[Cite as In re Au.E., 2018-Ohio-524.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re Au.E., Br.E. Court of Appeals Nos. L-17-1179
Trial Court No. JC 14244471
DECISION AND JUDGMENT
Decided: February 9, 2018
*****
Stephen D. Long, for appellant.
Angela Y. Russell, for appellee.
OSOWIK, J.
{¶ 1} This is an appeal from a June 16, 2017 judgment of the Lucas County Court
of Common Pleas, Juvenile Division, that terminated the parental rights of appellant
(“mother”) and granted permanent custody of the subject minor children to appellee,
Lucas County Children Services (“LCCS”). For the reasons set forth below, this court
affirms the judgment of the trial court. {¶ 2} Appointed counsel has submitted a request to withdraw pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the brief filed on
appellant’s behalf, appointed counsel sets forth two proposed assignments of error. In
support of the request to withdraw, counsel for appellant states that, after reviewing the
record of proceedings in the trial court, he is unable to find any appealable issues.
{¶ 3} Anders, supra, sets forth the procedure to be followed by appointed counsel
who desires to withdraw for want of a meritorious, appealable issue. In Anders, the
United States Supreme Court held that if counsel, after a conscientious examination of
the case, determines it to be wholly frivolous he should so advise the court and request
permission to withdraw. Id. at 744.
{¶ 4} This request must be accompanied by a brief identifying anything in the
record that could arguably support the appeal. Id. Counsel must also furnished the client
with a copy of the brief and request withdraw so as to allow the client sufficient
opportunity to also raise matters. Id. Once these requirements have been satisfied, the
appellate court must then conduct a full examination of the proceedings from below to
determine if the appeal is frivolous.
{¶ 5} If the appellate court does determine the appeal to be frivolous, it may grant
counsel’s request to withdraw and dismiss the appeal without violating constitutional
rights or it may proceed to a decision on the merits. Id.
{¶ 6} In the instant case, we find that appointed counsel has satisfied the Anders
requirements. Accordingly, this court will proceed with an examination of the potential
2. assignments of error proposed by counsel and the record from below to determine if this
appeal lacks merit and is, therefore, wholly frivolous.
{¶ 7} The following undisputed facts are relevant to this appeal. LCCS previously
terminated the parental rights of appellant with respect to the same two children who are
the subject of the instant appeal. On April 22, 2016, this court reversed that decision,
thereby furnishing appellant another opportunity to successfully comply with the case
plan services and conditions so as to arguably warrant reunification and avoid a best
interests custody termination. In re Au.E., Br.E., 6th Dist. Lucas No. L-15-1293, 2016-
Ohio-1392. Despite this, appellant again failed to cooperate or comply with the case plan
requirements.
{¶ 8} On December 2, 2016, based upon appellant’s failure once again to comply
with or complete case plan services and conditions, LCCS filed another motion to the
trial court for permanent custody of the children.
{¶ 9} The case was set for trial at 9:00a.m. on April 25, 2017. The trial
commenced over an hour late without appellant due to her failure to appear. Appellant
subsequently appeared later that morning.
{¶ 10} At trial, LCCS presented the testimony of an officer with the Toledo Police
Department. The officer testified that on January 26, 2017, while on duty, he responded
to an emergency call at a Toledo area apartment. The officer determined that an incident
of domestic violence had occurred between appellant and appellant’s niece. Appellant
had been temporarily living in the niece’s apartment following her eviction from an area
apartment.
3. {¶ 11} LCCS next called the landlord of the apartment from which appellant had
been evicted prior to staying with her niece to testify. The landlord testified that
appellant’s $420 per month lease commenced on April 1, 2016. The landlord further
testified that she failed to pay the full amount even in the first month of the lease
agreement. Substantial arrearages quickly accumulated. By November 2016, the
landlord commenced eviction proceedings against appellant.
{¶ 12} LCCS next called to testify Au.E.’s therapist from Zepf Center. The
therapist testified that during the most recent period in which Au.E. was residing with
appellant, Au.E. was subjected to multiple instances of physical abuse both by appellant
and also by the party with whom appellant was staying at that time.
{¶ 13} The trial court next heard testimony from appellant. Appellant testified
that she is the mother of the two subject children, as well as four older children.
Appellant testified that her two oldest children were raised by their paternal grandparents
who obtained legal custody of them in proceedings in Michigan.
{¶ 14} Appellant further testified that her middle two children have been in the
custody of her sister since approximately October 2008. Appellant elaborated that this
occurred following a May 17, 2007 incident in which appellant stabbed someone, was
prosecuted, convicted, and incarcerated in connection to the offense. Lastly, appellant’s
youngest two children are the subject of the instant appeal.
{¶ 15} Notably, although appellant conceded the necessity of the mental health
services required of her by the case plan, she acknowledged that she was not participating
in the services. Appellant further conceded that she lacked stable housing, acknowledged
4. that she was presently unemployed, and conveyed that she was residing in an area
homeless shelter.
{¶ 16} Appellant further conceded that Au.E. has been diagnosed with post-
traumatic stress disorder and that the child suffers from this based upon having witnessed
multiple acts of “pretty bad” domestic violence between appellant and the child’s father.
Similarly, appellant conceded that the children were again removed from her care in
December of 2014 after suffering physical abuse by the boyfriend of the friend with
whom appellant was staying at that time.
{¶ 17} In conjunction with the above, appellant acknowledged that she had failed
to make any of the previously ordered child-support payments of the subject children and
also conceded that she had sporadically ceased participating in visitation with the
children.
{¶ 18} LCCS next called the ongoing caseworker to testify in the matter. The
caseworker confirmed that appellant was not participating in required counseling
services. The caseworker further confirmed the lack of stable housing and indicated that
the last known address of appellant was at the Lorraine Motel in Toledo.
{¶ 19} Significantly, the caseworker conveyed a concerning scenario in which
appellant was involved in a relationship with a man who possessed outstanding arrest
warrants for assault and also possessed a history of violating protection orders. The
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[Cite as In re Au.E., 2018-Ohio-524.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re Au.E., Br.E. Court of Appeals Nos. L-17-1179
Trial Court No. JC 14244471
DECISION AND JUDGMENT
Decided: February 9, 2018
*****
Stephen D. Long, for appellant.
Angela Y. Russell, for appellee.
OSOWIK, J.
{¶ 1} This is an appeal from a June 16, 2017 judgment of the Lucas County Court
of Common Pleas, Juvenile Division, that terminated the parental rights of appellant
(“mother”) and granted permanent custody of the subject minor children to appellee,
Lucas County Children Services (“LCCS”). For the reasons set forth below, this court
affirms the judgment of the trial court. {¶ 2} Appointed counsel has submitted a request to withdraw pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the brief filed on
appellant’s behalf, appointed counsel sets forth two proposed assignments of error. In
support of the request to withdraw, counsel for appellant states that, after reviewing the
record of proceedings in the trial court, he is unable to find any appealable issues.
{¶ 3} Anders, supra, sets forth the procedure to be followed by appointed counsel
who desires to withdraw for want of a meritorious, appealable issue. In Anders, the
United States Supreme Court held that if counsel, after a conscientious examination of
the case, determines it to be wholly frivolous he should so advise the court and request
permission to withdraw. Id. at 744.
{¶ 4} This request must be accompanied by a brief identifying anything in the
record that could arguably support the appeal. Id. Counsel must also furnished the client
with a copy of the brief and request withdraw so as to allow the client sufficient
opportunity to also raise matters. Id. Once these requirements have been satisfied, the
appellate court must then conduct a full examination of the proceedings from below to
determine if the appeal is frivolous.
{¶ 5} If the appellate court does determine the appeal to be frivolous, it may grant
counsel’s request to withdraw and dismiss the appeal without violating constitutional
rights or it may proceed to a decision on the merits. Id.
{¶ 6} In the instant case, we find that appointed counsel has satisfied the Anders
requirements. Accordingly, this court will proceed with an examination of the potential
2. assignments of error proposed by counsel and the record from below to determine if this
appeal lacks merit and is, therefore, wholly frivolous.
{¶ 7} The following undisputed facts are relevant to this appeal. LCCS previously
terminated the parental rights of appellant with respect to the same two children who are
the subject of the instant appeal. On April 22, 2016, this court reversed that decision,
thereby furnishing appellant another opportunity to successfully comply with the case
plan services and conditions so as to arguably warrant reunification and avoid a best
interests custody termination. In re Au.E., Br.E., 6th Dist. Lucas No. L-15-1293, 2016-
Ohio-1392. Despite this, appellant again failed to cooperate or comply with the case plan
requirements.
{¶ 8} On December 2, 2016, based upon appellant’s failure once again to comply
with or complete case plan services and conditions, LCCS filed another motion to the
trial court for permanent custody of the children.
{¶ 9} The case was set for trial at 9:00a.m. on April 25, 2017. The trial
commenced over an hour late without appellant due to her failure to appear. Appellant
subsequently appeared later that morning.
{¶ 10} At trial, LCCS presented the testimony of an officer with the Toledo Police
Department. The officer testified that on January 26, 2017, while on duty, he responded
to an emergency call at a Toledo area apartment. The officer determined that an incident
of domestic violence had occurred between appellant and appellant’s niece. Appellant
had been temporarily living in the niece’s apartment following her eviction from an area
apartment.
3. {¶ 11} LCCS next called the landlord of the apartment from which appellant had
been evicted prior to staying with her niece to testify. The landlord testified that
appellant’s $420 per month lease commenced on April 1, 2016. The landlord further
testified that she failed to pay the full amount even in the first month of the lease
agreement. Substantial arrearages quickly accumulated. By November 2016, the
landlord commenced eviction proceedings against appellant.
{¶ 12} LCCS next called to testify Au.E.’s therapist from Zepf Center. The
therapist testified that during the most recent period in which Au.E. was residing with
appellant, Au.E. was subjected to multiple instances of physical abuse both by appellant
and also by the party with whom appellant was staying at that time.
{¶ 13} The trial court next heard testimony from appellant. Appellant testified
that she is the mother of the two subject children, as well as four older children.
Appellant testified that her two oldest children were raised by their paternal grandparents
who obtained legal custody of them in proceedings in Michigan.
{¶ 14} Appellant further testified that her middle two children have been in the
custody of her sister since approximately October 2008. Appellant elaborated that this
occurred following a May 17, 2007 incident in which appellant stabbed someone, was
prosecuted, convicted, and incarcerated in connection to the offense. Lastly, appellant’s
youngest two children are the subject of the instant appeal.
{¶ 15} Notably, although appellant conceded the necessity of the mental health
services required of her by the case plan, she acknowledged that she was not participating
in the services. Appellant further conceded that she lacked stable housing, acknowledged
4. that she was presently unemployed, and conveyed that she was residing in an area
homeless shelter.
{¶ 16} Appellant further conceded that Au.E. has been diagnosed with post-
traumatic stress disorder and that the child suffers from this based upon having witnessed
multiple acts of “pretty bad” domestic violence between appellant and the child’s father.
Similarly, appellant conceded that the children were again removed from her care in
December of 2014 after suffering physical abuse by the boyfriend of the friend with
whom appellant was staying at that time.
{¶ 17} In conjunction with the above, appellant acknowledged that she had failed
to make any of the previously ordered child-support payments of the subject children and
also conceded that she had sporadically ceased participating in visitation with the
children.
{¶ 18} LCCS next called the ongoing caseworker to testify in the matter. The
caseworker confirmed that appellant was not participating in required counseling
services. The caseworker further confirmed the lack of stable housing and indicated that
the last known address of appellant was at the Lorraine Motel in Toledo.
{¶ 19} Significantly, the caseworker conveyed a concerning scenario in which
appellant was involved in a relationship with a man who possessed outstanding arrest
warrants for assault and also possessed a history of violating protection orders. The
caseworker unequivocally testified that based upon her extensive involvement in this
matter, permanent custody of the subject children was in their best interest due to
5. appellant’s lengthy history of noncompliance with case plan services and a critical need
for the children to have safety and stability in their lives.
{¶ 20} The trial court also heard testimony from the appointed guardian in the
case. The guardian testified that during the course of his involvement, he conducted an
independent investigation of this matter. The guardian testified that based upon the
lengthy period of time in which the family remained involved with LCCS due to
appellant’s repeat failure to successfully or effectively cooperate with necessary services,
an ongoing and highly unstable housing situation, and appellant’s ongoing failure to
address her own significant mental health issues, the best interest of the children would
be served by granting permanent custody to LCCS.
{¶ 21} On June 16, 2017, the trial court granted LCCS’s motion for permanent
custody of the children. The trial court ruling was exceptionally detailed and thorough.
The trial court found that R.C. 2151.414(B)(1)(a) applies to the instant case given that the
children had not been abandoned or orphaned, but could not or should not be placed with
either parent within a reasonable period of time.
{¶ 22} In conjunction with the above, the trial court further held that R.C.
2151.414(E)(1), (3), (4) and (14) also apply to the instant case given that despite ample
evidence of reasonable efforts by LCCS, appellant had continuously failed to
substantially remedy the conditions which cause the removal of the children, had caused
or allowed the children to suffer neglect and abuse, had demonstrated a lack of
commitment and a failure to provide regular support and visitation, and was not
providing basic necessities to the children or preventing them from suffering harm.
6. {¶ 23} The trial court concluded, “By clear and convincing evidence * * * [T]he
children cannot be placed with either parent within a reasonable period of time and
should not be placed with either parent * * * [I]t is in the minor children’s best interest
that parental rights be permanently terminated.” This appeal ensued.
{¶ 24} In the first proposed assignment of error, it is suggested that the trial court
judgment was against the manifest weight of the evidence. We do not concur.
{¶ 25} It is well-established that a disputed permanent custody judgment will not
be reversed absent demonstration that it was against the manifest weight of the evidence.
In re A.H., 6th Dist. Lucas, L-11-1057, 2011-Ohio-4857, ¶ 11.
{¶ 26} We have carefully reviewed and considered the record of evidence. We
find that the record is replete with compelling evidence demonstrating that, although the
children had not been abandoned or orphaned, they could not be placed with either parent
within a reasonable time and should not be placed with them.
{¶ 27} The record reflects that despite reasonable, ongoing efforts over the course
of many years, appellant repeatedly failed to cooperate in necessary mental health
services set forth in the case plan, repeatedly failed to protect the children from neglect,
abuse, and exposure to physical violence, failed to pay any of the court ordered child-
support for the children, often failed to participate in visitation, repeatedly lacked safe
and stable housing, and repeatedly lacked stable employment. The record reflects that
appellant conceded to these issues in the course of her testimony in this case.
{¶ 28} Wherefore, we find that the trial court’s decision to grant permanent
custody to LCCS was properly supported by clear and convincing evidence. It was not
7. against the manifest weight of the evidence. Appellant’s first proposed assignment of
error is found not well-taken.
{¶ 29} In appellant’s second proposed assignment of error, it is suggested that the
trial court erred in concluding that LCCS made reasonable efforts. We do not concur.
{¶ 30} Contrary to the premise of the second proposed assignment of error, the
record reflects, as set forth in detail in the underlying trial court judgment, that LCCS
engaged in a broad spectrum of reasonable efforts in this matter including, but not limited
to, counseling services for both appellant and the children, mental health and substance
abuse services for the father, coordinated visitation arrangements for both parents
including accommodations for schedule conflicts as requested by the parents, the
provision of services when out-of-state, parenting services for both parents, status
meetings to discuss case plan progress and address any issues to be addressed relevant to
reunification, accommodation with providing a different caseworker to appellant upon
appellant’s representation of being unable to work with the original caseworker, domestic
violence services, the return of the children into the mother’s care to provide another
opportunity for her to enhance skills and complete the case plan services so as to possibly
merit reunification, and housing services in an attempt to stabilize the housing situation.
{¶ 31} The record reflects that despite these long-term, numerous reasonable
efforts by LCCS, appellant repeatedly failed to cooperate in services, visitation, and
failed to demonstrate progress so as to conceivably justify reunification.
{¶ 32} Appellant’s second proposed assignment of error is found not well- taken.
8. {¶ 33} Accordingly, based upon our independent review of the record, we find no
other grounds for a meritorious appeal. This appeal is found to be without merit and is
wholly frivolous. Counsel’s motion to withdraw is found well-taken and is hereby
granted.
{¶ 34} Wherefore, the decision of the Lucas County Court of Common Pleas,
Juvenile Division, is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE
9.