In re B.H.

2018 Ohio 1238

• Court: Ohio Court of Appeals
• Decided: March 30, 2018
• Docket: L-17-1126, L-17-1127
• Status: Published

Opinion

[Cite as In re B.H., 2018-Ohio-1238.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re B.H, P.H. Court of Appeals Nos. L-17-1126 L-17-1127

Trial Court No. 16254788 14243780

DECISION AND JUDGMENT

Decided: March 30, 2018

*****

Stephen D. Long, for appellant.

PIETRYKOWSKI, J.

{¶ 1} In this consolidated appeal, appellant-mother, L.D., appeals the judgments of

the Lucas County Court of Common Pleas, Juvenile Division, awarding legal custody of

her minor children, P.H. and B.H., to the paternal grandmother, T.T. For the reasons that

follow, we affirm. I. Filing of Anders Briefs in Cases Involving the Termination of Parental Rights or the Dispositional Award of Legal Custody Following a Finding of Abuse, Dependency, or Neglect

{¶ 2} At the outset, we note that appointed counsel for mother has filed a brief and

requested leave to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967). Previously, in In re K.D., 6th Dist. Sandusky No. S-16-

008, 2017-Ohio-136, ¶ 4, we directed that for all future appeals from a neglect and

dependency dispositional order granting legal custody of a child to a nonparent, a merit

brief must be filed in compliance with App.R. 16; Anders briefs would not be accepted.

We follow that decision today.

{¶ 3} Furthermore, we take this opportunity to expand our prohibition of Anders

briefs to cases involving the termination of parental rights. While we have accepted

Anders briefs in past permanent-custody cases, we find that this change is both consistent

with our local rule, which provides for the filing of “No-Error Briefs” only in criminal

appeals, see 6th Dist.Loc.App.R. 10(G), and is in the best interests of justice. In so

doing, we join in the First District’s reasoning in In re J.M., 1st Dist. Hamilton No. C-

130643, 2013-Ohio-5896, ¶ 11-18, a portion of which follows:

Our holding is in no way meant to discount the magnitude of the

parental rights at stake in a permanent-custody case. Indeed, we recognize

that permanent-custody proceedings implicate a parent’s fundamental due-

process rights and, as such, parents must be afforded substantial procedural

protections. In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d

2. 485, ¶ 14. We find, however, that a parent’s rights would be better

protected where counsel is compelled to search the record and present

arguments for review.

The records in termination proceedings are typically extensive and

highly fact-based. Anders review in a permanent-custody case places an

inordinate burden on the appellate court to scour the voluminous record

searching for error, a task that we are “ill-equipped” to perform without the

“active and meaningful assistance of counsel.” State v. Tsibouris, 1st Dist.

Hamilton Nos. C-120414 and C-120415, 2013-Ohio-3324. It is far more

beneficial to the court and to the client for appellate counsel, who has

necessarily reviewed the record in full, to brief the merits of the case and

set forth arguments for the court’s consideration.

We are confident in the ability of attorneys to craft nonfrivolous

arguments in permanent-custody appeals. Custody determinations are

necessarily fact-specific and, as such, they are almost never entirely one-

sided. It is, therefore, difficult to imagine any appeal challenging the

weight of the evidence or a best-interest determination that would be

deemed frivolous. Id. at ¶ 15-17.

{¶ 4} We find that the reasoning in In re J.M. is as applicable to legal custody

determinations following a finding of abuse, dependency, or neglect, as it is to an award

of permanent custody to a children’s services agency. Therefore, this court will no longer

accept Anders briefs in legal custody or permanent custody cases.

3. {¶ 5} Accordingly, we hereby deny counsel’s motion to withdraw. Nonetheless,

because of the need for swift resolution of child custody matters and the unique

circumstances in this case, we will consider the potential issue raised in counsel’s brief,

as well as the issue raised by mother in her pro se brief, and review the record for plain

error.

II. Facts and Procedural Background

{¶ 6} Lucas County Children Services (“LCCS”) became involved with mother in

October 2014, upon concerns of mother’s substance abuse and domestic violence

between her and M.H., the father of P.H. and B.H. On December 22, 2014, P.H. was

adjudged to be a dependent and neglected child.1 B.H. was not yet born at that time.

LCCS was granted protective supervision of P.H., and case plan services were developed

for mother to do an assessment for mental health and substance abuse issues, and to

receive domestic violence services.2

{¶ 7} While the children were under LCCS’ protective supervision, it became

increasingly difficult for the caseworker to see the children monthly. The caseworker

testified that sometimes the children would be at the home, but mother would not be

present. Other times, no one would be at the home for the scheduled visit. Finally, the

1 Three of P.H.’s older siblings were also adjudged dependent and neglected. Those siblings have a different father than M.H., and are not the subject of this appeal. 2 A case plan was also developed for M.H., which he did not complete. M.H. is not a party to this appeal.

4. caseworker testified that one time she approached the house and one of the children

opened the door to get the mail, saw the caseworker, and shut the door and would not

answer it. In addition, the agency was receiving reports that mother was not staying in

the home during the week and would be gone for several nights at a time, and attempts to

contact mother were unsuccessful because mother would not answer her phone and her

voice mailbox was full.

{¶ 8} As a result of this difficulty, and mother’s continued positive tests for

controlled substances, LCCS moved for temporary custody of the children. On October

27, 2015, LCCS was awarded interim temporary custody of the children, however the

agency was unable to locate the children. Approximately one week later, the children

were found with mother in a hotel in Michigan. P.H. was placed with his paternal

grandmother, T.T. On January 28, 2016, a dispositional hearing was held, at which

temporary custody of P.H. was awarded to LCCS.

{¶ 9} Prior to the children being removed, mother was engaged in substance abuse

and domestic violence services through Lutheran Social Services. Although engaged in

the services, mother continued to test positive for controlled opiates, and was unable to

provide a current prescription. Further, the prescription that mother did provide was

blacked out so that it was difficult to determine where the prescription originated. In

addition, mother became re-involved with M.H., and the police were called on one

occasion for domestic violence where mother was hit in the leg with a tree branch.

5. However, mother testified that the incident for which the police were called was actually

a dispute between her brother and M.H., and that she was inadvertently hit in the leg with

the tree branch.

{¶ 10} After the children were removed, mother did not reengage with services

until a week before B.H. was born in March 2016. At the time of his birth, B.H. and

mother tested positive for cocaine. B.H., who was born in Michigan, was removed from

mother and interim temporary custody was awarded to LCCS. B.H. was placed with his

paternal grandmother, T.T.

{¶ 11} On September 20, 2016, an adjudicatory hearing was held, and B.H. was

found to be dependent, neglected, and abused. The dispositional hearing for B.H. was

scheduled for December 16, 2016.

{¶ 12} The next day, on September 21, 2016, the trial court held a hearing on

LCCS’ motion to transfer legal custody of P.H. to T.T. At the hearing, the caseworker

testified that mother was referred for an assessment at Renewed Minds in July 2016. At

the assessment, mother was asked to complete a drug screen. However, mother did not

complete the drug screen and instead left the building. Mother reported that she started

services with Renewed Minds in August 2016. The caseworker also testified that

communication with mother has been very difficult and that they would schedule

meetings and mother would not come to them. In addition, mother has made numerous

attempts to have the caseworker removed from the case. The caseworker testified that, in

her opinion, mother has not exhibited any change since the beginning of the case; namely

6. that she is still in constant contact with M.H. despite the domestic violence concerns, she

starts services late and does not follow through with them, and she tries to circumvent the

process.

{¶ 13} The caseworker also testified that P.H. is doing very well in T.T.’s care.

He is bonded with T.T., goes to her for anything he needs, and seems very happy. He

also is attending kindergarten and is doing well in school. The caseworker recommended

legal custody of P.H. to T.T., with mother and M.H. to have weekly supervised visits.

{¶ 14} Mother testified next at the hearing. Mother testified that she had concerns

with T.T. being granted legal custody because she does not have a good relationship with

T.T. She also testified that she was concerned because while B.H. was in T.T.’s care, the

child’s car seat was filthy and the child had some buildup around his neck that looked

like it had not been cleaned in weeks. Mother then described how she has difficulty

communicating with the caseworker, and that the caseworker will not return her calls, so

mother has had to contact the caseworker’s supervisors to make any progress.

{¶ 15} Regarding her compliance with the recommended services, mother testified

that she was doing domestic violence and drug abuse services through Lutheran Social

Services. She is now doing her drug services through Renewed Mind at the request of

LCCS. Mother explained that when she left Renewed Mind without completing the drug

screen, she was frustrated because she had been there for a couple of hours and had just

learned that she would not be able to do both the drug services and the domestic violence

services there, despite being told that she could by the caseworker. Mother testified that

7. she is now doing well in the services and has not been using any controlled substances.

Mother anticipates that she will complete her services within the next three months.

Mother testified that she is asking the court for a 90-day extension to complete her

services.

{¶ 16} Following the cross-examination of mother, the hearing was continued to

December 16, 2016. At the continued hearing, mother was recalled to testify regarding

her pending motion for the maternal grandmother, S.D., to be awarded legal custody.

Mother testified that S.D. is well-bonded with the children, and she has always been there

as mother’s support, such as taking the children to medical appointments or bringing

them food. Mother also explained that there is poor communication with T.T., and that

T.T. does not facilitate a relationship between P.H. and B.H. and mother’s other children.

{¶ 17} On cross-examination of mother, it was revealed that mother tested positive

for cocaine four times in the months of October and November 2016. Mother admitted

that S.D. did not know that she had tested positive.

{¶ 18} Finally, the guardian ad litem gave her opinion that it was in the best

interest of P.H. to be placed with T.T. The trial court agreed and ordered that legal

custody of P.H. be granted to T.T., with the parents to have three hours weekly of

supervised visitation.

{¶ 19} Immediately after the continued hearing for P.H., the trial court conducted

a dispositional hearing for B.H. Much of the testimony echoed what was previously said

in P.H.’s hearing, including that mother has been engaged in services off and on for

8. almost two years, yet continues to use controlled substances, even testing positive for

cocaine four times in the past two months. Further, the caseworker and mother testified

that there was difficulty in communication, with the caseworker stating that mother

would not answer her phone or her voicemail would be full or not set up, and mother

testifying that no one from the agency ever returned her calls despite her having several

working numbers. The caseworker also testified that B.H. is doing well in his placement

with T.T., and that the child is bonded to T.T. The caseworker expressed no concerns

about the ability of B.H. to interact with and develop a relationship with his brothers and

sisters, noting that T.T. would support visitations between the siblings.

{¶ 20} The last person to testify at B.H.’s dispositional hearing was S.D. S.D.

testified that she is well-bonded with B.H. She explained that her plan would be to move

into mother’s house to raise the children, and mother would move into S.D.’s house until

mother completed her domestic violence and substance abuse services. S.D. testified that

she has been married to her husband for 30 years, that he is retired from General Motors,

that their house is paid for, and that they are in good standing. Finally, she testified that

she would comply with any court orders to allow mother or M.H. to visit the children.

{¶ 21} On cross-examination, S.D. testified that she does not trust LCCS, and that

she would need everything in writing before she would comply with any requests. She

also testified that she believes mother is a good mother, and she does not have any

concerns with the children being in mother’s care even while mother was using cocaine.

9. {¶ 22} As the last part of the hearing, the guardian ad litem recommended that

legal custody of B.H. be awarded to T.T. Thereafter, the trial court awarded legal

custody of B.H. to T.T., with the parents to have three hours of weekly supervised

visitation.

{¶ 23} Following the hearings, the magistrate issued findings of fact and

conclusions of law in each case, in which he found that mother has not completed her

case plan services and has not shown any willingness or desire to address the issues that

caused the children to be removed. The magistrate also found that mother has tested

positive for controlled substances on several occasions, and has recently tested positive

for cocaine. Further, the magistrate found that mother has demonstrated a total disregard

for court orders throughout the life of the case, having been found to be in contempt

twice. Finally, the magistrate found that both children were doing well in their placement

with T.T., and that such placement is in the best interest of the children.

{¶ 24} Mother filed objections to the magistrate’s decision, arguing that LCCS has

not made reasonable efforts to reunify the children in that the caseworker has not given

the appropriate attention to mother. In addition, mother argued that she is making

progress towards completion of her case plan services, having completed substance

abuse, domestic violence, and mental health services through Lutheran Social Services.

Finally, mother argued that placement of the children with T.T. was not in their best

interest, and that they should have been placed with S.D., who would have provided a

closer familial bond.

10. {¶ 25} On April 18, 2017, the trial court entered its judgments overruling mother’s

objections in both cases. Mother has timely appealed from the April 18, 2017 judgments.

III. Assignments of Error

{¶ 26} In his Anders brief, counsel has assigned the following potential error for

our review:

I. The trial court abused its discretion in overruling mother’s

objections to magistrate’s decisions in JC 14243780 and JC 16254788

awarding legal custody of PH and BH, respectively, to their paternal

grandmother.

{¶ 27} Mother has also filed a pro se brief, proposing as an assignment of error:

Potential assignment of error within the trial Court abusive, bias

behavior destroying a Mother family irrespectively without reason and

fairness to mother wishes [sic].

IV. Analysis

{¶ 28} We review a trial court’s judgment adopting a magistrate’s decision to

award legal custody of a minor child to a relative or other interested person for an abuse

of discretion. In re K.V., 6th Dist. Lucas No. L-11-1087, 2012-Ohio-190, ¶ 19. An abuse

of discretion suggests that the trial court’s attitude was arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶ 29} “Where a child has been adjudicated dependent, a trial court may award

legal custody to a nonparent where it finds, by a preponderance of the evidence, that legal

11. custody is in the child’s best interests.” In re A.D., 6th Dist. Erie Nos. E-16-059, E-16-

060, E-16-061, 2017-Ohio-6913, ¶ 31. “In making such a determination, ‘courts have

looked to the best interest factors of R.C. 2151.414(D), R.C. 3109.04(F)(1), a

combination of the two, or general notions of what should be considered regarding the

best interests of the [child].” Id. at ¶ 32, quoting In re A.K., 9th Dist. Summit No. 26291,

2012-Ohio-4430, ¶ 25.

{¶ 30} Here, we find that the trial court’s decision was supported by the evidence.

The testimony revealed that at the time of the hearing, mother continued to suffer from a

substance abuse problem that caused B.H. to be born positive for cocaine, and caused

mother to test positive numerous times throughout the case. Moreover, mother has

demonstrated a pattern of not complying with orders of the court, of not maintaining

contact with LCCS, and of attempting to circumvent LCCS by taking the children to

Michigan.

{¶ 31} Further, the testimony supports the trial court’s conclusion that an award of

legal custody of the children to T.T. is in the children’s best interest as they are well-

bonded to her, their needs are being met, and they are thriving in her care. Notably,

mother alleges in her pro se brief that T.T.’s son, M.H., is a drug dealer, convicted felon,

and marijuana smoker. However, the record does not indicate that M.H., once he is

released from prison, will have contact with the children beyond the court-ordered

supervised visitation. Therefore, we hold that the trial court’s decision is not an abuse of

discretion.

12. {¶ 32} Accordingly, counsel’s proposed assignment of error and mother’s pro se

assignment of error are not well-taken.

{¶ 33} In addition, we have conducted an independent review of the record, and

have found no plain errors that would justify a reversal of the judgments.

V. Conclusion

{¶ 34} For the foregoing reasons, the judgments of the Lucas County Court of

Common Pleas, Juvenile Division are affirmed. Mother is ordered to pay the costs of this

appeal pursuant to App.R. 24.

{¶ 35} 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.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE

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