In re B.K.
2017 Ohio 7773
| Ohio Ct. App. | 2017Background
- Lucas County Children Services (LCCS) removed two children (born Dec. 2011 and Dec. 2014) after alleging neglect and the mother's regular heroin use; children placed in LCCS temporary custody in Oct. 2015 and remained in care ~16 months.
- Mother’s case plan required substance-abuse and mental-health assessments and parenting classes; she completed assessments, entered intensive outpatient treatment twice, relapsed, and had a positive neonatal drug test for a later child born Dec. 31, 2016.
- Mother admitted ongoing heroin use (including days before trial), missed more than half of scheduled visits with the children, and asked the court for an extension to get sober and complete services.
- LCCS and the guardian ad litem recommended permanent custody to LCCS; children were placed together and were doing well in foster care with adoptive prospects.
- Trial court found R.C. 2151.414(E)(1), (2), and (4) satisfied (parents failed to remedy conditions, severe chemical dependency, lack of commitment via missed visits) and that permanent custody was in the children’s best interest under R.C. 2151.414(D).
- Mother appealed; appointed counsel filed an Anders brief seeking to withdraw, asserting no non-frivolous issues; mother did not file a pro se brief. The Sixth District affirmed the trial court and granted counsel’s motion to withdraw.
Issues
| Issue | Plaintiff's Argument (LCCS) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether permanent custody was supported by clear and convincing evidence | Mother’s ongoing substance abuse, failure to complete services, missed visits, and inability to provide a stable home meant children couldn’t be returned in a reasonable time | Mother requested more time/extension, was engaged in some treatment, loves the children and intended to complete services | Affirmed: Clear and convincing evidence supported permanent custody under R.C. 2151.414(B) and (E) and best-interests under R.C. 2151.414(D) |
| Whether mother’s chemical dependency rendered her unable to provide a home within a year | LCCS: severe opiate/heroin dependency with repeated relapses; prior attempts at treatment unsuccessful | Mother: had begun treatment and counseling, sought more time to achieve sobriety | Affirmed: Court found addiction severe and unlikely to be remedied within a year (R.C. 2151.414(E)(2)) |
| Whether mother’s visitation/support showed lack of commitment | LCCS: mother missed over half of visits, evidencing lack of commitment (R.C. 2151.414(E)(4)) | Mother: missed visits but asserted love and intent to parent if given more time | Affirmed: Trial court relied on missed visits as evidence of lack of commitment |
| Whether appellate counsel properly sought to withdraw under Anders and whether appeal was frivolous | Counsel: after review, no non-frivolous issues; requested withdrawal per Anders | Mother: did not file a response or pro se brief | Affirmed: Sixth District conducted independent review, found appeal wholly frivolous, granted counsel’s motion to withdraw |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedure and protections required when counsel moves to withdraw on the basis that an appeal is frivolous)
- Karches v. Cincinnati, 38 Ohio St.3d 12 (1988) (appellate courts must presume trial-court factual findings correct and view them in favor of judgment)
- William S. v. Ohio Dept. of Youth Servs., 75 Ohio St.3d 95 (1996) (permanent custody statutory framework and standards)
- Brown v. Cty. of Cuyahoga, 98 Ohio App.3d 337 (1994) (trial court as factfinder — weight of evidence/credibility determinations)
- Morris v. Lucas Cty. Children Servs. Bd., 49 Ohio App.3d 86 (1988) (application of Anders procedures to termination-of-parental-rights appeals)