In re B.K.
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DECISION AND JUDGMENT
Decided: September 22, 2017
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JENSEN, P.J.
{¶ 1} This is an appeal from the March 14, 2017 judgment of the Lucas County Court of Common Pleas, Juvenile Division, terminating the parental rights of appellant M.E. (“mother“) and T.K. (“father“), and awarding permanent custody of A.K. (born
{¶ 2} Preliminarily, we note that father consented to an award of permanent custody of the children to LCCS. He is not a party to this appeal. Thus, our discussion and analysis will focus on the facts as they pertain to mother.
{¶ 3} On October 30, 2015, LCCS filed a complaint and motion for temporary custody. The complaint alleged, in relevant part, that the children were dependent and neglected; mother was using heroin regularly and the children “had a bedroom with blankets on the floor, but no beds.” A shelter care hearing was held and the children were placed in the temporary custody of LCCS. Mother was offered case plan services with a goal of reunification.
{¶ 4} On September 29, 2016, LCCS filed a motion for permanent custody. The matter went to trial on February 28, 2017.
{¶ 5} LCCS caseworkers testified that mother‘s case plan required her to undergo a dual assessment for mental health and substance abuse issues. The plan also required her to take parenting classes.
{¶ 6} Mother completed her substance abuse assessment in February 2016 and was found to be opiate dependent. She was referred to A Renewed Mind to begin intensive outpatient treatment. A few months after she began treatment, mother starting using heroin again. She was discharged from A Renewed Mind as unsuccessful. In
{¶ 7} On December 31, 2016, mother gave birth to a third baby. At birth, the child tested positive for opiates. LCCS became involved with the baby in a separate action.
{¶ 8} In regard to visitation, caseworkers testified that mother missed more than half of her scheduled visits with A.K. and B.E.
{¶ 9} Caseworkers testified that A.K. and B.E. were placed together and doing well in foster care. The caseworker assigned to the family at the time of trial opined that permanent custody would be in the children‘s best interest.
{¶ 10} At trial, mother admitted that she had a substance abuse problem and that she used heroin a “couple of days” before trial. She also admitted that she missed “a little over half” of the scheduled visits with A.K. and B.E. Mother indicated that she loves her children and that “it would be hard without having them.” She asked the court to consider giving her an “extension” so that she could get clean and sober, find a place to live and take parenting classes.
{¶ 11} The guardian ad litem testified that during the 16 months the case was pending, she met with A.K. and B.E. on several occasions. When asked whether she agreed with the LCCS recommendation of permanent custody, the guardian ad litem stated:
At this point there‘s really no other alternative available to the children. And mother has for the most part not really ever engaged and
been successful in any period of sobriety or any of her services for more than a couple of months. * * *
Their parents appear to have very significant substance issues that prevent them from doing what they need to regain custody of the children to properly parent the children
{¶ 12} On March 14, 2017, the trial court terminated mother‘s parental rights and awarded permanent custody of A.K. and B.E. to LCCS. Mother appealed.
{¶ 13} On July 11, 2017, mother‘s appointed counsel filed a request to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). He asserts that after review of the record he was unable to identify any colorable error which he feels would support reversal of the trial court‘s decision. Counsel submits one potential assignment of error for consideration:
THE TRIAL COURT ERRED IN FINDING THAT PERMANENT CUSTODY WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE; AND THE GRANT OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 14} The procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue is set forth in Anders. Id. There, the Supreme Court of the United States found that if counsel, after a conscientious examination of the case, determines the appeal to be wholly frivolous, he should advise
{¶ 15} Here, appellant‘s counsel fulfilled the requirements set forth in Anders. Appellant did not file a pro se brief or otherwise respond to counsel‘s request to withdraw. We shall proceed with an examination of the potential assignment of error set forth by appellant‘s counsel as well as the entire record below to determine if this appeal lacks merit and is, therefore, wholly frivolous.
{¶ 16} Before a trial court may terminate parental rights and award permanent custody of a child to the moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period, or that the child cannot be placed with either parent within a reasonable
{¶ 17} A trial court‘s determination 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. The factual findings of a trial court are presumed correct since, as the trier of fact, it is in the best position to weigh the evidence and evaluate the testimony. In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Moreover, “[e]very reasonable presumption must be made in favor of the judgment and the findings of facts [of the trial court].” Karches v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988). Thus, judgments supported by some competent, credible evidence going to all essential elements of the case are not against the manifest weight of the evidence. Id.
{¶ 18} Here, the trial court found that the first prong of the permanent custody test was satisfied by a finding that the child could not be placed with either parent in a reasonable time or should not be placed with either parent. See
{¶ 19}
(1) Following the placement of the child outside the child‘s home and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child‘s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. (2) * * * chemical dependency of the parent that is so severe that it makes parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code.
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(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child * * *
{¶ 20} As to
{¶ 21} As to
{¶ 22} As to
{¶ 23} In regard to the second prong of the permanent custody test, the trial court determined, pursuant to
{¶ 25} Upon our own independent review of the record, we find no grounds for a meritorious appeal. Accordingly, this appeal is found to be without merit and is wholly frivolous. Appellant‘s counsel‘s motion to withdraw is found well-taken and is hereby granted.
{¶ 26} The March 14, 2017 judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Costs of this appeal are assessed to appellant 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.
Thomas J. Osowik, J.
JUDGE
James D. Jensen, P.J.
Christine E. Mayle, J.
CONCUR.
JUDGE
JUDGE