In re K.D.
2017 Ohio 136
Ohio Ct. App.2017Background
- K.D., age 1, was removed after parents were found with drug paraphernalia and observed under the influence; child placed temporarily with paternal grandmother, S.W.
- Parents admitted heroin use and largely refused drug testing and agency services; criminal charges were pending against both.
- Agency sought and obtained temporary custody and protective supervision; later moved for termination of protective supervision and legal custody to grandmother.
- At disposition parents (including appellant A.R.) consented to a settlement stipulating reasonable efforts had been made and that legal custody to the grandmother was in K.D.’s best interest; court accepted and entered judgment granting legal custody to grandmother with supervised parental visitation.
- Appellant appealed; appointed counsel filed an Anders brief and moved to withdraw. The Sixth District declined to permit withdrawal under Anders in this type of dispositional legal-custody appeal but reviewed the record for plain error and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Anders procedure allowed counsel to withdraw in appeal of dispositional order granting legal custody to nonparent | Counsel asserted no meritorious issues; Anders withdrawal appropriate | Court must deny Anders withdrawal for this type of neglect/dependency dispositional legal-custody appeal | Anders withdrawal denied; court nonetheless reviewed for plain error and considered counsel’s brief |
| Whether trial court abused discretion in accepting stipulation and awarding legal custody to grandmother | Appellant implied challenge to voluntariness/validity of stipulation | Court and parties found stipulation entered knowingly, voluntarily, and with counsel; no evidence of duress or fraud | No abuse of discretion; stipulation and factual basis supported best-interest finding |
| Whether record shows agency failed to make reasonable efforts | Appellant contested adequacy of agency efforts | Agency and parties stipulated reasonable efforts were made; court reviewed efforts on record | Court accepted stipulation; found reasonable efforts were offered |
| Whether placement in grandmother’s legal custody was contrary to child’s best interest | Appellant argued custody award improper | Agency, CASA, grandmother, and parents agreed custody to grandmother was in child’s best interest; child was doing well; parents not visiting | Court found award safe, healthy, and in K.D.’s best interest and affirmed judgment |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedure for appointed counsel to request leave to withdraw when appeal is frivolous)
- Lassiter v. Dept. of Social Servs., 452 U.S. 18 (U.S. 1981) (due process considerations and right to counsel in parental-rights cases)
- In re Miller, 12 Ohio St.3d 40 (Ohio 1984) (indigent parents’ right to appointed counsel and transcript in termination cases)
- State ex rel. Heller v. Miller, 61 Ohio St.2d 6 (Ohio 1980) (parents’ procedural rights in dependency/termination proceedings)
- Morris v. Lucas Cty. Children Servs. Bd., 49 Ohio App.3d 86 (Ohio Ct. App. 1988) (applying Anders procedure in parental termination appeals)
- In re B.M., 181 Ohio App.3d 606 (Ohio Ct. App. 2009) (discussing voluntariness of stipulated agreements in juvenile custody matters)