In re R.S.

[Cite as In re R.S., 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

In RE: R.S., ET AL.,                          :
                                              :
Minor Children                                :
                                              :            No. 111353
[Appeal by Ro. Ba., Mother]                   :



                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: DISMISSED
                 RELEASED AND JOURNALIZED: December 8, 2022


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                       Case Nos. AD20904581 and AD20904582


                                        Appearances:

                 John H. Lawson, for appellant.

EMANUELLA D. GROVES, J.:

                   Appellant-mother Ro. Ba. (“Mother”) appeals from the judgment of

the Cuyahoga County Common Pleas Court, Juvenile Division (the “juvenile court”),

terminating her parental rights and granting permanent custody of her minor

children, R.S. (d.o.b. December 17, 2017) and J.S (d.o.b. December 21, 2018), to
appellee, the Cuyahoga County Department of Children and Family Services

(“CCDCFS” or the “Agency”).1

               Mother’s appointed counsel has filed a motion to withdraw pursuant

to Anders v. California, 

, 

, 

 (1967), asserting

that, following an examination of the record, there are no meritorious grounds for

appeal. We held counsel’s motion in abeyance and afforded Mother an opportunity

to file a pro se brief. Mother has failed to take advantage of this opportunity.

Following our independent review, we grant appointed counsel’s motion to

withdraw and we dismiss the appeal.

                         Procedural and Factual History

               On May 6, 2020, CCDCFS filed a complaint alleging that R.S. and J.S.

were neglected, abused, and dependent children as defined by R.C. 2151.03(A)(3),

2151.031(B), and 2151.04(D).        The complaint averred, in part, the following

particulars:

       1. On May 5, 2020, the mother and children were in a car while gunfire
       was exchanged between the car’s driver and another individual on the
       street.

       2. The car fled the police while the children were in the back seat; the
       children were not properly secured in car seats.

       3. Mother was arrested and charged with child endangering in Lorain
       Municipal Court.

       4. Mother lacks judgment necessary to provide safe and adequate care
       for the children.


       1 The children’s father (“Father”), now deceased, was not a party to this appeal but
will be referenced in the discussion to provide context.
      5. Mother has unresolved issues in a criminal case in Brooklyn’s
      Mayor’s Court.

      6. A sibling of the two (2) children was previously adjudged dependent
      due to Mother’s incarceration and the sibling was ultimately committed
      to the legal custody of a relative.

      7. The father of R.S. and alleged father of J.S., [Father], had two (2)
      pending criminal cases for domestic violence and aggravated menacing
      in the Garfield Heights Municipal Court.

      8. [Father] does not have consistent contact with the children.

      9. The alleged father of J.S., John Doe, has failed to establish paternity,
      and has failed to support, visit or communicate with the children since
      birth.

              Along with the complaint, CCDCFS also filed a motion for

predispositional temporary custody of the children to the agency. On May 7, 2020,

the juvenile court granted the motion and the children were placed in the

predispositional temporary custody of CCDCFS.

               On June 16, 2020, the Agency filed the case plan that was developed

to assist Mother in remedying the issues that led to the children’s removal. The

developed case plan required that Mother attend parenting classes to aid in the

development of the skills necessary to provide safe and adequate care of the

children. It also required that Mother complete all recommended drug and alcohol

treatment, as well as submit to random drug screens. In addition, Mother had to

engage in recommended mental health treatment. Further, the case plan required

Mother to engage in all recommended anger management and domestic violence

programs. Finally, it required that Mother obtain safe and adequate housing for

herself and the children.
              On August 4, 2020, the magistrate conducted an adjudicatory

hearing. On August 21, 2020, the juvenile court adjudicated the children neglected

and dependent and placed them in the temporary custody of CCDCFS.

              On April 7, 2021, CCDCFS filed a motion to modify temporary

custody to permanent custody. In support of the motion, CCDCFS asserted that the

condition listed in R.C. 2151.414(B)(1) existed and that one or more of the factors

listed in R.C. 2151.414(E) applied to the parents in this matter. CCDCFS further

asserted that, after considering all relevant factors, including those listed at

R.C. 2151.414(D)(1)(a-e), the evidence to be presented establishes clearly and

convincingly that an award of permanent custody is in the children’s best interest.

              In the affidavit filed in support of the Agency’s motion, caseworker

Quenisha Smith (“Smith”) averred in pertinent part, as follows:

      2. The children were committed to the predispositional temporary
      custody of CCDCFS on May 7, 2020.

       3. The children were adjudicated neglected and dependent pursuant
      to an entry journalized on August 19, 2020.

      4. The children were committed to the temporary custody of CCDCFS
      pursuant to an entry journalized on August 21, 2020.

      5. A case plan was filed with Juvenile Court and approved which
      required that mother engage in services to address concerns for
      parenting, anger management, and domestic violence, housing, and
      substance abuse.

      6. Mother was referred to counseling services and to intake assessment
      but cancelled the appointment twice. She subsequently completed the
      assessment in December 2020 but failed to engage in recommended
      services. An additional referral was made in March 2021, but that
      appointment was missed and has not been rescheduled.
      7. Mother has completed an online parenting class but has failed to
      address the concerns for substance abuse and housing. Mother has
      continued to use marijuana and is currently homeless.

      8. A case plan was filed with the Juvenile Court and approved which
      requires alleged father [Ja.Si.] to engage in services to address concerns
      for parenting, anger management, and domestic violence. [Ja.Si.] was
      also required to establish paternity and develop a relationship with the
      children.

      9. [Ja.Si.] has not engaged in the recommended services. He was
      offered visitation with the children, but he refused to engage at the
      time.

      10. Parents have verbally indicated a willingness to engage in services
      but have not followed through despite repeated referrals. A lack of case
      plan progress has prevented the Agency from requesting an extension
      of temporary custody.

      11. Parents have not consistently visited with the children. Mother
      requested virtual visits, however she has failed to consistently
      participate in these visits. [Ja.Si.] has not visited with the children.

      12. CCDCFS has attempted to identify relatives that would be able to
      care for the children, however none have been approved at this time.

      13. The children have been placed in foster care since being committed
      to the emergency custody of CCDCFS. They are currently in their
      second foster home, the children have adopted well and developed an
      attachment to their foster parents. The children are well cared for, and
      all basic needs are being met. The children are at an age to benefit from
      a permanent placement.

      14. Alleged Father, John Doe, has failed to make himself available for
      case plan services and has abandoned the children.

              In response, on July 20, 2021, Father filed a motion requesting that

the juvenile court grant legal custody of the children to their paternal grandmother

C.S. Father asserted that C.S. is willing and able to provide for the children’s basic

needs and was a superior alternative to continuing them in the Agency’s temporary
custody or placing them in the Agency’s permanent custody. In addition, Father

asserted that C.S. had a strong relationship with the children and that she was not

responsible for them being removed from their previous placement.

               On July 28, 2021, Father’s appointed counsel filed a suggestion of

death indicating that he had learned that Father died on July 19, 2021.

              On October 25, 2021, the Agency filed a motion to amend its

previously filed motion to modify temporary custody to permanent custody to a

motion to grant legal custody to T.W., a maternal cousin. In the brief in support, the

Agency again noted that Mother had not been compliant with the services and was

unable to provide a safe and permanent home for the children. The Agency also

noted that Father had established paternity prior to his death. The Agency further

noted that T.W. was willing to provide a permanent home for the children. On

November 18, 2021, the Agency filed a notice of voluntary withdrawal of the motion

to amend its previously filed motion for permanent custody to legal custody to T.W.2

              On January 24, 2022, the juvenile court held a dispositional hearing.

Dispositional Hearing

              At the hearing,3 CCDCFS presented the testimony of Smith, whose

testimony conformed to the aforementioned affidavit she provided in support of the

agency’s motion for permanent custody. Smith was assigned the case in May 2020.




      2 T.W. later indicated that he preferred to adopt the children, rather than gain legal

custody. Ultimately T.W. withdrew himself from consideration.
      3 Mother did not appear at the hearing.
Smith testified about the case plan the Agency developed to assist Mother to remedy

the issues that caused the children’s removal and about Mother’s level of

engagement or lack therewith.

              Smith testified that Mother was referred to her Neighborhood

Collaborative, offered through Cuyahoga Metropolitan Housing Authority

(“CMHA”), as well as to St. Martin de Porres Family Center, to address the Agency’s

concerns that Mother lacked parenting skills. However, Mother never utilized the

CMHA referral and attended only one of eight sessions offered through St. Martin

de Porres Family Center. Mother claimed to have completed an online parenting

course, but the Agency was unable to verify whether the content of the course was

appropriate based on the children’s ages and their respective stage of development.

Smith testified that even if Mother had completed the course, there was no evidence

that she benefited from the course.

              Smith testified that the Agency’s concerns that Mother lacked

parenting skills never subsided. Smith noted that Mother had to be constantly

redirected to behave appropriately during visits with the children, whether the visits

were in-person or virtually. For example, Mother had to be constantly advised not

to tell the children she was coming to get them soon. In one instance, Mother told

the children she was coming to get them, and they waited at the window for hours,

but Mother never arrived.

              Smith testified that the Agency referred Mother to Moore Counseling

to address anger management and domestic violence issues. Mother did a partial
assessment but never followed through with any of the services Moore Counseling

offered. Smith testified despite facilitating transportation and providing

opportunities to engage virtually, Mother failed to avail herself of any

accommodations the Agency or Moore Counseling provided.

               Smith testified that the Agency’s domestic violence concerns never

abated, noting that Mother once appeared for a virtual visit with a scar on her head.

When asked, Mother told the children that it was the result of a car accident.

However, Smith testified that later, at the only in-person visit Mother attended,

Mother’s biological mother informed the Agency that Mother received the scar

during a domestic violence altercation “with the newer individual she was engaged

with. The Agency was also informed that Mother had to be hospitalized because of

the altercation.”

               Smith testified that Mother was also referred to Moore Counseling to

address mental health and substance abuse issues. At the partial assessment

referenced earlier, Mother disclosed that she used marijuana, so Moore Counseling

placed her in non-intensive outpatient treatment. However, Smith testified that the

results of Mother’s drug screen indicated a much greater level of usage, so Moore

Counseling placed her in the intensive outpatient treatment. Smith testified that

Mother never followed through with any of the services or recommendations and

never submitted to the Agency’s request for random drug screens.

               Smith testified about the housing component of the case plan, noting

that Mother disclosed that she was displaced or homeless. Mother disclosed that
she slept in cars, motels, hotels, and at different individuals’ houses. Smith referred

Mother to the Neighborhood Collaborative and made referrals to several women’s

shelters, but Mother failed to follow through. Smith testified that Mother once

claimed she was living with her biological mother, but Smith determined that this

was not true. At the time of the dispositional hearing, Smith did not know where

Mother was actually living.

               Smith testified that Mother was not consistently visiting the children.

Smith noted that the Agency had initially arranged for Mother to have in-person

visits with the children, but Mother requested virtual visits and the Agency obliged.

The Agency scheduled the virtual visit for every Friday at a specified time. Smith

testified that Mother routinely missed these visits and would not call to reschedule

and that Mother’s last in-person visit was in April 2021.

               Smith testified that the children were in a foster home and had been

in the same home since December 2020. Smith noted that she had observed the

children’s loving interaction with their foster parents, whom they affectionately call

“mom and dad.” Smith added that the foster parents were very committed to the

children and had consistently indicated their willingness to provide a permanent

home for the children.

               Based upon all the foregoing, Smith opined that returning the

children to Mother would not be in their best interest and recommended that the

juvenile court grant the Agency’s motion for permanent custody.                 Smith

underscored that Mother had failed to engage in the recommended services to
address any of the Agency’s concerns. Smith also opined that granting legal custody

to the children’s maternal grandmother would not be in their best interest, noting

that five of the maternal grandmother’s six children, including the mother in this

case, had been permanently removed from her care.

               In addition, Smith opined that it would not be in the children’s best

interest to grant legal custody to their paternal grandmother C.S. Smith noted that

Mother lost custody of her oldest child to C.S., and that the relationship has been

toxic since that time. Smith also noted that the level of toxicity had increased

because of C.S.’s belief that Mother had something to do with the murder of her son,

the children’s father.

               C.S. testified at the dispositional hearing. The following pertinent

exchange took place:

      Q. Ma’am, is it your intention today to become the legal custodian of
      the children?

      A. Not necessarily. If I had to, I would. I’m not necessarily trying to
      take away their parents’ rights. I would like to help [Mother] to
      establish and become a good mother.

               The children’s guardian ad litem, Pamela Hawkins, (the “GAL”), who

previously filed a written report, likewise recommending that permanent custody be

granted to the Agency, indicated that her sentiments favoring a grant of permanent

custody to the Agency had not changed. The GAL also opined that it would not be

in the children’s best interest for the juvenile court to grant legal custody to either

the paternal grandmother or to the maternal grandmother.
                 On February 15, 2022, the juvenile court journalized an entry

terminating all parental rights and granting permanent custody of the children to

the Agency.

                 Mother now appeals.

                                 Law and Analysis

Anders Standard and Potential Issues for Review

                 In Anders, the United States Supreme Court held that if appointed

counsel, after a conscientious examination of the case, determines the appeal to be

wholly frivolous, he or she should advise the court of that fact and request

permission to withdraw. In re C.S., 8th Dist. Cuyahoga No. 105700, 2017-Ohio-

8664, ¶ 10, citing Anders, 

, 

, 

. This

request, however, must be accompanied by a brief identifying anything in the record

that could arguably support the appeal. 

 Further, counsel must also furnish the

client with a copy of the brief and allow the client sufficient time to file his or her

own brief. 

                 Once the appellant’s counsel satisfies these requirements, this court

must fully examine the proceedings below to determine if any arguably meritorious

issues exist. Id.; Loc.App.R. 16(C). If we determine that the appeal is wholly

frivolous, we may grant counsel’s request to withdraw and dismiss the appeal

without violating constitutional requirements or we may proceed to a decision on

the merits if state law so requires. Id.; Anders; Loc.App.R. 16(C) ; see also State v.

Sims, 

, 

,¶ 7-9, (8th Dist.).
               Although Anders arose in a criminal context, this court has applied

Anders in appeals involving the termination of parental rights. In re J.L., 8th Dist.

Cuyahoga No. 109626, 

, citing In re A.M., 8th Dist. Cuyahoga

No. 106789, 

, ¶ 11; In re C.S. at ¶ 13.

       Previously, former Loc.App.R. 16(C) set forth the specific procedure
       governing Anders briefs and motions to withdraw followed by this
       court. That rule was amended on February 1, 2019, and no longer
       includes any procedure for the filing of Anders briefs. However, as this
       court has previously stated, “the absence of a local rule governing
       Anders briefs does not prevent this court from accepting these briefs
       nor from following the procedure the United States Supreme Court
       outlined in Anders.” Sims at ¶ 7-14 (discussing “the duties of appellate
       counsel when filing an Anders brief and our duties when ruling on
       counsel’s motion to withdraw on the grounds that the appeal would be
       frivolous” even in the absence of former Loc.App.R. 16(C), different
       Ohio appellate courts’ views on Anders briefs and this court’s decision
       that “until the Ohio Supreme Court resolves the split among the Ohio
       Appellate Districts regarding the application of Anders * * * we will
       continue to adhere to the procedures outlined in Anders pertaining to
       both counsel and the court when appointed appellate counsel files a
       motion to withdraw because an appeal would be wholly frivolous”); see
       also State v. Lariche, 8th Dist. Cuyahoga No. 108512, 

.

Id. at ¶ 36.

               In this matter, Mother’s appointed counsel has not set forth potential

assignments of error but instead has set forth a detailed analysis of the record and

the controlling case law and asserts:

       The undersigned has read the permanent custody trial transcript of
       January 24, 2022 and reviewed all pertinent documents from the trial
       court’s records, including motions, orders, and the Guardian ad Litem’s
       reports.

       ***
      Based upon this review, the undersigned cannot discern any
      meritorious issues.

      ***

      There is clear and convincing evidence presented at trial that Mother
      has failed to remedy the issues which caused the removal of the two (2)
      children on May 7, 2020. Mother has shown a lack of commitment
      towards the two (2) children and is unable to provide a home for the
      children. She has lost custody of three (3) other children. The factual
      elements pursuant to R.C. 2151.414(E)(4) have been proven. (Mother’s
      lack of commitment by clear and convincing evidence).

      Additionally, the evidence that the permanent custody decision is in the
      child[ren]’s best interest pursuant to R.C. 2151.414(D) has also been
      proven by clear and convincing evidence.

      Therefore, the undersigned submits this Anders Brief as no meritorious
      issues exist in the trial transcript and records.

Independent Review

               At the outset, we note, it is well established that a parent has a

fundamental right to raise and care for his or her child. In re L.M., 8th Dist.

Cuyahoga No. 106072, 

, citing In re C.F., 

, 2007-

Ohio-1104, 

, ¶ 28; In re K.H., 

, 

,

. We recognize “that termination of parental rights is ‘“the

family law equivalent of the death penalty in a criminal case.”’” In re V.C., 8th Dist.

Cuyahoga Nos. 102903, 103061, and 103367, 

, quoting In re J.B.,

8th Dist. Cuyahoga No. 98546, 

, quoting In re Hoffman, 

, 

, 

, ¶ 14.

               However, it is “sanctioned when necessary for the welfare of a child.”

In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 

, ¶ 7, citing
In re Wise, 

, 

 (9th Dist.1994). Where parental

rights are terminated, the goal is to create “a more stable life for the dependent

children” and to “facilitate adoption to foster permanency for children.” In re N.B.,

8th Dist. Cuyahoga No. 101390, 

, citing In re Howard, 5th Dist.

Tuscarawas No. 85 A10-077, 

 (Aug. 1, 1986).

              The termination of parental rights is governed by R.C. 2151.414. In re

M.H., 8th Dist. Cuyahoga No. 80620, 

, ¶ 22. R.C. 2151.414 sets

forth a two-part test courts must apply when deciding whether to award permanent

custody to a public services agency.

First Prong: R.C. 2151.414(B)(1)(a)-(e)

              Under the first prong, the juvenile court must find by clear and

convincing evidence one of the following five factors:

      (a) The child is not abandoned or orphaned, 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, 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 if, as described in division (D)(1)
      of section 2151.413 of the Revised Code, the child was previously in the
      temporary custody of an equivalent agency in another state, 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 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 2151.413 of the Revised Code, the child was
      previously in the temporary custody of an equivalent agency in another
      state.

      (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.

R.C. 2151.414(B)(1)(a)-(e).

              Only one of the factors must be present for the first prong of the

permanent custody analysis to be satisfied. In re S.S., 8th Dist. Cuyahoga No.

109356, 

, ¶ 28, citing In re L.W., 8th Dist. Cuyahoga No. 104881,

.

              In this matter, the juvenile court found, among others, pursuant to

R.C. 2151.414(B)(1)(a), that the children could not be placed with either parent

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

              In assessing whether a 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

under R.C. 2151.414(B)(1)(a), a juvenile court must consider the factors outlined in

R.C. 2151.414(E). In re A.V., 8th Dist. Cuyahoga No. 101391, 

, ¶ 58;

In re R.M., 8th Dist. Cuyahoga Nos. 98065 and 98066, 

; In re

B.P., 8th Dist. Cuyahoga Nos. 107732 and 107735, 

, ¶ 13.

              A juvenile court is only required to find that one of these factors is met

in order to properly find that a child cannot or should not be placed with a parent.
In re Ca.T., 8th Dist. Cuyahoga No. 108969, 

, citing In re V.C.,

8th Dist. Cuyahoga Nos. 102903, 103061, and 103367, 

, at ¶ 42.

              Pursuant to R.C. 2151.414(E), the juvenile court found that

      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 considering
      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.

              Specifically, the juvenile court found:

      The children were removed when they were with their mother in a car
      during a shootout and a high-speed chase with no car seat. The mother
      was charged with child endangering, and still has an open warrant for
      her arrest for this charge.

      ***

      The children’s mother has not remedied the conditions causing
      removal as she has not resolved the criminal charges of child
      endangering or the open warrant for her arrest.

      ***

      She has shown a lack of commitment to the children by failing to visit
      and by failing to complete the services listed on the case plan in order
      to be able to provide for their basic needs.

      ***

      The mother’s visits are inconsistent, and [despite being made] virtual
      at mother’s request. The last in-person visit with the mother was in
      March or April 2021.
      The mother has not completed the case plan, and her current residence
      is unknown.

      The father is deceased from a homicide that occurred in July 2021.

              Indeed, the juvenile court’s finding above is supported by clear and

convincing evidence. Smith provided exhaustive testimony that the agency

developed a case plan designed to remedy the issues that led to the children’s

removal. Yet, the overwhelming evidence established that Mother failed to commit

to the case plan’s objectives. It is undisputed, that Mother failed to engage in, and

therefore could not benefit from, the very services designed to achieve reunification

with her children.

              The record clearly demonstrates that the children could not be placed

with Mother within a reasonable time or should not be placed with Mother.

Similarly, as an alternative to placement with Mother, the children could not be

placed with Father, who died from a homicide in July 2021.

              Our review of the record reveals that the juvenile court’s findings

under the first prong are supported by competent and credible evidence. Finding

no error with the juvenile court’s findings under the first prong, we consider the

court’s finding under the second prong.

Second Prong: R.C. 2151.414(D)

              The second prong also requires the juvenile court to find by clear and

convincing evidence that granting permanent custody to the agency is in the best

interest of the child. We review a trial court’s best-interest determination under

R.C. 2151.414(D) for an abuse of discretion. In re D.A., 8th Dist. Cuyahoga No.
95188, 

, ¶ 47. In this regard, ‘“[a] trial court’s failure to base its

decision on a consideration of the best interests of the child constitutes an abuse of

discretion.”’ In re N.B., 8th Dist. Cuyahoga No. 101390, 

.

               R.C. 2151.414(D)(1) sets forth best-interest factors that the court must

consider when making the best-interest determination under R.C. 2151.414(D)(1),

including:

      (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 * * *;

      (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 * * *;

      (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.

               The juvenile court has considerable discretion in weighing these

factors. In re D.A. at ¶ 47. Although a trial court is required to consider each relevant

factor under R.C. 2151.414(D)(1) in making a determination regarding permanent

custody, “there is not one element that is given greater weight than the others

pursuant to the statute.” In re Schaefer, 

, 

, 

. Moreover, “[R.C. 2151.414(D)(1)] requires a weighing of all the
relevant factors * * * [and] requires the court to find the best option for the child

* * *.” Id. at ¶ 64.

                Further, the Ohio Supreme Court, in In re A.M., 

,

, 

 held that R.C. 2151.414(D)(1) does not require a

juvenile court to expressly discuss each of the best-interest factors in R.C.

2151.414(D)(1)(a) through (e). Id. at ¶ 31. Consideration is all the statute requires.

Although a reviewing court must be able to discern from the magistrate’s or juvenile

court’s decision and the court’s judgment entry that the court satisfied the statutory

requirement that it consider the enumerated factors, we may not graft onto the

statute a requirement that the court include in its decision a written discussion of or

express findings regarding each of the best-interest factors. Id.

                We begin our inquiry into the second prong by noting the juvenile

court articulated that it considered the relevant factors set forth under

R.C. 2151.414(D)(1) when assessing the child’s best interests. The record before us

indicates that the juvenile court satisfied the statutory requirements herein.

                The juvenile court explained its reasoning as follows:

       The children have been in the same foster home since December 2020.
       The children call their foster parents “Mom” and “Dad.”

       ***

       The children’s father is deceased. The children’s mother has not
       remedied the conditions causing removal as she has not resolved the
       criminal charges of child endangering or the open container warrant
       for her arrest. She has shown a lack of commitment to the children by
       failing to visit and by failing to complete the services listed on the case
       plan in order to be able to provide for their basic needs.
      ***

      The paternal grandmother who is asking for legal custody last visited
      the children approximately one or two months ago. She lives with her
      son Jason and her grandson Terrance in a motel. She does not have
      sufficient income to provide for the children. She has not requested
      overnight visits and when asked on the witness stand if she wanted to
      be legal custodian: her first answer was “[n]ot necessarily.” The GAL
      report for the children more than once points out a similar vacillation
      in the paternal grandmother’s desire. The GAL ultimately recommends
      permanent custody as being in the children’s best interest.

      ***

      The children are in a home where they are clearly bonded and doing
      well. The court notes that the mother, through counsel filed a motion
      for legal custody to maternal grandmother. The mother did not
      support the motion for legal custody to the paternal grandmother, and
      based on the testimony and evidence presented, the nature of the
      relationship between mother and paternal grandmother is unclear.
      This is important because one significant aspect of legal custody is the
      preservation of residual parental rights. See In re Akwal, 

 (Ohio Ct.App. 1994).

              Undeniably, the best-interest factors that the juvenile court must

consider under the second prong was encapsulated above. The juvenile court’s

termination of parental rights and award of permanent custody to the Agency is

supported by clear and convincing evidence. The children could not be placed with

Mother, who failed to engage with the objectives of case plan and thus failed to

remedy the conditions that caused the children’s removal.         Their father was

deceased, and neither grandparent were viable alternatives. The children deserve

permanency the foster parents were willing and able to provide.

              Consequently, following a thorough, independent examination of the

record as required by Anders, we conclude that the juvenile court did not abuse its
discretion in determining that an award of permanent custody was in the children’s

best interest and did not err when it awarded permanent custody to the Agency.

              Accordingly, we agree that there is no merit to the appeal and that this

appeal is wholly frivolous. We grant counsel’s motion to withdraw and dismiss this

appeal.

               Appeal dismissed.

      It is ordered that appellee recover from appellant costs herein taxed.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




EMANUELLA D. GROVES, JUDGE

CORNELIUS J. O’SULLIVAN, JR., J., CONCUR;
SEAN C. GALLAGHER, A.J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION)

SEAN C. GALLAGHER, A.J., CONCURRING IN JUDGMENT ONLY:

              I respectfully concur in judgment only based on the precedent from

this district authorizing the use of the Anders proceeding in custody and parental

rights cases. In re T.E., 8th Dist. Cuyahoga No. 104228, 

; In re J.L.,

8th Dist. Cuyahoga No. 109626, 

. This court needs to revisit

those decisions en banc. As noted by the majority, Loc.R. 16(C) (effective July 14,

2014) no longer exists. Notwithstanding the rule change, this court continues to

apply the principles of Anders v. California, 

, 

, 

 (1967), including permitting extra time for the parent to file a pro se brief in

response to appointed counsel’s request to withdraw.

              On May 25, 2022, appellant was offered approximately 45 days to file

her pro se brief following submission of the initial briefing. This delay and that

associated with appointing new counsel should our Anders review reveal colorable

issues are incompatible with App.R. 11.2(C), which expedites parental rights cases

with limited exceptions to the deadlines only for the “most unusual circumstances

and only for the most compelling reasons.”          See, e.g., In re N.C., 2d Dist.

Montgomery Nos. 28105 and 28117, 

 (concluding that Anders

is no longer applicable to the termination of parental rights in the Second District).

Anders does not present such a circumstance to extend the time within which a

parental rights appeal is heard and concluded.

              In light of our precedent, which this court is obliged to follow, I

reluctantly concur in judgment only.