In re H.R.
Court of Appeals Nos. WM-13-008, WM-13-009
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY
February 21, 2014
2014-Ohio-635
Trial Court No. 20123006
* * * * *
Ryan S. Thompson, for appellant K.P.
William J. Brenner, for appellant D.R.
Russell R. Herman, Special Prosecuting Attorney, for appellee.
* * * * *
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Williams County Court of Common Pleas, Juvenile Division, that terminated the parental rights of appellant K.P., mother of H.R., and appellant D.R., the child’s father, and granted permanent custody of
{¶ 2} Mother and father have filed separate appeals but their cases have been consolidated. Their respective assignments of error will be addressed separately following our discussion of the factual and procedural background of this matter.
{¶ 3} Appointed counsel for mother has submitted a request to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In his brief filed on appellant mother’s behalf, appointed counsel sets forth two proposed assignments of error. In support of his request to withdraw, counsel for mother states that, after reviewing the record of proceedings in the trial court, he was unable to identify any appealable issues.
{¶ 4} Anders, supra, and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (1978), set forth the procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue. In Anders, the United States Supreme Court held that if counsel, after a conscientious examination of the case, determines it to be wholly frivolous, counsel should so advise the court and request permission to withdraw. Anders at 744. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Counsel must also furnish his client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters that he chooses. Id. Once these requirements have been satisfied, the appellate court must then conduct a full
{¶ 5} In the case before us, appointed counsel has satisfied the requirements set forth in Anders, supra. The record reflects that counsel provided appellant mother with a copy of the brief and request to withdraw and notified appellant of her right to raise any matters that she might choose within 45 days. Appellant has not provided this court with a separate brief within the specified time. Accordingly, this court shall proceed with an examination of the potential assignments of error proposed by counsel for appellant mother and the record from below in order to determine if this appeal lacks merit and is, therefore, wholly frivolous.
{¶ 6} The record reflects that appellants’ child, H.R., was born in November 2011. On February 1, 2012, the agency filed for an ex parte removal of H.R. due to a domestic violence and abuse situation between H.R.’s parents while H.R. was present. At the emergency hearing held the following day appellant mother appeared and consented to a grant of emergency temporary custody to the agency and placement of H.R. in foster care. Father did not appear at the hearing. On that same date, the agency filed a complaint alleging H.R. to be a dependent child. On March 9, 2012, H.R. was adjudicated dependent; both mother and father consented. Temporary custody of H.R. was continued with the agency.
{¶ 7} A case plan was developed by the agency and adopted by the court to remedy the problems that initially caused H.R. to be placed outside the home. The case plan required both parents to complete parenting classes, obtain and maintain adequate housing and stable employment, attend mental health counseling and take all other necessary steps to meet H.R.’s needs. On May 24, 2013, due to both parents’ failure to successfully complete any of the requirements of their case plan, the agency filed a motion for permanent custody. The motion was set for hearing on September 17 and 23, 2013. Father appeared on the first day with counsel but failed to appear for the second day due to his incarceration. Father’s counsel appeared at all proceedings. Mother failed to appear on either day, although her appointed counsel was present at all proceedings. The trial court heard testimony from the agency’s caseworker, H.R.’s foster mother and appellant father.
{¶ 8} Tiffany Kime, the family’s caseworker, testified that she began working with appellants and H.R. in March 2012 when H.R. was four months old. At that time, father was living with a girlfriend and mother was living in a trailer owned by her parents until she was evicted that April. Kime spoke to father’s parents regarding possible temporary placement for H.R. but the grandparents were not interested, stating they would rather see the child remain in the current foster home with a sibling who had been removed from appellants’ custody by Defiance County Juvenile Court. In April, mother told Kime that she was pregnant with appellant father’s child. That month, the agency arranged supervised visitations with H.R. and H.R.’s sibling.
{¶ 9} Kime testified as to the agency’s case plan goals, which included physical and financial stability, parenting classes and mental health counseling. Appellants were assigned a parent aid who worked with them on parenting and budgeting issues. Appellants’ participation in the parenting classes varied, with periods of compliance alternating with periods of several weeks without any contact with their parent aide. The parenting classes were never completed and neither parent had contact with the parent aide after January 2013. Both parents had problems maintaining employment. Kime was aware of mother briefly having two jobs during her involvement with the agency. The agency was able to confirm five jobs held by father from March 2012 through April 2013. During that time, appellants applied for public assistance
{¶ 10} Neither parent completed mental health counseling. Father refused to sign the original case plan because he did not want to comply with the requirement that he attend counseling. Father eventually complied with counseling beginning November 2012 but was discharged from the program unsuccessfully in May 2013. Ultimately, neither parent completed the mental health counseling. As to housing, Kime reviewed appellants’ various housing arrangements, which included multiple moves, evictions and instances of utilities being shut off for nonpayment. In October 2012, mother reported to Kime that father had been physically abusing her. Mother stated that she was going to end her relationship with father, but five days later she was again living with him.
{¶ 11} By January 2013, both parents began to miss visitations. Following an annual review hearing in February 2013, the agency decided to allow home visits. After
{¶ 12} Kime stated that her most recent contact with mother was in mid-March 2013, when mother picked up H.R. for a home visit. Kime testified that mother had no contact with either her or the agency since March 22, 2013, when mother called to cancel a visit. To the best of Kime’s knowledge, mother had no contact with H.R. after the March visit. After that, father picked up H.R. for one visit and said that mother was waiting at home. By April 19, father reported that mother had moved, taking with her the couple’s newborn child. Kime unsuccessfully attempted to contact mother through her father and stepmother, who reported having no contact with her. By the end of April, father reported to Kime that he was moving to Michigan. Kime’s attempt to contact mother’s biological mother with regard to placement was unsuccessful. An attempt to investigate possible placement with another of mother’s relatives in Michigan was rejected by the relative.
{¶ 13} Kime believed that mother was currently living in Jackson, Michigan, although that information was not confirmed by mother. Kime’s most recent contact with father was at the end of May 2013, when father told her during a phone conversation that he had moved. Father refused to give her an address but Kime later learned that father was also living in Jackson, Michigan. Father was told at that time that he would be
{¶ 14} Shortly thereafter, the agency learned of an address through the Jackson County Human Services when appellants applied for assistance. Kime traveled to Jackson, Michigan, in July 2013 in order to serve mother with papers with regard to a court hearing. However, Kime was told by another individual living at the address that appellants were no longer there.
{¶ 15} Kime testified that H.R.’s foster parents have adopted the child’s older sibling. Through home visits, Kime has observed a close bond between H.R. and her sibling as well as between H.R. and her foster parents. Kime believes that H.R. is happy and well-adjusted and is meeting her developmental milestones. The foster parents indicated they wished to adopt H.R. if the agency were to receive permanent custody.
{¶ 16} Kime concluded by stating she believes an award of permanent custody is in H.R.’s best interest.
{¶ 17} M.W., H.R.’s foster mother since the child was three months of age, testified that she and her husband love H.R. and hope to adopt if the agency is granted permanent custody. M.W. testified as to H.R.’s strong emotional bond with H.R.’s older sibling and the two other children in the home.
{¶ 18} Appellant father testified as to his relationship with H.R. and his current living situation in Michigan. Father stated that he was currently attending a three-month program at Premier Medical Academy in Jackson, Michigan, so that he could be certified
{¶ 19} The child’s guardian ad litem recommended that permanent custody be awarded to the agency. In her report submitted to the trial court, the GAL stated that it was apparent that the parents did not have any desire to work toward reunification based on their move to Michigan and their failure to communicate with the agency or their child. The guardian noted that both parents had been removed from their case plan in early 2013 because they moved from Ohio and that the agency was not able to locate them.
{¶ 20} On October 2, 2013, the trial court issued its judgment entry granting the agency’s motion for permanent custody of H.R. The trial court’s detailed judgment entry clearly indicates its thorough consideration of each and every applicable statutory factor, including
{¶ 21} As to H.R.’s best interest, the trial court concluded, after considering and applying
Mother’s Appeal
{¶ 22} Counsel for mother sets forth the following proposed assignments of error:
- I. The Appellant was denied effective assistance of counsel.
- II. The Appellant was deprived of her due process rights because she was not present at the hearing.
{¶ 23} As to counsel’s first proposed assignment of error, it is well-established that claims of ineffective assistance of counsel are reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prove ineffective assistance of counsel, appellant must demonstrate both that the performance of trial counsel was defective and that, but for that defect, the outcome would have been different. Id. at 687. Applying Strickland to the instant case, we are unable to find that trial counsel was ineffective in any respect. Accordingly, appointed counsel’s first proposed assignment of error is not well-taken.
{¶ 24} As to appointed counsel’s second proposed assignment of error, we note that the trial court found that mother had been properly served with notice of the hearing. Father testified that mother did not want to attend because she feared being arrested on an outstanding warrant. An individual does not have an absolute right to be present in a
{¶ 25} In the instant case, mother was represented by counsel at the hearing. A full record was made of the proceedings. Any testimony that mother wished to submit could have been presented by deposition had she made herself available to her attorney. Accordingly, we find that mother’s due process rights were not violated when the court proceeded in her absence. Appointed counsel’s second proposed assignment of error is without merit.
Father’s Appeal
{¶ 26} Appellant father sets forth the following assignments of error:
- 1. Failure to grant continuance to father was reversible error.
- 2. Failure to consider granting custody to a family member was reversal [sic] error.
- 3. The Judgment was against the weight of evidence.
{¶ 27} As to appellant father’s first assignment of error, we refer to our discussion of mother’s proposed assignment of error regarding her failure to attend the hearing and the applicable law. A trial court has discretion to decide whether to proceed with a permanent custody hearing absent an incarcerated parent. State ex rel. Vanderlaan v. Pollex, 96 Ohio App.3d 235, 236, 644 N.E.2d 1073 (6th Dist.1994). See also In re Joseph P., supra. Here, father attended the first day of the hearing and testified at length; on the second day, he was incarcerated. Father was represented by counsel at all stages of the proceedings. Accordingly, we find that the trial court’s decision to deny appellant father’s request for a continuance was not an abuse of discretion. Appellant’s first assignment of error is not well-taken.
{¶ 28} In support of his second assignment of error, appellant asserts that the trial court failed to consider placing H.R. with a suitable relative. To the contrary, the trial court heard testimony, as summarized above, that the caseworker contacted several of the grandparents with regard to possible placement. The record reflects that none of the grandparents wished to pursue custody. The trial court addressed this issue in its judgment entry, noting that none of the grandparents had an interest in seeking custody and none had asked to be made part of the case plan. This assignment of error is not well-taken.
{¶ 29} As his third assignment of error, appellant asserts that the trial court’s decision was against the weight of the evidence.
{¶ 30} In granting a motion for permanent custody, the trial court must find that one or more of the conditions listed in
{¶ 31} Here, the trial court found, by clear and convincing evidence as set forth in detail above, that H.R. was abandoned, that the child could not be placed with either parent within a reasonable time or should not be placed with either parent, and that it was in the best interest of H.R. to grant permanent custody to the agency. Additionally, our examination of the record reveals that appellant father showed a lack of effort and commitment to the reunification process, which was glaringly apparent by his abandonment of both his case plan and his child as described above.
{¶ 32} Based on all of the foregoing, we find that the trial court’s decision granting permanent custody of H.R. to the Williams County Department of Job and Family Services was supported by clear and convincing evidence. Appellant father’s third assignment of error is not well-taken.
{¶ 33} As to mother’s appeal, upon our own independent review of the record, we find no grounds for a meritorious appeal. Appellant mother’s counsel’s motion to withdraw is found well-taken and is granted.
{¶ 34} On consideration whereof, the judgment of the Williams County Court of Common Pleas, Juvenile Division, is affirmed. Costs of this appeal are assessed equally to appellants K.P. and D.R. 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
Stephen A. Yarbrough, P.J.
James D. Jensen, J.
CONCUR.
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.