In re Na.S.

[Cite as In re Na.S., 2015-Ohio-4476.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re Na.S. aka Na.B., Ni.S. Court of Appeals No. L-15-1159
aka Ni.B., Ne.S. L-15-1162
Trial Court No. JC 14238045
DECISION AND JUDGMENT
Decided: October 28, 2015
*****
Laurel A. Kendall, for appellant.
Jeremy G. Young, for appellee.
*****
YARBROUGH, P.J.
I. Introduction
{¶ 1} Appellants, P.K. and T.K., appeal the judgment of the Lucas County Court
of Common Pleas, Juvenile Division, terminating the parental rights of A.S. and S.S. and
awarding permanent custody of the grandchildren, Na.S., Ni.S., and Ne.S. (collectively,
“the children”), to appellee, Lucas County Children Services (LCCS). For the following
reasons, we affirm.
A. Facts and Procedural Background
{¶ 2} LCCS became involved in this case in November 2012, when A.S. gave
birth to Ne.S. At that time, both A.S. and Ne.S. tested positive for opiates, and A.S.
admitted to ongoing heroin usage throughout her pregnancy.
{¶ 3} Once involved in the case, LCCS removed the children from the custody of
A.S. and S.S. Na.S. and Ni.S. were placed with S.L., who was not related to the children
but had a “very strong relationship” with A.S. Ne.S. was placed with appellants. P.K. is
A.S.’s adoptive mother and the maternal grandmother of the children. P.K. is married to
T.K.
{¶ 4} One year later, LCCS filed a motion for a transfer of custody of the children
to appellants. The motion was filed at the request of S.L., who stated that a change in
custody would be best for the children due to “personal issues that she was having with
her family regarding the care of the children.” LCCS’s motion was eventually granted,
and, in November 2013, appellants received custody of the children.
{¶ 5} On January 24, 2014, less than three months after appellants took custody of
the children, Toledo Police Detective Hahn was called to the hospital to investigate an
incident that resulted in a broken leg to Ni.S., who was two-years-old at the time. Upon
arrival at the hospital, Hahn interviewed P.K., who stated that the fractured leg happened
2.
when Ni.S. fell off of a table in the living room. Hahn was informed by medical staff that
this type of injury (a "spiral break") was not common under these circumstances for a
two-year-old boy.
{¶ 6} Hahn then traveled to appellants’ home. Once inside, he detected a strong
odor of urine. He proceeded to speak with T.K. about the incident, and T.K. stated that
the injury occurred when Ni.S. fell off of the dining room table, not the living room table.
{¶ 7} Mary Seng, a patrol officer for the Toledo Police Department, was also
present during much of Hahn's investigation, and was alongside Hahn when he visited
appellants’ home. While there, Seng took several photographs depicting the conditions
of the home. Seng testified at the dispositional hearing in this case, stating that the room
in which the two boys were sleeping was “very stark and bare.” The room was empty
and the mattresses upon which the boys slept were lying on the floor with no box springs
or sheets. The bed frame was leaning against the wall, and Seng was concerned that it
could fall on the boys if they tried to climb on it. Seng acknowledged that the remainder
of the house was clean.
{¶ 8} Upon further questioning, T.K. admitted that he dropped Ni.S. while trying
to discipline him. He also stated that, after the injury occurred, Ni.S. began crying and
was given some Tylenol and ice overnight. Despite his intermittent crying throughout the
night, Ni.S. was not taken to the hospital until the following morning. T.K. subsequently
pleaded guilty to attempted child endangering as a result of the incident, and, as part of
his sentence, was ordered to have no unsupervised contact with minors.
3.
{¶ 9} On January 27, 2014, LCCS filed a complaint in the juvenile court alleging
dependency, neglect, and abuse, and moving the court for a shelter care hearing. On the
same day the complaint was filed, a shelter care hearing was held, after which LCCS was
awarded temporary custody. Upon removing the children from appellants’ home, LCCS
placed the children with S.S.’s sister, J.J. J.J. is a licensed foster parent residing in
Monroe, Michigan.
{¶ 10} At the time of removal, LCCS was not offering case plan services to
appellants. Indeed, LCCS filed a motion with the court to have appellants removed as
parties in this action. Nonetheless, the LCCS caseworker assigned to this case, DaNelle
Flowers, testified that appellants were voluntarily participating in case plan services.
Ultimately, the juvenile court denied LCCS’s motion to dismiss appellants on June 10,
2014.
{¶ 11} One month later, LCCS filed a motion for permanent custody, seeking the
modification of the temporary custody order to an order terminating parental rights and
awarding permanent custody of the children to LCCS. In their motion, LCCS asserted
that the children could not be placed with either of their parents or appellants within a
reasonable time or should not be so placed pursuant to R.C. 2151.414(B)(1)(a), and that
permanent custody was in the children’s best interests under R.C. 2151.414(D).
{¶ 12} While LCCS’s motion remained pending, on August 14, 2014, an amended
case plan was filed, adding appellants to the case plan. Through the amended case plan,
LCCS eventually provided services for appellants, including mental health assessments
4.
and parenting services. By the time of the dispositional hearing, appellants had either
completed, or were in the process of completing, their case plan services.
{¶ 13} Meanwhile, LCCS implemented case plan services for A.S., including a
diagnostic assessment, a parenting service, resource management, and domestic violence
services. Flowers stated that A.S. participated in case plan services from March 2014
until November 2014, at which time she relapsed on heroin. According to P.K.’s
testimony, A.S. started using drugs at an early age. P.K. also stated that she recently
ordered A.S. out of her home after she discovered that A.S. stole several items from the
home. When P.K. ordered A.S. to leave, A.S. pushed P.K. to the ground and punched her
twice in the head. During a prior custody proceeding, P.K. testified that she would no
longer allow A.S. back into the home. Despite her prior testimony, P.K. acknowledged
that she did allow A.S. to return to the home.
{¶ 14} After A.S.’s relapse, she began to miss appointments with her counselors
and failed to appear for drug screenings. Further, A.S. stopped contacting Flowers, and
has not seen the children since December 2014. At the hearing, Flowers stated that A.S.
has been incarcerated on three separate occasions since LCCS became involved in this
case.
{¶ 15} S.S. also participated in case plan services, although his participation was
delayed until the summer of 2014 as a result of his incarceration for theft. According to
Flowers, S.S.’s participation in case plan services ceased after A.S. relapsed in November
2014. Like A.S., S.S. stopped visiting the children in December 2014.
5.
{¶ 16} The dispositional hearing on LCCS’s motion for permanent custody took
place on April 14 and 27, 2015. A.S. and S.S. failed to appear at the dispositional
hearing, and their attorneys were unaware of their whereabouts, stating that they tried
several times to contact them to no avail. Consequently, the attorneys moved to
withdraw at the beginning of the hearing, and their motions were granted without
opposition.
{¶ 17} In its case-in-chief, LCCS called Flowers to testify regarding the
development of the case and the placement of the children with J.J. As to the children’s
placement, Flowers stated that the children interact positively with J.J. and are doing well
under her supervision. Additionally, Flowers stated that J.J. provides a stable, structured
environment for the children. Flowers also testified that J.J. would adopt the children if
LCCS was awarded permanent custody in this case.
{¶ 18} The children’s guardian ad litem, Alanna Paully, also testified at the
hearing. When questioned about returning the children to appellants, she voiced several
concerns. First, Paully was concerned about the safety of the children in light of the
incident in which Ni.S.’s leg was fractured. Second, Paully stated that she was concerned
that T.K. “is on a three-year no unsupervised contact via probation. And with four kids
under four in the home, I’m finding it hard to see how he is going to be supervised 24
hours a day.” Finally, Paully was troubled by the disparity between the “welcoming”
condition of the girls’ bedroom and the “bare” conditions of the boys’ bedroom.
6.
Ultimately, Paully determined that the children’s best interests would be served by a
grant of permanent custody to LCCS.1 In explaining the basis for her recommendation,
Paully stated the following, in part:
It’s first in their best interest to all remain together, and they’re in a
placement that can facilitate that. It’s also, I believe, in their best interest to
be able to visit with [their sister,] which this placement will allow to occur.
And it’s in their best interest that they’re in a safe, comfortable
environment which [J.J.] has provided.
{¶ 19} At the conclusion of the hearing, the juvenile court found that “the parents
and legal custodians have not demonstrated that they can make the changes necessary to
keep the children safe or provide an adequate, permanent home for the children.” The
court went on to state that “LCCS presented evidence that [appellants] were
overwhelmed within a few weeks of having the children placed with them. The pictures
of the home clearly demonstrate a dividedly sharp contrast between the boys’ room and
the girls’ room in the grandparents’ home.”
{¶ 20} In sum, the court found that appellants were not appropriate relatives for
the placement of the children, given the “unacceptable risk” involved in exposing the
children to further conflict between P.K. and A.S. Rather, the court determined that an
award of permanent custody to LCCS was warranted in light of the custodial history of
the children and the injuries sustained by Ni.S. while under appellants’ care.
1
Paully also testified that the children were incapable of expressing their wishes
regarding custody due to their ages and lack of understanding of the proceedings.
7.
Consequently, the court granted LCCS’s motion for permanent custody, thereby
terminating parental rights to the children. It is from this order that appellants now
appeal.
{¶ 21} Based upon the belief that no prejudicial error occurred below, appellants’
appointed counsel has filed a motion to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
{¶ 22} Anders and State v. Duncan, 57 Ohio App. 2d 93, 385 N.E.2d 323 (8th
Dist.1978), set forth the procedure to be followed by appointed counsel who desires to
withdraw for want of a meritorious, appealable issue. In Anders, the United States
Supreme Court held that 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, however, must be accompanied by
a brief identifying anything in the record that could arguably support the appeal. Id.
{¶ 23} Counsel must also furnish the client with a copy of the brief and request to
withdraw and allow the client sufficient time to raise additional matters. Id. Once these
requirements have been satisfied, the appellate court must then conduct a full
examination of the proceedings held below to determine if the appeal is indeed frivolous.
If the appellate court determines that 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 state law so requires. Id.
8.
B. Assignments of Error
{¶ 24} In her Anders brief, appellants’ counsel assigns the following potential
errors for our review:
Potential Assignment of Error 1: The trial court erred in finding that
Lucas County Children Services proved by clear and convincing evidence
that the parents herein failed continuously and repeatedly to substantially
remedy the conditions causing the children to be placed outside the
children’s home. R.,C. 2151.414(E)(1).
Potential Assignment of Error 2: The trial court erred in finding that
Lucas County Children Services proved by clear and convincing evidence
that maternal grandparents committed abuse, and that the seriousness,
nature, or likelihood of recurrence of the abuse makes the children’s
placement with the maternal grandparents a threat to the children’s safety.
R.C. 2151.414(E)(15).
Potential Assignment of Error 3: The trial court erred in finding that
a foster parent who uses marijuana on a regular basis is appropriate for
providing care for minor children adjudicated as abused, neglected or
dependent by the Lucas County Domestic Relations Court – Juvenile
Division, and placed in the temporary care of Lucas County Children
Services.
{¶ 25} Appellants have not filed a brief of their own.
9.
II. Analysis
{¶ 26} In order to terminate parental rights and award permanent custody of a
child to a public services agency under R.C. 2151.353(A)(4), the juvenile court must find,
by clear and convincing evidence, two things: (1) that the children cannot be placed with
one of their parents within a reasonable time or should not be placed with their parents
under R.C. 2151.414(E), and (2) that permanent custody is in the best interests of the
child under R.C. 2151.414(D)(1). Clear and convincing evidence is that which is
sufficient to produce in the mind of the trier of fact 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. It is more than a preponderance of the evidence,
but does not require proof beyond a reasonable doubt. Id.
{¶ 27} “A trial court’s determination 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, 03AP-1231, 2004-Ohio-3312, ¶ 28. In conducting a
review on manifest weight, the reviewing court “weighs the evidence and all reasonable
inferences, considers the credibility of the witnesses and determines whether in resolving
conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest
miscarriage of justice that the [judgment] must be reversed and a new trial ordered.”
State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997); Eastley v. Volkman,
132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. We recognize that, as the
10.
trier of fact, the trial court is in the best position to weigh the evidence and evaluate the
testimony. In re Brown, 98 Ohio App. 3d 337, 342, 648 N.E.2d 576 (3d Dist.1994).
Thus, “[I]n determining whether the judgment below is manifestly against the weight of
the evidence, every reasonable intendment and every reasonable presumption must be
made in favor of the judgment and the finding of facts.” Eastley at ¶ 21, quoting Seasons
Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, fn. 3, 461 N.E.2d 1273 (1984).
{¶ 28} In counsel’s first potential assignment of error, she argues that the trial
court erroneously found that A.S. and S.S. failed to substantially remedy the conditions
that led to the removal of the children under R.C. 2151.414(E)(1). We disagree.
{¶ 29} R.C. 2151.414(E)(1) provides,
(E) In determining at a hearing * * * whether a child cannot be
placed with either parent within a reasonable period of time or should not
be placed with the parents, the court shall consider all relevant evidence. If
the court determines, by clear and convincing evidence, * * * that one or
more of the following exist as to each of the child’s parents, 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:
(1) Following the placement of the child outside the child’s home
and 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
11.
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
{¶ 30} Here, the record establishes that A.S. was provided case plan services
including a diagnostic assessment, parenting services, resource management services, and
domestic violence services. In her testimony on this issue, Flowers stated that A.S.
initially participated in case plan services but failed to complete the services following
her relapse in November 2014. After the relapse, A.S. began to miss appointments with
her counselors and failed to appear for drug screenings. Further, A.S. stopped contacting
Flowers, and has not seen the children since December 2014.
{¶ 31} Concerning S.S., the record shows that LCCS offered him case plan
services, although his participation was delayed until the summer of 2014 as a result of
his incarceration for theft. According to Flowers’ testimony, S.S.’s participation in case
plan services also ended in November 2014, and S.S. stopped visiting the children in
December 2014.
{¶ 32} Given the unrefuted testimony of Flowers regarding A.S. and S.S.’s failure
to complete their case plan services, as well as the fact that the parents have relapsed on
12.
heroin, the issue that caused the children to be removed from the home in the first place,
we find that A.S. and S.S. failed to substantially remedy the conditions that led to the
removal of the children despite reasonable case planning designed to help them do so.
Consequently, counsel’s first potential assignment of error is not well-taken.
{¶ 33} In counsel’s second potential assignment of error, she contends that the
trial court erred in finding that appellants committed abuse, and that the seriousness,
nature, or likelihood of recurrence of such abuse makes the children’s placement with
appellants a threat to the children’s safety under R.C. 2151.414(E)(15).
{¶ 34} As noted above, the trial court, upon a finding that that one or more of the
factors outlined in R.C. 2151.414(E) exist as to each of the parents, shall enter a finding
that the children cannot be placed with either parent within a reasonable time or should
not be placed with either parent. Having found that the trial court’s conclusion with
regard to R.C. 2151.414(E)(1) was not against the manifest weight of the evidence, we
find that the trial court properly entered a finding that the children cannot be placed with
either parent within a reasonable time or should not be placed with either parent.
Nonetheless, we will proceed to address counsel’s argument under R.C.
2151.414(E)(15).2
2
Notably, our review of the juvenile court’s judgment entry reveals that the court did not
reference or rely upon R.C. 2151.414(E)(15) as a basis for granting LCCS’s motion for
permanent custody. Rather, the court cited R.C. 2151.414(E)(1), (2), (4), and (10) in
support of its finding that the children could be placed with either parent within a
reasonable time or should not be placed with either parent.
13.
{¶ 35} R.C. 2151.414(E)(15) directs the juvenile court to enter a finding that the
children cannot be placed with either parent within a reasonable time or should not be
placed with either parent in cases involving abuse or neglect where “the court determines
that the seriousness, nature, or likelihood of recurrence of the abuse or neglect makes the
child’s placement with the child’s parent a threat to the child’s safety.”
{¶ 36} In this case, counsel contends that the trial court erred in finding abuse
under R.C. 2151.414(E)(15). Specifically, counsel asserts that the incident in which T.K.
allegedly dropped Ni.S. while attempting to discipline him, causing his to suffer a
fractured tibia, was merely an accident and does not constitute abuse. However, our
review of the record reveals that several witnesses discredited P.K. and T.K.’s version of
the incident. In particular, LCCS’s medical expert, Dr. Randall Schlievert, testified that
the type of fracture suffered by Ni.S. was inconsistent with the explanation given by P.K.
and T.K. Indeed, Schlievert testified at length regarding the amount of force necessary to
cause a spiral-oblique fracture of the tibia. In his testimony, Schlievert stated that an
adult dropping a child of Ni.S.’s size while holding the child at chest height would not
“have the forces involved for a two year old’s leg to break in this manner.” According to
Schlievert, this type of fracture is caused “when the limb is used as the handle to grab a
child forcefully off the ground.” He also indicated that a spiral fracture could occur when
“children are thrown down and there is an added force.”
{¶ 37} Given the expert testimony outlined above, the conflicting versions of the
incident provided to detective Hahn by P.K. and T.K., and T.K.’s subsequent conviction
14.
for attempted child endangering, we find no merit to counsel’s proposed argument that
the incident was merely an accident. Thus, counsel’s second potential assignment of
error is not well-taken.
{¶ 38} Finally, counsel asserts, in her third potential assignment of error, that the
trial court erred in concluding that J.J. is an appropriate foster parent with whom the
children may be placed. Counsel challenges the children’s placement with J.J. on the
basis that she uses medical marijuana for which she has a prescription that is legal in the
state of Michigan where she resides. According to her testimony, J.J. uses marijuana to
treat migraine headaches. Flowers testified that J.J.’s use of marijuana was disclosed to
LCCS prior to receiving custody of the children. When asked at the hearing about how
often she uses marijuana, J.J. stated: “Sometimes once a month, sometimes not at all. It
just depends if I can get the headache before it gets too bad to where I get nauseous and
can’t eat from it.” She further stated that she has never used marijuana around the
children.
{¶ 39} Upon due consideration, we agree with counsel that the issue of the
children’s placement in foster care and whether J.J. is an appropriate foster parent is not
properly before us as we are reviewing the trial court’s grant of permanent custody to
LCCS. Thus, we find counsel’s third potential assignment of error not well-taken.
15.
III. Conclusion
{¶ 40} This court, as required under Anders, has undertaken our own examination
of the record to determine whether any issue of arguable merit is presented for appeal.
We have found none. Accordingly, we grant counsel’s motion to withdraw.
{¶ 41} The judgment of the Lucas County Court of Common Pleas, Juvenile
Division, is affirmed. Costs are hereby assessed to appellants in accordance with 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.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
16.