[Cite as In re T.S., 2015-Ohio-4885.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re T.S. Court of Appeals No. L-15-1158
Trial Court No. JC 15245809
DECISION AND JUDGMENT
Decided: November 24, 2015
*****
James J. Popil, for appellant.
Angela Y. Russell, for appellee.
JENSEN, J.
I. Introduction
{¶ 1} This is an appeal from a judgment by the Lucas County Court of Common
Pleas, Juvenile Division, which terminated parental rights and responsibilities as to
mother-appellant, K.F., and awarded permanent custody of the child, T.S., to the Lucas
County Children’s Services Board (“CSB”). {¶ 2} Appellant filed a pro se notice of appeal and was appointed appellate
counsel. The attorney has filed a brief stating that he was unable to find any error
entitling appellant to relief. Counsel requests that this court independently review the
record and to permit him to withdraw from the case under Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
{¶ 3} We have reviewed the record. We agree that there is no meritorious issue on
appeal. For the reasons set forth below, we affirm the judgment of the juvenile court to
terminate appellant’s parental rights and to grant permanent custody of T.S. to CSB.
II. Facts and Procedural History
{¶ 4} Appellant is the mother of T.S., a baby girl, who was born on November 14,
2014. At the time of delivery, appellant and T.S. both tested positive for cocaine.
{¶ 5} On November 18, 2014, CSB filed a complaint in dependency, neglect, and
abuse, requesting that the juvenile court terminate appellant’s parental rights and grant
permanent custody of T.S. to the agency. A shelter care hearing was held that same day,
and CSB was granted interim temporary custody. Appellant did not attend the shelter
care hearing. Appellant also failed to attend a pretrial conference on March 19, 2015.
{¶ 6} The father of T.S. is not known. Two potential fathers were ruled out
through genetic testing.
{¶ 7} The adjudicatory and dispositional hearings were held together, on April 22,
2015. Again, appellant did not appear. The record indicates (1) that appellant received
personal service of the notice of hearing; (2) that she told her caseworker she did not plan
2. to attend the hearing; and (3) that she was advised to contact her trial counsel. Trial
counsel, who also represented appellant on a concurrent matter, stated that he and
appellant had not communicated with regard to T.S. Based upon these factors, the
juvenile court found that appellant waived her right to counsel, and it permitted trial
counsel to withdraw from the case.
{¶ 8} Testifying during the adjudicatory phase was Todd Switala, who is an
investigative caseworker for CSB. Switala visited appellant and T.S. while they were in
the hospital. At the time, appellant admitted to Switala that she had used cocaine three
days before T.S. was born. Switala also testified that T.S. was observed experiencing
tremors before her discharge.
{¶ 9} Christine DeSilvis, appellant’s caseworker, began working with appellant in
September of 2013, following the birth of a son, Ka.F. When he was born, Ka.F. tested
positive for cocaine and marijuana. On March 17, 2015, a month before the hearing in
the instant case, the juvenile court awarded permanent custody of Ka.F. to CSB based
upon appellant’s drug abuse and issues pertaining to her mental health, parenting, and
housing.
{¶ 10} At the conclusion of DeSilvis’ and Switala’s testimony, the juvenile court
adjudicated T.S. to be dependent and abused.
{¶ 11} Donita McGuire testified during the dispositional phase. McGuire is a
team leader and drug counselor from Unison Behavioral Health. McGuire testified as to
3. appellant’s refusals to provide a drug screen, poor attendance, negative attitude while in
group therapy sessions and her ultimate unsuccessful discharge from Unison.
{¶ 12} DeSilvis testified that appellant has a long history of significant substance
abuse, mental health, parenting and housing problems. Appellant’s participation in
services was inconsistent and, at the time of hearing in the instant case, she was living at
the YWCA, having been evicted from her apartment in February of 2015.
{¶ 13} Documentary and testimonial evidence was also received demonstrating
that, besides Ka.F. and T.S., appellant lost permanent custody of four other children, and
legal custody of one child, born between 2002 and 2012, while living in Michigan.
{¶ 14} The guardian ad litem (“GAL”), Diana Bittner, served as the GAL to T.S.
and Ka.F. Bittner testified that she believed it was in T.S.’s best interest to terminate
appellant’s parental rights and to award permanent custody to CSB. Bittner’s GAL report
was admitted into evidence and mirrors her testimony.
{¶ 15} On May 13, 2013, the juvenile court awarded permanent custody of T.S. to
CSB.
III. Appellant’s Notice of Appeal
{¶ 16} Appellant filed a four page, handwritten notice of appeal on June 5, 2015.
In it, she stated that she was making an earnest effort to heal, emotionally and physically.
Appellant claimed she was active in treatment, had been sober for two months, that she
was getting married, had obtained housing and was employed.
4. IV. Counsel’s Ander’s Motion
{¶ 17} Appellant was appointed appellate counsel, who filed a memorandum to
withdraw from the case for lack of a meritorious, appealable issue under Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; see also State v. Duncan, 57
Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). Counsel states that, based upon his
review of the record, he has determined that the appeal is wholly frivolous.
{¶ 18} In Anders, the court set forth the procedure to be followed by appointed
counsel who desires to withdraw for want of a meritorious, appealable issue. The court
held that if counsel, after a conscientious examination of the case, determines it to be
wholly frivolous he should so advise the court and request permission to withdraw.
Anders at 744. This request, however, must be accompanied by a brief identifying
anything in the record that could arguably support the appeal. Id. Counsel must also
furnish his client with a copy of the brief and request to withdraw and allow the client
sufficient time to raise any matters that he chooses. Id.
{¶ 19} In this case, counsel set forth a potential ground for appeal, mailed a copy
of the memorandum to appellant and advised her of her right to file her own appellate
brief. Appellant has not filed an additional brief or otherwise responded.
{¶ 20} Once the above requirements have been satisfied, the appellate court must
then conduct a full examination of the proceedings held below to determine if the appeal
is indeed frivolous. If the appellate court determines that it is, the court may grant
counsel’s request to withdraw and dismiss the appeal without violating constitutional
5. requirements or it may proceed to a decision on the merits if state law so requires. Id. If
the court concludes that arguable claims exist, the court must appoint new appellate
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[Cite as In re T.S., 2015-Ohio-4885.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re T.S. Court of Appeals No. L-15-1158
Trial Court No. JC 15245809
DECISION AND JUDGMENT
Decided: November 24, 2015
*****
James J. Popil, for appellant.
Angela Y. Russell, for appellee.
JENSEN, J.
I. Introduction
{¶ 1} This is an appeal from a judgment by the Lucas County Court of Common
Pleas, Juvenile Division, which terminated parental rights and responsibilities as to
mother-appellant, K.F., and awarded permanent custody of the child, T.S., to the Lucas
County Children’s Services Board (“CSB”). {¶ 2} Appellant filed a pro se notice of appeal and was appointed appellate
counsel. The attorney has filed a brief stating that he was unable to find any error
entitling appellant to relief. Counsel requests that this court independently review the
record and to permit him to withdraw from the case under Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
{¶ 3} We have reviewed the record. We agree that there is no meritorious issue on
appeal. For the reasons set forth below, we affirm the judgment of the juvenile court to
terminate appellant’s parental rights and to grant permanent custody of T.S. to CSB.
II. Facts and Procedural History
{¶ 4} Appellant is the mother of T.S., a baby girl, who was born on November 14,
2014. At the time of delivery, appellant and T.S. both tested positive for cocaine.
{¶ 5} On November 18, 2014, CSB filed a complaint in dependency, neglect, and
abuse, requesting that the juvenile court terminate appellant’s parental rights and grant
permanent custody of T.S. to the agency. A shelter care hearing was held that same day,
and CSB was granted interim temporary custody. Appellant did not attend the shelter
care hearing. Appellant also failed to attend a pretrial conference on March 19, 2015.
{¶ 6} The father of T.S. is not known. Two potential fathers were ruled out
through genetic testing.
{¶ 7} The adjudicatory and dispositional hearings were held together, on April 22,
2015. Again, appellant did not appear. The record indicates (1) that appellant received
personal service of the notice of hearing; (2) that she told her caseworker she did not plan
2. to attend the hearing; and (3) that she was advised to contact her trial counsel. Trial
counsel, who also represented appellant on a concurrent matter, stated that he and
appellant had not communicated with regard to T.S. Based upon these factors, the
juvenile court found that appellant waived her right to counsel, and it permitted trial
counsel to withdraw from the case.
{¶ 8} Testifying during the adjudicatory phase was Todd Switala, who is an
investigative caseworker for CSB. Switala visited appellant and T.S. while they were in
the hospital. At the time, appellant admitted to Switala that she had used cocaine three
days before T.S. was born. Switala also testified that T.S. was observed experiencing
tremors before her discharge.
{¶ 9} Christine DeSilvis, appellant’s caseworker, began working with appellant in
September of 2013, following the birth of a son, Ka.F. When he was born, Ka.F. tested
positive for cocaine and marijuana. On March 17, 2015, a month before the hearing in
the instant case, the juvenile court awarded permanent custody of Ka.F. to CSB based
upon appellant’s drug abuse and issues pertaining to her mental health, parenting, and
housing.
{¶ 10} At the conclusion of DeSilvis’ and Switala’s testimony, the juvenile court
adjudicated T.S. to be dependent and abused.
{¶ 11} Donita McGuire testified during the dispositional phase. McGuire is a
team leader and drug counselor from Unison Behavioral Health. McGuire testified as to
3. appellant’s refusals to provide a drug screen, poor attendance, negative attitude while in
group therapy sessions and her ultimate unsuccessful discharge from Unison.
{¶ 12} DeSilvis testified that appellant has a long history of significant substance
abuse, mental health, parenting and housing problems. Appellant’s participation in
services was inconsistent and, at the time of hearing in the instant case, she was living at
the YWCA, having been evicted from her apartment in February of 2015.
{¶ 13} Documentary and testimonial evidence was also received demonstrating
that, besides Ka.F. and T.S., appellant lost permanent custody of four other children, and
legal custody of one child, born between 2002 and 2012, while living in Michigan.
{¶ 14} The guardian ad litem (“GAL”), Diana Bittner, served as the GAL to T.S.
and Ka.F. Bittner testified that she believed it was in T.S.’s best interest to terminate
appellant’s parental rights and to award permanent custody to CSB. Bittner’s GAL report
was admitted into evidence and mirrors her testimony.
{¶ 15} On May 13, 2013, the juvenile court awarded permanent custody of T.S. to
CSB.
III. Appellant’s Notice of Appeal
{¶ 16} Appellant filed a four page, handwritten notice of appeal on June 5, 2015.
In it, she stated that she was making an earnest effort to heal, emotionally and physically.
Appellant claimed she was active in treatment, had been sober for two months, that she
was getting married, had obtained housing and was employed.
4. IV. Counsel’s Ander’s Motion
{¶ 17} Appellant was appointed appellate counsel, who filed a memorandum to
withdraw from the case for lack of a meritorious, appealable issue under Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; see also State v. Duncan, 57
Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). Counsel states that, based upon his
review of the record, he has determined that the appeal is wholly frivolous.
{¶ 18} In Anders, the court set forth the procedure to be followed by appointed
counsel who desires to withdraw for want of a meritorious, appealable issue. The court
held that if counsel, after a conscientious examination of the case, determines it to be
wholly frivolous he should so advise the court and request permission to withdraw.
Anders at 744. This request, however, must be accompanied by a brief identifying
anything in the record that could arguably support the appeal. Id. Counsel must also
furnish his client with a copy of the brief and request to withdraw and allow the client
sufficient time to raise any matters that he chooses. Id.
{¶ 19} In this case, counsel set forth a potential ground for appeal, mailed a copy
of the memorandum to appellant and advised her of her right to file her own appellate
brief. Appellant has not filed an additional brief or otherwise responded.
{¶ 20} Once the above requirements have been satisfied, the appellate court must
then conduct a full examination of the proceedings held below to determine if the appeal
is indeed frivolous. If the appellate court determines that it is, the court may grant
counsel’s request to withdraw and dismiss the appeal without violating constitutional
5. requirements or it may proceed to a decision on the merits if state law so requires. Id. If
the court concludes that arguable claims exist, the court must appoint new appellate
counsel to represent the defendant in his appeal. Id.
{¶ 21} This court has independently reviewed the record under the Anders
procedure. We agree with counsel’s conclusion that the proceedings below were free of
error prejudicial to appellant and that no grounds exist to support a meritorious appeal.
Therefore, we grant counsel’s motion to withdraw from the case. For the reasons that
follow, we affirm the judgment of the trial court.
V. Appellant’s Proposed Assignment of Error
{¶ 22} THE TRIAL COURT ERRED IN GRANTING APPELLEE LUCAS
COUNTY CHILDRENS SERVICES PERMANENT CUSTODY AS THE DECISION
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
VI. Standard of Review
{¶ 23} A reviewing court will not overturn a trial court’s permanent custody
decision unless the decision is against the manifest weight of the evidence. In re Alyssa
C., 153 Ohio App.3d 10, 2003-Ohio-2673, 790 N.E.2d 803, ¶ 13 (6th Dist.).
[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * *
6. If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1213 (1984) .
{¶ 24} In a permanent custody case, the ultimate question for a reviewing court is
“whether the juvenile court’s findings * * * were supported by clear and convincing
evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43.
Clear and convincing evidence is “more than a mere preponderance, but not to the extent
of such certainty as required beyond a reasonable doubt as in criminal cases. It does not
mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103–04, 495
N.E.2d 23 (1986).
{¶ 25} Thus, if the children services agency presented competent and credible
evidence upon which the trier of fact reasonably could have formed a firm belief that
permanent custody is warranted, then the court’s decision is not against the manifest
weight of the evidence. In re Alyssa C. at ¶ 13.
VII. Permanent Custody Framework
{¶ 26} A parent’s right to raise her child is a fundamental right. Troxel v.
Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); In re C.F., 113 Ohio
7. St.3d 73, 2007–Ohio–1104, 862 N.E.2d 816, ¶ 28. The interest in the care, custody, and
control of one’s children is “one of the oldest of the fundamental liberty interests
recognized in American law.” In re K.H. at ¶ 39, citing Troxel, 530 U.S. at 65.
Terminating the right to raise one’s children strikes at the core of the parent-child
relationship. Therefore, parents “must be afforded every procedural and substantive
protection the law allows.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997).
{¶ 27} A juvenile court may award permanent custody of a child to a public
children services agency where the court finds, by clear and convincing evidence, the
existence of one of the four factors listed in R.C. 2151.414(B)(1)(a) through (d) and that
it is in the best interest of the child to grant permanent custody to the agency. In re C.J.,
6th Dist. Lucas No. L-13-1037, 2013-Ohio-3056, ¶ 12; R.C. 2151.414(B)(1).
VIII. Analysis
{¶ 28} Here, the trial court relied upon R.C. 2151.414(B)(1)(a) which requires a
finding that “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.” R.C. 2151.414(E)
instructs a court to “enter a finding that the child cannot be placed with either parent
within a reasonable time or should not be placed with either parent” where it finds by
clear and convincing evidence that “one or more” of the factors listed under R.C.
2151.414(E) exist.
8. {¶ 29} Here, the juvenile court found that the factors set forth in R.C.
2151.414(E)(1), (2) and (11) were proven by clear and convincing evidence as they relate
to appellant. Those sections are set forth below in the left column. The juvenile court’s
findings as to each provision are set forth in the right column.
R.C. 2151.414(E) The Juvenile Court’s Findings of Fact
(1) Following the placement of Appellant had the opportunity, but the child outside the child’s home and failed, to complete case plan services, notwithstanding reasonable case including substance abuse treatment and planning and diligent efforts by the mental health services with respect to T.S. agency to assist the parents to remedy The court found the following evidence the problems that initially caused the persuasive: appellant was “non-compliant child to be placed outside the home, the with providing requested drug screens and parent has failed continuously and attending group and individual sessions;” repeatedly to substantially remedy the appellant was “unsuccessfully discharged conditions causing the child to be from substance abuse treatment at Unison placed outside the child’s home. In in March, 2015” and was not “adequately determining whether the parents have engaged in mental health services to substantially remedied those address trauma issues related to her mental conditions, the court shall consider health.” The court also found that parental utilization of medical, appellant’s housing was “unstable” in that psychiatric, psychological, and other she was currently living at a shelter and had social and rehabilitative services and been recently evicted. In sum, the court material resources that were made concluded that appellant “has not available to the parents for the purpose successfully engaged and completed case of changing parental conduct to allow plan services and has not remedied the them to resume and maintain parental conditions that caused the child to be duties. removed from the home.”
(2) Chronic mental illness, The Court heard evidence that chronic emotional illness, mental appellant was diagnosed with severe retardation, physical disability, or depression for which she was prescribed chemical dependency of the parent that medications. The court found that is so severe that it makes the parent appellant’s emotional and mental health is unable to provide an adequate severe and is anticipated to last for at least permanent home for the child at the a year following. The court also found that present time and, as anticipated, within appellant “has a significantly long history
9. one year after the court holds the abusing substances and that she has been hearing pursuant to division (A) of this unable to adequately maintain a sober section or for the purposes of division lifestyle for a significant period of time.” (A)(4) of section 2151.353 of the Revised Code. * * *
(11) The parent has had parental The Court accepted evidence that rights involuntarily terminated with appellant had her parental rights respect to a sibling of the child pursuant involuntarily terminated with respect to to this section or section 2151.353 or five siblings of T.S. in Michigan and in 2151.415 of the Revised Code, or under Lucas County, Ohio. The court concluded an existing or former law of this state, that appellant failed to put forth any any other state, or the United States that evidence, much less clear and convincing is substantially equivalent to those evidence, that despite those terminations, sections, and the parent has failed to she was able to provide a legally secure provide clear and convincing evidence to permanent placement for T.S. 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. * * *
{¶ 30} Through counsel, appellant argues that the termination of her parental
rights was against the manifest weight of the evidence.
{¶ 31} We disagree. We conclude that there is competent, credible evidence in the
record supporting a firm conviction or belief that appellant had the opportunity but failed
to complete case plan services; that she suffers from chronic chemical dependency that is
so severe as to render her unable to provide an adequate permanent home for T.S. at the
time of judgment and, as anticipated, within one year after the hearing; and that she
previously had her parental rights terminated with respect to five siblings of T.S.
10. {¶ 32} Under R.C. 2151.414(B)(1)(a), the applicability of “any one” of the (E)
factors establishes a finding that the child cannot be placed with her parents within a
reasonable time or should not be placed with her parents. See In re C.J., 6th Dist. Lucas
No. L-13-1037, 2013-Ohio-3056, ¶ 28. Here the juvenile court found clear and
convincing evidence of three “E” factors. We sustain those findings.
{¶ 33} Next, we evaluate the second prong, whether an award of permanent
custody is in the best interests of the child. R.C. 2151.414(D)(1) provides:
(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:
(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;
(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;
(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
11. 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;
(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 34} In its judgment entry, the trial court relied upon the following
evidence in finding, by clear and convincing evidence, that it was in T.S.’s best
interest to grant permanent custody to CSB: (1) that T.S. was young and had been
removed from appellant near the time of her birth; (2) that she was in need of
legally secure placement that could not be achieved without a grant of permanent
custody to CSB so that she might be adopted; (3) that appellant’s parental rights
had been terminated as to five of T.S.’s sibling; (4) that the caseworker and GAL
recommended that an award of permanent custody was in T.S.’s best interests; and
(5) that appellant had failed to consistently engage in case plan services.
12. {¶ 35} We have reviewed the record and find competent, credible evidence exists
to support the trial court’s findings under R.C. 2151.414(D)(1) to establish a firm belief
or conviction that an award of permanent custody to CSB is in the best interest of the
child.
IX. Conclusion
{¶ 36} We conclude that the trial court’s decision to award permanent custody of
T.S. to CSB is not against the manifest weight of the evidence. Appellant’s proposed
assignment of error is not well-taken. Appointed counsel’s motion to withdraw is granted.
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.
Thomas J. Osowik, J. _______________________________ JUDGE Stephen A. Yarbrough, P.J. _______________________________ James D. Jensen, 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.
13.