[Cite as In re Kai.F., 2015-Ohio-4208.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

In re Kai.F. Court of Appeals No. L-15-1119 

 

 Trial Court No. JC 13234958 

 DECISION AND JUDGMENT

 Decided: October 6, 2015 

* * * * * 

 James J. Popil, for appellant. 

 Angela Y. Russell, for appellee. 

 

* * * * * 

OSOWIK, J. 

{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common 

Pleas, Juvenile Division, that terminated the parental rights of appellant mother, K.F., and 

granted permanent custody to appellee Lucas County Children Services (“agency” or 

“LCCS”). For the reasons that follow, the judgment of the trial court is affirmed. 
2. 

{¶ 2} Appointed counsel has filed a brief and requested leave to withdraw as 

counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 

(1967). Under Anders, if, after a conscientious examination of the case, counsel finds the 

appeal to be wholly frivolous, he should so advise the court and request permission to 

withdraw. Id. at 744. This request must be accompanied by a brief identifying anything 

in the record that could arguably support the appeal. Id. In addition, counsel must 

provide appellant with a copy of the brief and request to withdraw, and allow appellant 

sufficient time to raise any additional matters. Id. Once these requirements are satisfied, 

the appellate court is required to conduct an independent examination of the proceedings 

below to determine of the appeal is indeed frivolous; if it so finds, the appellate court 

may grant counsel’s request to withdraw and decide the appeal without violating any 

constitutional requirements. Id. 

{¶ 3} In this case, appellant’s appointed counsel has satisfied the requirements set 

forth in Anders, supra. This court further notes that appellant did not file a pro se brief in 

this appeal. 

{¶ 4} Accordingly, this court shall proceed with an examination of the potential 

assignment of error set forth by counsel. We have reviewed and considered the entire 

record from below, including the transcript of all proceedings and journal entries and 

original papers from the trial court, as well as the brief filed by counsel. Upon this 

review, we will determine if this appeal lacks merit and is, therefore, wholly frivolous. 
3. 

{¶ 5} The record reflects that Kai.F., biological child of appellant, was born in 

August 2013. At the time of the birth, both mother and child tested positive for cocaine 

and marijuana. 

{¶ 6} On September 4, 2013, LCCS filed a complaint in dependency, neglect and 

abuse. An emergency shelter care hearing was held that same day and the agency was 

granted interim temporary custody of Kai.F. On October 15, 2013, the agency filed an 

amended complaint with a request for permanent custody of Kai.F. On January 15, 2014, 

LCCS withdrew the amended complaint filed October 15, 2013, and proceeded on the 

original complaint filed September 4, 2013, with a goal of reunification. Mother 

stipulated to the facts of the complaint and to a finding of dependency, neglect and abuse 

and to an award of temporary custody of the agency. Case plan services put in place 

included a diagnostic assessment, referral to Unison, completion of an intensive 

outpatient substance abuse program, resolution of criminal matters related to outstanding 

warrants in Michigan, parenting classes and securing suitable housing. 

{¶ 7} On June 25, 2014, the agency again filed a motion for permanent custody. 

The matter proceeded to a final hearing on November 14, 2014, and March 17, 2015. By 

journal entry filed April 7, 2015, the trial court granted permanent custody of Kai.F. to 

LCCS. In its judgment entry, the trial court found, pursuant to R.C. 2151.414(B)(1)(a) 

and 2151.414(E)(1), (2), and (11), and by clear and convincing evidence, that Kai.F. 

 
4. 

could not and should not be placed with either parent within a reasonable time and that, 

pursuant to R.C. 2151.414(D), an award of permanent custody to LCCS was in the 

child’s best interest. It is from that judgment that mother appeals. 

{¶ 8} Appellant’s counsel sets forth the following potential assignment of error: 

The trial court erred in granting appellee Lucas County Children Services 

permanent custody as the decision was against the manifest weight of the 

evidence. 

{¶ 9} In granting a motion for permanent custody, the trial court must find that one 

or more of the conditions listed in R.C. 2151.414(E) exist as to each of the child’s 

parents. If, after considering all relevant evidence, the court determines by clear and 

convincing evidence that one or more of the conditions exists, 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. R.C. 2151.414(B)(1). Further, pursuant to R.C. 

2151.414(D), a juvenile court must consider the best interest of the child by examining 

factors relevant to the case including, but not limited to, those set forth in paragraphs 1-5 

of subsection (D). Only if these findings are supported by clear and convincing evidence 

can a juvenile court terminate the rights of a natural parent and award permanent custody 

of a child to a children services agency. In re William S., 75 Ohio St.3d 95, 661 N.E.2d 

738 (1996). Clear and convincing evidence is that which is sufficient to produce in the 

 
5. 

mind of the trier of fact a firm belief or conviction as to the facts sought to be established. 

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the 

syllabus. 

{¶ 10} The record in this case reflects that the trial court heard extensive testimony 

from several witnesses on behalf of the agency. Mother also testified on her own behalf. 

{¶ 11} Scott Bieniek, a therapist with Unison, testified he worked with mother 

when she attended group therapy in the intensive outpatient program beginning 

November 2013. Mother indicated to Bieniek that her drugs of choice were cannabis and 

cocaine. He became mother’s primary therapist in March 2014, at which time he 

attempted to get mother into aftercare treatment. Mother never fully engaged in that level 

of care and eventually dropped out of aftercare. Mother told Bieniek that she failed to 

comply because she had gone to Michigan, where she experienced some legal issues 

which included incarceration, and developed some medical issues which resulted in 

hospital stays. Bieniek requested verification of those events and mother eventually 

showed him papers which documented only one or two days of activity in Michigan 

during the prior six weeks. He never received full verification for the situations mother 

reported. At that time, mother was returned to the intensive outpatient program but was 

removed “quite shortly” because she was causing problems within the group. In June 

2014, one of mother’s urine screens tested positive for cocaine; on three other occasions 

in May and July, she refused to provide a urine sample. Mother never completed the 

substance abuse program and was discharged for non-compliance in July 2014. 
6. 

{¶ 12} Donita McGuire, a drug and alcohol counselor, testified that she admitted 

mother into the IOP program in October 2013 and was currently mother’s primary 

therapist. Mother completed IOP and moved into aftercare in November 2013. She 

attended aftercare and appeared to be doing well until she started missing sessions in the 

end of January 2014. McGuire stated that mother never fully engaged, which is why she 

was referred back to IOP for a three-week session in June 2014 after a positive drug 

screen for cocaine. Mother did not complete the IOP session, which led to her being 

discharged from Unison in July 2014. McGuire re-admitted mother in August 2014 and 

referred her back to IOP for at least three more weeks in order to verify that she was 

sober. Mother was again noncompliant, only meeting with her therapist one time before 

getting into an argument and being reassigned to McGuire. Initially, mother did well 

with McGuire, but she became noncompliant at the end of September 2014. Mother 

missed group and individual sessions in August, September and November and McGuire 

was not able to reach her for one or two weeks at a time. Mother tested positive for 

cocaine in September 2014. Mother told McGuire that she does not use cocaine and that 

when she tested positive it was because she was making the cocaine and selling it. 

{¶ 13} Christina DeSilvis, mother’s ongoing caseworker, testified as to the 

agency’s involvement in this case. The agency received a referral in August 2013 after 

mother came to Toledo and gave birth to Kai.F. Both mother and baby tested positive for 

marijuana and cocaine. The agency removed Kai.F. due to concerns of substance abuse 

 
7. 

and mother’s history with child protective services in Michigan. DeSilvis further 

testified as to her understanding that mother still had an active warrant in Wayne County, 

Michigan. She stated that mother has a total of seven biological children and that her 

parental rights as to four of them were terminated by the state of Michigan in 2012. One 

other child was in the legal custody of a relative and two others, Kai.F. and a newborn, 

were in the temporary custody of LCCS at the time of the final day of this hearing on 

March 17, 2015. 

{¶ 14} DeSilvis noted that mother’s seventh child, born in November 2014, also 

tested positive at birth for cocaine and marijuana. Mother re-entered the Unison program 

several days after the baby’s birth. She was eventually referred to a trauma group based 

on her disclosure of trauma and abuse as a child but she only attended one session and 

was discharged from that group in January 2015. At the time of the hearing, she was 

enrolled in aftercare but was having problems with attendance and compliance with urine 

screens. It was the caseworker’s understanding that mother had an outstanding warrant in 

Wayne County, Michigan, at the time of the final hearing. DeSilvis explained that 

mother was never referred to a parenting class due to her failure to complete substance 

abuse treatment, which must occur first. DeSilvis also testified that mother had reported 

some domestic violence in her relationship with a boyfriend. Mother was initially 

consistent with weekly visitation with Kai.F. in 2013 and early 2014. Her visitations 

became very inconsistent from April through July 2014 and then improved in August. 

 
8. 

DeSilvis testified that mother had her own apartment from November 2013 through 

February 2015, when she was evicted. When DeSilvis asked mother for her new address, 

mother was vague and asked her to send correspondence to the old address. At the time 

of the hearing, DeSilvis did not know where mother was residing. 

{¶ 15} DeSilvis eventually located the individual mother identified as the alleged 

father, but he stated he could not be the father because he had not seen mother since 

2012. Mother identified one other individual as a possible father; he attended one 

staffing at the agency but refused to provide any personal or contact information. Mother 

did not identify any other alleged father for Kai.F. 

{¶ 16} DeSilvis testified that Kai.F. was currently in foster care and that his needs 

were being met. Based on mother’s inability to maintain sobriety for a significant period 

of time or make other necessary progress, the agency’s goal at the time of the hearing 

was permanent custody for adoption. 

{¶ 17} DeSilvis testified that mother’s compliance with substance abuse treatment 

has been very inconsistent and said she had received reports as recently as two weeks 

before the hearing that mother was refusing drug screens. 

{¶ 18} Mother testified that she had attended parenting classes on her own through 

Toledo Ministry and that she attended seven trauma group sessions. She further testified 

that she had been prescribed Zoloft following a diagnosis of severe depression and 

Oxycodone for pain resulting from an automobile accident. She was about to begin 
9. 

employment at a local store and stated she had not told her prospective employer about 

her outstanding warrant in Michigan on a charge of retail fraud. 

{¶ 19} Lastly, the child’s guardian ad litem testified as to her recommendation that 

permanent custody be granted to LCCS. 

{¶ 20} By judgment entry filed April 7, 2015, the trial court found, pursuant to 

R.C. 2151.414(B)(1)(a) and R.C. 2151.414(E)(1), (2) and (11), by clear and convincing 

evidence, that Kai.F. is not abandoned or orphaned and cannot and should not be placed 

with either parent within a reasonable period of time. 

{¶ 21} Pursuant to R.C. 2151.414(E)(1), the trial court found that mother has 

failed continuously and repeatedly to substantially remedy the conditions causing Kai.F. 

to be placed outside the home. The court further found: Kai.F. tested positive for 

cocaine and marijuana at birth; mother failed to successfully complete the required 

aftercare program for substance abuse; mother repeatedly refused to comply with drug 

screen requests; mother tested positive for cocaine and marijuana at various times during 

this case; mother has a long history of substance abuse, and could not be referred to 

parenting services due to the lack of progress in substance abuse services. 

{¶ 22} As to R.C. 2151.414(E)(2), the trial court found that mother has a chronic 

emotional illness so severe that it makes her unable to provide an adequate permanent 

home for Kai.F. at the present time and, as anticipated, within one year after the hearing. 

Additionally, pursuant to R.C. 2151.414(E)(10), the trial court found that Kai.F. has been 

abandoned by the father and that no person has come forward to establish paternity. 
10. 

{¶ 23} The trial court found, pursuant to R.C. 2151.414(E )(11), that mother has 

had her parental rights involuntarily terminated with respect to siblings of Kai.F. and that 

she has failed to provide clear and convincing evidence to prove that, notwithstanding the 

prior termination, she can provide a legally secure permanent placement and adequate 

care for the health, welfare and safety of Kai.F. 

{¶ 24} The trial court considered all of the best interest factors of R.C. 

2151.414(D)(1)(a-e) and found by clear and convincing evidence that an award of 

permanent custody to LCCS was in Kai.F.’s best interest. Finally, the trial court found 

that LCCS made reasonable efforts to prevent the continued need for removal of the child 

from the home and to provide services to the parents and that such efforts were 

unsuccessful. 

{¶ 25} This court has conducted an independent examination of the record 

pursuant to Anders v. California. We have considered appellant’s proposed assignment 

and find no error prejudicial to appellant’s rights in the trial court proceedings. We find 

that the trial court’s decision granting permanent custody of Kai.F. to Lucas County 

Children Services was supported by clear and convincing evidence. Accordingly, 

appointed counsel’s proposed assignment of error is without merit. Appointed counsel’s 

motion requesting leave to withdraw is granted, and this appeal is dismissed for the 

reason that it is wholly frivolous. 
11. 

{¶ 26} Upon consideration whereof, the judgment of the Lucas County Court of 

Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of 

this appeal pursuant to App.R. 24. 

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. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Stephen A. Yarbrough, 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.