       [Cite as In re J. M., 2013-Ohio-5896.]
               IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                HAMILTON COUNTY, OHIO



IN RE: J.M.                                     :      APPEAL NO. C-130643
                                                       TRIAL NO. F09-1692X

                                                :           O P I N I O N.




Civil Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 24, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mark Sauers,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Lisa Elliott Lee, for Appellee Guardian Ad Litem,

Kacy C. Eaves, for Appellee Amber M.,

Hugh P. McCloskey, for Appellant Debra U.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



D E W INE , Judge.

       {¶1}    This is an appeal from a judgment of the Hamilton County Juvenile

Court denying a nonrelative caregiver’s motion for custody of a child and granting

permanent custody to the Hamilton County Department of Job and Family Services

(“HCJFS”). Counsel for the caregiver has filed a brief stating that he is unable to find

any error that would entitle his client to relief, and has requested that this court

independently review the record pursuant to Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel also has moved for permission to withdraw

as counsel. We have reviewed the record and agree with counsel’s conclusion, so we

overrule counsel’s motion to withdraw and affirm the judgment below. We conclude,

however, that Anders briefs are not appropriate in appeals from judgments terminating

parental rights or determining legal custody, and we will no longer accept these briefs in

such cases.

                                            I.

       {¶2}    J.M., the child who is at the center of this appeal, was born in January

2009. Shortly after his birth, J.M.’s biological mother, Amber, determined that she did

not wish to care for J.M. and entered into a private arrangement with Debra by which

Debra agreed to care for J.M. Although she never obtained legal custody of J.M., Debra

was his sole caregiver for approximately 18 months.

       {¶3}    Debra filed a motion for custody of J.M. in March 2010, and the

magistrate ordered that a custody investigation be performed. In July 2010, while

Debra’s custody petition was pending, HCJFS was granted interim custody of Amber’s

children, including J.M. HCJFS permitted J.M. to remain in Debra’s home pending the

results of a home study. HCJFS initially sought reunification of all children, including




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J.M., with Amber, and Debra agreed to hold her pending motion for custody of J.M. in

abeyance for consideration if reunification was not possible.

       {¶4}       The home study revealed that Debra had been diagnosed with multiple

mental health illnesses, including paranoid schizophrenia, borderline personality

disorder, and adjustment disorder. The study also described a history of substance

abuse, frequent allegations of neglect involving her biological daughter, and numerous

criminal contacts, including menacing and assault convictions. Based largely on these

findings, the court granted HCJFS’s request to remove J.M. from Debra’s care in

December 2010.

       {¶5}       After learning the results of the home study, Amber determined that she

no longer wanted J.M. to remain in Debra’s care and instead supported a plan for

adoption through HCJFS. Amber signed a permanent surrender of J.M. to HCJFS, and

permanency proceedings were initiated. Debra was the only party opposing a grant of

permanent custody to HCJFS, and the magistrate considered her competing custody

motion as part of the permanency proceedings.

       {¶6}       Based on the evidence presented at the permanency hearings, the

magistrate found that a grant of permanent custody to HCJFS was in J.M.’s best

interests, and denied Debra’s custody motion. Debra filed objections to the decision,

and the trial court affirmed the magistrate’s findings of fact and conclusions of law.

       {¶7}       Counsel for Debra filed an Anders brief and moved to withdraw from

representation.

                                            II.

       {¶8}       In Anders, the United States Supreme Court addressed the potential

ethical conflict faced by an attorney appointed by the court to represent an indigent

criminal defendant in his first appeal as of right, where such an attorney has an



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obligation to advocate zealously on behalf of his client without running afoul of the

ethical bar against bringing frivolous appeals.

       {¶9}     The Anders decision was derived from a line of cases involving an

indigent criminal defendant’s right to counsel under the Sixth Amendment and the Due

Process and Equal Protection Clauses of the Fourteenth Amendment. See, e.g., Gideon

v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v.

California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The Anders Court held

that, for counsel to fulfill his constitutional obligations, he must not withdraw from

representation except where an appeal would be “wholly frivolous,” and even then, only

after providing the court with “a brief referring to anything in the record that might

arguably support the appeal.” Anders at 744. The defendant must then be given the

opportunity to raise any additional arguments, and the reviewing court must conduct an

independent review to determine whether there are any arguably meritorious claims.

Id. If the court concludes that arguable claims exist, the court must appoint new

appellate counsel to represent the defendant in his appeal. Id.

       {¶10}    Since its decision in Anders, the United States Supreme Court has

clarified that the procedure annunciated in Anders is “prophylactic” in nature, and that

states are “free to adopt different procedures, so long as those procedures adequately

safeguard a defendant’s right to appellate counsel.” Smith v. Robbins, 528 U.S. 259,

265, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

                                            III.

       {¶11}    We recognize that we have previously allowed Anders appeals in civil

permanent-custody proceedings. See In re D.C., 1st Dist. Hamilton No. C-090466,

2009-Ohio-5575. Some other Ohio appellate districts have likewise permitted such

appeals, though often without extensive analysis. See, e.g., Morris v. Lucas Cty.



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Children Servs. Bd., 49 Ohio App.3d 86, 550 N.E.2d 980 (6th Dist.1989). But many

other states have reached the opposite conclusion, declining to extend Anders to

termination cases. See, e.g., N.S.H. v. Florida Dept. of Children and Family Servs.,

843 So.2d 898, 902 (Fla.2003); In re Sade C., 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920

P.2d 716 (1996); A.L.L. v. People, 226 P.3d 1054 (Colo.2010). Although we have allowed

such appeals in the past, we decide today that the Anders procedure is not appropriate

in permanent-custody cases.

       {¶12}    In so holding, we note that the ruling in Anders was a limited one,

addressing counsel’s role in assisting an indigent criminal defendant wishing to appeal a

criminal conviction. Accordingly, our local appellate rules explicitly limit no-error briefs

to criminal appeals. See 1st Dist. Loc.R. 16.2.

       {¶13}    We are also mindful that Anders “has, from the beginning, received

‘consistent and severe criticism.’ ” Robbins, 528 U.S. at 281, 120 S.Ct. 746, 145

L.Ed.2d 756, quoting Sade C. at 979, fn. 7. Commentators have contended that

Anders enables counsel to shirk his duty to fully represent his client, a problem

exacerbated by the scarce resources available to court-appointed attorneys. Robbins

at 282, fn. 13. Anders has resulted in an unusual reversal of roles, whereby the client’s

advocate judges the merits of the case and the court acts as advocate for the client. See

A.L.L. at 1061. Thus, Anders “represents a radical departure from the traditional role of

appellate judges as neutral decision makers[.]” N.S.H. at 902. Critics further note that

Anders puts forth confusing circular directives, requiring counsel who deems an

appeal to be “wholly frivolous” to brief any arguable issues, while at the same time

holding that any issue that is “arguable” is not “wholly frivolous.” Robbins at 282.

       {¶14}    In addition, critics of Anders assert that it has resulted in “a failure of

equal protection” in that it “creates two distinct classes of appellate review”:



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       [W]hat is particularly disturbing to most judges who have reviewed

       Anders appeals is the inconsistency of the appellate system created by

       Anders. An indigent defendant whose appointed counsel states that

       there are no arguable issues to raise is entitled to the full and

       independent review of the court to discern whether the attorney has

       missed points of arguable error.       However, neither the indigent

       defendant whose attorney does not file an Anders brief nor the

       nonindigent defendant gets this kind of review from the court.

Warner, Anders in the Fifty States: Some Appellants’ Equal Protection is More

Equal Than Others’, 23 Fla.St.U.L.Rev. 625, 642-662 (1996). As the Robbins Court

explained, “to the extent this criticism has merit, our holding today that the Anders

procedure is not exclusive will enable States to continue to experiment with solutions

to this problem.” Robbins at 282, fn. 13. Given the limited holding of Anders and the

problems with its implementation, we are reluctant to extend this procedure into other

realms.

       {¶15}   Our holding is in no way meant to discount the magnitude of the

parental rights at stake in a permanent-custody case.      Indeed, we recognize that

permanent-custody proceedings implicate a parent’s fundamental due-process rights

and, as such, parents must be afforded substantial procedural protections.       In re

Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14.             We find,

however, that a parent’s rights would be better protected where counsel is compelled to

search the record and present arguments for review.

       {¶16}   The records in termination proceedings are typically extensive and

highly fact-based. Anders review in a permanent-custody case places an inordinate

burden on the appellate court to scour the voluminous record searching for error, a



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task that we are “ill-equipped” to perform without the “active and meaningful

assistance of counsel.” State v. Tsibouris, 1st Dist. Hamilton Nos. C-120414 and C-

120415, 2013-Ohio-3324. It is far more beneficial to the court and to the client for

appellate counsel, who has necessarily reviewed the record in full, to brief the merits of

the case and set forth arguments for the court’s consideration.

        {¶17}    We are confident in the ability of attorneys to craft nonfrivolous

arguments in permanent-custody appeals. Custody determinations are necessarily fact-

specific and, as such, they are almost never entirely one-sided. It is, therefore, difficult

to imagine any appeal challenging the weight of the evidence or a best-interest

determination that would be deemed frivolous. Additionally, while an attorney’s duty of

candor forbids him from knowingly misstating material fact or law and from failing to

disclose contrary legal authority, see Prof.Cond.R. 3.3, the Rules of Professional Conduct

(“Rules”) permit a “good faith argument for an extension, modification, or reversal of

existing law.” See Prof.Cond.R. 3.1. The comments to Prof.Cond.R. 3.1 explain that an

appeal is “not frivolous even though the lawyer believes that the client’s position

ultimately will not prevail.”       See Prof.Cond.R. 3.1, comment 2.1           Thus, the Rules

distinguish nonmeritorious appeals from those that are wholly frivolous.

        {¶18}    The comments further indicate that an attorney’s duty to refrain from

filing frivolous appeals is subordinate to his obligations to a client with a

constitutionally-protected right to the assistance of counsel.            See Prof.Cond.R. 3.1,

comment 3. While this comment refers specifically to criminal matters, we believe that

similar logic applies where there is a constitutional guarantee to counsel when appealing

decisions terminating parental rights. See State ex rel. Heller v. Miller, 61 Ohio St.2d 6,



1Although the comments to the Rules do not create binding obligations, they do “provide guidance for
practicing in compliance with the rules.” See Prof.Cond.R, Scope, section 14.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



399 N.E.2d 66 (1980).        Under these circumstances, an attorney may effectively

represent his client without running afoul of his duties to the court where he does not

deceive the court on matters of fact and law, and where he makes a good-faith argument

on behalf of his client, regardless of the ultimate unpersuasiveness of that argument.

See ABA Standards for Criminal Justice: Defense Function 4-8.3 (3d Ed.1993),

Criminal Appeals 21-3.2 (2d Ed.1986). Even where the attorney concludes that his

client is unlikely to prevail, the attorney may still fulfill his role as an advocate,

ensuring that his client’s arguments are heard by the court and assisting his client in

navigating the appellate process. A.L.L., 226 P.3d at 1060-1061.

                                           IV.

       {¶19}    In sum, we conclude that the Anders procedures are not appropriate in

appeals from decisions terminating parental rights or awarding legal custody, and going

forward, we will no longer accept such briefs.

       {¶20}    We recognize, however, the need for swift resolution of matters involving

child custody. And we also recognize that counsel filed his brief in this case in reliance

on our prior practice of permitting Anders appeals in civil-custody cases. With these

considerations in mind, we independently have reviewed the record under the Anders

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

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

Therefore, we overrule counsel’s motion to withdraw from representation, and affirm

the judgment of the trial court.

                                                                     Judgment affirmed.

H ENDON , P.J., and H ILDEBRANDT , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.


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