COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73095/73096 IN THE MATTER OF: : : NELSON LARACUENTE : JOURNAL ENTRY RACHEL LARACUENTE : : AND [Appeal by Cuyahoga County : Department of Children and : OPINION Family Services] : Appellant Date of Announcement of Decision: JULY 23, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Juvenile Court Division Case Nos. 9791147/9791148 Judgment: Affirmed Date of Journalization: Appearances: For Appellant: SARA E. JONES, ESQ. 3955 Euclid Avenue Cleveland, Ohio 44115 For Father/Appellee: JOHN H. LAWSON, ESQ. The Caxton Building 812 Huron Road, #800 Cleveland, Ohio 44115 [continued on next page] For Mother/Appellee: TONI E. MARSH, ESQ. P.O. Box 32 Gates Mills, Ohio 44040 Guardian Ad Litem: THOMAS KOZEL, ESQ. 20088 Center Ridge Rd. Suite 104 Rocky River, Ohio 44116 -3- JAMES M. PORTER, P.J.: Appellant Cuyahoga County Department of Children and Family Services (Family Services) appeals from the order of the Juvenile Court denying temporary custody of abused children to Family Services. Appellant contends that the trial court's finding that temporary custody of the children was not necessary to protect their safety was against the manifest of the evidence. We find no error and affirm the judgment of the Juvenile Court. These consolidated cases involve two children, Nelson Joshua Laracuente and Rachel Laracuente (currently ages five and one year old respectively). These children initially came under the jurisdiction of the Juvenile Court when the appellant Family Services filed an abused and dependent complaint on January 6, 1997. Family Services' action was in response to medical diagnoses of the baby Rachel (then three months old) which required two emergency hospital admissions in November 1996. The nature of the injuries was diagnosed as shaken baby syndrome by the Cleveland Clinic. Parents were unable to offer any overt incident which caused these extensive injuries. Family Services gained emergency custody of Nelson Joshua on November 25, 1996, and of Rachel upon her release from the second hospital admission on January 1, 1997. Both children were placed with a maternal aunt under the understanding that their mother, appellee Rebecca Laracuente, would have liberal contact and daytime child care responsibility of the children at her sister's home. -4- In March 1997, the Juvenile Court issued an order which continued Family Services' custody and returned possession to Mrs. Laracuente under the condition that she reside with the children at her parents' (Mr. and Mrs. Bruno's) home. At the time of that ruling, Family Services agreed with the return of possession to Mrs. Laracuente. The first case was then dismissed by operation of law after 90 days had lapsed without an adjudication or final disposition. However, Family Services filed a second abuse/dependent complainton April 9, 1997, which is the subject of this appeal. On April 22, 1997, the parties submitted an agreed upon preadjudicatory order which was approved by the court. That agreement reaffirmed continued custody of the children with their mother at her parents' home with supervised visits for the father. On June 17 and 18, 1997, an adjudication hearing was held. On July 17, 1997, the trial court adjudged Nelson Joshua to be a dependent child and adjudged Rachel to be an abused child. On the same day, a final disposition order was issued, which is the sole subject of this appeal. The dispositional order continues custody of the children with Mrs. Laracuente, under Family Services protective supervisory guidance. The disposition order also allows the father to have supervised visitation, and orders that he vacate the family home. It further allows for Mrs. Laracuente and the two children to move from her parents' home back to the family residence, and specifically warns the mother of contempt consequences if the -5- supervisory requirement is not followed. Both parents were also to undergo clinical evaluations at the Juvenile Court's Diagnostic clinic. The trial court also approved Family Services' case plan which required the Laracuentes to participate in various community and social services as specified. Family Services sought and, without opposition from Mr. and Mrs. Laracuente, gained a stay of the dispositional order from this Court pending appeal. Appellant Family Services sole assignment of error states as follows: I. THE TRIAL COURT'S FINDING THAT TEMPORARY CUSTODY OF THE CHILDREN WAS NOT NECESSARY TO PROTECT THEIR SAFETY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The essence of Family Services complaint against the Laracuentes is that they will not acknowledge that Rachel's injuries were incurred as the result of being violently shaken when three months old. According to her mother's testimony, Rachel Laracuente, age three months, was suffering from an intestinal illness during the night of November 22, 1996 and into the morning of November 23rd. Mrs. Laracuente was also suffering from an intestinal illness, so when Rachel was not able to keep down her feedings, she took the baby to their family doctor's on-call doctor, who advised her to admit Rachel to the Cleveland Clinic for diagnostic purposes. Rachel was admitted during the evening of November 23rd and stayed in the hospital until the evening of November 25th. Rachel was better by the morning of November 26th, but at 3:00 p.m. the doctor -6- called to tell Mr. Laracuente that Rachel had been diagnosed with a gastrointestinal infection and needed antibiotics. Mrs. Laracuente left Rachel and her four-year-old brother with Mr. Laracuente and went to the pharmacy to pick up the prescription. When she arrived home from the pharmacy a half an hour later, the baby was barely breathing. Mr. Laracuente alerted her that something was wrong as soon as she returned, but he had waited for her to come home before calling for emergency medical help. Rachel was taken by emergency medical personnel to Southwest General Hospital, and in the early morning hours of November 27th, Rachel was life-flighted to the Cleveland Clinic. Dr. Michael J. McHugh, Director of the Pediatric Care Unit at the Cleveland Clinic, testified that at the Cleveland Clinic, Rachel's heart was beating, but she was not breathing and she was having seizures. A physical examination revealed that Rachel had bilateral retinal hemorrhages and bilateral subdural hemorrhages, which Dr. McHugh testified were the classic injuries of a baby who had been violently shaken. Dr. McHugh also testified that Rachel had sustained the type of injuries which can be caused by a severe major impact, such as an auto accident or a fall from a very high place, although Rachel had no external evidence of having been subjected to such injuries. He testified that Rachel's injuries could not have been caused by bouncing her on a knee, or any other type of playful activity. Dr. McHugh confirmed his diagnosis by ruling out several other alternative causes of injury in consultation with five pediatric -7- specialists. His prognosis for Rachel was tragic. He testified that once such damage is done, very little can be done to reverse it. He has no expectation that Rachel will ever walk, feed herself, or even respond by smiling. (Tr. Vol. I, p. 48). Because the Laracuentes were unwilling to accept the diagnosis of the doctors at the Cleveland Clinic, they had Rachel transferred to MetroHealth Hospital on December 24, 1997 for a second opinion. Dr. James Besunder, Director of the Pediatric Intensive Care Unit and Chief of the Division of Pediatric Critical Care at MetroHealth Hospital, was consulted by Rachel's parents for a second opinion. His diagnosis was consistent with the diagnosis of the Cleveland Clinic physicians: Someone shook this infant violently. In his testimony, he explained that Rachel had both retinal and subdural hematomas, and that the subdural hemorrhages tracked into Rachel's inter-hemispheric space. It is undisputed that the best interests of the child are to be controlling in determining the disposition of an abused or neglected child. In re Baby Girl Baxter (1985), 17 Ohio St.3d 229, 233; In re Higby (1992), 81 Ohio App.3d 466, 469. In reviewing a trial court's determination of a disposition, an appellate court is to accord the trial court's discretion the utmost respect. Reynolds v. Goll (1996), 75 Ohio St.3d 121, 124. A reviewing court must take into account that the knowledge gained through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed -8- record. Id. Pursuant thereto, the trial court enjoys the presumption that its finding were correct. Id. A court exercising Juvenile Court jurisdiction is invested with very broad discretion, and, unless that power is abused, a reviewing court is not warranted in disturbing its judgment. In re Pieper Children (1993), 85 Ohio App.3d 318, 330. The gist of Family Services' appeal is that the seriousness of Rachel's injuries and Mrs. Laracuente's unwillingness to accept the agency's accusation that her husband caused the injuries should have required the trial court to grant temporary custody to them. R.C. 2151.353 is the applicable statute in dispositions of abused, neglected and dependent children. Under subsection (A) of that law, the following options can be utilized: 1. Protective supervision; 2. Temporary custody of the agency; 3. Legal custody to either parent or to a third party; 4. Permanent custody to the agency; 5. Long-term foster care; 6. Removal of the perpetrator from the child's home. Under subsection (C), the statute also authorizes by example the following supplemental order when protective supervision to the agency is utilized. a. Order a party to vacate the child's home; b. Order to prevent certain contact between child and another; -9- c. Any restraining order which controls a party's conduct if such would otherwise not be in the child's best interests. The dispositional ruling by the trial court on July 17, 1997, actually utilized several of these statutory options. First, the mother was continued as the sole legal custodian, thereby excluding the father as the children's legal custodian. The dispositional order also granted Family Services the status of protective supervision, which affords court-ordered monitoring by social worker staff. In addition, this dispositional order required the father's contact to be supervised and placed the mother on notice that any variance would be punishable by contempt of court. The dispositional order also required that the father vacate the family residence. It is difficult to second-guess the merits of this dispositional order. It structures a placement for the children with their mother and affords supervised contact with the father. The trial court undoubtedly included this restriction based upon the agency's articulated concerns, although whether or not Mr. Laracuente was actually responsible for Rachel's injuries was not extensively litigated at either adjudicatory or dispositional hearings. The trial court therefore utilized its available options under R.C. 2151.353. Family Services asserts that the trial court erred in not granting it temporary custody by arguing the weight of the evidence presented to the trial court ran contrary to the disposition where the mother, Mrs. Laracuente, retained legal custody of the two -10- children. However, various witness statements at the hearing vouched for the mother's devotion to the children and parenting abilities. On April 22, 1997, Family Services social worker, Rebecca Ann Barbish, testified that the kids are doing well in the care of the mother. They have been placed there since March 20th. She also had no concerns that the children have been in any kind of physical risk since the mother moved in with her parents and the kids; the mother was the kind of person that would do her utmost to try to follow a court order and not let her husband around the kids without the other supervisors, meaning her parents or other people, in an effort to follow Judge Sikora's order. (April 22, 1997 Tr. 7, 15). On June 17, 1997, at the adjudicatory hearing, Dr. Diane A. Butler, who had become the baby's pediatrician two weeks prior to the hearing, made the following statements about the mother: *** I cannot imagine what any foster parent could continue to do for this child [Rachel] what Mother is doing for her at home at this time. I think it would be unfortunate to have the child removed from the home because no one can do as much as she's done so far. *** My observation of the child in the office and with Mother with the child in the office and her concerns about doing the physical therapy and caring for her from a diet point of view and all these sorts of things are consistent with a caring mother and not someone who has written the child off or who has participated in a coverup of a chid's abuse. (Tr. 111, 116). -11- With similar sentiments, Dr. Christopher John Loyke, the child's general practitioner, made the following statement on June 18, 1997 at the adjudicatory hearing: DR. LOYKE: Well, I just -- I think Rebecca has done an excellent job parenting. And I don't think that there is anything that anybody is bringing to light that Rebecca has done wrong, I do not understand why this child is going to be -- there is an issue where you know, Rachel is going to be removed from Rebecca's care. I mean, Rachel's medical condition is extremely difficult. I don't think that she's -- this is anything life-threatening. I do not think that she's going to die. But it's very easy to get lazy with relatively, I don't want to say vegetative, `cause I don't think that's the situation, but almost a vegetative type condition. You know, spastic quadriplegia with the tremendous amount of head injury. These cases can be very boring to handle in the long term. You need somebody who is very committed and very caring to that person to treat these people well. You can't just bounce these people into some type of third-party care situation. They will not do well. The people that need to take care of patients in this situation are the people who care about them most. That insures the best amount of care. And because I see no reason, you know, why Rebecca's being thought to be an unfit mother. I guess that is the allegation if we're going to have, you know, a hearing about it. I felt that -- and Dr. Butler felt, that we should get down here and say something. (Tr. 8-9). Brian Yantek, a counselor from Parmadale, provided services to the Laracuente family through an agency referral. Mr. Yantek, in his written report recommended that the children stay with Mrs. Laracuente. Mr. Yantek also testified as follows on July 17, 1997 at the dispositional hearing: -12- YANTEK: Rebecca is definitely able to care for Rachel. * * * YANTEK: I mean, I have seen her care for her daughter. There's a definite bond between her and her daughter. (Tr. 44) Last, Guardian Ad Litem, Mr. Thomas Kozel, made the following recommendation at the July 17, 1997 dispositional hearing: KOZEL: Your Honor, I believe it's the best interest of both children to be placed with their mother. I believe that she's demonstrated that she's done everything really humanly possible to care for both of these children under the circumstances. It's been a heavy burden, but one that she seems to be willing to bear. She's followed every -- all the court orders. I believe she'll continue to do so. I am concerned about the nature of this injury and how it occurred and how that it still has not been completely explained, though I would state that my fears would be put at rest if the Court did order that the father only be given supervised visitations. I believe that will adequately protect the children. And, as such, I would request the Court give custody to the mother with protective supervision, (Tr. 52-53). In contrast, Family Services' primary witness to support its temporary custody prayer was supervisor, Brenda Gray, who testified that the agency should gain temporary custody so that the children can be placed in an unidentified foster home. Her theory is based upon the lack of an admission or acceptance by the mother as to the injuries Rachel has suffered. She admitted that she is unaware of -13- any injuries or risks to the children since they were returned to Mrs. Laracuente's custody. The numerous witnesses who are quoted above have all seen the children with Mrs. Laracuente. Ms. Gray has not. In this case, the trial court had several, extensive opportunities to observe, question, address and consider evidence concerning both parents. The trial was bifurcated, comprising an adjudicatory phase and a dispositional phase. The adjudicatory phase, which was first, lasted two full days. The dispositional phase was conducted several weeks later. At the adjudicatory hearing, Mrs. Laracuente testified at length. In both of those hearings, Mr. Laracuente testified at length. In addition to those formal hearings, other informal proceedings were had, wherein the trial court had the opportunity to address and observe the parties. Further, several witnesses, all of whom had extensive dealings with the Laracuentes testified at the lengthy proceedings. The trial court had the benefit of first hand exposure to the witnesses and the Laracuentes in reaching its decision. Ample evidence was presented to support the court's decision to award custody of the Laracuente children to their mother. Much of that evidence came from the State's own witnesses, as in the testimony of Rebecca Barbish that [t]he kids are doing well in the care of the mother *** [Rachel] is improving ***. (Tr. at 7-8). We find no basis for disturbing the discretion of the trial judge on this record. Appellant's sole assignment of error is overruled. -14- Judgment affirmed. -15- It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas Juvenile Court 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. PATTON, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .