[Cite as In re T.S., 2015-Ohio-4885.]




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

In re T.S.                                         Court of Appeals No. L-15-1158

                                                   Trial Court No. JC 15245809

                                                   DECISION AND JUDGMENT

                                                   Decided: November 24, 2015


                                            *****

        James J. Popil, for appellant.

        Angela Y. Russell, for appellee.

                                            *****

        JENSEN, J.

                                         I. Introduction

        {¶ 1} This is an appeal from a judgment by the Lucas County Court of Common

Pleas, Juvenile Division, which terminated parental rights and responsibilities as to

mother-appellant, K.F., and awarded permanent custody of the child, T.S., to the Lucas

County Children’s Services Board (“CSB”).
       {¶ 2} Appellant filed a pro se notice of appeal and was appointed appellate

counsel. The attorney has filed a brief stating that he was unable to find any error

entitling appellant to relief. Counsel requests that this court independently review the

record and to permit him to withdraw from the case under Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

       {¶ 3} We have reviewed the record. We agree that there is no meritorious issue on

appeal. For the reasons set forth below, we affirm the judgment of the juvenile court to

terminate appellant’s parental rights and to grant permanent custody of T.S. to CSB.

                            II. Facts and Procedural History

       {¶ 4} Appellant is the mother of T.S., a baby girl, who was born on November 14,

2014. At the time of delivery, appellant and T.S. both tested positive for cocaine.

       {¶ 5} On November 18, 2014, CSB filed a complaint in dependency, neglect, and

abuse, requesting that the juvenile court terminate appellant’s parental rights and grant

permanent custody of T.S. to the agency. A shelter care hearing was held that same day,

and CSB was granted interim temporary custody. Appellant did not attend the shelter

care hearing. Appellant also failed to attend a pretrial conference on March 19, 2015.

       {¶ 6} The father of T.S. is not known. Two potential fathers were ruled out

through genetic testing.

       {¶ 7} The adjudicatory and dispositional hearings were held together, on April 22,

2015. Again, appellant did not appear. The record indicates (1) that appellant received

personal service of the notice of hearing; (2) that she told her caseworker she did not plan




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to attend the hearing; and (3) that she was advised to contact her trial counsel. Trial

counsel, who also represented appellant on a concurrent matter, stated that he and

appellant had not communicated with regard to T.S. Based upon these factors, the

juvenile court found that appellant waived her right to counsel, and it permitted trial

counsel to withdraw from the case.

       {¶ 8} Testifying during the adjudicatory phase was Todd Switala, who is an

investigative caseworker for CSB. Switala visited appellant and T.S. while they were in

the hospital. At the time, appellant admitted to Switala that she had used cocaine three

days before T.S. was born. Switala also testified that T.S. was observed experiencing

tremors before her discharge.

       {¶ 9} Christine DeSilvis, appellant’s caseworker, began working with appellant in

September of 2013, following the birth of a son, Ka.F. When he was born, Ka.F. tested

positive for cocaine and marijuana. On March 17, 2015, a month before the hearing in

the instant case, the juvenile court awarded permanent custody of Ka.F. to CSB based

upon appellant’s drug abuse and issues pertaining to her mental health, parenting, and

housing.

       {¶ 10} At the conclusion of DeSilvis’ and Switala’s testimony, the juvenile court

adjudicated T.S. to be dependent and abused.

       {¶ 11} Donita McGuire testified during the dispositional phase. McGuire is a

team leader and drug counselor from Unison Behavioral Health. McGuire testified as to




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appellant’s refusals to provide a drug screen, poor attendance, negative attitude while in

group therapy sessions and her ultimate unsuccessful discharge from Unison.

       {¶ 12} DeSilvis testified that appellant has a long history of significant substance

abuse, mental health, parenting and housing problems. Appellant’s participation in

services was inconsistent and, at the time of hearing in the instant case, she was living at

the YWCA, having been evicted from her apartment in February of 2015.

       {¶ 13} Documentary and testimonial evidence was also received demonstrating

that, besides Ka.F. and T.S., appellant lost permanent custody of four other children, and

legal custody of one child, born between 2002 and 2012, while living in Michigan.

       {¶ 14} The guardian ad litem (“GAL”), Diana Bittner, served as the GAL to T.S.

and Ka.F. Bittner testified that she believed it was in T.S.’s best interest to terminate

appellant’s parental rights and to award permanent custody to CSB. Bittner’s GAL report

was admitted into evidence and mirrors her testimony.

       {¶ 15} On May 13, 2013, the juvenile court awarded permanent custody of T.S. to

CSB.

                            III. Appellant’s Notice of Appeal

       {¶ 16} Appellant filed a four page, handwritten notice of appeal on June 5, 2015.

In it, she stated that she was making an earnest effort to heal, emotionally and physically.

Appellant claimed she was active in treatment, had been sober for two months, that she

was getting married, had obtained housing and was employed.




4.
                             IV. Counsel’s Ander’s Motion

       {¶ 17} Appellant was appointed appellate counsel, who filed a memorandum to

withdraw from the case for lack of a meritorious, appealable issue under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; see also State v. Duncan, 57

Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). Counsel states that, based upon his

review of the record, he has determined that the appeal is wholly frivolous.

       {¶ 18} In Anders, the court set forth the procedure to be followed by appointed

counsel who desires to withdraw for want of a meritorious, appealable issue. The 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.

Anders 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 he chooses. Id.

       {¶ 19} In this case, counsel set forth a potential ground for appeal, mailed a copy

of the memorandum to appellant and advised her of her right to file her own appellate

brief. Appellant has not filed an additional brief or otherwise responded.

       {¶ 20} Once the above 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 it is, the court may grant

counsel’s request to withdraw and dismiss the appeal without violating constitutional




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requirements or it may proceed to a decision on the merits if state law so requires. Id. If

the court concludes that arguable claims exist, the court must appoint new appellate

counsel to represent the defendant in his appeal. Id.

       {¶ 21} This court has independently reviewed the record under the Anders

procedure. We agree with counsel’s conclusion that the proceedings below were free of

error prejudicial to appellant and that no grounds exist to support a meritorious appeal.

Therefore, we grant counsel’s motion to withdraw from the case. For the reasons that

follow, we affirm the judgment of the trial court.

                     V. Appellant’s Proposed Assignment of Error

       {¶ 22} THE TRIAL COURT ERRED IN GRANTING APPELLEE LUCAS

COUNTY CHILDRENS SERVICES PERMANENT CUSTODY AS THE DECISION

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

                                 VI. Standard of Review

       {¶ 23} A reviewing court will not overturn a trial court’s permanent custody

decision unless the decision is against the manifest weight of the evidence. In re Alyssa

C., 153 Ohio App.3d 10, 2003-Ohio-2673, 790 N.E.2d 803, ¶ 13 (6th Dist.).

              [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. * * *




6.
              If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

       N.E.2d 517, ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio

       St.3d 77, 80, 461 N.E.2d 1213 (1984) .

       {¶ 24} In a permanent custody case, the ultimate question for a reviewing court is

“whether the juvenile court’s findings * * * were supported by clear and convincing

evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43.

Clear and convincing evidence is “more than a mere preponderance, but not to the extent

of such certainty as required beyond a reasonable doubt as in criminal cases. It does not

mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103–04, 495

N.E.2d 23 (1986).

       {¶ 25} Thus, if the children services agency presented competent and credible

evidence upon which the trier of fact reasonably could have formed a firm belief that

permanent custody is warranted, then the court’s decision is not against the manifest

weight of the evidence. In re Alyssa C. at ¶ 13.

                         VII. Permanent Custody Framework

       {¶ 26} A parent’s right to raise her child is a fundamental right. Troxel v.

Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); In re C.F., 113 Ohio




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St.3d 73, 2007–Ohio–1104, 862 N.E.2d 816, ¶ 28. The interest in the care, custody, and

control of one’s children is “one of the oldest of the fundamental liberty interests

recognized in American law.” In re K.H. at ¶ 39, citing Troxel, 530 U.S. at 65.

Terminating the right to raise one’s children strikes at the core of the parent-child

relationship. Therefore, parents “must be afforded every procedural and substantive

protection the law allows.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997).

       {¶ 27} A juvenile court may award permanent custody of a child to a public

children services agency where the court finds, by clear and convincing evidence, the

existence of one of the four factors listed in R.C. 2151.414(B)(1)(a) through (d) and that

it is in the best interest of the child to grant permanent custody to the agency. In re C.J.,

6th Dist. Lucas No. L-13-1037, 2013-Ohio-3056, ¶ 12; R.C. 2151.414(B)(1).

                                       VIII. Analysis

       {¶ 28} Here, the trial court relied upon R.C. 2151.414(B)(1)(a) which requires a

finding that “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.” R.C. 2151.414(E)

instructs a court to “enter a finding that the child cannot be placed with either parent

within a reasonable time or should not be placed with either parent” where it finds by

clear and convincing evidence that “one or more” of the factors listed under R.C.

2151.414(E) exist.




8.
       {¶ 29} Here, the juvenile court found that the factors set forth in R.C.

2151.414(E)(1), (2) and (11) were proven by clear and convincing evidence as they relate

to appellant. Those sections are set forth below in the left column. The juvenile court’s

findings as to each provision are set forth in the right column.

                R.C. 2151.414(E)                     The Juvenile Court’s Findings of Fact

     (1) Following the placement of                 Appellant had the opportunity, but
the child outside the child’s home and         failed, to complete case plan services,
notwithstanding reasonable case                including substance abuse treatment and
planning and diligent efforts by the           mental health services with respect to T.S.
agency to assist the parents to remedy         The court found the following evidence
the problems that initially caused the         persuasive: appellant was “non-compliant
child to be placed outside the home, the       with providing requested drug screens and
parent has failed continuously and             attending group and individual sessions;”
repeatedly to substantially remedy the         appellant was “unsuccessfully discharged
conditions causing the child to be             from substance abuse treatment at Unison
placed outside the child’s home. In            in March, 2015” and was not “adequately
determining whether the parents have           engaged in mental health services to
substantially remedied those                   address trauma issues related to her mental
conditions, the court shall consider           health.” The court also found that
parental utilization of medical,               appellant’s housing was “unstable” in that
psychiatric, psychological, and other          she was currently living at a shelter and had
social and rehabilitative services and         been recently evicted. In sum, the court
material resources that were made              concluded that appellant “has not
available to the parents for the purpose       successfully engaged and completed case
of changing parental conduct to allow          plan services and has not remedied the
them to resume and maintain parental           conditions that caused the child to be
duties.                                        removed from the home.”

      (2) Chronic mental illness,                  The Court heard evidence that
chronic emotional illness, mental              appellant was diagnosed with severe
retardation, physical disability, or           depression for which she was prescribed
chemical dependency of the parent that         medications. The court found that
is so severe that it makes the parent          appellant’s emotional and mental health is
unable to provide an adequate                  severe and is anticipated to last for at least
permanent home for the child at the            a year following. The court also found that
present time and, as anticipated, within       appellant “has a significantly long history




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one year after the court holds the             abusing substances and that she has been
hearing pursuant to division (A) of this       unable to adequately maintain a sober
section or for the purposes of division        lifestyle for a significant period of time.”
(A)(4) of section 2151.353 of the
Revised Code. * * *

      (11) The parent has had parental              The Court accepted evidence that
rights involuntarily terminated with           appellant had her parental rights
respect to a sibling of the child pursuant     involuntarily terminated with respect to
to this section or section 2151.353 or         five siblings of T.S. in Michigan and in
2151.415 of the Revised Code, or under         Lucas County, Ohio. The court concluded
an existing or former law of this state,       that appellant failed to put forth any
any other state, or the United States that     evidence, much less clear and convincing
is substantially equivalent to those           evidence, that despite those terminations,
sections, and the parent has failed to         she was able to provide a legally secure
provide clear and convincing evidence to       permanent placement for T.S.
prove that, notwithstanding the prior
termination, the parent can provide a
legally secure permanent placement and
adequate care for the health, welfare, and
safety of the child. * * *


       {¶ 30} Through counsel, appellant argues that the termination of her parental

rights was against the manifest weight of the evidence.

       {¶ 31} We disagree. We conclude that there is competent, credible evidence in the

record supporting a firm conviction or belief that appellant had the opportunity but failed

to complete case plan services; that she suffers from chronic chemical dependency that is

so severe as to render her unable to provide an adequate permanent home for T.S. at the

time of judgment and, as anticipated, within one year after the hearing; and that she

previously had her parental rights terminated with respect to five siblings of T.S.




10.
       {¶ 32} Under R.C. 2151.414(B)(1)(a), the applicability of “any one” of the (E)

factors establishes a finding that the child cannot be placed with her parents within a

reasonable time or should not be placed with her parents. See In re C.J., 6th Dist. Lucas

No. L-13-1037, 2013-Ohio-3056, ¶ 28. Here the juvenile court found clear and

convincing evidence of three “E” factors. We sustain those findings.

       {¶ 33} Next, we evaluate the second prong, whether an award of permanent

custody is in the best interests of the child. R.C. 2151.414(D)(1) provides:

              (D)(1) In determining the best interest of a child at a hearing held

       pursuant to division (A) of this section or for the purposes of division

       (A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of the

       Revised Code, the court shall consider all relevant factors, including, but

       not limited to, the following:

              (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;

              (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;

              (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 child placing agencies for twelve or more months of a




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       consecutive twenty-two-month period, or 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 and, 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;

              (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;

              (e) Whether any of the factors in divisions (E)(7) to (11) of this

       section apply in relation to the parents and child.

       {¶ 34} In its judgment entry, the trial court relied upon the following

evidence in finding, by clear and convincing evidence, that it was in T.S.’s best

interest to grant permanent custody to CSB: (1) that T.S. was young and had been

removed from appellant near the time of her birth; (2) that she was in need of

legally secure placement that could not be achieved without a grant of permanent

custody to CSB so that she might be adopted; (3) that appellant’s parental rights

had been terminated as to five of T.S.’s sibling; (4) that the caseworker and GAL

recommended that an award of permanent custody was in T.S.’s best interests; and

(5) that appellant had failed to consistently engage in case plan services.




12.
         {¶ 35} We have reviewed the record and find competent, credible evidence exists

to support the trial court’s findings under R.C. 2151.414(D)(1) to establish a firm belief

or conviction that an award of permanent custody to CSB is in the best interest of the

child.

                                       IX. Conclusion

         {¶ 36} We conclude that the trial court’s decision to award permanent custody of

T.S. to CSB is not against the manifest weight of the evidence. Appellant’s proposed

assignment of error is not well-taken. Appointed counsel’s motion to withdraw is granted.

The judgment of the Lucas County Court of Common Pleas, Juvenile Division, is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                        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.



Thomas J. Osowik, J.                             _______________________________
                                                             JUDGE
Stephen A. Yarbrough, P.J.
                                                 _______________________________
James D. Jensen, 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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