[Cite as In re K.J., 2012-Ohio-5237.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. W. Scott Gwin, P. J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
K.J. Case No. CT2012-0037
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
21130197
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 7, 2012
APPEARANCES:
For Appellant Mother For Appellee Children's Services
BRIAN W. BENBOW MOLLY MARTIN
604 Market Street ASSISTANT PROSECUTOR
Zanesville, Ohio 43701 22 North Fifth Street
Zanesville, Ohio 43701
Guardian ad Litem
JEANETTE M. MOLL
803B Market Street
Zanesville, Ohio 43701
Muskingum County, Case No. CT2012-0037 2
Wise, J.
{¶1} Appellant-Mother Heidi Schrack appeals from the May 9, 2012, judgment
of the Muskingum County Court of Common Pleas, Juvenile Division, finding her child
K.J. to be an abused, neglected, and dependent child and granting permanent custody
of the child to Appellee Muskingum County Children Services.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 18, 2011, Appellee Muskingum County Children's Services
(MCCS) filed a complaint for permanent custody of K.J., born December 18, 2011.
Mother of the child is Appellant, Heidi Schrack; father is Raymond Johnson.
{¶3} MCCS filed a complaint because KJ tested positive for cocaine at birth.
{¶4} Appellant-mother failed to be present at the permanent custody trial held
on March 6, 2012.
{¶5} The following facts were adduced from the record of the dispositional
hearing held on March 6, 2012.
{¶6} Appellant-mother has had three prior children permanently removed from
her custody. (T. at 7). Appellant admitted to using cocaine throughout her pregnancy
and as close as five days prior to K.J.’s birth. (Id.). K.J. tested positive for cocaine at
birth. (T. at 5-6). Appellant failed to complete an inpatient drug rehabilitation program.
(T. at 7, 14). Appellant-mother failed to maintain regular visitation with the child. (T. at
18). Appellant-mother used drugs on a previous visit at Children’s Services. (T. at 18).
The Guardian Ad Litem recommended permanent custody be granted to the agency. (T.
at 20).
Muskingum County, Case No. CT2012-0037 3
{¶7} By decision filed May 9, 2012, the trial court terminated parental rights and
granted permanent custody of the child to appellee.
{¶8} Appellant did not file objections to the decision.
{¶9} Counsel for Appellant has filed a motion to withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing denied (1967), 388 U.S.
924, indicating that the within appeal is wholly frivolous and setting forth one proposed
assignment of error. Appellant did not file a pro se brief alleging any additional
assignments of error.
{¶10} Counsel raises the following proposed Assignments of Error:
ASSIGNMENTS OF ERROR
{¶11} "I. THE TRIAL COURT'S JUDGMENT THAT THE MINOR CHILDREN'S
(SIC) 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.
{¶12} “II. MOTHER/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL PURSUANT TO STRICKLAND V. WASHINGTON, 466 U.S. 668, 80 L.
ED.2D 674, 104 S. CT. 2052.”
{¶13} The Anders court established five criteria which must be met before a
motion to withdraw by appellate counsel may be granted. The five criteria are: (1) a
showing that appellant's counsel thoroughly reviewed the transcript and record in the
case before determining the appeal to be frivolous; (2) a showing that a motion to
withdraw by appellant's counsel was filed; (3) the existence of a brief by appellant's
counsel raising any potential assignments of error that can be argued on appeal; (4) a
Muskingum County, Case No. CT2012-0037 4
showing that appellant's counsel provided a copy of the brief which was filed to the
appellant; and (5) a showing that appellant's counsel provided appellant adequate
opportunity to file a pro se brief raising any additional assignments of error appellant
believes the court should address. Anders at 744. The Anders court further explained
the following at 744:
[T]he court-not counsel-then proceeds, after a full examination of all
the proceedings, to decide whether the case is wholly frivolous. If it so
finds it may grant counsel's request to withdraw and dismiss the appeal
insofar as federal requirements are concerned, or proceed to a decision
on the merits, if state law so requires. On the other hand, if it finds any of
the legal points arguable on their merits (and therefore not frivolous) it
must, prior to decision, afford the indigent the assistance of counsel to
argue the appeal.
{¶14} Attorney Benbow complied with the procedures set forth in Anders. To
date, his client has not filed a pro se brief.
{¶15} We note in In the Matter of Diamond S., Guernsey App. No. 03-CA-24,
2004-Ohio-611, this Court extended the principles of Anders to cases involving the
termination of parental rights.
{¶16} We will now address the merits of Appellant's proposed Assignment of
Error.
I.
{¶17} Appellant argues the trial court's decision on best interests is against the
manifest weight and sufficiency of the evidence. We disagree.
Muskingum County, Case No. CT2012-0037 5
{¶18} A judgment supported by some competent, credible evidence will not be
reversed by a reviewing court as against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must
not substitute its judgment for that of the trial court where there exists some competent
and credible evidence supporting the judgment rendered by the trial court. Myers v.
Garson, 66 Ohio St.3d 610, 1993-Ohio-9.
{¶19} Furthermore, it is well-established " '[t]he discretion which the juvenile
court enjoys in determining whether an order of permanent custody is in the best
interest of a child should be accorded the utmost respect, given the nature of the
proceeding and the impact the court's determination will have on the lives of the parties
concerned.' " In re Mauzy Children (November 13, 2000), Stark App.No. 2000CA00244,
quoting In re Awkal (1994), 95 Ohio App.3d 309, 316.
{¶20} R.C. §2151.414(B)(1) enables a trial court to grant permanent custody if
the court determines by clear and convincing evidence that it is in the best interest of
the child. "Clear and convincing evidence" is "that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such
certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the
syllabus. Said statute states the following:
{¶21} "Except as provided in division (B)(2) of this section, the court may
grant permanent custody of a child to a movant if the court determines at the hearing
held pursuant to division (A) of this section, by clear and convincing evidence, that it is
Muskingum County, Case No. CT2012-0037 6
in the best interest of the child to grant permanent custody of the child to the agency
that filed the motion for permanent custody and that any of the following apply:
{¶22} "(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
time or should not be placed with the child's parents.
{¶23} "(b) The child is abandoned.
{¶24} "(c) The child is orphaned, and there are no relatives of the child who are
able to take permanent custody.
{¶25} "(d) 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 ***."
{¶26} R.C. §2151.414(D)(1) sets out the factors relevant to determining the best
interests of the child. Said section states relevant factors include, but are not limited to,
the following:
{¶27} "(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;
{¶28} "(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;
{¶29} "(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
Muskingum County, Case No. CT2012-0037 7
child placing agencies for twelve or more months of a consecutive twenty-two-month
period ***;
{¶30} "(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;
{¶31} "(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child."
{¶32} In its decision filed May 9, 2012, the trial court found the following in
pertinent part:
{¶33} “THE COURT FINDS By Clear and Convincing Evidence as Follows:
{¶34} “1. The minor child is found to be Abused, Neglected and Dependent
pursuant to Ohio Revised Code Sections 2151,031(D); 2151.03(A)(2); and 2151.04(13),
(C), and (D).
{¶35} “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
{¶36} “a. The mother has failed to make progress on her case plan over the last
three months.
{¶37} “b. Mother and minor child both tested positive for cocaine at the time of
the child's birth. Mother has not attempted substance abuse treatment.
{¶38} “c. Mother has demonstrated a lack of parental commitment by failing to
regularly visit the Child.
Muskingum County, Case No. CT2012-0037 8
{¶39} “d. The child is likely to suffer from neglect or abuse in the future if
returned to the Mother, based upon her failure to correct the problems underlying the
need for removal.
{¶40} “e. The mother has previously had other children permanently removed
from her custody.
{¶41} “3. Pursuant to Ohio Revised Code Section(s) 2151.414(B)(1) and (ID), 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:
{¶42} “a. The minor child has been in the Temporary Custody of MCCS from
shortly after birth through the date of the instant Entry. The child has been placed with
the same foster family since his release from the hospital shortly after birth.
{¶43} “b. The minor child is too young to express his wish(es) to the Guardian ad
litem. At the time of the hearing, the child was almost three months old,
{¶44} “c. The minor child does not have a bond to his mother or any other
biological relatives.
{¶45} “d. No relatives are available for placement.
{¶46} “e. The minor child is doing very well in his foster placement. His foster
family wants to adopt.
{¶47} “f. The child has bonded with his foster family.
{¶48} “g. The minor child needs a legally secure permanent placement, which
cannot be achieved without a grant of permanent custody to Muskingum County
Muskingum County, Case No. CT2012-0037 9
Children Services, the Court finding that it is unlikely that either parent will ever be able
to provide a legally secure placement.
{¶49} “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 2151.419, 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: prior and ongoing case management,
attempted case plan services, foster placement, resource and referrals.”
{¶50} The guardian ad litem, Jeanette Moll, filed a report wherein she opined the
best interests of the child would best be served with granting permanent custody to
Appellee.
{¶51} After independently reviewing the record, we agree with counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal
challenging the trial court's decision on best interests of the child.
{¶52} The proposed Assignment of Error is denied.
II.
{¶53} In the Second Proposed Assignment of Error, Appellant argues that she
was denied the effective assistance of counsel. We disagree.
{¶54} 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.
Muskingum County, Case No. CT2012-0037 10
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.
{¶55} The standard is set out in State v. Bradley (1989), 42 Ohio St.3d 136,
paragraphs two and three of the syllabus, certiorari denied (1990), 497 U.S. 1011.
Appellant must establish the following:
{¶56} “2. 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, 358 N.E.2d 623;
Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
followed.)
{¶57} “3. 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.”
{¶58} 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.
{¶59} We note Appellant's counsel was diligent in cross-examination and in
making objections.
Muskingum County, Case No. CT2012-0037 11
{¶60} After independently reviewing the record, we agree with counsel's
conclusion that no arguably meritorious claims exist upon which to base an ineffective
assistance of counsel argument.
{¶61} The proposed Assignment of Error is denied.
{¶62} 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.
{¶63} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 1011
Muskingum County, Case No. CT2012-0037 12
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGMENT ENTRY
:
K.J. : Case No. CT2012-0037
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Muskingum County, Ohio, is
affirmed.
Costs assessed to Appellant.
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JUDGES
In re K.J.
Combined Opinion