IN THE MATTER OF: D.M.
CASE NO. 15CA22
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
Released: 03/30/16
2016-Ohio-1450
McFarland, J.
DECISION AND JUDGMENT ENTRY
Jorden M. Meadows, Logan, Ohio, for Appellant K.C.1
Laina Fetherolf, Hocking County Prosecutor, and Ann A. McDonough, Assistant Hocking County Prosecutor, Logan, Ohio, for Appellee Hocking County Children Services.2
McFarland, J.
{¶1} This is an appeal from a Hocking County Common Pleas Court, Juvenile Division, judgment that awarded South Central Ohio Job and Family Services (SCOJFS) permanent custody of D.M. Counsel for Appellant, K.C. (the child‘s mother), has advised this Court that counsel has reviewed the record and can discern no meritorious issues to appeal. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, (1967), counsel thus requests to withdraw from the case. Appellant‘s counsel has suggested, however, that we independently review the record to determine
FACTS
{¶2} Appellant, K.C., is the mother of D.M., minor child at issue herein, born on September 24, 2010. D.M.‘s father is A.M., II. A complaint for dependency was filed by Appellee, SCOJFS, on September 13, 2013. The complaint alleged that on August 26, 2013, A.M., II wrecked his vehicle into Scott‘s Creek with his minor child and failed to report the accident. It was later determined that the vehicle was actually submerged into the creek with D.M. in his carseat. Apparently A.M., II had to dive under water and remove D.M. No medical assistance was subsequently sought for the child. A.M., II was arrested and admitted he had been drinking and smoking marijuana the day of the accident. Appellant, K.C., was in treatment at the Transitional Recovery Program in Chillicothe, Ohio at the time of accident. D.M. was initially placed into the care and custody of his great grandmother, however, she informed SCOJFS she could not keep D.M. in her home due to his behaviors. The trial court found D.M. dependent on October 24, 2013, which finding was journalized on October 29, 2013. D.M. was then placed
{¶3} Appellant was released from treatment sometime in early 2014, but left the area and went to Columbus to live. During this time until approximately April or Mаy of 2015, she had no contact with D.M. A motion for permanent custody was filed by Appellee on February 5, 2015. Appellant resumed visits with D.M. beginning on approximately April 13, 2015. Appellant had weekly supervised visits with D.M. until the permanent custody hearing on August 21, 2015. A GAL report filed with the trial court just prior to the permanent custody hearing recommended that permanent custody be granted to Appellee.
{¶4} Appellee presented three witnesses in support of the motion for permanent custody: Rebecca Carter, SCOJFS case worker; Doree Ireton, GAL for the D.M.; and K.C. K.C. also testified on her own behalf at the hearing. A.M., II had counsel present at the hearing, but requested that he not be сonveyed to court for the hearing, despite the fact that arrangements had been made for him to be conveyed. Appellee presented evidence that A.M., II had continued in his substance abuse, had been cited repeatedly for OMVI, had failed to obtain treatment, had failed to work his case plan and
{¶5} Appellee presented evidence that K.C. had re-engaged in services and treatment after the motion for permanent custody was filed, had resumed visits with D.M. and had consistently visited with D.M. after the permanent custody motiоn was filed, and had been working her case plan. Appellee also presented evidence, however, that Appellant went for a period of approximately eleven months without contacting or visiting D.M., and that K.C. had remained in contact with A.M., II despite treatment recommendations and probation terms that she not, and that she was currently pregnant with A.M., II‘s child. There was also testimony that K.C. was low functioning, and at times demonstrated poor choices and decision making with respect to D.M. The guardian ad litem also filed a report and testified at the hearing, recommending that permanent custody be granted to Appellee.
{¶6} The trial court ultimately granted Appellee‘s motion for permanent custody by decision dated September 17, 2015. It is from this order that Appellant brings her timely appeal.
{¶7} In Anders, the United States Supreme Court held that if counsel determines, after a thorough and conscientious examination of the record, that the case is wholly frivolous, counsel should so advise the court and request permission to withdraw. Id. at 744. Furthermore, counsel must accompany the request with a brief that identifies anything in the record that could arguably support the appeal. Id. Counsel must also provide appellant with a copy of the brief and allow the appellant sufficient time to raise any matters that the apрellant chooses. Id. Once these requirements have been satisfied, the appellate court must fully examine the trial court proceedings to determine if meritorious issues exist. Id. If the appellate court determines that the appeal is frivolous, it may grant counsel‘s request to withdraw and dismiss the appeal without violating constitutional requirements. Id. If, however, the court finds the existence of meritorious issues, it must afford the appellant assistance of counsel before deciding the merits of the case. Id.
{¶8} Although Anders arose in a criminal context, we have previously determined that its procedures are appropriate in appeals involving the terminаtion of parental rights. In re L.E., 4th Dist. Scioto No. 15CA3692, 2015-Ohio-3762; In re N.S., 4th Dist. Hocking No. 14CA23, 2015-Ohio-1510, ¶ 19; In re J.K., 4th Dist. Athens No. 09CA20, 2009-Ohio-5391, ¶¶ 15-17; citing In re B.F., 5th Dist. Licking No. 2009-CA-007, 2009-Ohio-2978, ¶ 3; In re K.D., 9th Dist. Wayne No. 06CA0027, 2006-Ohio-4730, ¶¶ 16-18; Morris v. Lucas Cty. Children Services Bd., 49 Ohio App.3d 86, 86-87, 550 N.E.2d 980 (6th Dist. 1989). But see In re J.M., 1st Dist. Hamilton No. C-130643, 2013-Ohio-5896, ¶ 19 (holding that the Anders procedures are not appropriate in appeals from decisions terminating parental rights or awarding legal custody); Painter and Pollis, Ohio Appellate Practice, Section 5:27 (2014), citing J.M.
{¶9} Accordingly, we will examine appointed counsel‘s potential assignment of error and the entire record to determine if this appeal has any possible merit.
STANDARD OF REVIEW
{¶10} Before we consider Appellant‘s potential assignment of error, we first review the record to determine whether any possible error exists with respect to the trial court‘s grant of permanent custody to SCOJFS. A reviewing court generally will not disturb a trial court‘s permanent сustody decision unless the decision is against the manifest weight of the evidence. In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); quoting Black‘s Law Dictionary 1594 (6th Ed. 1990).
{¶11} When an appellate court reviews whether a trial court‘s permanent custody decision is against the manifest weight of the evidence, the court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered. Eastley at ¶ 20; quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist. 2001); quoting Thompkins at
{¶12} The question that we must resolve when reviewing a permanent custody decision under the manifest weight of the evidence standard is whether the juvenile court‘s findings * * * were supported by clear and convincing evidence. In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. Clear and convincing evidence is:
The measure or degree of proof that will produce in the mind of the trier of fact a firm beliеf or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
In re Estate of Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23 (1986).
In determining whether a trial court based its decision upon clear and convincing evidence, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof. State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). Accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985); citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954) (Once the clear and convincing standard has been met to the satisfaction of the [trial] court, the reviewing court must еxamine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.). Accord In re Adoption of Lay, 25 Ohio St.3d 41, 42-43, 495 N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163, 165, 492 N.E.2d 140 (1986) (stating that whether a fact has been proven by clear and convincing evidence in a particular case is a determination for the [trial] court and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence). Thus, if the children services agency presented competent and credible evidence upon which the trier of fact reasonably could have formed a firm belief that permanent custody is warranted, then the court‘s decision is not against the manifest weight of the evidencе. In re R.M., 4th Dist. Athens Nos. 12CA43 and 12CA44, 2013-Ohio-3588, ¶ 62; In re R.L., 2nd Dist. Greene Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶ 17; quoting In re A.U., 2nd Dist. Montgomery No. 22287, 2008-Ohio-187, ¶ 9 (A reviewing court will not overturn a court‘s grant of permanent custody to the state as being contrary to the manifest weight of the evidence if the record contains competent,
{¶13} Furthermore, when reviewing evidence under the manifest weight of the evidence standard, an appellate court generally must defer to the fact-finder‘s credibility determinations. Eastley at ¶ 21. As the Eastley court explained:
[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment must be made in favor of the judgment and the finding of facts. * * *
If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.
Id.; quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
Deferring to the trial court on matters of credibility is crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well. Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997). Accord In re Christian, 4th Dist. Athens No. 04CA10, 2004-Ohio-3146, ¶ 7. As the Ohio Supreme Court long-ago explained:
In proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation cannot be conveyed to a reviewing court by printed record.
Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
PERMANENT CUSTODY PRINCIPLES
{¶15} A parent has a fundamental liberty interest in the care, custody, and management of his or her child and an essential and basic civil right tо raise his or her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982); In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990); accord In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829. A parent‘s rights, however, are not absolute. D.A. at ¶ 11. Rather, it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the pole star or controlling principle to be observed. In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979); quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.1974). Thus, the state may terminate parental rights when a child‘s best interest demands such termination. D.A. at ¶ 11.
{¶16} Before a court may award a children services agency permanent custody of a child,
(A) To provide for the care, protection, and mental and physical development of children * * *;
* * *
(B) To achieve the foregoing purpose[ ], whenever possible, in a family environment, separating the child from its parents only when necessary for his welfare or in the interests of public safety.
PERMANENT CUSTODY FRAMEWORK
{¶17}
(a) The child is not abandoned or orphaned or has not 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, and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public children services agenciеs or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999.
(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on
three separate occasions by any court in this state or another state.[3]
Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circumstances described in
{¶18} The trial court found that D.M. had been abandoned by K.C. in that K.C. failed to visit or contact D.M. for more than ninety days. The trial court, in its decision, stated that K.C. failed to visit or contact D.M. from January of 2014 until May of 2015. SCOJFS case worker, Rebecca Carter, testified that Appellant failed to visit or contact D.M. from May of 2014 until April 13, 2015, when visits resumed. The GAL report filed with the court stated that Appellant did not visit or contact D.M. from July 16, 2014 until April of 2015, a period of approximately nine months. Appellant
{¶19} Before going on to the best interest analysis, the trial court went on to make reasonable efforts findings. Although the trial court made a reasonable efforts finding as to both parents, we conclude that because there was a finding of abandonment, it was not required to make reasonable efforts determinations. First, [b]y its terms,
{¶20} Further, because the trial court found that D.M. had been abandoned, it was not required to find that the agency had to make reasonable efforts. In Perry, supra, at ¶ 45, this Court found that when an abandonment finding is made, a trial court is obligated, under
{¶21} Having determined that the trial court properly found D.M. had been abandoned by both parents, and in particular his mother, Appellant herein, we now turn our attention to the trial court‘s best interest analysis. Specifically, we must determine whether the trial court‘s best interest finding is against the manifest weight of the evidence.
{¶22}
{¶23} In the case at bar, a review of the trial court‘s decision indicates that appropriate best interest findings were made by the trial court and that such findings are supported by competent, credible evidence in the record. With respect to the child‘s interactions and interrelationships, the trial court found D.M. had been abandoned by both parents. The trial court also found that D.M. acted the same way with his mother as he did with anyone else who visited him, and that he had a relationship with his half-
{¶24} With respect to the child‘s wishes, the trial court found that D.M. was only four years old, was confused and that his wishes were unclear. The trial court noted that the child had expressed conflicting desires to live with Appellant and also to live with his foster parents. Regarding the child‘s custodial history, the trial court found that D.M. had been in some form of custody of SCOJFS since September of 2013, where he had remained since that time. Elsewhere in its decision, the trial court found that D.M. was in his fifth home in his four years of life, and that he was currently placed in a foster-to-adopt home. Regarding the child‘s need for a legally secure placement, the trial court found that D.M. wаs in need of a legally secure placement, which the court was concerned Appellant could not provide in light of her continued involvement with D.M.‘s father, especially considering Appellant was then again pregnant with A.M., II‘s child. Elsewhere in its decision the trial court found that a legally secure permanent placement could not be achieved without granting permanent custody to SCOJFS. We note that the GAL report filed just prior to the permanent custody hearing also recommended that permanent custody be granted to the agency.
{¶26} Thus, it appears from our review of the trial court‘s decision that the necessary best interest factors were taken into consideration by the trial court and appear to weigh in favor of a grant of permanent custody to SCOJFS. Further, the best interest findings set forth by the trial court in its decision are supported by competent, credible evidence in the record, and thus are not against the manifest weight of the evidence. In light of the
{¶27} We next consider Appellant‘s potential assignment of error, whether Appellant was denied the effective assistance of counsel during the pendency of her case. Appellant‘s counsel suggests no particular deficiency or error with respect to Appellant‘s trial counsel‘s representation of Appellant below. The right to counsel, guaranteed in permanent custody proceedings by
{¶28} To reverse a trial court‘s judgment based upon a claim of ineffective assistance, a defendant must show, first, that counsel‘s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, (1984); State v. Noling, 98 Ohio St.3d 44, 65, 781 N.E.2d 88 (2002); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Both prongs of this test need not be analyzed, however, if a claim can be resolved under one prong. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v. Loza, 71 Ohio St.3d 61, 83, 641 N.E.2d 1082 (1994).
{¶29} Counsel‘s performance may be found to be deficient if counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland at 687; Bradley, paragraph two of the syllabus (stating that counsel‘s performance is deficient if it falls below an objective standard of reasonable representation); State v. Peeples, 94 Ohio App.3d 34, 44, 640 N.E.2d 208 (1994) (stating that counsel‘s performance is deficient if it raise[s] compelling questions concerning the integrity of the adversarial process). To establish prejudice, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different. Bradley, paragraph two of the syllabus; Strickland, 466 U.S. at 687; Noling; Bradley, paragraph three of the syllabus (To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must provе that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.).
{¶30} Based upon our review of the record, and in light of our determination that the trial court‘s decision to grant permanent custody of D.M. to SCOJFS was supported by competent, credible evidence in the record, we find no obvious error by Appellant‘s trial counsel. The only arguable concern that we notice, which we address in an abundance of caution, is the trial court‘s failure to appoint independent counsel for the child. The record reflects that while the child had a guardian ad litem appointed, he did not have appointed counsel. However, based upon the case law and our analysis below, we find no error in the trial court‘s decision not to appoint counsel for D.M., and thus cannot conclude that Appellant‘s trial counsel provided ineffective assistance by failing to raise the issue at the trial court level.
{¶31} [A] child who is the subject of a juvenile court proceeding to terminate parental rights is a party to that proceeding and, therefore, is entitled to independеnt counsel in certain circumstances. In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1100, syllabus, citing
{¶32} Generally, the appointment of independent counsel is warranted when a child has repeatedly expressed a desire to remain or be reunited with a parent but the child‘s guardian ad litem believes it is in the child‘s best interest that permanent custody of the child be granted to the
{¶33} In the case at bar, nothing in the record indicates that the child ever expressed any desire that conflicted with the guardian ad litem‘s recommendation. The child was only four years old at the time of the permanent custody hearing, and the trial court correctly found that the child was confused and that his wishes were unclear. Moreover, as another court recognized, when a сhild is unable to express a position regarding custody or to assist an attorney in pursuing a particular course of action, an attorney would be able to advocate only what the attorney believed to be in the child‘s best interests. In re T.J., 2nd Dist. Montgomery No. 23032, 2009-Ohio-1290, ¶ 10. However, a guardian ad litem also recommends what he or she believes is in the child‘s best interests. Thus, an attorney appointed for a child unable to express his or her wishes would fulfill the same duty that the
{¶34} Thus, we conclude the trial court‘s decision not to appoint D.M. independent counsel was reasonable and did not constitute error. As such, we agree with Appellant‘s counsel‘s assessment that this is not a meritorious issue for review. Accordingly, and based upon the foregoing, we do not believe that any meritorious issues to appeal exist. Therefore, we grant counsel‘s request to withdraw, find this appeal wholly frivolous, and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
(7) The parent has been convicted of or pleaded guilty to one of the following:
(a) An offense under section
(b) An offense under section
(c) An offense under division (B)(2) of section
(d) An offense under section
(e) An offense under section
(f) A conspiracy or attempt to commit, or complicity in committing, an offense described in division (E)(7)(a), (d), or (e) of this section.
(8) The parent has repeatedly withheld medical treatment or food from the child when the parent has the means to provide the treatment or food, and, in the case of withheld medical treatment, the parent withheld it for a purpose other than to treat the physical or mental illness or defect of the child by spiritual means through prayer alone in accordance with the tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two or more times due to alcohol or drug abuse and has rejected treatment two or more times or refused to participate in further treatment two or more times after a case plan issued pursuant to section
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated with respect to a sibling of the child pursuant to this section or section