In re K.J. , 2014 Ohio 2132 ( 2014 )

[Cite as In re K.J., 2014-Ohio-2132.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. William B. Hoffman, P.J.
Hon. W. Scott Gwin, J.
K.J. Hon. Craig R. Baldwin, J.
Case No. CT2014-004
OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Juvenile Court,
Case No. 21330214
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 12, 2014
APPEARANCES:
For Appellant - Mother For Appellee -
Muskingum County Children's Services
BRIAN W. BENBOW MARIA KALIS
Benbow Law Offices Assistant Prosecuting Attorney
605 Market Street 22 North Fifth Street
Zanesville, Ohio 43701 Zanesville, Ohio 43701
For Father Guardian Ad Litem
THOMAS THOMAS SCHMIDT JEANETTE M. MOLL
172 Granville Street 803B Market Street
Gahanna, Ohio 43230 Zanesville, Ohio 43701
Muskingum County, Case No. CT2014-004 2
Hoffman, P.J.
{¶1} Appellant Heidi Schrack (“Mother”) appeals the December 20, 2013
Judgment Entry entered by the Muskingum County Court of Common Pleas, Juvenile
Division, which approved and adopted the magistrate’s decision from the same day,
recommending Mother’s parental rights, privileges, and responsibilities with respect to
her minor child be terminated as well as recommending permanent custody of the child
be granted to Appellee Muskingum County Children’s Services (“the Agency”).
STATEMENT OF THE FACTS AND CASE
{¶2} On October 1, 2013, the Agency was contacted regarding Mother giving
birth to a baby girl, K.J., on September 30, 2013. At the time of the birth, Mother had
tested positive for cocaine. Within one hour of K.J.’s birth, Mother left the hospital
against medical advice. The Agency invoked Juv. R. 6 custody.
{¶3} Mother did not appear at the permanent custody hearing on December 18,
2013.
{¶4} Mother has had four other children permanently removed from her
custody. Mother admitted to using cocaine throughout her pregnancy. Mother did not
engage in any case plan services and rarely visited the child. The Guardian Ad Litem
recommended permanent custody be granted to the Agency.
{¶5} Via Judgment Entry filed December 20, 2013, the trial court approved and
adopted the magistrate’s decision, terminated Mother’s parental rights, and granted
permanent custody of the child to the Agency.
Muskingum County, Case No. CT2014-004 3
{¶6} Brian Benbow, Appellant's appellate counsel, has submitted a request to
withdraw pursuant to Anders v. California (1967), 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493, asserting there are no meritorious issues for appeal.
{¶7} In his Anders brief, Attorney Benbow states he has conducted a thorough
review of the record and researched the possible appellate issues raised in the case.
Attorney Benbow reached the conclusion there exists no meritorious issues for appeal.
He served a copy of the brief on Mother, who has not filed a pro se brief or any other
response. This appeal is the third time the attorney has been assigned to appeal a
permanent custody decision involving Mother.
{¶8} Attorney Benbow sets forth two potential assignments of error for this
Court's review:
{¶9} "I. THE TRIAL COURT’S JUDGMENT THAT THE MINOR CHILDREN’S
[SIC] BEST INTEREST WOULD BE SERVED BY GRANTING PERMANENT
CUSTODY TO MUSKINGUM COUNTY CHILDREN’S SERVICES WAS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶10} "II. MOTHER/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL."
{¶11} This case is an expedited appeal, and this Court should enter judgment
within 30 days of submission of the briefs, or of the oral argument, whichever is later,
unless compelling reasons in the interest of justice require a longer time. App. R.
11.2(C)(5).
Muskingum County, Case No. CT2014-004 4
I
{¶12} In the first proposed assignment of error, Mother contends the trial court's
finding an award of permanent custody was in the best interest of the child was against
the manifest weight and sufficiency of the evidence.
{¶13} In Anders, the United States Supreme Court held if a counsel, after a
conscientious examination of the case, determines it to be wholly frivolous, counsel
should so advise the court and request permission to withdraw. The request must be
accompanied by a brief identifying anything in the record that could arguably support an
appeal. Counsel must furnish his client with a copy of the brief and request the court to
allow the client sufficient time to raise any matter that he or she chooses. Once these
requirements have been satisfied, the appellate court must then conduct a full
examination of the proceedings to determine if the appeal is indeed frivolous. If the
appellate court determines the appeal is 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 requires.
{¶14} The procedures set out in Anders, supra are applicable to appeals
involving the termination of parental rights. Morris v. Lucas County Children's Services
Board (1989), 49 Ohio App. 3d 86, 550 N.E.2d 980.
{¶15} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant,
competent and credible evidence upon which the fact finder could base its judgment.
Cross Truck v. Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments
supported by some competent, credible evidence going to all the essential elements of
Muskingum County, Case No. CT2014-004 5
the case will not be reversed as being against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Constr., 54 Ohio St. 2d 279, 376 N.E.2d 578 (1978).
{¶16} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶17} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, 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; (b) the
child is abandoned; (c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or (d) the child has been in the temporary custody
of one or more public children services agencies or private child placement agencies for
twelve or more months of a consecutive twenty-two month period ending on or after
March 18, 1999.
{¶18} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) the wishes of
Muskingum County, Case No. CT2014-004 6
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; (3) the custodial history of the child; and (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.
{¶19} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶20} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should
not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
{¶21} In its decision filed May 9, 2012, the trial court found the following in
pertinent part:
{¶22} THE COURT FINDS By Clear and Convincing Evidence as Follows:
{¶23} "1. [K.J.] is found to be an abused, neglected and dependent child
pursuant to Sections(s) 2151.03(A)(2), 2151.031(D); and 2151.04(C) & (D) of the Ohio
Revised Code.
{¶24} "* * *
Muskingum County, Case No. CT2014-004 7
{¶25} "2. Pursuant to Ohio Revised Code Section(s) 2151.414(B)(1) and (E), the
minor child cannot be placed with either parent within a reasonable time, and should not
be placed with either parent.
{¶26} "a. The mother [has] failed to make any progress on [her] case over the
last three months.
{¶27} "b. Mother [has] demonstrated a lack of commitment by failing to regularly
visit the child.
{¶28} "c. Mothers [sic] chronic chemical dependency is so severe that it makes
her unable to provide an adequate permanent home for the child at the present time.
(R.C. 2151.414(E)(2))
{¶29} "* * *
{¶30} "e. The mother [is] repeatedly incarcerated, and repeated incarcerations
prevent [her] from providing care for the child. (R.C.2151.414(E)(13))
{¶31} "f. The mother has had other children permanently removed. (R.C.
2151.414(E)(11))
{¶32} "* * *
{¶33} "3. Pursuant to Ohio Revised Code Sections(s) 2151.414(B)(1) and (D), it
is in the Best Interest of the minor child that Permanent Custody be awarded to
Muskingum County Children Services based upon the following factors that the Court
finds upon a review of the evidence:
{¶34} "h. The minor child has been in the Temporary Custody of MCCS since
October 2, 2013.
{¶35} "* * *
Muskingum County, Case No. CT2014-004 8
{¶36} "l. The child has bonded with the foster family and the child's siblings in
the foster home, and the foster family is wanting to adopt.
{¶37} "m. The minor child needs a legally secure permanent placement, which
cannot be achieved without a granting of permanent custody to Muskingum County
Children Services the Court finding that it is unlikely that either parent will ever be able
to provide a legally secure placement.
{¶38} "The Court makes Findings regarding reasonable efforts to prevent the
need for removal and making it possible for the child to return home, with regard to the
services provided to prevent or eliminate the removal of the child from the home, and
why these services did not prevent the removal of the child from the home or enable the
child to return home. The Court determines that pursuant to the Ohio Revised Code
Section 21451.419, reasonable efforts were made to prevent the need for placement,
and to make it possible for the child to return home. Relevant services provided in this
matter include, but are not limited to the following: Extensive prior and ongoing case
management, attempted case plan services, foster placement, resource and referrals."
{¶39} The guardian ad litem, Jeanette Moll, filed a report wherein she opined the
best interests of the child would be served by granting permanent custody to the
Agency.
{¶40} After independently reviewing the record, we agree with counsel's
conclusion no arguably meritorious claims exist upon which to base an appeal
challenging the trial court's decision on best interests of the child.
{¶41} The proposed Assignment of Error is denied.
Muskingum County, Case No. CT2014-004 9
II
{¶42} Although this is not a criminal case, the Supreme Court of Ohio has
characterized the termination of parental rights as the “death penalty” of parenting.
Because of this characterization, this district has adopted the “criminal” standard to
ineffective assistance of counsel arguments in permanent custody actions. In re Fell,
Guernsey App. No. 05 CA 8, 2005–Ohio–5790; In re Utt Children, Stark
App.No.2003CA00196, 2003–Ohio–4576.
{¶43} The standard is set out in State v. Bradley (1989), 42 Ohio St. 3d 136, 538
N.E.2d 373, paragraphs two and three of the syllabus, certiorari denied (1990), 497 U.S.
1011, 110 S. Ct. 3258, 111 L. Ed. 2d 768. Appellant must establish the following:
{¶44} Counsel's performance will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel's
performance. (State v. Lytle [1976], 48 Ohio St. 2d 391, 20.0.3d 495, 48 Ohio St. 2d 391,
358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674, followed.)
{¶45} To show that a defendant has been prejudiced by counsel's deficient
performance, the defendant must prove that there exists a reasonable probability that,
were it not for counsel's errors, the result of the trial would have been different.”
{¶46} This Court must accord deference to defense counsel's strategic choices
made during trial and “requires us to eliminate the distorting effect of hindsight.” State v.
Post (1987), 32 Ohio St. 3d 380, 388, 513 N.E.2d 754.
Muskingum County, Case No. CT2014-004 10
{¶47} We note Appellant's counsel was diligent in her representation of Mother
despite Mother’s unwillingness to assist in her defense prior to and during the hearing.
{¶48} After independently reviewing the record, we agree with counsel's
conclusion no arguably meritorious claims exist upon which to base an ineffective
assistance of counsel argument.
{¶49} The proposed Assignment of Error is denied.
{¶50} Based on the foregoing, we find the appeal to be wholly frivolous under
Anders, grant counsel's request to withdraw, and affirm the trial court's judgment.
{¶51} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Muskingum County, Ohio, is hereby affirmed.
By: Hoffman, P.J.
Gwin, J. and
Baldwin, J. concur