In re H.W.

[Cite as In re H.W., 2018-Ohio-523.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
In re H.W. Court of Appeals Nos. S-17-043
S-17-046
Trial Court No. 21530145
DECISION AND JUDGMENT
Decided: February 9, 2018
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Brett A. Klimkowsky, for appellant, C.C.
Sarah A. Nation, for appellant, K.W.
Nancy E. Haley, for appellee.
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SINGER, J.
{¶ 1} This is an appeal from the September 13, 2017 judgment of the Sandusky
County Court of Common Pleas, Juvenile Division, which terminated the parental rights
of appellant, C.C., mother of H.W. (“mother”), and appellant, K.W., father of H.W.
(“father”), and granted permanent custody of the child to appellee, Sandusky County
Department of Job and Family Services. For the reasons that follow, we affirm the
judgment.
{¶ 2} Mother and father filed separate appeals; the appeals were consolidated.
Mother’s appointed counsel filed a brief in accordance with Anders v. California, 386
U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and did not set forth any potential
assignments of error. Father set forth three assignments of error in his brief:
I. The trial court erred in denying appellant’s request for
continuance.
II. Appellant was not afforded effective assistance of counsel.
III. The trial court erred in granting permanent custody of H.W. to
the Sandusky County Department of Job and Family Services as it was
against the manifest weight of the evidence.
Background
{¶ 3} Mother and father, who are not married, are the parents of H.W., who was
born in June 2015. Mother has given birth to a total of four children, although only
H.W., the youngest child, was the subject of the permanent custody proceeding in the
Sandusky County Court of Common Pleas, Juvenile Division. None of mother’s three
older children reside with her, as one child was placed in his dad’s legal custody, another
child was placed with mother’s relatives and appellee was granted permanent custody of
the other child.
2.
{¶ 4} When H.W. was born, he tested positive for cocaine, opiates and marijuana.
Mother was addicted to drugs, as was father. Appellee received a referral regarding H.W.
due to the drugs in his system. H.W. was hospitalized for approximately one month after
he was born and underwent methadone treatment to ease his withdrawal symptoms.
{¶ 5} On July 15, 2015, appellee requested and was granted temporary custody of
H.W. since there was no suitable placement options for H.W. After H.W. was released
from the hospital, he was placed in a foster home. Meanwhile, mother and father sought
inpatient drug treatment, but by the end of July 2015, both had left the treatment facility.
{¶ 6} Mother and father visited with H.W. on August 3, 2015. Mother and father
were scheduled to visit with H.W. on August 10, 2015, but had to visit the baby
separately due to the couple’s arguing during previous visits. Neither parent appeared for
the August 10, 2015 visit, although H.W. had been transported to the agency in
anticipation of the visit.
{¶ 7} On August 21, 2015 mother was arrested and jailed for nonsupport. On
August 24, 2015, the adjudicatory hearing was held. Mother was transported from the
jail and attended the hearing. Father did not attend the hearing. H.W. was adjudicated a
neglected and dependent child. H.W. remained in appellee’s temporary custody.
{¶ 8} On September 23, 2015, the dispositional hearing was held. Temporary
custody of H.W. was granted to appellee and a case plan for mother and father was
approved.
{¶ 9} On March 31, 2017, appellee filed its motion requesting modification of
temporary custody of H.W. to permanent custody.
3.
{¶ 10} On July 12, 2017, father requested the permanent custody hearing be
continued; the request was denied.
{¶ 11} On July 13, 2017, the court held the permanent custody hearing.
{¶ 12} On September 13, 2017, the trial court issued its findings of fact,
conclusions of law and judgment entry in which it granted permanent custody of H.W. to
appellee.
July 13, 2017 Permanent Custody Hearing
{¶ 13} Mother and father appeared almost two hours late for the hearing. Mother
left shortly after she arrived because she was under the influence of some substance.
Mother’s appointed counsel remained at the hearing.
{¶ 14} Father, via counsel, indicated that he desired to consent to appellee’s
motion for permanent custody of H.W. Father was sworn and was thoroughly advised of
his rights and the consequences of consenting to the granting of appellee’s motion for
permanent custody of H.W. Father was questioned about his educational background, his
sobriety and his ability to understand the purpose of the court hearing; father answered
appropriately. Father acknowledged, among other things, that he had had been
represented by counsel, he was happy with counsel, he had a chance to review the
paperwork from the case with counsel and counsel satisfactorily answered all of father’s
questions. Father recognized he was consenting to H.W. being placed in appellee’s
permanent custody, and that his relationship with H.W. would end. Father indicated he
was waiving his parental rights without any threats or promises by anyone. Father
understood he was waiving his right to a trial where appellee would be required to prove
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its case. Father agreed that permanent custody was in H.W.’s best interest. Thereafter,
father knowingly, intelligently and voluntarily consented to H.W.’s placement in
appellee’s permanent custody. The court also explained to father that appellee’s plan for
H.W. would be to place H.W. for adoption. Father acknowledged adoption was in
H.W.’s best interest. Father and his counsel left the hearing, as father indicated to the
court that father preferred for his counsel to leave.
{¶ 15} Appellee then called three witnesses to testify at the permanent custody
hearing. The relevant testimony is summarized below.
Child Support Worker
{¶ 16} Cassandra Walter, who worked for Sandusky County Child Support,
testified that on September 24, 2015, a child support order was issued requiring mother to
pay $50 a month for H.W.’s support. On February 1, 2016, the child support order was
increased to $203.60 a month. Walter stated mother never made any payments for
H.W.’s support.
Caseworker Angela Wheeler
{¶ 17} Angela Wheeler, an on-going caseworker for appellee, testified to the
following. She learned during a previous case where mother lost custody of another child
that mother was schizophrenic. Wheeler was assigned to H.W.’s case in May of 2016,
although Shelbi Meyer was the original caseworker assigned to H.W.’s case in June
2015. Wheeler received and reviewed Meyer’s case file. The case file indicated mother
voluntarily started inpatient drug treatment on June 18, 2015, but unsuccessfully left on
July 30, 2015. Appellee took custody of H.W. on July 15, 2015. A case plan was
5.
completed for mother in August 2015, for services including alcohol and drug treatment.
Mother’s last visit with H.W. was on August 3, 2015. After August 2015, the only
contact appellee had with mother was when mother was incarcerated. Mother completed
no case plan services and was removed from case plan services in March 2016.
{¶ 18} When H.W. was born, he was addicted to three different drugs and was
extremely ill. H.W. was in the hospital for a month before he could go to a foster home.
H.W. had tremors until he was about a year old. In October 2016, H.W. changed foster
homes.
{¶ 19} Wheeler stated appellee would not consider mother to be a safe placement
for H.W. Wheeler noted mother does not have any of her children in her care. Wheeler
opined H.W. would not know his mother since he had not seen her since August 2015.
CASA/GAL
{¶ 20} Miranda Magers testified she is a volunteer for Court Appointed Special
Advocate (“CASA”) and the guardian ad litem (“GAL”) appointed to represent H.W. in
July 2015. Magers undertook an investigation and prepared a report, filed June 30, 2017.
Magers testified she spoke with mother in July 2015, at the first hearing, and thereafter
spoke with mother at court. Magers noted mother is actively involved in drug use and
has no intention of stopping as mother likes using drugs. Magers was concerned that
mother could not take care of H.W. while using drugs. At the time of the permanent
custody hearing, mother had not seen H.W. for 673 days.
6.
{¶ 21} Magers observed H.W. and stated he is doing very well, and it appears he
has overcome the issues he had with being born drug-addicted. Magers recommended
that appellee receive permanent custody of H.W., as that would be in H.W.’s best
interest.
Trial Court’s Decision
{¶ 22} On September 13, 2017, the trial court issued its findings of fact,
conclusions of law and judgment entry in which it ordered permanent custody of H.W. to
appellee. The court made the following findings, by clear and convincing evidence:
mother and father legally abandoned H.W.; H.W. could not be placed with either parent
within a reasonable period of time and should not be placed with either parent; father
knowingly, voluntarily and intelligently waived his parental rights to H.W. and consented
to H.W.’s placement in appellee’s permanent custody, as it was in H.W.’s best interest;
both parents failed to make H.W. a priority; and, appellee made reasonable efforts to
reunify the family.
{¶ 23} The trial court concluded H.W. has been in the temporary custody of
appellee for more than 12 months of 22 consecutive months. The court further concluded
H.W. cannot be placed with either parent within a reasonable period of time, and should
not be placed with either parent. The court concluded father knowingly, voluntarily and
intelligently waived his rights and consented to H.W.’s placement in appellee’s
permanent custody. The court also concluded the permanent placement of H.W. in
appellee’s custody is clearly in H.W.’s best interest. In addition, the court concluded
appellee made reasonable efforts for H.W. to return home, which efforts were
7.
unsuccessful. Lastly, the court concluded appellee made reasonable efforts to establish a
permanency plan for H.W. for the child’s placement in appellee’s permanent custody
with the goal of finding an appropriate adoptive family for H.W.
Mother’s Appeal
{¶ 24} On December 4, 2017, mother’s appointed counsel filed a request to
withdraw pursuant to Anders, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493. Counsel
asserted that after reviewing the court file, including the transcript of proceedings, no
error prejudicial to mother could be argued.
{¶ 25} The procedure to be followed by appointed counsel who desires to
withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as
State v. Duncan, 57 Ohio App. 2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the
United States Supreme Court found if 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. Anders at 744. This request must be accompanied by a brief.
Id. In addition, counsel must furnish the client with a copy of the brief and request to
withdraw and allow the client sufficient time to raise any matters the client so chooses.
Id. Once these requirements have been fulfilled, the appellate court must conduct a full
examination of the proceedings held below to decide if the appeal is indeed frivolous. Id.
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 it may
proceed to a decision on the merits if required by state law. Id.
8.
{¶ 26} Here, mother’s appointed counsel satisfied the requirements set forth in
Anders. We observe mother has not filed a pro se brief or otherwise responded to
counsel’s request to withdraw. Accordingly, we shall proceed with an examination of the
entire record below to determine if this appeal lacks merit and is, therefore, wholly
frivolous.
{¶ 27} Our review of the record does not disclose any errors by the trial court
which would justify a reversal of the judgment. The record is replete with evidence
concerning mother’s drug addiction, her lack of commitment to and concern for H.W.,
her unwillingness to make H.W. a priority and her failure to participate in case plan
services. We therefore find mother’s appeal to be wholly frivolous, and counsel’s request
to withdraw is found well-taken and is granted.
Father’s Appeal
First Assignment of Error
{¶ 28} Father argues the trial court erred in denying his request for a continuance
of the July 13, 2017 hearing. Father contends he sought a continuance for the following
reasons: H.W.’s former foster parents filed a petition for adoption in probate court on
July 11, 2017; one of father’s witnesses was unavailable to appear at the hearing; and
father had a court date for a felony charge on July 13, 2017.
{¶ 29} “The grant or denial of a continuance is a matter which is entrusted to the
broad, sound discretion of the trial judge. An appellate court must not reverse the denial
of a continuance unless there has been an abuse of discretion.” State v. Unger, 67 Ohio
St.2d 65, 67, 423 N.E.2d 1078 (1981). An abuse of discretion is “more than an error of
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law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
{¶ 30} Here, the record shows father’s request for continuance was filed on July
12, 2017, the day before the permanent custody hearing. On that same day, the trial court
denied father’s request. The court noted that the July 13, 2017 hearing had been
scheduled since May 23, 2017, after the court had consulted with five attorneys’
schedules. The court observed notice of the hearing had been served on all parties and a
court reporter was ordered. The court further noted father’s felony court date was
scheduled a week earlier, but at the review hearing held on July 10, 2017, which father’s
counsel attended, no mention was made regarding a scheduling conflict. In addition, the
court found the filing of a petition for adoption does not divest the juvenile court of
jurisdiction.
{¶ 31} Upon review of the record, we find no basis for concluding that the trial
court’s denial of father’s request for a continuance was improper or an abuse of
discretion. Accordingly, father’s first assignment of error is not well-taken.
Second Assignment of Error
{¶ 32} Father asserts he was not afforded effective assistance of counsel because
counsel advised father that one of father’s witnesses was not available to attend the
permanent custody hearing. In addition, father claims the trial court docket shows his
counsel failed to subpoena witnesses for the permanent custody hearing. As a result,
father consented to granting appellee’s motion for permanent custody.
10.
{¶ 33} In order to prevail on a claim for ineffective assistance of counsel,
appellant must show trial counsel’s performance fell below an objective standard of
reasonable representation and prejudice resulted from counsel’s deficient performance.
State v. Bradley, 42 Ohio St. 3d 136, 137, 538 N.E.2d 373 (1989), paragraph two of the
syllabus, following Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Trial counsel is entitled to a strong presumption that his or her conduct falls
within the wide range of reasonable assistance. Strickland at 688.
{¶ 34} Here, father argues his trial counsel was ineffective because one of father’s
witnesses was not available to attend the permanent custody hearing, and counsel failed
to subpoena witnesses for the hearing. Father, however, did not articulate any reasons
why or how his case was thereby prejudiced. Father did not offer what testimony the
unavailable witness would have presented at the hearing, nor did father submit a list of
witnesses who should have been subpoenaed to testify at the hearing, or the substance of
their testimony.
{¶ 35} In light of the foregoing, there is no evidence in the record that the
performance of father’s trial counsel was in any way professionally unreasonable. Nor is
there evidence to support a finding that there is a reasonable probability that, but for trial
counsel’s alleged errors, the result of the hearing would have been different.
Accordingly, father’s second assignment of error is not well-taken.
11.
Third Assignment of Error
{¶ 36} Father argues the trial court erred in granting permanent custody of H.W. to
appellee, as it was against the manifest weight of the evidence because father’s trial
counsel left the courtroom during the hearing and counsel was ineffective.
{¶ 37} A trial court’s decision in a permanent custody case will not be reversed on
appeal unless it is against the manifest weight of the evidence. In re A.H., 6th Dist. Lucas
No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy Jones, 10th Dist. Franklin Nos.
03AP-1167 and 03AP-1231, 2004-Ohio-3312, ¶ 28. The factual findings of a trial court
are presumed to be correct since, as the trier of fact, the court is in the best position to
weigh the evidence and evaluate the testimony of the witnesses. In re Brown, 98 Ohio
App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Therefore, a judgment supported by
some competent, credible evidence going to all essential elements of the case is not
against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54
Ohio St. 2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶ 38} The juvenile court may grant permanent custody of a child to a children
services agency if the court finds, by clear and convincing evidence: (1) the existence of
at least one of the four factors set forth in R.C. 2151.414(B)(1)(a) through (d), and (2) the
child’s best interest is served by granting permanent custody to the agency. In re M.B.,
10th Dist. Franklin No. 04AP755, 2005-Ohio-986, ¶ 6. Clear and convincing evidence
requires proof which “produce[s] 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. In making a best interest
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determination, R.C. 2151.414(D)(1) provides that the court shall consider all relevant
factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster caregivers and out-of-home providers, and
any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child's guardian ad litem, with due regard for the maturity of
the child;
(c) 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 ending on or after March 18, 1999;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 39} The factors set forth in R.C. 2151.414(E)(7) through (11) include: whether
the parents have been convicted of or pled guilty to various crimes; whether medical
treatment or food has been withheld from the child; whether the parents have placed the
child at a substantial risk of harm due to alcohol or drug abuse, and have rejected
treatment two or more times or refused to participate in further treatment two or more
13.
times after a case plan issued pursuant to section 2151.412 of the Revised Code requiring
treatment of the parents was journalized as part of a dispositional order issued with
respect to the child or an order was issued by any other court requiring treatment of the
parents; whether the parents have abandoned the child; and whether the parents have had
parental rights terminated with respect to a sibling of the child.
{¶ 40} Here, addressing father’s claims regarding his counsel, we previously
found that father’s trial counsel was not ineffective. Moreover, the record shows after
father consented to the granting of appellee’s motion for permanent custody of H.W.,
father was asked by the court if father wanted counsel to leave the hearing or stay for the
remainder of the hearing, and father decided that counsel should leave the courtroom.
We find neither of these claims advanced by father is a basis upon which to find that the
trial court erred in granting permanent custody of H.W. to appellee.
{¶ 41} With regards to father’s contention that the trial court’s granting of
permanent custody of H.W. to appellee was against the manifest weight of the evidence,
we find the court’s decision was supported by clear and convincing evidence. The record
fully supports the court’s determination that H.W. has been in appellee’s temporary
custody for more than 12 months of a consecutive 22-month period, as it undisputed that
H.W. has been in appellee’s custody without interruption since July 15, 2015. See R.C.
2151.414(B)(1)(d). The record also supports the court’s finding that mother and father
abandoned H.W., as mother last visited H.W. on August 3, 2015, and father visited last
with H.W. on February 23, 2017. See R.C. 2151.414(B)(1)(b).
14.
{¶ 42} Turning to the second prong of the permanent custody analysis, we find
there was clear and convincing evidence in the record to support the trial court’s
determination that awarding permanent custody of H.W. to appellee was in H.W.’s best
interest.
{¶ 43} The record shows mother is addicted to drugs, father has a substance abuse
history, neither parent has stable housing or the means to financially support H.W.,
mother lost custody of another child and does not have any of her children living with
her, both parents failed to consistently visit H.W., mother and father failed to make H.W.
a priority in their lives and both parents failed to take advantage of the many case plan
services made available to them. In addition, father voluntarily and knowingly consented
to granting appellee’s motion for permanent custody of H.W.
{¶ 44} The record further reveals H.W. was thriving in his foster home and has
responded well medically, physically and socially. Despite H.W. being born extremely
ill and addicted to drugs, at the time of the permanent custody hearing, H.W. was on
target for a two-year-old. Given H.W.’s young age, he was not able to express his
wishes. However, the GAL recommended that permanent custody of H.W. be granted to
appellee. The record shows if permanent custody was granted to appellee, appellee
would place H.W. for adoption.
{¶ 45} Based on the foregoing, the trial court did not err in granting permanent
custody of H.W. to appellee. The trial court’s judgment is supported by clear and
convincing evidence, and therefore, is not against the manifest weight of the evidence.
Accordingly, father’s third assignment of error is not well-taken.
15.
{¶ 46} The judgment of the Sandusky County Court of Common Pleas, Juvenile
Division, is hereby affirmed. Appellants are ordered to split the costs of this appeal
pursuant to App.R. 24. The clerk is ordered to serve all parties with notice of this
decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
16.