In re H.W.

[Cite as In re H.W., 2018-Ohio-523.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY

In re H.W. Court of Appeals Nos. S-17-043
S-17-046

Trial Court No. 21530145

DECISION AND JUDGMENT

Decided: February 9, 2018

*****

Brett A. Klimkowsky, for appellant, C.C.

Sarah A. Nation, for appellant, K.W.

Nancy E. Haley, for appellee.

*****

SINGER, J.

{¶ 1} This is an appeal from the September 13, 2017 judgment of the Sandusky

County Court of Common Pleas, Juvenile Division, which terminated the parental rights

of appellant, C.C., mother of H.W. (“mother”), and appellant, K.W., father of H.W.
(“father”), and granted permanent custody of the child to appellee, Sandusky County

Department of Job and Family Services. For the reasons that follow, we affirm the

judgment.

{¶ 2} Mother and father filed separate appeals; the appeals were consolidated.

Mother’s appointed counsel filed a brief in accordance with Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and did not set forth any potential

assignments of error. Father set forth three assignments of error in his brief:

I. The trial court erred in denying appellant’s request for

continuance.

II. Appellant was not afforded effective assistance of counsel.

III. The trial court erred in granting permanent custody of H.W. to

the Sandusky County Department of Job and Family Services as it was

against the manifest weight of the evidence.

Background

{¶ 3} Mother and father, who are not married, are the parents of H.W., who was

born in June 2015. Mother has given birth to a total of four children, although only

H.W., the youngest child, was the subject of the permanent custody proceeding in the

Sandusky County Court of Common Pleas, Juvenile Division. None of mother’s three

older children reside with her, as one child was placed in his dad’s legal custody, another

child was placed with mother’s relatives and appellee was granted permanent custody of

the other child.

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 {¶ 4} When H.W. was born, he tested positive for cocaine, opiates and marijuana.

Mother was addicted to drugs, as was father. Appellee received a referral regarding H.W.

due to the drugs in his system. H.W. was hospitalized for approximately one month after

he was born and underwent methadone treatment to ease his withdrawal symptoms.

{¶ 5} On July 15, 2015, appellee requested and was granted temporary custody of

H.W. since there was no suitable placement options for H.W. After H.W. was released

from the hospital, he was placed in a foster home. Meanwhile, mother and father sought

inpatient drug treatment, but by the end of July 2015, both had left the treatment facility.

{¶ 6} Mother and father visited with H.W. on August 3, 2015. Mother and father

were scheduled to visit with H.W. on August 10, 2015, but had to visit the baby

separately due to the couple’s arguing during previous visits. Neither parent appeared for

the August 10, 2015 visit, although H.W. had been transported to the agency in

anticipation of the visit.

{¶ 7} On August 21, 2015 mother was arrested and jailed for nonsupport. On

August 24, 2015, the adjudicatory hearing was held. Mother was transported from the

jail and attended the hearing. Father did not attend the hearing. H.W. was adjudicated a

neglected and dependent child. H.W. remained in appellee’s temporary custody.

{¶ 8} On September 23, 2015, the dispositional hearing was held. Temporary

custody of H.W. was granted to appellee and a case plan for mother and father was

approved.

{¶ 9} On March 31, 2017, appellee filed its motion requesting modification of

temporary custody of H.W. to permanent custody.

3.
 {¶ 10} On July 12, 2017, father requested the permanent custody hearing be

continued; the request was denied.

{¶ 11} On July 13, 2017, the court held the permanent custody hearing.

{¶ 12} On September 13, 2017, the trial court issued its findings of fact,

conclusions of law and judgment entry in which it granted permanent custody of H.W. to

appellee.

July 13, 2017 Permanent Custody Hearing

{¶ 13} Mother and father appeared almost two hours late for the hearing. Mother

left shortly after she arrived because she was under the influence of some substance.

Mother’s appointed counsel remained at the hearing.

{¶ 14} Father, via counsel, indicated that he desired to consent to appellee’s

motion for permanent custody of H.W. Father was sworn and was thoroughly advised of

his rights and the consequences of consenting to the granting of appellee’s motion for

permanent custody of H.W. Father was questioned about his educational background, his

sobriety and his ability to understand the purpose of the court hearing; father answered

appropriately. Father acknowledged, among other things, that he had had been

represented by counsel, he was happy with counsel, he had a chance to review the

paperwork from the case with counsel and counsel satisfactorily answered all of father’s

questions. Father recognized he was consenting to H.W. being placed in appellee’s

permanent custody, and that his relationship with H.W. would end. Father indicated he

was waiving his parental rights without any threats or promises by anyone. Father

understood he was waiving his right to a trial where appellee would be required to prove

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its case. Father agreed that permanent custody was in H.W.’s best interest. Thereafter,

father knowingly, intelligently and voluntarily consented to H.W.’s placement in

appellee’s permanent custody. The court also explained to father that appellee’s plan for

H.W. would be to place H.W. for adoption. Father acknowledged adoption was in

H.W.’s best interest. Father and his counsel left the hearing, as father indicated to the

court that father preferred for his counsel to leave.

{¶ 15} Appellee then called three witnesses to testify at the permanent custody

hearing. The relevant testimony is summarized below.

Child Support Worker

{¶ 16} Cassandra Walter, who worked for Sandusky County Child Support,

testified that on September 24, 2015, a child support order was issued requiring mother to

pay $50 a month for H.W.’s support. On February 1, 2016, the child support order was

increased to $203.60 a month. Walter stated mother never made any payments for

H.W.’s support.

Caseworker Angela Wheeler

{¶ 17} Angela Wheeler, an on-going caseworker for appellee, testified to the

following. She learned during a previous case where mother lost custody of another child

that mother was schizophrenic. Wheeler was assigned to H.W.’s case in May of 2016,

although Shelbi Meyer was the original caseworker assigned to H.W.’s case in June

2015. Wheeler received and reviewed Meyer’s case file. The case file indicated mother

voluntarily started inpatient drug treatment on June 18, 2015, but unsuccessfully left on

July 30, 2015. Appellee took custody of H.W. on July 15, 2015. A case plan was

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completed for mother in August 2015, for services including alcohol and drug treatment.

Mother’s last visit with H.W. was on August 3, 2015. After August 2015, the only

contact appellee had with mother was when mother was incarcerated. Mother completed

no case plan services and was removed from case plan services in March 2016.

{¶ 18} When H.W. was born, he was addicted to three different drugs and was

extremely ill. H.W. was in the hospital for a month before he could go to a foster home.

H.W. had tremors until he was about a year old. In October 2016, H.W. changed foster

homes.

{¶ 19} Wheeler stated appellee would not consider mother to be a safe placement

for H.W. Wheeler noted mother does not have any of her children in her care. Wheeler

opined H.W. would not know his mother since he had not seen her since August 2015.

CASA/GAL

{¶ 20} Miranda Magers testified she is a volunteer for Court Appointed Special

Advocate (“CASA”) and the guardian ad litem (“GAL”) appointed to represent H.W. in

July 2015. Magers undertook an investigation and prepared a report, filed June 30, 2017.

Magers testified she spoke with mother in July 2015, at the first hearing, and thereafter

spoke with mother at court. Magers noted mother is actively involved in drug use and

has no intention of stopping as mother likes using drugs. Magers was concerned that

mother could not take care of H.W. while using drugs. At the time of the permanent

custody hearing, mother had not seen H.W. for 673 days.

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 {¶ 21} Magers observed H.W. and stated he is doing very well, and it appears he

has overcome the issues he had with being born drug-addicted. Magers recommended

that appellee receive permanent custody of H.W., as that would be in H.W.’s best

interest.

Trial Court’s Decision

{¶ 22} On September 13, 2017, the trial court issued its findings of fact,

conclusions of law and judgment entry in which it ordered permanent custody of H.W. to

appellee. The court made the following findings, by clear and convincing evidence:

mother and father legally abandoned H.W.; H.W. could not be placed with either parent

within a reasonable period of time and should not be placed with either parent; father

knowingly, voluntarily and intelligently waived his parental rights to H.W. and consented

to H.W.’s placement in appellee’s permanent custody, as it was in H.W.’s best interest;

both parents failed to make H.W. a priority; and, appellee made reasonable efforts to

reunify the family.

{¶ 23} The trial court concluded H.W. has been in the temporary custody of

appellee for more than 12 months of 22 consecutive months. The court further concluded

H.W. cannot be placed with either parent within a reasonable period of time, and should

not be placed with either parent. The court concluded father knowingly, voluntarily and

intelligently waived his rights and consented to H.W.’s placement in appellee’s

permanent custody. The court also concluded the permanent placement of H.W. in

appellee’s custody is clearly in H.W.’s best interest. In addition, the court concluded

appellee made reasonable efforts for H.W. to return home, which efforts were

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unsuccessful. Lastly, the court concluded appellee made reasonable efforts to establish a

permanency plan for H.W. for the child’s placement in appellee’s permanent custody

with the goal of finding an appropriate adoptive family for H.W.

Mother’s Appeal

{¶ 24} On December 4, 2017, mother’s appointed counsel filed a request to

withdraw pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Counsel

asserted that after reviewing the court file, including the transcript of proceedings, no

error prejudicial to mother could be argued.

{¶ 25} The procedure to be followed by appointed counsel who desires to

withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as

State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the

United States Supreme Court found if counsel, after a conscientious examination of the

case, determines it to be wholly frivolous, counsel should so advise the court and request

permission to withdraw. Anders at 744. This request must be accompanied by a brief.

Id. In addition, counsel must furnish the client with a copy of the brief and request to

withdraw and allow the client sufficient time to raise any matters the client so chooses.

Id. Once these requirements have been fulfilled, the appellate court must conduct a full

examination of the proceedings held below to decide if the appeal is indeed frivolous. Id.

If the appellate court determines the appeal is frivolous, it may grant counsel’s request to

withdraw and dismiss the appeal without violating constitutional requirements, or it may

proceed to a decision on the merits if required by state law. Id.

8.
 {¶ 26} Here, mother’s appointed counsel satisfied the requirements set forth in

Anders. We observe mother has not filed a pro se brief or otherwise responded to

counsel’s request to withdraw. Accordingly, we shall proceed with an examination of the

entire record below to determine if this appeal lacks merit and is, therefore, wholly

frivolous.

{¶ 27} Our review of the record does not disclose any errors by the trial court

which would justify a reversal of the judgment. The record is replete with evidence

concerning mother’s drug addiction, her lack of commitment to and concern for H.W.,

her unwillingness to make H.W. a priority and her failure to participate in case plan

services. We therefore find mother’s appeal to be wholly frivolous, and counsel’s request

to withdraw is found well-taken and is granted.

Father’s Appeal

First Assignment of Error

{¶ 28} Father argues the trial court erred in denying his request for a continuance

of the July 13, 2017 hearing. Father contends he sought a continuance for the following

reasons: H.W.’s former foster parents filed a petition for adoption in probate court on

July 11, 2017; one of father’s witnesses was unavailable to appear at the hearing; and

father had a court date for a felony charge on July 13, 2017.

{¶ 29} “The grant or denial of a continuance is a matter which is entrusted to the

broad, sound discretion of the trial judge. An appellate court must not reverse the denial

of a continuance unless there has been an abuse of discretion.” State v. Unger, 67 Ohio

St.2d 65, 67, 423 N.E.2d 1078 (1981). An abuse of discretion is “more than an error of

9.
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶ 30} Here, the record shows father’s request for continuance was filed on July

12, 2017, the day before the permanent custody hearing. On that same day, the trial court

denied father’s request. The court noted that the July 13, 2017 hearing had been

scheduled since May 23, 2017, after the court had consulted with five attorneys’

schedules. The court observed notice of the hearing had been served on all parties and a

court reporter was ordered. The court further noted father’s felony court date was

scheduled a week earlier, but at the review hearing held on July 10, 2017, which father’s

counsel attended, no mention was made regarding a scheduling conflict. In addition, the

court found the filing of a petition for adoption does not divest the juvenile court of

jurisdiction.

{¶ 31} Upon review of the record, we find no basis for concluding that the trial

court’s denial of father’s request for a continuance was improper or an abuse of

discretion. Accordingly, father’s first assignment of error is not well-taken.

Second Assignment of Error

{¶ 32} Father asserts he was not afforded effective assistance of counsel because

counsel advised father that one of father’s witnesses was not available to attend the

permanent custody hearing. In addition, father claims the trial court docket shows his

counsel failed to subpoena witnesses for the permanent custody hearing. As a result,

father consented to granting appellee’s motion for permanent custody.

10.
 {¶ 33} In order to prevail on a claim for ineffective assistance of counsel,

appellant must show trial counsel’s performance fell below an objective standard of

reasonable representation and prejudice resulted from counsel’s deficient performance.

State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989), paragraph two of the

syllabus, following Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Trial counsel is entitled to a strong presumption that his or her conduct falls

within the wide range of reasonable assistance. Strickland at 688.

{¶ 34} Here, father argues his trial counsel was ineffective because one of father’s

witnesses was not available to attend the permanent custody hearing, and counsel failed

to subpoena witnesses for the hearing. Father, however, did not articulate any reasons

why or how his case was thereby prejudiced. Father did not offer what testimony the

unavailable witness would have presented at the hearing, nor did father submit a list of

witnesses who should have been subpoenaed to testify at the hearing, or the substance of

their testimony.

{¶ 35} In light of the foregoing, there is no evidence in the record that the

performance of father’s trial counsel was in any way professionally unreasonable. Nor is

there evidence to support a finding that there is a reasonable probability that, but for trial

counsel’s alleged errors, the result of the hearing would have been different.

Accordingly, father’s second assignment of error is not well-taken.

11.
 Third Assignment of Error

{¶ 36} Father argues the trial court erred in granting permanent custody of H.W. to

appellee, as it was against the manifest weight of the evidence because father’s trial

counsel left the courtroom during the hearing and counsel was ineffective.

{¶ 37} A trial court’s decision in a permanent custody case will not be reversed on

appeal unless it is against the manifest weight of the evidence. In re A.H., 6th Dist. Lucas

No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy Jones, 10th Dist. Franklin Nos.

03AP-1167 and 03AP-1231, 2004-Ohio-3312, ¶ 28. The factual findings of a trial court

are presumed to be correct since, as the trier of fact, the court is in the best position to

weigh the evidence and evaluate the testimony of the witnesses. In re Brown, 98 Ohio

App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Therefore, a judgment supported by

some competent, credible evidence going to all essential elements of the case is not

against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54

Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶ 38} The juvenile court may grant permanent custody of a child to a children

services agency if the court finds, by clear and convincing evidence: (1) the existence of

at least one of the four factors set forth in R.C. 2151.414(B)(1)(a) through (d), and (2) the

child’s best interest is served by granting permanent custody to the agency. In re M.B.,

10th Dist. Franklin No. 04AP755, 2005-Ohio-986, ¶ 6. Clear and convincing evidence

requires proof which “produce[s] in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469,

120 N.E.2d 118 (1954), paragraph three of the syllabus. In making a best interest

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determination, R.C. 2151.414(D)(1) provides that the court shall consider all relevant

factors, including, but not limited to, the following:

(a) The interaction and interrelationship of the child with the child's

parents, siblings, relatives, foster caregivers and out-of-home providers, and

any other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or

through the child's guardian ad litem, with due regard for the maturity of

the child;

(c) The custodial history of the child, including whether the child

has been in the temporary custody of one or more public children services

agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two month period ending on or after March 18, 1999;

(d) The child's need for a legally secure permanent placement and

whether that type of placement can be achieved without a grant of

permanent custody to the agency;

(e) Whether any of the factors in divisions (E)(7) to (11) of this

section apply in relation to the parents and child.

{¶ 39} The factors set forth in R.C. 2151.414(E)(7) through (11) include: whether

the parents have been convicted of or pled guilty to various crimes; whether medical

treatment or food has been withheld from the child; whether the parents have placed the

child at a substantial risk of harm due to alcohol or drug abuse, and have rejected

treatment two or more times or refused to participate in further treatment two or more

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times after a case plan issued pursuant to section 2151.412 of the Revised Code requiring

treatment of the parents was journalized as part of a dispositional order issued with

respect to the child or an order was issued by any other court requiring treatment of the

parents; whether the parents have abandoned the child; and whether the parents have had

parental rights terminated with respect to a sibling of the child.

{¶ 40} Here, addressing father’s claims regarding his counsel, we previously

found that father’s trial counsel was not ineffective. Moreover, the record shows after

father consented to the granting of appellee’s motion for permanent custody of H.W.,

father was asked by the court if father wanted counsel to leave the hearing or stay for the

remainder of the hearing, and father decided that counsel should leave the courtroom.

We find neither of these claims advanced by father is a basis upon which to find that the

trial court erred in granting permanent custody of H.W. to appellee.

{¶ 41} With regards to father’s contention that the trial court’s granting of

permanent custody of H.W. to appellee was against the manifest weight of the evidence,

we find the court’s decision was supported by clear and convincing evidence. The record

fully supports the court’s determination that H.W. has been in appellee’s temporary

custody for more than 12 months of a consecutive 22-month period, as it undisputed that

H.W. has been in appellee’s custody without interruption since July 15, 2015. See R.C.

2151.414(B)(1)(d). The record also supports the court’s finding that mother and father

abandoned H.W., as mother last visited H.W. on August 3, 2015, and father visited last

with H.W. on February 23, 2017. See R.C. 2151.414(B)(1)(b).

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 {¶ 42} Turning to the second prong of the permanent custody analysis, we find

there was clear and convincing evidence in the record to support the trial court’s

determination that awarding permanent custody of H.W. to appellee was in H.W.’s best

interest.

{¶ 43} The record shows mother is addicted to drugs, father has a substance abuse

history, neither parent has stable housing or the means to financially support H.W.,

mother lost custody of another child and does not have any of her children living with

her, both parents failed to consistently visit H.W., mother and father failed to make H.W.

a priority in their lives and both parents failed to take advantage of the many case plan

services made available to them. In addition, father voluntarily and knowingly consented

to granting appellee’s motion for permanent custody of H.W.

{¶ 44} The record further reveals H.W. was thriving in his foster home and has

responded well medically, physically and socially. Despite H.W. being born extremely

ill and addicted to drugs, at the time of the permanent custody hearing, H.W. was on

target for a two-year-old. Given H.W.’s young age, he was not able to express his

wishes. However, the GAL recommended that permanent custody of H.W. be granted to

appellee. The record shows if permanent custody was granted to appellee, appellee

would place H.W. for adoption.

{¶ 45} Based on the foregoing, the trial court did not err in granting permanent

custody of H.W. to appellee. The trial court’s judgment is supported by clear and

convincing evidence, and therefore, is not against the manifest weight of the evidence.

Accordingly, father’s third assignment of error is not well-taken.

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 {¶ 46} The judgment of the Sandusky County Court of Common Pleas, Juvenile

Division, is hereby affirmed. Appellants are ordered to split the costs of this appeal

pursuant to App.R. 24. The clerk is ordered to serve all parties with notice of this

decision.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

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