In re B.K. , 2017 Ohio 7773 ( 2017 )

[Cite as In re B.K., 2017-Ohio-7773.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re B.K., A.K. Court of Appeals Nos. L-17-1082
Trial Court No. JC 15251209
DECISION AND JUDGMENT
Decided: September 22, 2017
*****
Stephen D. Long, for appellant.
*****
JENSEN, P.J.
{¶ 1} This is an appeal from the March 14, 2017 judgment of the Lucas County
Court of Common Pleas, Juvenile Division, terminating the parental rights of appellant
M.E. (“mother”) and T.K. (“father”), and awarding permanent custody of A.K. (born
December, 2014) and B.E. (born December 2011) to appellee, Lucas County Children
Services (“LCCS”). For the reasons that follow, we affirm the judgment of the trial
court.
{¶ 2} Preliminarily, we note that father consented to an award of permanent
custody of the children to LCCS. He is not a party to this appeal. Thus, our discussion
and analysis will focus on the facts as they pertain to mother.
{¶ 3} On October 30, 2015, LCCS filed a complaint and motion for temporary
custody. The complaint alleged, in relevant part, that the children were dependent and
neglected; mother was using heroin regularly and the children “had a bedroom with
blankets on the floor, but no beds.” A shelter care hearing was held and the children
were placed in the temporary custody of LCCS. Mother was offered case plan services
with a goal of reunification.
{¶ 4} On September 29, 2016, LCCS filed a motion for permanent custody. The
matter went to trial on February 28, 2017.
{¶ 5} LCCS caseworkers testified that mother’s case plan required her to undergo
a dual assessment for mental health and substance abuse issues. The plan also required
her to take parenting classes.
{¶ 6} Mother completed her substance abuse assessment in February 2016 and
was found to be opiate dependent. She was referred to A Renewed Mind to begin
intensive outpatient treatment. A few months after she began treatment, mother starting
using heroin again. She was discharged from A Renewed Mind as unsuccessful. In
2.
October of 2016, mother had a second substance abuse assessment. Mother began
weekly counseling at the Zepf Center, referred, once again to intensive outpatient
treatment.
{¶ 7} On December 31, 2016, mother gave birth to a third baby. At birth, the child
tested positive for opiates. LCCS became involved with the baby in a separate action.
{¶ 8} In regard to visitation, caseworkers testified that mother missed more than
half of her scheduled visits with A.K. and B.E.
{¶ 9} Caseworkers testified that A.K. and B.E. were placed together and doing
well in foster care. The caseworker assigned to the family at the time of trial opined that
permanent custody would be in the children’s best interest.
{¶ 10} At trial, mother admitted that she had a substance abuse problem and that
she used heroin a “couple of days” before trial. She also admitted that she missed “a little
over half” of the scheduled visits with A.K. and B.E. Mother indicated that she loves her
children and that “it would be hard without having them.” She asked the court to
consider giving her an “extension” so that she could get clean and sober, find a place to
live and take parenting classes.
{¶ 11} The guardian ad litem testified that during the 16 months the case
was pending, she met with A.K. and B.E. on several occasions. When asked
whether she agreed with the LCCS recommendation of permanent custody, the
guardian ad litem stated:
At this point there’s really no other alternative available to the
children. And mother has for the most part not really ever engaged and
3.
been successful in any period of sobriety or any of her services for more
than a couple of months.
***
Their parents appear to have very significant substance issues that
prevent them from doing what they need to regain custody of the children
to properly parent the children
{¶ 12} On March 14, 2017, the trial court terminated mother’s parental
rights and awarded permanent custody of A.K. and B.E. to LCCS. Mother
appealed.
{¶ 13} On July 11, 2017, mother’s appointed counsel filed a request to withdraw
pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
He asserts that after review of the record he was unable to identify any colorable error
which he feels would support reversal of the trial court’s decision. Counsel submits one
potential assignment of error for consideration:
THE TRIAL COURT ERRED IN FINDING THAT PERMANENT
CUSTODY WAS SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE; AND THE GRANT OF PERMANENT CUSTODY WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 14} The procedure to be followed by appointed counsel who desires to
withdraw for want of a meritorious, appealable issue is set forth in Anders. Id. There, the
Supreme Court of the United States found that if counsel, after a conscientious
examination of the case, determines the appeal to be wholly frivolous, he should advise
4.
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 furnish the client with a copy of the brief, request to
withdraw, and allow the client sufficient time to raise any matters she chooses. Id. Once
these requirements have been satisfied, the appellate court must conduct a full
examination of the proceedings held below and determine if the appeal is indeed
frivolous. Id. 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 it may proceed to a decision on the merits if required by state law. Id.
The procedures in Anders apply to appeals involving the termination of parental rights. In
re B.H., 6th Dist. Lucas No. L-15-1166, 2015-Ohio-5495, ¶ 5, citing Morris v. Lucas Cty.
Children Servs. Bd., 49 Ohio App. 3d 86, 550 N.E.2d 980 (6th Dist.1989), syllabus.
{¶ 15} Here, appellant's counsel fulfilled the requirements set forth in Anders.
Appellant did not file a pro se brief or otherwise respond to counsel's request to
withdraw. We shall proceed with an examination of the potential assignment of error set
forth by appellant's counsel as well as the entire record below to determine if this appeal
lacks merit and is, therefore, wholly frivolous.
{¶ 16} Before a trial court may terminate parental rights and award permanent
custody of a child to the moving agency, it must find clear and convincing evidence of
both prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has
been in the temporary custody of the agency for at least 12 months of a consecutive 22-
month period, or that the child cannot be placed with either parent within a reasonable
5.
time or should not be placed with either parent, based on an analysis under R.C.
2151.414(E); and (2) that the grant of permanent custody to the agency is in the best
interest of the child, based on an analysis under R.C. 2151.414(D). In re R.L., 9th Dist.
Summit Nos. 27214, 27233, 2014-Ohio-3117, ¶ 22, citing R.C. 2151.414(B)(1) and
2151.414(B)(2); In re William S., 75 Ohio St. 3d 95, 99, 661 N.E.2d 738 (1996).
{¶ 17} A trial court’s determination in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence. In re A.H.,
6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11. The factual findings of a trial
court are presumed correct since, as the trier of fact, it is in the best position to weigh the
evidence and evaluate the testimony. In re Brown, 98 Ohio App. 3d 337, 342, 648 N.E.2d
576 (3d Dist.1994). Moreover, “[e]very reasonable presumption must be made in favor
of the judgment and the findings of facts [of the trial court].” Karches v. Cincinnati, 38
Ohio St. 3d 12, 19, 526 N.E.2d 1350 (1988). Thus, judgments supported by some
competent, credible evidence going to all essential elements of the case are not against
the manifest weight of the evidence. Id.
{¶ 18} Here, the trial court found that the first prong of the permanent custody test
was satisfied by a finding that the child could not be placed with either parent in a
reasonable time or should not be placed with either parent. See R.C. 2151.414(B)(1)(a).
In so finding, the court relied upon R.C. 2151.414(E)(1), (2), and (4).
{¶ 19} R.C. 2151.414(E) provides, in relevant part:
(1) Following the placement of the child outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by the
6.
agency to assist the parents to remedy the problems that initially caused the
child to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(2) * * * chemical dependency of the parent that is so severe that it
makes parent unable to provide an adequate permanent home for the child
at the present time and, as anticipated, within one year after the court holds
the hearing pursuant to division (A) of this section or for the purposes of
division (A)(4) of section 2151.353 of the Revised Code.
***
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child
when able to do so, or by other actions showing an unwillingness to provide
an adequate permanent home for the child * * *.
{¶ 20} As to R.C. 2151.414(E)(1), the trial court found that mother was offered
reasonable case plan services to address her opiate dependency. On two occasions,
mother was referred to intensive outpatient treatment. She began intensive outpatient
7.
treatment, relapsed, and in time, began counseling with the Zepf Center. At the time of
trial she had begun the intensive outpatient treatment to which she had been referred.
However, mother admitted to using heroin two days before trial.
{¶ 21} As to R.C. 2151.414(E)(2), the trial court found that at the time of trial,
mother was “not able to provide an adequate permanent home for the children * * * as
she has not has not been able to demonstrate a long period of sobriety and is not likely to
provide that home for at least a year.” The trial court indicated that mother’s addiction to
heroin began prior to LCCS involvement and that despite beginning intensive outpatient
treatment, mother was not able to successfully complete the substance abuse services.
{¶ 22} As to R.C. 2151.414(E)(4), the trial court found that mother failed to
demonstrate a commitment toward the children by “failing to regularly support, visit, or
communicate with the children when able to do so.” The trial court found that mother
missed over half of her scheduled visitations with the children.
{¶ 23} In regard to the second prong of the permanent custody test, the trial court
determined, pursuant to R.C. 2151.414(D)(1), that the “children are in need of a legally
secure permanent plan and that this cannot be achieved without a grant of permanent
custody to LCCS.” At the time of trial, the children had been in the temporary custody of
LCCS for 16 months. During that time, the children were placed together. Prior to trial,
the children had begun visiting with persons interested in adopting them. At trial, both
the guardian ad litem and the caseworker recommended an award of permanent custody
to LCCS.
8.
{¶ 24} 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's decision
was supported by clear and convincing evidence, and was not against the manifest weight
of the evidence. Appointed counsel's potential assignment of error is without merit.
{¶ 25} 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.
{¶ 26} The March 14, 2017 judgment 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.
Thomas J. Osowik, J. _______________________________
JUDGE
James D. Jensen, P.J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
9.