[Cite as In re Kai.F., 2015-Ohio-4208.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re Kai.F. Court of Appeals No. L-15-1119
Trial Court No. JC 13234958
DECISION AND JUDGMENT
Decided: October 6, 2015
*****
James J. Popil, for appellant.
Angela Y. Russell, for appellee.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, Juvenile Division, that terminated the parental rights of appellant mother, K.F., and
granted permanent custody to appellee Lucas County Children Services (“agency” or
“LCCS”). For the reasons that follow, the judgment of the trial court is affirmed. {¶ 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 finds 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 of the appeal is indeed frivolous; 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, appellant’s appointed counsel has satisfied the requirements set
forth in Anders, supra. This court further notes that appellant did not file a pro se brief in
this appeal.
{¶ 4} Accordingly, this court shall proceed with an examination of the potential
assignment of error set forth by counsel. We have reviewed and considered the entire
record from below, including the transcript of all proceedings and journal entries and
original papers from the trial court, as well as the brief filed by counsel. Upon this
review, we will determine if this appeal lacks merit and is, therefore, wholly frivolous.
2. {¶ 5} The record reflects that Kai.F., biological child of appellant, was born in
August 2013. At the time of the birth, both mother and child tested positive for cocaine
and marijuana.
{¶ 6} On September 4, 2013, LCCS filed a complaint in dependency, neglect and
abuse. An emergency shelter care hearing was held that same day and the agency was
granted interim temporary custody of Kai.F. On October 15, 2013, the agency filed an
amended complaint with a request for permanent custody of Kai.F. On January 15, 2014,
LCCS withdrew the amended complaint filed October 15, 2013, and proceeded on the
original complaint filed September 4, 2013, with a goal of reunification. Mother
stipulated to the facts of the complaint and to a finding of dependency, neglect and abuse
and to an award of temporary custody of the agency. Case plan services put in place
included a diagnostic assessment, referral to Unison, completion of an intensive
outpatient substance abuse program, resolution of criminal matters related to outstanding
warrants in Michigan, parenting classes and securing suitable housing.
{¶ 7} On June 25, 2014, the agency again filed a motion for permanent custody.
The matter proceeded to a final hearing on November 14, 2014, and March 17, 2015. By
journal entry filed April 7, 2015, the trial court granted permanent custody of Kai.F. to
LCCS. In its judgment entry, the trial court found, pursuant to R.C. 2151.414(B)(1)(a)
and 2151.414(E)(1), (2), and (11), and by clear and convincing evidence, that Kai.F.
3. could not and should not be placed with either parent within a reasonable time and that,
pursuant to R.C. 2151.414(D), an award of permanent custody to LCCS was in the
child’s best interest. It is from that judgment that mother appeals.
{¶ 8} Appellant’s counsel sets forth the following potential assignment of error:
The trial court erred in granting appellee Lucas County Children Services
permanent custody as the decision was against the manifest weight of the
evidence.
{¶ 9} In granting a motion for permanent custody, the trial court must find that one
or more of the conditions listed in R.C. 2151.414(E) exist as to each of the child’s
parents. If, after considering all relevant evidence, the court determines by clear and
convincing evidence that one or more of the conditions exists, 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. R.C. 2151.414(B)(1). Further, pursuant to R.C.
2151.414(D), a juvenile court must consider the best interest of the child by examining
factors relevant to the case including, but not limited to, those set forth in paragraphs 1-5
of subsection (D). Only if these findings are supported by clear and convincing evidence
can a juvenile court terminate the rights of a natural parent and award permanent custody
of a child to a children services agency. In re William S., 75 Ohio St.3d 95, 661 N.E.2d
738 (1996). Clear and convincing evidence is that which is sufficient to produce in the
4. mind of the trier of fact a firm belief or conviction as to the facts sought to be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶ 10} The record in this case reflects that the trial court heard extensive testimony
from several witnesses on behalf of the agency. Mother also testified on her own behalf.
{¶ 11} Scott Bieniek, a therapist with Unison, testified he worked with mother
when she attended group therapy in the intensive outpatient program beginning
November 2013. Mother indicated to Bieniek that her drugs of choice were cannabis and
cocaine. He became mother’s primary therapist in March 2014, at which time he
attempted to get mother into aftercare treatment. Mother never fully engaged in that level
of care and eventually dropped out of aftercare. Mother told Bieniek that she failed to
comply because she had gone to Michigan, where she experienced some legal issues
which included incarceration, and developed some medical issues which resulted in
hospital stays. Bieniek requested verification of those events and mother eventually
showed him papers which documented only one or two days of activity in Michigan
during the prior six weeks. He never received full verification for the situations mother
reported. At that time, mother was returned to the intensive outpatient program but was
removed “quite shortly” because she was causing problems within the group. In June
2014, one of mother’s urine screens tested positive for cocaine; on three other occasions
in May and July, she refused to provide a urine sample. Mother never completed the
substance abuse program and was discharged for non-compliance in July 2014.
5. {¶ 12} Donita McGuire, a drug and alcohol counselor, testified that she admitted
mother into the IOP program in October 2013 and was currently mother’s primary
therapist. Mother completed IOP and moved into aftercare in November 2013.
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[Cite as In re Kai.F., 2015-Ohio-4208.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re Kai.F. Court of Appeals No. L-15-1119
Trial Court No. JC 13234958
DECISION AND JUDGMENT
Decided: October 6, 2015
*****
James J. Popil, for appellant.
Angela Y. Russell, for appellee.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, Juvenile Division, that terminated the parental rights of appellant mother, K.F., and
granted permanent custody to appellee Lucas County Children Services (“agency” or
“LCCS”). For the reasons that follow, the judgment of the trial court is affirmed. {¶ 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 finds 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 of the appeal is indeed frivolous; 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, appellant’s appointed counsel has satisfied the requirements set
forth in Anders, supra. This court further notes that appellant did not file a pro se brief in
this appeal.
{¶ 4} Accordingly, this court shall proceed with an examination of the potential
assignment of error set forth by counsel. We have reviewed and considered the entire
record from below, including the transcript of all proceedings and journal entries and
original papers from the trial court, as well as the brief filed by counsel. Upon this
review, we will determine if this appeal lacks merit and is, therefore, wholly frivolous.
2. {¶ 5} The record reflects that Kai.F., biological child of appellant, was born in
August 2013. At the time of the birth, both mother and child tested positive for cocaine
and marijuana.
{¶ 6} On September 4, 2013, LCCS filed a complaint in dependency, neglect and
abuse. An emergency shelter care hearing was held that same day and the agency was
granted interim temporary custody of Kai.F. On October 15, 2013, the agency filed an
amended complaint with a request for permanent custody of Kai.F. On January 15, 2014,
LCCS withdrew the amended complaint filed October 15, 2013, and proceeded on the
original complaint filed September 4, 2013, with a goal of reunification. Mother
stipulated to the facts of the complaint and to a finding of dependency, neglect and abuse
and to an award of temporary custody of the agency. Case plan services put in place
included a diagnostic assessment, referral to Unison, completion of an intensive
outpatient substance abuse program, resolution of criminal matters related to outstanding
warrants in Michigan, parenting classes and securing suitable housing.
{¶ 7} On June 25, 2014, the agency again filed a motion for permanent custody.
The matter proceeded to a final hearing on November 14, 2014, and March 17, 2015. By
journal entry filed April 7, 2015, the trial court granted permanent custody of Kai.F. to
LCCS. In its judgment entry, the trial court found, pursuant to R.C. 2151.414(B)(1)(a)
and 2151.414(E)(1), (2), and (11), and by clear and convincing evidence, that Kai.F.
3. could not and should not be placed with either parent within a reasonable time and that,
pursuant to R.C. 2151.414(D), an award of permanent custody to LCCS was in the
child’s best interest. It is from that judgment that mother appeals.
{¶ 8} Appellant’s counsel sets forth the following potential assignment of error:
The trial court erred in granting appellee Lucas County Children Services
permanent custody as the decision was against the manifest weight of the
evidence.
{¶ 9} In granting a motion for permanent custody, the trial court must find that one
or more of the conditions listed in R.C. 2151.414(E) exist as to each of the child’s
parents. If, after considering all relevant evidence, the court determines by clear and
convincing evidence that one or more of the conditions exists, 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. R.C. 2151.414(B)(1). Further, pursuant to R.C.
2151.414(D), a juvenile court must consider the best interest of the child by examining
factors relevant to the case including, but not limited to, those set forth in paragraphs 1-5
of subsection (D). Only if these findings are supported by clear and convincing evidence
can a juvenile court terminate the rights of a natural parent and award permanent custody
of a child to a children services agency. In re William S., 75 Ohio St.3d 95, 661 N.E.2d
738 (1996). Clear and convincing evidence is that which is sufficient to produce in the
4. mind of the trier of fact a firm belief or conviction as to the facts sought to be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶ 10} The record in this case reflects that the trial court heard extensive testimony
from several witnesses on behalf of the agency. Mother also testified on her own behalf.
{¶ 11} Scott Bieniek, a therapist with Unison, testified he worked with mother
when she attended group therapy in the intensive outpatient program beginning
November 2013. Mother indicated to Bieniek that her drugs of choice were cannabis and
cocaine. He became mother’s primary therapist in March 2014, at which time he
attempted to get mother into aftercare treatment. Mother never fully engaged in that level
of care and eventually dropped out of aftercare. Mother told Bieniek that she failed to
comply because she had gone to Michigan, where she experienced some legal issues
which included incarceration, and developed some medical issues which resulted in
hospital stays. Bieniek requested verification of those events and mother eventually
showed him papers which documented only one or two days of activity in Michigan
during the prior six weeks. He never received full verification for the situations mother
reported. At that time, mother was returned to the intensive outpatient program but was
removed “quite shortly” because she was causing problems within the group. In June
2014, one of mother’s urine screens tested positive for cocaine; on three other occasions
in May and July, she refused to provide a urine sample. Mother never completed the
substance abuse program and was discharged for non-compliance in July 2014.
5. {¶ 12} Donita McGuire, a drug and alcohol counselor, testified that she admitted
mother into the IOP program in October 2013 and was currently mother’s primary
therapist. Mother completed IOP and moved into aftercare in November 2013. She
attended aftercare and appeared to be doing well until she started missing sessions in the
end of January 2014. McGuire stated that mother never fully engaged, which is why she
was referred back to IOP for a three-week session in June 2014 after a positive drug
screen for cocaine. Mother did not complete the IOP session, which led to her being
discharged from Unison in July 2014. McGuire re-admitted mother in August 2014 and
referred her back to IOP for at least three more weeks in order to verify that she was
sober. Mother was again noncompliant, only meeting with her therapist one time before
getting into an argument and being reassigned to McGuire. Initially, mother did well
with McGuire, but she became noncompliant at the end of September 2014. Mother
missed group and individual sessions in August, September and November and McGuire
was not able to reach her for one or two weeks at a time. Mother tested positive for
cocaine in September 2014. Mother told McGuire that she does not use cocaine and that
when she tested positive it was because she was making the cocaine and selling it.
{¶ 13} Christina DeSilvis, mother’s ongoing caseworker, testified as to the
agency’s involvement in this case. The agency received a referral in August 2013 after
mother came to Toledo and gave birth to Kai.F. Both mother and baby tested positive for
marijuana and cocaine. The agency removed Kai.F. due to concerns of substance abuse
6. and mother’s history with child protective services in Michigan. DeSilvis further
testified as to her understanding that mother still had an active warrant in Wayne County,
Michigan. She stated that mother has a total of seven biological children and that her
parental rights as to four of them were terminated by the state of Michigan in 2012. One
other child was in the legal custody of a relative and two others, Kai.F. and a newborn,
were in the temporary custody of LCCS at the time of the final day of this hearing on
March 17, 2015.
{¶ 14} DeSilvis noted that mother’s seventh child, born in November 2014, also
tested positive at birth for cocaine and marijuana. Mother re-entered the Unison program
several days after the baby’s birth. She was eventually referred to a trauma group based
on her disclosure of trauma and abuse as a child but she only attended one session and
was discharged from that group in January 2015. At the time of the hearing, she was
enrolled in aftercare but was having problems with attendance and compliance with urine
screens. It was the caseworker’s understanding that mother had an outstanding warrant in
Wayne County, Michigan, at the time of the final hearing. DeSilvis explained that
mother was never referred to a parenting class due to her failure to complete substance
abuse treatment, which must occur first. DeSilvis also testified that mother had reported
some domestic violence in her relationship with a boyfriend. Mother was initially
consistent with weekly visitation with Kai.F. in 2013 and early 2014. Her visitations
became very inconsistent from April through July 2014 and then improved in August.
7. DeSilvis testified that mother had her own apartment from November 2013 through
February 2015, when she was evicted. When DeSilvis asked mother for her new address,
mother was vague and asked her to send correspondence to the old address. At the time
of the hearing, DeSilvis did not know where mother was residing.
{¶ 15} DeSilvis eventually located the individual mother identified as the alleged
father, but he stated he could not be the father because he had not seen mother since
2012. Mother identified one other individual as a possible father; he attended one
staffing at the agency but refused to provide any personal or contact information. Mother
did not identify any other alleged father for Kai.F.
{¶ 16} DeSilvis testified that Kai.F. was currently in foster care and that his needs
were being met. Based on mother’s inability to maintain sobriety for a significant period
of time or make other necessary progress, the agency’s goal at the time of the hearing
was permanent custody for adoption.
{¶ 17} DeSilvis testified that mother’s compliance with substance abuse treatment
has been very inconsistent and said she had received reports as recently as two weeks
before the hearing that mother was refusing drug screens.
{¶ 18} Mother testified that she had attended parenting classes on her own through
Toledo Ministry and that she attended seven trauma group sessions. She further testified
that she had been prescribed Zoloft following a diagnosis of severe depression and
Oxycodone for pain resulting from an automobile accident. She was about to begin
8. employment at a local store and stated she had not told her prospective employer about
her outstanding warrant in Michigan on a charge of retail fraud.
{¶ 19} Lastly, the child’s guardian ad litem testified as to her recommendation that
permanent custody be granted to LCCS.
{¶ 20} By judgment entry filed April 7, 2015, the trial court found, pursuant to
R.C. 2151.414(B)(1)(a) and R.C. 2151.414(E)(1), (2) and (11), by clear and convincing
evidence, that Kai.F. is not abandoned or orphaned and cannot and should not be placed
with either parent within a reasonable period of time.
{¶ 21} Pursuant to R.C. 2151.414(E)(1), the trial court found that mother has
failed continuously and repeatedly to substantially remedy the conditions causing Kai.F.
to be placed outside the home. The court further found: Kai.F. tested positive for
cocaine and marijuana at birth; mother failed to successfully complete the required
aftercare program for substance abuse; mother repeatedly refused to comply with drug
screen requests; mother tested positive for cocaine and marijuana at various times during
this case; mother has a long history of substance abuse, and could not be referred to
parenting services due to the lack of progress in substance abuse services.
{¶ 22} As to R.C. 2151.414(E)(2), the trial court found that mother has a chronic
emotional illness so severe that it makes her unable to provide an adequate permanent
home for Kai.F. at the present time and, as anticipated, within one year after the hearing.
Additionally, pursuant to R.C. 2151.414(E)(10), the trial court found that Kai.F. has been
abandoned by the father and that no person has come forward to establish paternity.
9. {¶ 23} The trial court found, pursuant to R.C. 2151.414(E )(11), that mother has
had her parental rights involuntarily terminated with respect to siblings of Kai.F. and that
she has failed to provide clear and convincing evidence to prove that, notwithstanding the
prior termination, she can provide a legally secure permanent placement and adequate
care for the health, welfare and safety of Kai.F.
{¶ 24} The trial court considered all of the best interest factors of R.C.
2151.414(D)(1)(a-e) and found by clear and convincing evidence that an award of
permanent custody to LCCS was in Kai.F.’s best interest. Finally, the trial court found
that LCCS made reasonable efforts to prevent the continued need for removal of the child
from the home and to provide services to the parents and that such efforts were
unsuccessful.
{¶ 25} This court has conducted an independent examination of the record
pursuant to Anders v. California. We have considered appellant’s proposed assignment
and find no error prejudicial to appellant’s rights in the trial court proceedings. We find
that the trial court’s decision granting permanent custody of Kai.F. to Lucas County
Children Services was supported by clear and convincing evidence. Accordingly,
appointed counsel’s proposed assignment of error is without merit. Appointed counsel’s
motion requesting leave to withdraw is granted, and this appeal is dismissed for the
reason that it is wholly frivolous.
10. {¶ 26} Upon consideration whereof, the 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.
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 Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, 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.
11.