Lead Opinion
{¶ 3} On June 27, 2005, CSB filed a complaint in juvenile court, alleging that K.D. was neglected and dependent and seeking temporary custody of the child.1 The agency claimed that Father had custody of K.D., but no longer wished to retain custody of him. The agency further alleged that the child consistently had bruises on his body, including a handprint on his face, which the child claimed was made by his father. CSB also alleged that K.D, was frequently left unsupervised.
{¶ 4} On August 17, 2005, the child was adjudicated neglected and dependent, and was placed in the temporary custody of the agency. Mother was not present at these hearings, but she was represented there by counsel.2
{¶ 5} On November 8, 2005, CSB moved for permanent custody and obtained service on Mother by publication. On December 20, 2005, Father surrendered his parental rights. The matter proceeded to a hearing on the motion for permanent custody as to Mother. The hearing took place on March 10, 2006, and neither Mother nor her counsel was present. Following the hearing, the juvenile court found that Mother had abandoned K.D. and also that the child could not be placed with her within a reasonable time. See R.C.
{¶ 6} Thereafter, Mother wrote a letter to the trial judge, stating that she would like to appeal this matter and requested appointed counsel. The trial judge appointed appellate counsel for Mother. She now timely appeals and assigns two errors for review.
{¶ 7} Through these two assignments of error, Mother challenges the sufficiency of the evidence and the reasonable efforts put forth by CSB to reunify K.D. with Mother. In her first assignment of error, Mother argues that because only seven months had elapsed since the adjudication, not enough time had transpired to find that the child could not be placed with her. In her second assignment of error, Mother argues that CSB's failure to delay the permanent custody hearing when she expressed an interest in the child five days before that hearing demonstrated a lack of reasonable efforts by CSB.
{¶ 8} The record reflects that Mother was aware of these proceedings, but failed to participate in case planning efforts or court hearings. Importantly, she was not present or represented by counsel at the permanent custody hearing. Therefore, neither argument raised by appellate counsel was brought to the attention of the trial court or properly preserved for appeal. It is a fundamental rule of appellate review that a reviewing court will not consider any error that could have been, but was not, brought to the attention of the trial court at a time when such error could be remedied or corrected by the trial court. Lefort v. Century 21-Maitland Realty Co. (1987),
{¶ 9} The record indicates that Mother had contact with the guardian ad litem as early as July 2005, but there was no follow up by Mother. Richard Meeker, the CSB caseworker assigned to this case, made several efforts to contact Mother in the fall of 2005. He sent letters to Mother's last known address and to her own mother's home in Holmesville. He personally visited the Holmesville address where he left a message with Mother's mother, and he also left a message at Wendy's, Mother's former place of employment. Mother finally left a voice mail message for Meeker in February 2006, and they met on March 2, 2006. At that time, Meeker reviewed the case plan objectives and confirmed the date of the permanent custody hearing, of which Mother admitted knowledge.
{¶ 10} During the course of these proceedings, Mother made halting attempts to comply with the case plan, but failed to demonstrate any meaningful effort. For example, Mother appeared at one visitation in June 2005. She left after thirty minutes because CSB would not let her boyfriend participate. She never called CSB to confirm any additional visits. In July 2005, Mother agreed to the guardian ad litem's request to set up a home visit, but then was not present at the home at the appointed time. Later, Mother scheduled an appointment for psychological testing, but did not appear at the appointment. Mother has offered no excuse for her failure to communicate her whereabouts to her caseworker, her failure to follow through with any case planning efforts, or her failure to appear at the permanent custody hearing. She states only that her life was "really terrible" and she is now finally "getting [her] life together." Thus, Mother was informed and aware of these proceedings, yet failed to attend court hearings, failed to participate in case planning activities, and failed to maintain contact with her service providers.
{¶ 11} Upon this record, this Court will not consider Mother's arguments for the first time on appeal. Moreover, we do not find that the issues raised by Mother's appellate counsel rise to the level of plain error. Accordingly, Mother's two assignments of error are overruled.
{¶ 13} App.R. 23 provides that where a court of appeals determines an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee, including attorney fees and costs. "A frivolous appeal under App.R. 23 is essentially one which presents no reasonable question for review." Talbott v. Fountas (1984),
{¶ 14} Additionally, we have considered the difficult position in which Mother's appointed appellate counsel has been placed. He has an obligation to represent his client vigorously and fairly, yet also to advance only non-frivolous claims.
{¶ 15} This Court has previously recognized that where there is no reasonable ground in law or fact for a reversal, "the expenditure of this state's precious judicial resources on trivial matters * * * can serve no valid purpose in the pursuit of justice." See Stupelli v. Rose (Oct. 18, 1995), 9th Dist. No. 95CA006078, citing State ex rel. Rogers v. Cleveland CitySchool Dist. Bd. of Edn. (1995),
{¶ 16} Notwithstanding that Anders v. California (1967),
{¶ 17} In addition, other states have recognized that the procedures enunciated in Anders, supra, are well suited to cases involving the termination of parental rights. See, e.g.,In re H.E. (2002),
{¶ 18} Therefore, because we find that it may advance the effective administration of justice, we extend the principles ofAnders to cases involving the termination of parental rights.
{¶ 19} As to CSB's request for sanctions pursuant to App.R. 23, we find the imposition of sanctions against Mother to be inappropriate in this case. Mother requested the appointment of counsel for her appeal, which was her right, and the trial judge granted her request. As a lay person with appointed counsel, Mother would not have been expected to evaluate complex issues of law and select issues for appellate review on her own. Rather, she would have been entitled to rely upon appellate counsel to prosecute the appeal on her behalf. It is, therefore, inappropriate to award sanctions against Mother pursuant to App.R. 23 where she acted in reliance of her appointed counsel to pursue her appeal. CSB's request for sanctions against Mother is denied.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Whitmore, J. concurs.
Notes
Dissenting Opinion
{¶ 21} I concur in the decision of the court insofar as it affirms the judgment of the trial court. I dissent, however, from the decision not to award sanctions. I think this is one of the most egregious examples of frustration of the judicial system I have seen. This appellant failed to exercise her rights at the trial court level, and then insisted on bringing an appeal where her own actions served to remove any basis for an appeal.
{¶ 22} I would award sanctions against the appellant and her attorney.