[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.


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    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




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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.




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       {¶ 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




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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




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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




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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




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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




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