[Cite as In re K.J., 2012-Ohio-5237.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                  JUDGES:
IN THE MATTER OF:                                 Hon. W. Scott Gwin, P. J.
                                                  Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.

        K.J.                                      Case No. CT2012-0037


                                                  OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No.
                                               21130197

JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         November 7, 2012



APPEARANCES:

For Appellant Mother                           For Appellee Children's Services

BRIAN W. BENBOW                                MOLLY MARTIN
604 Market Street                              ASSISTANT PROSECUTOR
Zanesville, Ohio 43701                         22 North Fifth Street
                                               Zanesville, Ohio 43701

                                               Guardian ad Litem

                                               JEANETTE M. MOLL
                                               803B Market Street
                                               Zanesville, Ohio 43701
Muskingum County, Case No. CT2012-0037                                                     2

Wise, J.

          {¶1}   Appellant-Mother Heidi Schrack appeals from the May 9, 2012, judgment

of the Muskingum County Court of Common Pleas, Juvenile Division, finding her child

K.J. to be an abused, neglected, and dependent child and granting permanent custody

of the child to Appellee Muskingum County Children Services.

                             STATEMENT OF THE FACTS AND CASE

          {¶2}   On December 18, 2011, Appellee Muskingum County Children's Services

(MCCS) filed a complaint for permanent custody of K.J., born December 18, 2011.

Mother of the child is Appellant, Heidi Schrack; father is Raymond Johnson.

          {¶3}   MCCS filed a complaint because KJ tested positive for cocaine at birth.

          {¶4}   Appellant-mother failed to be present at the permanent custody trial held

on March 6, 2012.

          {¶5}   The following facts were adduced from the record of the dispositional

hearing held on March 6, 2012.

          {¶6}   Appellant-mother has had three prior children permanently removed from

her custody. (T. at 7). Appellant admitted to using cocaine throughout her pregnancy

and as close as five days prior to K.J.’s birth. (Id.). K.J. tested positive for cocaine at

birth. (T. at 5-6). Appellant failed to complete an inpatient drug rehabilitation program.

(T. at 7, 14). Appellant-mother failed to maintain regular visitation with the child. (T. at

18). Appellant-mother used drugs on a previous visit at Children’s Services. (T. at 18).

The Guardian Ad Litem recommended permanent custody be granted to the agency. (T.

at 20).
Muskingum County, Case No. CT2012-0037                                                  3


      {¶7}   By decision filed May 9, 2012, the trial court terminated parental rights and

granted permanent custody of the child to appellee.

      {¶8}   Appellant did not file objections to the decision.

      {¶9}   Counsel for Appellant has filed a motion to withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing denied (1967), 388 U.S.

924, indicating that the within appeal is wholly frivolous and setting forth one proposed

assignment of error.    Appellant did not file a pro se brief alleging any additional

assignments of error.

      {¶10} Counsel raises the following proposed Assignments of Error:

                                 ASSIGNMENTS OF ERROR

      {¶11} "I. THE TRIAL COURT'S JUDGMENT THAT THE MINOR CHILDREN'S

(SIC) BEST INTEREST WOULD BE SERVED BY GRANTING OF PERMANENT

CUSTODY TO MUSKINGUM COUNTY CHILDREN'S SERVICES WAS AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

      {¶12} “II. MOTHER/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL PURSUANT TO STRICKLAND V. WASHINGTON, 466 U.S. 668, 80 L.

ED.2D 674, 104 S. CT. 2052.”

      {¶13} The Anders court established five criteria which must be met before a

motion to withdraw by appellate counsel may be granted. The five criteria are: (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 by appellant's counsel was filed; (3) the existence of a brief by appellant's

counsel raising any potential assignments of error that can be argued on appeal; (4) a
Muskingum County, Case No. CT2012-0037                                                    4


showing that appellant's counsel provided a copy of the brief which was filed to the

appellant; 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 court should address. Anders at 744. The Anders court further explained

the following at 744:

                [T]he court-not counsel-then proceeds, after a full examination of all

         the proceedings, to decide whether the case is wholly frivolous. If it so

         finds it may grant counsel's request to withdraw and dismiss the appeal

         insofar as federal requirements are concerned, or proceed to a decision

         on the merits, if state law so requires. On the other hand, if it finds any of

         the legal points arguable on their merits (and therefore not frivolous) it

         must, prior to decision, afford the indigent the assistance of counsel to

         argue the appeal.

         {¶14} Attorney Benbow complied with the procedures set forth in Anders. To

date, his client has not filed a pro se brief.

         {¶15} We note in In the Matter of Diamond S., Guernsey App. No. 03-CA-24,

2004-Ohio-611, this Court extended the principles of Anders to cases involving the

termination of parental rights.

         {¶16} We will now address the merits of Appellant's proposed Assignment of

Error.

                                                  I.

         {¶17} Appellant argues the trial court's decision on best interests is against the

manifest weight and sufficiency of the evidence. We disagree.
Muskingum County, Case No. CT2012-0037                                                    5


       {¶18} A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 1993-Ohio-9.

       {¶19} Furthermore, it is well-established " '[t]he discretion which the juvenile

court enjoys in determining whether an order of permanent custody is in the best

interest of a child should be accorded the utmost respect, given the nature of the

proceeding and the impact the court's determination will have on the lives of the parties

concerned.' " In re Mauzy Children (November 13, 2000), Stark App.No. 2000CA00244,

quoting In re Awkal (1994), 95 Ohio App.3d 309, 316.

       {¶20} R.C. §2151.414(B)(1) enables a trial court to grant permanent custody if

the court determines by clear and convincing evidence that it is in the best interest of

the child. "Clear and convincing evidence" is "that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such

certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought

to be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the

syllabus. Said statute states the following:

       {¶21} "Except as provided in division (B)(2) of this section, the court may

grant permanent custody of a child to a movant if the court determines at the hearing

held pursuant to division (A) of this section, by clear and convincing evidence, that it is
Muskingum County, Case No. CT2012-0037                                                     6


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

that filed the motion for permanent custody and that any of the following apply:

       {¶22} "(a) The 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,

*** 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.

       {¶23} "(b) The child is abandoned.

       {¶24} "(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.

       {¶25} "(d) 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 ***."

       {¶26} R.C. §2151.414(D)(1) sets out the factors relevant to determining the best

interests of the child. Said section states relevant factors include, but are not limited to,

the following:

       {¶27} "(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;

       {¶28} "(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;

       {¶29} "(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
Muskingum County, Case No. CT2012-0037                                                7


child placing agencies for twelve or more months of a consecutive twenty-two-month

period ***;

       {¶30} "(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;

       {¶31} "(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child."

       {¶32} In its decision filed May 9, 2012, the trial court found the following in

pertinent part:

       {¶33} “THE COURT FINDS By Clear and Convincing Evidence as Follows:

       {¶34} “1. The minor child is found to be Abused, Neglected and Dependent

pursuant to Ohio Revised Code Sections 2151,031(D); 2151.03(A)(2); and 2151.04(13),

(C), and (D).

       {¶35} “2. Pursuant to Ohio Revised Code Section(s) 2151.414(B)(1) and (E), the

minor child cannot be placed with either parent within a reasonable time

       {¶36} “a. The mother has failed to make progress on her case plan over the last

three months.

       {¶37} “b. Mother and minor child both tested positive for cocaine at the time of

the child's birth. Mother has not attempted substance abuse treatment.

       {¶38} “c. Mother has demonstrated a lack of parental commitment by failing to

regularly visit the Child.
Muskingum County, Case No. CT2012-0037                                                 8


       {¶39} “d. The child is likely to suffer from neglect or abuse in the future if

returned to the Mother, based upon her failure to correct the problems underlying the

need for removal.

       {¶40} “e. The mother has previously had other children permanently removed

from her custody.

       {¶41} “3. Pursuant to Ohio Revised Code Section(s) 2151.414(B)(1) and (ID), it

is in the Best Interest of the minor child that Permanent Custody be awarded to

Muskingum County Children Services based upon the following factors that the Court

finds upon a review of the evidence:

       {¶42} “a. The minor child has been in the Temporary Custody of MCCS from

shortly after birth through the date of the instant Entry. The child has been placed with

the same foster family since his release from the hospital shortly after birth.

       {¶43} “b. The minor child is too young to express his wish(es) to the Guardian ad

litem. At the time of the hearing, the child was almost three months old,

       {¶44} “c. The minor child does not have a bond to his mother or any other

biological relatives.

       {¶45} “d. No relatives are available for placement.

       {¶46} “e. The minor child is doing very well in his foster placement. His foster

family wants to adopt.

       {¶47} “f. The child has bonded with his foster family.

       {¶48} “g. The minor child needs a legally secure permanent placement, which

cannot be achieved without a grant of permanent custody to Muskingum County
Muskingum County, Case No. CT2012-0037                                                     9


Children Services, the Court finding that it is unlikely that either parent will ever be able

to provide a legally secure placement.

       {¶49} “The Court makes Findings regarding reasonable efforts to prevent the

need for removal and making it possible for the child to return home, with regard to the

services provided to prevent or eliminate the removal of the child from the home, and

why these services did not prevent the removal of the child from the home or enable the

child to return home. The Court determines that pursuant to the Ohio Revised Code

Section 2151.419, reasonable efforts were made to prevent the need for placement,

and to make it possible for the child to return home. Relevant services provided in this

matter include, but are not limited to the following: prior and ongoing case management,

attempted case plan services, foster placement, resource and referrals.”

       {¶50} The guardian ad litem, Jeanette Moll, filed a report wherein she opined the

best interests of the child would best be served with granting permanent custody to

Appellee.

       {¶51} After independently reviewing the record, we agree with counsel's

conclusion that no arguably meritorious claims exist upon which to base an appeal

challenging the trial court's decision on best interests of the child.

       {¶52} The proposed Assignment of Error is denied.

                                                  II.

       {¶53} In the Second Proposed Assignment of Error, Appellant argues that she

was denied the effective assistance of counsel. We disagree.

       {¶54} Although this is not a criminal case, the Supreme Court of Ohio has

characterized the termination of parental rights as the “death penalty” of parenting.
Muskingum County, Case No. CT2012-0037                                                    10


Because of this characterization, this district has adopted the “criminal” standard to

ineffective assistance of counsel arguments in permanent custody actions. In re Fell,

Guernsey App. No. 05 CA 8, 2005–Ohio–5790; In re Utt Children, Stark App.No.

2003CA00196, 2003–Ohio–4576.

       {¶55} The standard is set out in State v. Bradley (1989), 42 Ohio St.3d 136,

paragraphs two and three of the syllabus, certiorari denied (1990), 497 U.S. 1011.

Appellant must establish the following:

       {¶56} “2. Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of

reasonable    representation    and,   in   addition,   prejudice   arises   from   counsel's

performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 20.0.3d 495, 358 N.E.2d 623;

Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,

followed.)

       {¶57} “3. To show that a defendant has been prejudiced by counsel's deficient

performance, the defendant must prove that there exists a reasonable probability that,

were it not for counsel's errors, the result of the trial would have been different.”

       {¶58} This Court must accord deference to defense counsel's strategic choices

made during trial and “requires us to eliminate the distorting effect of hindsight.” State

v. Post (1987), 32 Ohio St.3d 380, 388.

       {¶59} We note Appellant's counsel was diligent in cross-examination and in

making objections.
Muskingum County, Case No. CT2012-0037                                                 11


      {¶60} After independently reviewing the record, we agree with counsel's

conclusion that no arguably meritorious claims exist upon which to base an ineffective

assistance of counsel argument.

      {¶61} The proposed Assignment of Error is denied.

      {¶62} Based on the foregoing, we find the appeal to be wholly frivolous

under Anders, grant counsel's request to withdraw, and affirm the trial court's judgment.

      {¶63} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Muskingum County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
JWW/d 1011
Muskingum County, Case No. CT2012-0037                                           12


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                        :         JUDGMENT ENTRY
                                         :
      K.J.                               :         Case No. CT2012-0037




      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Juvenile Division, Muskingum County, Ohio, is

affirmed.

      Costs assessed to Appellant.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                            JUDGES
