[Cite as In re C.S., 2017-Ohio-8664.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105700




                                        IN RE: C.S.
                                        Minor Child
                                 [Appeal By F.S., Mother]



                                        JUDGMENT:
                                         DISMISSED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. AD 15916914

        BEFORE: E.A. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: November 22, 2017
ATTORNEYS FOR APPELLANT

John H. Lawson
The Brownhoist Building
4403 St. Clair Ave.
Cleveland, Ohio 44103

Mark A. Stanton
Cuyahoga County Public Defender
Sarah E. Gatti
Assistant Public Defender
9300 Quincy Ave.
Cleveland, Ohio 44106

F. S.
944 Rondel Road
Cleveland, Ohio 44110

FOR F.S.

Paul A. Daher & Associates
700 W. St. Clair Ave., Suite 218
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Cheryl Rice
       Anthony R. Beery
       Michelle A. Myers
Assistant Prosecuting Attorneys
3955 Euclid Avenue, 3rd Floor
Cleveland, Ohio 44115




                                   -ii-
FOR CHILDREN

Candace L. Brown
P.O. Box 286
Medina, Ohio 44258
EILEEN A. GALLAGHER, P.J.:

       {¶1}   F.S. (referred to herein as “appellant”), the mother of C.S., filed an appeal

from the juvenile court order awarding permanent custody of C.S. to the Cuyahoga

County Department of Children and Family Services (“CCDCFS”). Appellant’s counsel

has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967), asserting that following an examination of the record there

are no meritorious grounds for appeal. After holding the motion in abeyance to give

appellant an opportunity to file a pro se brief, and following our independent review, this

court grants appointed counsel’s motion to withdraw and we dismiss the appeal.

       Factual and Procedural Background

       {¶2} On December 7, 2015, several days after C.S. was born, CCDCFS filed a

complaint alleging that C.S. was an abused and dependent child and asking the court to

award temporary custody to the agency.       The trial court held a hearing on the matter of

temporary custody and appellant denied the allegations of the complaint but agreed to

stipulate to the motion for predispositional temporary custody.

       {¶3} In March 2016, appellant stipulated to an amended complaint and admitted

that she and C.S. had tested positive for marijuana at the time of C.S.’s birth, that she has

a substance abuse problem that requires treatment, that she is in need of an updated

mental health assessment, that she was transient and that she has three other children who

are currently in the legal custody of relatives.

       {¶4} On November 9, 2016, CCDCFS filed a motion to modify temporary custody
to permanent custody due to appellant’s lack of progress on the case plan towards

unification.   The case proceeded to a trial on March 14, 2017, where the following

testimony was elicited.

       {¶5} Nathaniel Martin, the CCDCFS social worker assigned to the case, testified

that paternity had never been established for C.S.     Martin testified that appellant had a

long history of substance abuse dating back to 2006. Appellant completed a drug and

alcohol assessment in this case but failed to follow the treatment recommendation from

the assessment.   Appellant refused to comply with treatment because she did not feel she

had an addiction and was removed from one treatment group for being disruptive.

Appellant further refused Martin’s request that she submit to a hair sample drug test

because it would have been “dirty.”

       {¶6} Martin testified that appellant had been previously diagnosed with bipolar

and mood disorder. Appellant completed a mental health assessment in this case and

was diagnosed with situational depression due to grief, loss and situational homelessness.

 Individualized counseling was recommended but appellant never engaged.           Appellant

was prescribed medication but failed to refill the prescription.

       {¶7} Martin testified that appellant has a history of transiency since 2012. During

the pendency of this case, appellant lived at the home of a friend in Warrensville, Ohio.

Appellant conceded that living with her friend was not a permanent housing situation and

that she never set up a CCDCFS inspection visit of the home for that reason.      Appellant

testified that, at the time of trial, she was getting her finances in order so that she could
move into her own residence.

       {¶8} Martin testified that from December 2015 until June 2016, appellant appeared

for weekly visits with C.S. roughly three times a month. After June 2015, appellant

“kind of disappeared,” attending only one visit in July and then failing to appear for any

visits until she appeared for one visit in November and two visits in December.

Appellant had not appeared for any visits from December 29, 2016 through the date of

trial, March 14, 2017.

       {¶9} Martin testified that CCDCFS was unable to place C.S. with any of

appellant’s family members. Brown, C.S.’s guardian ad litem, testified that C.S. was

doing well in foster care, was bonded to his fother mother and integrated into a family

that was willing to adopt him. Both Brown and Martin testified that permanent custody

was in C.S.’s best interests.

       Law and Analysis

       I. Anders Standard and Potential Issues for Review

       {¶10} In Anders, the United States Supreme Court held that if appointed counsel,

after a conscientious examination of the case, determines the appeal to be wholly

frivolous, he or she should advise the court of that fact 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. Further,

counsel must also furnish the client with a copy of the brief and allow the client sufficient

time to file his or her own brief. Id.
       {¶11} Once the appellant’s counsel satisfies these requirements, this court must

fully examine the proceedings below to determine if any arguably meritorious issues

exist. Id.; Loc.App.R. 16(C). If we determine that the appeal is wholly frivolous, we may

grant counsel’s request to withdraw and dismiss the appeal without violating

constitutional requirements or we may proceed to a decision on the merits if state law so

requires. Anders; Loc.App.R. 16(C).

       {¶12} In this case, appointed counsel has not set forth potential assignments of

error but instead set forth a detailed analysis of the record and the controlling case law

and asserts:

       The undersigned has read the initial adjudicatory and dispositional hearing
       Transcript * * * and the permanent custody Trial Transcript * * * and
       reviewed all pertinent documents from the trial court’s records, including
       motions, orders, and the Guardian ad litem’s reports.

       ***

       Based upon this review, the undersigned cannot discern any meritorious
       issues.

       ***

       There is clear and convincing evidence presented at trial that [Appellant]
       has failed to remedy the issues which cause [sic] the removal of C.S. in
       December, 2015. [Appellant] has show[n] a lack of commitment toward
       C.S., and is unable to provide a home for the child. She has also lost
       custody of three (3) other children. The factual elements pursuant to R.C.
       2151.414(E)(4) have been proven. (Mother’s lack of commitment by clear
       and convincing evidence).

       Additionally, the evidence that the permanent custody decision is in the
       child’s best interest pursuant to R.C. 2151.414(D) has also been proven by
       clear and convincing evidence.
      Therefore, the undersigned submits this Anders Brief as no meritorious
      issues exist in the trial transcript and records.

      {¶13} Although Anders arose in a criminal context, this court approved the

application of the Anders procedure to an appeal from the juvenile court’s denial of a

motion for legal custody in In re T.E., 8th Dist. Cuyahoga No. 104228, 2016-Ohio-5935.

Other courts throughout the state have also determined that Anders is appropriate in

appeals involving the termination of parental rights. See In re S.G., 2d Dist. Greene No.

2009-CA-46,      2010-Ohio-2641; In re D.M., 4th Dist. Hocking No. 14CA22,

2016-Ohio-1450; In re J.K., 4th Dist. Athens No. 09CA20, 2009-Ohio-5391; In re B.F.,

5th Dist. Licking No. 2009-CA-007, 2009-Ohio-2978; In re T.S., 6th Dist. Lucas No.

L-15-1158, 2015-Ohio-4885; In re Cuichta, 7th Dist. Belmont No. 97 BA 5, 1999 Ohio

App. LEXIS 1193 (Mar. 23, 1999); In re K.D., 9th Dist. Wayne No. 06CA27,

2006-Ohio-4730; Morris v. Lucas Cty. Children Servs. Bd., 49 Ohio App.3d 86, 86-87,

550 N.E.2d 980 (6th Dist.1989); In re G.K., 12th Dist. Preble Nos. CA2015-01-006 and

CA2015-02-007, 2015-Ohio-2581. But see In re J.M., 1st Dist. Hamilton No. C-130643,

2013-Ohio-5896, ¶ 19 (reaching a contrary conclusion).

      II. Independent Review

      {¶14} “All children have the right, if possible, to parenting from either [biological]

or adoptive parents which provides support, care, discipline, protection and motivation.”

In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hitchcock,

120 Ohio App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996). Likewise, a “parent’s right to

raise a child is an essential and basic civil right.” In re N.B., 8th Dist. Cuyahoga No.
101390, 2015-Ohio-314, ¶ 67, quoting In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680

(1997). By terminating parental rights, the goal is to create “a more stable life” for

dependent children and to “facilitate adoption to foster permanency for children.” In re

N.B. at ¶ 67, citing In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App.

LEXIS 7860, 5 (Aug. 1, 1986). However, termination of parental rights is “the family law

equivalent of the death penalty in a criminal case.” In re J.B. at ¶ 66, quoting In re

Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. It is, therefore, “an

alternative [of] last resort.” In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶

21.

       {¶15} In cases of abuse, neglect, and dependency, a trial court may enter a

disposition of permanent custody of a child if the court determines by clear and

convincing evidence that the child cannot or should not be placed with either parent

within a reasonable period of time and that permanent custody is in the child’s best

interest. See R.C. 2151.353(A)(4) and 2151.414(D), (E).

       {¶16} “Clear and convincing evidence” is that measure or degree of proof that is

more than a “preponderance of the evidence,” but does not rise to the level of certainty

required by the “beyond a reasonable doubt” standard in criminal cases. In re M.S., 8th

Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8, citing In re Awkal, 95

Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing Lansdowne v. Beacon

Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987). It

“produces in the mind of the trier of fact a firm belief or conviction as to the facts sought
to be established.” In re M.S. at ¶ 18; see also In re J.F., 11th Dist. Trumbull No.

2011-T-0078, 2011-Ohio-6695, ¶ 67 (a permanent custody decision “based on clear and

convincing evidence requires overwhelming facts, not the mere calculation of future

probabilities”) (emphasis omitted), quoting In re A.J., 11th Dist. Trumbull No.

2010-T-0041, 2010-Ohio-4553, ¶ 76. “An appellate court will not reverse a juvenile

court’s termination of parental rights and award of permanent custody to an agency if the

judgment is supported by clear and convincing evidence.” In re Jacobs, 11th Dist.

Geauga No. 99-G-2231, 2000 Ohio App. LEXIS 3859, *11 (Aug. 25, 2000), citing In re

Taylor, 11th Dist. Ashtabula No. 97-A-0046, 1999 Ohio App. LEXIS 2620 (June 11,

1999).

         {¶17} The trial court’s determination of whether the child cannot or should not be

placed with either parent is guided by R.C. 2151.414(E). This section sets forth 16 factors

that the trial court may consider in its determination. It provides that if the trial court finds

by clear and convincing evidence that any of the 16 factors exists, the court must enter a

finding that the child cannot or should not be placed with either parent within a

reasonable period of time. In re D.J., 8th Dist. Cuyahoga No. 88646, 2007-Ohio-1974, ¶

64.

         {¶18} In this instance, the trial court made the following findings pursuant to R.C.

2151.414(E)(1), (2), (3), (4) and (14):

         Following the placement of the child outside the child’s home and
         notwithstanding reasonable case planning and diligent efforts by the 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.

      The mother has a chronic mental illness and or chemical dependency that is
      so serve [sic] that it makes the mother 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 in this matter.

      Mother has neglected the child between the date of the original complaint
      was filed and the date of the filing of this motion by failure to regularly
      visit, communicate or support the child.

      Mother had demonstrated a lack of commitment towards the child by failing
      to regularly support, visit, communicate with the child when able to do so
      and or by her other actions, has shown an unwillingness to provide an
      adequate permanent home to the child.

      Mother is unwilling to provide stable housing for the child.

      Mother is unwilling to provide food, clothing, shelter, and other necessitates
      [sic] for the child or to prevent the child from suffering emotional or mental
      neglect, as evidenced by their unwillingness to successfully complete a case
      plan so they can provide care for the child.

      {¶19} The existence of one R.C. 2151.414(E) factor alone will support a finding

that a child cannot be reunified with the parents within a reasonable time. See In re

William S., 75 Ohio St.3d 95, 99, 661 N.E.2d 738 (1996); In re C.F., 113 Ohio St.3d 73,

2007-Ohio-1104, 862 N.E.2d 816, ¶ 50. In this instance, the testimony set forth above

plainly demonstrates that appellant failed to substantially remedy the conditions causing

C.S. to be placed outside the home.   Furthermore, the record clearly demonstrated a lack

of commitment towards C.S. by appellant as evidenced by the significant gaps in

appellant’s visitations. The trial court’s conclusion that C.S. cannot or should not be

placed with appellant within a reasonable period of time was supported by clear and
convincing evidence in the record.

       {¶20} The trial court also found that a grant of permanent custody was in the best
interests of C.S. pursuant to the factors set forth in R.C. 2151.414(D). R.C.
2151.414(D)(1) directs that the trial 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
       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.

R.C. 2151.414(D)(1).

       {¶21} We review a trial court’s determination of a child’s best interest under R.C.

2151.414(D) for an abuse of discretion. In re D.A., 8th Dist. Cuyahoga No. 95188,

2010-Ohio-5618, ¶ 47. An abuse of discretion is more than a mere error judgment; it

implies that the court’s decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). While a trial
court’s discretion in a custody proceeding is broad, it is not absolute. “A trial court’s

failure to base its decision on a consideration of the best interests of the child constitutes

an abuse of discretion.” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 60,

citing In re T.W., 8th Dist. Cuyahoga No. 85845, 2005-Ohio-5446, ¶ 27, citing In re

Adoption of Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991).

       {¶22} We find no abuse of discretion in the trial court’s conclusion that permanent

custody is in the best interests of C.S. Both the social worker and the GAL testified that

permanent custody was in C.S.’s best interests. The GAL detailed C.S.’s successful

placement into a stable foster home wishing to adopt him.            Conversely, the record

detailed appellant’s inability to provide a stable home for C.S.

       {¶23} Accordingly, we agree that there is no merit to an appeal so we grant

counsel’s motion to withdraw and we dismiss this appeal.

       {¶24} This appeal is dismissed.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
