[Cite as In re J.L., 2014-Ohio-2684.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: J.L. AND H.H. : JUDGES:
:
: Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. CT2014-0010
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Juvenile
Division, Cases No. 21230136 and
21230137
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 11, 2014
APPEARANCES:
For Plaintiff-Appellant, J.S. For Defendant-Appellee
R. SCOTT PATTERSON MOLLY L. MARTIN
2609 Bell St. Assistant Prosecuting Attorney
Zanesville, OH 43701 Muskingum County Children's
Services
Guardian Ad Litem 22 North Fifth Street
VINCENT C. RUSSO Zanesville, OH 43701
44 So. 6th Street
P.O. Box 970
Zanesville, OH 43702
Muskingum County, Case No. CT2014-0010 2
Baldwin, J.
{¶1} Appellant J.S. appeals a judgment of the Muskingum County Common
Pleas Court, Juvenile Division, awarding appellee Muskingum County Children’s
Services permanent custody of her two children, J.L. and H.H.
STATEMENT OF FACTS AND CASE
{¶2} Appellant is the natural mother of J.L., born November 1, 2010, and H.H.,
born September 15, 2011. On October 12, 2012, a complaint was filed by appellee
alleging that the children were abused, neglected and dependent children. They were
placed in the shelter care of appellee, and were adjudicated neglected and dependent
on January 9, 2013.
{¶3} Appellant was given a case plan in November of 2012. Her objectives
included addressing substance abuse concerns, parenting skills, mental health issues,
obtaining housing, and securing legal employment. Mother failed to make substantial
progress on her case plan and a motion for permanent custody of the children was filed
on September 4, 2013.
{¶4} At the hearing, Laine Davis, the ongoing caseworker for appellee, testified
that appellee had involvement with appellant for two years prior to the filing of the
complaint in 2012. The instant complaint was precipitated by an alleged incident of
domestic violence between appellant and her own mother, for which appellant was
arrested. Zanesville police took the children into custody at the time of appellant’s
arrest. Appellant admitted at the time to an earlier arrest for prostitution. Ms. Davis
testified that appellant did not complete any aspect of the case plan.
Muskingum County, Case No. CT2014-0010 3
{¶5} Appellant attended an assessment at Muskingum Behavioral Health, but
was unsuccessfully discharged from the program. She scheduled two appointments for
a psychological evaluation but failed to appear for either appointment. A counselor from
Six County testified that appellant had received medication and counseling services
through Six County since 1996. Most recently she attended an assessment in 2012 in
which she was diagnosed with Bipolar I, polysubstance dependency, and borderline
personality disorder. She was to attend counseling and intensive therapy and take
prescribed medications. Appellant failed to appear for two medication appointments
and was discharged.
{¶6} As to substance abuse counseling, appellant completed an assessment at
Muskingum Behavioral Health but was discharged for lack of compliance. She tested
positive for marijuana and benzodiazepines, and admitted to using heroin. Appellant
told her caseworker that she did not intend to stop using marijuana.
{¶7} Appellant attended five of seven sessions of her anger management
group and was terminated for non-compliance. She did not begin parenting classes.
{¶8} Appellant attended 59 of 95 available visits with the children. Restrictions
were placed on the visits due to threats both appellant and her boyfriend made toward
caseworkers. Appellant was arrested on an outstanding warrant at her last visit with the
children.
{¶9} Appellant did not obtain independent housing or income, and resided with
her boyfriend. He was added to the case plan in February of 2013, and removed in July
of 2013 after an incident of domestic violence between him and appellant. Appellant’s
boyfriend did not complete any aspect of his case plan, and was heard by Ms. Davis
Muskingum County, Case No. CT2014-0010 4
making statements about shooting caseworkers in the lobby of the courthouse on the
morning of the permanent custody hearing.
{¶10} The children were placed in separate foster homes due to behavior
problems between them when placed together. H.H. was thriving in her foster home,
which was an adoptive placement. Although J.L. was in a non-adoptive foster
placement, an adoptive placement was available for him.
{¶11} The trial court found that the children could not be placed with appellant
within a reasonable time, and that permanent custody was in the best interest of the
children.
{¶12} R. Scott Patterson, appellant’s appellate counsel, has submitted a request
to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967), asserting that there are no meritorious issues for appeal. He served a copy
of the brief on appellant, who has not filed a pro se brief or any other response.
{¶13} Attorney Patterson sets forth two potential assignments of error for this
Court’s review:
{¶14} “I. THE TRIAL COURT’S JUDGMENT THAT GROUNDS EXISTED
JUSTIFYING AN AWARD OF PERMANENT CUSTODY TO MCCS WAS AGAINST
THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶15} “II. THE TRIAL COURT’S JUDGMENT THAT THE MINOR CHILDREN’S
BEST INTEREST WOULD BE SERVED BY GRANTING OF PERMANENT CUSTODY
TO MUSKINGUM COUNTY CHILDREN’S SERVICES WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
Muskingum County, Case No. CT2014-0010 5
{¶16} In Anders, supra, 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. 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.
{¶17} The procedures set out in Anders are applicable to appeals involving the
termination of parental rights. Morris v. Lucas County Children's Services Board, 49
Ohio App.3d 86, 550 N.E.2d 980 (1989). See also In the Matter of K.J., 5th Dist.
Muskingum No. CT2014-004, 2014-Ohio-2132; In the Matter of K.J., 5th Dist.
Muskingum No. CT2012-0037, 2012-Ohio-5237.
I.
{¶18} In the first proposed assignment of error, appellant argues that the trial
court’s finding that the children could not be placed with her within a reasonable time is
against the manifest weight of the evidence.
{¶19} A trial court's decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court has defined
“clear and convincing evidence” as “[t]he measure or degree of proof that will produce in
Muskingum County, Case No. CT2014-0010 6
the mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,
18 Ohio St.3d 361, 481 N.E.2d 613(1985).
{¶20} In reviewing whether the trial court based its decision upon clear and
convincing evidence, “a reviewing court will examine the record to determine whether
the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.”
State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990); See also, C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578(1978). If the trial
court's judgment is “supported by some competent, credible evidence going to all the
essential elements of the case,” a reviewing court may not reverse that judgment.
Schiebel, 55 Ohio St.3d at 74, 564 N.E.2d 54.
{¶21} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the
findings of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses
and the weight to be given the evidence are primarily for the trier of fact. As the court
explained in Seasons Coal Co. v. Cleveland,10 Ohio St.3d 77, 80, 461 N.E.2d
1273(1984):
{¶22} “The underlying rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the witnesses and
observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.”
Muskingum County, Case No. CT2014-0010 7
{¶23} Moreover, deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evident in the parties' demeanor and
attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d
415, 419, 674 N.E.2d 1159 (1997).
{¶24} Pursuant to 2151.414(B)(1), the court may grant permanent custody of a
child to the movant if the court determines “that it is in the best interest of the child to
grant permanent custody to the agency that filed the motion for permanent custody and
that any of the following apply:
{¶25} “(a) The 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,
... and the child cannot be placed with either of the child's parents within a reasonable
period of time or should not be placed with the child's parents.”
{¶26} Revised Code 2151.414(E) sets forth the factors a trial court must
consider in determining whether a child cannot or should not be placed with a parent
within a reasonable time. If the court finds, by clear and convincing evidence, the
existence of any one of the following factors, “the court shall enter a finding that the
child cannot be placed with [the] parent within a reasonable time or should not be
placed with either parent”:
{¶27} “(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 parent to remedy the problem that initially caused the child to be placed outside the
home, the parents have failed continuously and repeatedly to substantially remedy the
Muskingum County, Case No. CT2014-0010 8
conditions that caused the child to be placed outside the child's home. In determining
whether the parents have substantially remedied the 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.
{¶28} “(16) Any other factors the court considers relevant.”
{¶29} Appellee presented evidence at trial that appellant failed to complete any
aspect of her case plan. Laine Davis, the ongoing caseworker for appellee, testified
that appellee had involvement with appellant for two years prior to the filing of the
complaint in 2012. The complaint was precipitated by an alleged incident of domestic
violence between appellant and her own mother, for which appellant was arrested.
Zanesville police took the children into custody at the time of appellant’s arrest.
Appellant admitted at the time to an earlier arrest for prostitution.
{¶30} Appellant attended an assessment at Muskingum Behavioral Health, but
was unsuccessfully discharged from the program. She scheduled two appointments for
a psychological evaluation but failed to appear for either appointment. A counselor from
Six County testified that appellant had received medication and counseling services
through Six County since 1996. Most recently she attended an assessment in 2012 in
which she was diagnosed with Bipolar I, polysubstance dependency, and borderline
personality disorder. She was to attend counseling and intensive therapy, and take
prescribed medications. Appellant failed to appear for two medication appointments
and was discharged.
Muskingum County, Case No. CT2014-0010 9
{¶31} As to substance abuse counseling, appellant completed an assessment at
Muskingum Behavioral Health but was discharged for lack of compliance. She tested
positive for marijuana and benzodiazepines, and admitted to using heroin. Appellant
told her caseworker that she did not intend to stop using marijuana.
{¶32} Appellant attended five of seven sessions of her anger management
group and was terminated for non-compliance. She did not begin parenting classes.
{¶33} Appellant attended 59 of 95 available visits with the children. Restrictions
were placed on the visits due to threats both appellant and her boyfriend made toward
caseworkers. Appellant was arrested on an outstanding warrant at her last visit with the
children.
{¶34} Appellant did not obtain independent housing or income, and resided with
her boyfriend. He was added to the case plan in February of 2013, and removed in July
of 2013 after an incident of domestic violence between him and appellant. Appellant’s
boyfriend did not complete any aspect of his case plan, and was heard by Ms. Davis
making statements about shooting caseworkers in the lobby of the courthouse on the
morning of the permanent custody hearing.
{¶35} The court’s finding that the children could not be placed with appellant
within a reasonable period of time was not against the manifest weight or sufficiency of
the evidence. The first proposed assignment of error is overruled.
II.
{¶36} Appellant argues that the court’s finding that permanent custody was in
the best interest of the children is also against the manifest weight of the evidence.
Muskingum County, Case No. CT2014-0010 10
{¶37} 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
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.
{¶38} There was evidence that the children were bonded to appellant. However,
the children had been in the temporary custody of appellee since October 11, 2012.
Both children were under the age of two at this time. The children did not have a
relationship with any other relatives. H.H. was thriving in her foster placement, and this
was an adoptive placement. J.L. was in a non-adoptive foster placement, but an
adoptive placement was available for him. The court found that the children need a
secure permanent placement, and it is unlikely that the parents would ever be able to
provide a secure placement.
{¶39} The court’s finding that permanent custody was in the best interest of the
children was not against the manifest weight of the evidence. The second proposed
assignment of error is overruled.
Muskingum County, Case No. CT2014-0010 11
{¶40} 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. Costs
are assessed to appellant.
By: Baldwin, J.
Wise, P.J. and
Delaney, J. concur.