spanking and that he permitted her to stay home 

from school on Monday (two days after the incident), due to the injury to her back. 

{¶22} Dr. Hauersperger, a physician in the emergency department and urgent 

care unit with Nationwide Children’s Hospital, testified that on May 23, 2017, S.L. 

was brought to the urgent care unit for a medical examination. Dr. Hauersperger 

testified that during the examination of S.L., she found “a confluence of bruising in 

the lower back, lower thoracic and lumbar area here, and then she had multiple linear 

bruises that go up the back.” (Tr. 170-171). Dr. Hauersperger further testified that 

S.L.’s bruises were the result of “the striking of the skin with some sort of straight 

edge” and would not have been caused by S.L. falling out of bed. Dr. Hauersperger 

diagnosed S.L. with child physical abuse, otherwise known as non-accidental 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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trauma. (Tr. 173). Dr. Hauersperger further testified that “[t]he location of the 

bruises, being from up on the lower part of the chest wall and lower part of the back, 

the - - these are where the kidneys sit, so depending on the strength of the strike, 

there would be kidney injury”. Id. 

{¶23} The record contains competent and credible evidence that Scott struck 

(then) seven-year-old S.L. multiple times with a belt. Photographs admitted into 

evidence (Exhibits 4-10) taken two days after the incident revealed the presence of 

multiple bruises and linear marks on S.L.’s back and left arm. Even if Scott was 

trying to strike S.L. on her buttocks to punish her, he, without question, missed that 

mark, causing concerning bruises and marks on S.L. 

{¶24} Scott argues that he was administering corporal punishment to S.L. 

To that argument, the trial court found as follows: 

“The Court finds that when you started with chores being 

punishment that when this wasn’t working to your satisfaction 

that instead of continuing with hands or whatever and using more 

progressive steps you went straight to using a belt, and although 

corporal punishment in Ohio is legal, it is designed to be done in 

such a fashion that you wait and do it when everybody is cool, 

calm, and collected; it’s used in a reasonable manner that does 

not leave marks or injuries on the child. 

So, it is clear to the Court and the Court is convinced that 

based upon the pictures and testimony of the witnesses that this 

went far beyond of [sic] corporal punishment and it meets 

definition of abuse in this type of action. The Court finds that the 

abuse occurred because these were not accidental means. The 

doctor told us that she made the finding, it was her medical 

opinion that it was physical abuse not by accidental means. And 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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you cannot hang your hat on this was acceptable corporal 

punishment. It was not.” 

(Tr. 207- 208). 

{¶25} Thus, for Scott’s argument to succeed, (as to reasonable corporal 

punishment of S.L.) he must show that his punishment was not excessive under the 

totality of the circumstances (i.e. “Hart analysis”) and that he did not create a 

substantial risk of serious physical harm to S.L. 

{¶26} R.C. 2901.01(A)(5)(e) defines “serious physical harm to a person” as 

“[a]ny physical harm that involves acute pain of such duration as to result in 

substantial suffering or that involves any degree of prolonged or intractable pain”. 

R.C. 2901.01(A)(8) defines “substantial risk” as “a strong possibility, as contrasted 

with a remote or significant possibility, that a certain result may occur or that certain 

circumstances may exist”. 

{¶27} “Discipline methods on a child which leave recognizable bruising and 

cause pain which lasts beyond the time immediately following an altercation 

between parent and the child may establish a finding of substantial risk of serious 

harm.” In re Kristen V., 6th Dist. Ottawa No. OT-07-031, 2008-Ohio-2994, ¶69. 

(Emphasis added). 

{¶28} In the record before us, we find competent and credible evidence to 

support that Scott’s conduct created a substantial risk of serious physical harm to 

S.L. under the totality of the circumstances and evidence presented. The State 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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introduced photographs of S.L.’s back revealing an excessive amount of bruising to 

the 7-year old child. Dr. Hauersperger testified to the “multiple bruising” on S.L.’s 

back and, that due to the location of the bruising, there was a possibility of injury to 

S.L.’s kidneys. Further, Dr. Hauersperger diagnosed S.L.’s injury as “physical 

abuse, non-accidental trauma”. (Tr. 173). The testimony of Det. Brugler 

established that S.L. experienced pain for (at least) two days following the incident. 

According to the record, Scott’s punishment incapacitated S.L. and resulted in Scott 

deciding to keep her home from school ‘due to her back pain’. As such, a 

reasonable inference can be made that S.L.’s back pain was prolonged in nature. 

{¶29} Moreover, under the totality of the evidence, we find no error with the 

trial court’s determination that the State met its burden of clear and convincing 

evidence that S.L. was abused. See Matter of Wilson Children, 5th Dist. Stark No. 

1994CA00161, 1995 WL 156326 (evidence, including admission that the parent hit 

the child on lower back with a belt, leaving marks on stomach and back, was 

sufficient to support courts’ finding that, because of parent’s actions, child suffered 

physical injury that harmed or threatened to harm the child’s health or welfare); 

State v. Miller, 1st Dist. Hamilton No. C-990166, 2000 WL 216632 (evidence 

supported finding that defendant’s actions, including bruises from striking the child 

with a belt, constituted abuse, i.e. “any act which causes physical or mental injury 

that harms or threatens to harm the child’s health or welfare”). Here, we find the 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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trial court’s “Hart analysis” (as to whether S.L.’s punishment was excessive) is 

supported by competent and credible evidence that S.L. suffered acute pain of such 

duration as to result in substantial suffering. As such, the trial court’s adjudications 

(of S.L.) as an abused and dependent child were proper. 

{¶30} Accordingly, Scott’s first assignment of error, as it pertains to S.L., is 

not well taken. 

Abuse and Dependency of L.L.

{¶31} As to the evidence offered to prove L.L. to be an abused and dependent 

child, the State called G.L., the 13-year-old sister of L.L., to testify. G.L. testified 

that on one particular occasion, L.L., age 3, had made a “mess” while attempting to 

go to the bathroom by himself. G.L. testified that after the incident, Scott told her 

to give L.L. a bath and clean him up. While bathing him, G.L. noticed red marks 

on L.L.’s back (from being spanked with a belt) and red marks on his chest, which 

she claimed were from Scott pinching him. G.L. took photographs of the marks (on 

L.L.) with her iPad. 

{¶32} The State also offered the testimony of Det. Brugler relative to L.L.’s 

abuse. Det. Brugler testified that on July 13, 2017 Heather Shelt, the children’s 

foster parent, brought G.L. into the Sheriff’s office along with her (G.L.’s) iPad. 

Based upon the photographs (on G.L.’s iPad) revealing marks on L.L. and due to 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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the ongoing investigation of Scott’s alleged abuse, Det. Brugler contacted the 

prosecutor.2

 

{¶33} As to L.L, the trial court, in its judgment entry of adjudication, states 

“it is not appropriate to discipline a three-year-old because he wet himself”. 

However, even though the trial court engaged in a “Hart analysis” to determine that 

L.L.’s punishment was excessive, the record is void of any evidence supporting that 

L.L.’s injuries amounted to “serious physical harm” as set forth under R.C. 

2901.01(A)(5)(e). 

{¶34} As we noted above, in a case charging abuse under R.C. 2151.031(C), 

the State must prove by clear and convincing evidence, that (1) the child sustained 

physical or mental injury and (2) the injury was caused by non-accidental means, or 

was at variance with the history given. And, R.C. 2901.01(A)(5)(e) defines “serious 

physical harm to a person” as “[a]ny physical harm that involves acute pain of such 

duration as to result in substantial suffering or that involves any degree of prolonged 

or intractable pain”. R.C. 2901.01(A)(8) defines “substantial risk” as “a strong 

possibility, as contrasted with a remote or significant possibility, that a certain result 

may occur or that certain circumstances may exist”. 

{¶35} Moreover, despite our agreement with the trial court that Scott’s 

punishment of L.L. was excessive, we find the evidence of serious physical harm in 

 

2

 The record suggests that Scott was also indicted by the Logan County Grand Jury for child endangering 

with regards to L.L. 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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the record to be non-existent. Thus, upon our review of the record and the evidence 

provided, we cannot conclude that the punishment inflicted upon L.L. caused a 

substantial risk of serious physical harm. Thus, the State failed in its burden under 

R.C. 2151.031(C) to prove that L.L. was an abused child. Nonetheless, we do find 

that the excessive punishment of L.L. by Scott supports the trial court’s finding of 

dependency. 

{¶36} Accordingly, the trial court erred in finding L.L. to be an abused child. 

Thus, we reverse and vacate the trial court’s abuse adjudication of L.L. 

Dependency of G.L., R.L. and B.L. 

{¶37} The complaints filed by the State alleged that R.L., G.L, and B.L. were 

dependent pursuant to R.C. 2151.04(C), which defines a dependent child as any 

child: 

“Whose condition or environment is such as to warrant the state, 

in the interest of the child, in assuming the child’s guardianship” 

An adjudication under R.C. 2151.04(C) requires evidence that the parent’s conduct 

is having “an adverse impact upon the child sufficiently to warrant state 

intervention”. In re Burrell, 58 Ohio St.2d 37, 39 (1979). “That impact cannot be 

simply inferred in general, but must be specifically demonstrated in a clear and 

convincing manner.” Id. Furthermore, an adverse impact that supports a finding of 

dependency and the intervention of the state must be more than an “upset” child or 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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a “temporary unhappiness”. In re Holzwart, 3d Dist. Seneca Nos. 13-04-32, 13-04-

33, 13-04-34, & 13-04-40, 2005-Ohio-1602, ¶12. 

{¶38} The record reflects that Scott was arrested by Det. Brugler for child 

endangering relative to the injuries suffered by S.L. Upon Scott’s arrest, LCCS 

caseworker Pratt commenced the process to obtain emergency custody of the 

children since Scott was the only parent of the children. The trial court, in its entry 

granting LCCS’s request for temporary custody of the children, determined: 

“that the removal of the Children from the custody of their 

Father, and the placement of the Minor Children with Logan 

County Children Services is necessary to prevent immediate or 

threatened physical or emotional harm to the Children”. (Doc 2). 

(Emphasis added). 

{¶39} At the adjudicatory hearing, the trial court received evidence from 

G.L., Pratt and Det. Brugler as to the condition and environment of Scott’s home on 

the issue of whether G.L., R.L. and B.L. were dependent children. As to the 

environment of Scott’s home, G.L., age 13, testified that in the mornings, she would 

ready the girls (R.L., S.L. and B.L.) for school and get them on the bus while Scott 

and Walt watched t.v. in their bedroom. (Tr. 17). She further testified that the kids 

did a large portion of the housework. (Tr. 17-18). G.L. also testified that all the 

girls regularly got spanked with a belt (15 – 20 times per spanking) by either Scott 

or Walt. (Tr. 21). She further stated that they would frequently have bruising from 

the spankings. (Tr. 27). 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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{¶40} Next, LCCS caseworker Pratt testified that during his interview with 

Scott and Walt, both (Scott and Walt) admitted to spanking the children with a belt 

approximately 8-9 strikes per spanking. (Tr. 134). Pratt further testified as to the 

bruising on S.L. stating he saw different shades of brown, blue, purple and green on 

her. (Tr. 136). Pratt testified that due to the extent of S.L.’s injuries, LCCS was 

concerned for the safety and well-being of the other children and was not 

comfortable with the children to remain in Scott’s home. (Id). 

{¶41} And finally, Det. Brugler confirmed that not only was Scott arrested 

for and indicted on a felony child endangering charge, but Walt, Scott’s husband, 

was also indicted for child endangering. (Tr. 157). 

{¶42} Thus, under the evidence presented, the children’s home environment 

was permeated with excessive punishments on the children; unmotivated adults as 

to assisting the children with their basic needs; and two adults under indictment for 

felony child endangerment. As such, under the evidence adduced at trial, the State 

met its burden that all of the children were dependent pursuant to R.C. 2151.04(C) 

due to the condition of the children’s environment in Scott’s home. 

{¶43} Accordingly, we overrule Scott’s first assignment of error. 

Second Assignment of Error 

{¶44} In his second assignment of error, Scott claims that the guardian-adlitem failed to perform necessary duties pursuant to R.C. 2151.281 and 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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Superintendent Rule 48, thereby not acting in the children’s best interest, which 

violated his due process rights. We disagree. 

Standard of Review 

{¶45} In reviewing the record, Scott failed to object to the actions and 

performance of the guardian ad litem at trial. As a result, Scott has failed to preserve 

this error for appeal. “It is well established that if a party fails to object at the trial 

court level, that party waives all but plain error”. In re L.L., 3d Dist. Logan Nos. 8-

14-25, 8-14-26, 8-14-27, 2015-Ohio-2739, ¶51, quoting In re M.R., 3d Dist. 

Defiance No. 4-12-18, 2013-Ohio-1302, ¶84. 

{¶46} In Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997-Ohio-401, 

addressing the applicability of the plain error doctrine to appeals of civil cases, the 

Supreme Court of Ohio stated: 

“In appeals of civil cases, the plain error doctrine is not favored 

and may be applied only in the extremely rare case 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.” Id., at the syllabus. 

Analysis 

{¶47} Under this assignment of error, Scott fails to argue plain error. 

“‘[T]his court will not sua sponte undertake a plain-error analysis if [an appellant] 

fails to do so.’” Id., quoting Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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Ohio-2577, ¶70, quoting McMaster v. Akron Health Dept., Housing Div., 189 Ohio 

App.3d 222, 2010-Ohio-3851 ¶20. Therefore, we need not address Scott’s argument 

and accordingly, this assignment of error is not well taken and overruled. 

Third Assignment of Error 

{¶48} In Scott’s third assignment of error, he claims that his trial counsel was 

ineffective thereby prejudicing him, resulting in a decision that was unreliable. 

Specifically, Scott argues that trial counsel did not know that hearsay was not 

permitted in an adjudicatory hearing where there are allegations of abuse, neglect 

and dependency. 

Standard of Review

{¶49} To establish ineffective assistance of counsel, a defendant must show 

deficient performance by counsel, i.e., performance falling below an objective 

standard of reasonable representation; and prejudice – a reasonable probability that 

but for counsel’s error, the proceedings result would have been different. In re E.C., 

3d Dist. Defiance No. 4-15-08, 2015-Ohio-4807, citing Strickland v. Washington, 

466 U.S. 668, 687-688, 104 S.Ct. 2052 (1981). 

Analysis 

{¶50} In support of this assignment of error Scott argues that his trial counsel 

1) failed to object to hearsay statements made by G.L. at trial; and 2) failed to call 

the children’s family physician as a witness. 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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Hearsay Objections 

{¶51} Relative to Scott’s hearsay argument, he directs us to eight (8) 

instances in the trial transcript wherein trial counsel failed to object to hearsay.3

 We 

note at the outset that “the failure to make objections is not alone enough to sustain 

a claim of ineffective assistance of counsel”. State v. Conway, 109 Ohio St.3d 412, 

2006-Ohio-2185, ¶103. 

{¶52} Scott argues that the transcript contains “numerous hearsay statements 

of G.L.” which allowed “Appellee to present damaging evidence through one child 

instead of calling the available child to testify”. In our review of the transcript, only 

pages 29, 40, 46, 50, 92, 102 contain G.L.’s testimony. Thus, because we find no 

testimony of G.L. on pages 127 and 158, we need not consider such passages in light 

of Scott’s argument. 

{¶53} In reviewing G.L.’s testimony on pages 29 and 40, we find no hearsay, 

only innocuous references (by G.L.) as to how the children in Scott’s home got into 

trouble. As to the testimony (of G.L.) on pages 46 and 102 of the transcript, we find 

that the purported hearsay statements (albeit not clearly referenced to us by Scott) 

involve the reactions of the children to visitation (with Scott) since being removed 

from Scott by the trial court on May 24. We find the children’s reactions (to 

visitation) not to be statements offered to prove whether or not the children were 

 

3

 Transcript of 8/4/17, pgs. 29, 40, 46, 50, 92, 102, 127 and 158. 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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either abused or dependent. Rather, such reactions represent the children’s present 

sense impressions to visitation and are not hearsay herein. 

{¶54} As to the purported hearsay on page 50 of the transcript, G.L. testified 

(that S.L. and B.L. stated) “that they were sick and would stay home”. However, 

S.L. and B.L.’s statements bear no reference to the abuse or dependency allegations 

in question because their statements were in reference to their missing of school the 

previous school year. Thus, that statement is not objectionable hearsay. 

{¶55} And finally, on pages 92-93 of the transcript, G.L.’s testimony “they 

told me that they were crying” refers to present sense impressions of her classmates 

in relation to seeing her (G.L.’s) bruises. Once again, this statement is not hearsay 

because “statements describing or explaining an event or condition made while the 

declarant was perceiving the event or condition, or immediately thereafter unless 

circumstances indicate lack of trustworthiness” are hearsay exceptions under 

Evid.R. 803(1). We also find this statement is not hearsay. 

{¶56} Thus, as it relates to G.L.’s testimony, Scott has not sustained his 

burden in proving that trial counsel’s failure to object to various hearsay statements 

resulted in ineffective assistance of counsel. 

Failure to Call Witness 

{¶57} In regards to Scott’s claim that his trial counsel was ineffective for 

failure to call the children’s family physician, we find such argument 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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underdeveloped as to the prejudice he experienced from such failure. “The decision 

whether to call or not call witnesses is generally a matter of trial strategy and, absent 

a showing of prejudice, does not deprive a defendant of effective assistance of 

counsel.” State v. Bofia, 3d Dist. Henry No. 7-03-12, 2004-Ohio-3018, quoting 

State v. Utz, 3d Dist. Crawford No. 3-03-38, 2004-Ohio-2357, ¶12. Since trial 

strategy dictates whether or not a witness should or should not be called (as a 

witness), we cannot speculate that the failure to call the children’s family doctor 

prejudiced Scott. It is perfectly reasonable that the testimony of the children’s 

doctor could lead to damaging evidence against Scott. Thus, without a showing of 

prejudice, Scott’s argument fails. 

{¶58} Accordingly, having found no merit in Scott’s arguments under this 

assignment of error, we overrule Scott’s third assignment of error. 

{¶59} In sum, as to S.L., G.L., B.L. and R.L., having found no error 

prejudicial to the Appellant herein in the particulars assigned and argued, we 

overrule Appellant’s first, second and third assignments of error and affirm the 

judgments of the trial court in cases 8-17-25, 8-17-26, 8-17-27, 8-17-28, 8-17-33, 

8-17-34, 8-17-35, and 8-17-36. 

{¶60} And as to L.L., having found error prejudicial to the Appellant herein 

in the particulars assigned and argued, we sustain Appellant’s first assignment of 

error only as to the judgment entry of the adjudication of abuse and reverse such 
Case Nos. 8-17-25-29 and Case Nos. 8-17-33-37 

 

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abuse adjudication and remand this matter to the trial court to vacate such abuse 

adjudication in its record in case 8-17-29. 

{¶61} Further, as to L.L., we overrule Appellant’s first assignment of error 

as to L.L.’s adjudication of dependency (case 8-17-37) and overrule Appellant’s 

second and third assignments of error and affirm the judgment of the trial court in 

cases 8-17-29 and 8-17-37. 

Judgments Affirmed in cases 8-17-25 thru 8-17-28 

 and 8-17-33 thru 8-17-37 

Judgment Affirmed in Part and Reversed in Part 

and Cause Remanded in case 8-17-29 

WILLAMOWSKI, P.J. and PRESTON, J., concur. 

/jlr