[Cite as In re K.D., 2017-Ohio-136.]




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


In re K.D.                                       Court of Appeals No. S-16-008

                                                 Trial Court No. 21530130



                                                 DECISION AND JUDGMENT

                                                 Decided: January 13, 2017

                                         *****

        Brett A. Klimkowsky, for appellant.

        Nancy E. Haley, for appellee.

                                         *****

        SINGER, J.

        {¶ 1} Appellant, A.R., parent of K.D., a minor child, appeals from the January 21,

2016 judgment of the Sandusky County Court of Common Pleas, Juvenile Division,

which granted legal custody of K.D. to her paternal grandmother, S.W. The trial court

appointed counsel to represent appellant on appeal.
       {¶ 2} Pursuant to the guidelines set forth in Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant’s counsel filed an appellate brief and

motion to withdraw as counsel. He mailed a copy of the brief and motion to appellant

and informed her that she had a right to file her own brief, but she did not do so.

Appellant’s counsel states in his motion that he thoroughly reviewed the record in this

case and concluded that the trial court did not commit any error prejudicial to appellant.

In compliance with the requirements of Anders, counsel submitted the following potential

assignment of error:

                Whether the undersigned attorney is correct in asserting in this

       appellate brief filed pursuant to Anders v. California, 386 U.S. 738 (1967),

       that there is no meritorious basis to appeal the adjudication of the trial

       court.

       {¶ 3} Indigent parents have a right to appointed counsel and a transcript on appeal

pursuant to the Article I, Sections 1, 2, and 16 of the Ohio Constitution in cases involving

the termination of parental rights and may have a right under the Fourteenth Amendment

to the United States Constitution depending upon the facts of each case. In re Miller, 12

Ohio St.3d 40, 41-42, 465 N.E.2d 397 (1984); State ex rel. Heller v. Miller, 61 Ohio

St.2d 6, 399 N.E.2d 66 (1980), paragraph two of the syllabus; Lassiter v. Dept. of Social

Servs., 452 U.S. 18, 31-32, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). In the case before us,

the agency sought only a disposition of legal custody to a third-party family member.

Therefore, appellant did not have a right to counsel on appeal. Nonetheless, counsel was

appointed.


2.
       {¶ 4} We have held the procedure set forth in Anders, supra, is applicable in

parental termination cases where appointed counsel believed an appeal was frivolous. In

re B.H., 6th Dist. Lucas No. L-15-1166, 2015-Ohio-5495, ¶ 5; Morris v. Lucas Cty.

Children Servs. Bd., 49 Ohio App.3d 86, 87, 550 N.E.2d 980 (6th Dist.1989). However,

we have never approved of application of the Anders procedure in an appeal of a neglect

and dependency dispositional order granting legal custody of a child to a nonparent.

Because the Anders procedure has not been extended to this type of case, we hereby deny

counsel’s motion to withdraw. Because of the need for swift resolution of child custody

matters and the unique circumstances in this case, we will consider the brief filed by

appellant’s counsel and review the record in this case for plain error. For all future cases

of this type, however, a brief must be filed in compliance with App.R. 16.

       {¶ 5} The agency received a referral regarding K.D., a one year old, on May 13,

2015, after forensic testing confirmed that the parents had possessed illegal drug

paraphernalia on March 24, 2015, when their car, in which K.D. was riding, was stopped

by police. On May 13, 2015, an investigator visited K.D.’s home and observed that both

parents were under the influence of an unknown substance. K.D. was placed in

emergency custody with the paternal grandmother, S.W. The agency had previously

conducted an intervention with the parents in November 2014, but the parents would not

enter treatment. The case was closed because the charges could not be substantiated.

       {¶ 6} On June 6, 2015, both parents admitted to the agency caseworker that they

used heroin. The father would not participate in drug testing asserting he would not pass




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the test. The mother attempted to submit to testing but no sample could be obtained.

Afterward, neither parent would submit to testing or participate in agency services.

       {¶ 7} On June 22, 2015, the agency filed a complaint seeking to have legal

custody of K.D. transferred to the paternal grandmother and the agency being granted

protective supervision. The grandmother later signed a statement of understanding which

was filed with the court. On August 18, 2015, the court ordered the child to be placed in

protective supervision of the agency and committed K.D. to the temporary custody of the

paternal grandmother.

       {¶ 8} At the adjudication hearing on the complaint held on August 31, 2015,

appellant requested appointed counsel. Therefore, the court continued the hearing and

the temporary custody order. On September 29, 2015, the agency filed a show cause

motion because appellant failed to participate in case plan services as ordered by the

court. On October 5, 2015, the juvenile court found appellant in contempt and again

continued the temporary custody order. On October 15, 2015, the adjudication hearing

was held. K.D. was adjudicated a dependent child based on the court’s findings that the

parents used heroin, they refused to participate in the agency case plan services, and both

had pending criminal charges. Appellant consented to the finding of dependency. The

court found appellant was competent, that she was satisfied with her attorney, and that

she had sufficient time with her counsel before consenting to the finding. After a recess,

the dispositional hearing was held. The parties agreed and consented to continuing the

temporary custody placement with the paternal grandmother and protective supervision

provided by the agency.


4.
       {¶ 9} On November 23, 2015, the agency moved to terminate protective

supervision of K.D. and for an order granting legal custody to the paternal grandmother,

who filed a statement of understanding and was named in the complaint as a proposed

legal custodian. The agency alleged the parents were unwilling to cooperate with the

case plan, which had been approved by the court. The agency alleged the parents had

also disobeyed the court’s order to participate in drug screening, both parents had

pending felony charges against them, and neither parent had alleviated the concerns and

risks that warranted the initial removal of K.D. The agency further alleged neither parent

exhibited any commitment to alleviating the concerns that led to the child’s removal from

their home. The agency also alleged that the child was doing well in her current

placement and that neither parent was visiting the child. On its own motion, the court

reviewed the award of temporary custody and found that it was still “contrary to the

health and welfare” of the child to return her to her parents.

       {¶ 10} On January 12, 2016, the juvenile court conducted a final disposition

hearing and a hearing on the agency’s show cause motions. Both parents appeared with

their attorneys, as well as the CASA representative/guardian ad litem, the paternal

grandmother, and the agency caseworker. Prior to the hearing, the parties reached a

“settlement agreement.” All parties stipulated that the agency had used reasonable efforts

to resolve the issues that caused the child’s removal from the parents’ home and that it is

contrary to K.D.’s best interest to return her to her parents’ home. All of the parties

consented to legal custody being given to the paternal grandmother, with the parents

having weekly supervised visitation. We interpret the “settlement agreement” as a


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stipulation to the facts of the agency’s motion for a final dispositional order of legal

custody.

       {¶ 11} On the record, appellant indicated and the court found appellant was

competent and understood the nature of the proceedings. The trial court discussed

appellant’s rights and the agreement. Appellant acknowledged that she had entered into

the agreement knowingly, voluntarily, and intelligently and the court confirmed this fact.

Appellant stated she was satisfied with the advice of her appointed counsel. The court

and caseworker reviewed the reasonable efforts the agency offered to the parents.

       {¶ 12} The juvenile court entered a judgment dated January 12, 2016, and

journalized January 21, 2016, incorporating the settlement agreement approved by the

court and awarding legal custody of the child to the paternal grandmother. The court

found in its judgment that the placement of K.D. in the permanent legal custody of the

child’s paternal grandmother and supervised visitation “is safe and healthy and in

[K.D.’s] best interest.”

       {¶ 13} There is no evidence in the record to support a finding that appellant was

under duress or fraudulently induced into signing the settlement agreement. In re B.M.,

181 Ohio App.3d 606, 2009-Ohio-1718, 910 N.E.2d 46, ¶ 61 (11th Dist.). The stipulated

facts of the motion for legal custody provide sufficient evidence to support the juvenile

court’s finding regarding the best interest of the child. There is no evidence the juvenile

court abused its discretion by accepting the stipulated facts and finding that it was in the

best interest of K.D. to terminate the agency’s protective services and award legal




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custody of K.D. to the paternal grandmother, with the parents having supervised

visitation. In re B.L., 6th Dist. Lucas No. L-15-1030, 2016-Ohio-738, ¶ 7.

       {¶ 14} Our review of the record does not disclose any plain errors which would

justify a reversal of the judgment. Having found that the trial court did not commit error

prejudicial to appellant, the judgment of the Sandusky County Court of Common Pleas,

Juvenile Division, is affirmed. Pursuant to App.R. 24, appellant is hereby ordered to pay

the court costs incurred on appeal. The clerk is ordered to serve all parties with notice of

this decision.


                                                                        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.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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