[Cite as In re S.L., 2016-Ohio-5000.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

IN RE: 

 S.L., CASE NO. 14-15-07 

ADJUDGED ABUSED AND 

DEPENDENT CHILD. 

 O P I N I O N 

[ERICA SKAGGS - APPELLANT] 

 

IN RE: 

 A.L., CASE NO. 14-15-08 

ADJUDGED DEPENDENT CHILD. 

 O P I N I O N 

[ERICA SKAGGS - APPELLANT] 

 

Appeals from Union County Common Pleas Court 

Juvenile Division 

Trial Court Nos. 21530001 and 21530002 

Judgment in Case No. 14-15-07 Affirmed in Part and Reversed in Part; 

Judgment in Case No. 14-15-08 Reversed; Causes Remanded 

Date of Decision: July 18, 2016 

 

APPEARANCES: 

 

Robert C. Petty for Appellant, Erica Skaggs 

Ashley L. Johns for Appellee 
Case Nos. 14-15-07 and 14-15-08 

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PRESTON, J. 

{¶1} Appellant, Erica Skaggs (“Erica”), appeals the April 8, 2015 judgment 

entries of disposition of the Union County Court of Common Pleas, Juvenile 

Division. On appeal, Erica challenges the trial court’s March 18, 2015 judgment 

entries adjudicating: (1) Erica’s child, S.L., an abused child under R.C. 

2151.031(A) and a dependent child under R.C. 2151.04(C); and (2) Erica’s child, 

A.L., a dependent child under R.C. 2151.04(C) and (D). For the reasons that 

follow, we reverse in part and affirm in part the judgment in Case No. 14-15-07 

and reverse the judgment in Case No. 14-15-08. 

{¶2} On January 7, 2015, appellee, the Union County Department of Job 

and Family Services (“Agency”), filed a complaint alleging that S.L. is an abused 

child under R.C. 2151.031(A) and a dependent child under R.C. 2151.04(C). 

(Case No. 21530001, Doc. No. 1). The Agency also filed a complaint alleging 

that A.L. is a dependent child under R.C. 2151.04(C) and (D). (Case No. 

21530002, Doc. No. 1). The complaints allege that S.L. and A.L. are the children 

of Erica and Scott E. Lippencott (“Scott”). (Id.); (Id.). Erica is married to Joel 

Skaggs (“Joel”), and they have two children, L.S. and B.S., together. (Id.); (Id.). 

Joel is a stepfather to S.L. and A.L. (Id.); (Id.). According to the complaints, on 

November 15, 2014, the Agency “received a report of domestic violence and 

sexual abuse.” (Id.); (Id.). The complaints allege that law enforcement learned 
Case Nos. 14-15-07 and 14-15-08 

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during their investigation that Joel “had been inappropriately touching” S.L. (Id.); 

(Id.). According to the complaints, the Agency initially “believed that Erica was 

appropriately protecting” the children because she obtained an ex parte civil 

protection order on November 21, 2014, barring Joel from having contact with 

Erica and the four children. (Id.); (Id.). The complaints allege, however, that 

Erica petitioned on December 23, 2014 to have the civil protection order 

dismissed. (Id.); (Id.). The complaints continue, “[T]he Agency has concerns 

about the safety of all the children in the presence of [Joel] based on the history of 

domestic violence coupled with the sexual abuse of [S.L.].” (Id.); (Id.). 

{¶3} Also on January 7, 2015, the Agency filed motions for temporary 

orders. (Case No. 21530001, Doc. No. 2); (Case No. 21530002, Doc. No. 2). The 

trial court issued ex parte orders that day, ordering that Joel have no contact or 

parenting time with S.L. and A.L. and that Joel vacate the residence.1

 (Case No. 

21530001, Doc. No. 9); (Case No. 21530002, Doc. No. 9). The next day, the trial 

court issued temporary orders of shelter care, with the January 7, 2015 ex parte 

orders remaining in effect. (Case No. 21530001, Doc. No. 15); (Case No. 

21530002, Doc. No. 15). The trial court issued additional temporary orders on 

February 4, 2015, granting temporary custody of S.L. to Scott, ordering that Erica 

retain custody of A.L., and granting the Agency temporary protective supervision 

 

1

 At the time the trial court issued the ex parte orders on January 7, 2015, A.L., L.S., and B.S. were residing 

in the residence occupied by Erica and Joel. (See Case No. 21530001, Doc. No. 9); (Case No. 21530002, 

Doc. No. 9). S.L. was “stay[ing] with a relative in a county contiguous to Union County.” (See id.); (Id.). 
Case Nos. 14-15-07 and 14-15-08 

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over both children. (Case No. 21530001, Doc. No. 40); (Case No. 21530002, 

Doc. No. 38). 

{¶4} On March 16 and 18, 2015, the trial court held an adjudicatory 

hearing. (Mar. 16, 2015 Tr. at 4-5); (Mar. 18, 2015 Tr. at 6). (See also Case No. 

21530001, Doc. No. 65); (Case No. 21530002, Doc. No. 63). At the conclusion of 

the hearing, the trial court adjudicated S.L. an abused and dependent child under 

R.C. 2151.031(A) and 2151.04(C), respectively, and A.L. a dependent child under 

R.C. 2151.04(C) and (D). (Mar. 18, 2015 Tr. at 48). (See also Case No. 

21530001, Doc. No. 65); (Case No. 21530002, Doc. No. 63). On the day the 

adjudicatory hearing concluded, the trial court filed its judgment entries reflecting 

these adjudications. (Case No. 21530001, Doc. No. 65); (Case No. 21530002, 

Doc. No. 63). 

{¶5} The trial court held a dispositional hearing on March 26, 2015. (Mar. 

26, 2015 Tr. at 4). (See also Case No. 21530001, Doc. No. 73); (Case No. 

21530002, Doc. No. 71). At the conclusion of the dispositional hearing, the trial 

court ordered that Scott have legal and physical custody of S.L. and that Erica 

have legal and physical custody of A.L., with the Agency having continued 

protective supervision over both children. (Mar. 26, 2015 Tr. at 74). (See also

Case No. 21530001, Doc. No. 73); (Case No. 21530002, Doc. No. 71). On April 
Case Nos. 14-15-07 and 14-15-08 

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8, 2015, the trial court filed its judgment entries reflecting the dispositions. (Case 

No. 21530001, Doc. No. 73); (Case No. 21530002, Doc. No. 71). 

{¶6} On May 4, 2015, Erica filed her notices of appeal. (Case No. 

21530001, Doc. No. 87); (Case No. 21530002, Doc. No. 84). She raises eight 

assignments of error for our review. We will address her assignments of error in 

the following order: seventh; fourth; first, second, and third together; fifth; eighth; 

and sixth. 

Assignment of Error No. VII 

The Court Erred as a Matter of Law by Failing to Make 

Findings of Fact and Conclusions of Law in Accordance with 

R.C. § 2151.28(L). 

{¶7} In her seventh assignment of error, Erica argues that the trial court 

failed to comply with R.C. 2151.28(L), which requires that, if the trial court 

determines that a child is a dependent child, the trial court incorporate that 

determination into written findings of fact and conclusions of law. 

R.C. 2151.28(L) provides: 

If the court, at an adjudicatory hearing held pursuant to division (A) 

of this section upon a complaint alleging that a child is an abused, 

neglected, dependent, delinquent, or unruly child or a juvenile traffic 

offender, determines that the child is a dependent child, the court 

shall incorporate that determination into written findings of fact and 
Case Nos. 14-15-07 and 14-15-08 

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conclusions of law and enter those findings of fact and conclusions 

of law in the record of the case. The court shall include in those 

findings of fact and conclusions of law specific findings as to the 

existence of any danger to the child and any underlying family 

problems that are the basis for the court’s determination that the 

child is a dependent child. 

See In re A.B.C., 5th Dist. Stark No. 2010CA00087, 2011-Ohio-531, ¶ 27. By its 

plain language, R.C. 2151.28(L) does not apply to adjudications of abuse or 

neglect. See In re J.H., 5th Dist. Tuscarawas No. 2012 AP 10 0062, 2013-Ohio1423, ¶ 42. 

{¶8} In this case, as the Agency concedes, the trial court did not comply 

with R.C. 2151.28(L) as to its determinations that S.L. and A.L. are dependent 

children. Its judgment entries contain no findings of fact on which it based its 

dependency determinations. Rather, the judgment entries simply state: 

Thereupon, the court proceeded to hear testimony as to the facts and 

circumstances of this matter. Upon evidence presented, the Court 

FINDS by clear and convincing evidence that [S.L.] is an abused 

child pursuant to R.C. 2151.031 (A) and a dependent child pursuant 

to R.C. 2151.04 (C); and [A.L.] is a dependent child pursuant to R.C. 

2151.04 (C) and (D). 
Case Nos. 14-15-07 and 14-15-08 

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(Emphasis sic.) (Case No. 21530001, Doc. No. 65); (Case No. 21530002, Doc. 

No. 63). We hold that this recitation fails to satisfy the requirement of R.C. 

2151.28(L) that the trial court make “findings of fact and conclusions of law,” 

including “specific findings as to the existence of any danger to the child and any 

underlying family problems that are the basis for the court’s determination that the 

child is a dependent child.” See In re A.B.C. at ¶ 25-29; In re S.W., 12th Dist. 

Butler Nos. CA2006-09-211 and CA2006-10-263, 2008-Ohio-1194, ¶ 7-12, 16. 

{¶9} We sustain Erica’s seventh assignment of error and, in doing so, 

reverse the judgment of the trial court to the extent it determined that S.L. is a 

dependent child under R.C. 2151.04(C) and that A.L. is a dependent child under 

R.C. 2151.04(C) and (D). We remand these cases to the trial court to make 

written findings of fact and conclusions of law that comply with R.C. 2151.28(L). 

See In re S.W. at ¶ 16. 

Assignment of Error No. IV 

The Court Erred in Finding A.L. be [sic] Dependent Pursuant to 

R.C. § 2151.04(D) When No Child Had Been So Adjudicated 

Prior to the Time of the Filing of the Complaints. 

{¶10} In her fourth assignment of error, Erica argues that “the 

determination as to whether a child is dependent must be made as of the date 

alleged in the complaint, not as of the date of the adjudicatory hearing.” 

(Appellant’s Brief at 13). Erica argues that “[t]here was no evidence submitted at 
Case Nos. 14-15-07 and 14-15-08 

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the adjudication hearing that a child in the household was an abused child” at the 

time the complaints were filed or even before March 18, 2015—the day on which 

the trial court adjudicated S.L. abused and dependent and A.L. dependent. 

{¶11} The party seeking the adjudication bears the burden of establishing 

dependency by clear and convincing evidence. In re M.H., 9th Dist. Wayne No. 

09CA0028, 2009-Ohio-6911, ¶ 17; In re Savchuk Children, 180 Ohio App.3d 349, 

2008-Ohio-6877, ¶ 33 (11th Dist.); In re D.W., 4th Dist. Athens No. 06CA42, 

2007-Ohio-2552, ¶ 18. A trial court’s determination that a child is dependent 

under R.C. 2151.04 must be supported by clear and convincing evidence. In re 

B.B., 2012-Ohio-2695, at ¶ 32, citing R.C. 2151.35. “Clear and convincing 

evidence is that measure or degree of proof which will produce in the mind of the 

trier of facts a firm belief or conviction as to the allegations sought to be 

established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). “[W]hen ‘the 

degree of proof required to sustain an issue must be clear and convincing, a 

reviewing court will examine the record to determine whether the trier of facts had 

sufficient evidence before it to satisfy the requisite degree of proof.’” In re Freed 

Children, 3d Dist. Hancock No. 5-08-37, 2009-Ohio-996, ¶ 26, quoting Cross at 

477. Therefore, we are required to determine whether the trial court’s 

determination is supported by sufficient evidence to satisfy the clear-and-
Case Nos. 14-15-07 and 14-15-08 

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convincing-evidence degree of proof. In re B.B. at ¶ 33, citing In re Adoption of 

Holcomb, 18 Ohio St.3d 361, 368 (1985). 

{¶12} The trial court adjudicated A.L. dependent under R.C. 2151.04(C) 

and (D). (Case No. 21530002, Doc. No. 63). Under this assignment of error, 

however, Erica challenges the trial court’s adjudication only under R.C. 

2151.04(D). Therefore, we need address only the trial court’s adjudication of A.L. 

as dependent under R.C. 2151.04(D). See In re D.P., 10th Dist. Franklin No. 

12AP-557, 2013-Ohio-177, ¶ 8. 

R.C. 2151.04 provides: 

As used in this chapter, “dependent child” means any child: 

* * 

(D) To whom both of the following apply: 

(1) The child is residing in a household in which a parent, 

guardian, custodian, or other member of the household committed an 

act that was the basis for an adjudication that a sibling of the child or 

any other child who resides in the household is an abused, neglected, 

or dependent child. 

(2) Because of the circumstances surrounding the abuse, neglect, or 

dependency of the sibling or other child and the other conditions in 

the household of the child, the child is in danger of being abused or 
Case Nos. 14-15-07 and 14-15-08 

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neglected by that parent, guardian, custodian, or member of the 

household. 

R.C. 2151.04(D). See In re B.B., 3d Dist. Defiance No. 4-10-17, 2012-Ohio-2695, 

¶ 26. A juvenile court has exclusive original jurisdiction “[c]oncerning any child 

who on or about the date specified in the complaint * * * is alleged * * * to be a * 

* * dependent child * * *.” R.C. 2151.23(A)(1). Accordingly, the trial court must 

determine whether the child was dependent as of the date alleged in the complaint, 

not as of the date of the adjudicatory hearing. In re Alexander C., 164 Ohio 

App.3d 540, 2005-Ohio-6134, ¶ 8 (6th Dist.), citing R.C. 2151.23(A)(1). 

{¶13} The Agency does not dispute that on either November 15, 2014 or 

the date the complaints were filed—January 7, 2015—there was no adjudication 

that a sibling of or other child residing with S.L. and A.L. was abused, neglected, 

or dependent based on an act of a parent or other member of the household. See

R.C. 2151.04(D)(1). Accordingly, Erica’s fourth assignment of error presents the 

following issue: whether R.C. 2151.04(D) can serve as the basis for an 

adjudication of dependency notwithstanding the absence—as of the filing of the 

complaint—of an adjudication of a sibling or other child in the household as 

abused, neglected, or dependent based on an act of a parent or other household 

member. This question appears to be one of first impression in Ohio. 
Case Nos. 14-15-07 and 14-15-08 

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{¶14} Erica argues that “the determination as to whether a child is 

dependent must be made as of the date alleged in the complaint” and that, under 

R.C. 2151.04(D), the adjudication of abuse, neglect, or dependency must have 

occurred before the filing of the complaint. (Appellant’s Brief at 7). The Agency 

on appeal argues that the purpose of the juvenile court system is to provide for the 

care, protection, and mental and physical development of children and that “courts 

are not required to wait for harm to befall a child before acting.” (Appellee’s Brief 

at 9). For that reason, the Agency argues, it should be allowed to pursue 

simultaneous adjudications of the child alleged to be dependent under R.C. 

2151.04(D) and of a “sibling of the child or any other child who resides in the 

household.” R.C. 2151.04(D)(1). 

{¶15} To answer the question presented under this assignment of error, we 

must determine whether R.C. 2151.04(D)(1) is ambiguous. “The principles of 

statutory construction require courts to first look at the specific language contained 

in the statute, and, if the language is unambiguous, to then apply the clear meaning 

of the words used.” Roxane Laboratories, Inc. v. Tracy, 75 Ohio St.3d 125, 127 

(1996), citing Provident Bank v. Wood, 36 Ohio St.2d 101, 105-106 (1973). 

“Words and phrases shall be read in context and construed according to the rules 

of grammar and common usage. Words and phrases that have acquired a technical 

or particular meaning, whether by legislative definition or otherwise, shall be 
Case Nos. 14-15-07 and 14-15-08 

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construed accordingly.” R.C. 1.42. “Statutes that are plain and unambiguous 

must be applied as written without further interpretation.” Proctor v. 

Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, ¶ 12, citing Lake Hosp. Sys. v. 

Ohio Ins. Guar. Assn., 69 Ohio St.3d 521, 524 (1994). That is, “‘where the 

language of a statute is clear and unambiguous, it is the duty of the court to 

enforce the statute as written, making neither additions to the statute nor 

subtractions therefrom.’” Sherwin-Williams Co. v. Dayton Freight Lines, Inc., 112 

Ohio St.3d 52, 2006-Ohio-6498, ¶ 14, quoting Hubbard v. Canton City School Bd. 

of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 14. 

{¶16} We hold that R.C. 2151.04(D)(1) is unambiguous concerning the 

issue presented under Erica’s fourth assignment of error. To satisfy the definition 

of dependency under R.C. 2151.04(D), the child must reside in a household in 

which a parent or other member of the household “committed an act that was the 

basis for an adjudication” that a sibling or any other child residing in the 

household is an abused, neglected, or dependent child. R.C. 2151.04(D)(1). The 

word “adjudication” in this context of R.C. Chapter 2151 has a particular meaning. 

An “adjudicatory hearing” is a hearing at which a trial court determines whether a 

child is abused, neglected, or dependent. See R.C. 2151.28(B) and 2151.35(B)(1). 

See also Juv.R. 2(B) (defining “adjudicatory hearing” as “a hearing to determine 

whether a child is a juvenile traffic offender, delinquent, unruly, abused, 
Case Nos. 14-15-07 and 14-15-08 

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neglected, or dependent or otherwise within the jurisdiction of the court” 

(emphasis added)). A trial court’s determination under R.C. Chapter 2151 that a 

child is abused, neglected, or dependent constitutes an “adjudication.” See R.C. 

2151.28(B) and 2151.35(B)(1). See also In re Baby Girl Baxter, 17 Ohio St.3d 

229, 233 (1985), quoting Juv.R. 29(F)(2)(a); In re A.J., 10th Dist. Franklin No. 

14AP-284, 2014-Ohio-5046, ¶ 26. 

{¶17} R.C. 2151.04(D)(1) refers to “an act that was the basis for an 

adjudication.” (Emphasis added.) The General Assembly chose the word “was,” 

which is a past-tense verb. State v. Johnson, 4th Dist. Scioto No. 07CA3158, 

2008-Ohio-1369, ¶ 18. “The past tense indicates action already completed.” State 

v. Halpin, 2d Dist. Clark No. 07CA78, 2008-Ohio-4136, ¶ 24. In the context of 

R.C. 2151.04(D)(1), saying that an act was the basis of an adjudication requires 

there to have been a past adjudication. In other words, for an act to have been the 

basis for an adjudication, there must have been a prior adjudication that a sibling 

or other child residing in the household is an abused, neglected, or dependent 

child. See In re M.P., 2d Dist. Greene No. 2011 CA 71, 2012-Ohio-2334, ¶ 15 

(concerning R.C. 3109.04, the statute governing the allocation of parental rights 

and responsibilities in domestic-relations cases, “[t]he use of the past tense by the 

General Assembly means that a modification may be ordered only after a move 

from the state has already occurred”). Had the General Assembly intended to 
Case Nos. 14-15-07 and 14-15-08 

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allow simultaneous adjudications—as the Agency argues—it would have used 

present-tense, not past-tense, language. See Lucas Cty. Commrs. v. Pub. Utilities 

Com'n of Ohio, 80 Ohio St.3d 344, 347 (1997). Accordingly, because, under R.C. 

2151.23(A)(1), the determination of dependency is made as of the date alleged in 

the complaint, the plain and unambiguous language of R.C. 2151.04(D)(1) 

requires that “a sibling of the child or any other child who resides in the 

household” be adjudicated abused, neglected, or dependent before the complaint is 

filed. 

{¶18} The Agency acknowledges that this issue appears to be one of first 

impression in Ohio. Nevertheless, the Agency cites in support of its argument 

cases in which it appears that there may have been no prior adjudications of abuse, 

neglect, or dependency at the time the complaints were filed in those cases. 

(Appellee’s Brief at 4, citing In re Rossantelli, 5th Dist. Delaware No. 

01CAF12072, 2002 WL 999301, *1 (May 13, 2002); In re Yeager/Reardon 

Children, 5th Dist. Tuscarawas No. 2001 AP 03 0024, 2002 WL 253815, *1 (Feb. 

20, 2002); In re Atkins, 7th Dist. Carroll Nos. 705 and 706, 2001 WL 275193, *1 

(Mar. 7, 2001); In Matter of Surfer, 10th Dist. Franklin No. 97APF09-1158, 1998 

WL 231012, *4 (May 7, 1998); In re J.D., 5th Dist. Richland No. 12-CA-108, 

2013-Ohio-2187, ¶ 26). However, as the Agency concedes, the issue presented 

under Erica’s fourth assignment of error was not an issue in those appeals, and 
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those opinions lack analysis of the issue. What is more, at least two of the cases 

cited by the Agency involved dependency determinations under multiple 

subsections of R.C. 2151.04—not R.C. 2151.04(D) alone. See In re Rossantelli at 

*1; In re J.D. at ¶ 20. 

{¶19} Just as the Agency cites cases in support of its proposition that a 

simultaneous adjudication has been pursued successfully in other districts, dicta 

from other cases is consistent with our conclusion that R.C. 2151.04(D)(1) 

requires an adjudication predating the filing of the complaint. See In re B.B., 

2012-Ohio-2695, at ¶ 27 (stating that R.C. 2151.04(D) “expressly considers the 

parent’s conduct regarding prior dependencies” (emphasis added)); State ex rel. 

Swanson v. Hague, 11th Dist. Ashtabula No. 2009-A-0053, 2010-Ohio-4200, ¶ 27, 

fn. 1 (noting that, for R.C. 2151.04(D) to apply, “the child in question must have a 

sibling who has already been adjudicated as a neglected, abused or dependent 

child” (emphasis added)); In re T.P.-M., 9th Dist. Summit No. 24199, 2008-Ohio6437, ¶ 15 (“R.C. 2151.04(D) * * * requires that a member of the child’s present 

household committed an act that was the basis of the prior adjudication.” 

(Emphasis added.)); In re W.C., 9th Dist. Summit No. 22356, 2005-Ohio-2968, ¶ 

18 (“[W]ith the addition of R.C. 2151.04(D), the legislature considered a parent’s 

prior history with a child welfare agency significant in regard to a determination 

that a subsequent child might be dependent.” (Emphasis added.)). 
Case Nos. 14-15-07 and 14-15-08 

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{¶20} For the reasons above, we conclude that, for a child to be found 

dependent under R.C. 2151.04(D), R.C. 2151.04(D)(1) plainly and unambiguously 

requires that a sibling of the child or any other child who resides in the household 

be adjudicated abused, neglected, or dependent before the complaint is filed. In 

A.L.’s case, Erica is correct that no evidence was presented at trial that a sibling of 

A.L. or any other child residing in the household was adjudicated abused, 

neglected, or dependent before the complaint was filed on January 7, 2015. 

Rather, the Agency points out that the trial court adjudicated S.L. abused on 

March 18, 2015, “in the same hearing that it found A.L. dependent pursuant to 

R.C[.] 2151.04(D).” (Appellee’s Brief at 9). The Agency argues that the trial 

court properly based its dependency adjudication of A.L. on the simultaneous 

March 18, 2015 adjudication of S.L. The Agency’s position is contrary to the 

plain and unambiguous language of R.C. 2151.04(D) and erroneous. Accordingly, 

the Agency failed to prove by clear and convincing evidence that “a parent, 

guardian, custodian, or other member of the household committed an act that was 

the basis for an adjudication that a sibling of the child or any other child who 

resides in the household is an abused, neglected, or dependent child.” (Emphasis 

added.) R.C. 2151.04(D)(1). Therefore, the trial court’s adjudication of A.L. as 
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dependent under R.C. 2151.03(D) is not supported by sufficient evidence to satisfy 

the clear-and-convincing-evidence degree of proof.2

{¶21} Erica’s fourth assignment of error is sustained. 

Assignment of Error No. I 

The Court Erred in Allowing the Testimony of Jennifer 

Westgate Regarding Hearsay Statements Made to Her by S.L. 

Assignment of Error No. II 

The Court Erred in Allowing the Testimony of Alonna Watkins 

Regarding Hearsay Statements Made to Her by Either S.L. or 

E.S. 

Assignment of Error No. III 

The Court Erred in Admitting an Unredacted Recording of the 

Testimony of E.S. in the Ex Parte Hearing of November 24, 2014 

Including Hearsay Statements Made to Her by S.L. 

{¶22} In her first, second, and third assignments of error, Erica argues that 

the trial court abused its discretion by admitting certain evidence at the 

adjudicatory hearing. Specifically, she argues that the trial court improperly 

allowed the hearsay testimony of a Child Advocacy Center social worker and an 

Agency intake investigator and the admission of a video recording of a hearing in 

another case in which Erica requested an ex parte civil protection order. 

 

2

 For a child to be dependent under R.C. 2151.04(D), both subsections—R.C. 2151.04(D)(1) and (2)—must 

apply. See R.C. 2151.04(D). Based on our conclusion that the Agency failed to clearly and convincingly 

prove R.C. 2151.04(D)(1), we need not and do not consider R.C. 2151.04(D)(2). See In re A.W., 195 Ohio 

App.3d 379, 2011-Ohio-4490, ¶ 20 (9th Dist.). 
Case Nos. 14-15-07 and 14-15-08 

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{¶23} Adjudicatory hearings require strict adherence to the Rules of 

Evidence. In re Beebe, 3d Dist. Allen No. 1-02-84, 2003-Ohio-1888, ¶ 10, citing 

In re Baby Girl Baxter, 17 Ohio St.3d 229, 233 (1985). “Accordingly, hearsay is 

not admissible in an adjudicatory hearing unless the statement falls within a 

recognized exception to the hearsay rule.” In re O.H., 9th Dist. Summit No. 

25761, 2011-Ohio-5632, ¶ 21, citing Evid.R. 802. Hearsay is “a statement, other 

than one made by the declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.” Evid.R. 801(C). “Under 

Evid.R. 802, hearsay is inadmissible unless it falls within an exception provided 

by the rules of evidence.” Secy. of Veterans Affairs v. Leonhardt, 3d Dist. 

Crawford No. 3-14-04, 2015-Ohio-931, ¶ 40. 

{¶24} “The trial court has broad discretion concerning the admissibility of 

evidence.” Id. at ¶ 39, citing Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 

2005-Ohio-4787, ¶ 20. “A decision to admit or exclude evidence will be upheld 

absent an abuse of discretion.” Beard at ¶ 20, citing O’Brien v. Angley, 63 Ohio 

St.2d 159, 164-165 (1980). An abuse of discretion suggests the trial court’s 

decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219 (1983). “Even in the event of an abuse of discretion, a 

judgment will not be disturbed unless the abuse affected the substantial rights of 
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the adverse party or is inconsistent with substantial justice.” Beard at ¶ 20, citing 

O’Brien at 164-165. 

{¶25} First, Erica argues that the trial court abused its discretion by 

allowing Jennifer Westgate (“Westgate”), a social worker employed at the Child 

Advocacy Center at Children’s Hospital, to testify to statements S.L. made to her. 

(Mar. 18, 2015 Tr. at 9). The Agency concedes that this testimony by Westgate is 

hearsay, but it argues that the trial court properly allowed the testimony under 

Evid.R. 803(4), the hearsay exception for statements for purposes of medical 

diagnosis or treatment. 

Evid.R. 803(4) provides: 

The following are not excluded by the hearsay rule, even though the 

declarant is available as a witness: 

* * * 

Statements made for purposes of medical diagnosis or treatment and 

describing medical history, or past or present symptoms, pain, or 

sensations, or the inception or general character of the cause or 

external source thereof insofar as reasonably pertinent to diagnosis 

or treatment. 

In State v. Dever, the Supreme Court of Ohio held, “Statements made by a child 

during a medical examination identifying the perpetrator of sexual abuse, if made 
Case Nos. 14-15-07 and 14-15-08 

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for purpose of diagnosis [or] treatment, are admissible pursuant to Evid.R. 803(4), 

when such statements are made for the purposes enumerated in that rule.” 64 Ohio 

St.3d 401 (1992), paragraph two of the syllabus. “The salient inquiry is whether 

the child’s statements were made for purposes of diagnosis [or] treatment rather 

than for some other purpose.” State v. Gutierrez, 3d Dist. Hancock No. 5-10-14, 

2011-Ohio-3126, ¶ 52, citing State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 

¶ 47. “Hearsay statements made to a social worker may be admissible if they are 

made for purposes of medical diagnosis or treatment.” (Emphasis sic.) State v. 

Goings, 3d Dist. Logan No. 8-11-03, 2012-Ohio-1793, ¶ 19, citing Muttart at ¶ 15, 

56, State v. Chappell, 97 Ohio App.3d 515, 530-531 (8th Dist.1994), and State v. 

Reigle, 3d Dist. Hancock No. 5-2000-14, 2000 WL 1682520, *8-10 (Nov. 9, 2000). 

{¶26} As we explained in In re Weatherholt, 

The question of whether a social worker should be permitted to 

testify pursuant to Evid.R. 803(4) depends upon the functions of the 

witness. If the social worker encountered the victim for the purpose 

of diagnosis or treatment, then the evidence may be admissible. 

However, if the statement was made during the course of a factfinding or investigatory procedure, Evid.R. 803(4) is not applicable. 

3d Dist. Seneca No. 13-99-31, 2000 WL 126662, *5 (Feb. 4, 2000), citing 

Chappell at 531, 534. In other words, “a court must look to the function of the 
Case Nos. 14-15-07 and 14-15-08 

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particular social worker to determine whether or not it was permissible for the 

social worker to testify concerning statements under Evid.R. 803(4).” In re 

M.E.G., 10th Dist. Franklin No. 06AP-1256, 2007-Ohio-4308, ¶ 27, citing State v. 

Edinger, 10th Dist. Franklin No. 05AP-31, 2006-Ohio-1527, ¶ 62. “The trial 

court’s consideration of the purpose of the child’s statements will depend on the 

facts of the particular case.” Goings at ¶ 20, citing Muttart at ¶ 49. “‘At a 

minimum, * * * a nonexhaustive list of considerations includes [:]’ (1) whether the 

child was questioned in a leading or suggestive manner; (2) whether a motive to 

fabricate, such as a custody battle, existed; (3) whether the child understood the 

need to tell medical personnel the truth; (4) the child’s age; and (5) the consistency 

of the child’s declarations.” Id., quoting Muttart at ¶ 49 and citing State v. Lukacs, 

188 Ohio App.3d 597, 2010-Ohio-2364, ¶ 7 (1st Dist.). 

{¶27} At the adjudicatory hearing, Westgate explained that, in her position, 

she acts either as a forensic interviewer or a health advocate: 

[Agency Counsel]: And what are your duties in that capacity? 

[Westgate]: So if I am in the role of a forensic interviewer, 

what I will do is interview children when there 

are concerns or allegations for physical or 

sexual abuse. If I’m a health advocate 

(INAUDIBLE), my job would be to conduct a 
Case Nos. 14-15-07 and 14-15-08 

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separate social interview with the care giver 

during the course of the interview, provide 

mental health recommendations, be part of the 

(INAUDIBLE). 

[Agency Counsel]: And are you ever involved in both of those 

capacities or are you usually just one or the 

other? 

[Westgate]: One or the other on any given case. 

(Mar. 18, 2015 Tr. at 9-10). Westgate described the procedure that alleged child 

victims encounter at the Child Advocacy Center. (Id. at 10-13). Westgate then 

testified to statements S.L. made to her regarding instances in which Joel sexually 

abused her. (Id. at 16-19). In overruling Erica’s counsel’s objection to the 

hearsay, the trial court stated, “It’s a statement for purposes of medical diagnosis 

and treatment.” (Id. at 16). When the Agency’s counsel asked Westgate what she 

did with the information S.L. told her, Westgate responded, 

So that information was shared with the multi-disciplinary team 

which included the medical professional [sic], on the case, I believe 

was Dr. Brink and Dr. Ruth. And then they went from [sic] their 

exam. We also made some recommendations for mental health 

services. I believe that in my report and also in another health 
Case Nos. 14-15-07 and 14-15-08 

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advocate’s report we reported that [S.L.] should get child abuse 

therapy. 

(Id. at 19-20). 

{¶28} Erica argues, “There is no testimony regarding the circumstances 

under which S.L. made the statements which Ms. Westgate repeated to the court.” 

(Appellant’s Brief at 9). We disagree. We can discern from the context of the 

entirety of Westgate’s testimony why the trial court concluded that the Evid.R. 

803(4) hearsay exception applies to Westgate’s testimony. Although Westgate 

never explicitly stated that she acted as a health advocate—as opposed to a 

forensic interviewer—in the case of S.L., she stated that she shared the 

information from S.L. with a “multi-disciplinary team which included the medical 

professional” and “made some recommendations for mental health services.” 

(Mar. 18, 2015 Tr. at 19-20). This aligns with Westgate’s earlier testimony 

concerning her role when acting as a health advocate, as opposed to a forensic 

interviewer. (See id. at 9-10). In addition, Westgate is a social worker employed 

by the Child Advocacy Center at Children’s Hospital, as opposed to being 

employed by the county. See State v. Edinger, 10th Dist. Franklin No. 05AP-31, 

2006-Ohio-1527, ¶ 63. 

{¶29} Ohio courts have concluded that a social worker acting in this type of 

role may testify under Evid.R. 803(4) to the victim’s out-of-court statements. See
Case Nos. 14-15-07 and 14-15-08 

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In re M.E.G., 2007-Ohio-4308, at ¶ 27-29 (“After the interview, [the social 

worker] verbally communicated the information to [the medical doctor] ‘to make 

sure he had all the information he needed for his medical diagnosis and treatment’ 

and to the mental health advocate and children’s services professionals who were 

present.”); State v. Bowers, 1st Dist. Hamilton No. C-150024, 2016-Ohio-904, ¶ 

23-24 (“Especially after [the child victim] revealed allegations of vaginal rape in 

the shower, the questions asked by the social worker were clearly asked to assess 

her medical safety, and [the child victim] underwent a physical examination after 

the interview.”); State v. Jones, 8th Dist. Cuyahoga No. 83481, 2004-Ohio-5205, ¶ 

28 (“[P]rior to [the social worker] testifying about the victim’s statements, the 

State properly laid a foundation that [the social worker] was acting as part of a 

medical team when taking the victim’s statements and that her interview was an 

integral part of the medical examination.”). 

{¶30} Nothing in the nonexhaustive list of reliability considerations set 

forth in Muttart indicates that S.L.’s statements are unreliable. First, there is no 

indication that Westgate questioned S.L. in a leading manner. See State v. 

Tebelman, 3d Dist. Putnam No. 12-09-01, 2010-Ohio-481, ¶ 42. To the contrary, 

Westgate testified, “So we would typically ask open-ended questions depending 

on the age of the child and where they’re at in their disclosure process.” (Mar. 18, 

2015 Tr. at 11). Second, as Erica points out in her brief, “There is no indication of 
Case Nos. 14-15-07 and 14-15-08 

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what S.L.’s motivation was in making the statement.” (Appellant’s Brief at 9). 

See Tebelman at ¶ 42. Third, it appears from the record that Westgate impresses 

on the children she interviews the need to tell the truth. (See Mar. 18, 2015 Tr. at 

11). Fourth, at the time S.L. presented at the Child Advocacy Center, she was 15 

years old. (Id. at 16). Finally, although Westgate declined to testify to S.L.’s 

“veracity one way or the other,” Westgate testified that S.L. “gave history 

consistent with sexual abuse.” (Id. at 24). Moreover, nothing in S.L.’s actions or 

responses made Westgate question whether S.L. was telling the truth. (Id.). 

{¶31} Erica relies heavily on Reigle in support of her argument that 

Westgate’s testimony is not admissible under Evid.R. 803(4). Reigle is 

distinguishable from this case. In that case, this court concluded that statements 

made to a social worker did not qualify as statements made for purposes of 

medical diagnosis or treatment under Evid.R. 803(4). Reigle, 2000 WL 1682520, 

at *9. Unlike Westgate, who is a hospital employee, the social worker in Reigle

was “employed by the Hancock County Department of Human Services.” Id. 

Also unlike Westgate, the social worker in that case made “references numerous 

times” “[t]hroughout her testimony” “to her job as a ‘risk assessor’ and 

‘investigator.’” Id. The social worker in Reigle “constantly refer[red] to her 

contact with the two victims * * * as an ‘investigation.’” Id. She also “testified 

that her office was affiliated with the police department and the sheriff’s 
Case Nos. 14-15-07 and 14-15-08 

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department and at the appropriate time during the ‘investigation’ the police are 

notified.” Id. While Westgate, like the social worker in Reigle, did not diagnose 

or treat the victim, her purpose as a health advocate was to report to the medical 

team and make recommendations. On the other hand, the social worker in Reigle

was engaged in a fact-finding investigation and happened to “eventually 

recommend treatment.” Id. In short, Reigle is distinguishable and not controlling 

in this case. 

{¶32} For the reasons above, we conclude that the trial court did not abuse 

its discretion in allowing Westgate’s testimony under Evid.R. 803(4). 

{¶33} Erica next argues that the trial court abused its discretion in allowing 

testimony of an intake investigator for the Agency, Alonna Watkins (“Watkins”). 

Watkins testified concerning her involvement when a detective interviewed S.L. at 

the police station: 

[Agency Counsel]: And with regard to you – you got two reports 

then. One was about (INAUDIBLE). Did you 

speak to Miss Skaggs about the sexual abuse 

allegation? 

[Watkins]: Yes, I did. After the Child Advocacy Center 

appointment was done, the Detective wanted to 

meet with her and [S.L.] again. So they went to 
Case Nos. 14-15-07 and 14-15-08 

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the police station and Detective Kleiber 

requested that I be there as well. So I was a part 

of all those conversations. And (INAUDIBLE) 

talked about sexual abuse of [S.L.] by Scott. 

I’m sorry. (INAUDIBLE) sorry. Joel. My 

apologies. And talking about how the abuse 

started about the time she was 13. 

(Mar. 16, 2015 Tr. at 22-23). At that point, Erica’s counsel made a hearsay 

objection, arguing that Watkins was “retelling statements of [S.L.] pertaining to 

the interviews which again are being offered for the truth of the matter asserted.” 

(Id. at 23). The trial court overruled the objection, stating, “At this point in time 

she hasn’t said, [S.L.] said this. * * * And we don’t know whether that came from 

her knowledge of it or the child’s statement.” (Id.). 

{¶34} As the trial court suggested, it is unclear whether Erica or S.L. made 

the out-of-court statements to which Watkins testified. We assume without 

deciding that Watkins’s testimony was improper hearsay evidence and that the 

trial court abused its discretion by admitting it. “‘[T]he erroneous admission or 

exclusion of hearsay, cumulative to properly admitted testimony, constitutes 

harmless error.’” In re H.D.D., 10th Dist. Franklin Nos. 12AP-134, 12AP-135, 

12AP-136, 12AP-137, 12AP-146, 12AP-147, 12AP-148, 12AP-149, 2012-Ohio-
Case Nos. 14-15-07 and 14-15-08 

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6160, ¶ 45, quoting State v. Hogg, 10th Dist. Franklin No. 11AP-50, 2011-Ohio6454, ¶ 46. See also In re J.T., 3d Dist. Seneca No. 13-07-31, 2008-Ohio-1650, ¶ 

25-27, citing Civ.R. 61. 

{¶35} The purportedly improper hearsay testimony of Watkins is 

cumulative to Westgate’s admissible testimony. As we previously discussed, 

Westgate properly testified to statements S.L. made to her regarding instances in 

which Joel sexually abused her. (Mar. 18, 2015 Tr. at 16-19). Concerning S.L.’s 

age at the time the abuse began, Westgate testified that S.L. told her that “it’s been 

going on for three years.” (Id. at 16). At the time Westgate spoke with S.L., S.L. 

was 15 years old. (Id.). Therefore, Watkins’s testimony concerning Joel sexually 

abusing S.L. and concerning S.L.’s age at the time of the abuse was cumulative to 

Westgate’s properly admitted testimony. Accordingly, we conclude that, even 

assuming the trial court abused its discretion in admitting Watkins’s testimony, the 

admission of that testimony was harmless error. See In re H.D.D. at ¶ 45-46; In re 

C.E., 3d Dist. Marion No. 9-10-32, 2010-Ohio-4410, ¶ 41; In re Davis, 3d Dist. 

Allen No. 1-2000-69, 2000 WL 1783571, *4 (Dec. 6, 2000). See also In re J.T. at 

¶ 27, citing Civ.R. 61. 

{¶36} Finally, Erica argues that the trial court improperly admitted an 

unredacted version of the video recording of a hearing concerning Erica’s request 

in the Union County Court of Common Pleas for an ex parte civil protection order. 
Case Nos. 14-15-07 and 14-15-08 

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When the Agency introduced the unredacted video of the ex-parte-civilprotection-order hearing, Erica’s counsel objected to the admission of Erica’s 

statements in the video in which she recites statements S.L. made to her. (Mar. 16, 

2015 Tr. at 17). Erica’s counsel asked that those statements “be redacted and not 

admitted.” (Id.). The Agency argued, as it does on appeal, that Erica’s recitation 

of S.L.’s statements are not hearsay because they were offered “to provide context 

to [Erica’s] state of mind” rather than for the truth of the matter asserted. 

(Appellee’s Brief at 6). The trial court overruled the objection without 

explanation, and the video was played in its entirety. (Mar. 16, 2015 Tr. at 18, 

38). However, at the time the Agency moved for the admission of the unredacted 

video into evidence, Erica’s counsel did not object to its admission and instead 

stated, “I have no objection to any of [the State’s] exhibits. * * * Again, no 

objections to the admission of any of the State’s (INAUDIBLE).” (Mar. 18, 2015 

Tr. at 30). 

{¶37} “Generally, when a party fails to renew an objection at the time 

exhibits are admitted into evidence, that party waives the ability to raise the 

admission as error on appeal, unless plain error is shown.” Odita v. Phillips, 10th 

Dist. Franklin No. 09AP-1172, 2010-Ohio-4321, ¶ 56, citing Nicula v. Nicula, 8th 

Dist. Cuyahoga No. 84049, 2009-Ohio-2114. 
Case Nos. 14-15-07 and 14-15-08 

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“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.” 

Am. Builders & Contrs. Supply Co. v. Frank’s Roofing, Inc., 3d Dist. Marion No. 

9-11-41, 2012-Ohio-4661, ¶ 17, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116 

(1997), syllabus. 

{¶38} Erica waived all but plain error as to the admission of the unredacted 

video of the ex-parte-civil-protection-order hearing. The circumstances of this 

case are not exceptional and do not give rise to plain error. Erica does not specify 

which statements in the hearing video were improperly admitted into evidence; 

however, she argues that the statements occur “at 3:59, 6:04, and 14:32 through 

16:06 of the recording.” (Appellant’s Brief at 11). We have reviewed the hearing 

video, including Erica’s testimony at those time intervals. The statements by S.L. 

to which Erica testifies in the video are cumulative of Westgate’s properly 

admitted testimony. At the ex-parte-civil-protection-order hearing, Erica testified 

that S.L. told her: (1) that Joel sexually molested S.L. for the past three years; (2) 

that, contrary to S.L.’s initial assertion to Erica, Joel was not removing a splinter 
Case Nos. 14-15-07 and 14-15-08 

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from S.L. when Erica walked into the barn and saw S.L. with her shirt raised and 

Joel’s hands near S.L.’s breasts; and (3) that when Joel was working on a dress for 

S.L., Joel would have S.L. come upstairs and get naked, and he would touch her. 

(State’s Ex. 2). 

{¶39} Westgate similarly testified that S.L. told her: (1) that Joel molested 

S.L. for the past three years; (2) that Erica walked into the barn as she was lifting 

her shirt up at Joel’s direction; and (3) that, in the course of Joel helping her make 

a dress, “he had touched her breasts on top of skin.” (Mar. 18, 2015 Tr. at 16-19). 

Therefore, Erica’s testimony at the ex-parte-civil-protection-order hearing is 

cumulative to Westgate’s testimony at the adjudicatory hearing. See In re Davis, 

2000 WL 1783571, at *4. Moreover, Westgate testified to S.L.’s description of 

additional instances of sexual abuse by Joel to which Erica did not testify at the 

ex-parte-civil-protection-order hearing. (Mar. 18, 2015 Tr. at 18). 

{¶40} For these reasons, we conclude, without addressing whether Erica’s 

testimony concerning S.L.’s out-of-court statements are hearsay, that it was not 

plain error for the trial court to admit in its entirety the video recording of the exparte-civil-protection-order hearing. See Matter of Mosley, 12th Dist. Butler No. 

CA93-06-111, 1994 WL 144322, *2 (Apr. 25, 1994). 

{¶41} Erica’s first, second, and third assignments of error are overruled. 
Case Nos. 14-15-07 and 14-15-08 

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Assignment of Error No. V 

The Trial Court’s Decision Determining that S.L. was an 

Abused Child Pursuant to R.C. § 2151.031(A) was Against the 

Manifest Weight of the Evidence and Not Proven by Clear and 

Convincing Evidence. 

{¶42} In her fifth assignment of error, Erica argues that the trial court’s 

adjudication of S.L. as abused is against the manifest weight of the evidence. 

Specifically, she argues that without the allegedly improper hearsay evidence that 

we discussed above in addressing Erica’s first, second, and third assignments of 

error, “[t]he only other evidence which supported the allegations of abuse were 

statements made by [Erica] regarding an incident in the barn in which [Erica] 

witnessed S.L. lifting her shirt in the presence of [Joel].” (Appellant’s Brief at 

16). Erica argues, “This sole incident, even if not wholly ambiguous is 

insufficient to meet the required clear and convincing standard of proof and the 

court’s determination that S.L. was an abused child pursuant to R.C. §2151.031(A) 

is against the manifest weight of the evidence.” (Id.). 

{¶43} In reviewing a trial court’s adjudication of a child as abused, we will 

not reverse the judgment of the trial court as being against the manifest weight of 

the evidence if the judgment is “supported by some competent, credible evidence 

going to all the essential elements of the case.” In re Freed Children, 2009-Ohio996, at ¶ 25, citing C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279, 280 

(1978). As we noted above, the party seeking the adjudication bears the burden of 
Case Nos. 14-15-07 and 14-15-08 

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establishing dependency by clear and convincing evidence. In re M.H., 2009-

Ohio-6911, at ¶ 17; In re Savchuk Children, 180 Ohio App.3d 349, 2008-Ohio6877, at ¶ 33; In re D.W., 2007-Ohio-2552, at ¶ 18. “‘[W]hen reviewing a 

judgment under a manifest-weight-of-the-evidence standard, a court has an 

obligation to presume that the findings of the trier of fact are correct.’” In re 

Freed Children at ¶ 25, quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 

(1984). “Mere disagreement over the credibility of witnesses or evidence is not 

sufficient reason to reverse a judgment.” Id., citing Wilson at ¶ 24. 

{¶44} The Agency alleged in its complaint that S.L. is an abused child 

under R.C. 2151.031(A). (Case No. 21530001, Doc. No. 1). That statute 

provides: 

As used in this chapter, an “abused child” includes any child who: 

(A) Is the victim of “sexual activity” as defined under Chapter 

2907. of the Revised Code, where such activity would constitute an 

offense under that chapter, except that the court need not find that 

any person has been convicted of the offense in order to find that the 

child is an abused child * * *. 

R.C. 2151.031(A). R.C. 2907.01(C) provides, “‘Sexual activity’ means sexual 

conduct or sexual contact, or both.” Relevant to this case, R.C. 2907.01(B) 
Case Nos. 14-15-07 and 14-15-08 

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provides, “‘Sexual contact’ means any touching of an erogenous zone of another, 

including without limitation the thigh, genitals, buttock, pubic region, or, if the 

person is a female, a breast, for the purpose of sexually arousing or gratifying 

either person.” 

{¶45} Erica’s argument that the trial court’s adjudication of S.L. as abused 

is against the manifest weight of the evidence is premised on her argument—under 

her first, second, and third assignments of error—that the trial court improperly 

admitted hearsay evidence. We rejected those arguments above and overruled 

Erica’s first, second, and third assignments of error. Moreover, the trial court’s 

adjudication of S.L. as abused is supported by some competent, credible evidence 

going to all the essential elements of the case. Specifically, there is some 

competent, credible evidence supporting the trial court’s conclusion that S.L. was 

the victim of sexual contact, which is included in the definition of sexual activity. 

{¶46} Westgate, whose testimony the trial court properly admitted, testified 

that S.L., who is a female, informed her of an instance when Joel “touched her 

breasts on top of skin” while he was helping S.L. make a dress. (Mar. 18, 2015 

Tr. at 19). Westgate also testified that S.L. told her that, during camping trips “to 

the middle of nowhere,” Joel “would ask her to take all of her clothes off. And 

then he would use her makeup to draw tattoos on her chest and her vaginal area.” 

(Id. at 18). Westgate testified, “[S.L.] said he’d use his fingers to do that. So his 
Case Nos. 14-15-07 and 14-15-08 

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fingers touching her chest and her vaginal area.” (Id.). This testimony is some 

competent, credible evidence supporting the conclusions that Joel touched 

erogenous zones of S.L.—namely, her breasts and pubic region—and that S.L. 

was therefore the victim of sexual activity, which includes sexual contact, where 

such activity would constitute an offense under R.C. Chapter 2907. Erica argues 

that the incident in the barn “is insufficient to meet the required clear and 

convincing standard of proof.” (Appellant’s Brief at 16). However, even ignoring 

all evidence related to the incident in the barn, there is some competent, credible 

evidence supporting the trial court’s judgment. 

{¶47} For these reasons, the trial court’s adjudication of S.L. as abused is 

not against the manifest weight of the evidence. 

{¶48} Erica’s fifth assignment of error is overruled. 

Assignment of Error No. VIII 

The Juvenile Court failed to Comply with Juv. R. 37(A) 

Requiring the Court to Make a Record of Adjudicatory and 

Dispositional Proceedings in Abuse and Dependency cases. 

{¶49} In her eighth assignment of error, Erica argues that the trial court 

failed to satisfy its obligation under Juv.R. 37(A) to make a record of the 

adjudicatory hearing. Specifically, Erica argues that, because the term 

“(INAUDIBLE)” appears 149 times in the March 16 and 18, 2015 transcripts of 

the adjudicatory hearing—along with other instances in the proceedings “where 
Case Nos. 14-15-07 and 14-15-08 

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the record is inaudible”—“a proper consideration of the testimony and lower court 

proceedings is not possible nor can this court presume the regularity of the trial 

court proceedings.” (Appellant’s Brief at 19, 21). The Agency argues, “As there 

is no difficulty in understanding the development of the proceedings regarding the 

facts at issue, there is no violation of Juv. R. 37(A).” (Appellee’s Brief at 14). 

{¶50} Juv.R. 37(A) provides, “The juvenile court shall make a record of 

adjudicatory and dispositional proceedings in abuse, neglect, dependent, unruly, 

and delinquent cases * * *. * * * The record shall be taken in shorthand, stenotype, 

or by any other adequate mechanical, electronic, or video recording device.” See

In re B.E., 102 Ohio St.3d 388, 2004-Ohio-3361, ¶ 7-8. “Clearly, Juv.R. 37 places 

primary responsibility upon the juvenile court to record proceedings in these types 

of cases. Thus, a juvenile court must take whatever steps are necessary to ensure 

that it records its proceedings.” In re B.E. at ¶ 12. 

{¶51} “‘Although failure to make any record of adjudicatory and 

dispositional proceedings clearly violates Juv.R. 37(A), failure to create a 

complete record does not always violate the rule.’” (Emphasis sic.) In re L.P.R., 

11th Dist. Lake No. 2010-L-144, 2012-Ohio-1671, ¶ 30, quoting In re Mitchell, 

11th Dist. Lake Nos. 2002-L-078 and 2002-L-079, 2003-Ohio-4102, ¶ 26. “When 

a trial court records an entire proceeding that results with portions of the record 

being inaudible, there is no violation of Juv.R. 37(A) so long as there is no 
Case Nos. 14-15-07 and 14-15-08 

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difficulty in fully understanding the development of the proceedings regarding the 

facts at issue.” In re D.C.J., 8th Dist. Cuyahoga No. 97681, 2012-Ohio-4154, ¶ 

13, citing In re L.P.R. at ¶ 33-35 and In re Mitchell at ¶ 26-30. 

{¶52} The record reflects that the trial court recorded the entirety of the 

proceedings. Although the record contains a number of instances where the term 

“(INAUDIBLE)” appears, there is no difficulty in fully understanding the 

development of the proceedings regarding the facts at issue. See In re D.C.J. at ¶ 

14. Therefore, we conclude that the trial court did not violate Juv.R. 37(A). See 

id. at ¶ 11, 14 (concluding that the trial court did not violate Juv.R. 37(A) 

notwithstanding the arguments of the appellants “that there were 148 ‘inaudibles’ 

in the voluminous transcript of proceedings in the trial court, that portions of the 

transcript are inaccurate and unintelligible, and that a lengthy speaking objection is 

missing from the transcript”). This case is easily distinguishable from In re C.S., a 

case Erica cites in which the transcript of the audible portions of the proceedings 

was “intertwined with literally thousands of spots marked ‘inaudible.’” 9th Dist. 

Medina Nos. 04CA0044 and 04CA0045, 2004-Ohio-6078, ¶ 4. 

{¶53} Erica’s eighth assignment of error is overruled. 

Assignment of Error No. VI 

The Trial Court’s Decision Determining that A.L. was a 

Dependent Child Pursuant to R.C. § 2151.04(D)(1) and (2) was 

Against the Manifest Weight of the Evidence and Not Proven by 

Clear and Convincing Evidence. 
Case Nos. 14-15-07 and 14-15-08 

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{¶54} In her sixth assignment of error, Erica argues that R.C. 

2151.04(D)(1) and (2) were not satisfied as to A.L. because “at the time of the 

filing of the Complaint no child within [Erica’s] household had been adjudicated 

abused or dependent” and because “the Court did not have sufficient evidence to 

determine that the requirements of R.C. § 2151.04(D)(2) were satisfied.” 

(Appellant’s Brief at 17). In light of our decision to sustain Erica’s fourth 

assignment of error, Erica’s sixth assignment of error is rendered moot, and we 

decline to address it. App.R. 12(A)(1)(c). See also In re K.M., 3d Dist. Shelby 

No. 17-11-15, 2011-Ohio-3632, ¶ 26. 

{¶55} In summary, we affirm the trial court’s adjudication of S.L. as an 

abused child under R.C. 2151.031(A). We reverse the trial court’s adjudications 

of S.L. as a dependent child under R.C. 2151.04(C) and of A.L. as a dependent 

child under R.C. 2151.04(C) and (D) because the trial court failed to comply with 

R.C. 2151.28(L). We also reverse the trial court’s adjudication of A.L. as a 

dependent child under R.C. 2151.04(D) because that adjudication is not supported 

by sufficient evidence. 

{¶56} Having found no error prejudicial to the Appellant herein in the 

particulars assigned and argued as to the first, second, third, fifth, and eighth 

assignments of error, we affirm in part the judgment of the trial court. However, 

we sustain the fourth and seventh assignments of error as stated above, reverse in 
Case Nos. 14-15-07 and 14-15-08 

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part the judgment of the trial court, and remand for further proceedings consistent 

with this opinion. 

Judgment in Case No. 14-15-07 Affirmed 

in Part and Reversed in Part; 

Judgment in Case No. 14-15-08 Reversed; 

Causes Remanded 

WILLAMOWSKI, J., concurs. 

/jlr 

ROGERS, J., concurring in part and dissenting in part. 

{¶58} I concur fully in the majority’s resolution of Case No. 14-15-08. 

However, I respectfully dissent from the majority opinion affirming the 

adjudication of S.L. as an abused child in Case No. 14-15-07. The majority has 

determined that Westgate interviewed S.L. for the purposes of medical diagnosis 

or treatment based on Westgate’s testimony that she passed that information along 

to a multi-disciplinary team which then made recommendations for mental health 

services. Although I do not disagree with the majority’s analysis on Assignment 

of Error No. I under the state of the law created by appellate courts in this state, I 

must dissent because the holding strays well beyond the language contained in 

Evid.R. 803(4). 

{¶59} Westgate’s testimony demonstrates that she has no qualifications to 

make a medical diagnosis or to prescribe medical treatment. Her multi-
Case Nos. 14-15-07 and 14-15-08 

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disciplinary team apparently did not make a medical diagnosis or prescribe any 

medical treatment. When the Rules of Evidence were first formulated, there was 

no discussion or mention of mental health, and any extension of the Rule to 

include mental health would necessarily need to proceed through the usual 

requirements for an amendment to the Rules, which has not happened. Judicial 

interpretations which in recent years have extended the Rule to supposedly cover 

social workers and counselors are contrary to the meaning and intent of the 

original Rule. See Main v. City of Lima, 3d Dist. Allen No. 1-14-42, 2015-Ohio2572, ¶ 48 (Rogers, J., dissenting) (arguing against the expansion of the Ohio 

Rules of Civil Procedure to allow a defendant to raise the affirmative defense of 

political subdivision immunity in a Civ.R. 12(b)(6) motion). The logic for the 

medical diagnosis exception to the hearsay Rule as drafted was its inherent 

reliability when the declarant knew the statement would be the basis for medical 

diagnosis and treatment. There is no such inherent reliability when the statement 

is made to a social worker. In fact, the opposite is often true with the declarant 

offering what he/she thinks the interviewer wants to hear. Furthermore, there is 

nothing cited in the majority opinion that even suggests that S.L. was advised, let 

alone believed, that her responses to Westgate’s questions were intended for 

medical (or mental) diagnosis or treatment. I would therefore sustain Assignment 

of Error No. I. 
Case Nos. 14-15-07 and 14-15-08 

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{¶60} I realize that I have cited no cases in support of my position, but I 

have had this discussion on judicial expansion of Rules of Evidence and Procedure 

with my colleagues often enough to know that they will not be restrained. 

Unfortunately, other courts have also taken the expansive view of our official 

Rules and have chosen to ignore the proper methods of amending them. Political 

correctness has overtaken judicial restraint and will soon render the Rule of Law 

irrelevant. 

{¶61} The majority then proceeds to justify overruling Assignment of Error 

Nos. II and III by saying that they were just cumulative or repetitious of the 

hearsay statements offered by Westgate. I would first suggest that cumulative 

hearsay statements are not necessarily harmless, as apparently assumed by the 

majority. There is no exception to the inadmissibility of hearsay based on how 

often it is erroneously permitted. In fact, repetition of inadmissible evidence is 

more often prejudicial―tell a lie often enough and even the liar will begin to 

believe it is the truth. 

{¶62} I believe the hearing on the issue of abuse was unfair and a new 

hearing should be held. That is not to say I do not believe the allegations could be 

true. Just that I believe strict adherence to the Rules of Evidence is necessary to 

ensure the integrity of our legal system. I would sustain Assignment of Error Nos. 

I, II, and III and remand for a new hearing. This result would then render 
Case Nos. 14-15-07 and 14-15-08 

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Assignment of Error No. V moot. I agree with the majority’s resolution of the 

dependency adjudication.