In re K.M. , 2020 Ohio 344 ( 2020 )

[Cite as In re K.M., 2020-Ohio-344.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
K. M. Hon. Earle E. Wise, Jr., J.
ADJUDGED NEGLECTED/ Case No. 2019 AP 08 0035
DEPENDENT CHILD
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
18JN00226
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 3, 2020
APPEARANCES:
For Appellant For Appellee Tuscarawas JFS
E. MARIE SEIBER NO APPEARANCE
6525 Walkers Lane SE
Uhrichsville, Ohio 44683
Tuscarawas County, Case No. 2019 AP 08 0035 2
Wise, John, J.
{¶1} Appellant Krista N. appeals the decision of the Tuscarawas County Court
of Common Pleas, Juvenile Division, granting permanent custody of her daughter, K.M.,
to Appellee Tuscarawas County JFS, which has not filed a response brief herein. The
relevant procedural facts leading to this appeal are as follows.1
{¶2} On July 11, 2018, Appellee filed a “complaint for neglect, dependency, and
kinship custody with protective supervision to TCJFS” regarding this child and six siblings,
the children of appellant.2 Initial concerns included unstable living conditions, appellant’s
drug use (marijuana, methamphetamine, and “molly”), and appellant’s mental health
issues, although she had made arrangements herself to obtain caregivers for some of the
children.
{¶3} On August 10, 2018, all seven children were found to be neglected and
dependent, and they were ordered to remain in the temporary custody of various
caregivers, with protective supervision to TCJFS. A case plan with a reunification
objective was prepared by TCJFS.
{¶4} However, on May 8, 2019, TCJFS filed two motions to modify dispositions.
In the first motion, the agency sought permanent custody as to three of the siblings, and
in the second, legal custody to kinship caregivers as to four of the siblings.
{¶5} An evidentiary hearing was conducted before the trial court on July 11,
2019.
1 Appellant has failed to include or attach with her brief a copy of the judgment entry
under appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original
document in the record.
2 The father of the seven children is not participating in the present appeal and had little
or no involvement in the case plan below.
Tuscarawas County, Case No. 2019 AP 08 0035 3
{¶6} On August 2, 2019, the trial court issued a decision granting, inter alia,
permanent custody of K.M. to TCJFS.
{¶7} Appellant-mother filed a notice of appeal on August 30, 2019. Appellate
counsel for mother thereafter filed a conditional motion to withdraw and a brief pursuant
to Anders v. California, infra, asserting that the within appeal “has no merit.” Counsel for
appellant also therein raised one potential assigned error asking this Court to determine
whether the trial court erred in modifying disposition of the child. She has therein asserted
as follows:
{¶8} “I. THE TRIAL COURT’S DECISION WAS CONTRARY TO LAW.”
{¶9} Appellant was given an opportunity to file a pro se brief raising additional
assignments of error, but she has not done so.3
Anders Criteria and Applicability
{¶10} In Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493,
the United States Supreme Court established five criteria which must be met before a
motion to withdraw may be granted: (1) A showing that appellant's counsel thoroughly
reviewed the transcript and record in the case before determining the appeal to be
frivolous; (2) a showing that a motion to withdraw has been filed by appellant's counsel;
(3) the existence of a brief filed by appellant's counsel raising any potential assignments
of error; (4) a showing that appellant's counsel provided to the appellant a copy of said
3 This Court issued a judgment entry on October 16, 2019, notifying appellant that she
could file a pro se brief in this matter. A review of the clerk’s docket does not persuade
us that service of said order on appellant was successful. However, appellant’s counsel’s
brief before us reveals that notice was therein provided to appellant at her home address
of her right to respond to this Court in writing. We therefore find proper notice exists to
proceed with our Anders review.
Tuscarawas County, Case No. 2019 AP 08 0035 4
brief; and (5) a showing that appellant's counsel provided appellant adequate opportunity
to file a pro se brief raising any additional assignments of error appellant believes the
appellate court should address. See State v. Jennings, 5th Dist. Richland No. 98CA24,
1999 WL 547919.
{¶11} Pursuant to Anders, if, after a conscientious examination of the record, a
defendant's counsel concludes the case is wholly frivolous, then he should so advise the
court and request permission to withdraw. Id. at 744. Once the defendant's counsel
satisfies the aforesaid requirements, the appellate court must fully examine the
proceedings below to determine if any arguably meritorious issues exist. If the appellate
court also determines that the appeal is wholly frivolous, it may grant counsel's request
to withdraw and dismiss the appeal without violating constitutional requirements, or may
proceed to a decision on the merits if state law so requires. Id.
{¶12} We find appellate counsel in this matter has adequately followed the
procedures required by Anders v. California, supra.{¶13} However, we must note at this juncture that the present appeal, along with
the additional six appeals concerning the child’s siblings, do not stem from criminal cases,
the usual arena for initiating Anders appeals.
{¶14} This Court has indeed held that the procedures set out in Anders are
applicable to appeals involving the termination of parental rights. In re B.F., 5th Dist.
Licking No. 2009–CA–007, 2009–Ohio–2978, ¶¶ 2–3, citing Morris v. Lucas County
Children's Services Board, 49 Ohio App.3d 86, 550 N.E.2d 980 (6th Dist.1989). See, also,
In re L.D., 5th Dist. Stark No. 2015CA00222, 2016-Ohio-3163, ¶ 15.
Tuscarawas County, Case No. 2019 AP 08 0035 5
{¶15} But the Sixth District Court of Appeals, upon whom we relied in B.F., supra,
has now gone the other way on this issue and “expand[ed] [its] prohibition of Anders briefs
to cases involving the termination of parental rights.” See In re B.H., 6th Dist. Lucas No.
L-17-1126, 2018-Ohio-1238, ¶ 3. In addition, we note the Second District Court of Appeals
has followed suit, concluding inter alia that “allowing Anders briefs can cause undue
delay, contrary to the requirement to expedite cases involving termination of parental
rights.” In re N.C., 2nd Dist. Montgomery No. 28105, 2019-Ohio-567, ¶ 88.
{¶16} Having reached this point in the proceedings in the seven cases of these
siblings, some of which furthermore resulted only in legal custody, not permanent
custody, we are inclined to herein complete our task under Anders in the interest of judicial
economy.
{¶17} However, from this point forward, this panel will no longer accept Anders
briefs for filing in cases involving permanent custody or dispositions of legal custody. See
In re N.C. at ¶ 89. Furthermore, this Court will review the possibility of a change to its
local appellate rules on this subject in the near future.
Analysis
I.
{¶18} Pursuant to R.C. 2151.414(B)(1)(a), a court may grant permanent custody
of a child to a movant if the court determines 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 and
that “*** [t]he child is not abandoned or orphaned, has not 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, or has not been in the
Tuscarawas County, Case No. 2019 AP 08 0035 6
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 if,
as described in division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another state, and the
child cannot be placed with either of the child's parents within a reasonable time or should
not be placed with the child's parents.”
{¶19} In addition, pursuant to R.C. 2151.353(A)(3), if a child is adjudicated as
abused, neglected, or dependent, a court upon disposition may “[a]ward legal custody of
the child to either parent or to any other person who, prior to the dispositional hearing,
files a motion requesting legal custody of the child or is identified as a proposed legal
custodian in a complaint or motion filed prior to the dispositional hearing by any party to
the proceedings. ***.”
{¶20} R.C. 2151.353(F)(1) states: “The court shall retain jurisdiction over any child
for whom the court issues an order of disposition pursuant to division (A) of this section
or pursuant to section 2151.414 or 2151.415 of the Revised Code until the child attains
the age of eighteen years if the child does not have a developmental disability or physical
impairment, the child attains the age of twenty-one years if the child has a developmental
disability or physical impairment, or the child is adopted and a final decree of adoption is
issued, except that the court may retain jurisdiction over the child and continue any order
of disposition under division (A) of this section or under section 2151.414 or 2151.415 of
the Revised Code for a specified period of time to enable the child to graduate from high
school or vocational school. ***.”
Tuscarawas County, Case No. 2019 AP 08 0035 7
{¶21} Turning to the merits of appellant's counsel's aforesaid potential
Assignment of Error, the trial court concluded that appellant has a total of ten children
and “has not raised any of them.” Judgment Entry, August 2, 2019, at 1. She continues
to test positive for drugs, and she has failed to complete her case plan requirements. Id.
at 2. The court also noted inter alia that her testimony at the July 11, 2019 hearing was
at times “rambling” and profanity-laced. Id. The record before us includes the transcript
of the July 11, 2019 hearing, during which the testimony was taken from Goodwill
parenting supervisor Jennifer Fire, TCJFS case manager Jaime Grunder, and appellant
herself. Tr. at 8-107.
{¶22} We find no merit in the proposed Assignment of Error, and it is hereby
overruled. Furthermore, after independently reviewing the record, we agree with appellate
counsel's conclusion that no arguably meritorious claims exist upon which to base an
appeal. We therefore find the appeal to be wholly frivolous under Anders, grant counsel's
request to withdraw, and affirm the judgment of the trial court as to this child.
{¶23} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Tuscarawas County, Ohio, is hereby affirmed.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.
.
JWW/d 0116