[Cite as In re B.H., 2015-Ohio-5495.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re B.H. Court of Appeals No. L-15-1166
Trial Court No. JC 13231678
DECISION AND JUDGMENT
Decided: December 30, 2015
*****
Stephen D. Long, for appellant.
Shelby J. Cully, for appellee.
OSOWIK, J.
{¶ 1} This is an appeal brought by appellant, mother of B.H., from the judgment of
the Lucas County Court of Common Pleas, Juvenile Division, which awarded permanent
custody of B.H. to Lucas County Children Services, hereinafter referred to as “LCCS” for
adoptive placement and planning and further terminating all parental rights. {¶ 2} Appointed counsel has filed a brief and requested leave to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). Under Anders, if, after a conscientious examination of the case, counsel
concludes the appeal to be wholly frivolous, he should so advise the court and request
permission to withdraw. Id. at 744. This request must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. In addition,
counsel must provide appellant with a copy of the brief and request to withdraw, and
allow appellant sufficient time to raise any additional matters. Id. Once these
requirements are satisfied, the appellate court is required to conduct an independent
examination of the proceedings below to determine if the appeal is indeed frivolous. Id.
If it so finds, the appellate court may grant counsel’s request to withdraw, and decide the
appeal without violating any constitutional requirements. Id.
{¶ 3} In this case, counsel for appellant has satisfied the requirements set forth in
Anders, supra. This court further notes that appellant did not file a pro se brief on her
own behalf in this appeal. Appellee also filed a responsive brief.
{¶ 4} Accordingly, this court shall proceed with an examination of the potential
assignments of error set forth by counsel. We have reviewed and considered the entire
record from below, including the transcript of proceedings, the journal entries and
original papers from the Lucas County Court of Common Pleas, as well as the briefs filed
by counsel. Upon this review, we will determine if this appeal lacks merit and is,
therefore, wholly frivolous.
2. {¶ 5} Although Anders is normally reserved for appointed counsel in criminal
matters, we have held that it is also applicable for counsel appointed in termination of
parental rights cases. Morris v. Lucas Cty. Children Servs. Bd., 49 Ohio App.3d 86, 87,
550 N.E.2d 980 (6th Dist.1989).
{¶ 6} Counsel refers to several possible, but ultimately untenable, issues: (1) the
trial court erred in granting appellee Lucas County Children Services Board’s motion for
permanent custody as the decision was against the manifest weight of the evidence; and
(2) appellant was denied effective assistance of counsel.
{¶ 7} A determination by a trial court in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence. In re A.H.,
6th Dist. No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th Dist. Nos.
03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. We recognize that, as the trier of fact,
the trial court is in the best position to weigh the evidence and evaluate the testimony.
Id., citing In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Thus,
“[j]udgments supported by some competent, credible evidence going to all the essential
elements of the case will not be reversed by a reviewing court as being against the
manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d
279, 376 N.E.2d 578 (1978), syllabus.
{¶ 8} The essential question that we must resolve when reviewing a permanent
custody decision under the manifest weight of the evidence standard is “whether the
juvenile court’s findings * * * were supported by clear and convincing evidence.” In re
3. K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. “Clear and
convincing evidence” is “[t]he measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-
104, 495 N.E.2d 23 (1986). In determining whether a trial court based its decision upon
clear and convincing evidence, “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.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). Accord In re
Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), citing Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954).
{¶ 9} In this instance, the court found that B.H. was removed from the care of her
parents since birth as she had tested positive for opiates at birth. Mother appellant had
two other children not in her care and in the legal custody of relatives.
{¶ 10} LCCS had a caseworker assigned to appellant since April 2013. The
caseworker implemented a case plan to provide services to the family in an attempt to
reunify B.H. with a parent. The case plan services included a dual diagnostic assessment,
mental health treatment, substance abuse treatment and domestic violence services for
appellant; Help Me Grow services for B.H., and paternity testing for the putative father,
as well as case management of the family.
4. {¶ 11} The putative father failed to appear for the DNA testing. He has not made
any attempt to visit with B.H. and no other man has come forward to claim paternity.
Therefore, B.H.’s biological father remains unknown.
{¶ 12} Appellant was diagnosed with anxiety and depression and engaged in
counseling services and prescribed medication. The caseworker testified that appellant
ran out of her medication in September 2014, and stopped attending counseling in
October 2014.
{¶ 13} Appellant also was referred and engaged in domestic violence victim
services with Project Genesis from July 2013 until July 2014. She did not advance to
Phase II and stopped attending services and was unsuccessfully discharged.
{¶ 14} Appellant also engaged in substance abuse services at SASI, including
methadone treatment. Although she completed her IOP and began aftercare in August
2014, she tested positive for alcohol and subsequently missed methadone treatments. The
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[Cite as In re B.H., 2015-Ohio-5495.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re B.H. Court of Appeals No. L-15-1166
Trial Court No. JC 13231678
DECISION AND JUDGMENT
Decided: December 30, 2015
*****
Stephen D. Long, for appellant.
Shelby J. Cully, for appellee.
OSOWIK, J.
{¶ 1} This is an appeal brought by appellant, mother of B.H., from the judgment of
the Lucas County Court of Common Pleas, Juvenile Division, which awarded permanent
custody of B.H. to Lucas County Children Services, hereinafter referred to as “LCCS” for
adoptive placement and planning and further terminating all parental rights. {¶ 2} Appointed counsel has filed a brief and requested leave to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). Under Anders, if, after a conscientious examination of the case, counsel
concludes the appeal to be wholly frivolous, he should so advise the court and request
permission to withdraw. Id. at 744. This request must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. In addition,
counsel must provide appellant with a copy of the brief and request to withdraw, and
allow appellant sufficient time to raise any additional matters. Id. Once these
requirements are satisfied, the appellate court is required to conduct an independent
examination of the proceedings below to determine if the appeal is indeed frivolous. Id.
If it so finds, the appellate court may grant counsel’s request to withdraw, and decide the
appeal without violating any constitutional requirements. Id.
{¶ 3} In this case, counsel for appellant has satisfied the requirements set forth in
Anders, supra. This court further notes that appellant did not file a pro se brief on her
own behalf in this appeal. Appellee also filed a responsive brief.
{¶ 4} Accordingly, this court shall proceed with an examination of the potential
assignments of error set forth by counsel. We have reviewed and considered the entire
record from below, including the transcript of proceedings, the journal entries and
original papers from the Lucas County Court of Common Pleas, as well as the briefs filed
by counsel. Upon this review, we will determine if this appeal lacks merit and is,
therefore, wholly frivolous.
2. {¶ 5} Although Anders is normally reserved for appointed counsel in criminal
matters, we have held that it is also applicable for counsel appointed in termination of
parental rights cases. Morris v. Lucas Cty. Children Servs. Bd., 49 Ohio App.3d 86, 87,
550 N.E.2d 980 (6th Dist.1989).
{¶ 6} Counsel refers to several possible, but ultimately untenable, issues: (1) the
trial court erred in granting appellee Lucas County Children Services Board’s motion for
permanent custody as the decision was against the manifest weight of the evidence; and
(2) appellant was denied effective assistance of counsel.
{¶ 7} A determination by a trial court in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence. In re A.H.,
6th Dist. No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th Dist. Nos.
03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. We recognize that, as the trier of fact,
the trial court is in the best position to weigh the evidence and evaluate the testimony.
Id., citing In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Thus,
“[j]udgments supported by some competent, credible evidence going to all the essential
elements of the case will not be reversed by a reviewing court as being against the
manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d
279, 376 N.E.2d 578 (1978), syllabus.
{¶ 8} The essential question that we must resolve when reviewing a permanent
custody decision under the manifest weight of the evidence standard is “whether the
juvenile court’s findings * * * were supported by clear and convincing evidence.” In re
3. K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. “Clear and
convincing evidence” is “[t]he measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-
104, 495 N.E.2d 23 (1986). In determining whether a trial court based its decision upon
clear and convincing evidence, “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.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). Accord In re
Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), citing Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954).
{¶ 9} In this instance, the court found that B.H. was removed from the care of her
parents since birth as she had tested positive for opiates at birth. Mother appellant had
two other children not in her care and in the legal custody of relatives.
{¶ 10} LCCS had a caseworker assigned to appellant since April 2013. The
caseworker implemented a case plan to provide services to the family in an attempt to
reunify B.H. with a parent. The case plan services included a dual diagnostic assessment,
mental health treatment, substance abuse treatment and domestic violence services for
appellant; Help Me Grow services for B.H., and paternity testing for the putative father,
as well as case management of the family.
4. {¶ 11} The putative father failed to appear for the DNA testing. He has not made
any attempt to visit with B.H. and no other man has come forward to claim paternity.
Therefore, B.H.’s biological father remains unknown.
{¶ 12} Appellant was diagnosed with anxiety and depression and engaged in
counseling services and prescribed medication. The caseworker testified that appellant
ran out of her medication in September 2014, and stopped attending counseling in
October 2014.
{¶ 13} Appellant also was referred and engaged in domestic violence victim
services with Project Genesis from July 2013 until July 2014. She did not advance to
Phase II and stopped attending services and was unsuccessfully discharged.
{¶ 14} Appellant also engaged in substance abuse services at SASI, including
methadone treatment. Although she completed her IOP and began aftercare in August
2014, she tested positive for alcohol and subsequently missed methadone treatments. The
testimony further established that appellant had obtained housing and regularly visited
with B.H. However, there was an instance where she failed to return the child at a pre-
arranged time. Her visits were then supervised. She failed to appear at two visits and
failed to communicate with the LCCS caseworker.
{¶ 15} LCCS made a permanent plan for placement of B.H. Appellant failed to
appear for the permanency planning conference in December 2014. Appellant then
reappeared at the permanent custody pretrial on March 5, 2015. She explained that she
5. was residing with a cousin and withdrawing from methadone for one month but could not
account for her whereabouts for the remaining four months.
{¶ 16} Appellant was referred for mental health services at Unison but missed her
intake appointment on April 20, 2015. She had lost her housing. She did not visit with
B.H. from October 28, 2014 until March 2015.
{¶ 17} The court further found that B.H. has been in her foster home since birth
and the foster parents have expressed a willingness to adopt B.H. No relatives who are
willing or appropriate have been identified for placement or custody of B.H.
{¶ 18} In considering the best interest of the child, R.C. 2151.4141(D)(1) provides
that the court shall consider all relevant factors, including, but not limited to the
following:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home providers, and
any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the maturity of
the child;
(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or the child has been in the
6. temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 19} The court found that it is in the best interest of the child to award
permanent custody to the LCCS. That determination was based upon a finding that the
evidence and testimony established that the child had been with the caregiver since birth
and it was a stable placement. Further, the court found that the child and caregiver have
bonded. The parents cannot meet the needs of the child for a legally secure permanent
placement because mother’s (appellant herein) chemical dependency is so severe that she
cannot focus on the needs of the child. No other relative has filed for legal custody. Our
independent review demonstrates that this finding has been established by clear and
convincing evidence.
{¶ 20} After reviewing the evidence, we conclude that the decision of the trial
court on the award of permanent custody to LCCS was not against the manifest weight of
7. the evidence, and was supported by clear and convincing evidence. Appellant’s first
proposed assignment of error is found not well-taken.
{¶ 21} Appellant proposes a second assignment of error that she was denied
effective assistance of counsel.
{¶ 22} The right to counsel, guaranteed in these proceedings by R.C. 2151.352 and
Juv.R. 4, includes the right to the effective assistance of counsel. McMann v.
Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Jones v. Lucas Cty.
Children Serv. Bd., 46 Ohio App.3d 85, 546 N.E.2d 471 (1988). Where the proceeding
contemplates the loss of parents’ “essential” and “basic” civil rights to raise their
children, In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the test for ineffective
assistance of counsel used in criminal cases is equally applicable to actions seeking to
force the permanent, involuntary termination of parental custody. Jones v. Lucas Cty.
Children Serv. Bd., 46 Ohio App.3d 86, 546 N.E.2d 473 (6th Dist.1988).
{¶ 23} To prevail on a claim of ineffective assistance of counsel, appellant must
show that her counsel’s performance was deficient and that the deficient performance so
prejudiced her as to deny her a proceeding whose result was reliable and fundamentally
fair. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993);
Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We have found appellant’s first proposed assignment of error not well-taken. Further,
appellant has failed to satisfy her burden in proving that her trial counsel’s performance
8. was deficient but for those reasons set forth in her proposed first assignment of error.
After reviewing all the proceedings in the trial court, we hold that the record does not
demonstrate any deprivation of a substantial or procedural right which rendered the trial
fundamentally unfair. Lockhart at 372. The second proposed assignment of error is
found not well-taken.
{¶ 24} We have accordingly conducted an independent examination of the record
pursuant to Anders v. California and have further considered appellant’s proposed
assignments of error. Appellate counsel’s motion to withdraw is granted, and this appeal
is found to be without merit and wholly frivolous.
{¶ 25} Judgment of the Lucas County Court of Common Pleas, Juvenile Division,
is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
The clerk is ordered to serve all parties with notice of this decision.
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.
9. In re B.H. C.A. No. L-15-1166
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
10.