In re A.F.H. , 2023 Ohio 1478 ( 2023 )

[Cite as In re A.F.H., 2023-Ohio-1478.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE A.F.H. :
: No. 111816
A Minor Child :
:
[Appeal by Mother, M.D.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: May 4, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-19905167
Appearances:
John H. Lawson, for appellant.
LISA B. FORBES, P.J.:
M.D. (“Mother”) appeals the juvenile court’s order terminating her
parental rights and awarding permanent custody of A.F.H.1 to the Cuyahoga County
Division of Children and Family Services (“CCDCFS” or the “Agency”).2 On appeal,
1The juvenile court terminated Mother’s parental rights to each of her three
children at the dispositional hearing at issue in the appeal. However, this appeal concerns
only A.F.H.
2 A.F.H.’s alleged father’s parental rights were also terminated, but the alleged
father is not a party to this appeal.
Mother’s counsel filed a motion to withdraw pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that following an
examination of the record there are no meritorious grounds for appeal. This court
held the motion in abeyance to give appellant an opportunity to file a pro se brief.
She did not do so. After conducting our own independent review, we grant counsel’s
motion to withdraw and dismiss the appeal.
I. Facts and Procedural History
A.F.H. was born on December 27, 2018. CCDCFS filed a complaint
on April 26, 2019, alleging that A.F.H. was neglected and dependent because
“Mother used cocaine during her pregnancy with A.F.H.” The complaint further
alleged that Mother had “completed treatment in the past and [was] on a methadone
maintenance program” at the time the complaint was filed. In its complaint
CCDCFS requested legal custody of A.F.H. to Mother with protective supervision to
CCDCFS.
A.F.H. was adjudicated neglected and dependent on September 18,
2019. In its October 26, 2019 journal entry, the juvenile court ordered A.F.H.
committed to the legal custody of Mother with protective supervision granted to
CCDCFS.
Beginning in May 2020, CCDCFS took steps to address information
it had received that A.F.H. was living with Mother in a motel in undesirable
conditions. On July 1, 2020, the court granted CCDCFS’s Motion for immediate
custody, awarding emergency temporary custody of A.F.H. to the Agency. CCDCFS
was granted temporary custody of A.F.H. on September 27, 2020.
CCDCFS filed a “motion to modify temporary custody to permanent
custody” on January 22, 2021. The juvenile court held a disposition hearing on
CCDCFS’s motion on April 1 and 29, 2022 (“the Hearing”).
On July 15, 2022, the court journalized an entry terminating Mother’s
parental rights and granting permanent custody of A.F.H. to CCDCFS. It is from
this order that Mother appeals.
II. Dispositional Hearing
At the Hearing, CCDCFS called the following six witnesses: Ercell
Goodman, Mary Beth Cole, Aimee Shipman, Marty O’Sullivan, Tiesha Reed, and
Amber Hunter. A.F.H.’s guardian ad litem John Stryker (“GAL”) submitted several
reports to the court over the course of the proceedings and gave a recommendation
on the record at the Hearing. In addition, nine exhibits were admitted into evidence.
The following testimony and information were presented at the Hearing.
A. Ercell Goodman
Ercell Goodman (“Goodman”) is a chemical dependency counselor
assistant for Community Action Against Addiction (“CAAA”), which is a methadone
drug-treatment program. Mother was one of Goodman’s clients at CAAA for three
or four years at the time of the Hearing. As a client at CAAA, Mother “receives
counseling. She receives group therapy, [intensive outpatient program] therapy if
she needs it.” In addition, Mother “gets a therapeutic dose of methadone daily.”
According to Goodman, methadone helps people with opiate drug addiction.
Goodman testified that he met with Mother twice each month.
During that time, he took and kept notes regarding their counselling sessions.
Portions of Mother’s counseling records, which included drug screenings,
counseling notes, and treatment plans, were admitted into evidence. According to
Goodman, the records indicate that 50 percent of Mother’s drug screenings from
April 2020 to November 2021 were positive for alcohol, cocaine, and/or marijuana.
Goodman acknowledged that in his experience it is normal for patients to relapse
during treatment.
Mother is reviewed by CAAA on a “monthly or quarterly basis, * * *
sometimes she does well. She will go where she’s supposed to go and she’ll do what
she’s supposed to do. And then other times she gets sidetracked with daily life, with
stress, with boyfriends or whatever it is so she doesn’t do what she’s supposed to
do.” During the times Mother is not doing well on the program, Goodman stated
that Mother was “resistant” in his counseling notes. For example, in an October 8,
2020 counseling note, it says that Mother “is resistance [sic] to treatment, to
counseling and group. [Mother] is not working a daily plan of recovery.”
Mother “has not used opiates” during her treatment, however, “[i]t’s
the other things that she’s taking that she’s having an issue with.” During an
April 30, 2021 group session at CAAA, Mother described “how her addiction
switched from opiates to alcohol.” Goodman testified that CAAA is “primarily an
opiate methadone center * * *[b]ut clients normally become abstinent from their
opiate use and they pick up other second addictions, which is alcohol sometimes,
marijuana sometimes, and we work with them with that also.”
During counseling sessions, Goodman and Mother discussed “things
on her treatment plan. And one of the things we talk mostly [about] is her drug use
and * * * the issue’s [sic] with her children * * *.” Goodman explained that Mother
was “stressed about the things she has to do to get her children back.” According to
Goodman, for a person with addiction “when you put too much on their plate they
resort to what they know and that’s just use.”
During Mother’s February 9, 2022 session with Goodman, they
discussed Mother’s urine screenings over the previous six months. According to
Goodman, Mother acknowledged to him during that session that she had started
using cocaine and had used methamphetamine in September 2021.
At the time of the Hearing, CAAA was “trying to encourage [Mother]
to go into [an] intensive outpatient * * * program” for her alcohol, marijuana, and
cocaine use. Mother was recommended to an intensive-outpatient program (“IOP”)
on February 9, 2022, and connected with Guidestone for the IOP but had not
entered into the program.
CAAA considers a client sober when they have displayed “true
abstinence after 90 days.” At the time of the Hearing, Goodman did not consider
Mother to be living a sober life. When asked if he believes that Mother is attempting
to fight her addictions, Goodman responded, “Some days, yes, I do.” He explained
that Mother has complained to him that not having her children has given her stress.
“[S]he says she loves her children. She said she [does not] think she could live
without them.” Further, Mother has indicated to Goodman that she will continue
treatment at CAAA after the Hearing.
B. CCDCFS Employees
Five CCDCFS employees testified at the permanent custody Hearing.
Mary Beth Cole (“Cole”), Aimee Shipman (“Shipman”), and Amber Hunter
(“Hunter”) are caseworkers who were assigned to work on Mother’s case as part of
CCDCFS’s “START Unit” between August 2020 and the date of the Hearing.
According to Cole, “[t]he START Unit deals with babies that come into the system
that have been exposed to drugs.” Marty O’Sullivan (“O’Sullivan”) and Tiere Reed
(“Reed”) are family advocates. As family advocates, O’Sullivan stated that his main
job is to work “with parents in cases involving substance use disorder to help
[them] attain and maintain sobriety.”
CCDCFS records indicated that Mother was first involved with the
agency when her daughter, Ma.D., was born in April 2015 because Ma.D. “was born
with substance use.” As a result, Ma.D. was adjudicated abused.
CCDCFS became involved in the current case in April 2019 because
“at the birth of [A.F.H.] [M]other tested positive for substances.” As a result,
CCDCFS filed a complaint alleging that A.F.H. was neglected and dependent and
sought court-ordered protective supervision, which was later granted.
Cole became involved with A.F.H. in April 2020 when CCDCFS
became aware that Mother’s “housing was not stable. * * * She had stayed
sometimes with her mother, other times with friends.” CCDCFS learned that
Mother was staying in the motel when “one of the attendants there found a child
unsupervised in the parking lot.” Cole described “the condition of the motel room
had been pretty much trashed” and “also had a lot of liquor bottles” in it. As a result,
the court granted CCDCFS temporary custody of A.F.H., and the goal of the case
plan was reunification with Mother.
Several case plans were developed over the course of CCDCFS’s
involvement with Mother. The two consistent objectives for Mother were
independent housing and substance abuse.
For housing, Cole testified that CCDCFS referred Mother to “the local
collab and CMHA.” Each of the CCDCFS witnesses testified that Mother’s housing
issue was never resolved. Mother reported that she had leased a home with her
mother (“grandmother”) but never provided a copy of the lease to CCDCFS and
cancelled all scheduled CCDCFS visits to the home. Shipman testified that Mother’s
housing with grandmother would not have been appropriate housing for A.F.H.
because grandmother had an open case with CCDCFS regarding one of Mother’s
siblings.
Each CCDCFS employee testified that Mother was requested to
submit to random drug screenings for the agency. Cole and O’Sullivan testified that
Mother submitted to an agency drug screening only one time for each of them.
CCDCFS did have access to Mother’s CAAA drug screenings, but according to
Hunter, CCDCFS required its own screenings because CAAA’s were not always
randomly requested. Mother did not make progress on the substance-abuse
objective according to CCDCFS standards because she had not submitted to the
agency’s random drug screenings, and the drug screenings performed by CAAA
indicated that Mother had tested positive for various substances. Additionally,
Mother told Cole that she had been “struggling” with alcohol and marijuana in
December 2020.
According to Shipman, mental health was not initially listed on
Mother’s case plan while Shipman was assigned to the case. However, Mother was
“referred to Ohio Guidestone for some mental health services because she expressed
a concern with [Shipman] over being depressed since her children were removed.”
Mental health and parenting were added to Mother’s case plan in February 2022.
Prior to parenting being added to Mother’s case plan, Cole stated that Mother had
engaged with a parenting class but never completed it.
Hunter testified that at the time of the Hearing, A.F.H. had been
placed with her paternal aunt and had been in that placement for over 12 months.
According to Hunter, A.F.H. was “well bonded” with her caregivers.
C. GAL
At the Hearing, A.F.H.’s GAL recommended that permanent custody
be granted to CCDCFS. The GAL stated, “I found compelling there is the lack of
housing and stability by mother and sobriety. I believe the testimony was very clear
as to the lack of sobriety by mother * * *.”
The GAL submitted a “May 2022 Report Supplement,” which
supplemented his reports previously filed with the court. In the supplement, the
GAL reiterated his recommendation “that permanent custody of [A.F.H.] is
granted to the agency” because it would be A.F.H.’s best interest. The GAL found
that “Mother’s addiction has been an ongoing disruption to her relationship with
[A.F.H.] to the degree that GAL cannot recommend [that A.F.H.] return safely to
Mother’s care. * * * Raising A.F.H. would fall solely on Mother’s shoulders. She is
unable to bear such responsibility. “
III. Law and Analysis
A. Anders
In Anders, the United States Supreme Court held that if appointed
counsel, after a conscientious examination of the case, determines the
appeal to be wholly frivolous, he or she should advise the court of that
fact and request permission to withdraw. Anders [386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493] at 744. This request, however, must be
accompanied by a brief identifying anything in the record that could
arguably support the appeal. Id. Further, counsel must also furnish
the client with a copy of the brief and allow the client sufficient time to
file his or her own brief. Id.Once the appellant’s counsel satisfies these requirements, this court
must fully examine the proceedings below to determine if any arguably
meritorious issues exist. Id.; Loc.App.R. 16(C). If we determine that
the appeal is wholly frivolous, we may grant counsel’s request to
withdraw and dismiss the appeal without violating constitutional
requirements or we may proceed to a decision on the merits if state law
so requires. Anders; Loc.App.R. 16(C).
In re C.S., 8th Dist. Cuyahoga No. 105700, 2017-Ohio-8664, ¶ 10-11.
In the case at hand, Mother’s counsel did not set forth a potential
assignment of error. Instead, counsel gave an analysis of the record and case law
concluding that after conducting a review of “the permanent custody Trial
Transcripts of April 1, 2022 and April 29, 2022, [and] all pertinent documents from
the trial court’s records, including motions, orders, Exhibits, and the [GAL] reports
* * * the undersigned cannot discern any meritorious argument.”
We acknowledge that Anders briefing arose in the context of criminal
cases, however this court has approved the application of the Anders procedure in
an appeal from a juvenile court’s termination of parental rights. In re C.S. at ¶ 13.
B. Independent Review
1. Standard of Review — Permanent Custody
“An appellate court will not reverse a juvenile court’s termination of
parental rights and award of permanent custody to an agency if the judgment is
supported by clear and convincing evidence.” In re M.J., 8th Dist. Cuyahoga
No. 100071, 2013-Ohio-5440, ¶ 24. Pursuant to R.C. 2151.414(B)(1), “the 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 any of the R.C. 2151.414(B) factors apply.
Pertinent to this appeal, “[c]ourts apply a two-pronged test when
ruling on permanent custody motions.” In re De.D., 8th Dist. Cuyahoga No. 108760,
2020-Ohio-906, ¶ 16. “To grant the motion, courts first must find that any of the
factors in R.C. 2151.414(B)(1)(a)-(e) apply. Second, courts must determine that
terminating parental rights and granting permanent custody to CCDCFS is in the
best interest of the child or children using the factors in R.C. 2151.414(D).” Id.
2. R.C. 2151.414(B)(1)(a)
R.C. 2151.414(B)(1)(a) is satisfied if the child has not been abandoned
or orphaned or been in agency custody for 12 or more months of a consecutive 22-
month period, 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.”
CCDCFS’s motion for permanent custody argued that this provision applied.
As noted by the trial court in its July 15, 2022 journal entry granting
permanent custody of A.F.H. to the Agency, A.F.H. was “committed to the
emergency custody of the Agency pursuant to an order journalized on July 1, 2020.”
CCDCFS filed its motion to modify temporary custody to permanent custody on
January 22, 2021. Consequently, A.F.H. had not been in agency custody 12 months
of a consecutive 22-month period at the time CCDCFS filed its motion.
The court further found Mother has “failed continuously and
repeatedly to substantially remedy the conditions causing the Child to be placed
outside the Child’s home” and that A.F.H. cannot be placed with Mother within a
reasonable time or should not be placed with Mother.
To assess whether the child cannot be placed with a parent within a
reasonable time or should not be placed with a parent, courts look to
R.C. 2151.414(E). Subsection (E)(1) instructs that the court shall 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 determines by clear and convincing
evidence that
* * * notwithstanding reasonable case planning and diligent efforts by
the agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home * * *.
Clear and convincing evidence in the record demonstrates that
Mother has failed to remedy the conditions causing A.F.H.’s removal. A.F.H. was
placed in CCDCFS protective supervision and ultimately temporary custody due to
Mother’s substance abuse during and after her pregnancy with A.F.H. At the
Hearing, Goodman, Cole, Shipman, O’Sullivan, Reed, and Hunter each testified that
Mother had an ongoing substance abuse problem. While Mother had been engaged
in methadone treatment at CAAA, Goodman testified that Mother’s addiction
simply shifted from opiate use to alcohol. Further, Mother admitted to using
cocaine, methamphetamine, alcohol, and marijuana while in the CAAA program.
Therefore, we find that clear and convincing evidence in the record
supports a finding that A.F.H. was not in CCDCFS custody for 12 months of a
consecutive 22-month period but that she cannot be placed with Mother within a
reasonable time or should not be placed with Mother.
3. R.C. 2151.414(D)(1) Best-Interest Factors
The July 15, 2022 journal entry reflects that the court considered the
best-interest factors under R.C. 2151.414(D)(1)(a)-(e), including A.F.H.’s:
relationship with her family and foster caregivers; wishes; custodial history; and
need for a legally secure placement in addition to the GAL report.
“R.C. 2151.414(D)(1) does not require a juvenile court to expressly discuss each of
the best-interest factors in R.C. 2151.414(D)(1)(a) through (e). Consideration is all
the statute requires.” In re A.M., 166 Ohio St.3d 127, 2020-Ohio-5102, 184 N.E.3d
1, ¶ 31.
The evidence in the record supports the court’s decision that
permanent custody to CCDCFS is in A.F.H.’s best interest. Hunter testified that
A.F.H. had been placed with her paternal aunt for 12 months and was well-bonded
to her caregivers. A.F.H.’s GAL opined that permanent custody to the Agency would
be in A.F.H.’s best interest, noting the “lack of housing and stability by mother and
sobriety.” Further, regarding A.F.H.’s need for a legally secure permanent
placement, the court heard from numerous witnesses that Mother had not reached
sobriety, nor had she secured adequate housing during the pendency of the case.
The Ohio Supreme Court has held that, regarding the best interest of
the child portion of a permanent custody case, “[t]here is not one element that is
given greater weight than the others pursuant to” R.C. 2151.414(D). In re Shaefer,
111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. “R.C. 2151.414 requires
the court to find the best option for the child once a determination has been made
pursuant to” R.C. 2151.414(B)(1)(a)-(e). Id. at ¶ 64.
Upon review, we find that the court properly considered the relevant
statutory factors and acted within its discretion when it found that permanent
custody to CCDCFS was in the best interests of A.F.H. We find that clear and
convincing evidence in the record supports the trial court’s decision to terminate
Mother’s parental rights and grant custody of A.F.H. to CCDCFS.
Accordingly, we grant counsel’s motion to withdraw and dismiss the
appeal.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MICHAEL JOHN RYAN, J., CONCUR