In re K.W.

2011 Ohio 6371

• Court: Ohio Court of Appeals
• Decided: December 7, 2011
• Docket: 11 BE 8 11 BE 13
• Status: Published

Opinion

[Cite as In re K.W., 2011-Ohio-6371.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

IN RE: ) CASE NOS. 11 BE 8 ) 11 BE 13 K.W. ) ) OPINION ) )

CHARACTER OF PROCEEDINGS: Civil Appeals from the Court of Common Pleas, Juvenile Division, of Belmont County, Ohio Case No. 09 JC 182

JUDGMENT: Affirmed.

APPEARANCES:

For Appellants: Atty. Jay Blackstone Summit Professional Centre 6600 Summit Drive Canfield, Ohio 44406

For Appellee: Atty. Christopher Berhalter Belmont County Prosecutor Atty. Rhonda Greenwood Assistant Prosecuting Attorney 147-A West Main Street St. Clairsville, Ohio 43950

Guardian Ad Litem: Atty. Cory DelGuzzo 118 West Main Street St. Clairsville, Ohio 43950

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: December 7, 2011 [Cite as In re K.W., 2011-Ohio-6371.] WAITE, P.J.

{1} Appellants’ attorney has filed a motion to withdraw as appointed

counsel in a permanent custody case pursuant to In re K.B., 7th Dist. No. 09 BE 24,

2010-Ohio-1015 and State v. Toney (1970), 23 Ohio App.2d 203, 52 O.O.2d 304,

262 N.Ed.2d 419. Appellants Christina Elliott (“Christina”) and Robert Wilson

(“Robert”) appealed the judgment of the Belmont County Court of Common Pleas,

Juvenile Division, awarding permanent custody of their child K.W. to the Belmont

County Job and Family Services Agency (“BCJFS”). Appellants’ counsel has

determined that this filing constitutes a frivolous appeal after examining the record

and finding no reasonable arguments on appeal. Counsel’s motion to withdraw is

granted and the judgment of the trial court is affirmed.

{2} On March 9, 2009, the BCJFS filed a dependency complaint seeking

emergency shelter for K.W., a minor child of Christina and Robert. The child was

born on March 6, 2009, three days before the dependency complaint was filed.

Christina also had twin daughters who were already wards of the state in the custody

of BCJFS. The court appointed counsel to represent Christina and Robert. After the

court held adjudicatory and dispositional hearings, it adjudicated K.W. a dependent

child and awarded temporary custody of the child to BCJFS. K.W. was added to the

BCJFS case plan for the other two girls. The objective of the case plan was to

reunite the child with the parents. Christina and Robert were required to achieve

certain goals and benchmarks as part of the plan. They were required to obtain

stable and secure housing, stable employment, undergo psychological and -2-

psychiatric evaluations, attend counseling and parenting sessions, and Robert was to

submit to alcohol counseling.

{3} On December 22, 2009, the juvenile court granted permanent custody

of Christina’s twin daughters to BCJFS. Appellants appealed this judgment, and it

was affirmed by us on December 6, 2010, in In re N.E., 7th Dist. Nos. 10 BE1 and 10

BE 2, 2010-Ohio-6012.

{4} On March 3, 2010, BCJFS filed a motion for permanent custody of K.W.

It filed an amended motion on May 25, 2010. The court continued temporary custody

indefinitely, subject to periodic review.

{5} On April 16, 2010, BCJFS filed a motion for judicial determination that

reasonable efforts had been made toward reunification of K.W. with Appellants. On

April 21, 2010, the court sustained the motion.

{6} BCJFS filed another motion for permanent custody on October 25,

2010. Hearings were held on December 15, 2010, and February 10, and March 2,

2011. On March 10, 2011, the court issued a judgment entry awarding permanent

custody of K.W. to BCJFS.

{7} Both parents filed notices of appeal and two case numbers were

designated, Case No. 11 BE 8 and 11 BE 13. We appointed counsel to Appellants

for this appeal. The two appeals were consolidated on April 19, 2011.

{8} On July 7, 2011, counsel filed a no merit brief pursuant to In re. K.B.

and State v. Toney. Appellants were then granted 30 days to raise any additional -3-

claims of error in this appeal. Nothing more was filed. This is an expedited case

pursuant to App.R. 11.2(C).

{9} This Court, in In re K.B., held that the procedure for withdrawal of

appointed counsel that is used in criminal cases, as set forth in Toney, supra, and

Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, may be

used in parental rights cases as well where counsel is appointed to indigent parents.

In re K.B. at ¶12. Toney set forth the procedure to be used when counsel of record

determines that an indigent's appeal is frivolous:

{10} “3. Where a court-appointed counsel, with long and extensive

experience * * * concludes that the indigent's appeal is frivolous and that there is no

assignment of error which could be arguably supported on appeal, he should so

advise the appointing court by brief and request that he be permitted to withdraw as

counsel of record.

{11} “4. Court-appointed counsel's conclusions and motion to withdraw as

counsel of record should be transmitted forthwith to the indigent, and the indigent

should be granted time to raise any points that he chooses, pro se.

{12} “5. It is the duty of the Court of Appeals to fully examine the

proceedings in the trial court, the brief of appointed counsel, the arguments pro se of

the indigent, and then determine whether or not the appeal is wholly frivolous.

{13} “6. Where the Court of Appeals makes such an examination and

concludes that the appeal is wholly frivolous, the motion of an indigent appellant for

the appointment of new counsel for the purposes of appeal should be denied. -4-

{14} “7. Where the Court of Appeals determines that an indigent's appeal is

wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of

record should be allowed, and the judgment of the trial court should be affirmed.”

(Emphasis in original.) Id., at syllabus.

{15} A parent's right to raise his or her children is an essential and basic civil

right. In re Murray (1990), 52 Ohio St.3d 155, 157, citing Stanley v. Illinois (1972),

405 U.S. 645, 651, 92 S.Ct. 1208. However, this right is not absolute. In re Sims,

7th Dist. No. 02-JE-2, 2002-Ohio-3458, ¶23. In order to protect a child's welfare, the

state may terminate parental rights as a last resort. Id.

{16} An appellate court reviews a trial court's decision terminating parental

rights and responsibilities for an abuse of discretion. Id. at ¶36. Abuse of discretion

connotes more than an error of law or judgment; it implies that the court's attitude

was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140. Furthermore, “judgments supported by some

competent, credible evidence going to all the essential elements of the case should

not be reversed by a reviewing court.” In re N.E., supra, at ¶42, citing Seasons Coal

Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273, and C.E. Morris Co.

v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578.

{17} A public children services agency may file a motion for permanent

custody of a child pursuant to R.C. 2151.413. The procedure for resolving the motion

is contained primarily in R.C. 2151.414. The court may grant permanent custody to a

children’s services agency if the child has been in the custody of the agency for -5-

twelve or more months of a consecutive twenty-two month period, and if it is proven

by clear and convincing evidence that it is in the best interests of the child to grant

permanent custody to the agency. R.C. 2151.414(B)(1)(d). The agency must also

establish at some point in the custody proceedings that reasonable efforts have been

made to reunite the child with its family. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-

1104, 862 N.E.2d 816. There is no dispute that K.W. has been in the custody of

BCJFS for more than twelve months of a consecutive period of twenty-two months.

K.W. has been in foster care with the same family since she was three days old.

Further, the issue as to whether BCJFS made reasonable efforts to reunite the family

was decided on April 21, 2010. The only question to be resolved by the trial court at

the permanent custody hearing was whether it was in the best interests of the child to

grant permanent custody to BCJFS.

{18} R.C. 2151.414(D)(1) contains the factors for the court to consider in

determining the best interests of the child:

{19} “(D)(1) In determining the best interest of a child at a hearing held

pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of

section 2151.353 or division (C) of section 2151.415 of the Revised Code, the court

shall consider all relevant factors, including, but not limited to, the following:

{20} “(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; -6-

{21} “(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;

{22} “(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 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;

{23} “(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;

{24} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

{25} R.C. 2151.414(E)(7)-(11) contain other relevant factors:

{26} “(7) The parent has been convicted of or pleaded guilty to one of the

following [crimes]:

{27} “* * *

{28} “(8) The parent has repeatedly withheld medical treatment or food from

the child when the parent has the means to provide the treatment or food, and, in the

case of withheld medical treatment, the parent withheld it for a purpose other than to -7-

treat the physical or mental illness or defect of the child by spiritual means through

prayer alone in accordance with the tenets of a recognized religious body.

{29} “(9) The parent has placed the child at substantial risk of harm two or

more times due to alcohol or drug abuse and has rejected treatment two or more

times or refused to participate in further treatment two or more times after a case plan

issued pursuant to section 2151.412 of the Revised Code requiring treatment of the

parent was journalized as part of a dispositional order issued with respect to the child

or an order was issued by any other court requiring treatment of the parent.

{30} “(10) The parent has abandoned the child.

{31} “(11) The parent has had parental rights involuntarily terminated with

respect to a sibling of the child pursuant to this section or section 2151.353 or

2151.415 of the Revised Code, or under an existing or former law of this state, any

other state, or the United States that is substantially equivalent to those sections, and

the parent has failed to provide clear and convincing evidence to prove that,

notwithstanding the prior termination, the parent can provide a legally secure

permanent placement and adequate care for the health, welfare, and safety of the

child.”

{32} The record reveals that Appellants did not fulfill the terms of their case

management plan. The ultimate objective of the plan was to reunite Appellants with

K.W. The case plan required Appellants to obtain stable employment, secure proper

housing, undergo psychological and psychiatric evaluations, attend counseling and

parenting sessions. Additionally, Robert was to submit to alcohol counseling. -8-

{33} Extraordinary efforts were made to assist Appellants in achieving the

goals of the case plan. Judy Beckett of BCJFS testified that she was not aware of

any other case in which the agency had done so much. BCJFS provided

transportation services, substitute care, financial aid, counseling, practical advice,

meeting facilities, case management, and other services for Appellants. We are also

aware that prior to final judgment in this case, Christina lost custody of two other

children to BCJFS who were part of the same case plan as K.W., and we

subsequently affirmed that judgment.

{34} Both Appellants had counseling requirements as part of the case plan.

Christina’s attendance at counseling was sporadic at best. She would cancel

appointments and not reschedule them until months later. Ultimately, she missed

half of her appointments. Robert did not complete either his alcohol counseling or his

general counseling. He believed he had solved his alcohol problem and did not need

counseling.

{35} Appellants’ apartment contained many health and safety problems that

needed to be resolved before a child could live there. Garbage was on the floors, it

was infested with roaches, and pesticides and other chemicals were stored and

spilled on the kitchen floor. Prescription medicines were kept in a drawer that a child

could easily reach and open. The apartment had water damage and mold. The

utilities were turned off from time to time. BCJFS attempted to help Appellants rectify

the health and safety problems with their apartment, but then were denied entry to

the apartment on four separate occasions. Christina testified that she feels -9-

intimidated by BCJFS employees and admitted that she had refused to allow them

into her apartment.

{36} BCJFS provided employment referrals, but neither Appellant obtained

documentable stable employment. One lead provided to them was a job as a car

detailer. Robert did not take the job using the excuse that he did not have a driver’s

license, and Christina stated that she did not do that kind of work. Christina made a

few dollars selling Avon products, but insisted that employment should not be part of

her case plan because she believed she could get Social Security benefits due to her

mental health problems. She testified, though, that she was denied Social Security

benefits. There was no consistent information about Robert’s employment situation.

There was some evidence that he was working as a handyman, but it was reported

that he was not earning any money from it, but rather, was working to pay off a debt.

He claimed to have had three jobs since K.W. was born. He believed his job

situation was being hampered by a criminal charge that had been dismissed in the

1990s. Neither Appellant provided any pay stubs or other verification of their

employment circumstances.

{37} BCJFS provided some money to Appellants to help with rent, but they

allowed their rent to go unpaid. The record indicates that Appellants were able to

purchase such things as a computer, cell phones, and a Sony Playstation, even

though the rent had gone unpaid. Appellants’ landlord allowed them to remain as

tenants even though they had not paid rent for many months. The landlord also put

Appellants’ electric bill in his own name to prevent it from being shut off. Despite -10-

being allowed to live more or less rent free, they failed to deal with all of the health

and safety issues in their apartment.

{38} The court, in an effort to foster parental bonding between K.W. and

Appellants, allowed for an extensive amount of visitation time. This visitation took

place in a visitation room provided by BCJFS, because Appellants’ apartment was

not suitable for children. K.W. often had an aversion to visitation, and after visitation

would return to her foster home with a foul odor and would be wet through her

clothes. K.W. would also be frustrated after visitation and would bite and scratch

people. BCJFS would regularly need to sanitize the visitation room after the visits

due to Appellants’ unhygienic condition so that other families could use the room.

{39} K.W.’s guardian ad litem testified that he believes Appellants had the

ability, but not the motivation, to complete their case plan. His primary concerns

were that Appellants missed various appointments, that there was a cockroach

problem at their home that was not being dealt with, and that they had failed to

secure public housing once they became eligible for it.

{40} Walter Smith of the Metropolitan Housing Authority testified that he

conducted a grievance hearing for Appellants because they were denied public

housing due to a criminal matter in Robert’s past. Mr. Smith found that the criminal

charge was from the early 1990s and had been dismissed. He sustained Appellants’

grievance, and put them on a waiting list for public housing. The record indicates,

though, that Appellants were 15th in line to receive housing in December 2010, but

by February 2011, they had been pushed back to 30th in line. -11-

{41} K.W.’s foster mother testified that she is a stay-at-home mother with

seven children at home. Two of those children are foster children. All of the children

are special needs children. She has been with K.W. since the child was three days

old. She testified that her family has bonded with K.W. The child is treated as a

member of the family, and she plans to adopt K.W. when that option becomes

available. She also stated that she would keep K.W. in contact with her half-siblings

after adoption. She testified that K.W. becomes aggressive and destructive after

visiting with Appellants and that K.W. does not want to visit with Appellants and runs

away from the BCJFS van that comes to take her to the visit.

{42} The testimony supports the trial court's findings that it is in K.W.'s best

interest to grant permanent custody to BCJFS. The applicable statutory best interest

factors support the court's determination. First, K.W. has bonded with her foster

mother and family, and her foster mother wants to adopt her. K.W.’s foster mother

also plans to keep the child in contact with her half-siblings. Second, the court stated

that it would not consider the wishes of the child, so that factor neither supports nor

undermines the trial court’s judgment. Third, at the time of the hearing K.W. had

been in Appellee's temporary custody for all but the first three days of her life.

Fourth, there was testimony that K.W. is in need of a legally secure placement. Fifth,

with respect to the factors in R.C. 2151.414(E)(7)-(11), the court found that Christina

has already had her parental rights involuntarily terminated with respect to two of

K.W.’s siblings. The hearing in this case went on for three days, twelve people

testified, and numerous exhibits were admitted as evidence. The evidence -12-

overwhelmingly supports the trial court’s decision. For all these reasons, counsel’s

motion to withdraw is hereby sustained and the judgment of the trial court is affirmed.

Donofrio, J., concurs.

Vukovich, J., concurs.