[Cite as In re S.G., 2020-Ohio-4060.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


IN RE S.G., ET AL.                            :
                                              :                     No. 108711
Minor Children                                :
                                              :
[Appeal by N.G., Mother]                      :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: DISMISSED
                 RELEASED AND JOURNALIZED: August 13, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                   Juvenile Division
                       Case Nos. AD18906135 and AD18906136



                                        Appearances:

                 Scalise Legal Services, L.L.C., and Stephanie Scalise, for
                 appellant.


EILEEN A. GALLAGHER, J.:

                   Appellant N.G., the mother of S.G. and A.G., (“Mother”) appeals from

the juvenile court order awarding legal custody of S.G. and A.G. to T.R., the

biological father of S.G. and an interested individual to A.G.

                   Mother’s appointed 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), in which

she asserted that following her examination of the record there are “no meritorious
appellate issues that can be raised.” This court held the motion in abeyance and

afforded Mother an opportunity to file a pro se brief. Mother has failed to avail

herself of that opportunity. Following an independent review, this court grants

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

Factual Background and Procedural History

              On May 10, 2018, appellee Cuyahoga County Division of Children and

Family Services (“CCDCFS” or the “agency”) filed a complaint for neglect and

temporary custody of S.G. (d.o.b. December 29, 2012) and A.G. (d.o.b. June 13,

2015). The complaint alleged that at approximately 7:30 p.m. on May 9, 2018,

Mother had left the children without appropriate supervision or food in the home,

that the children were found outside of the home, alone, at approximately 10:00

p.m. and that Mother did not return to the home until 3:00 a.m. The agency also

filed a motion for predispositional temporary custody.

              The court conducted a hearing on the issue of predispositional

temporary custody as Mother denied the allegations and objected to a finding of

probable cause. The court granted the motion and committed the children to the

temporary care and custody of CCDCFS.

              An amended complaint was filed on August 7, 2018 wherein the

allegations were amended to reflect that, on May 9, 2018, Mother had left the

children in the home with an inappropriate caregiver and that Mother was in need

of parenting classes to improve her parenting skills and judgment.
              In September 2018, the juvenile court adjudicated the children

neglected. The matter was continued for a dispositional hearing. On January 11,

2019, CCDCFS filed a motion to amend the dispositional prayer from temporary

custody to CCDCFS to legal custody to T.R., the biological father of S.G. and

interested individual to A.G.

              On April 4, 2019, the dispositional hearing was held before the

magistrate.   Rosalyn Bailey, an extended service social worker with CCDCFS,

testified at the hearing. She stated that she had been assigned to the case since May

or June 2018. According to Bailey, the initial case plan for each of the fathers was

to establish paternity and to bond with and support his child. The initial case plan

for Mother included parenting classes and, due to a history of substance abuse,

submission to a urine screen to determine whether she had a need for substance

abuse services.

              Bailey testified that Mother failed to comply with the case plan even

though accommodations were made for her, at her request. She refused to submit

to a urine screen and did not attend all of her parenting classes. On September 26,

2018, during visitation with the children at the West Side Community Collab,

Mother took the children and left. It was not until 9:00 p.m. that night, after police

tracked Mother’s phone, that the children were located at the home of a cousin of

Mother. Mother was not present. Following that incident, Mother’s case plan was

amended to include a mental health assessment. Mother failed to complete any of

the case plan requirements and, after the incident, failed to meet with or contact
Bailey. Because Mother did not make herself available, Bailey could not state

whether Mother’s home was appropriate for the children.

              Bailey testified that paternity had been established for both children.

Bailey stated that T.R., the father of S.G., had completed his case plan and had

bonded with both S.G. and A.G. Bailey stated that T.R. had informed her that he

wanted A.G. to stay with her sister, “that he didn’t see any difference in them” and

that he was prepared to provide a permanent home for both S.G. and A.G. She

indicated that both T.R. and his wife, D.M., submitted to background checks and

were approved by CCDCFS for placement. The children were placed with T.R. in

December 2018 or January 2019.

              Bailey stated that, at the time of the hearing, Al.G., the father of A.G.,

was incarcerated at the Mansfield Correctional Institution and that no appropriate

relative had been identified as a possible care provider for A.G.

              Bailey testified that she believed it was in the children’s best interest

to remain together and be placed in the legal custody of T.R. Although Bailey stated

that she believes Mother loves the children, Mother could not care for them or meet

their basic needs.   Bailey stated that T.R. was employed, that his home was

appropriate, that the children were doing well in his home and that he was able

provide for their basic needs on a permanent basis.

              The guardian ad litem recommended that legal custody of the

children be granted to T.R.
               On April 8, 2019, the magistrate issued her decision, recommending

the termination of predispositional temporary custody to the agency and that legal

custody of S.G. and A.G. be granted to T.R. The magistrate also recommended that

Mother be granted supervised visitation with the children every Sunday from 2:00

p.m. to 6:00 p.m. Mother filed objections to the magistrate’s decision.

               In June 2019, following a review of the court file, the magistrate’s

decision and Mother’s objections, the juvenile court overruled Mother’s objections

and approved and adopted the magistrate’s decision.

Law and Analysis

      Anders Standard

               Anders outlines the procedure that counsel must follow to withdraw

due to the lack of any meritorious grounds for appeal. Anders, 386 U.S. at 744, 87

S.Ct. 1396, 18 L.Ed.2d 493. In Anders, the United States Supreme Court held that

if appointed counsel, after a conscientious examination of the case, determines an

appeal to be wholly frivolous, he or she should advise the court of that fact and

request permission to withdraw. Id. This request, however, must be accompanied

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

Id. Counsel must also provide the client with a copy of the brief and allow the client

sufficient time to file his or her own brief. Id.

               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. If the court determines that the appeal is wholly frivolous, the court
may grant counsel’s request to withdraw and dismiss the appeal. Id.; see also State

v. Sims, 8th Dist. Cuyahoga No. 107724, 2019-Ohio-4975, ¶ 7-9.

              Although Anders arose in a criminal context, this court approved the

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

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

Ohio-5935, ¶ 31, 40; see also In re J.B., 9th Dist. Summit No. C.A. No. 29443, 2020-

Ohio-2917. Courts have also applied Anders in appeals involving the termination of

parental rights. See, e.g., In re A.M., 8th Dist. Cuyahoga No. 106789, 2018-Ohio-

3186, ¶ 11.

              Previously, former Loc.App.R. 16(C) set forth the specific procedure

governing Anders briefs and motions to withdraw followed by this court. That rule

was amended on February 1, 2019 and no longer includes any procedure for the

filing of Anders briefs. However, as this court has previously stated, “the absence of

a local rule governing Anders briefs does not prevent this court from accepting these

briefs nor from following the procedure the United States Supreme Court outlined

in Anders.” Sims at ¶ 7-14 (discussing “the duties of appellate counsel when filing an

Anders brief and our duties when ruling on counsel’s motion to withdraw on the

grounds that the appeal would be frivolous” even in the absence of former

Loc.App.R. 16(C), different Ohio appellate courts’ views on Anders briefs and this

court’s decision that “until the Ohio Supreme Court resolves the split among the

Ohio Appellate Districts regarding the application of Anders * * * we will continue

to adhere to the procedures outlined in Anders pertaining to both counsel and the
court when appointed appellate counsel files a motion to withdraw because an

appeal would be wholly frivolous”); see also State v. Lariche, 8th Dist. Cuyahoga No.

108512, 2020-Ohio-804, ¶ 7.

      Independent Review

              Standard for Determining Legal Custody

              Pursuant to R.C. 2151.353(A)(3), a juvenile court may award legal

custody of a child who has been adjudicated abused, neglected or dependent “to

either parent or to any other person who, prior to the dispositional hearing, files a

motion requesting legal custody of the child or is identified as a proposed legal

custodian in a complaint or motion filed prior to the dispositional hearing by any

party to the proceedings.” “Legal custody” is

      a legal status that vests in the custodian the right to have physical care
      and control of the child and to determine where and with whom the
      child shall live, and the right and duty to protect, train, and discipline
      the child and to provide the child with food, shelter, education, and
      medical care, all subject to any residual parental rights, privileges, and
      responsibilities.

R.C. 2151.011(B)(21). A person identified in a complaint or motion filed by a party

to the proceedings as a proposed legal custodian must comply with various statutory

requirements, including signing a statement of understanding for legal custody.

R.C. 2151.353(A)(3).

              Legal custody is “significantly different” than the termination of

parental rights. Unlike a case in which parental rights are terminated, when a parent

loses legal custody of his or her child, the parent “retains residual parental rights,
privileges and responsibilities and is not permanently foreclosed from regaining

custody.” In re M.S., 8th Dist. Cuyahoga No. 108567, 2019-Ohio-5128, ¶ 32, citing

In re T.R., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 32, In re G.M., 8th

Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14, and R.C. 2151.353(A)(3)(c).

               Nevertheless, an order granting legal custody of a child to a person

under R.C. 2151.353(A) “is intended to be permanent in nature.” R.C. 2151.42(B)

(“A court shall not modify or terminate an order granting legal custody of a child

unless it finds, based on facts that have arisen since the order was issued or that were

unknown to the court at that time, that a change has occurred in the circumstances

of the child or the person who was granted legal custody, and that modification or

termination of the order is necessary to serve the best interest of the child.”).

               Where a juvenile court considers an award of legal custody following

an adjudication of abuse, neglect or dependency, “‘it does so by examining what

would be in the best interest of the child based on a preponderance of the evidence.’”

In re T.R. at ¶ 44, quoting In re M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-

1674, ¶ 11, 14. Thus, we apply the “preponderance of the evidence” standard of

appellate review to the court’s factual findings on a request for legal custody. In re

W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, ¶ 2. A “preponderance of

the evidence” means evidence that is “‘more probable, more persuasive, or of greater

value.’” In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7, quoting

In re D.P., 10th Dist. Franklin No. 05AP-117, 2005-Ohio-5097, ¶ 52.
               However, the decision whether to grant or deny a request for legal

custody is within the sound discretion of the juvenile court. When reviewing a

juvenile court’s “‘ultimate decision on whether the facts as determined would make

it in the child’s best interests to be placed in legal custody,’” we apply an abuse of

discretion standard. In re W.A.J. at ¶ 2, quoting In re G.M., 2011-Ohio-4090, at

¶ 14. A juvenile court abuses its discretion where its decision is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). A decision is unreasonable if there is “‘no sound reasoning

process that would support that decision.’” In re C.D.Y., 8th Dist. Cuyahoga No.

108355, 2019-Ohio-4987, ¶ 8, quoting Baxter v. Thomas, 8th Dist. Cuyahoga No.

101186, 2015-Ohio-2148, ¶ 21. A decision is arbitrary if it is made “‘without

consideration of or regard for facts [or] circumstances.’” In re C.D.Y. at ¶ 8, quoting

Black’s Law Dictionary 125 (10th Ed.2014).

               There is no “specific test or set of criteria” that must be applied or

considered when determining what is in a child’s best interest on a motion for legal

custody. In re T.R., 2015-Ohio-4177, at ¶ 48. Unlike permanent custody cases in

which the juvenile court must consider the factors outlined in R.C. 2151.414(D), R.C.

2151.353(A)(3) does not independently specify the factors to be considered in

determining what is in a child’s best interest on a request for legal custody. In re

G.M., 2011-Ohio-4090, at ¶ 15. Nevertheless, this court has held that the R.C.

2151.414(D) best interest factors may be “instructive” in making that determination.

See, e.g., In re R.B., 8th Dist. Cuyahoga No. 107709, 2019-Ohio-1656, ¶ 48, 52; In re
D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-4818, ¶ 20, citing In

re E.A., 8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193, ¶ 13; see also In re B.D.,

8th Dist. Cuyahoga No. 105650, 2017-Ohio-8663, ¶ 26 (“In determining the best

interest of the child in a legal custody case, the juvenile court should consider all

relevant factors, and may look to the factors listed under R.C. 2151.414(D) * * * for

guidance.”), citing In re M.B., 8th Dist. Cuyahoga No. 105168, 2017-Ohio-7481, ¶ 11.

Those factors include: (1) the interaction of the child with the child’s parents,

relatives, caregivers and any other person who may significantly affect the child; (2)

the wishes of the child, as expressed directly by the child or through the child’s

guardian ad litem; (3) the custodial history of the child and (4) the child’s need for a

legally secure permanent placement. R.C. 2151.414(D).

               Courts have also looked to the best interest factors set forth in R.C.

3109.04(F) as a potential guide in determining what is in a child’s best interest for

purpose of a motion for legal custody. See, e.g., In re J.O., 8th Dist. Cuyahoga No.

87626, 2007-Ohio-407, ¶ 11; see also In re K.S., 12th Dist. Warren Nos. CA2019-01-

009 and CA2019-02-015, 2019-Ohio-2384, ¶ 37 (“As the paramount concern is the

best interest of the child, the court ‘should consider the totality of the circumstances

affecting the best interest of the child.’” * * * A court may therefore consider the

relevant best interest factors set forth in either R.C. 3109.04(F) or R.C. 2151.414(D)

in determining the best interest of the child.”), quoting In re S.L., 12th Dist. Butler

Nos. CA2012-07-137 through CA2012-07-142 and CA2012-07-147 through CA2012-

07-149, 2013-Ohio-781, ¶ 54. Such factors include, but are not limited to (1) the
wishes of the child’s parents regarding the child’s care; (2) the child’s interaction and

interrelationships with the child’s parents, siblings and any other person who may

significantly affect the child’s best interest; (3) the child’s adjustment to home,

school and community; (4) the mental and physical health of all persons involved in

the situation and (5) the extent to which court-approved visitation and

companionship rights are likely to be honored and facilitated. See R.C. 3109.04(F).

               In this case, the juvenile court made the following findings as to S.G.:

      The Court finds that the child’s continued residence in or return to the
      home of [N.G.], Mother will be contrary to the child’s best interest.

      The Court finds that the Cuyahoga County Division of Children and
      Family Services has made reasonable efforts to prevent removal of the
      child, to eliminate the continued removal of the child from home, or to
      make it possible for the child to return home and to make and finalize
      a permanency plan for the child. Parenting and drug screening. The
      Mother did not submit to drug testing and needs to complete parenting.
      The child has been residing with the Father since 12/2018. The
      Father’s home is appropriate and the Father has been providing for the
      child’s basic needs.

               The court made the following findings as to A.G.:

      The Court finds that the child’s continued residence in or return to the
      home of [N.G.], Mother will be contrary to the child’s best interest.

      The Court finds that the Cuyahoga County Division of Children and
      Family Services has made reasonable efforts to prevent removal of the
      child, to eliminate the continued removal of the child from home, or to
      make it possible for the child to return home and to make and finalize
      a permanency plan for the child. Parenting and drug screening. The
      Mother did not submit to drug testing and needs to complete parenting.
      The child has been residing with T.R., Interested Individual, since
      12/2018. T.R.’s home is appropriate and he has been providing for the
      child’s basic needs.

      The Court finds that T.R., the proposed legal custodian for A.G., has
      signed a Statement of Understanding for Legal Custody.
               The record supports these findings by a preponderance of the

evidence. The record shows that at the time of the hearing, S.G. and A.G. had been

in the predispositional temporary custody of the agency for nearly a year and had

been living with T.R. for four or five months. The record reflects that both children

have a strong bond with T.R. and with each other, that they had been doing well

when living with T.R., that his home was appropriate, safe and stable and that all of

their basic needs were being met.

               The record further reflects that Mother had done almost none of the

case plan services required of her, i.e., attending some but not completing parenting

classes, refusing to submit to a urine screen or a mental health assessment and

refusing to comply with the social worker’s efforts to see her home to determine if it

was appropriate for the children. The record further reflects that although Mother

had, at times, been inconsistent with visitation, T.R. was willing to work with Mother

and facilitate regular visitation between her and the children and with other family

members.

               Following an independent examination of the record as required by

Anders, we cannot say, based on the record before us, that the trial court abused its

discretion in finding that an award of legal custody of S.G. and A.G. to T.R. was in

the children’s best interests.

               Accordingly, we agree that there is no merit to an appeal and that this

appeal is wholly frivolous. We grant counsel’s motion to withdraw and dismiss this

appeal.
              Appeal dismissed.

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

of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, SR., J., CONCURS;
MARY J. BOYLE, P.J., DISSENTS WITH
SEPARATE OPINION


MARY J. BOYLE, P.J., DISSENTS WITH SEPARATE OPINION:

              I respectfully dissent. I disagree with the majority that we should

grant appointed counsel’s motion to withdraw pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). As I explained in my dissenting

opinion in State v. Sims, 8th Dist. Cuyahoga No. 107724, 2019-Ohio-4975, it is now

my view that this court should no longer permit appointed counsel to file an Anders

brief or withdraw from a case. Id. at ¶ 60 (Boyle, J., dissenting). Although much of

my reasoning in Sims applied when attorneys are appointed to represent indigent

criminal defendants, it is my view that this reasoning extends to all appointed

counsel. All attorneys, not just defense attorneys, have an “‘overarching duty’” to

“advanc[e] ‘the undivided interests’” of their clients. Id. at ¶ 61, quoting McCoy v.

Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435, 108 S.Ct. 1895, 100

L.Ed.2d 440 (1988). But “[w]hen appellate counsel files an Anders brief saying, ‘My
client should lose,’ appellate counsel undoubtedly prejudices his or her client.” Sims

at ¶ 60 (Boyle, J., dissenting).

               Likewise, the following reasoning from my dissent in Sims is

applicable to all situations where appointed counsel files an Anders brief and

requests to withdraw from the case:

      Under Anders, the appellate court must complete an independent
      review of the record and then appoint counsel to argue that appeal if
      the court finds that a claim of arguable merit exists. This procedure
      places the court in the role of both advocate and adjudicator. In Ohio,
      how can a judge who has reviewed a record and identified issues of
      arguable merit then rule on the actual merits of the claims he or she
      previously identified without there being an appearance of
      impropriety, which is barred by the rules of judicial ethics? See Canon
      1 of the Ohio Code of Judicial Conduct.

Sims at ¶ 62 (Boyle, J., dissenting), citing State v. Upkins, 154 Ohio St.3d 30, 2018-

Ohio-1812, ¶ 10 (Fischer, J., dissenting).

               Accordingly, in line with my dissent in Sims, I would not accept the

Anders brief in this case and would deny appointed counsel’s motion to withdraw.

I would also order both attorneys, mother’s and CCDCFS’s, to file briefs in the case

(CCDCFS did not yet file one).
