In re J. B.

2012 Ohio 575

• Court: Ohio Court of Appeals
• Decided: February 13, 2012
• Docket: CT2011-0041
• Status: Published

Opinion

[Cite as In the matter of J. B., 2012-Ohio-575.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. Patricia A. Delaney, P.J. J. B. : Hon. Sheila G. Farmer, J. : Hon. Julie A. Edwards, J. : : Case No. CT2011-0041 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 20930059

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 13, 2012

APPEARANCES:

For Appellant For Appellee

BRIAN W. BENBOW MOLLY MARTIN 605 Market Street 22 North Fifth Street Zanesville, OH 43701 Zanesville, OH 43701

Guardian ad Litem

RUTHELLEN QUILLEN WEAVER 542 South Drexel Avenue Columbus, OH 43209 Muskingum County, Case No. CT2011-0041 2

Farmer, J.

{¶1} On October 20, 2009, J. B. born May 19, 2009, was adjudicated a

dependent child. Mother of the child is Anja Brofford; father is appellant, James

Maston. The child's maternal grandmother is Deborah Brofford. On June 14, 2010,

appellee, the Muskingum County Children's Services Board filed a complaint for the

permanent custody of the child. An amended complaint was filed on November 17,

2010.

{¶2} A hearing before a magistrate was held on May 4, 2011. By decision filed

May 17, 2011, the magistrate recommended terminating parental rights and granting

permanent custody to appellee.

{¶3} All parties filed objections. By judgment entry filed August 9, 2011, the

trial court denied the objections and approved and adopted the magistrate's decision.

{¶4} Counsel for appellant has filed a motion to withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing denied (1967), 388 U.S.

924, indicating that the within appeal is wholly frivolous and setting forth one proposed

assignment of error. Appellant did not file a pro se brief alleging any additional

assignments of error.

{¶5} Counsel raises the following proposed assignment of error:

I

{¶6} "THE TRIAL COURT'S JUDGMENT THAT THE MINOR CHILDREN'S

BEST INTEREST WOULD BE SERVED BY GRANTING OF PERMANENT CUSTODY

TO MUSKINGUM COUNTY CHILDREN'S SERVICES WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE." Muskingum County, Case No. CT2011-0041 3

{¶7} The Anders court established five criteria which must be met before a

motion to withdraw by appellate counsel may be granted. The five criteria are: (1) a

showing that appellant's counsel thoroughly reviewed the transcript and record in the

case before determining the appeal to be frivolous; (2) a showing that a motion to

withdraw by appellant's counsel was filed; (3) the existence of a brief by appellant's

counsel raising any potential assignments of error that can be argued on appeal; (4) a

showing that appellant's counsel provided a copy of the brief which was filed to the

appellant; and (5) a showing that appellant's counsel provided appellant adequate

opportunity to file a pro se brief raising any additional assignments of error appellant

believes the court should address. Anders at 744. The Anders court further explained

the following at 744:

{¶8} "[T]he court-not counsel-then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant

counsel's request to withdraw and dismiss the appeal insofar as federal requirements

are concerned, or proceed to a decision on the merits, if state law so requires. On the

other hand, if it finds any of the legal points arguable on their merits (and therefore not

frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue

the appeal."

{¶9} According to an amended proof of service filed January 11, 2012,

Attorney Benbow complied with the procedures set forth in Anders. To date, his client

has not filed a pro se brief. Muskingum County, Case No. CT2011-0041 4

{¶10} We note in In the Matter of Diamond S., Guernsey App. No. 03-CA-24,

2004-Ohio-611, this court extended the principles of Anders to cases involving the

termination of parental rights.

{¶11} We will now address the merits of appellant's proposed assignment of

error.

{¶12} Appellant argues the trial court's decision on best interests is against the

manifest weight and sufficiency of the evidence. Specifically, appellant claims legal

custody of the child should have been granted to the maternal grandmother, Deborah

Brofford, in lieu of permanent custody to appellee. We disagree.

{¶13} A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 1993-Ohio-9.

{¶14} Furthermore, it is well-established " '[t]he discretion which the juvenile

court enjoys in determining whether an order of permanent custody is in the best

interest of a child should be accorded the utmost respect, given the nature of the

proceeding and the impact the court's determination will have on the lives of the parties

concerned.' " In re Mauzy Children (November 13, 2000), Stark App. No.

2000CA00244, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316. Muskingum County, Case No. CT2011-0041 5

{¶15} R.C. 2151.414(B)(1) enables a trial court to grant permanent custody if the

court determines by clear and convincing evidence that it is in the best interest of the

child. "Clear and convincing evidence" is "that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such

certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought

to be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the

syllabus. Said statute states the following:

{¶16} "Except as provided in division (B)(2) of this section, the court may

grant permanent custody of a child to a movant if the court determines at the hearing

held pursuant to division (A) of this section, 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

that filed the motion for permanent custody and that any of the following apply:

{¶17} "(a) The child is not abandoned or orphaned, has not 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,***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.

{¶18} "(b) The child is abandoned.

{¶19} "(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody. Muskingum County, Case No. CT2011-0041 6

{¶20} "(d) 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***."

{¶21} R.C. 2151.414(D)(1) sets out the factors relevant to determining the best

interests of the child. Said section states relevant factors include, but are not limited to,

the following:

{¶22} "(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;

{¶23} "(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;

{¶24} "(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***;

{¶25} "(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;

{¶26} "(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child."

{¶27} In his decision filed May 17, 2011, as approved and adopted by the trial

court, the magistrate found the following in pertinent part: Muskingum County, Case No. CT2011-0041 7

{¶28} "7) The mother now has stable housing, but that is the only part of her

case plan that she has completed. The mother attended some mental health and

substance abuse counseling, including residential treatment; but failed to attend and

successfully complete follow up counseling as recommended, and was jailed on a

probation violation and discharged unsuccessfully from counseling during the pendency

of the case plan. The mother then failed to follow up on an additional intake coordinator

referral. The mother had failed to visit the child consistently, and has not visited this

one year old child at all in 2011.

{¶29} "8) The father attended three separate mental health and substance

abuse counseling assessments, but failed to attend and successfully complete follow up

counseling as recommended, or to maintain stable housing or income, or to keep

Muskingum County Children Services properly informed of his current address during

the pendency of the case plan. While the father initially had some visits with the child,

he later began missing visits and has had no visits with this one year old child since

September 2010.

{¶30} "10) The child cannot be placed with either parent within a reasonable

time or should not be placed with either parent. It is in the child's best interest to

permanently terminate the parental rights of both parents.

{¶31} "11) The child has been in the temporary custody of Muskingum County

Children Services for twelve (12) or more months of a twenty-two month period ending

on the hearing on May 4, 2011. In the twenty-one months that the child has been in the

foster home, the child has become very attached or bonded with the foster parents, who Muskingum County, Case No. CT2011-0041 8

wish to adopt the child. The child is not significantly bonded or attached to either the

mother or the father.***.

{¶32} "12) The Court also received considerable evidence, through a

Muskingum County Children Services Home Assessment filed March 10, 2010,

physician deposition transcripts from Dr. Delphia and Dr. Kelso filed April 28, 2011, and

direct testimony at the May 4, 2011 hearing, as to the suitability or unsuitability of the

maternal grandmother as a possible custodian for the child.

{¶33} "The evidence presented raises serious concerns about the maternal

grandmother's ability to adequately provide proper parental care for this child. The

maternal grandmother's prior children services involvement while the mother was yet a

juvenile herself in 2003 was a result of a direct referral by this Court and this Magistrate

to Muskingum County Children Services due to the maternal grandmother's apparent

inability to care for the mother when a juvenile herself because of the maternal

grandmother's serious health issues at the time.

{¶34} "The maternal grandmother admits to having Hepatitis C and cirrhosis of

the liver since at least 2001, which does appear to be under control at this time; but she

has failed to either fully cooperate with Muskingum County Children Services in

providing her full medical history, or is unable to remember her history.***

{¶35} "Despite having over a year to prepare to respond to the concerns raised

in the Home Assessment filed March 10, 2010, the maternal grandmother failed to

eliminate or significantly offset those concerns in the May 4, 2011 hearing.

{¶36} "13) The child's need for a legally secure permanent placement cannot be

achieved without a grant of permanent custody to Muskingum County Children Muskingum County, Case No. CT2011-0041 9

Services. It is in the child's best interest for Muskingum County Children Services to be

granted permanent custody."

{¶37} James Henceroth, a chemical dependency counselor, testified appellant

"had been assessed. Did not attend and had been unsatisfactorily discharged and then

he scheduled an update assessment, had been reassessed. Came to one session and

had been administratively or unsatisfactorily discharged again." T. at 57. Appellant had

been "diagnosed with cannabis dependency." T. at 67. Appellant essentially "gave up

on the plan." T. at 71.

{¶38} Prior to Mr. Henceroth, Kelly Edgell, another chemical dependency

counselor, was involved with appellant. T. at 88. Mr. Edgell testified appellant did not

complete the program and was discharged. T. at 89-90, 98.

{¶39} Kelsey Coe, the ongoing caseworker, testified she has "not received a

successful completion from either the substance abuse counselor or a mental health

assessment" for appellant as required in the case plan. T. at 145. He has "never,

never reported to me that he was able to find income during the life of this case." T. at

146. Appellant obtained housing in December of 2009 and was evicted in May of 2010.

T. at 141. He resided with his girlfriend for a time until the girlfriend reported that he

was no longer living there. T. at 143. His last known address was his parents' address.

T. at 144. At the time of the hearing on May 4, 2011, appellant had not seen the child

since the end of September, 2010. T. at 148.

{¶40} Appellee has had several involvements with maternal grandmother over

the years, stemming back to when mother was a juvenile to taking care of another of

mother's children, an older sibling to the child sub judice. T. at 8, 18-20, 23, 37-39, 125- Muskingum County, Case No. CT2011-0041 10

128. Ms. Coe testified to being concerned about maternal grandmother's "incurable

medical condition which at times has prevented her from, from parenting." T. at 159.

Her physician, Robert Kirkpatrick, M.D., testified maternal grandmother has cirrhosis of

the liver due to hepatitis C, and her medical condition is currently stable. T. at 202, 207.

Maternal grandmother testified in addition to hepatitis C and cirrhosis of the liver, she

suffers from sleep apnea, restless leg syndrome, and migraine headaches, and takes

Zoloft for anxiety. T. at 291-292, 303. She is fifty-five years old. T. at 320. She feels

she can take care of the child and protect the child from mother should she show up at

the door. T. at 289, 318, 360. A home study for maternal grandmother was completed

and denied. T. at 387, 390-391.

{¶41} The guardian ad litem, Ruthellen Weaver, filed a report on April 28, 2011

and opined the best interests of the child would best be served with granting permanent

custody to appellee.

{¶42} The child is very bonded to the foster family and is very comfortable there.

T. at 155. The foster family wishes to adopt the child. T. at 157-158. The child does

have a bond with the maternal grandmother. T. at 161, 240, 317. The foster family is

willing to have a relationship with the maternal grandmother for visitation. T. at 380-

381. The child was placed into shelter care for more than twelve months. T. at 158.

{¶43} We note appellant's counsel, appellate counsel herein, was diligent in

cross-examination and in making objections.

{¶44} After independently reviewing the record, we agree with counsel's

conclusion that no arguably meritorious claims exist upon which to base an appeal. Muskingum County, Case No. CT2011-0041 11

Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request

to withdraw, and affirm the trial court's judgment.

{¶45} The proposed assignment of error is denied.

{¶46} The judgment of the Court of Common Pleas of Muskingum County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Edwards, J. concur.

s/ Sheila G. Farmer_____________

s/ Patricia A. Delaney___________

s/ Julie A. Edwards______________

JUDGES

SGF/sg 103 [Cite as In the matter of J. B., 2012-Ohio-575.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : J. B. : JUDGMENT ENTRY : : : : CASE NO. CT2011-0041

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, Juvenile Division

is affirmed. Costs to appellant.