In re D.M.

[Cite as In re D.M., 2016-Ohio-1450.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY

IN THE MATTER OF: : CASE NO. 15CA22
:
D.M. : DECISION AND JUDGMENT
: ENTRY
:
: Released: 03/30/16
_____________________________________________________________
APPEARANCES:

Jorden M. Meadows, Logan, Ohio, for Appellant K.C.1

Laina Fetherolf, Hocking County Prosecutor, and Ann A. McDonough,
Assistant Hocking County Prosecutor, Logan, Ohio, for Appellee Hocking
County Children Services.2
_____________________________________________________________

McFarland, J.

{¶1} This is an appeal from a Hocking County Common Pleas Court,

Juvenile Division, judgment that awarded South Central Ohio Job and

Family Services (SCOJFS) permanent custody of D.M. Counsel for

Appellant, K.C. (the child’s mother), has advised this Court that counsel has

reviewed the record and can discern no meritorious issues to appeal.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, (1967),

counsel thus requests to withdraw from the case. Appellant's counsel has

suggested, however, that we independently review the record to determine

1
K.C. is the mother of D.M. D.M’s father, A.M., II, has not filed a brief and is not participating on appeal.
2
Appellee, Hocking County Children Services, has not filed a brief and is not participating on appeal.
Hocking App. No. 15CA22 2

whether any possible error exists. Counsel further suggests one potential

assignment of error, whether Appellant was denied the effective assistance

of counsel during the pendency of her case.

FACTS

{¶2} Appellant, K.C., is the mother of D.M., minor child at issue

herein, born on September 24, 2010. D.M.’s father is A.M., II. A complaint

for dependency was filed by Appellee, SCOJFS, on September 13, 2013.

The complaint alleged that on August 26, 2013, A.M., II wrecked his vehicle

into Scott’s Creek with his minor child and failed to report the accident. It

was later determined that the vehicle was actually submerged into the creek

with D.M. in his carseat. Apparently A.M., II had to dive under water and

remove D.M. No medical assistance was subsequently sought for the child.

A.M., II was arrested and admitted he had been drinking and smoking

marijuana the day of the accident. Appellant, K.C., was in treatment at the

Transitional Recovery Program in Chillicothe, Ohio at the time of accident.

D.M. was initially placed into the care and custody of his great grandmother,

however, she informed SCOJFS she could not keep D.M. in her home due to

his behaviors. The trial court found D.M. dependent on October 24, 2013,

which finding was journalized on October 29, 2013. D.M. was then placed
Hocking App. No. 15CA22 3

in the temporary custody of SCOJFS on November 18, 2013, and a case plan

was adopted on March 3, 2014.

{¶3} Appellant was released from treatment sometime in early 2014,

but left the area and went to Columbus to live. During this time until

approximately April or May of 2015, she had no contact with D.M. A

motion for permanent custody was filed by Appellee on February 5, 2015.

Appellant resumed visits with D.M. beginning on approximately April 13,

2015. Appellant had weekly supervised visits with D.M. until the permanent

custody hearing on August 21, 2015. A GAL report filed with the trial court

just prior to the permanent custody hearing recommended that permanent

custody be granted to Appellee.

{¶4} Appellee presented three witnesses in support of the motion for

permanent custody: Rebecca Carter, SCOJFS case worker; Doree Ireton,

GAL for the D.M.; and K.C. K.C. also testified on her own behalf at the

hearing. A.M., II had counsel present at the hearing, but requested that he

not be conveyed to court for the hearing, despite the fact that arrangements

had been made for him to be conveyed. Appellee presented evidence that

A.M., II had continued in his substance abuse, had been cited repeatedly for

OMVI, had failed to obtain treatment, had failed to work his case plan and
Hocking App. No. 15CA22 4

had had no contact with D.M. since the original incident, with the exception

of two unapproved and unsupervised visits facilitated by K.C.

{¶5} Appellee presented evidence that K.C. had re-engaged in

services and treatment after the motion for permanent custody was filed, had

resumed visits with D.M. and had consistently visited with D.M. after the

permanent custody motion was filed, and had been working her case plan.

Appellee also presented evidence, however, that Appellant went for a period

of approximately eleven months without contacting or visiting D.M., and

that K.C. had remained in contact with A.M., II despite treatment

recommendations and probation terms that she not, and that she was

currently pregnant with A.M., II’s child. There was also testimony that K.C.

was low functioning, and at times demonstrated poor choices and decision

making with respect to D.M. The guardian ad litem also filed a report and

testified at the hearing, recommending that permanent custody be granted to

Appellee.

{¶6} The trial court ultimately granted Appellee’s motion for

permanent custody by decision dated September 17, 2015. It is from this

order that Appellant brings her timely appeal.
Hocking App. No. 15CA22 5

ANDERS

{¶7} In Anders, the United States Supreme Court held that if counsel

determines, after a thorough and conscientious examination of the record,

that the case is wholly frivolous, counsel should so advise the court and

request permission to withdraw. Id. at 744. Furthermore, counsel must

accompany the request with a brief that identifies anything in the record that

could arguably support the appeal. Id. Counsel must also provide appellant

with a copy of the brief and allow the appellant sufficient time to raise any

matters that the appellant chooses. Id. Once these requirements have been

satisfied, the appellate court must fully examine the trial court proceedings

to determine if meritorious issues exist. Id. 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. Id. If,

however, the court finds the existence of meritorious issues, it must afford

the appellant assistance of counsel before deciding the merits of the case. Id.

{¶8} Although Anders arose in a criminal context, we have

previously determined that its procedures are appropriate in appeals

involving the termination of parental rights. In re L.E., 4th Dist. Scioto No.

15CA3692, 2015-Ohio-3762; In re N.S., 4th Dist. Hocking No. 14CA23,

2015-Ohio-1510, ¶ 19; In re J.K., 4th Dist. Athens No. 09CA20, 2009-Ohio-
Hocking App. No. 15CA22 6

5391, ¶¶ 15-17; citing In re B.F., 5th Dist. Licking No. 2009-CA-007, 2009-

Ohio-2978, ¶ 3; In re K.D., 9th Dist. Wayne No. 06CA0027, 2006-Ohio-

4730, ¶¶ 16-18; Morris v. Lucas Cty. Children Services Bd., 49 Ohio App.3d

86, 86-87, 550 N.E.2d 980 (6th Dist. 1989). But see In re J.M., 1st Dist.

Hamilton No. C-130643, 2013-Ohio-5896, ¶ 19 (holding that “the Anders

procedures are not appropriate in appeals from decisions terminating

parental rights or awarding legal custody”); Painter and Pollis, Ohio

Appellate Practice, Section 5:27 (2014), citing J.M.

{¶9} Accordingly, we will examine appointed counsel's potential

assignment of error and the entire record to determine if this appeal has any

possible merit.

STANDARD OF REVIEW

{¶10} Before we consider Appellant’s potential assignment of error,

we first review the record to determine whether any possible error exists

with respect to the trial court’s grant of permanent custody to SCOJFS. A

reviewing court generally will not disturb a trial court's permanent custody

decision unless the decision is against the manifest weight of the evidence.

In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re

R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
Hocking App. No. 15CA22 7

“ ‘Weight of the evidence concerns “the inclination of the

greater amount of credible evidence, offered in a trial, to

support one side of the issue rather than the other. It indicates

clearly to the jury that the party having the burden of proof will

be entitled to their verdict, if, on weighing the evidence in their

minds, they shall find the greater amount of credible evidence

sustains the issue which is to be established before them.

Weight is not a question of mathematics, but depends on its

effect in inducing belief.” ’ ” Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; quoting

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997); quoting Black's Law Dictionary 1594 (6th Ed. 1990).

{¶11} When an appellate court reviews whether a trial court's

permanent custody decision is against the manifest weight of the evidence,

the court “ ‘ “weighs the evidence and all reasonable inferences, considers

the credibility of witnesses and determines whether in resolving conflicts in

the evidence, the [finder 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.” ’ ” Eastley at ¶ 20; quoting Tewarson v. Simon, 141 Ohio

App.3d 103, 115, 750 N.E.2d 176 (9th Dist. 2001); quoting Thompkins at
Hocking App. No. 15CA22 8

387; quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist. 1983). Accord In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-

2208, ¶¶ 23-24.

{¶12} The question that we must resolve when reviewing a

permanent custody decision under the manifest weight of the evidence

standard is “whether the juvenile court's findings * * * were supported by

clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-

4825, 895 N.E.2d 809, ¶ 43. “Clear and convincing evidence” is:

“The measure or degree of proof that will produce in 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. It does not mean clear and unequivocal.” In re Estate of

Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23 (1986).

In determining whether a 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 (1990). Accord In re Holcomb, 18 Ohio St.3d 361, 368, 481
Hocking App. No. 15CA22 9

N.E.2d 613 (1985); citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954) (“Once the clear and convincing standard has been met to the

satisfaction of the [trial] court, the reviewing court must examine the record

and determine if the trier of fact had sufficient evidence before it to satisfy

this burden of proof.”). Accord In re Adoption of Lay, 25 Ohio St.3d 41, 42-

43, 495 N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163,

165, 492 N.E.2d 140 (1986) (stating that whether a fact has been “proven by

clear and convincing evidence in a particular case is a determination for the

[trial] court and will not be disturbed on appeal unless such determination is

against the manifest weight of the evidence”). Thus, if the children services

agency presented competent and credible evidence upon which the trier of

fact reasonably could have formed a firm belief that permanent custody is

warranted, then the court's decision is not against the manifest weight of the

evidence. In re R.M., 4th Dist. Athens Nos. 12CA43 and 12CA44, 2013-

Ohio-3588, ¶ 62; In re R.L., 2nd Dist. Greene Nos. 2012CA32 and

2012CA33, 2012-Ohio-6049, ¶ 17; quoting In re A .U., 2nd Dist.

Montgomery No. 22287, 2008-Ohio-187, ¶ 9 (“A reviewing court will not

overturn a court's grant of permanent custody to the state as being contrary

to the manifest weight of the evidence ‘if the record contains competent,
Hocking App. No. 15CA22 10

credible evidence by which the court could have formed a firm belief or

conviction that the essential statutory elements * * * have been

established.’ ”). Once the reviewing court finishes its examination, the court

may reverse the judgment only if it appears that the fact-finder, when

resolving the conflicts in evidence, “ ‘clearly lost its way and created such a

manifest miscarriage of justice that the [judgment] must be reversed and a

new trial ordered.’ ” Thompkins at 387; quoting State v. Martin, at 175. A

reviewing court should find a trial court's permanent custody decision

against the manifest weight of the evidence only in the “ ‘exceptional case in

which the evidence weighs heavily against the [decision].’ ” Id.; accord

State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).

{¶13} Furthermore, when reviewing evidence under the manifest

weight of the evidence standard, an appellate court generally must defer to

the fact-finder's credibility determinations. Eastley at ¶ 21. As the Eastley

court explained:

“ ‘[I]n determining whether the judgment below is manifestly

against the weight of the evidence, every reasonable intendment

must be made in favor of the judgment and the finding of facts.

***
Hocking App. No. 15CA22 11

If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is

consistent with the verdict and judgment, most favorable to

sustaining the verdict and judgment.’ ” Id.; quoting Seasons

Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate

Review, Section 60, at 191-192 (1978).

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). Accord In re Christian, 4th

Dist. Athens No. 04CA10, 2004-Ohio-3146, ¶ 7. As the Ohio Supreme

Court long-ago explained:

“In proceedings involving the custody and welfare of children

the power of the trial court to exercise discretion is peculiarly

important. The knowledge obtained through contact with and

observation of the parties and through independent

investigation cannot be conveyed to a reviewing court by

printed record.” Trickey v. Trickey, 158 Ohio St. 9, 13, 106

N.E.2d 772 (1952).
Hocking App. No. 15CA22 12

{¶14} Furthermore, unlike an ordinary civil proceeding in which a

jury has no contact with the parties before a trial, in a permanent custody

case a trial court judge may have significant contact with the parties before a

permanent custody motion is even filed. In such a situation, it is not

unreasonable to presume that the trial court judge had far more opportunities

to evaluate the credibility, demeanor, attitude, etc., of the parties than this

Court ever could from a mere reading of the permanent custody hearing

transcript.

PERMANENT CUSTODY PRINCIPLES

{¶15} A parent has a “fundamental liberty interest” in the care,

custody, and management of his or her child and an “essential” and “basic

civil right” to raise his or her children. Santosky v. Kramer, 455 U.S. 745,

753, 102 S.Ct. 1388 (1982); In re Murray, 52 Ohio St.3d 155, 156, 556

N.E.2d 1169 (1990); accord In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105,

862 N.E.2d 829. A parent's rights, however, are not absolute. D.A. at ¶ 11.

Rather, “ ‘it is plain that the natural rights of a parent * * * are always

subject to the ultimate welfare of the child, which is the pole star or

controlling principle to be observed.’ ” In re Cunningham, 59 Ohio St.2d

100, 106, 391 N.E.2d 1034 (1979); quoting In re R.J.C., 300 So.2d 54, 58
Hocking App. No. 15CA22 13

(Fla.App.1974). Thus, the state may terminate parental rights when a child's

best interest demands such termination. D.A. at ¶ 11.

{¶16} Before a court may award a children services agency

permanent custody of a child, R.C. 2151.414(A)(1) requires the court to hold

a hearing. The primary purpose of the hearing is to allow the court to

determine whether the child's best interests would be served by permanently

terminating the parental relationship and by awarding permanent custody to

the agency. R.C. 2151.414(A)(1). Additionally, when considering whether

to grant a children services agency permanent custody, a trial court should

consider the underlying principles of R.C. Chapter 2151:

“(A) To provide for the care, protection, and mental and

physical development of children * * *;

***

(B) To achieve the foregoing purpose[ ], whenever possible, in

a family environment, separating the child from its parents only

when necessary for his welfare or in the interests of public

safety.”

PERMANENT CUSTODY FRAMEWORK

{¶17} R.C. 2151.414(B)(1) permits a trial court to grant permanent

custody of a child to a children services agency if the court determines, by
Hocking App. No. 15CA22 14

clear and convincing evidence, that the child's best interest would be served

by the award of permanent custody and that:

“(a) The child is not abandoned or orphaned or 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 ending on or

after March 18, 1999, 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.

(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 ending on or after March 18, 1999.

(e) The child or another child in the custody of the parent or

parents from whose custody the child has been removed has

been adjudicated an abused, neglected, or dependent child on
Hocking App. No. 15CA22 15

three separate occasions by any court in this state or another

state.[3]”

Thus, before a trial court may award a children services agency permanent

custody, it must find (1) that one of the circumstances described in R.C.

2151.414(B)(1) applies, and (2) that awarding the children services agency

permanent custody would further the child's best interests. Here, the trial

court found that D.M. had been abandoned by both his mother and his

father, which would constitute a finding under R.C. 2151.414(B)(1)(b).

Because D.M.’s father, A.M., II, has not filed a brief and is not participating

on appeal, we limit our review to the trial court’s finding of abandonment

with respect to K.C. only.

{¶18} The trial court found that D.M. had been abandoned by K.C. in

that K.C. failed to visit or contact D.M. for more than ninety days. The trial

court, in its decision, stated that K.C. failed to visit or contact D.M. from

January of 2014 until May of 2015. SCOJFS case worker, Rebecca Carter,

testified that Appellant failed to visit or contact D.M. from May of 2014

until April 13, 2015, when visits resumed. The GAL report filed with the

court stated that Appellant did not visit or contact D.M. from July 16, 2014

until April of 2015, a period of approximately nine months. Appellant

3
R.C. 2151.414(B)(1)(e) became effective on September 17, 2014.
Hocking App. No. 15CA22 16

testified at the hearing also. When questioned why she had no contact with

D.M. from the fall of 2014 until roughly April of 2015 while she was living

in Columbus, Appellant answered “I don’t know.” Thus, though the specific

dates referenced by the witnesses and the GAL report are in conflict, by all

accounts Appellant went for more than ninety days without visiting or

contacting D.M. “ ‘For the purposes of this chapter, a child shall be

presumed abandoned when the parents of the child have failed to visit or

maintain contact with the child for more than ninety days, regardless of

whether the parents resume contact with the child after that period of ninety

days.’ ” In the Matter of Ethen Perry, 4th Dist. Vinton Nos. 06CA648 and

06CA649, 2006-Ohio-6128, ¶ 44. As such, the trial court’s finding that

Appellant abandoned D.M. is supported by competent, credible evidence in

the record.

{¶19} Before going on to the best interest analysis, the trial court

went on to make reasonable efforts findings. Although the trial court made a

reasonable efforts finding as to both parents, we conclude that because there

was a finding of abandonment, it was not required to make reasonable

efforts determinations. First, “[b]y its terms, R.C. 2151.419 applies only at

* * * adjudicatory, emergency, detention, and temporary-disposition

hearings, and dispositional hearings for abused, neglected, or dependent
Hocking App. No. 15CA22 17

children, all of which occur prior to a decision transferring permanent

custody to the state. The statute makes no reference to a hearing on a

motion for permanent custody. Therefore, ‘[b]y its plain terms, the statute

does not apply to motions for permanent custody brought pursuant to R.C.

2151.413, or to hearings held on such motions pursuant to R.C. 2151.414.’ ”

In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 41;

quoting In re A.C., 12th Dist. Clermont No. CA2004-05-041, 2004-Ohio-

5531, ¶ 30. Here, the record reflects that the trial court made a reasonable

efforts finding by entry dated September 30, 2014, prior to the filing of the

motion for permanent custody and thus did not need to address reasonable

efforts at the permanent custody hearing.

{¶20} Further, because the trial court found that D.M. had been

abandoned, it was not required to find that the agency had to make

reasonable efforts. In Perry, supra, at ¶ 45, this Court found that when an

abandonment finding is made, a trial court is obligated, under R.C.

2151.419(A)(2)(d), “to find that the agency did not have to make reasonable

efforts * * *.” Here, the trial court made reasonable efforts findings despite

the fact that it was not required to do so, and despite the fact that under

Perry, it was obligated to find that such findings were not required.
Hocking App. No. 15CA22 18

Although the trial court technically erred in this regard, we find such error to

be harmless.

{¶21} Having determined that the trial court properly found D.M. had

been abandoned by both parents, and in particular his mother, Appellant

herein, we now turn our attention to the trial court’s best interest analysis.

Specifically, we must determine whether the trial court's best interest finding

is against the manifest weight of the evidence.

{¶22} R.C. 2151.414(D) requires a trial court to consider specific

factors to determine whether a child's best interest will be served by granting

a children services agency permanent custody. The factors include: (1) the

child's interaction and interrelationship 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 child's wishes, as expressed

directly by the child or through the child's guardian ad litem, with due regard

for the child's maturity; (3) the child's custodial history; (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 to the agency; and (5)

whether any factors listed under R.C. 2151.414(E)(7) to (11) apply.4

4
R.C. 2151.414(E)(7) to (11) states:
“(7) The parent has been convicted of or pleaded guilty to one of the following:
(a) An offense under section 2903.01, 2903.02, or 2903.03 of the Revised Code or under an existing or
former law of this state, any other state, or the United States that is substantially equivalent to an offense
Hocking App. No. 15CA22 19

{¶23} In the case at bar, a review of the trial court’s decision

indicates that appropriate best interest findings were made by the trial court

and that such findings are supported by competent, credible evidence in the

record. With respect to the child’s interactions and interrelationships, the

trial court found D.M. had been abandoned by both parents. The trial court

also found that D.M. acted the same way with his mother as he did with

anyone else who visited him, and that he had a relationship with his half-

described in those sections and the victim of the offense was a sibling of the child or the victim was another
child who lived in the parent's household at the time of the offense;
(b) An offense under section 2903.11, 2903.12, or 2903.13 of the Revised Code or under an existing or
former law of this state, any other state, or the United States that is substantially equivalent to an offense
described in those sections and the victim of the offense is the child, a sibling of the child, or another child
who lived in the parent's household at the time of the offense;
(c) An offense under division (B)(2) of section 2919.22 of the Revised Code or under an existing or former
law of this state, any other state, or the United States that is substantially equivalent to the offense
described in that section and the child, a sibling of the child, or another child who lived in the parent's
household at the time of the offense is the victim of the offense;
(d) An offense under section 2907.02, 2907.03, 2907.04, 2907.05, or 2907.06 of the Revised Code or under
an existing or former law of this state, any other state, or the United States that is substantially equivalent to
an offense described in those sections and the victim of the offense is the child, a sibling of the child, or
another child who lived in the parent's household at the time of the offense;
(e) An offense under section 2905.32, 2907.21, or 2907.22 of the Revised Code or under an existing or
former law of this state, any other state, or the United States that is substantially equivalent to the offense
described in that section and the victim of the offense is the child, a sibling of the child, or another child
who lived in the parent's household at the time of the offense;
(f) A conspiracy or attempt to commit, or complicity in committing, an offense described in division
(E)(7)(a), (d), or (e) of this section.
(8) The parent has repeatedly withheld medical treatment or food from the child when the parent has the
means to provide the treatment or food, and, in the case of withheld medical treatment, the parent withheld
it for a purpose other than to treat the physical or mental illness or defect of the child by spiritual means
through prayer alone in accordance with the tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two or more times due to alcohol or drug
abuse and has rejected treatment two or more times or refused to participate in further treatment two or
more times after a case plan issued pursuant to section 2151.412 of the Revised Code requiring treatment of
the parent 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 parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated with respect to a sibling of the child
pursuant to this section or section 2151.353 or 2151.415 of the Revised Code, or under an existing or
former law of this state, any other state, or the United States that is substantially equivalent to those
sections, and the parent has failed to provide clear and convincing evidence to prove that, notwithstanding
the prior termination, the parent can provide a legally secure permanent placement and adequate care for
the health, welfare, and safety of the child.”
Hocking App. No. 15CA22 20

brother, A.M., who was currently placed in the same foster-to-adopt home as

he was.

{¶24} With respect to the child’s wishes, the trial court found that

D.M. was only four years old, was confused and that his wishes were

unclear. The trial court noted that the child had expressed conflicting desires

to live with Appellant and also to live with his foster parents. Regarding the

child’s custodial history, the trial court found that D.M. had been in some

form of custody of SCOJFS since September of 2013, where he had

remained since that time. Elsewhere in its decision, the trial court found that

D.M. was in his fifth home in his four years of life, and that he was currently

placed in a foster-to-adopt home. Regarding the child’s need for a legally

secure placement, the trial court found that D.M. was in need of a legally

secure placement, which the court was concerned Appellant could not

provide in light of her continued involvement with D.M.’s father, especially

considering Appellant was then again pregnant with A.M., II’s child.

Elsewhere in its decision the trial court found that a legally secure

permanent placement could not be achieved without granting permanent

custody to SCOJFS. We note that the GAL report filed just prior to the

permanent custody hearing also recommended that permanent custody be

granted to the agency.
Hocking App. No. 15CA22 21

{¶25} The trial court further found the following R.C. 2151.414(E)

factors applied: (9) finding that Appellant had left drug treatment for over a

year and then returned, only to continue to maintain a relationship with

A.M., II, thus failing to comply with her drug treatment recommendations

and probation terms. Although not found by the court at this juncture, the

record also indicates that Appellant took D.M. to see A.M. twice without

approval to do so after the case plan was issued; and (10) finding that

Appellant had abandoned D.M. under R.C. 2151.011(C), which provides

that abandonment occurs when a parent fails to visit or maintain contact with

the child for more than 90 days. As set forth above, although there are some

discrepancies between the dates of abandonment found by the trial court, as

compared to the GAL report and the testimony of Rebecca Carter, by all

accounts Appellant’s failure to visit or contact D.M. far exceeded 90 days.

{¶26} Thus, it appears from our review of the trial court’s decision

that the necessary best interest factors were taken into consideration by the

trial court and appear to weigh in favor of a grant of permanent custody to

SCOJFS. Further, the best interest findings set forth by the trial court in its

decision are supported by competent, credible evidence in the record, and

thus are not against the manifest weight of the evidence. In light of the
Hocking App. No. 15CA22 22

foregoing we find no error with respect to the trial court’s decision to award

permanent custody to SCOJFS.

{¶27} We next consider Appellant’s potential assignment of error,

whether Appellant was denied the effective assistance of counsel during the

pendency of her case. Appellant’s counsel suggests no particular deficiency

or error with respect to Appellant’s trial counsel’s representation of

Appellant below. The right to counsel, guaranteed in permanent custody

proceedings by R.C. 2151.352 and by Juv.R. 4, includes the right to the

effective assistance of counsel. In re Wingo, 143 Ohio App.3d 652, 666, 758

N.E.2d 780 (4th Dist. 2001), citing In re Heston, 129 Ohio App.3d 825, 827,

719 N.E.2d 93 (1st Dist. 1998). “ ‘Where the proceeding contemplates the

loss of parents’ ‘essential’ and ‘basic’ civil rights to raise their children,

* * * the test for ineffective assistance of counsel used in criminal cases is

equally applicable to actions seeking to force the permanent, involuntary

termination of parental custody.’ ” Id., quoting Heston.

{¶28} To reverse a trial court's judgment based upon a claim of

ineffective assistance, a defendant must show, first, that counsel's

performance was deficient and, second, that the deficient performance

prejudiced the defense so as to deprive the defendant of a fair trial.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, (1984); State
Hocking App. No. 15CA22 23

v. Noling, 98 Ohio St.3d 44, 65, 781 N.E.2d 88 (2002); State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989). Both prongs of this test need not be

analyzed, however, if a claim can be resolved under one prong. State v.

Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v. Loza, 71

Ohio St.3d 61, 83, 641 N.E.2d 1082 (1994).

{¶29} Counsel's performance may be found to be deficient if counsel

“made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland at 687;

Bradley, paragraph two of the syllabus (stating that counsel's performance is

deficient if it falls below an objective standard of reasonable representation);

State v. Peeples, 94 Ohio App.3d 34, 44, 640 N.E.2d 208 (1994) (stating that

counsel's performance is deficient if it “raise[s] compelling questions

concerning the integrity of the adversarial process”). To establish prejudice,

“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.” Bradley, paragraph two of the syllabus; Strickland, 466 U.S. at

687; Noling; Bradley, paragraph three of the syllabus (“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.”).
Hocking App. No. 15CA22 24

When an appellate court considers an ineffective assistance of counsel claim,

the court “ ‘will not presume prejudice but will require an affirmative

showing thereof.’ ” In re Z.S., 4th Dist. Lawrence No. 10CA16, 2010-Ohio-

5038, ¶ 35; quoting Matter of Shelton, 4th Dist. Highland No. 818, 1993 WL

79282 (Mar. 16, 1993).

{¶30} Based upon our review of the record, and in light of our

determination that the trial court’s decision to grant permanent custody of

D.M. to SCOJFS was supported by competent, credible evidence in the

record, we find no obvious error by Appellant’s trial counsel. The only

arguable concern that we notice, which we address in an abundance of

caution, is the trial court’s failure to appoint independent counsel for the

child. The record reflects that while the child had a guardian ad litem

appointed, he did not have appointed counsel. However, based upon the

case law and our analysis below, we find no error in the trial court’s decision

not to appoint counsel for D.M., and thus cannot conclude that Appellant’s

trial counsel provided ineffective assistance by failing to raise the issue at

the trial court level.

{¶31} “[A] child who is the subject of a juvenile court proceeding to

terminate parental rights is a party to that proceeding and, therefore, is

entitled to independent counsel in certain circumstances.” In re Williams,
Hocking App. No. 15CA22 25

101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1100, syllabus, citing

R.C. 2151.352, Juv.R. 4(A), and Juv.R. 2(Y); accord In re C.B., 129 Ohio

St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398. Thus, a child is not entitled to

independent counsel in all juvenile court proceedings involving the

termination of parental rights. Instead, a child is entitled to independent

counsel in a termination of parental rights proceeding only when “certain

circumstances” exist. The Williams court did not explicitly state what those

“circumstances” are, but it offered the following guidance for juvenile courts

to follow when ascertaining if “certain circumstances” exist: “[C]ourts

should make a determination, on a case-by-case basis, whether the child

actually needs independent counsel, taking into account the maturity of the

child and the possibility of the guardian ad litem being appointed to

represent the child.” Id. at ¶ 17. Furthermore, a juvenile court must appoint

independent counsel for a child “when a guardian ad litem who is also

appointed as the juvenile's attorney recommends a disposition that conflicts

with the juvenile's wishes.” Id. at ¶ 18; accord C.B. at ¶ 17.

{¶32} “Generally, the appointment of independent counsel is

warranted when a child has ‘repeatedly expressed a desire’ to remain or be

reunited with a parent but the child's guardian ad litem believes it is in the

child's best interest that permanent custody of the child be granted to the
Hocking App. No. 15CA22 26

state.” In re Hilyard, 4th Dist. Vinton Nos. 05CA600 through 05CA609,

2006-Ohio-1965, ¶ 36 (footnotes omitted) (emphasis sic). When a child

lacks the maturity to express his or her wishes and nothing otherwise

indicates that the child's wishes conflict with the guardian ad litem, then a

juvenile court need not appoint counsel for the child. In re L.W., 9th Dist.

Summit Nos. 26861 and 26871, 2013-Ohio-5556, ¶ 20 (child two years old

when children services agency initiated proceedings and unable to

communicate wishes).

{¶33} In the case at bar, nothing in the record indicates that the child

ever expressed any desire that conflicted with the guardian ad litem's

recommendation. The child was only four years old at the time of the

permanent custody hearing, and the trial court correctly found that the child

was confused and that his wishes were unclear. Moreover, as another court

recognized, when a child is “unable to express a position regarding custody

or to assist an attorney in pursuing a particular course of action,” an attorney

would be able to advocate only what the attorney believed to be in the child's

best interests. In re T.J., 2nd Dist. Montgomery No. 23032, 2009-Ohio-

1290, ¶ 10. However, a guardian ad litem also recommends what he or she

believes is in the child's best interests. Thus, an attorney appointed for a

child unable to express his or her wishes would fulfill the same duty that the
Hocking App. No. 15CA22 27

guardian ad litem already fulfills. As a result, in this situation, any error in

failing to appoint counsel for the child would be harmless. Id., citing In re

A.S., 10th Dist. Franklin No. 05AP-351, 05AP-352, 2005-Ohio-5492, ¶ 10.

Here, the trial court noted in its permanent custody decision that, based upon

its prior in camera interview of D.M., the child was “too immature and

unable to understand the issues at hand and therefore unable to assist counsel

in representing him and expressing his opinions.” As such, the trial court

determined to proceed with the permanent custody motion without

appointing counsel for D.M.

{¶34} Thus, we conclude the trial court’s decision not to appoint

D.M. independent counsel was reasonable and did not constitute error. As

such, we agree with Appellant’s counsel’s assessment that this is not a

meritorious issue for review. Accordingly, and based upon the foregoing,

we do not believe that any meritorious issues to appeal exist. Therefore, we

grant counsel’s request to withdraw, find this appeal wholly frivolous, and

affirm the trial court’s judgment.

JUDGMENT AFFIRMED.
Hocking App. No. 15CA22 28

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.

Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.

For the Court,

BY: ______________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.