In re N.C. & A.C. , 2019 Ohio 567 ( 2019 )

[Cite as In re N.C. & A.C., 2019-Ohio-567.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: N.C. and A.C. :
:
: Appellate Case Nos. 28105 and 28117
:
: Trial Court Case Nos. 2016-0818 and
: 2016-0819
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
...........
OPINION
Rendered on the 15th day of February, 2019.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384 and SARAH
E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorneys, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, Dayton, Ohio 45422
Attorneys for Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Appellant, Father
SARA M. BARRY, Atty. Reg. No. 0090909, 1139 Holly Avenue, Dayton, Ohio 45410
Attorney for Appellant, Mother
.............
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WELBAUM, P.J.
{¶ 1} These cases are before us on the appeals of the parents of A.C. and N.C.,
following judgments terminating their parental rights. To protect the children’s privacy,
we will use initials for the children’s names and will refer to the parents as “Mother” and
“Father.”
{¶ 2} Father raises the following assignments of error: (1) the trial court abused its
discretion by denying Father’s motion for a continuance the day of the permanent custody
hearing; (2) trial counsel rendered ineffective assistance of counsel; and (3) the trial court
erred in granting permanent custody of A.C. and N.C. to Appellee, Montgomery County
Department of Job and Family Services – Child Services Division (“MCCS”).
{¶ 3} Mother’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that counsel found the appeal to be wholly
frivolous. We notified Mother and gave her 60 days to file her own pro se brief, but she
failed to do so.
{¶ 4} After reviewing the record, we conclude that Father’s assignments of error
are without merit. We have also performed our duty, under Anders, to review the record
independently, and we agree with Mother’s attorney that no potential assignments of error
have arguable merit. Accordingly, the judgment of the trial court will be affirmed.
{¶ 5} For the reasons discussed below, we have also concluded that from this time
forward, the Second District Court of Appeals will not accept Anders briefs in cases
involving termination of parental rights.
I. Facts and Course of Proceedings
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{¶ 6} Mother had six biological children, two of whom, A.C. and N.C., were Father’s
biological children. Mother also had legal custody of another child (H.H.).
{¶ 7} On February 5, 2016, MCCS filed neglect and dependency complaints in the
Montgomery County Juvenile Court concerning A.C. (then age eight) and N.C. (then age
five). According to the complaints, MCCS became involved with Mother in October 2015
because H.H. went to school inappropriately dressed for the weather (she had on only an
undershirt and tights despite the chilly weather). H.H. also had severe head lice. When
MCCS went to Mother’s home, Mother was in her car and appeared under the influence.
After MCCS told Mother that representatives were there to walk through the home and
make safety plans for the seven children, if needed, Mother became upset and left in her
car.
{¶ 8} Three children were alone in the home, including A.C. and N.C. A.C. had
not gone to school that day, and N.C. (who was then four years old), was not of school
age. An older child, D.C., was at home and not in school; D.C. often stayed home from
school to watch the children. All three children were very dirty, were dressed in dirty
clothes, and had a foul odor. The conditions of the house were deplorable and unsafe,
including no running water in the bathtub, shower, and kitchen, no edible food in the
kitchen, rotting food in the refrigerator, and flies everywhere in the house. In addition,
every room had piles of trash and debris, or bags of dirty clothes and trash.
{¶ 9} Mother returned while MCCS was at the house and appeared under the
influence of drugs. She refused to take a drug test and admitted that she would leave
the children home alone for days at a time. Mother agreed to safety plans placing the
children outside the home. Initially, A.C. and N.C. were placed with a non-relative and
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were then moved to the home of their stepbrother and his girlfriend. However, these
individuals told MCCS at the end of November 2015 that they could not keep the children
much longer. There were no known relatives able and willing to take care of the children.
Mother was not meeting with MCCS and was not in treatment for mental health or
substance abuse issues. In addition, Father was on parole for crimes against Mother
and had been convicted of endangering children. He also had not addressed the
concerns arising from these convictions. As a result, MCCS filed a complaint for
dependency and neglect and asked for temporary custody of the children.
{¶ 10} On February 12, 2016, the magistrate ordered that MCCS be given interim
temporary custody. Mother did not appear for the hearing. Father appeared, and
counsel was appointed for Father on February 19, 2016. Counsel continued to represent
Father during the case until after the permanent custody hearing, which was held in mid-
November 2017.
{¶ 11} A semi-annual review report (SAR) was filed on April 22, 2016, indicating
that Mother had been avoiding MCCS, that the agency had no address for her, and that
she had not complied with recommendations. Following a continuance, a hearing on the
neglect and dependency claims was held on May 6, 2016. Father and his attorney
appeared for the hearing; Mother did not appear. The magistrate then filed an order
finding clear and convincing evidence that the children were neglected and dependent.
No objections to the decision were filed.
{¶ 12} Subsequently, a hearing was held on August 19, 2016, at which time the
magistrate filed a decision grating temporary custody of the children to MCCS. Father
agreed to temporary custody, and Mother again was not present, although her appointed
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counsel did attend the hearing. No objections to the decision were filed.
{¶ 13} On October 7, 2016, MCCS filed a motion for a first extension of temporary
custody. The affidavit of the caseworker indicated that Mother had made no progress
on the case plan and had little, inconsistent contact with the agency. Mother had been
ordered to go to a drug screen in July 2016 and did not attend. Mother had no proof of
sobriety and did not have stable housing or income sufficient to meet the children’s basic
needs.
{¶ 14} Likewise, Father had been ordered to go for a drug screen in July 2016 and
did not attend. Father had admitted to being on Methadone, Xanax, Prozac, and Lithium,
but had provided no proof of the prescriptions and had not named the professional who
prescribed them. In addition, Father had refused substance abuse assessments and
referrals for parenting classes.
{¶ 15} After a hearing held on December 2, 2016, the magistrate filed a decision
finding that an extension of temporary custody was in the children’s best interests.
Father and his attorney were present; Mother did not appear. At the time Mother had
felony drug charges pending and had not been visiting the children. Father’s case plan
also was not complete, and he agreed to an extension of temporary custody. No
objections to the decision were filed.
{¶ 16} In March 2017, MCCS filed a motion and affidavit seeking permanent
custody of the children. According to the affidavit of the case worker, Mother had not
visited the children in over a year. Mother denied drug abuse but had recently been
arrested and charged with possession of heroin and other drug-related charges. Mother
did not meet with the caseworker other than when she was incarcerated.
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{¶ 17} The affidavit also indicated that Father had been scheduled to visit every
Wednesday at the agency. However, due to Father’s behaviors, MCCS decided that his
visits were to be supervised, beginning in February 2017, but Father had not attended the
visits. In addition, Father had not complied with his case plan.
{¶ 18} A hearing was held on April 18, 2017. Father and his attorney were
present; Mother was not present. Following the hearing, the magistrate found that
Father had voluntarily stopped visiting in mid-January 2017 and Mother had not visited
because she was repeatedly incarcerated and her whereabouts were unknown. The
children had also expressed fear to the guardian ad litem (“GAL”) about Father and had
consistently said that they did not want to have contact with Father. Furthermore, the
GAL had recommended that visits not be restarted, and MCCS agreed. The magistrate
suspended Father’s visiting time pending further order of the court and set a hearing for
June 15, 2017, at which time the parties were to present information to the court about
Father’s parenting time. Finally, the magistrate set an in camera interview with the
children for May 31, 2017. No objections to this decision were filed.
{¶ 19} On June 15, 2017, the magistrate held a hearing that Father’s attorney
attended; Father and Mother were not present. In a decision filed after the hearing, the
magistrate noted that she had interviewed the children in camera, and they clearly
expressed that they did not want to visit either parent. The children also expressed fear
of Father based on the past history of domestic abuse and Father’s behavior during visits.
In addition, the children’s therapist, the GAL, and MCCS all recommended termination of
visits. After noting these facts and others, including that the children’s behavior had
improved after Father stopped visiting, and that Mother had been repeatedly arrested in
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2017 and had been jailed since June 6, 2017, the magistrate ordered that visits between
the parents and children be terminated. No objections to the decision were filed.
{¶ 20} Ultimately, the motion for permanent custody was heard on November 16,
2017. That day, the GAL filed a report recommending that MCCS be granted permanent
custody. Both Mother and Father attended the hearing, with their counsel. The GAL
was also present.
{¶ 21} At the beginning of the hearing, Father’s counsel asked for a postponement
because Father was unhappy with counsel’s representation. After hearing from Father,
the magistrate overruled the request. The magistrate then heard testimony from various
witnesses, including a licensed social worker employed by Ohio Mentor Foster Care, who
oversaw the foster home of A.C. and N.C. and provided community psychiatric supportive
treatment services, the foster mother of A.C. and N.C., two caseworkers, and Mother.
Father did not testify.
{¶ 22} After hearing the evidence, the magistrate issued a Magistrate’s Decision
and Judge’s Order on November 20, 2017, granting permanent custody to MCCS. The
next day, Father’s attorney filed a motion to withdraw as counsel, and the court appointed
new counsel for Father. The court also gave Father additional time to file objections to
the magistrate’s decision. Both Mother and Father filed objections and supplemental
objections to the magistrate’s decision. Subsequently, in July 2018, the court filed a
judgment overruling the objections and granting permanent custody to MCCS. Both
Mother and Father appealed from the trial court’s decision.
{¶ 23} Mother’s counsel filed an Anders brief, and Mother did not file a pro se brief
upon notice that she was permitted to do so. Father presented three assignments of
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error, and we will address those before we consider the Anders brief.
II. Denial of Continuance and Ineffective Assistance of Counsel
{¶ 24} Father has combined his discussion of the first two assignments of error,
and we will do the same. These assignments of error, in order, are as follow:
The Trial Court Abused Its Discretion by Denying [Father’s] Motion
for Continuance.
[Father] Was Denied the Effective Assistance of Counsel.
{¶ 25} Under these assignments of error, Father contends that the magistrate
abused her discretion by denying his motion for continuance and by failing to inquire what
counsel had done to prepare for the hearing. As was noted, Father’s attorney asked for
a postponement at the beginning of the hearing, stating that Father was not happy with
his representation. When the trial court inquired of Father about this, Father said that he
had called his attorney several times, with no return phone call, that he had told counsel
a month and a half ago that “this is not working and we need to do something,” and that
he (Father) had “had no representation, been misrepresented from day one.” Transcript
of Proceedings (“Tr.”), pp. 5-6.
{¶ 26} In response, counsel for MCCS noted that when the parties had been in
court the last time in September 2017, the parties had agreed to set the matter out until
November. As a result, Father had ample opportunity to notify the court of his concerns.
{¶ 27} The magistrate denied Father’s request, noting the following matters:
Father’s attorney had been appointed to represent Father in February 2016; the attorney
had appeared on Father’s behalf multiple times; he had filed an objection concerning
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Father’s case plan, which was successful and resulted in a case plan amendment; the
matter had been set for trial since September 14, 2017; the request for new counsel,
presented the morning of trial, was an unnecessary delay; and there was not such a
breakdown in communication that the attorney could not represent Father.
{¶ 28} Decisions granting or denying continuances are reviewed for abuse of
discretion. State v. Unger, 67 Ohio St. 2d 65, 67, 423 N.E.2d 1078 (1981). An abuse
of discretion means that the trial court’s attitude was “unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶ 29} The factors to be considered in evaluating continuances include: “the length
of the delay requested; whether other continuances have been requested and received;
the inconvenience to litigants, witnesses, opposing counsel and the court; whether the
requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived;
whether the defendant contributed to the circumstance which gives rise to the request for
a continuance; and other relevant factors, depending on the unique facts of each case.”
Unger at 67-68.
{¶ 30} After reviewing the record, we find no abuse of discretion. As the
magistrate noted, the same attorney had represented Father since the beginning of the
case, which was 19 months before the final custody hearing. During that time, the
attorney appeared at numerous hearings, during which Father had ample opportunity to
express dissatisfaction with him and to ask for new counsel. This never occurred.
Furthermore, as MCCS noted, the permanent custody hearing that was initially scheduled
for September 14, 2017, was continued to a date more than two months later, which gave
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Father ample opportunity to request different counsel.
{¶ 31} Furthermore, given that the attorney had prevailed only a few months earlier
on Father’s objection to MCCS’s case plan, the magistrate would have been entitled to
view with some skepticism the assertion by Father, made only the day of the final hearing,
that his attorney had provided no representation and that Father had been
misrepresented from “day one.”
{¶ 32} We also note the rule of the Montgomery County Juvenile Court that:
All requests for continuances must be made in writing and filed seven
days before the scheduled hearing date. However, the Court may consider
a Motion for Continuance that is filed less than seven days before the
scheduled hearing date upon demonstration of emergency or for other
unforeseen circumstances.
Loc.R. 5.19.3 of the Court of Common Pleas of Montgomery County, Juvenile Division.
{¶ 33} No such emergency or unforeseen circumstances existed. If, as Father
asserted, he had been dissatisfied from the beginning of the case, or even a month and
a half earlier, his excuse the day of the hearing was not based on unforeseen
circumstances. Accordingly, the magistrate did not abuse her discretion in denying the
request for a continuance.
{¶ 34} Father’s second argument is that his counsel rendered ineffective
assistance by ignoring a comment that Father made during the hearing, which would have
been useful for cross-examination, by failing to object to a document that contained
hearsay, and by failing to call Father or other witnesses to testify.
{¶ 35} “The familiar two-part test for establishing ineffective assistance in criminal
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cases is equally applicable in permanent custody proceedings.” In re T.P., 2d Dist.
Montgomery No. 20604, 2004-Ohio-5835, ¶ 45, citing Jones v. Lucas Cty. Children Servs.
Bd., 46 Ohio App.3d 85, 86, 546 N.E.2d 471 (6th Dist.1988). As a result, Father is
required to establish that his counsel “provided deficient representation” and that he was
prejudiced by the deficient performance. Id., citing State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). “In order to establish prejudice, [Father] must show a reasonable
probability that but for counsel’s deficiencies the result of the proceeding would have been
different.” Id.{¶ 36} To assess this issue, we have reviewed the entire record, including the trial
transcript. At the cited pages of the transcript, Father made comments to his attorney
during cross-examination of the social worker who oversaw the foster home where the
children lived during the case. The recorder picked up Father’s voice, and the magistrate
instructed Father to speak to his attorney quietly. Tr. at pp. 26-27. We have reviewed
the entire testimony of this witness and can find no relevance of Father’s remarks.
Father’s remarks are also incomplete and unclear and did not even relate to the questions
being asked.
{¶ 37} Father’s second point concerns counsel’s failure to object to admission of a
letter that this social worker wrote to MCCS in June 2017. The social worker wrote the
letter because the children had been very vocal about not wanting to see their father and
dreaded visitation. Tr. at p. 15. A number of things were mentioned, including the fact
that Father was angry with the children during visits because they had not called him; that
he was mean and cursed a lot; that he was on his cell phone most of the time; that he
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showed the children inappropriate pictures on his phone; that he had talked negatively
about the foster parents; that he had shown A.C. a picture of a naked woman; and that
he would text the foster mother and call her inappropriate names. Id. at pp. 16-17.
{¶ 38} However, the court was previously well aware of MCCS’s concerns about
Father’s ability to effectively parent the children. The initial complaint, which was filed in
early February 2016, indicated that Father was on active parole for crimes against Mother,
had been convicted of child endangerment, and had not fully addressed the concerns
these convictions created. See J.C. Case 2016-0818, Doc. #114, p. 2; J.C. Case No.
2016-0819, Doc. #103, p. 2.1 These crimes included 2012 convictions for a third degree
felony (domestic violence against Mother, with two prior convictions for domestic
violence), and abduction, also a third-degree felony. See Ex. 2; Tr. 88-89.
{¶ 39} The case plan noted Father’s recent criminal history and required Father to
complete a parenting education program and “demonstrate adequate parenting skills
including appropriate discipline when visiting with his children.” Doc. #101, Amended
Case Plan filed on May 24, 2016, p. 2. Father was allowed to visit the children a
minimum of once a week, for a minimum of two hours, and initially, Father made progress.
However, in an affidavit filed with the October 7, 2016 motion for extension of temporary
custody, the case worker noted that Father had refused referrals for parenting classes.
Doc. #88, Joyce Affidavit, p. 1.
{¶ 40} A GAL report filed in December 2016, which recommended continuation of
temporary custody to MCCS, reported that Father had shown A.C. photos of Mother both
1 Because two children are involved, the record contains two juvenile court cases with
the same pleadings but with different docket numbers. For convenience, we will refer
from now on only to the docket numbers in Case. No. 2016-0818.
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before and after drug abuse. The GAL also noted that, due to communication issues
with Father, MCCS had not been able to document Father’s compliance with his case
plan. In addition, Father had said he no longer wished to work with MCCS. Moreover,
the children wished to continue visiting with Father, on the condition that visits could be
more positive, with less conflict and tension. See Doc. #68.
{¶ 41} In mid-January 2017, Father voluntarily stopped visiting the children. A
semi-annual review (SAR) filed on January 27, 2017, indicated that Father had not
demonstrated learned parenting skills, not been consistent in visits, and “discusse[d]
inappropriate topics with the boys.” Doc. #63, p. 2. This document also noted that there
were concerns over Father’s “unstable behavior and emotional swings,” that Father had
not reduced the safety threat to the children over the past year, and that MCCS intended
to file for permanent custody. Id. at pp. 2-3.
{¶ 42} In late March 2017, MCCS filed a motion and affidavit for permanent
custody of the children. In the affidavit, an MCCS caseworker stated that due to Father’s
behaviors, MCCS had decided to supervise Father’s visits. The supervised visits were
to start in February, but Father had not attended. Doc. # 60, Brown Affidavit, p. 1. After
a hearing held on April 18, 2017 (at which Father was present), the court filed a decision
suspending Father’s visitation pending further order of the court. The court observed
that the children had expressed fear to the GAL about Father and had consistently said
they did not want contact. The GAL and MCCS also recommended that visitation not be
restarted. See Doc. #55, p. 2.
{¶ 43} A further hearing was scheduled on this issue, and the magistrate
interviewed the children in camera on May 31, 2017. In a decision filed on June 15, 2017
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(the same day as the hearing), the magistrate stated that the children “clearly expressed
that they do not want to visit with either parent. The boys expressed fear of the father
based on the past history of domestic violence and based upon father’s behavior during
visits.” Doc. #51 (Magistrate’s Interim Order), p. 2. The magistrate further commented
that “father voluntarily stopped visiting in January 2017 because he was upset with the
Agency and he has not visited since that date.” Id.
{¶ 44} Based on these facts, the court terminated Father’s visitation, and
scheduled the permanent custody hearing for September 2017. After a continuance, the
hearing was held in mid-November 2017.
{¶ 45} At the permanent custody hearing, the foster mother described the
children’s reluctance to go see their father, beginning around June 2016. She also said
that their behavior improved after the visits stopped. The original caseworker, who was
involved from October 2015 to February 2017, indicated that while there were moments
of cooperation with Father, he often hung up on her during phone conversations, cursed
her out, or made threats about MCCS. The phone calls started out calmly, but Father
would then “become angry and agitated and start screaming and yelling and cursing” at
her. Tr. at p. 126. The older child (A.C.) also expressed concern and was very
uncomfortable and upset about being shown half-naked or entirely naked women on
Father’s phone.
{¶ 46} In addition, this case worker witnessed Father berating the children when
she checked on visits. She heard him telling them things like “If you couldn’t tell me what
you wanted for dinner next week, then I’ll just bring you nothing. If you don’t call me,
then I’m not going to visit you.” Id. at p. 102.
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{¶ 47} The next caseworker was assigned to the case in March 2017. She and
her supervisor met with Father in April 2017 to discuss visitation and his case plan
objectives. Father said he was not going to take any more parenting classes that they
had assigned him because he had already taken two in prison. When this case worker
continued to discuss Father’s negativity with the kids, he said that he had shown the
children pictures of cheerleaders, but had also shown them pictures of football players.
{¶ 48} Father refused to address the concern that he was not demonstrating
parenting skills and refused to even engage in a conversation about why his children
might be afraid of him. Father was adamant that he would parent as he saw fit.
{¶ 49} Under the circumstances, even if we assumed that counsel should have
objected to the admission of the letter, it was not prejudicial, due to the significant amount
of other evidence that Father failed to appropriately parent the children.
{¶ 50} Father’s final contention is that trial counsel was ineffective because he
failed to present testimony from witnesses or from Father. In the context of ineffective
assistance of counsel, we have said that “ ‘[h]indsight is not permitted to distort the
assessment of what was reasonable in light of counsel’s perspective at the time, and a
debatable decision concerning trial strategy cannot form the basis of a finding of
ineffective assistance of counsel.’ ” In re W.T., 2d Dist. Montgomery No. 23427, 2009-
Ohio-5409, ¶ 50, quoting State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-
493, ¶ 31. Accord In re J.D., 2d Dist. Montgomery No. 26588, 2015-Ohio-4114, ¶ 80.
{¶ 51} The record does not indicate what witnesses Father might have called or
what their testimony might have been, and we cannot speculate. Furthermore, while
there is no discussion on the record concerning whether Father would testify, counsel
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may well have decided, in view of Father’s angry outbursts and behavior, and interruption
of the court during trial, that his testimony would be harmful. See Tr. at p. 7 (interrupting
the court); p. 27 (arguing with the court); p. 127 (calling the caseworker a liar); and p. 161
(caseworker expressed concerns about Father’s anger management in view of comments
she heard Father make outside the courtroom just before the hearing).
{¶ 52} Based on the preceding discussion, Father’s first two assignments of error
are overruled.
III. Best Interests of the Children
{¶ 53} Father’s Third Assignment of Error states that:
The Trial Court Erred in Granting Permanent Custody.
{¶ 54} Under this assignment of error, Father first contends that he did not
abandon his children. He next argues that the record fails to show that he could not be
reunited with his children within a reasonable time. Finally, Father asserts a lack of clear
and convincing evidence that an award of permanent custody would be in the children’s
best interests. According to Father, he substantially complied with his case plan, and
testimony about the children’s desire not to see him was not fully developed and relied
on witnesses who provided only second-hand information.
{¶ 55} While parents have recognized and fundamental liberty interests in the care,
custody and control of their children, their rights are not absolute. In re D.A., 113 Ohio
St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 8 and 11. The “government has broad
authority to intervene to protect children from abuse and neglect.” In re C.F., 113 Ohio
St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28, citing R.C. 2151.01.
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{¶ 56} In Ohio, R.C. 2151.414 governs the termination of parental rights. In the
cases before us, the magistrate found grounds for termination under R.C.
2151.414(B)(1)(b) and (d), while the trial court focused on R.C. 2151.414(B)(1)(d), but
also found pursuant to R.C. 2151.414(E)(10) that the children had been abandoned.
{¶ 57} As pertinent here, R.C. 2151.414(B)(1) provides that “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 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: * * * (b) The child
is abandoned * * * (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 * * *.”
{¶ 58} For purposes of this section, “a child shall be considered to have entered
the temporary custody of an agency on the earlier of the date the child is adjudicated
pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the
removal of the child from home.” R.C. 2151.414(B)(1)(e). No dispute has been
asserted concerning whether R.C. 2151.414(B)(1)(d) applies. The children were
removed from Mother’s home on October 5, 2015, and MCCS was given temporary
interim custody on February 12, 2016. The children were adjudicated dependent on May
11, 2016 (more than sixty days after they were removed from the home), and the motion
for permanent custody was filed on March 27, 2017. Using the 60-day measure based
on the children’s removal from the home, the children were in MCCS’s custody (as defined
by the statute) for more than 12 months of a consecutive 22-month period. Under this
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prong of the statute, the agency does not have to “prove that a child cannot be returned
to the parents within a reasonable time or should not be returned to the parents, so long
as the child has been in the temporary custody of an agency for at least 12 months.” In
re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 21. Nonetheless, the
trial court did make such a finding. See Doc. #5, p. 16 (indicating the children could not
be returned to the parents within a reasonable time due to their failure to remedy the
problems that caused removal).
{¶ 59} Where R.C. 2151.414(B)(1)(d) applies, the agency “is only required to prove
by clear and convincing evidence, that it is in the best interests of the child to grant
permanent custody to the” agency. In re C.W., 2d Dist. Montgomery No. 20140, 2004-
Ohio-2040, ¶ 19; In re R.P., 2018-Ohio-517, 105 N.E.3d 737, ¶ 52 (2d Dist.). “Clear and
convincing evidence is that measure or degree of proof 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, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶ 60} A “court’s decision to terminate parental rights will not be overturned if the
record contains competent, credible evidence by which the court could have formed a
firm belief or conviction that the essential statutory elements for a termination of parental
rights have been established.” In re E.D., 2d Dist. Montgomery No. 26261, 2014-Ohio-
4600, ¶ 7, citing In re Forrest S., 102 Ohio App.3d 338, 344-345, 657 N.E.2d 307 (6th
Dist.1995). “We review the trial court’s judgment for an abuse of discretion.” Id., citing
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 48 (which applied an
abuse of discretion standard to the trial court’s findings under R.C. 2151.414). After
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reviewing the record, we conclude that the trial court did not abuse its discretion and that
competent, credible evidence supported the court’s decision.
{¶ 61} Regarding a child’s best interest, “R.C. 2151.414(D) directs the trial court to
consider all relevant factors when determining the best interest of the child, including but
not limited to: (1) the interaction and interrelationship of the child with the child’s parents,
relatives, foster parents and any other person who may significantly affect the child; (2)
the wishes of the child; (3) 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; (4) 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; and (5) whether any of the factors in R.C. 2151.414(E)(7) through (11) are
applicable.” In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 15. “No one
element is given greater weight or heightened significance.” C.F. at ¶ 57, citing In re
Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.
{¶ 62} The trial court considered all of these items in detail and concluded that
awarding permanent custody to MCCS was in the children’s best interests. We agree.
A. Interaction and Interrelationship of Children
with Parents and Foster Parents
{¶ 63} According to the evidence, A.C. and N.C. resided in the same foster home
since they were placed there in February 2016. They were very bonded to the foster
parents and had done well there, both behaviorally and academically. Furthermore, as
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noted above, the children’s fear of Father and desire not to see him was well documented.
Both the foster mother and a case worker testified as to what they observed in connection
with the children’s resistance to visitation, and the case worker also commented about
the poor interaction between the children and their father. The children also stated many
times to their foster mother, caseworkers, and the GAL that they were afraid of Father
and did not want to visit with him. Visits with Father were stopped because of Father’s
behavior. As a result, R.C. 2151.414(D)(1)(a) weighed in favor of MCCS.
B. The Wishes of the Children
{¶ 64} As to the children’s wishes, they told caseworkers, the GAL, and the court
that they wanted to be adopted by the foster parents. See Doc. #32, p. 6; see also Doc.
#37, p. 3 (Report and Recommendations of GAL for September 17, 2017, indicating that
children had said they were afraid of Father). The testimony at trial also revealed that
the children wanted to be adopted by their foster parents and that they did not want to
visit or live with Father. This factor weighed in favor of granting custody to MCCS. See
R.C. 2151.414(D)(1)(b).
C. Custodial History
{¶ 65} According to the evidence, the children were temporarily placed with non-
relatives and a step-brother, but had lived at the same foster home for the entire case
(February 2016 through the date of the hearing in November 2017). Again, the custodial
history supported granting custody to MCCS. See R.C. 2151.414(D)(1)(c).
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D. The Need for Legally Secure Placement
{¶ 66} The trial court discussed the history of the case at length, and with specific
reference to Father, noted that Father was on probation for domestic violence and
abduction involving Mother. The magistrate, who interviewed the children in camera,
indicated that the children had expressed fear of their father based on the past history of
domestic violence and based on Father’s behavior during visits. In addition, the
evidence revealed that the children had witnessed domestic violence and were afraid of
Father. During the case, Father minimized anger issues and refused to complete any
referrals, claiming that he had addressed the issues during prison. However, the
evidence was otherwise.
{¶ 67} The trial court noted that Father did not complete his case plan, did not
demonstrate his ability to adequately parent the children, did not address MCCS’s
concerns regarding substance abuse, and voluntarily ceased visits with the children in
January 2017. These findings are well-supported in the record and establish that there
was no reasonable possibility that Father could provide a legally safe and secure
environment for A.C. and N.C. Furthermore, there were no willing or able family
placements for the children, even though MCCS made attempts to find them. The foster
parents did indicate that they were willing to adopt the children if MCCS were granted
permanent custody. The factors in R.C. 2151.414(D)(1)(d), therefore weighed in favor
of granting custody to MCCS.
E. Whether any Factors in R.C. 2151.414(E)(7) to (11) Apply
{¶ 68} As noted, the trial court specifically addressed R.C. 2151.414(E)(10), which
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requires the 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” if the court finds by
clear and convincing evidence that “[t]he parent has abandoned the child.”
{¶ 69} R.C. 2151.011(C) provides that:
For the purposes of this chapter, a child shall be presumed
abandoned when the parents of the child have failed to visit or maintain
contact with the child for more than ninety days, regardless of whether the
parents resume contact with the child after that period of ninety days.
This is a rebuttable presumption. In re Custody of C.E., 2d Dist. Champaign No. 2005-
CA-11, 2005-Ohio-5913, ¶ 17. However, Father did nothing to rebut the presumption.
As the trial court observed, Father’s visitation at first was pretty consistent, but then he
was placed on stipulations a number of times due to no-shows. In that situation, Father
was required to arrive an hour early. In mid-January 2017, however, Father voluntarily
stopped visiting. At that point, he was on a stipulation to arrive for visitation at 4:00
p.m., rather than 5:00 p.m. However, Father refused. He said, “I’m not coming at four
o’clock. If my kids don’t want to see me, I’m not coming to see them. I’m not coming
at four. I’m not leaving work early to do that. So I guess I just won’t visit.” Tr. at p.
107.
{¶ 70} From that point on, Father did not visit the children. On April 18, 2017
(more than 90 days later), the court suspended Father’s visitation, but set the matter for
a further hearing in June 2017. The purpose of the meeting was to discuss Father’s
visitation. However, Father did not appear at that hearing, and the magistrate then
terminated Father’s visitation. This was based on the recommendation of the GAL, a
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therapist, and MCCS, as well as the magistrate’s interview with the children, who said
that they were afraid of Father based on the past history of domestic abuse and his
behavior during visits. The children also said they did not want to visit. Accordingly,
competent, credible evidence existed to provide the trial court with the firm conviction that
Father had abandoned the children.
{¶ 71} Based on the preceding discussion, the trial court’s decision to award
custody to MCCS was supported by the evidence and law. Father’s Third Assignment
of Error, therefore, is overruled.
IV. Anders Brief
{¶ 72} As noted, Mother’s counsel filed a brief under Anders, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493, alleging that she had found this appeal to be wholly frivolous.
As a possible assignment of error, Mother’s counsel suggested the following:
The Finding That Permanent Custody to MCCS Is in the Best Interests of
the Children Is Against the Manifest Weight of the Evidence.
{¶ 73} The standard we apply in Anders cases is as follows:
We are charged by Anders to determine whether any issues
involving potentially reversible error that are raised by appellate counsel or
by a defendant in his pro se brief are “wholly frivolous.” * * * If we find that
any issue presented or which an independent analysis reveals is not wholly
frivolous, we must appoint different appellate counsel to represent the
defendant. State v. Pullen (Dec. 6, 2002), Montgomery App. No. 19232.
Anders equates a frivolous appeal with one that presents issues
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lacking in arguable merit. An issue does not lack arguable merit merely
because the prosecution can be expected to present a strong argument in
reply, or because it is uncertain whether a defendant will ultimately prevail
on that issue on appeal. An issue lacks arguable merit if, on the facts and
law involved, no responsible contention can be made that it offers a basis
for reversal. Pullen, supra.
State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7-8.
{¶ 74} Regarding the evidence about termination of Mother’s rights, we note that
Mother had not seen the children since they came into MCCS custody in early February
2016. When the children were removed in October 2015, MCCS developed case plan
objectives, which remained the same throughout the case; MCCS discussed these
objectives with Mother at that time and on other occasions when MCCS was able to
contact Mother.
{¶ 75} The objectives for Mother were: to have a substance abuse and mental
health assessment and follow through with recommendations from the assessment; to
obtain and maintain stable, independent housing sufficient to meet the needs of herself
and her children; to obtain and maintain legal income sufficient to meet the needs of
herself and her children; to visit with the children on a frequent basis; to address past
concerns regarding domestic abuse relationships she had had; and to sign releases for
information for providers. The main concern was substance abuse.
{¶ 76} During most of the case, MCCS was unable to locate Mother. When
Mother could be located, she was in jail for drug-related charges, and MCCS was able to
speak with her during that time. MCCS gave Mother referrals, but Mother did not follow
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up. MCCS also provided Mother with information about visitation a number of times, but
Mother failed to follow up with this, also. During the case, Mother did not have stable
housing or a legal income. Mother had also had drug convictions during the case,
including a conviction of a felony for aggravated possession of drugs.
{¶ 77} In October 2017 (shortly before the permanent custody hearing), Mother
appeared at MCCS without an appointment and handed the caseworker a certificate of
completion from a parenting class. However, when the caseworker asked Mother what
topics had been covered, Mother refused to divulge them. Mother asked about visitation
at this meeting, but visitation had previously been terminated on June 15, 2017, due to
Mother’s failure to visit, her repeated arrests in 2017, and the fact that she had been jailed
since June 6, 2017. See Doc. #51 (Magistrate’s Interim Order) at p. 2.
{¶ 78} In its judgment, the trial court concluded that Mother had abandoned the
children, that she had not made substantial progress on case objectives, that the children
did not want to see Mother, and that Mother was not in a position to adequately care for
the children and had no bond with them. As a result (and in view of other facts we have
already discussed), the court concluded that awarding permanent custody of the children
to MCCS was in the children’s best interests. We can find nothing in the record to
indicate that argument about the manifest weight of evidence is anything other than wholly
frivolous.
{¶ 79} We have independently reviewed the record as required by Anders, and we
cannot find any potential assignments of error having arguable merit.
V. Further Use of Anders Briefs
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{¶ 80} The Second District Court of Appeals has permitted Anders briefs to be filed
in parental termination cases since 1992. See In re Gober, 2d Dist. Montgomery No.
C.A. 13022, 1992 WL 274680 (Oct. 5, 1992). The Supreme Court of Ohio has never
required the use of Anders briefs in such cases, and we did not discuss our reasons for
doing so in Gober. Instead, we simply commented that briefs had been filed by both
parents’ attorneys pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Id.
at *1. Thereafter, we continued to accept Anders briefs in parental termination cases
without discussing why we chose to do so.
{¶ 81} Even if we had discussed the rule in 1992, circumstances have changed
since that time. In March 1999, Ohio’s Adoption and Safe Families Act was enacted.
This legislation caused the adoption of a new rule (App.R. 11.2), which gave priority to
appeals of orders denying or granting adoptions of minors and terminations of parental
rights. The emphasis on expedition in these cases runs counter to the length of time
Anders briefs take to process, especially when arguable issues are found and new
counsel must be appointed. Since the new rule was enacted in 2000, we have not
reconsidered the use of Anders briefs in light of the focus on expedition. Furthermore,
the thinking on the use of Anders briefs has evolved since our original decision.
{¶ 82} We have reviewed the case law in Ohio and find that appellate districts use
different approaches. In some districts (the Third, Tenth, and Eleventh Appellate
Districts), we found no case law mentioning Anders in the context of parental termination
or permanent custody. We, therefore, assume these districts do not employ Anders
briefs in such cases. Other districts specifically do not allow Anders briefs or would likely
not allow them based on recent decisions these courts have made in the criminal context.
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Other districts, like ours, have allowed Anders briefs. See, e.g., In re K.J., 5th Dist.
Muskingum No. CT2014-004, 2014-Ohio-2132, ¶ 14; In re K.D., 9th Dist. Wayne No.
06CA0027, 2006-Ohio-4730, ¶ 16; In re K.B., 7th Dist. Belmont No. 09 BE 24, 2010-Ohio-
1015, ¶ 12.2
{¶ 83} An example of the way in which thinking has evolved is evident in decisions
of the First District Court of Appeals. In a 2009 decision, the First District Court of
Appeals stated that:
* * * Although several Ohio appellate districts, including this court,
have allowed counsel appointed in permanent-custody cases to file Anders
briefs, we have found no analysis of the appropriateness of such a
procedure in Ohio. We are persuaded, however, by the reasoning of the
Court of Civil Appeals of Alabama, which considered the applicability of
Anders to a civil custody case and held that Anders applies in those cases
in which an indigent client has court-appointed counsel. The court
reasoned that there was “no practical difference between making counsel
continue with [an] appeal, thus requiring counsel to raise frivolous issues
that the appellate court has to review, and allowing counsel to file an Anders
2 The position taken by the Seventh District in K.B. may be invalid due to the court’s
recent decision in State v. Cruz-Ramos, 7th Dist. Mahoning No. 17 MA 0077, 2018-Ohio-
1583. In Cruz-Ramos, the court held that in criminal cases, appellate counsel may not
file a motion to withdraw on grounds that the appeal is frivolous, and counsel must file a
merit brief if the client does not wish to dismiss the appeal. Id. at ¶ 16. Furthermore,
the Sixth District case on which the Ninth District relied in K.D. was later overturned by
the Sixth District. See K.D., 9th Dist. Wayne No. 06CA0027, 2006-Ohio-4730, at ¶ 16,
citing Morris v. Lucas Cty. Children Servs. Bd., 49 Ohio App.3d 86, 86-87, 550 N.E.2d
980 (6th Dist.1989). The Sixth District later reversed its position in Morris. See In re
B.H., 6th Dist. Lucas No. L-17-1126, 2018-Ohio-1238, ¶ 3.
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brief raising possible issues, but notifying the court that counsel believes an
appeal would be frivolous.” And according to the Alabama court, “if the
procedure outlined in Anders passes muster in criminal cases, it certainly
should be adequate in [a civil custody] context.” We agree with these
reasons and conclude that court-appointed counsel may file a brief pursuant
to Anders when, after a thorough review of the record, he is unable to
identify arguable assignments of error.
(Footnotes omitted.) In re D.C., 1st Dist. Hamilton No. C-090466, 2009-Ohio-5575, ¶ 3,
quoting J.K. v. Lee Cty. Dept. of Human Resources, 668 So.2d 813, 815-816
(Ala.App.1995).
{¶ 84} However, in 2013, the First District Court of Appeals changed its position
and held 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.” In re J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896, ¶ 1. In
discussing its reasoning, the court made a number of observations, including these:
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. 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
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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.
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.
J.M. at ¶ 11-12.
{¶ 85} While our district does not have a similar local rule on criminal no-error
briefs, the First District mentioned other factors that have also recently been discussed in
State v. Wilson, 2017-Ohio-5772, 83 N.E.3d 942, (4th District). In Wilson, the Fourth
District Court of Appeals noted that it would no longer accept Anders briefs in criminal
cases. The factors that were discussed include: prejudice to clients by flagging cases
as being without merit; creation of conflicts for appellate counsel, who must choose
between duties to their clients and to the court; the heavy burden placed on scant judicial
resources; reversal of the role of counsel and courts where courts are put in the position
of acting as lawyers; the fact that Anders creates a cumbersome and inefficient process;
confusion about the scope of review; and the lack of uniform national or state guidelines.
Wilson at ¶ 10-22; J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896, at ¶ 11-14.
{¶ 86} In 1989, the Sixth District held that “[a]lthough apparently a case of first
impression in Ohio, other states have recognized that the procedures enunciated in
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Anders, supra, are applicable to appeals involving the termination of parental rights.”
Morris, 49 Ohio App.3d at 87, 550 N.E.2d 980. However, we mentioned in fn. 2, the
Sixth District recently changed its mind and said that it was expanding its “prohibition of
Anders briefs to cases involving the termination of parental rights.” B.H., 6th Dist. Lucas
No. L-17-1126, 2018-Ohio-1238, at ¶ 3. The court commented that while it had
“accepted Anders briefs in past permanent-custody cases, we find that this change is
both consistent with our local rule, which provides for the filing of ‘No-Error Briefs’ only in
criminal appeals, * * *, and is in the best interests of justice.” Id. A few months later,
the court also decided to prohibit Anders briefs in criminal appeals. See State v. Wenner,
6th Dist. Sandusky No. S-18-004, 2018-Ohio-2590, ¶ 29 (following the approach taken
by the Fourth and Seventh District Courts of Appeals).
{¶ 87} Both R.C. 2151.352 and Juv.R. 4(A) provide a right to counsel for indigent
parties involved in proceedings such as parental termination cases. However, the fact
that counsel is required does not equate to a right to use Anders procedures. Parental
termination cases are not criminal cases, and the same constitutional rights that
motivated the Anders decision are not present. As noted by the Supreme Court,
Anders was based on the following principle:
In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963),
the Sixth Amendment’s requirement that ‘the accused shall enjoy the right
* * * to have the Assistance of Counsel for his defence’ was made obligatory
on the States by the Fourteenth Amendment, the Court holding that ‘in our
adversary system of criminal justice, any person haled into court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is
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provided for him.’ At 344, 83 S.Ct. at 796. We continue to adhere to these
principles.
(Emphasis added.) Anders, 386 U.S. at 742, 87 S.Ct. 1396, 18 L.Ed.2d 493.
{¶ 88} Furthermore, after Anders was decided, the Supreme Court has stressed
that the procedure in Anders, (even in the criminal context) “is an alternative, not a
constitutional mandate.” Wilson, 4th Dist. No. 16CA12, 2017-Ohio-5772, 83 N.E.3d 942,
at ¶ 9, citing Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
And finally, as noted, allowing Anders briefs can cause undue delay, contrary to the
requirement to expedite cases involving termination of parental rights.
{¶ 89} Accordingly, from this time forward, our district will no longer allow Anders
briefs to be filed in cases involving termination of parental rights.
VI. Conclusion
{¶ 90} All of Father’s assignments of error having been overruled, and our
independent review having found no potential assignments of error with arguable merit
with respect to Mother, the judgment of the trial court is affirmed.
.............
FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Sarah E. Hutnik
Lucas W. Wilder
Sara M. Barry
Edward Yim
Hon. Helen Wallace
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