[Cite as In re T.T., 2017-Ohio-485.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re T.T., aka T.S. Court of Appeals No. L-16-1207
Trial Court No. JC 16255360
DECISION AND JUDGMENT
Decided: February 10, 2017
*****
James J. Popil, for appellant.
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, M.T.,
and granted permanent custody of her minor child T.T. to appellee Lucas County
Children Services.1 For the following reasons, the judgment of the trial court is affirmed.
1 The child’s legal father has not appealed the trial court’s judgment. {¶ 2} Appointed counsel has submitted a request to withdraw pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In his brief filed on
appellant’s behalf, appointed counsel sets forth one proposed assignment of error. In
support of his request to withdraw, counsel for appellant states that, after reviewing the
record of proceedings in the trial court, he was unable to find any appealable issues.
{¶ 3} Anders, supra, and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323
(8th Dist.1978), set forth the procedure to be followed by appointed counsel who desires
to withdraw for want of a meritorious, appealable issue. In Anders, the United States
Supreme 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. Id. 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 she chooses. Id. Once these 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 the appeal is frivolous, it may grant counsel’s request to withdraw
and dismiss the appeal without violating constitutional requirements or it may proceed to
a decision on the merits if state law so requires. Id.
{¶ 4} In the case before us, appointed counsel for appellant has satisfied the
requirements set forth in Anders, supra. This court finds further that appellant was
2. notified by counsel of her right to file an appellate brief on her own behalf; however, no
pro se brief was filed.
{¶ 5} Accordingly, this court shall proceed with an examination of the potential
assignment of error proposed by counsel for appellant and the entire record below to
determine if this appeal lacks merit and is, therefore, wholly frivolous.
{¶ 6} The facts relevant to this appeal are as follows. T.T. was born in May 2016.
At that time, appellant was birth mother to six other children but did not have legal
custody of any of them. Four of the children were in the legal custody of relatives and
two others were in the permanent custody of Lucas County Children Services (“the
agency”). T.T. was placed in foster care upon leaving the hospital after birth.
{¶ 7} On May 9, 2016, the agency filed an original complaint in dependency with
a dispositional request for permanent custody. A shelter care hearing was held that same
day. Appellant’s caseworker testified that appellant had been provided case plan services
with regard to the six other children, including services to address appellant’s mental
health as well as concerns about her association with inappropriate persons, her
questionable supervision of the children and her inability to parent effectively. The
caseworker further testified that at the time of T.T.’s birth, appellant had not completed
any case plan services and was not engaged in mental health treatment. Appellant
conceded that she had not engaged in mental health treatment but stated that she had an
assessment scheduled for the next day. At the conclusion of the hearing, the agency was
granted temporary custody.
3. {¶ 8} On July 11, 2016, an adjudication hearing was held and the parties stipulated
that T.T. was a dependent child.
{¶ 9} The permanent custody hearing was held on August 8, 2016. Appellant’s
caseworker testified that the agency had filed for permanent custody due to mother’s
failure to engage in case plan services and her history of losing custody of her other six
children. Without objection from either parent, the agency introduced into evidence
judgment entries from the legal proceedings related to custody of appellant’s six other
children. The caseworker further testified that appellant did not recognize the need for
services while she was pregnant and stated her belief that permanent custody was in the
child’s best interest.
{¶ 10} Appellant testified that she was not engaged in services prior to giving birth
to T.T., but said she had scheduled an appointment for counseling. She stated that she
had her own house with sufficient finances and supplies for T.T. As to her mental health,
appellant testified that she suffers from postpartum depression, bipolar and major
depressive disorder, anxiety and PTSD. She stated that she had been engaged in mental
health services since May 2016 and admitted that she had failed to complete mental
health services or any other services as required in the earlier cases involving her other
children. Appellant further testified that daycare services were available to her across the
street from her home whenever needed.
{¶ 11} T.T.’s guardian ad litem testified and recommended permanent custody to
the agency. The guardian testified that although appellant assured her she had a friend
4. who had been approved by the agency to provide child care, the friend had never filed the
papers required for approval. The guardian visited appellant’s home twice, in May and
July 2016. She testified that appellant had plenty of food in the home as well as a place
for the baby to sleep and baby clothing. She further testified that there was no working
bathtub at the time of either visit and that the toilet was “filthy.” Appellant told the
guardian that she smokes about a half pack of cigarettes daily, which concerned the
guardian because the home smelled of smoke and T.T. was currently undergoing
breathing treatments prescribed by a doctor. Finally, the guardian stated that T.T.’s foster
parents have expressed a willingness to adopt the child.
{¶ 12} On August 16, 2016, the trial court awarded appellee permanent custody of
T.T.
{¶ 13} Appointed counsel has set forth the following proposed 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.
{¶ 14} 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
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[Cite as In re T.T., 2017-Ohio-485.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re T.T., aka T.S. Court of Appeals No. L-16-1207
Trial Court No. JC 16255360
DECISION AND JUDGMENT
Decided: February 10, 2017
*****
James J. Popil, for appellant.
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, M.T.,
and granted permanent custody of her minor child T.T. to appellee Lucas County
Children Services.1 For the following reasons, the judgment of the trial court is affirmed.
1 The child’s legal father has not appealed the trial court’s judgment. {¶ 2} Appointed counsel has submitted a request to withdraw pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In his brief filed on
appellant’s behalf, appointed counsel sets forth one proposed assignment of error. In
support of his request to withdraw, counsel for appellant states that, after reviewing the
record of proceedings in the trial court, he was unable to find any appealable issues.
{¶ 3} Anders, supra, and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323
(8th Dist.1978), set forth the procedure to be followed by appointed counsel who desires
to withdraw for want of a meritorious, appealable issue. In Anders, the United States
Supreme 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. Id. 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 she chooses. Id. Once these 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 the appeal is frivolous, it may grant counsel’s request to withdraw
and dismiss the appeal without violating constitutional requirements or it may proceed to
a decision on the merits if state law so requires. Id.
{¶ 4} In the case before us, appointed counsel for appellant has satisfied the
requirements set forth in Anders, supra. This court finds further that appellant was
2. notified by counsel of her right to file an appellate brief on her own behalf; however, no
pro se brief was filed.
{¶ 5} Accordingly, this court shall proceed with an examination of the potential
assignment of error proposed by counsel for appellant and the entire record below to
determine if this appeal lacks merit and is, therefore, wholly frivolous.
{¶ 6} The facts relevant to this appeal are as follows. T.T. was born in May 2016.
At that time, appellant was birth mother to six other children but did not have legal
custody of any of them. Four of the children were in the legal custody of relatives and
two others were in the permanent custody of Lucas County Children Services (“the
agency”). T.T. was placed in foster care upon leaving the hospital after birth.
{¶ 7} On May 9, 2016, the agency filed an original complaint in dependency with
a dispositional request for permanent custody. A shelter care hearing was held that same
day. Appellant’s caseworker testified that appellant had been provided case plan services
with regard to the six other children, including services to address appellant’s mental
health as well as concerns about her association with inappropriate persons, her
questionable supervision of the children and her inability to parent effectively. The
caseworker further testified that at the time of T.T.’s birth, appellant had not completed
any case plan services and was not engaged in mental health treatment. Appellant
conceded that she had not engaged in mental health treatment but stated that she had an
assessment scheduled for the next day. At the conclusion of the hearing, the agency was
granted temporary custody.
3. {¶ 8} On July 11, 2016, an adjudication hearing was held and the parties stipulated
that T.T. was a dependent child.
{¶ 9} The permanent custody hearing was held on August 8, 2016. Appellant’s
caseworker testified that the agency had filed for permanent custody due to mother’s
failure to engage in case plan services and her history of losing custody of her other six
children. Without objection from either parent, the agency introduced into evidence
judgment entries from the legal proceedings related to custody of appellant’s six other
children. The caseworker further testified that appellant did not recognize the need for
services while she was pregnant and stated her belief that permanent custody was in the
child’s best interest.
{¶ 10} Appellant testified that she was not engaged in services prior to giving birth
to T.T., but said she had scheduled an appointment for counseling. She stated that she
had her own house with sufficient finances and supplies for T.T. As to her mental health,
appellant testified that she suffers from postpartum depression, bipolar and major
depressive disorder, anxiety and PTSD. She stated that she had been engaged in mental
health services since May 2016 and admitted that she had failed to complete mental
health services or any other services as required in the earlier cases involving her other
children. Appellant further testified that daycare services were available to her across the
street from her home whenever needed.
{¶ 11} T.T.’s guardian ad litem testified and recommended permanent custody to
the agency. The guardian testified that although appellant assured her she had a friend
4. who had been approved by the agency to provide child care, the friend had never filed the
papers required for approval. The guardian visited appellant’s home twice, in May and
July 2016. She testified that appellant had plenty of food in the home as well as a place
for the baby to sleep and baby clothing. She further testified that there was no working
bathtub at the time of either visit and that the toilet was “filthy.” Appellant told the
guardian that she smokes about a half pack of cigarettes daily, which concerned the
guardian because the home smelled of smoke and T.T. was currently undergoing
breathing treatments prescribed by a doctor. Finally, the guardian stated that T.T.’s foster
parents have expressed a willingness to adopt the child.
{¶ 12} On August 16, 2016, the trial court awarded appellee permanent custody of
T.T.
{¶ 13} Appointed counsel has set forth the following proposed 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.
{¶ 14} 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
5. 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
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.
{¶ 15} The record reflects that the trial court found by clear and convincing
evidence, pursuant to R.C. 2151.353(A)(4) and 2151.414(B)(1)(a), that T.T. cannot and
should not be placed with either parent within a reasonable time. The trial court also
found, under R.C. 2151.414(D)(1), by clear and convincing evidence, that it is in the best
interest of the child to grant permanent custody to the agency and that it would be
contrary to the best interest of the child to reunify with either parent.
{¶ 16} Specifically as to appellant, the trial court found that, under R.C.
2151.414(E)(11), appellant had her parental rights involuntarily terminated with respect
to a sibling of the child and that appellant failed to provide clear and convincing evidence
that, notwithstanding the prior terminations, she can provide a legally secure permanent
placement and adequate care for the child. The trial court noted that in July 2014, the
6. court had terminated mother’s parental rights to two older siblings of T.T. At that time,
appellant’s unresolved issues included mental health issues and failure to complete
related services, and parenting issues.
{¶ 17} Pursuant to R.C. 2151.414(E)(2), the trial court found that appellant has
chronic mental or emotional illness that is so severe that it makes her unable to provide
an adequate permanent home for the child at the present time and, as anticipated, within
one year after the hearing. The trial court noted that appellant admitted to not following
through with counseling services, mental health services or psychiatric medication
management services in the two years following termination of her parental rights in
2014. The trial court further noted that appellant admits having diagnoses of PTSD,
bipolar, and postpartum depression. The trial court concluded that the agency provided
clear and convincing evidence of the elements set forth under R.C. 2151.414(E)(2).
{¶ 18} Additionally, the trial court found it relevant that, under R.C.
2151.414(E)(16), appellant has six other children and custody of none of them. The trial
court found that appellant has repeatedly demonstrated an inability or unwillingness to
complete case plan or mental health services and address the limitations and problems
that caused her to lose custody of her children.
{¶ 19} Under R.C. 2151.414(D)(1)(d), the trial court found that T.T. is doing well
and is stable in his current placement and is in a safe and appropriate environment. The
trial court further found that T.T. is in need of a permanent placement and that placement
can only be achieved through an award of permanent custody. The court concluded that
7. no evidence was presented that the parents can provide a legally secure permanent
placement for the child.
{¶ 20} This court has thoroughly reviewed the record of proceedings in the trial
court, including the trial testimony and exhibits. We find that the trial court clearly heard
sufficient evidence to support its finding that permanent custody should be granted to
Lucas County Children Services. Appointed counsel’s proposed assignment of error is
without merit.
{¶ 21} Upon our own independent review of the record, we find no grounds for a
meritorious appeal. Accordingly, this appeal is found to be without merit and is wholly
frivolous. Appellant’s counsel’s motion to withdraw is found well-taken and is hereby
granted.
{¶ 22} The decision of the Lucas County Court of Common Pleas, Juvenile
Division, is affirmed. Costs of this appeal are assessed to appellant pursuant to
App.R. 24. The clerk is ordered to serve all parties with notice of this decision.
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.
8. In re T.T. C.A. No. L-16-1207
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
9.