COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60135 AMY COTTLE, et al : : Plaintiff-appellees : : JOURNAL ENTRY vs. : and : OPINION GARY F. HEMMINGER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 16, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Juvenile Division : Case No. 89-70366 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellees: WILLIAM T. GUARNIERI Attorney at Law 401 Euclid Avenue Cleveland, Ohio 44114-2402 For defendant-appellant: RANDALL M. PERLA Attorney at Law 19443 Lorain Road Fairview Park, Ohio 44126 - 1 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Gary F. Hemminger, timely appeals the trial court's denial of appellant's complaint for custody and the trial court's finding that his allegations of child abuse by appellee were not proven by a preponderance of the evidence. For the reasons set forth below, we affirm the judgment of the trial court. This matter originally came before the court upon the com- plaint of appellee Amy Cottle to determine the parentage of her natural son, Drew Hemminger, born April 20, 1985. Prior to the filing of the complaint, the parties had entered into a written agreement providing for custody, care and support of said child. Appellant was obligated to pay child support, but did so only sporadically. Appellant filed an answer to the complaint deny- ing paternity and demanding genetic testing. After genetic testing showed "no exclusion" of appellant, he admitted pater- nity. Appellant then filed a complaint for temporary and per- manent custody, alleging that the minor child, Drew Hemminger, had been physically and emotionally abused as defined by R.C. 2151.03 and 2151.031. Appellee also filed a complaint for temporary and permanent custody of Drew Hemminger. - 2 - On April 12, 1990, the matter of the complaints for custody were heard together with appellant's complaint of abuse and neglect. The pertinent testimony at trial is as follows: Frederick Durham, an investigator from the Cuyahoga County Department of Human Services, testified that he interviewed the appellee and the child, Drew, at their home and, in his opinion, there was no indication of abuse. Drew showed no unusual behav- ior, fear or indication of maltreatment. The home was organized and clean, and Drew seemed very active. Appellee, Amy Cottle, testified that she has never struck Drew inordinately hard and does not know how he got bruises on his back. She testified that she takes Drew to Loving Day Care Nursery for approximately ten hours a day while she works. The daycare personnel told her that bruises are not uncommon for little boys who play outside. Darlene Shannon, Administrator of the Loving Care Day Nur- sery, testified that Drew is very happy-go-lucky, into every- thing, inquisitive, and a normal four-year-old child. She tes- tified that Drew's mother, Ms. Cottle, came to her and asked her about some bruises on Drew. Ms. Shannon testified that kids are continually falling on a wooden play area that has climbing appa- ratuses on it. Dr. Raymond D. Ellish, a psychologist, testified that he examined and observed the child and appellee and that on all occasions, he saw Drew in a very loving and warm relationship - 3 - with his mother. He observed no indication of psychological or physical abuse. Billie Cottle, the child's maternal grandmother, testified that she has never observed appellee abuse or harm Drew. Kathy Billingham, appellant's wife, testified that Drew visited them about once every five to six weeks. She first observed bruises on Drew's back and buttocks in March, 1989. She also observed bruises during the child's visitations on May 5, August 12, and on October 10, 1989. Pictures of the bruises taken over several months were admitted as Exhibits B-L. Appellant also testified that he observed and took pictures of bruises on Drew during visitations and took his child to his family physician, Dr. Robbe. Dr. Robbe's medical records were admitted into evidence over appellee's objections. A videotape deposition of Dr. Marilyn Shea, a psychologist, was admitted into evidence at the request of appellant's coun- sel. Dr. Shea testified in her deposition that Drew stated to her that his mom had hit him with a wooden spoon. Dr. Shea stated that it was her opinion that Drew was an abused child. Based upon the above evidence, the trial court awarded temporary and permanent custody of Drew to appellee, Amy Cottle. In the trial court's findings of fact and conclusions of law, the court held that appellant's allegations of child abuse were not proven by a preponderance of the evidence. - 4 - Appellant now timely appeals, raising three assignments of error for our review. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN FINDING THAT "DEFENDANT-FATHER'S HEREIN ALLEGATIONS OF CHILD ABUSE (ACTIVE OR PASSIVE) BY PLAINTIFF- MOTHER (OR AT HER SUFFERANCE) WERE NOT SUB- STANTIATED NOR PROVEN BY A PREPONDERANCE OF THE EVIDENCE" AND THAT SAID FINDING WAS AGAI- NST THE WEIGHT OF THE EVIDENCE. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN GRANTING CUSTODY OF DREW TO PLAINTIFF-APPELLEE IN THAT SAID DE- TERMINATION WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE AND NOT IN THE BEST INTEREST OF SAID MINOR CHILD. Appellant contends the trial court's finding that he failed to prove the allegations of child abuse and the trial court's award of custody to appellee were against the manifest weight of the evidence. This argument is without merit. Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court. Bechtol v. Bechtol (1990), 49 Ohio St. 3d 21. The trial court is not limited to a review of any specific evi- dence, but must consider all relevant factors in determining the best interests of a minor child. Stone v. Stone (1983), 9 Ohio App. 3d 6, 9. - 5 - In the present case, two experts, a psychologist and a so- cial worker, who both observed the appellee and the child at home, testified that the child had a warm relationship with his mother and found no indications of physical or psychological abuse. In addition, the child's day care provider testified the child is a happy-go-lucky, normal, inquisitive four-year-old child. Furthermore, the child's grandmother testified that she has never seen appellee abuse or harm Drew. While appellant's expert testified she believed there was physical abuse, this expert did not interview the appellee and did not observe the child at home. Therefore, in light of the overwhelming, com- petent, credible evidence tending to show that appellee has not physically or psychologically abused Drew, we conclude that the trial court did not err in finding that appellant failed to prove his allegations of child abuse and did not abuse its discretion in awarding custody of Drew to appellee. Assignments of Error I and II are overruled. ASSIGNMENT OF ERROR III THE TRIAL (SIC.) ERRED IN NOT PERMITTING DEFENDANT-APPELLANT AND HIS WIFE TO TESTIFY AS TO WHAT THE CHILD HAD TOLD THEM CONCERNING THE MOTHER'S ABUSE. Appellant contends that the child's statement to Kathy Bill- ingham was admissible hearsay under the excited utterance excep- tion. (Evid. R. 803[2]). This argument is without merit. - 6 - Hearsay is inadmissible evidence unless it falls within one of the specific hearsay exceptions. Even where the declarant is available, Evid. R. 803(2) allows admission of hearsay that is a "*** statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." State v. Boston (1989), 46 Ohio St. 3d 108. Considerations that are to be taken into account to deter- mine whether an utterance qualifies as an excited utterance are: (a) the lapse of time between the event and the declaration, (b) the mental and physical condition of the declarant, (c) the na- ture of the statement, and (d) the influence of intervening cir- cumstances. Miles v. General Tire & Rubber Co. (1983), 10 Ohio App. 3d 186. In order to assign as error the exclusion of certain testi- mony on direct examination, unless the substance of the excluded testimony is apparent, the aggrieved party must have offered the substance of the excluded testimony to the trial court. Gannett v. Booher (1983), 12 Ohio App. 3d 49; Evid. R. 103. The following testimony was elicited during the direct exam- ination of Kathy Billingham: A. Okay. The first one was the Easter weekend in 1989, after we first seen the bruises. He wouldn't talk to us then. But, when we were bringing him back to Amy's apartment, from that visit, just as we were driving into the complex, he got very excited *** - 7 - ATTORNEY GUARNIERI: Objection. The answer's not responsive in any way to the question. THE COURT: Overruled. He got very excit- ed. A. And he said *** ATTORNEY GUARNIERI: Objection. THE COURT: Objection is sustained. Will be stricken and disregarded. (Tr. 74-75.) Appellant's counsel did not proffer the substance of the statement allegedly made by the child to Kathy Billingham as they drove into the appellee's apartment complex. Therefore, we can- not consider this alleged error since we cannot determine whether the statement was related to a "startling event" and was made while he was still under the stress of excitement caused by the event. In addition, we cannot determine (a) the lapse of time between the event and the declaration, (b) the nature of the statement, or (c) the intervening circumstances. See, Miles, supra. Accordingly, appellant's alleged error is not well taken and is overruled. Judgment affirmed. - 8 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas, Juvenile Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, J. ECONOMUS, J.* CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY *Sitting by Assignment: Peter Economus, Judge of the Mahoning County Court of Common Pleas. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .