[Cite as In re D.M., 2020-Ohio-349.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                                 JUDGES:
IN THE MATTER OF:                                Hon. W. Scott Gwin, P. J.
                                                 Hon. John W. Wise, J.
        D. M.                                    Hon. Earle E. Wise, Jr., J.

        ADJUDGED NEGLECTED/                      Case No. 2019 AP 08 0032
        DEPENDENT CHILD
                                                 OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of Common
                                              Pleas, Juvenile Division, Case No.
                                              18JN00226


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       February 3, 2020



APPEARANCES:

For Appellant                                 For Appellee Tuscarawas JFS

E. MARIE SEIBER                               NO APPEARANCE
6525 Walkers Lane SE
Uhrichsville, Ohio 44683
Tuscarawas County, Case No. 2019 AP 08 0032                                                2


Wise, John, J.

        {¶1}   Appellant Krista N. appeals the decision of the Tuscarawas County Court

of Common Pleas, Juvenile Division, granting legal custody of her daughter, D.M., to

kinship caregivers. Appellee is Tuscarawas County JFS, which has not filed a response

brief herein. The relevant procedural facts leading to this appeal are as follows.1

        {¶2}   On July 11, 2018, Appellee filed a “complaint for neglect, dependency, and

kinship custody with protective supervision to TCJFS” regarding this child and six siblings,

the children of appellant.2 Initial concerns included unstable living conditions, appellant’s

drug use (marijuana, methamphetamine, and “molly”), and appellant’s mental health

issues, although she had made arrangements herself to obtain caregivers for some of the

children.

        {¶3}   On August 10, 2018, all seven children were found to be neglected and

dependent, and they were ordered to remain in the temporary custody of various

caregivers, with protective supervision to TCJFS. A case plan with a reunification

objective was prepared by TCJFS.

        {¶4}   However, on May 8, 2019, TCJFS filed two motions to modify dispositions.

In the first motion, the agency sought permanent custody as to three of the siblings, and

in the second, legal custody to kinship caregivers as to four of the siblings.

        {¶5}   An evidentiary hearing was conducted before the trial court on July 11,

2019.



1   Appellant has failed to include or attach with her brief a copy of the judgment entry
under appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original
document in the record.
2 The father of the seven children is not participating in the present appeal and had little

or no involvement in the case plan below.
Tuscarawas County, Case No. 2019 AP 08 0032                                                 3


       {¶6}   On August 2, 2019, the trial court issued a decision granting, inter alia, legal

custody of D.M. to her caregivers, Cynthia and Jeffery S.

       {¶7}   Appellant-mother filed a notice of appeal on August 30, 2019. Appellate

counsel for mother thereafter filed a conditional motion to withdraw and a brief pursuant

to Anders v. California, infra, asserting that the within appeal “has no merit.” Counsel for

appellant also therein raised one potential assigned error asking this Court to determine

whether the trial court erred in modifying disposition of the child. She has therein asserted

as follows:

       {¶8}   “I. THE TRIAL COURT’S DECISION WAS CONTRARY TO LAW.”

       {¶9}   Appellant was given an opportunity to file a pro se brief raising additional

assignments of error, but she has not done so.3

                                 Anders Criteria and Applicability

       {¶10} In Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493,

the United States Supreme Court established five criteria which must be met before a

motion to withdraw may be granted: (1) A showing that appellant's counsel thoroughly

reviewed the transcript and record in the case before determining the appeal to be

frivolous; (2) a showing that a motion to withdraw has been filed by appellant's counsel;

(3) the existence of a brief filed by appellant's counsel raising any potential assignments

of error; (4) a showing that appellant's counsel provided to the appellant a copy of said




3  This Court issued a judgment entry on October 16, 2019, notifying appellant that she
could file a pro se brief in this matter. A review of the clerk’s docket does not persuade
us that service of said order on appellant was successful. However, appellant’s counsel’s
brief before us reveals that notice was therein provided to appellant at her home address
of her right to respond to this Court in writing. We therefore find proper notice exists to
proceed with our Anders review.
Tuscarawas County, Case No. 2019 AP 08 0032                                               4


brief; and (5) a showing that appellant's counsel provided appellant adequate opportunity

to file a pro se brief raising any additional assignments of error appellant believes the

appellate court should address. See State v. Jennings, 5th Dist. Richland No. 98CA24,

1999 WL 547919.

       {¶11} Pursuant to Anders, if, after a conscientious examination of the record, a

defendant's counsel concludes the case is wholly frivolous, then he should so advise the

court and request permission to withdraw. Id. at 744. Once the defendant's counsel

satisfies the aforesaid requirements, the appellate court must fully examine the

proceedings below to determine if any arguably meritorious issues exist. If the appellate

court also determines that the appeal is wholly frivolous, it may grant counsel's request

to withdraw and dismiss the appeal without violating constitutional requirements, or may

proceed to a decision on the merits if state law so requires. Id.

       {¶12} We find appellate counsel in this matter has adequately followed the

procedures required by Anders v. California, supra.

       {¶13} However, we must note at this juncture that the present appeal, along with

the additional six appeals concerning the child’s siblings, do not stem from criminal cases,

the usual arena for initiating Anders appeals.

       {¶14} This Court has indeed held that the procedures set out in Anders are

applicable to appeals involving the termination of parental rights. In re B.F., 5th Dist.

Licking No. 2009–CA–007, 2009–Ohio–2978, ¶¶ 2–3, citing Morris v. Lucas County

Children's Services Board, 49 Ohio App.3d 86, 550 N.E.2d 980 (6th Dist.1989). See, also,

In re L.D., 5th Dist. Stark No. 2015CA00222, 2016-Ohio-3163, ¶ 15.
Tuscarawas County, Case No. 2019 AP 08 0032                                                5


       {¶15} But the Sixth District Court of Appeals, upon whom we relied in B.F., supra,

has now gone the other way on this issue and “expand[ed] [its] prohibition of Anders briefs

to cases involving the termination of parental rights.” See In re B.H., 6th Dist. Lucas No.

L-17-1126, 2018-Ohio-1238, ¶ 3. In addition, we note the Second District Court of Appeals

has followed suit, concluding inter alia that “allowing Anders briefs can cause undue

delay, contrary to the requirement to expedite cases involving termination of parental

rights.” In re N.C., 2nd Dist. Montgomery No. 28105, 2019-Ohio-567, ¶ 88.

       {¶16} Having reached this point in the proceedings in the seven cases of these

siblings, some of which furthermore resulted only in legal custody, not permanent

custody, we are inclined to herein complete our task under Anders in the interest of judicial

economy.

       {¶17} However, from this point forward, this panel will no longer accept Anders

briefs for filing in cases involving permanent custody or dispositions of legal custody. See

In re N.C. at ¶ 89. Furthermore, this Court will review the possibility of a change to its

local appellate rules on this subject in the near future.

                                              Analysis

                                                 I.

       {¶18} Pursuant to R.C. 2151.414(B)(1)(a), a court may grant permanent custody

of a child to a movant if the court determines by clear and convincing evidence that it is

in the best interest of the child to grant permanent custody of the child to the agency and

that “*** [t]he child is not abandoned or orphaned, has not 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 has not been in the
Tuscarawas County, Case No. 2019 AP 08 0032                                               6


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 if,

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, and the

child cannot be placed with either of the child's parents within a reasonable time or should

not be placed with the child's parents.”

       {¶19} In addition, pursuant to R.C. 2151.353(A)(3), if a child is adjudicated as

abused, neglected, or dependent, a court upon disposition may “[a]ward legal custody of

the child 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. ***.”

       {¶20} R.C. 2151.353(F)(1) states: “The court shall retain jurisdiction over any child

for whom the court issues an order of disposition pursuant to division (A) of this section

or pursuant to section 2151.414 or 2151.415 of the Revised Code until the child attains

the age of eighteen years if the child does not have a developmental disability or physical

impairment, the child attains the age of twenty-one years if the child has a developmental

disability or physical impairment, or the child is adopted and a final decree of adoption is

issued, except that the court may retain jurisdiction over the child and continue any order

of disposition under division (A) of this section or under section 2151.414 or 2151.415 of

the Revised Code for a specified period of time to enable the child to graduate from high

school or vocational school. ***.”
Tuscarawas County, Case No. 2019 AP 08 0032                                             7


       {¶21} Turning to the merits of appellant's counsel's aforesaid potential

Assignment of Error, the trial court concluded that appellant has a total of ten children

and “has not raised any of them.” Judgment Entry, August 2, 2019, at 1. She continues

to test positive for drugs, and she has failed to complete her case plan requirements. Id.

at 2. The court also noted inter alia that her testimony at the July 11, 2019 hearing was

at times “rambling” and profanity-laced. Id. The record before us includes the transcript

of the July 11, 2019 hearing, during which the testimony was taken from Goodwill

parenting supervisor Jennifer Fire, TCJFS case manager Jaime Grunder, and appellant

herself. Tr. at 8-107.

       {¶22} We find no merit in the proposed Assignment of Error, and it is hereby

overruled. Furthermore, after independently reviewing the record, we agree with appellate

counsel's conclusion that no arguably meritorious claims exist upon which to base an

appeal. We therefore find the appeal to be wholly frivolous under Anders, grant counsel's

request to withdraw, and affirm the judgment of the trial court as to this child.

       {¶23} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Tuscarawas County, Ohio, is hereby affirmed.

By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.

JWW/d 0116
