[Cite as In re Na.S., 2015-Ohio-4476.]




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


In re Na.S. aka Na.B., Ni.S.                       Court of Appeals No. L-15-1159
aka Ni.B., Ne.S.                                                        L-15-1162

                                                   Trial Court No. JC 14238045


                                                   DECISION AND JUDGMENT

                                                   Decided: October 28, 2015

                                            *****

        Laurel A. Kendall, for appellant.

        Jeremy G. Young, for appellee.

                                            *****

        YARBROUGH, P.J.

                                         I. Introduction

        {¶ 1} Appellants, P.K. and T.K., appeal the judgment of the Lucas County Court

of Common Pleas, Juvenile Division, terminating the parental rights of A.S. and S.S. and
awarding permanent custody of the grandchildren, Na.S., Ni.S., and Ne.S. (collectively,

“the children”), to appellee, Lucas County Children Services (LCCS). For the following

reasons, we affirm.

                         A. Facts and Procedural Background

       {¶ 2} LCCS became involved in this case in November 2012, when A.S. gave

birth to Ne.S. At that time, both A.S. and Ne.S. tested positive for opiates, and A.S.

admitted to ongoing heroin usage throughout her pregnancy.

       {¶ 3} Once involved in the case, LCCS removed the children from the custody of

A.S. and S.S. Na.S. and Ni.S. were placed with S.L., who was not related to the children

but had a “very strong relationship” with A.S. Ne.S. was placed with appellants. P.K. is

A.S.’s adoptive mother and the maternal grandmother of the children. P.K. is married to

T.K.

       {¶ 4} One year later, LCCS filed a motion for a transfer of custody of the children

to appellants. The motion was filed at the request of S.L., who stated that a change in

custody would be best for the children due to “personal issues that she was having with

her family regarding the care of the children.” LCCS’s motion was eventually granted,

and, in November 2013, appellants received custody of the children.

       {¶ 5} On January 24, 2014, less than three months after appellants took custody of

the children, Toledo Police Detective Hahn was called to the hospital to investigate an

incident that resulted in a broken leg to Ni.S., who was two-years-old at the time. Upon

arrival at the hospital, Hahn interviewed P.K., who stated that the fractured leg happened




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when Ni.S. fell off of a table in the living room. Hahn was informed by medical staff that

this type of injury (a "spiral break") was not common under these circumstances for a

two-year-old boy.

       {¶ 6} Hahn then traveled to appellants’ home. Once inside, he detected a strong

odor of urine. He proceeded to speak with T.K. about the incident, and T.K. stated that

the injury occurred when Ni.S. fell off of the dining room table, not the living room table.

       {¶ 7} Mary Seng, a patrol officer for the Toledo Police Department, was also

present during much of Hahn's investigation, and was alongside Hahn when he visited

appellants’ home. While there, Seng took several photographs depicting the conditions

of the home. Seng testified at the dispositional hearing in this case, stating that the room

in which the two boys were sleeping was “very stark and bare.” The room was empty

and the mattresses upon which the boys slept were lying on the floor with no box springs

or sheets. The bed frame was leaning against the wall, and Seng was concerned that it

could fall on the boys if they tried to climb on it. Seng acknowledged that the remainder

of the house was clean.

       {¶ 8} Upon further questioning, T.K. admitted that he dropped Ni.S. while trying

to discipline him. He also stated that, after the injury occurred, Ni.S. began crying and

was given some Tylenol and ice overnight. Despite his intermittent crying throughout the

night, Ni.S. was not taken to the hospital until the following morning. T.K. subsequently

pleaded guilty to attempted child endangering as a result of the incident, and, as part of

his sentence, was ordered to have no unsupervised contact with minors.




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        {¶ 9} On January 27, 2014, LCCS filed a complaint in the juvenile court alleging

dependency, neglect, and abuse, and moving the court for a shelter care hearing. On the

same day the complaint was filed, a shelter care hearing was held, after which LCCS was

awarded temporary custody. Upon removing the children from appellants’ home, LCCS

placed the children with S.S.’s sister, J.J. J.J. is a licensed foster parent residing in

Monroe, Michigan.

        {¶ 10} At the time of removal, LCCS was not offering case plan services to

appellants. Indeed, LCCS filed a motion with the court to have appellants removed as

parties in this action. Nonetheless, the LCCS caseworker assigned to this case, DaNelle

Flowers, testified that appellants were voluntarily participating in case plan services.

Ultimately, the juvenile court denied LCCS’s motion to dismiss appellants on June 10,

2014.

        {¶ 11} One month later, LCCS filed a motion for permanent custody, seeking the

modification of the temporary custody order to an order terminating parental rights and

awarding permanent custody of the children to LCCS. In their motion, LCCS asserted

that the children could not be placed with either of their parents or appellants within a

reasonable time or should not be so placed pursuant to R.C. 2151.414(B)(1)(a), and that

permanent custody was in the children’s best interests under R.C. 2151.414(D).

        {¶ 12} While LCCS’s motion remained pending, on August 14, 2014, an amended

case plan was filed, adding appellants to the case plan. Through the amended case plan,

LCCS eventually provided services for appellants, including mental health assessments




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and parenting services. By the time of the dispositional hearing, appellants had either

completed, or were in the process of completing, their case plan services.

        {¶ 13} Meanwhile, LCCS implemented case plan services for A.S., including a

diagnostic assessment, a parenting service, resource management, and domestic violence

services. Flowers stated that A.S. participated in case plan services from March 2014

until November 2014, at which time she relapsed on heroin. According to P.K.’s

testimony, A.S. started using drugs at an early age. P.K. also stated that she recently

ordered A.S. out of her home after she discovered that A.S. stole several items from the

home. When P.K. ordered A.S. to leave, A.S. pushed P.K. to the ground and punched her

twice in the head. During a prior custody proceeding, P.K. testified that she would no

longer allow A.S. back into the home. Despite her prior testimony, P.K. acknowledged

that she did allow A.S. to return to the home.

        {¶ 14} After A.S.’s relapse, she began to miss appointments with her counselors

and failed to appear for drug screenings. Further, A.S. stopped contacting Flowers, and

has not seen the children since December 2014. At the hearing, Flowers stated that A.S.

has been incarcerated on three separate occasions since LCCS became involved in this

case.

        {¶ 15} S.S. also participated in case plan services, although his participation was

delayed until the summer of 2014 as a result of his incarceration for theft. According to

Flowers, S.S.’s participation in case plan services ceased after A.S. relapsed in November

2014. Like A.S., S.S. stopped visiting the children in December 2014.




5.
       {¶ 16} The dispositional hearing on LCCS’s motion for permanent custody took

place on April 14 and 27, 2015. A.S. and S.S. failed to appear at the dispositional

hearing, and their attorneys were unaware of their whereabouts, stating that they tried

several times to contact them to no avail. Consequently, the attorneys moved to

withdraw at the beginning of the hearing, and their motions were granted without

opposition.

       {¶ 17} In its case-in-chief, LCCS called Flowers to testify regarding the

development of the case and the placement of the children with J.J. As to the children’s

placement, Flowers stated that the children interact positively with J.J. and are doing well

under her supervision. Additionally, Flowers stated that J.J. provides a stable, structured

environment for the children. Flowers also testified that J.J. would adopt the children if

LCCS was awarded permanent custody in this case.

       {¶ 18} The children’s guardian ad litem, Alanna Paully, also testified at the

hearing. When questioned about returning the children to appellants, she voiced several

concerns. First, Paully was concerned about the safety of the children in light of the

incident in which Ni.S.’s leg was fractured. Second, Paully stated that she was concerned

that T.K. “is on a three-year no unsupervised contact via probation. And with four kids

under four in the home, I’m finding it hard to see how he is going to be supervised 24

hours a day.” Finally, Paully was troubled by the disparity between the “welcoming”

condition of the girls’ bedroom and the “bare” conditions of the boys’ bedroom.




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Ultimately, Paully determined that the children’s best interests would be served by a

grant of permanent custody to LCCS.1 In explaining the basis for her recommendation,

Paully stated the following, in part:

              It’s first in their best interest to all remain together, and they’re in a

       placement that can facilitate that. It’s also, I believe, in their best interest to

       be able to visit with [their sister,] which this placement will allow to occur.

       And it’s in their best interest that they’re in a safe, comfortable

       environment which [J.J.] has provided.

       {¶ 19} At the conclusion of the hearing, the juvenile court found that “the parents

and legal custodians have not demonstrated that they can make the changes necessary to

keep the children safe or provide an adequate, permanent home for the children.” The

court went on to state that “LCCS presented evidence that [appellants] were

overwhelmed within a few weeks of having the children placed with them. The pictures

of the home clearly demonstrate a dividedly sharp contrast between the boys’ room and

the girls’ room in the grandparents’ home.”

       {¶ 20} In sum, the court found that appellants were not appropriate relatives for

the placement of the children, given the “unacceptable risk” involved in exposing the

children to further conflict between P.K. and A.S. Rather, the court determined that an

award of permanent custody to LCCS was warranted in light of the custodial history of

the children and the injuries sustained by Ni.S. while under appellants’ care.

1
  Paully also testified that the children were incapable of expressing their wishes
regarding custody due to their ages and lack of understanding of the proceedings.



7.
Consequently, the court granted LCCS’s motion for permanent custody, thereby

terminating parental rights to the children. It is from this order that appellants now

appeal.

       {¶ 21} Based upon the belief that no prejudicial error occurred below, appellants’

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).

       {¶ 22} 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

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.

       {¶ 23} 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.




8.
                                B. Assignments of Error

       {¶ 24} In her Anders brief, appellants’ counsel assigns the following potential

errors for our review:

              Potential Assignment of Error 1: The trial court erred in finding that

       Lucas County Children Services proved by clear and convincing evidence

       that the parents herein failed continuously and repeatedly to substantially

       remedy the conditions causing the children to be placed outside the

       children’s home. R.,C. 2151.414(E)(1).

              Potential Assignment of Error 2: The trial court erred in finding that

       Lucas County Children Services proved by clear and convincing evidence

       that maternal grandparents committed abuse, and that the seriousness,

       nature, or likelihood of recurrence of the abuse makes the children’s

       placement with the maternal grandparents a threat to the children’s safety.

       R.C. 2151.414(E)(15).

              Potential Assignment of Error 3: The trial court erred in finding that

       a foster parent who uses marijuana on a regular basis is appropriate for

       providing care for minor children adjudicated as abused, neglected or

       dependent by the Lucas County Domestic Relations Court – Juvenile

       Division, and placed in the temporary care of Lucas County Children

       Services.

       {¶ 25} Appellants have not filed a brief of their own.




9.
                                        II. Analysis

       {¶ 26} 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 children cannot be placed with

one of their parents within a reasonable time or should not be placed with their parents

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.

       {¶ 27} “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

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




10.
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).

       {¶ 28} In counsel’s first potential assignment of error, she argues that the trial

court erroneously found that A.S. and S.S. failed to substantially remedy the conditions

that led to the removal of the children under R.C. 2151.414(E)(1). We disagree.

       {¶ 29} R.C. 2151.414(E)(1) provides,

              (E) In determining at a hearing * * * whether a child cannot be

       placed with either parent within a reasonable period of time or should not

       be placed with the parents, the court shall consider all relevant evidence. If

       the court determines, by clear and convincing evidence, * * * that one or

       more of the following exist as to each of the child’s parents, the court shall

       enter a finding that the child cannot be placed with either parent within a

       reasonable time or should not be placed with either parent:

              (1) 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




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       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.

       {¶ 30} Here, the record establishes that A.S. was provided case plan services

including a diagnostic assessment, parenting services, resource management services, and

domestic violence services. In her testimony on this issue, Flowers stated that A.S.

initially participated in case plan services but failed to complete the services following

her relapse in November 2014. After the relapse, A.S. began to miss appointments with

her counselors and failed to appear for drug screenings. Further, A.S. stopped contacting

Flowers, and has not seen the children since December 2014.

       {¶ 31} Concerning S.S., the record shows that LCCS offered him case plan

services, although his participation was delayed until the summer of 2014 as a result of

his incarceration for theft. According to Flowers’ testimony, S.S.’s participation in case

plan services also ended in November 2014, and S.S. stopped visiting the children in

December 2014.

       {¶ 32} Given the unrefuted testimony of Flowers regarding A.S. and S.S.’s failure

to complete their case plan services, as well as the fact that the parents have relapsed on




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heroin, the issue that caused the children to be removed from the home in the first place,

we find that A.S. and S.S. failed to substantially remedy the conditions that led to the

removal of the children despite reasonable case planning designed to help them do so.

Consequently, counsel’s first potential assignment of error is not well-taken.

       {¶ 33} In counsel’s second potential assignment of error, she contends that the

trial court erred in finding that appellants committed abuse, and that the seriousness,

nature, or likelihood of recurrence of such abuse makes the children’s placement with

appellants a threat to the children’s safety under R.C. 2151.414(E)(15).

       {¶ 34} As noted above, the trial court, upon a finding that that one or more of the

factors outlined in R.C. 2151.414(E) exist as to each of the parents, shall enter a finding

that the children cannot be placed with either parent within a reasonable time or should

not be placed with either parent. Having found that the trial court’s conclusion with

regard to R.C. 2151.414(E)(1) was not against the manifest weight of the evidence, we

find that the trial court properly entered a finding that the children cannot be placed with

either parent within a reasonable time or should not be placed with either parent.

Nonetheless, we will proceed to address counsel’s argument under R.C.

2151.414(E)(15).2




2
  Notably, our review of the juvenile court’s judgment entry reveals that the court did not
reference or rely upon R.C. 2151.414(E)(15) as a basis for granting LCCS’s motion for
permanent custody. Rather, the court cited R.C. 2151.414(E)(1), (2), (4), and (10) in
support of its finding that the children could be placed with either parent within a
reasonable time or should not be placed with either parent.



13.
       {¶ 35} R.C. 2151.414(E)(15) directs the juvenile court to enter a finding that the

children cannot be placed with either parent within a reasonable time or should not be

placed with either parent in cases involving abuse or neglect where “the court determines

that the seriousness, nature, or likelihood of recurrence of the abuse or neglect makes the

child’s placement with the child’s parent a threat to the child’s safety.”

       {¶ 36} In this case, counsel contends that the trial court erred in finding abuse

under R.C. 2151.414(E)(15). Specifically, counsel asserts that the incident in which T.K.

allegedly dropped Ni.S. while attempting to discipline him, causing his to suffer a

fractured tibia, was merely an accident and does not constitute abuse. However, our

review of the record reveals that several witnesses discredited P.K. and T.K.’s version of

the incident. In particular, LCCS’s medical expert, Dr. Randall Schlievert, testified that

the type of fracture suffered by Ni.S. was inconsistent with the explanation given by P.K.

and T.K. Indeed, Schlievert testified at length regarding the amount of force necessary to

cause a spiral-oblique fracture of the tibia. In his testimony, Schlievert stated that an

adult dropping a child of Ni.S.’s size while holding the child at chest height would not

“have the forces involved for a two year old’s leg to break in this manner.” According to

Schlievert, this type of fracture is caused “when the limb is used as the handle to grab a

child forcefully off the ground.” He also indicated that a spiral fracture could occur when

“children are thrown down and there is an added force.”

       {¶ 37} Given the expert testimony outlined above, the conflicting versions of the

incident provided to detective Hahn by P.K. and T.K., and T.K.’s subsequent conviction




14.
for attempted child endangering, we find no merit to counsel’s proposed argument that

the incident was merely an accident. Thus, counsel’s second potential assignment of

error is not well-taken.

       {¶ 38} Finally, counsel asserts, in her third potential assignment of error, that the

trial court erred in concluding that J.J. is an appropriate foster parent with whom the

children may be placed. Counsel challenges the children’s placement with J.J. on the

basis that she uses medical marijuana for which she has a prescription that is legal in the

state of Michigan where she resides. According to her testimony, J.J. uses marijuana to

treat migraine headaches. Flowers testified that J.J.’s use of marijuana was disclosed to

LCCS prior to receiving custody of the children. When asked at the hearing about how

often she uses marijuana, J.J. stated: “Sometimes once a month, sometimes not at all. It

just depends if I can get the headache before it gets too bad to where I get nauseous and

can’t eat from it.” She further stated that she has never used marijuana around the

children.

       {¶ 39} Upon due consideration, we agree with counsel that the issue of the

children’s placement in foster care and whether J.J. is an appropriate foster parent is not

properly before us as we are reviewing the trial court’s grant of permanent custody to

LCCS. Thus, we find counsel’s third potential assignment of error not well-taken.




15.
                                      III. Conclusion

       {¶ 40} 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.

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

Division, is affirmed. Costs are hereby assessed to appellants in accordance with 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.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Stephen A. Yarbrough, P.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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