In re A.F.H.

2023 Ohio 1478

• Court: Ohio Court of Appeals
• Decided: May 4, 2023
• Docket: 111816
• Status: Published

Opinion

[Cite as In re A.F.H., 2023-Ohio-1478.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE A.F.H. : : No. 111816 A Minor Child : : [Appeal by Mother, M.D.] :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: May 4, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-19905167

Appearances:

John H. Lawson, for appellant.

LISA B. FORBES, P.J.:

M.D. (“Mother”) appeals the juvenile court’s order terminating her

parental rights and awarding permanent custody of A.F.H.1 to the Cuyahoga County

Division of Children and Family Services (“CCDCFS” or the “Agency”).2 On appeal,

1The juvenile court terminated Mother’s parental rights to each of her three children at the dispositional hearing at issue in the appeal. However, this appeal concerns only A.F.H.

2 A.F.H.’s alleged father’s parental rights were also terminated, but the alleged father is not a party to this appeal. Mother’s counsel filed a motion to withdraw pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that following an

examination of the record there are no meritorious grounds for appeal. This court

held the motion in abeyance to give appellant an opportunity to file a pro se brief.

She did not do so. After conducting our own independent review, we grant counsel’s

motion to withdraw and dismiss the appeal.

I. Facts and Procedural History

A.F.H. was born on December 27, 2018. CCDCFS filed a complaint

on April 26, 2019, alleging that A.F.H. was neglected and dependent because

“Mother used cocaine during her pregnancy with A.F.H.” The complaint further

alleged that Mother had “completed treatment in the past and [was] on a methadone

maintenance program” at the time the complaint was filed. In its complaint

CCDCFS requested legal custody of A.F.H. to Mother with protective supervision to

CCDCFS.

A.F.H. was adjudicated neglected and dependent on September 18,

2019. In its October 26, 2019 journal entry, the juvenile court ordered A.F.H.

committed to the legal custody of Mother with protective supervision granted to

Beginning in May 2020, CCDCFS took steps to address information

it had received that A.F.H. was living with Mother in a motel in undesirable

conditions. On July 1, 2020, the court granted CCDCFS’s Motion for immediate custody, awarding emergency temporary custody of A.F.H. to the Agency. CCDCFS

was granted temporary custody of A.F.H. on September 27, 2020.

CCDCFS filed a “motion to modify temporary custody to permanent

custody” on January 22, 2021. The juvenile court held a disposition hearing on

CCDCFS’s motion on April 1 and 29, 2022 (“the Hearing”).

On July 15, 2022, the court journalized an entry terminating Mother’s

parental rights and granting permanent custody of A.F.H. to CCDCFS. It is from

this order that Mother appeals.

II. Dispositional Hearing

At the Hearing, CCDCFS called the following six witnesses: Ercell

Goodman, Mary Beth Cole, Aimee Shipman, Marty O’Sullivan, Tiesha Reed, and

Amber Hunter. A.F.H.’s guardian ad litem John Stryker (“GAL”) submitted several

reports to the court over the course of the proceedings and gave a recommendation

on the record at the Hearing. In addition, nine exhibits were admitted into evidence.

The following testimony and information were presented at the Hearing.

A. Ercell Goodman

Ercell Goodman (“Goodman”) is a chemical dependency counselor

assistant for Community Action Against Addiction (“CAAA”), which is a methadone

drug-treatment program. Mother was one of Goodman’s clients at CAAA for three

or four years at the time of the Hearing. As a client at CAAA, Mother “receives

counseling. She receives group therapy, [intensive outpatient program] therapy if she needs it.” In addition, Mother “gets a therapeutic dose of methadone daily.”

According to Goodman, methadone helps people with opiate drug addiction.

Goodman testified that he met with Mother twice each month.

During that time, he took and kept notes regarding their counselling sessions.

Portions of Mother’s counseling records, which included drug screenings,

counseling notes, and treatment plans, were admitted into evidence. According to

Goodman, the records indicate that 50 percent of Mother’s drug screenings from

April 2020 to November 2021 were positive for alcohol, cocaine, and/or marijuana.

Goodman acknowledged that in his experience it is normal for patients to relapse

during treatment.

Mother is reviewed by CAAA on a “monthly or quarterly basis, * * *

sometimes she does well. She will go where she’s supposed to go and she’ll do what

she’s supposed to do. And then other times she gets sidetracked with daily life, with

stress, with boyfriends or whatever it is so she doesn’t do what she’s supposed to

do.” During the times Mother is not doing well on the program, Goodman stated

that Mother was “resistant” in his counseling notes. For example, in an October 8,

2020 counseling note, it says that Mother “is resistance [sic] to treatment, to

counseling and group. [Mother] is not working a daily plan of recovery.”

Mother “has not used opiates” during her treatment, however, “[i]t’s

the other things that she’s taking that she’s having an issue with.” During an

April 30, 2021 group session at CAAA, Mother described “how her addiction

switched from opiates to alcohol.” Goodman testified that CAAA is “primarily an opiate methadone center * * *[b]ut clients normally become abstinent from their

opiate use and they pick up other second addictions, which is alcohol sometimes,

marijuana sometimes, and we work with them with that also.”

During counseling sessions, Goodman and Mother discussed “things

on her treatment plan. And one of the things we talk mostly [about] is her drug use

and * * * the issue’s [sic] with her children * * *.” Goodman explained that Mother

was “stressed about the things she has to do to get her children back.” According to

Goodman, for a person with addiction “when you put too much on their plate they

resort to what they know and that’s just use.”

During Mother’s February 9, 2022 session with Goodman, they

discussed Mother’s urine screenings over the previous six months. According to

Goodman, Mother acknowledged to him during that session that she had started

using cocaine and had used methamphetamine in September 2021.

At the time of the Hearing, CAAA was “trying to encourage [Mother]

to go into [an] intensive outpatient * * * program” for her alcohol, marijuana, and

cocaine use. Mother was recommended to an intensive-outpatient program (“IOP”)

on February 9, 2022, and connected with Guidestone for the IOP but had not

entered into the program.

CAAA considers a client sober when they have displayed “true

abstinence after 90 days.” At the time of the Hearing, Goodman did not consider

Mother to be living a sober life. When asked if he believes that Mother is attempting

to fight her addictions, Goodman responded, “Some days, yes, I do.” He explained that Mother has complained to him that not having her children has given her stress.

“[S]he says she loves her children. She said she [does not] think she could live

without them.” Further, Mother has indicated to Goodman that she will continue

treatment at CAAA after the Hearing.

B. CCDCFS Employees

Five CCDCFS employees testified at the permanent custody Hearing.

Mary Beth Cole (“Cole”), Aimee Shipman (“Shipman”), and Amber Hunter

(“Hunter”) are caseworkers who were assigned to work on Mother’s case as part of

CCDCFS’s “START Unit” between August 2020 and the date of the Hearing.

According to Cole, “[t]he START Unit deals with babies that come into the system

that have been exposed to drugs.” Marty O’Sullivan (“O’Sullivan”) and Tiere Reed

(“Reed”) are family advocates. As family advocates, O’Sullivan stated that his main

job is to work “with parents in cases involving substance use disorder to help

[them] attain and maintain sobriety.”

CCDCFS records indicated that Mother was first involved with the

agency when her daughter, Ma.D., was born in April 2015 because Ma.D. “was born

with substance use.” As a result, Ma.D. was adjudicated abused.

CCDCFS became involved in the current case in April 2019 because

“at the birth of [A.F.H.] [M]other tested positive for substances.” As a result,

CCDCFS filed a complaint alleging that A.F.H. was neglected and dependent and

sought court-ordered protective supervision, which was later granted. Cole became involved with A.F.H. in April 2020 when CCDCFS

became aware that Mother’s “housing was not stable. * * * She had stayed

sometimes with her mother, other times with friends.” CCDCFS learned that

Mother was staying in the motel when “one of the attendants there found a child

unsupervised in the parking lot.” Cole described “the condition of the motel room

had been pretty much trashed” and “also had a lot of liquor bottles” in it. As a result,

the court granted CCDCFS temporary custody of A.F.H., and the goal of the case

plan was reunification with Mother.

Several case plans were developed over the course of CCDCFS’s

involvement with Mother. The two consistent objectives for Mother were

independent housing and substance abuse.

For housing, Cole testified that CCDCFS referred Mother to “the local

collab and CMHA.” Each of the CCDCFS witnesses testified that Mother’s housing

issue was never resolved. Mother reported that she had leased a home with her

mother (“grandmother”) but never provided a copy of the lease to CCDCFS and

cancelled all scheduled CCDCFS visits to the home. Shipman testified that Mother’s

housing with grandmother would not have been appropriate housing for A.F.H.

because grandmother had an open case with CCDCFS regarding one of Mother’s

siblings.

Each CCDCFS employee testified that Mother was requested to

submit to random drug screenings for the agency. Cole and O’Sullivan testified that

Mother submitted to an agency drug screening only one time for each of them. CCDCFS did have access to Mother’s CAAA drug screenings, but according to

Hunter, CCDCFS required its own screenings because CAAA’s were not always

randomly requested. Mother did not make progress on the substance-abuse

objective according to CCDCFS standards because she had not submitted to the

agency’s random drug screenings, and the drug screenings performed by CAAA

indicated that Mother had tested positive for various substances. Additionally,

Mother told Cole that she had been “struggling” with alcohol and marijuana in

December 2020.

According to Shipman, mental health was not initially listed on

Mother’s case plan while Shipman was assigned to the case. However, Mother was

“referred to Ohio Guidestone for some mental health services because she expressed

a concern with [Shipman] over being depressed since her children were removed.”

Mental health and parenting were added to Mother’s case plan in February 2022.

Prior to parenting being added to Mother’s case plan, Cole stated that Mother had

engaged with a parenting class but never completed it.

Hunter testified that at the time of the Hearing, A.F.H. had been

placed with her paternal aunt and had been in that placement for over 12 months.

According to Hunter, A.F.H. was “well bonded” with her caregivers.

C. GAL

At the Hearing, A.F.H.’s GAL recommended that permanent custody

be granted to CCDCFS. The GAL stated, “I found compelling there is the lack of housing and stability by mother and sobriety. I believe the testimony was very clear

as to the lack of sobriety by mother * * *.”

The GAL submitted a “May 2022 Report Supplement,” which

supplemented his reports previously filed with the court. In the supplement, the

GAL reiterated his recommendation “that permanent custody of [A.F.H.] is

granted to the agency” because it would be A.F.H.’s best interest. The GAL found

that “Mother’s addiction has been an ongoing disruption to her relationship with

[A.F.H.] to the degree that GAL cannot recommend [that A.F.H.] return safely to

Mother’s care. * * * Raising A.F.H. would fall solely on Mother’s shoulders. She is

unable to bear such responsibility. “

III. Law and Analysis

A. Anders

In Anders, the United States Supreme Court held that if appointed counsel, after a conscientious examination of the case, determines the appeal to be wholly frivolous, he or she should advise the court of that fact and request permission to withdraw. Anders [386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493] at 744. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Further, counsel must also furnish the client with a copy of the brief and allow the client sufficient time to file his or her own brief. Id.

Once the appellant’s counsel satisfies these requirements, this court must fully examine the proceedings below to determine if any arguably meritorious issues exist. Id.; Loc.App.R. 16(C). If we determine that the appeal is wholly frivolous, we may grant counsel’s request to withdraw and dismiss the appeal without violating constitutional requirements or we may proceed to a decision on the merits if state law so requires. Anders; Loc.App.R. 16(C).

In re C.S., 8th Dist. Cuyahoga No. 105700, 2017-Ohio-8664, ¶ 10-11. In the case at hand, Mother’s counsel did not set forth a potential

assignment of error. Instead, counsel gave an analysis of the record and case law

concluding that after conducting a review of “the permanent custody Trial

Transcripts of April 1, 2022 and April 29, 2022, [and] all pertinent documents from

the trial court’s records, including motions, orders, Exhibits, and the [GAL] reports

* * * the undersigned cannot discern any meritorious argument.”

We acknowledge that Anders briefing arose in the context of criminal

cases, however this court has approved the application of the Anders procedure in

an appeal from a juvenile court’s termination of parental rights. In re C.S. at ¶ 13.

B. Independent Review

1. Standard of Review — Permanent Custody

“An appellate court will not reverse a juvenile court’s termination of

parental rights and award of permanent custody to an agency if the judgment is

supported by clear and convincing evidence.” In re M.J., 8th Dist. Cuyahoga

No. 100071, 2013-Ohio-5440, ¶ 24. Pursuant to R.C. 2151.414(B)(1), “the court may

grant permanent custody of a child to a movant if the court determines * * *, by clear

and convincing evidence, that it is in the best interest of the child to grant permanent

custody of the child to the agency” and that any of the R.C. 2151.414(B) factors apply.

Pertinent to this appeal, “[c]ourts apply a two-pronged test when

ruling on permanent custody motions.” In re De.D., 8th Dist. Cuyahoga No. 108760,

2020-Ohio-906, ¶ 16. “To grant the motion, courts first must find that any of the

factors in R.C. 2151.414(B)(1)(a)-(e) apply. Second, courts must determine that terminating parental rights and granting permanent custody to CCDCFS is in the

best interest of the child or children using the factors in R.C. 2151.414(D).” Id.

2. R.C. 2151.414(B)(1)(a)

R.C. 2151.414(B)(1)(a) is satisfied if the child has not been abandoned

or orphaned or been in agency custody for 12 or more months of a consecutive 22-

month period, and “the child cannot be placed with either of the child’s parents

within a reasonable time or should not be placed with the child’s parents.”

CCDCFS’s motion for permanent custody argued that this provision applied.

As noted by the trial court in its July 15, 2022 journal entry granting

permanent custody of A.F.H. to the Agency, A.F.H. was “committed to the

emergency custody of the Agency pursuant to an order journalized on July 1, 2020.”

CCDCFS filed its motion to modify temporary custody to permanent custody on

January 22, 2021. Consequently, A.F.H. had not been in agency custody 12 months

of a consecutive 22-month period at the time CCDCFS filed its motion.

The court further found Mother has “failed continuously and

repeatedly to substantially remedy the conditions causing the Child to be placed

outside the Child’s home” and that A.F.H. cannot be placed with Mother within a

reasonable time or should not be placed with Mother.

To assess whether the child cannot be placed with a parent within a

reasonable time or should not be placed with a parent, courts look to

R.C. 2151.414(E). Subsection (E)(1) instructs that the court shall enter a finding that

the child cannot be placed with either parent within a reasonable time or should not be placed with either parent, if the court determines by clear and convincing

evidence that

* * * notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home * * *.

Clear and convincing evidence in the record demonstrates that

Mother has failed to remedy the conditions causing A.F.H.’s removal. A.F.H. was

placed in CCDCFS protective supervision and ultimately temporary custody due to

Mother’s substance abuse during and after her pregnancy with A.F.H. At the

Hearing, Goodman, Cole, Shipman, O’Sullivan, Reed, and Hunter each testified that

Mother had an ongoing substance abuse problem. While Mother had been engaged

in methadone treatment at CAAA, Goodman testified that Mother’s addiction

simply shifted from opiate use to alcohol. Further, Mother admitted to using

cocaine, methamphetamine, alcohol, and marijuana while in the CAAA program.

Therefore, we find that clear and convincing evidence in the record

supports a finding that A.F.H. was not in CCDCFS custody for 12 months of a

consecutive 22-month period but that she cannot be placed with Mother within a

3. R.C. 2151.414(D)(1) Best-Interest Factors

The July 15, 2022 journal entry reflects that the court considered the

best-interest factors under R.C. 2151.414(D)(1)(a)-(e), including A.F.H.’s:

relationship with her family and foster caregivers; wishes; custodial history; and need for a legally secure placement in addition to the GAL report.

“R.C. 2151.414(D)(1) does not require a juvenile court to expressly discuss each of

the best-interest factors in R.C. 2151.414(D)(1)(a) through (e). Consideration is all

the statute requires.” In re A.M., 166 Ohio St.3d 127, 2020-Ohio-5102, 184 N.E.3d

1, ¶ 31.

The evidence in the record supports the court’s decision that

permanent custody to CCDCFS is in A.F.H.’s best interest. Hunter testified that

A.F.H. had been placed with her paternal aunt for 12 months and was well-bonded

to her caregivers. A.F.H.’s GAL opined that permanent custody to the Agency would

be in A.F.H.’s best interest, noting the “lack of housing and stability by mother and

sobriety.” Further, regarding A.F.H.’s need for a legally secure permanent

placement, the court heard from numerous witnesses that Mother had not reached

sobriety, nor had she secured adequate housing during the pendency of the case.

The Ohio Supreme Court has held that, regarding the best interest of

the child portion of a permanent custody case, “[t]here is not one element that is

given greater weight than the others pursuant to” R.C. 2151.414(D). In re Shaefer,

111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. “R.C. 2151.414 requires

the court to find the best option for the child once a determination has been made

pursuant to” R.C. 2151.414(B)(1)(a)-(e). Id. at ¶ 64.

Upon review, we find that the court properly considered the relevant

statutory factors and acted within its discretion when it found that permanent

custody to CCDCFS was in the best interests of A.F.H. We find that clear and convincing evidence in the record supports the trial court’s decision to terminate

Mother’s parental rights and grant custody of A.F.H. to CCDCFS.

Accordingly, we grant counsel’s motion to withdraw and dismiss the

appeal.

It is ordered that appellee recover from appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and MICHAEL JOHN RYAN, J., CONCUR