[Cite as In re T.B.,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re T.B., et al. Court of Appeals No. L-14-1122

Trial Court No. JC 13231629

DECISION AND JUDGMENT

Decided: December 19, 2014

*****

Laurel A. Kendall, for appellant.

Jill E. Wolff, for appellee.

*****

YARBROUGH, P.J.

I. Introduction

{¶ 1} Appellant, L.C., appeals the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, terminating her parental rights and awarding

permanent custody of her children, Tama.B., Timma.B., Tati.B., Timmy.B., Tari.B., and Tamr.B., to appellee, Lucas County Children Services (LCCS). For the following

reasons, we affirm.

A. Facts and Procedural Background

{¶ 2} On March 29, 2013, LCCS filed a complaint in the juvenile court alleging

dependency, neglect, and abuse, and moving the court for a shelter care hearing. The

complaint stemmed from a referral LCCS received two days earlier stating that there was

no food in the family home. After receiving the referral, LCCS began an investigation

that revealed that the oldest three children were being sexually abused by their father,

T.B.1 The children reported the abuse to appellant, but she failed to take action, believing

that the children had fabricated the story at the urging of appellant’s sister, who did not

get along with T.B. Notwithstanding the reports of sexual abuse, appellant continued to

allow T.B. to spend time alone with the children. In addition to the discovery of sexual

abuse, LCCS found that appellant’s house was “trashed with garbage, dirty diapers, old

food, and had a strong odor.” Moreover, it was alleged that the children were without

clothing and that their hygienic needs were not being met.

{¶ 3} On the same day the complaint was filed, a shelter care hearing was held,

after which LCCS was awarded interim, temporary custody. A case plan was filed on

April 19, 2013, with the goal of reunification. The case plan required appellant to obtain

stable housing, complete a mental health assessment, participate in a non-offending

parenting course, and attend an interactive parenting program. Further, LCCS required

1 T.B. appeared on the first day of trial and waived his right to remain a party to the action. Thus, T.B. is not a party to this appeal.

2. appellant to undergo a psychological evaluation. Ultimately, the children were

adjudicated dependent, neglected, and abused on May 9, 2013. Consequently, LCCS was

awarded temporary custody of the children.

{¶ 4} Three months later, on August 5, 2013, an amended case plan was filed,

changing the permanency goal from reunification to permanent custody. A motion for

permanent custody was subsequently filed on August 14, 2013. LCCS amended the case

plan as a result of appellant’s failure to comply with the terms of her original case plan.

Specifically, appellant failed to secure stable housing. Further, appellant failed to receive

a psychological evaluation, largely due to her refusal to consent to the release of her

personal information. Her refusal was based in part on a mistrust of LCCS stemming

from an incident in which an agency worker, without appellant’s knowledge, placed

appellant’s initials on a release form that appellant had already signed.

{¶ 5} A hearing on LCCS’s motion for permanent custody was held on November

25, 2013, February 27, May 5, and May 9, 2014. At the hearing, LCCS called three

witnesses in support of its motion; Sasha Dacres, Holly Mangus, and Dr. Randall

Schlievert. Appellant also testified, and called one witness of her own, Wendy Nathan.

Finally, the children’s guardian ad litem, Robin Fuller, also testified.

{¶ 6} At the conclusion of the hearing, the juvenile court granted LCCS’s motion

for permanent custody, finding that the children could not and should not be placed with

appellant within a reasonable period of time under R.C. 2151.353(A)(4) and R.C.

3. 2151.414(E)(1), (4), and (15), and that permanent custody to LCCS was in the children’s

best interests under R.C. 2151.414(D). Subsequently, appellant filed her timely notice of

appeal.

{¶ 7} Based upon the belief that no prejudicial error occurred below, appellant’s

appointed counsel has filed a motion to withdraw and a brief pursuant to Anders v.

California,

,

,

(1967).

{¶ 8} Anders and State v. Duncan,

,

(8th

Dist. 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.

. This request, however, must be accompanied by

a brief identifying anything in the record that could arguably support the appeal.

{¶ 9} Counsel must also furnish the client with a copy of the brief and request to

withdraw and allow the client sufficient time to raise additional matters.

Once these

requirements have been satisfied, the appellate court must then conduct a full

examination of the proceedings held below to determine if the appeal is indeed frivolous.

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,

or it may proceed to a decision on the merits if state law so requires.

B. Assignments of Error

4. {¶ 10} In her Anders brief, appellant’s counsel assigns the following potential

errors for our review:

Potential Assignment of Error 1: The trial court erred in finding that

Lucas County Children Services proved by clear and convincing evidence

that mother failed continuously and repeatedly to substantially remedy the

conditions causing the children to be placed outside the children’s home.

R.C. 2151.414(E)(1).

Potential Assignment of Error 2: The trial court erred in finding that

Lucas County Children [Services] proved by clear and convincing evidence

that mother committed abuse or allowed the children to suffer neglect, and

that the seriousness, nature, or likelihood of recurrence of the abuse or

neglect makes the children’s placement with the mother a threat to the

children’s safety. R.C. 2151.414(E)(15).

Potential Assignment of Error 3: The trial court erred in finding that

Lucas County Children [Services] proved by clear and convincing evidence

that mother allowed the father to have access to the children after they

disclosed sexual abuse to her by him, thus exacerbating the abuse they had

suffered, and creating additional emotional damage. R.C. 2151.414(E)(16).

{¶ 11} Additionally, appellant has filed her own brief, raising the following

assignments of error:

5. I. The trial court committed plain and reversible error by awarding

custody to LCCS when it had failed to comply with R.C. 2151.419(B)(1).

II. The trial court erred in finding that LCCS proved by clear and

convincing evidence that mother failed continuously and repeatedly to

remedy the conditions causing the children to be placed outside the

children’s home [pursuant] to R.C. 2151.414(E)(1).

III. The trial court erred in finding by clear and convincing evidence

that it was in the best interest of the children that LCCS be granted

permanent custody when it failed to properly apply all five relevant factors

[under] R.C. 2151.414(D).

{¶ 12} For ease of discussion, we will address the proposed assignments of error

out of order.

II. Analysis

{¶ 13} In Troxel v. Granville,

,

,

(2000), the United States Supreme Court noted that parents’ interest in the care, custody,

and control of their children “is perhaps the oldest of the fundamental liberty interests

recognized by this Court.” The protection of the family unit has always been a vital

concern of the courts. Stanley v. Illinois,

,

,

(1972).

{¶ 14} Ohio courts have long held that “parents who are ‘suitable’ persons have a

‘paramount’ right to the custody of their minor children.” In re Perales,

. 89, 97,

(1977). Therefore, parents “must be afforded every procedural

and substantive protection the law allows.” In re Smith,

,

(6th Dist. 1991).

{¶ 15} Thus, a finding of inadequate parental care, supported by clear and

convincing evidence, is a necessary predicate to terminating parental rights. “Before any

court may consider whether a child’s best interests may be served by permanent removal

from his or her family, there must be first a demonstration that the parents are ‘unfit.’”

In re Stacey S.,

,

(6th Dist. 1999), citing Quillon

v. Walcott,

,

,

(1978). Parental unfitness is

demonstrated by evidence sufficient to support findings pursuant to R.C. 2151.414. See

In re William S.,

,

(1996), syllabus.

{¶ 16} In order to terminate parental rights and award permanent custody of a

child to a public services agency under R.C. 2151.353(A)(4), the juvenile court must find,

by clear and convincing evidence, two things: (1) that the children cannot be placed with

one of their parents within a reasonable time or should not be placed with their parents

under R.C. 2151.414(E), and (2) that permanent custody is in the best interests of the

child under R.C. 2151.414(D)(1). Clear and convincing evidence is that which is

sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the

facts sought to be established. Cross v. Ledford,

,

(1954), paragraph three of the syllabus. It is more than a preponderance of the evidence,

but does not require proof beyond a reasonable doubt. Id.

7. {¶ 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. No. L-11-1057,

, ¶ 11, citing In re Andy-Jones, 10th Dist. Nos.

03AP-1167, 03AP-1231,

. In conducting a review on manifest

weight, the reviewing court “weighs the evidence and all reasonable inferences, considers

the credibility of the witnesses and determines whether in resolving conflicts in the

evidence, the [trier 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.” State v.

Thompkins,

,

(1997); Eastley v. Volkman,

,

,

, ¶ 17. We recognize that, as the trier

of fact, the trial court is in the best position to weigh the evidence and evaluate the

testimony. In re Brown,

,

(3d Dist. 1994).

Thus, “[I]n determining whether the judgment below is manifestly against the weight of

the evidence, every reasonable intendment and every reasonable presumption must be

made in favor of the judgment and the finding of facts.” Eastley at ¶ 21, quoting Seasons

Coal Co., Inc. v. Cleveland,

,

(1984).

A. Reasonable Efforts Determination

{¶ 18} In appellant’s first assignment of error, she argues that the juvenile court

failed to comply with R.C. 2151.419(B)(1) prior to granting LCCS’s motion for

permanent custody.

{¶ 19} R.C. 2151.419(B)(1) provides:

8. (B)(1) A court that is required to make a determination as described

in division (A)(1) or (2) of this section shall issue written findings of fact

setting forth the reasons supporting its determination. If the court makes a

written determination under division (A)(1) of this section, it shall briefly

describe in the findings of fact the relevant services provided by the agency

to the family of the child and why those services did not prevent the

removal of the child from the child’s home or enable the child to return

safely home.

{¶ 20} Here, appellant contends that the court failed to include findings of fact in

its decision outlining the services provided by LCCS and why the services were

unsuccessful in preventing removal of the children from the home. We disagree.

{¶ 21} In its decision, the juvenile court pointed out that case plan services were

offered to appellant beginning in March 2013. The court went on to indicate that those

services included “mental health assessments and treatment, psychological assessment,

non-offenders parenting services, case management services, and visitation.” Later in its

decision, the court explained that appellant “has not been cooperative with services.” In

support of its conclusion, the court cited appellant’s refusal to address the issues that led

to the removal of her children. The court noted appellant’s failure to complete a

psychological evaluation as directed, along with her refusal to sign a release form so that

LCCS could communicate with her mental health providers.

9. {¶ 22} Having reviewed the juvenile court’s decision and the record in its entirety,

we find no merit to appellant’s assertion that the court failed to comply with the

requirements of R.C. 2151.419(B)(1). Consequently, appellant’s first assignment of error

is not well-taken.

B. Juvenile Court’s Application of R.C. 2151.414(E)

{¶ 23} In appellate counsel’s first potential assignment of error, she argues that the

trial court erred in finding, under R.C. 2151.414(E)(1), that appellant failed to remedy the

conditions causing the children to be placed outside the children’s home. Likewise,

appellant raises the same argument in her second assignment of error. Further, in

appellate counsel’s second and third potential assignments of error, she contends that the

trial court erred in finding mother committed abuse or allowed the children to suffer

neglect, and that the seriousness, nature, or likelihood of recurrence of the abuse or

neglect makes the children’s placement with the mother a threat to the children’s safety

under R.C. 2151.414(E)(15). Because each of these assignments of error challenge the

juvenile court’s findings under R.C. 2151.414(E) and its concomitant determination that

the children cannot be placed with appellant within a reasonable time or should not be

placed with appellant, we will address the assignments of error simultaneously.

{¶ 24} Here, the juvenile court found that the children could not and should not be

placed with appellant within a reasonable period of time under R.C. 2151.414(E).

Specifically, the court found that R.C. 2151.414(E)(1), (4), and (15) applied with respect

to appellant.

10. {¶ 25} R.C. 2151.414(E) provides, in relevant part:

In determining at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code whether a child cannot be placed with either parent within a

reasonable period of time or should not be placed with the parents, the court

shall consider all relevant evidence. If the court determines, by clear and

convincing evidence, * * * that one or more of the following exist as to

each of the child’s parents, the court shall enter a finding that the child

cannot be placed with either parent within a reasonable time or should not

be placed with either parent:

(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.

11. ***

(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;

***

(15) The parent has committed abuse as described in section

2151.031 of the Revised Code against the child or caused or allowed the

child to suffer neglect as described in section 2151.03 of the Revised Code,

and the court determines that the seriousness, nature, or likelihood of

recurrence of the abuse or neglect makes the child’s placement with the

child’s parent a threat to the child’s safety.

{¶ 26} Appellant, and her appointed counsel, assert that the juvenile court erred in

finding that she failed to remedy the conditions causing the children to be placed outside

the children’s home under R.C. 2151.414(E)(1). Moreover, counsel contends that the

juvenile court erroneously found that appellant committed abuse or allowed the children

to suffer neglect under R.C. 2151.414(E)(15).

{¶ 27} At the outset, we note that R.C. 2151.414(E) directs a juvenile court to

enter a finding that the children cannot be placed with either parent within a reasonable

time or should not be placed with either parent when any of the enumerated factors are

found to be applicable. Thus, even if the juvenile court erred in concluding that R.C.

12. 2151.414(E)(1) and (15) was applicable, its findings under R.C. 2151.414(E)(4) are

sufficient to support its conclusion that the children could not be placed with appellant

within a reasonable time or should not be placed with appellant. Nonetheless, we find

that the juvenile court’s findings under R.C. 2151.414(E)(1) and (15) were not against the

manifest weight of the evidence.

{¶ 28} Concerning the juvenile court’s finding under R.C. 2151.414(E)(1), the

record contains ample evidence to demonstrate that appellant failed to remedy the

conditions causing the children to be placed outside the children’s home. As stated by

the juvenile court, the children were removed “due to concerns for poor supervision,

parenting concerns, mental health concerns for [appellant], and sexual and physical abuse

of the children.”

{¶ 29} At the hearing on the motion for permanent custody, LCCS caseworker,

Sasha Dacres, testified that LCCS developed a case plan for appellant, which included a

parenting program, a mental health assessment, domestic violence services, and a

psychological evaluation. Further, appellant was expected to secure suitable housing.

Dacres noted that appellant completed the parenting program and engaged in mental

health services through Harbor Behavior Health. However, appellant was unable to

secure independent housing suitable for herself and her six children. Currently, appellant

resides in a single-family home with her sister and her sister’s two children. Moreover,

according to Dacres, appellant exhibited “a lot of resistance” concerning the

psychological evaluation. Specifically, appellant visited Harbor, but the agency was

13. unable to obtain any information from Harbor because appellant revoked her consent for

the release of such information. Subsequently, appellant refused to sign a release for

several months after visiting Harbor. Ultimately, appellant failed to schedule an

appointment with Harbor to have her psychological evaluation completed. Once LCCS

was able to communicate with Harbor, it was discovered that appellant’s treatment plan

did not adequately address the issues concerning the children, namely the sexual abuse

that had occurred. Upon further questioning, Dacres stated that appellant had not

completed the psychological evaluation as of the date of the hearing. She also indicated

that appellant was persistent in her refusal to acknowledge the sexual abuse that had

occurred in the home.

{¶ 30} With regard to the issue of appellant’s poor supervision of the children,

Dacres testified that she observed appellant’s supervised visits with the children during

the pendency of this case. Based on her observations, Dacres stated that appellant had

little to no interaction with the children. Dacres also noted appellant’s requests to

reschedule or shorten several of the visits to accommodate her school schedule.

{¶ 31} Dacres’s testimony was echoed by the LCCS supervisor assigned to this

case, Holly Mangus, who stated that appellant refused to accept that the children had

been abused, instead blaming her sister for “[putting] thoughts into the mind of the

children.” Despite the physical evidence supporting the sexual abuse allegations,

appellant continued to deny that the children were sexually abused. Mangus also testified

that appellant’s cooperation with LCCS throughout this process has been “very poor.”

14. Mangus based her assessment of appellant’s cooperation on appellant’s revocation of

consent for the agency to communicate with health professionals and her persistent

refusal to subsequently sign such releases despite her attorney’s permission to do so.

Concerning appellant’s supervision of the children, Mangus testified that appellant was

“parenting from the couch,” meaning she failed to engage the children or interact with

them.

{¶ 32} Finally, the children’s guardian ad litem, Robin Fuller, also testified at the

hearing. When asked to describe her observations of appellant’s supervised visits with

the children, Fuller stated:

It’s very chaotic. The kids all want her attention. Usually she has

the baby on her lap. She’s kind of oblivious to the other kids. * * * During

the visits she really isn’t focused on the kids. She looks frustrated,

overwhelmed. She doesn’t watch what they’re doing. At one point myself

and another parent that was in the room had to redirect [one of the children]

because she was trying to plug stuff into a socket that had been covered.

And she was trying to take the cover off, and I told [appellant] twice that

was happening, but she doesn’t respond. She just kind of sits there. * * *

But she really doesn’t engage with the kids. She’s just kind of there

physically but not mentally.

{¶ 33} In light of the foregoing testimony presented at the hearing, we cannot say

that the juvenile court’s conclusion that appellant failed to remedy the problems that

15. initially caused the children to be removed from the home was against the manifest

weight of the evidence. Consequently, appellate counsel’s first potential assignment of

error and appellant’s second assignment of error are not well-taken.

{¶ 34} In addition to the juvenile court’s findings under R.C. 2151.414(E)(1), the

court also found that appellant committed abuse or allowed the children to suffer neglect

under R.C. 2151.414(E)(15). We find the evidence presented above to be supportive of

the juvenile court’s findings under R.C. 2151.414(E)(15). In particular, we conclude that

appellant’s neglect is demonstrated via her refusal to take the children’s reports of sexual

abuse seriously, and subsequent failure to remove the children from the environment in

which they were being abused. In addition, evidence was presented at the hearing

relating to physical abuse suffered by the children. Specifically, an incident occurred in

October 2009 in which one of the children, who was unsupervised at the time, was

burned with a hair dryer that was being used to keep the child warm. Appellant was

subsequently convicted of child endangering as a result of this incident. Appellant also

acknowledged at the hearing that appellant utilized discipline tactics involving forcing

the children to stand in a corner until their feet hurt, and threatened to have the children

“whooped” with a belt by their father if they moved from the corner before she told them

to do so. Based on this evidence, we cannot say that the juvenile court’s findings under

R.C. 2151.414(E)(15) were against the manifest weight of the evidence. Accordingly,

appellate counsel’s second and third potential assignments of error are not well-taken.

16. C. Best Interests of the Children Under R.C. 2151.414(D)(1)

{¶ 35} In her third assignment of error, appellant argues that the trial court erred in

finding that a grant of permanent custody to LCCS was in the children’s best interests

under R.C. 2151.414(D)(1).

{¶ 36} R.C.2151.414(D)(1) provides:

(D)(1) In determining the best interest of a child * * *, the court shall

consider all relevant factors, including, but not limited to, the following:

(a) The interaction and interrelationship of the child with the child’s

parents, siblings, relatives, foster caregivers and out-of-home providers, and

any other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or

through the child’s guardian ad litem, with due regard for the maturity of

the child;

(c) The custodial history of the child, including whether the child

has 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, or the child has 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 and, as described in division (D)(1) of section

17. 2151.413 of the Revised Code, the child was previously in the temporary

custody of an equivalent agency in another state;

(d) The child’s need for a legally secure permanent placement and

whether that type of placement can be achieved without a grant of

permanent custody to the agency;

(e) Whether any of the factors in divisions (E)(7) to (11) of this

section apply in relation to the parents and child.

For the purposes of division (D)(1) of this section, a child shall be

considered to have entered the temporary custody of an agency on the

earlier of the date the child is adjudicated pursuant to section 2151.28 of the

Revised Code or the date that is sixty days after the removal of the child

from home.

{¶ 37} Here, with regard to its consideration of the children’s best interests, the

juvenile court stated: “The court has considered all of the best interest factors contained

in R.C. 2151.414(D)(1) and the Court further finds that it is in the best interest of [the

children] that permanent custody be awarded to LCCS.” Nonetheless, appellant argues

that the court “offered no clear analysis of each of the factors and for each of the

children.”

{¶ 38} Regarding the mandate set forth in R.C. 2151.414(D)(1), we note that the

trial court is required to consider the factors set forth therein. Thus, the statute does not

require the juvenile court to provide a “clear analysis” of each of the factors so long as

18. the record clearly demonstrates that they were considered in arriving at the best interest

determination. Moreover, we find that the juvenile court in this case did, in fact, detail its

reasoning for finding that permanent custody was in the children’s best interests.

{¶ 39} Under R.C. 2151.414(D)(1)(a), the court found that the children were “very

bonded” to one another, and further found that the children were doing well in their foster

placements. This finding was supported by testimony elicited from Dacres and Mangus.

As to R.C. 2151.414(D)(1)(c), the court noted that the children had been removed from

the home for 14 months as of the date of the hearing. As for the children’s wishes under

R.C. 2151.414(D)(1)(b), Dacres testified that only one of the children consistently

expressed a desire to be reunified with appellant. Pursuant to R.C. 2151.414(D)(1)(d),

the court specifically found that the children were “in need of a legally secure permanent

placement and that an award of permanent custody will facilitate an adoptive placement.”

As to the wishes of the children, as expressed through the guardian ad litem, the court

underscored Fuller’s recommendation of permanent custody to LCCS based on

appellant’s failure to protect the children. Further, Dacres testified at the hearing that

only one of the children consistently expressed a desire to be reunited with appellant.

{¶ 40} Having thoroughly reviewed the record before us, we cannot agree with

appellant that the juvenile court failed to consider the factors involved in determining the

children’s best interests under R.C. 2151.414(D)(1). Rather, we conclude that the

juvenile court’s determination that permanent custody was in the children’s best interests

19. was supported by clear and convincing evidence, and was not against the manifest weight

of the evidence.

{¶ 41} Accordingly, appellant’s third assignment of error is not well-taken.

III. Conclusion

{¶ 42} This court, as required under Anders, has undertaken our own examination

of the record to determine whether any issue of arguable merit is presented for appeal.

We have found none. Accordingly, we grant counsel’s motion to withdraw.

{¶ 43} The judgment of the Lucas County Court of Common Pleas, Juvenile

Division, is affirmed. Costs are hereby assessed to appellant in accordance with 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. JUDGE CONCUR. _______________________________ 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.

20.