[Cite as In re C.R. , 2020-Ohio-4676.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: C.R. C.M. C.M. C.A. No. 29608

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 19 03 0187 DN 19 03 0188 DN 19 03 0189

DECISION AND JOURNAL ENTRY Dated: September 30, 2020

SCHAFER, Judge. {¶1} Appellant, J.C. (“Mother”), appeals from a judgment of the Summ it County Court of Common Pleas, Juvenile Division, that adjudicated her two mi nor children dependent children and placed them in the temporary custody of the father of one o f the children (“Father”). This

Court affirms.

I. {¶2} When this case began, Mother and Father lived together with thr ee children: C.R., born April 13, 2007; C.M., a boy, born August 22, 2012; and ano ther child with the initials C.M., a girl, born September 28, 2015. Because there are two childre n with the initials C.M., and the alleged abuse of the male C.M. i s the focus of this appeal, he will be referred to throughout this opinion as “C.M.” The female C. M. will be referred to as “the youngest child.”2

{¶3} Although Mother has appealed the adjudication and disposition o f all three children, she is not the mother of C.M. Because Mother lacks s tanding to appeal the state’s interference in the parental rights of that child, the appeal p ertaining to C.M., born August 22, 2012, is dismissed. See , e.g ., In re A.S ., 9th Dist. Summit No. 23456, 2007-Ohio-2195, ¶ 9; In re

J.O ., 9th Dist. Summit No. 22510, 2005-Ohio-2399, ¶ 9. Neverthele ss, the facts underlying C.M.’s adjudication as an abused child a re directly relevant to this a ppeal because Mother’s two children were adjudicated dependent because they lived in the same home in which C.M. had been abused.

See R.C. 2151.04(C). {¶4} On June 18, 2018, while Father was at work and the three childr en were home with Mother, C.M. sustained serious burns on his hands from hot wate r running from the faucet in the upstairs bathroom sink. Mother called Father, who immediately came home, and Mother and Father took C.M. to the hospital. C.M. was treated for his bur ns. Hospital personnel contacted the police and Summit County Childre n Services Board (“CSB”) an d an investigation ensued into

the cause of the child’s burns. {¶5} CSB filed and dismissed several complaints after the incident b ecause the cases did not proceed to timely disposition. This case, filed March 1, 2 019, resulted in a timely adjudication and disposition. Prior to adjudi cation, Mother was ordered to vacate the home. {¶6} Throughout this case, all parties agreed that C.M.’s burns had been caused by hot water running from the faucet of the upstairs bathroom sink. T he sole dispute was whether C.M. accidentally burned himself while he washed his own hands, or t he injury was caused by Mother intentionally holding hi s hands under hot water. {¶7} At the hearing, the trial court heard testimony from witnesses who had interviewed Mother and C.M. following the inc ident; witnesses who had evalu ated the potential temperature3

of the hot water running from the faucet; medical experts who h ad examined C.M. or records about his injuries; and C.R., the oldest child who had been present i n the home during the incident. Upon the advice of counsel represen ting Mother in her criminal case, Mother did not testify. {¶8} Following the adjudicatory hearing, the magistrate found that C .M. was an abused child, and that C.R. and the youngest child were dependent for that reason. The children were later placed in the temporary custody of Father under an order of pro tective supervision. The trial court immediately adopted both decisions , pending the filing of timel y objections. {¶9} Mother filed objections to the magistrate’s adjudicatory and di spositional decisions, which were later overruled by th e trial court. The trial court adjudicated C.R. and the youngest child dependent because of Mother’s abuse of C.M. The trial co urt placed both children in the temporary custody of Father under an order of protective superv ision by CSB. Mother appeals and raises two assignments of e rror, which will be addressed to gether for ease of discussion.

II.

ASSIGNMENT OF ERROR I [CSB] DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE THAT C.M. AND HIS SIBLINGS WERE ABUSED OR DEPENDENT AND, THEREFORE, THE FINDINGS OF ABUSE AND DEPENDENC[Y] WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR II

THE DECISION THAT C.M. WAS ABUSED AND THAT HIS SIBLINGS WERE DEPENDENT WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE. {¶10} This Court will address the assignments of error together becau se Mother asserts through both that the trial cour t’s determination that she abus ed C.M. was not supported by the evidence presented at the hearing. The trial court’s adjudicat ion of C.M. as an abused child was the basis of its adjudication that C.R. and the youngest child were dependent because their4

“condition or environment” warrant ed the state in assuming thei r guardianship. R.C. 2151.04(C). The evidence was not disputed that C.M. had used the upstairs t oilet, Mother assisted him in wiping his behind, C.M. had his hands under hot running water after th e cold water was turned down or off, and C.M.’s hands were burned by the hot water coming from the sink faucet. The only disputed issue was whether C.M . burned his hands by accidentall y adjusting the hot or cold water while washing his own hands or by Mother intentionally holding his hands under hot water. {¶11} Mother challenges both the sufficiency and weight of the eviden ce. “[S]ufficiency is a test of adequacy. Whether the evidence is legally suffici ent to sustain a [judgment] is a question of law.” State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). In considering whether the juvenile court's judgment is agai nst the manifest weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the credibili ty of witnesses and determines whether in resolving conflicts i n the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new [hearing] ordered.” (Internal quotations omitted.) Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio2179, ¶ 20. When weighing the evidence, this Court “must alway s be mindful of the presumption

in favor of the f inder of fact.” Id . at ¶ 21. {¶12} CSB presented sufficient evidence to demonstrate that Mother ha d intentionally burned C.M.’s hands by holding them under hot, running water. Mother’s defense attempted to undermine the credibility of CSB’s witnesses and demonstrate th at she had left C.M. in the bathroom to wash his hands and, if he had turned off the cold w ater, the water could have been hot enough to burn his hands in less than a second while he washed his hands. {¶13} At the hearing and on appeal, Mother focused much of her defens e on evidence about the potential temperature of the hot water running from t he faucet during the incident.5

Mother presented the testimony of an expert who had determined that, at the time of the incident, the water coming from the faucet could have been as hot as 159. 9 degrees. Mother’s expert testimony disputed CSB’s evidence that the temperature of the w ater was probably about 125 degrees at the time C.M . sustained his burns. {¶14} Mother has repeatedly emphasized that her expert was more quali fied and that he conducted more precise tests to de termine the temperature of th e water. Even if the water temperature evidence presented by Mother’s expert was more accu rate, the disputes in the evidence were not only about the temperature of the water when C.M. was burned. CSB’s case was strongly supported by the evidence, while Mother’s defense that C.M. had accidently burned himself was contradicted by mo st of the evidence about how C.M. sustained his injuries.

Statements of Witne sses at the Home

C.M. {¶15} C.M., who was five years old at the time of the incident, did n ot testify but his statements came in through the testimony of a hospital social worker, a police detective, and a CSB intake worker, each of whom i nterviewed the child after the incident. C.M. reported that he

was burned while he and Mother w ere alone in the bathroom and M other held his hands under hot water. Notably, C.M. never sai d during the investigation that he was playing in the water, that his younger sister was present in the bathroom, or that he had acci dentally burned his own hands while washing them. {¶16} Mother challenged the credibility of several aspects of C.M.’s statements. For example, C.M. had said that Moth er held his hands “in” the wate r, not “under” the running water, perhaps suggesting that his hands were submerged in a sink fill ed with water. She also pointed to

C.M.’s statement that his hands were held in the water for “six hours” and his later statement that6

it was a “bear” who burned his ha nds. Mother also challenged C .M.’s competency to correctly recall the incident by pointin g to his expressed confusion abou t his birthdate and age. {¶17} To support the reliability of then five-year-old C.M.’s stateme nts that Mother had burned him, CSB presented the opinion testimony of a forensical ly trained social worker and a pediatrician at Akron Children’s Hospital who specializes in ch ild abuse and neglect. Both

witnesses believed that C.M.’s statements were appropriate for his age, given his apparent failure to reach certain developmental milestones, such as counting to ten without assistance. The social worker, who had been forensically trained to interview young ch ildren, expressed her belief that C.M. was competent t o describe the details of the incident. {¶18} The pediatrician explained that C.M. was not developmentally ma ture enough to

understand the distinction betwee n his hands being held “under” running water and being held “in” still water, and he testified that C.M.’s reference to “six hou rs” simply meant a long time in the young child’s mind. The pediatrician also explained that it is not uncommon for child victims to recant their earlier statements if they perceive that they are causing upheaval in the family. CSB emphasized that C.M. made the st atement about the “bear” burnin g his hands during an interview

while Father was in the room.

Mother {¶19} Mother’s statements about the incident also came in through the testimony of

witnesses who had inte rviewed her about the incident. Mother u ndermined her own credibility, however, because she described conflicting versions of the rele vant events. Mother initially reported that she ha d been in the bathroom when C.M. burned his hands. She later told the police detective that she had left the bathroom while C.M. and the you ngest child, then less than three7

years old, were playing in the water in the sink. When she lef t the bathroom, she initially said that C.M. was pulling up his pants. {¶20} The police detective testified that she questioned Mother furth er because she did not understand why, if both children were playing in the water, C.M. was the only child to sustain any injury. Mother then reported that she put soap on C.M.’s h ands, left him in the bathroom with the water running, and went dow nstairs to check on the laundry. She said that she ran back upstairs when she heard C.M. screaming. {¶21} Mother told the CSB intake worker that she had left C.M. alone in the bathroom to wash his hands and told C.R. to take the dog outside. She did not mention where the youngest child was at that time. Mother further reported that, when she heard C.M. scream and went to assist him after he burned himself, she called C.R., who came i nto the bathroom to help her treat

the child’s burns with cold water.

C.R. {¶22} C.R., who was 11 years old at the time C.M. sustained his burns , apparently never spoke to any authorities who investigated the incident. C.R. t estified at the hearing as a witness for Mother. She stated that she was home during the incident, playing cards in her bedroom, when Mother asked her to feed the dog. She testified that she went downstairs, fed the dog, then went outside with the dog for two to three minutes. When she came b ack inside, she went upstairs because she heard C.M. screaming. According to C.R.’s initial testimony, Mother was already in

the bathroom when she came back inside. On cross-examination, however, C.R. testified that Mother was running up the stairs to help C.M. when she came bac k inside. {¶23} Given the inconsistenc ies in the statement s of Mother and the t estimony of C.R., it

was not unreasonable for the tria l court to believe C.M., who c onsistently said that someone else8

burned him and never once said that he was washing his owns han ds and/or adjusted the hot or cold water and accidentally burned himself. Medical Experts Mother’s Expert {¶24} By agreement of the parties, to accommodate the schedules of the witnesses, Mother’s medical expert testified first. Mother’s medical expert did not examine C.M. but

reviewed his medical records , including photographs of the chil d’s injuries. Mother’s expert also

reviewed a statement of Moth er about the incident but did not r eview any statements made by the

child. {¶25} Mother’s expert testified that, if the cold water had been turn ed off and the hot water coming from the faucet was as hot as 140 degrees, C.M. co uld have sustained his burns in less than one second. He ultimately opined that C.M. could hav e put his own hands under the water, palms down and fingers ope n, and that his burns were jus t as likely the result of an accident as an intentional burn injury. CSB’s Expert {¶26} CSB’s expert, the pediatrician from Akron Children’s Hospital, physically examined C.M. shortly after the incident. He observed the burn s in person and explained that his physical examination of C.M. allowed him to turn C.M.’s hands a nd examine the barriers of the burns that were not captured by the photos. He also explained that the photographs were taken the day after he examined C.M. and did not depict some of the subtl eties and borders of the burns that he could observe in person, eve n without moving the hands. {¶27} When asked whether the child c ould have sustained his burns fro m briefly holding his hands under extremely hot water, he responded that the burn pattern would have shown that9

C.M. quickly withdrew his hands and he would not have burned su ch an extensive area from a brief exposure to the water. Moreover, the “well demarcated” b urn lines at both wrists further supported his conclusion that the child’s hands had been forcib ly held under hot water “for an extended period of time” while the water ran off his hands at t he wrists. He furthe r explained that the absence of any burns on his palms or fingers demonstrated t hat C.M.’s hands had been held in a fisted position, palms down, which “is not a natural position for washing of hands.” He concluded that C.M.’s injuries h ad been the result of the child ’s hands being forcibly held under hot running water, not an accidental injury. {¶28} Mother also argues that the tri al court should not have conside red the testimony of CSB’s medical expert because he did not testify to an adequate degree of medical certainty. Her stated assignments of error, howev er, assert only that the tria l court’s adjudication was not supported by the weight and/or sufficiency of the evidence at t he hearing. As stated above, when reviewing a challenge to the manifest weight of the evidence, t his Court reviews and weighs all the evidence that was admitted at the hearing. See Eastley v. Volkman , 2012-Ohio-2179, at ¶ 20. This Court’s role in reviewing the sufficiency of evidence to s upport a judgment is also to review evidence admitted at the hearing. See State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. {¶29} In other words, Mother’s challe nges to the sufficiency and weig ht of the evidence do not encompass arguments about the admissibility of any evide nce that was considered at the hearing. Mother should have raised this issue through a separa te assignment of error. See In re

L.P ., 9th Dist. Summit No. 27792, 2015-Ohio-4164, ¶ 22. Moreover, although Mother crossexamined the expert at trial, she did not challenge the admissi bility of his testimony and cannot do so for the first time on appeal. In re G.M ., 9th Dist. Wayne Nos. 14AP0040 and 14AP0041, 2015-10

Ohio-582, ¶ 26. Because Mother’s argument about the trial cour t considering the testimony of CSB’s medical expert is not pr operly before us on appeal, we do not reach the merits of the issue. {¶30} Given the totality of the evidenc e before it, the trial court r easonably rejected

Mother’s defense and c oncluded that Mother ha d abused C.M. by b urning his hands and that, as a result, Mother’s two children were dependent because they lived in the same household. Mother

has failed to demonstrate that t he trial court’s decision was n ot supported by the evidence presented at the adjudicatory hearing. Her assignments of error are over ruled.

III. {¶31} Mother’s assignments of error ar e overruled. The judgment of t he Summit County Court of Common Pleas, Juven ile Division, is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30.11

Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CALLAHAN, P. J. CONCURS. HENSAL, J. DISSENTING. {¶32} I would reverse the trial court’s adjudication because I do not agree that CSB established, by clear and convinc ing evidence, that Mother abus ed C.M. In addition to uncertainty about the temperature of the wate r at the time C.M. sustained h is burns, the investigation was

intertwined with confusion about w hether C.M.’s hands had been burned by immersing his hands in a sink full of hot water or by holding his hands under runni ng water. The statements of C.M. were fairly vague and did not r ule out Mother’s statement that she had held the child’s burned hands under cold water. Moreover, Mother consistently stated t hat she did not burn C.M.’s hands but that her only mistake was to leave him unattended at the si nk in the bathroom. For these reasons, I respectfully dissent.

APPEARANCES: WILLIAM T. WHITAKER and ANDREA L. WHITAKER, Attorneys at Law, f or Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTI NO, Assistant Prosecuting Attorney, for Appellee. BRENDON KOHRS, Attorney at Law, for C.M. AMBER CROWE, Guardian ad Litem. SALLY A. PRENTICE, Guardian ad Litem.