In re B.H.
2015 Ohio 5495
Ohio Ct. App.2015Background
- Child B.H. was removed at birth after testing positive for opiates; foster care placement since birth and foster parents willing to adopt.
- Mother (appellant) had two other children in relatives' custody and long-standing involvement with Lucas County Children Services (LCCS) since April 2013.
- LCCS implemented a reunification-focused case plan (substance-abuse treatment including methadone, mental-health treatment, domestic-violence services, paternity testing, Help Me Grow for the child).
- Mother engaged intermittently in services: attended some counseling and methadone treatment but missed appointments, relapsed (positive alcohol test), stopped counseling/medication, lost housing, missed/failed to attend and communicate about visits, and was unsuccessfully discharged from some programs.
- Putative father failed to appear for DNA testing and made no effort to visit; no suitable relatives identified for placement.
- Trial court granted LCCS permanent custody; appellate counsel filed an Anders brief seeking leave to withdraw and argued two possible issues: manifest-weight challenge to the permanent-custody award and ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (LCCS) | Held |
|---|---|---|---|
| Whether award of permanent custody was against the manifest weight of the evidence | Mother argued the evidence did not clearly and convincingly show that permanent custody to LCCS was in the child’s best interest | LCCS argued mother’s persistent substance abuse, unstable housing, inconsistent service participation, lack of paternal involvement, and bonded, stable foster placement supported permanent custody | Affirmed: trial court’s findings supported by clear and convincing evidence and not against manifest weight |
| Whether mother was denied effective assistance of counsel | Mother contended counsel’s performance was deficient, prejudicing the outcome | LCCS argued record shows no deficient performance that rendered the proceeding fundamentally unfair; Anders procedures were followed | Denied: counsel’s performance not shown deficient; appellate court granted counsel’s Anders withdrawal |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (appointed counsel may seek withdrawal if appeal is frivolous; court must independently review the record)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (Ohio 1978) (appellate review defers to trial court where some competent, credible evidence supports essential elements)
- In re K.H., 119 Ohio St.3d 538 (Ohio 2008) (permanent-custody findings must be supported by clear and convincing evidence)
- In re Holcomb, 18 Ohio St.3d 361 (Ohio 1985) (standards for reviewing clear-and-convincing evidence in juvenile cases)
- State v. Schiebel, 55 Ohio St.3d 71 (Ohio 1990) (reviewing sufficiency of evidence to meet specified degree of proof)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- Lockhart v. Fretwell, 506 U.S. 364 (U.S. 1993) (prejudice inquiry under Strickland)
- McMann v. Richardson, 397 U.S. 759 (U.S. 1970) (right to counsel applies in proceedings with significant liberty interests)
- Stanley v. Illinois, 405 U.S. 645 (U.S. 1972) (parental rights are a fundamental interest requiring due process)
- In re Murray, 52 Ohio St.3d 155 (Ohio 1990) (termination of parental rights implicates essential civil rights)
- Jones v. Lucas Cty. Children Serv. Bd., 46 Ohio App.3d 85 (Ohio Ct. App. 1988) (criminal ineffective-assistance standards apply in parental-termination proceedings)
- Morris v. Lucas Cty. Children Servs. Bd., 49 Ohio App.3d 86 (Ohio Ct. App. 1988) (Anders review applicable to termination-of-parental-rights appeals)