In re K.J.

2014 Ohio 2132

• Court: Ohio Court of Appeals
• Decided: May 12, 2014
• Docket: CT2014-0004
• Status: Published

Opinion

[Cite as In re K.J., 2014-Ohio-2132.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. William B. Hoffman, P.J. Hon. W. Scott Gwin, J. K.J. Hon. Craig R. Baldwin, J.

Case No. CT2014-004

OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Juvenile Court, Case No. 21330214

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 12, 2014

APPEARANCES:

For Appellant - Mother For Appellee - Muskingum County Children's Services

BRIAN W. BENBOW MARIA KALIS Benbow Law Offices Assistant Prosecuting Attorney 605 Market Street 22 North Fifth Street Zanesville, Ohio 43701 Zanesville, Ohio 43701

For Father Guardian Ad Litem

THOMAS THOMAS SCHMIDT JEANETTE M. MOLL 172 Granville Street 803B Market Street Gahanna, Ohio 43230 Zanesville, Ohio 43701 Muskingum County, Case No. CT2014-004 2

Hoffman, P.J.

{¶1} Appellant Heidi Schrack (“Mother”) appeals the December 20, 2013

Judgment Entry entered by the Muskingum County Court of Common Pleas, Juvenile

Division, which approved and adopted the magistrate’s decision from the same day,

recommending Mother’s parental rights, privileges, and responsibilities with respect to

her minor child be terminated as well as recommending permanent custody of the child

be granted to Appellee Muskingum County Children’s Services (“the Agency”).

STATEMENT OF THE FACTS AND CASE

{¶2} On October 1, 2013, the Agency was contacted regarding Mother giving

birth to a baby girl, K.J., on September 30, 2013. At the time of the birth, Mother had

tested positive for cocaine. Within one hour of K.J.’s birth, Mother left the hospital

against medical advice. The Agency invoked Juv. R. 6 custody.

{¶3} Mother did not appear at the permanent custody hearing on December 18,

2013.

{¶4} Mother has had four other children permanently removed from her

custody. Mother admitted to using cocaine throughout her pregnancy. Mother did not

engage in any case plan services and rarely visited the child. The Guardian Ad Litem

recommended permanent custody be granted to the Agency.

{¶5} Via Judgment Entry filed December 20, 2013, the trial court approved and

adopted the magistrate’s decision, terminated Mother’s parental rights, and granted

permanent custody of the child to the Agency. Muskingum County, Case No. CT2014-004 3

{¶6} Brian Benbow, Appellant's appellate counsel, has submitted a request to

withdraw pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493, asserting there are no meritorious issues for appeal.

{¶7} In his Anders brief, Attorney Benbow states he has conducted a thorough

review of the record and researched the possible appellate issues raised in the case.

Attorney Benbow reached the conclusion there exists no meritorious issues for appeal.

He served a copy of the brief on Mother, who has not filed a pro se brief or any other

response. This appeal is the third time the attorney has been assigned to appeal a

permanent custody decision involving Mother.

{¶8} Attorney Benbow sets forth two potential assignments of error for this

Court's review:

{¶9} "I. THE TRIAL COURT’S JUDGMENT THAT THE MINOR CHILDREN’S

[SIC] BEST INTEREST WOULD BE SERVED BY GRANTING PERMANENT

CUSTODY TO MUSKINGUM COUNTY CHILDREN’S SERVICES WAS AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶10} "II. MOTHER/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL."

{¶11} This case is an expedited appeal, and this Court should enter judgment

within 30 days of submission of the briefs, or of the oral argument, whichever is later,

unless compelling reasons in the interest of justice require a longer time. App. R.

11.2(C)(5). Muskingum County, Case No. CT2014-004 4

I

{¶12} In the first proposed assignment of error, Mother contends the trial court's

finding an award of permanent custody was in the best interest of the child was against

the manifest weight and sufficiency of the evidence.

{¶13} In Anders, the United States Supreme Court held if a counsel, after a

conscientious examination of the case, determines it to be wholly frivolous, counsel

should so advise the court and request permission to withdraw. The request must be

accompanied by a brief identifying anything in the record that could arguably support an

appeal. Counsel must furnish his client with a copy of the brief and request the court to

allow the client sufficient time to raise any matter that he or she chooses. Once these

requirements have been satisfied, the appellate court must then conduct a full

examination of the proceedings to determine if the appeal is indeed frivolous. If the

appellate court determines the appeal is frivolous, it may grant counsel's request to

withdraw and dismiss the appeal without violating constitutional requirements, or may

proceed to a decision on the merits if state law requires.

{¶14} The procedures set out in Anders, supra are applicable to appeals

involving the termination of parental rights. Morris v. Lucas County Children's Services

Board (1989), 49 Ohio App.3d 86, 550 N.E.2d 980.

{¶15} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant,

competent and credible evidence upon which the fact finder could base its judgment.

Cross Truck v. Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments

supported by some competent, credible evidence going to all the essential elements of Muskingum County, Case No. CT2014-004 5

the case will not be reversed as being against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶16} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

{¶17} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to

grant permanent custody to the agency, and that any of the following apply: (a) the child

is not abandoned or orphaned, 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; (b) the

child is abandoned; (c) the child is orphaned and there are no relatives of the child who

are able to take permanent custody; or (d) the child has been in the temporary custody

of one or more public children services agencies or private child placement agencies for

twelve or more months of a consecutive twenty-two month period ending on or after

March 18, 1999.

{¶18} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child with the child's parents, siblings, relatives, foster parents and out-of-home

providers, and any other person who may significantly affect the child; (2) the wishes of Muskingum County, Case No. CT2014-004 6

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; (3) the custodial history of the child; and (4) 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.

{¶19} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

{¶20} If the child is not abandoned or orphaned, the focus turns to whether the

child cannot be placed with either parent within a reasonable period of time or should

not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

{¶21} In its decision filed May 9, 2012, the trial court found the following in

pertinent part:

{¶22} THE COURT FINDS By Clear and Convincing Evidence as Follows:

{¶23} "1. [K.J.] is found to be an abused, neglected and dependent child

pursuant to Sections(s) 2151.03(A)(2), 2151.031(D); and 2151.04(C) & (D) of the Ohio

Revised Code.

{¶24} "* * * Muskingum County, Case No. CT2014-004 7

{¶25} "2. Pursuant to Ohio Revised Code Section(s) 2151.414(B)(1) and (E), the

minor child cannot be placed with either parent within a reasonable time, and should not

be placed with either parent.

{¶26} "a. The mother [has] failed to make any progress on [her] case over the

last three months.

{¶27} "b. Mother [has] demonstrated a lack of commitment by failing to regularly

visit the child.

{¶28} "c. Mothers [sic] chronic chemical dependency is so severe that it makes

her unable to provide an adequate permanent home for the child at the present time.

(R.C. 2151.414(E)(2))

{¶29} "* * *

{¶30} "e. The mother [is] repeatedly incarcerated, and repeated incarcerations

prevent [her] from providing care for the child. (R.C.2151.414(E)(13))

{¶31} "f. The mother has had other children permanently removed. (R.C.

2151.414(E)(11))

{¶32} "* * *

{¶33} "3. Pursuant to Ohio Revised Code Sections(s) 2151.414(B)(1) and (D), it

is in the Best Interest of the minor child that Permanent Custody be awarded to

Muskingum County Children Services based upon the following factors that the Court

finds upon a review of the evidence:

{¶34} "h. The minor child has been in the Temporary Custody of MCCS since

October 2, 2013.

{¶35} "* * * Muskingum County, Case No. CT2014-004 8

{¶36} "l. The child has bonded with the foster family and the child's siblings in

the foster home, and the foster family is wanting to adopt.

{¶37} "m. The minor child needs a legally secure permanent placement, which

cannot be achieved without a granting of permanent custody to Muskingum County

Children Services the Court finding that it is unlikely that either parent will ever be able

to provide a legally secure placement.

{¶38} "The Court makes Findings regarding reasonable efforts to prevent the

need for removal and making it possible for the child to return home, with regard to the

services provided to prevent or eliminate the removal of the child from the home, and

why these services did not prevent the removal of the child from the home or enable the

child to return home. The Court determines that pursuant to the Ohio Revised Code

Section 21451.419, reasonable efforts were made to prevent the need for placement,

and to make it possible for the child to return home. Relevant services provided in this

matter include, but are not limited to the following: Extensive prior and ongoing case

management, attempted case plan services, foster placement, resource and referrals."

{¶39} The guardian ad litem, Jeanette Moll, filed a report wherein she opined the

best interests of the child would be served by granting permanent custody to the

Agency.

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

conclusion no arguably meritorious claims exist upon which to base an appeal

challenging the trial court's decision on best interests of the child.

{¶41} The proposed Assignment of Error is denied. Muskingum County, Case No. CT2014-004 9

II

{¶42} Although this is not a criminal case, the Supreme Court of Ohio has

characterized the termination of parental rights as the “death penalty” of parenting.

Because of this characterization, this district has adopted the “criminal” standard to

ineffective assistance of counsel arguments in permanent custody actions. In re Fell,

Guernsey App. No. 05 CA 8, 2005–Ohio–5790; In re Utt Children, Stark

App.No.2003CA00196, 2003–Ohio–4576.

{¶43} The standard is set out in State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373, paragraphs two and three of the syllabus, certiorari denied (1990), 497 U.S.

1011, 110 S.Ct. 3258, 111 L.Ed.2d 768. Appellant must establish the following:

{¶44} Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of

reasonable representation and, in addition, prejudice arises from counsel's

performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 20.0.3d 495, 48 Ohio St.2d 391,

358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674, followed.)

{¶45} To show that a defendant has been prejudiced by counsel's deficient

performance, the defendant must prove that there exists a reasonable probability that,

were it not for counsel's errors, the result of the trial would have been different.”

{¶46} This Court must accord deference to defense counsel's strategic choices

made during trial and “requires us to eliminate the distorting effect of hindsight.” State v.

Post (1987), 32 Ohio St.3d 380, 388, 513 N.E.2d 754. Muskingum County, Case No. CT2014-004 10

{¶47} We note Appellant's counsel was diligent in her representation of Mother

despite Mother’s unwillingness to assist in her defense prior to and during the hearing.

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

conclusion no arguably meritorious claims exist upon which to base an ineffective

assistance of counsel argument.

{¶49} The proposed Assignment of Error is denied.

{¶50} Based on the foregoing, we find the appeal to be wholly frivolous under

Anders, grant counsel's request to withdraw, and affirm the trial court's judgment.

{¶51} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Muskingum County, Ohio, is hereby affirmed.

By: Hoffman, P.J.

Gwin, J. and

Baldwin, J. concur