In re A.G. , 2012 Ohio 1621 ( 2012 )

[Cite as In re A.G., 2012-Ohio-1621.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: A.G. C.A. No. 26092
N.W.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 09-06-0530
DN 10-02-0084
DECISION AND JOURNAL ENTRY
Dated: April 11, 2012
WHITMORE, Presiding Judge.
{¶1} Appellant, Sara K. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, which awarded legal custody of her minor children
to their maternal aunt and uncle. This Court affirms.
I
{¶2} On March 31, 2009, Mother returned from North Carolina with her five month
old child, A.G., to live with her parents. Sometime around May 2009, Summit County Children
Services (“SCCS”) was contacted by a North Carolina Children Services Agency and asked to
conduct a courtesy interview of Mother in order to assess the risk to and safety of A.G. Mother
was uncooperative with SCCS and denied SCCS access to the home.
{¶3} SCCS returned to Mother’s residence in late June 2009, after receiving a referral
expressing concerns about the environment in which A.G. was living. Mother was
uncooperative and aggressive towards the social worker. Akron Police were called to the scene.
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SCCS was able to enter the home with the permission of the maternal grandmother. SCCS found
the home to be extremely cluttered, with a strong smell of urine and dog feces on the floor.
{¶4} After some discussion, A.G. was sent to spend the night with her maternal aunt
and uncle. SCCS then worked to develop a safety plan with Mother, but Mother remained
uncooperative. The following day, SCCS filed for emergency temporary custody, placed A.G.
with the maternal aunt and uncle, and developed a case plan for Mother. The court subsequently
found A.G. to be a neglected and dependent child.
{¶5} Mother’s case plan had three objectives; (1) “to complete a mental health
evaluation and follow all recommendations for treatment”; (2) “to complete intensive parenting
education”; and (3) “to obtain/maintain stable, safe, appropriate housing with adequate hygiene
standards.”
{¶6} Mother completed a mental health evaluation with Summit Psychological
Associates, Inc. in December 2009. Mother was diagnosed with adjustment disorder with
depression, borderline personality disorder with narcissistic features, antisocial personality
disorder, and borderline intellectual functioning. The evaluation recommended Mother receive
individual mental health counseling, complete an intensive anger management program,
complete a comprehensive parenting education, complete a psychiatric evaluation, and follow
through with all medication prescribed. Mother completed an anger management program and
attended some counseling sessions at Portage Path. In addition, Mother completed parenting
education through Greenleaf. SCCS maintained that this training did not satisfy the case plan
requirement. Mother refused to attend any additional parenting classes.
{¶7} Mother gave birth to N.W. in January 2010. N.W. was immediately placed with
A.G. in the home of her maternal aunt and uncle and added to Mother’s case plan. A.G. and
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N.W. remained in the home of their maternal aunt and uncle, under temporary custody of SCCS,
until the legal custody hearing on March 4, 2011.
{¶8} On January 7, 2011, Mother married her new husband who resides with his
parents in Brunswick, Ohio. Mother moved in with her new husband and his parents.
{¶9} On March 4, 2011, the court held a legal custody hearing. Legal custody of both
children was sought by Mother, their maternal grandparents, and their maternal aunt and uncle.
Legal custody of A.G. was also sought by A.G.’s father and her paternal grandparents. The court
found that it was in the best interest of the children to remain with their maternal aunt and uncle,
and granted them legal custody.
{¶10} Mother filed a timely appeal. In lieu of a merit brief, Mother’s appellate counsel
has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which counsel
asserts that there are no meritorious issues to raise on Mother’s behalf. Counsel has moved this
Court to accept the Anders brief in lieu of a merit brief and to permit her to withdraw from the
case.
{¶11} In her Anders brief, Mother’s counsel has presented three possible issues for
review.
II
Possible Issue For Review Number One
THE TRIAL COURT ERRED IN FINDING THAT LEGAL CUSTODY TO
THE MATERNAL UNCLE AND AUNT WAS SUPPORTED BY A
PREPONDERANCE OF THE EIDENCE (sic) AND IN THE CHILDREN’S
BEST INTEREST[.]
{¶12} In the first possible issue for review, Mother’s counsel concludes that “Mother did
not offer more convincing evidence to support her * * * request for legal custody * * *, than the
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agency presented to support its Motion for legal custody to the maternal uncle and aunt.” We
agree.
{¶13} “This Court generally reviews a trial court’s action with respect to a magistrate’s
decision for an abuse of discretion. In so doing, we consider the trial court’s action with
reference to the nature of the underlying matter.” (Internal quotations and citations omitted.)
Oberlin v. Oberlin, 9th Dist. No. 25864, 2011-Ohio-6245, ¶ 7. “A trial court retains broad
discretion in child custody matters, and this Court will only reverse the trial court upon a
showing of an abuse of discretion.” In re M.B., 9th Dist. No. 26004, 2012-Ohio-687, ¶ 10, citing
Lorence v. Goeller, 9th Dist. No. 04CA008556, 2005-Ohio-2678, ¶ 14. An abuse of discretion
implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Although the statutory scheme regarding an award of legal custody does not
include a specific test or set of criteria, this Court has previously held that the trial
court must base such a decision on the best interest of the child. In re S.J., 9th
Dist. No. 23199, 2006-Ohio-6381, ¶ 32, citing In re N.P., 9th Dist. No. 21707,
2004-Ohio-110, ¶ 23. Consequently, “[i]n legal custody cases, trial courts should
consider all factors relevant to the best interest of the child.” In re S.J. at ¶ 34.
We have also noted that the factors contained in R.C. 2151.414(D) may provide
guidance to the trial court in making an award of legal custody. Id. at ¶ 32.
Those factors include:
“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;
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;
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 consecutive twenty-two
month period * * *; [and]
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[.]” R.C. 2151.414(D)[(1)(a-d)].
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In re R.R., 9th Dist. No. 23641, 2007-Ohio-4808, ¶ 12.
{¶14} In her brief, Mother’s counsel refers this Court to R.C. 3109.04(F)(1) for factors
to consider in determining the best interest of the children. While R.C. 3109.04(F)(1) applies to
the “allocation of parental rights in a domestic relations case[,]” these factors may also be
considered in legal custody cases. In re J.D., 9th Dist. No. 24915, 2010-Ohio-1344, ¶ 7. Trial
courts should consider all factors relevant to the best interest of the child. In re S.J. at ¶ 34.
{¶15} SCCS became involved in June 2009, when A.G. was approximately eight months
old. At the time of the legal custody hearing, A.G. had been living with the maternal aunt and
uncle for just under two years. N.W. has been living with the maternal aunt and uncle since
birth. At the time of the trial, N.W. was just over one year old.
{¶16} There is no indication in the record of concerns for the children in the home of the
maternal aunt and uncle. The maternal aunt and uncle are willing and able to provide a
permanent home for the children. There is no dispute that the children are doing well in the
home and have bonded with the aunt and uncle’s two older children. The uncle testified that
A.G. and N.W. are doing great and have “thrive[d]” since coming to live with his family. The
uncle described the bonding between his two biological children, A.G., and N.W. He described
the household as “one family unit.” Moreover, the uncle testified that both he and his wife are
willing to facilitate visits with all parties involved and understood that legal custody does not
terminate Mother’s parental rights.
{¶17} Mother argues that she wants custody of her children because she knows she “can
provide for them and * * * can actually take care of them.” However, there is concern about
Mother’s stability and her ability to provide for the children. Mother is unemployed and does
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not have a driver’s license or a steady mode of transportation. Mother is currently residing with
her new husband in the home of her in-laws.
{¶18} There was testimony that Mother had not fully complied with her case plan, and
continued concerns about Mother’s mental health. Mother testified that she did comply with all
of the objectives in her case plan and disputes that her mental health is a concern. “[T]he
dispositive issue is not whether the parent has substantially complied with the case plan, but
rather, whether the parent has substantially remedied the conditions that caused the child’s
removal.” In re Pittman, 9th Dist. No. 20894, 2002-Ohio-2208, ¶ 60. The magistrate found it
“clear from the testimony that * * * [M]other has not adequately addressed the issues which
brought these children before the court.” The trial court agreed with the magistrate’s decision.
After reviewing the record, this Court cannot say that the trial court abused its discretion in
reaching that determination.
{¶19} The trial court did not abuse its discretion in granting legal custody to the
maternal aunt and uncle. Mother’s first possible issue for review is without merit.
Possible Issue For Review Number Two
THE TRIAL COURT ERRED IN PLACING THE CHILDREN INTO THE
LEGAL CUSTODY OF THE MATERNAL UNCLE AND AUNT, RATHER
THAN WITH MOTHER OR MATERNAL GRANDPARENTS[.]
{¶20} In the second possible issue for review, Mother’s counsel concludes that Mother
cannot successfully challenge the trial court’s decision to grant legal custody to the maternal aunt
and uncle. We agree.
{¶21} Mother filed a motion requesting that legal custody be granted to her, the maternal
grandparents, or the maternal aunt and uncle. Assuming without deciding that Mother has
standing to challenge the denial of legal custody to the maternal grandparents, we conclude that
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the trial court did not abuse its discretion in granting legal custody to the maternal aunt and
uncle.
{¶22} Grandmother testified that she had not discussed obtaining custody of the children
with her husband. The record also indicates that the grandparents have had little interaction with
the children since their removal. The grandparents have not visited the children at the home of
the aunt and uncle, nor has Grandfather visited the children at CSB. Grandmother had visited
with the children at CSB, but testified that she had not been for a visit in a couple of months.
Further, the grandparents testified that they believed Mother was currently in the position to take
care of the children. The guardian ad litem recommended that the maternal grandparents have
supervised visits because she was concerned that the grandparents would not supervise Mother’s
visits with the children. After reviewing the record, we cannot conclude that the trial court
abused its discretion in granting legal custody to the maternal aunt and uncle.
{¶23} Mother cannot prevail on an argument that the trial court erred in its decision not
to grant her legal custody. As discussed in the section above, the trial court found that granting
legal custody to the maternal aunt and uncle was in the best interest of the children. The trial
court did not abuse its discretion when it made this finding.
{¶24} Mother’s second possible issue for review is without merit.
Possible Issue For Review Number Three
TRIAL COUNSEL DID NOT PROVIDE EFFECTIVE ASSISTANCE OF
COUNSEL[.]
{¶25} In the third possible issue for review, Mother’s counsel concludes that Mother’s
trial counsel was not ineffective. We agree.
{¶26} A claim of ineffective assistance of counsel requires Mother to satisfy a two-
prong test. First, she must prove that trial counsel’s performance was deficient. Strickland v.
8
Washington, 466 U.S. 668, 687 (1984). Second, Mother must “demonstrate that [s]he was
prejudiced by h[er] trial counsel’s deficient performance.” State v. Srock, 9th Dist. No. 22812,
2006-Ohio-251, ¶ 21. Prejudice entails “a reasonable probability that, were it not for counsel’s
errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136(1989), paragraph three of the syllabus.
{¶27} After reviewing the record, we cannot conclude that trial counsel’s performance
was deficient. Trial counsel diligently represented Mother in her pursuit to regain custody of her
children. Mother’s third possible issue for review is without merit.
{¶28} In addition to the three possible issues presented for review, this Court has
conducted a full, independent examination of the proceedings in accordance with Anders v.
California, 386 U.S. 738 (1967). We conclude that there are no appealable issues in this case.
Mother’s appeal is without merit and frivolous under Anders.
III
{¶29} After a thorough review of the record, we agree that Mother’s appeal is without
merit and frivolous. Appellate counsel’s motion to withdraw is granted, and the judgment of the
Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
9
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, J.
CONCURS.
DICKINSON, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
LEE A. SCHAFFER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.