[Cite as In re R.J., 2016-Ohio-539.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


In re R.J. fka R.B.                              Court of Appeals No. L-15-1251

                                                 Trial Court No. JC 13237040



                                                 DECISION AND JUDGMENT

                                                 Decided: February 12, 2016

                                          *****

        Dianne L. Keeler, for appellee.

        Christopher S. Clark, for appellant.

                                          *****

        YARBROUGH, J.

                                       I. Introduction

        {¶ 1} Appellant, L.B., appeals the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, terminating her parental rights and awarding
permanent custody of her child, R.J., to appellee, Lucas County Children Services. For

the following reasons, we affirm.

                          A. Facts and Procedural Background

       {¶ 2} This case began on December 5, 2013, at which time appellee filed a

complaint in dependency, abuse, and neglect and a motion for a shelter care hearing.

According to the complaint, appellee had previously received a referral stating that

appellant tested positive for marijuana and benzodiazepine at the time of R.J.’s birth. It

was also reported that appellant was the victim of domestic violence at the hands of R.J.’s

father, C.J.1

       {¶ 3} On that same day, a shelter care hearing was held, and the juvenile court,

with appellant’s consent, awarded interim temporary custody of R.J. to the child’s

maternal great aunt, Y.S. In March 2014, R.J. was moved to foster care due to Y.S.’s

inability to provide adequate protection for the child. According to appellee, the foster

parents are interested in adopting R.J.

       {¶ 4} At the outset of this case, appellee filed a case plan with the juvenile court,

which included the ultimate goal of reunification and provided for counseling and drug

treatment for appellant. As part of the case plan, appellant was also instructed to

participate in a domestic violence survivor’s class.



1
 The juvenile court’s order also terminates the parental rights of R.J.’s father, C.J. C.J.
has not contested the termination of his parental rights, and is therefore not a party to this
appeal.




2.
       {¶ 5} Despite appellee’s provision of the aforementioned case plan services,

appellant failed to address the ongoing threat of domestic violence, opting instead to

continue her relationship with C.J. Notably, in June 2014, C.J. was arrested and charged

with felony domestic violence in June 2014, after he held appellant inside his car and

assaulted her about the head and body. The case was eventually dismissed on account of

appellant’s failure to appear at the hearings.

       {¶ 6} In addition to her failure to participate in domestic violence services,

appellant was convicted of drug possession and unauthorized use of a vehicle. As a

result, she was placed on probation. However, appellant has since violated probation,

leading to the issuance of a bench warrant.

       {¶ 7} In light of the foregoing, appellee, on March 17, 2015, filed a motion for

permanent custody. A hearing on the motion took place on August 13, 2015. Appellant

was present at the hearing, along with her counsel. At the beginning of the hearing, the

juvenile court was notified that appellant wished to waive the hearing and stipulate to the

allegations contained in appellee’s motion. After a thorough colloquy between her and

the court, appellant filed a written waiver of hearing, which was then accepted by the

juvenile court.

       {¶ 8} Based upon appellee’s stipulations, the juvenile court found that R.J. could

not or should not be placed with appellee within a reasonable time. The court based its

finding on the fact that appellee failed continuously and repeatedly to substantially




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remedy the conditions causing R.J. to be placed outside her home. Further, the court

concluded that appellee suffers from a chemical dependency so severe that it makes her

unable to provide a permanent home for R.J. within one year of the date of the hearing.

In addition, the court noted appellee’s written agreement not to contest the award of

permanent custody to appellee.

       {¶ 9} Additionally, given the length of time R.J. had been separated from

appellant, combined with appellant’s lack of progress under her case plan, the juvenile

court found that a grant of permanent custody to appellee was in the best interests of R.J.

under R.C. 2151.414. R.J.’s guardian ad litem also opined that a grant of permanent

custody to appellee was in R.J.’s best interests.

       {¶ 10} Having found that R.J. could not or should not be placed with appellee

within a reasonable time, and that a grant of permanent custody was in R.J.’s best

interests, the juvenile court granted appellee’s motion for permanent custody on

September 10, 2015. It is from this order that appellant now appeals.

       {¶ 11} Based upon the belief that no prejudicial error occurred below, appellant’s

appointed counsel has filed a motion to withdraw and a brief pursuant to Anders v.

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

       {¶ 12} Anders 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




4.
Supreme Court held that if 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. Anders at 744. This request, however, must be accompanied by

a brief identifying anything in the record that could arguably support the appeal. Id.

       {¶ 13} Counsel must also furnish the client with a copy of the brief and request to

withdraw and allow the client sufficient time to raise additional matters. 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.

                                 B. Assignment of Error

       {¶ 14} In his Anders brief, appellate counsel assigns the following potential

error for our review:

              The decision of the trial court to terminate the parental rights of the

       mother, [L.B.], was against the manifest weight of the evidence due to the

       court’s failure to ensure that appellant fully understood the foreseeable

       ramifications resulting from entering into an agreement to terminate her

       parental rights.

Appellant has not filed a pro se brief.




5.
                                        II. Analysis

       {¶ 15} For his only proposed assignment of error, appellate counsel asserts that the

trial court’s termination of appellant’s parental rights was against the manifest weight of

the evidence.

       {¶ 16} In order to terminate parental rights and award permanent custody of a

child to a public services agency under R.C. 2151.353(A)(4), the juvenile court must find,

by clear and convincing evidence, two things: (1) that the child cannot be placed with a

parent within a reasonable time or should not be placed with a parent under R.C.

2151.414(E), and (2) that permanent custody is in the best interests of the child under

R.C. 2151.414(D)(1). 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. It is more than a preponderance of the evidence, but does not

require proof beyond a reasonable doubt. Id.

       {¶ 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, citing In re Andy-Jones, 10th

Dist. Franklin Nos. 03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. In conducting a

review on manifest weight, the reviewing court “weighs the evidence and all reasonable




6.
inferences, considers the credibility of the witnesses and determines whether in resolving

conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest

miscarriage of justice that the [judgment] must be reversed and a new trial ordered.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); Eastley v. Volkman,

132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. We recognize that, as the

trier of fact, the trial court 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).

Thus, “[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.” Eastley at ¶ 21, quoting Seasons

Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, fn. 3, 461 N.E.2d 1273 (1984).

       {¶ 18} Here, appellate counsel contends that the juvenile court erred in failing to

ensure that appellant fully understood the ramifications of her written waiver. “In a case

where parental rights are permanently terminated, it is of utmost importance that the

parties fully understand their rights and that any waiver is made with full knowledge of

those rights and the consequences which will follow.” Elmer v. Lucas Cty. Children

Servs. Bd., 36 Ohio App.3d 241, 245, 523 N.E.2d 540 (6th Dist.1987). When

determining whether a waiver was valid, a reviewing court should take into consideration

the whole record. Id. Regarding waivers in the context of permanent custody

proceedings, we have previously held:




7.
              [F]undamental due process requires that when a parent is waiving the

       fundamental right to care for and have custody of a child, the trial court must have

       a meaningful dialogue with that parent to be certain that the consent is truly

       voluntary. * * * If a parent expresses uncertainty or misunderstandings about his

       or her decision to waive parental rights, the trial court’s acceptance of a waiver is

       improper.” In re Terrence, 162 Ohio App.3d 229, 2005-Ohio-3600, 833 N.E.2d

       306, ¶ 89 (6th Dist.).

      {¶ 19} Having reviewed the record, including the transcript of the permanent

custody hearing at which appellant filed her waiver, we find that the trial court engaged

in a “meaningful dialogue” with appellant prior to accepting her waiver. Initially, the

juvenile court notified appellant of her right to have a hearing on the motion for

permanent custody. The court also informed appellant that she would have a right to

cross-examine witnesses and provide witnesses of her own, and that the motion would

not be granted unless appellee proved that an award of permanent custody was in the best

interests of the child. Regarding appellant’s relationship with R.J., the court explained

that she would “have no right to communicate with [R.J.] after [a grant of permanent

custody] unless whoever adopts him says it’s okay.” Finally, the court asked appellant

whether she had been pressured into consenting to the waiver or whether she was under

the influence of any drugs or medications. She responded to both questions in the




8.
negative. Appellant also affirmed that she had an opportunity to discuss the relevant

issues with her attorney, and that she was satisfied with the legal counsel she received.

         {¶ 20} In light of the thorough colloquy between the juvenile court and appellant in

this case, we find no merit to appellate counsel’s argument that appellant entered her

waiver without adequate knowledge of the ramifications springing therefrom. Moreover,

we find that the trial court’s findings under R.C. 2151.414 are supported by the record

and are not against the manifest weight of the evidence.

         {¶ 21} Accordingly, appellate counsel’s proposed assignment of error is not well-

taken.

                                       III. Conclusion

         {¶ 22} This court, as required under Anders, has undertaken our own examination

of the record to determine whether any issue of arguable merit is presented for appeal.

We have found none. Accordingly, we grant counsel’s motion to withdraw.

         {¶ 23} The judgment of the Lucas County Court of Common Pleas, Juvenile

Division, is affirmed. Costs are hereby assessed to appellant in accordance with App.R.

24. The clerk is ordered to serve all parties with notice of this decision.




                                                                         Judgment affirmed.




9.
                                                                        In re R.J. fka R.B.
                                                                                L-15-1251




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              ____________________________
                                                       JUDGE
Thomas J. Osowik, J.
                                               ____________________________
Stephen A. Yarbrough, 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.




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