[Cite as In re E.F., 2017-Ohio-7474.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                  JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
IN THE MATTER OF:                                 Hon. John W. Wise, J.
                                                  Hon. Earle E. Wise, Jr., J.

        E.F.                                      Case No. 2017 CA 00072

        MINOR CHILD                               OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No. 2016
                                               JCV 00279


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 6, 2017



APPEARANCES:

For Appellee                                   For Appellant

BRANDON J. WALTENBAUGH                         DAVID L. SMITH
STARK COUNTY JFS                               Post Office Box 20407
402 2nd Street, SE                             Canton, Ohio 44701
Canton, Ohio 44702
Stark County, Case No. 2017 CA 00072                                                       2

Wise, John, J.

       {¶1}   Appellant-Mother C.F. appeals the judgment of the Stark County Common

Pleas Court, Juvenile Division, awarding permanent custody of her minor child E.F. to

appellee Stark County Department of Job and Family Services.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On April 1, 2016, SCJFS filed a complaint alleging the dependency and/or

neglect of E.F. (DOB 3/29/2016). Appellant is the biological mother of E.F.             The

allegations of the complaint centered on Appellant's history with Summit County Children

Services including involuntarily losing permanent custody of a previous child, lack of follow

through with case plan services in the past, and continuing deplorable home conditions.

       {¶3}   On April 4, 2016, the trial court found that probable cause existed for the

involvement of SCJFS and placed the child into its emergency temporary custody.

       {¶4}   On June 15, 2016, SCJFS deleted the allegation of neglect, and the trial

court found E.F. to be a dependent child and placed her into the temporary custody of

SCJFS. The trial court approved and adopted the case plan and found that SCJFS had

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

the home.

       {¶5}   The case plan proposed by SCJFS and adopted by the trial court asked

Appellant-mother to complete assessments through (1) Northeast Ohio Behavioral Health

(hereafter "NEOBH") and follow all recommendations, (2) receive mental health

counseling and be medicine compliant, (3) complete parenting classes through Goodwill

Industries, (4) obtain stable and appropriate housing, (5) obtain stable verifiable

employment or other source of income to sustain the housing and care for E.F., (6) attend
Stark County, Case No. 2017 CA 00072                                                     3


all medical appointments and comply with taking her medications, and (7) attend joint

counseling with Mother and Father to address relationship issues if they were to stay

together. (T. 1. at 6-7).

       {¶6}   On October 14, 2016, the trial court reviewed the case. The trial court found

that Appellant was diagnosed with several mental health issues, had not yet completed

her parenting evaluation, had a low IQ, and was not attending parenting classes. The trial

court approved and adopted the case plan and found that SCJFS had made reasonable

efforts to prevent the need for the continued removal of the child from the home. The trial

court also found that no compelling reasons existed to preclude a request for permanent

custody.

       {¶7}   On January 20, 2017, SCJFS filed a motion seeking permanent custody of

the child. In its motion, SCJFS alleged, among other things, that the child could not and

should not be placed with Appellant-mother within a reasonable amount of time, Appellant-

mother had her parental rights terminated pursuant to R.C. §2151.353, R.C. §2151.414, or

R.C. §2151.415 with respect to a sibling, and permanent custody was in the child's best

interest.

       {¶8}   On January 24, 2017, SCJFS filed an amended motion seeking permanent

custody of the child. The amended motion was substantively equivalent to the original

motion.

       {¶9}   On February 17, 2017, the Guardian ad Litem for E.F., Ms. Valerie

Anderson, submitted a report recommending that E.F. be placed into the permanent

custody of SCJFS. Specifically, Ms. Anderson noted that it was "absolutely imperative
Stark County, Case No. 2017 CA 00072                                                        4


that SCJFS (be) granted permanent custody", and that Appellant-mother "simply do(es)

not have the parental skills necessary to keep (E.F.) well cared for and safe".

       {¶10} On February 21, 2017, the trial court again reviewed the case. The trial court

found that Appellant-mother was diagnosed with a mood disorder and personality

disorders. The trial court also found that there were concerns with Appellant's ability to

parent. The trial court approved and adopted the case plan and found that SCJFS had

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

the home. The trial court again found that no compelling reasons existed to preclude a

request for permanent custody.

       {¶11} On March 22, 2017, the trial court heard evidence on the motion seeking

permanent custody of E.F. (T. 1 at 4-105). At the hearing, SCJFS presented evidence

regarding Appellant-mother and the minor child. (T. 1 at 5-64). Caseworker Vicki Mitchell

testified that Appellant-mother had not fully completed her case plan nor had she

significantly reduced the risk she posed to E.F. (T. 1 at 8-22). Specifically, Caseworker

Mitchell testified that Appellant-mother did not address her mental health issues, did not

initiate joint counseling, did not complete the minimal requirements for parenting classes,

did not have appropriate housing, and struggled with basic parenting skills like changing

a diaper. (T. 1 at 7-19). Ms. Mitchell also testified that Appellant-mother had previously

lost permanent custody of a child. (T. 1 at 6). Dr. Aimee Thomas from Northeast Ohio

Behavioral Health testified that Appellant-mother has an IQ of 66 and is functioning at the

level of an eleven-year-old child. (T. 1 at 49). She diagnosed Appellant-mother with a

Mood Disorder and Other Specified Personality Disorder, and noted Appellant's

dependent traits. (Tr. 1 at 49-54). Dr. Thomas opined that it would be critical for Appellant-
Stark County, Case No. 2017 CA 00072                                                       5


mother to participate in mental health treatment, psychiatric services, take all prescribed

medication, joint counseling, parenting classes, and maintain gainful employment and

appropriate housing. (T. 1 at 55-56). She also stated that she had "serious concerns"

about Appellant-mother's ability to complete a case plan. (T. 1 at 54).

       {¶12} Appellant-mother also presented testimony. (T. 1 at 65-82). The hearing

was continued to a later date to allow for the presentation of additional testimony and

evidence. (T. 1 at 107).

       {¶13} On April 11, 2017, the trial court again heard evidence on the motion

seeking permanent custody of E.F. (T. 2 at 4-23). At the hearing, SCJFS again presented

evidence regarding Appellant and E.F. (T. 2 at 4-11). Caseworker Mitchell testified that

E.F. had been placed with a biological sibling who had been adopted by the foster family,

E.F. was bonded to the foster family and to the sibling, and that the foster family was

interested in adopting E.F. (T. 2 at 2-10). The Guardian ad Litem for the child made a

statement recommending that permanent custody be granted to SCJFS. (T. 2 at 22). The

foster parents of the child also made statements. (T. 2 at 22-23). Appellant also offered

testimony. (T. 2 at 12-17). At the conclusion of the hearing, the trial court took the matter

under advisement. (T. 2 at 23).

       {¶14} On April 12, 2017, the trial court issued its findings of fact granting

permanent custody of E.F. to SCJFS and terminating Appellant-mother's parental rights.

Specifically, the trial court found that, despite reasonable efforts by SCJFS, E.F. could

not and should not be placed with Appellant-mother within a reasonable amount of time,

and the grant of permanent custody was in her best interest.

       {¶15} Appellant-mother now appeals, assigning the following errors for review:
Stark County, Case No. 2017 CA 00072                                                  6


                                ASSIGNMENTS OF ERROR

      {¶16} “I.     THE TRIAL COURT'S JUDGMENT THAT THE MINOR CHILD

CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT WITHIN A

REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.

      A. THE TRIAL COURT ERRED IN FINDING APPELLEE MADE REASONABLE

EFFORTS TO PREVENT THE NEED FOR PLACEMENT AND/OR MAKE IT POSSIBLE

FOR THE CHILD TO RETURN HOME.

      {¶17} “II. THE TRIAL COURT'S JUDGMENT THAT THE BEST INTERESTS OF

THE MINOR CHILD WOULD BE SERVED BY GRANTING PERMANENT CUSTODY

WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

                                              I.

      {¶18} Appellant-mother argues that the court’s finding that E.F. could not be

placed with her within a reasonable period of time was against the manifest weight and

sufficiency of the evidence.

      {¶19} A trial court's decision to grant permanent custody of a child must be

supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear

and convincing evidence” as “[t]he measure or degree of proof that will produce in the

mind of the trier of fact a firm belief or conviction as to the allegations sought to be

established. It is intermediate, being more than a mere preponderance, but not to the

extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,

18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
Stark County, Case No. 2017 CA 00072                                                           7


       {¶20} In reviewing whether the trial court based its decision upon clear and

convincing evidence, “a reviewing court will examine the record to determine whether the

trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State

v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990); See also, C.E. Morris Co. v.

Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial court's judgment

is “supported by some competent, credible evidence going to all the essential elements

of the case,” a reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at

74, 564 N.E.2d 54.

       {¶21} “An appellate court should not substitute its judgment for that of the trial

court when there exists competent and credible evidence supporting the findings of fact

and conclusion of law.” Id. Issues relating to the credibility of witnesses and the weight to

be given the evidence are primarily for the trier of fact. As the court explained in Seasons

Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), “The underlying

rationale of giving deference to the findings of the trial court rests with the knowledge that

the trial judge is best able to view the witnesses and observe their demeanor, gestures

and voice inflections, and use these observations in weighing the credibility of the

proffered testimony.”

       {¶22} Moreover, deferring to the trial court on matters of credibility is “crucial in a

child custody case, where there may be much evident in the parties' demeanor and

attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415,

419, 674 N.E.2d 1159 (1997); see, also, In re: Christian, 4th Dist. Athens App. No.

04CA10, 2004–Ohio–3146; In re: C. W., 2nd Dist. Montgomery App. No. 20140, 2004–

Ohio–2040.
Stark County, Case No. 2017 CA 00072                                                        8


       {¶23} Pursuant to R.C. §2151.414(B), the court may grant permanent custody of

a child to the movant if the court determines “that it is in the best interest of the child to

grant permanent custody to the agency that filed the motion for permanent custody and

that any of the following apply:

                 (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, ... and the child cannot be placed with either of

        the child's parents within a reasonable period of time or should not be

        placed with the child's parents.* * *

                 (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.

       {¶24} Revised Code §2151.414(E) sets forth the factors a trial court must consider

in determining whether a child cannot or should not be placed with a parent within a

reasonable time. If the court finds, by clear and convincing evidence, the existence of any
Stark County, Case No. 2017 CA 00072                                                        9


one of the following factors, “the court shall enter a finding that the child cannot be placed

with [the] 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 parent to remedy the problem that initially caused the

        child to be placed outside the home, the parents have failed continuously

        and repeatedly to substantially remedy the conditions that caused the child

        to be placed outside the child's home. In determining whether the parents

        have substantially remedied the 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) The parent has had parental rights involuntarily terminated with

        respect to a sibling of the child pursuant to this section or section 2151.353

        or 2151.415 of the Revised Code, or under an existing or former law of this

        state, any other state, or the United States that is substantially equivalent

        to those sections, and the parent has failed to provide clear and convincing

        evidence to prove that, notwithstanding the prior termination, the parent

        can provide a legally secure permanent placement and adequate care for

        the health, welfare, and safety of the child.

               ***
Stark County, Case No. 2017 CA 00072                                                       10


               (16) Any other factors the court considers relevant.

       {¶25} In the case sub judice, we find that the trial court’s finding that E.F. could

not be placed with Appellant-mother within a reasonable period of time was not against

the manifest weight or sufficiency of the evidence. In concluding that the child cannot or

should not be placed with Appellant within a reasonable period of time, there was enough

evidence for the trial court to rely upon R.C. §2151.414(E)(1). The trial court heard

testimony from caseworker Mitchell, who testified that Appellant-mother's initial case plan

objective was to complete a parenting evaluation. (T. 1 at 6). Dr. Aimee Thomas from

Northeast Ohio Behavioral Health testified that Appellant-mother has an IQ of 66 and

functions at the level of an eleven-year-old child. (T. 1 at 49). She diagnosed Appellant

with a Mood Disorder and Other Specified Personality Disorder, and noted Appellant's

dependent traits. (T. 1 at 49-54). Dr. Thomas stated her opinion that it would be critical for

Appellant-mother to participate in mental health treatment, psychiatric services, take all

prescribed medication, participate in joint counseling, parenting classes, and maintain

gainful employment and appropriate housing. (T. 1 at 55-56). Appellant's case plan was

amended to reflect those recommendations. (T. 1 at 7). She also stated that she had

"serious concerns" about Appellant-mother's ability to complete a case plan. (T. 1 at 54).

The testimony further reflected that Appellant-mother's mental health case was closed for

non-compliance after she failed to attend multiple appointments. (T. 1 at 8). Appellant-

mother failed to engage in joint counseling. (T. 1 at 11). Appellant did participate in

parenting classes but could not complete the minimal program requirements after two

attempts. (T. 1 at 13). Appellant failed to secure appropriate housing. (T. 1 at 11).

Appellant-mother was unable to demonstrate basic parenting knowledge and had to be
Stark County, Case No. 2017 CA 00072                                                     11


intensely monitored during visits with the child due to Appellant almost dropping the baby

on multiple occasions. (T. 1 at 16). Caseworker Mitchell testified that she had never had

a case during her seventeen (17) year career at SCJFS that had to be monitored so

intensely during visitations. (T. 1 at 16). Appellant failed to complete almost every aspect

of her case plan.

       {¶26} In accordance with the evidence presented, the trial court found that

Appellant-mother lost permanent custody of another child after a trial was held in

Summit County. Caseworker Mitchell testified to the same. (T. 1 at 6). The concerns in

that case were similar to the concerns in this case. (T. 1 at 6). In concluding that the

child cannot or should not be placed with Appellant within a reasonable period of time,

there was enough evidence for the trial court to rely upon pursuant to R.C.

§2151.414(E)(11).

       {¶27} For the aforementioned reasons, there was more than enough evidence for

the trial court to conclude that E.F. could not and should not be replaced with Appellant

within a reasonable amount of time.

       {¶28} Appellant-mother also argues SCJFS did not make reasonable efforts to

prevent the need for placement or make it possible for the child to return home.

       {¶29} In In re C.F., 113 Ohio St.3d 73, 2007–Ohio–1104, 862 N.E.2d 816, the

Ohio Supreme Court explained that even though R.C. 2151.419, “by its terms,” does not

apply to motions for permanent custody, the agency “must still make reasonable efforts

to reunify the family during the child-custody proceedings prior to the termination of

parental rights.” Id. at ¶ 43; see also In re J.H., 2017–Ohio–1564, at ¶ 21. “If the agency

has not established that reasonable efforts have been made prior to the hearing on a
Stark County, Case No. 2017 CA 00072                                                   12

motion for permanent custody, then it must demonstrate such efforts at that time.” In re

C.F. at ¶ 43. Further, where, as here, the juvenile court relies on R.C. 2151.414(E)(1) to

support an award of permanent custody to the agency, the court must examine the

“reasonable case planning and diligent efforts by the agency to assist the parents” when

considering whether the child cannot be placed with the parents within a reasonable time

or should not be placed with the parents. See id.; R.C. 2151.414(E)(1).

       {¶30} Upon review, we find that the record reflects that the trial court made a

finding of reasonable efforts on multiple occasions prior to the permanent custody

hearing: April 4, 2016, June 15, 2016, October 14, 2016, and February 21, 2017.

       {¶31} Further, the testimony presented at the permanent custody hearing, as set

forth above, demonstrated that the Agency made reasonable efforts to assist Appellant-

mother in completing her case plan. The Agency made referrals for her to participate in

parenting evaluation and parenting classes, as well as individual counseling. (T. 1 at 20-

21).

       {¶32} In this case, the record supports the juvenile court's determination that

SCJFS made reasonable efforts to reunify the family and engaged in “reasonable case

planning” and “diligent efforts” to assist the parents in remedying the problems that

caused E.F. to be taken from them.

       {¶33} Based on the overwhelming evidence presented at trial, Appellant's First

Assignment of Error should be overruled.
Stark County, Case No. 2017 CA 00072                                                        13


                                                  II.

       {¶34} In her Second Assignment of Error, Appellant-mother argues that the finding

that permanent custody was in the best interest of E.F. was against the manifest weight

and sufficiency of the evidence.

       {¶35} In determining the best interest of the child at a permanent custody hearing,

R.C. §2151.414(D) mandates the trial court must consider all relevant factors, including,

but not limited to, the following: (1) the interaction and interrelationship of the child with

the child's parents, siblings, relatives, foster parents and out-of-home providers, and any

other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (4) 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.

       {¶36} During the best interest portion of the trial, Caseworker Mitchell testified that

E.F. is now a healthy, developmentally on track child, despite the fact that she was born

premature. (T. 2 at 6). E.F. has been placed with her biological sibling, who has already

been adopted by the foster family. (T. 2 at 6-7). The foster family also wants to adopt E.F.

(T. 2 at 6-7). E.F. is bonded to her foster family and her biological sibling. (T. 2 at 6-

7). Multiple family members were contacted in regards to placement, all of which

were determined inappropriate or did not follow through with requests. (T. 2 at 7-9).

Caseworker Mitchell provided her opinion that permanent custody was in E.F.'s best

interest because she would benefit from adoption, she is not bonded to Appellant-mother,
Stark County, Case No. 2017 CA 00072                                                   14


and the benefit of permanency far outweighs the risk of harm due to severing Appellant's

parental rights. (T. 2 at 9-10).

       {¶37} Ms. Valerie Anderson, the Guardian ad Litem for the child, also agreed that

permanent custody was in E.F.'s best interest. (T. 2 at 22). In her report submitted prior

to the hearing, Ms. Anderson noted that it was "absolutely imperative that SCJFS (be)

granted permanent custody” and that Appellant-mother “simply do(es) not have the

parental skills necessary to keep (E.F.) well cared for and safe.”

       {¶38} Based on the foregoing, we find that the trial court’s finding that permanent

custody was in the best interest of E.F. was supported by the evidence.

       {¶39} Appellant-mother’s Second Assignment of Error is overruled.

       {¶40} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Stark County, Ohio, is affirmed.


By: Wise, John, J.

Gwin, J., and

Wise, Earle, J., concur.




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