[Cite as In re K.S., 2017-Ohio-5778.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                   JUDGES:
                                                   Hon. Patricia A. Delaney, P. J.
IN THE MATTER OF:                                  Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
        K.S.
                                                   Case No. 17 CA 12

                                                   OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No. 14 AB 88


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         July 10, 2017



APPEARANCES:

For Appellant Mother                           For Appellee

WILLIAM J. HOLT                                DAVID SILWANI
2140 Lancaster-Newark Road                     ASSISTANT PROSECUTOR
P. O. Box 2252                                 239 West Main Street, Suite 101
Lancaster, Ohio 43130                          Lancaster, Ohio 43130

For K.S.                                        Guardian ad Litem

CHRISTINA A. MCGILL                            JESSICA L. MONGOLD
127 West Wheeling Street                       123 South Broad Street, Suite 206
Lancaster, Ohio 43130                          Lancaster, Ohio 43130
Fairfield County, Case No. 17 CA 12                                                   2

Wise, John, J.

      {¶ 1} Appellant-Mother, S.S., appeals the February 1, 2017, Judgment Entry/

Orders of the Court of Common Pleas of Fairfield County, Ohio, Juvenile Division,

denying her objections and upholding the Magistrate's Decision granting appellee,

Fairfield County Child Protective Services, permanent custody of her child.

                          FACTS AND PROCEDURAL HISTORY

      {¶ 2} On May 30, 2014, K.S. (dob May 16, 2003) was placed in the temporary

shelter custody of Fairfield County Child Protective Services (FCCPS).

      {¶ 3} On August 6, 2014, K. S. was found to be a dependent minor and placed in

the temporary custody of FCCPS

      {¶ 4} K.S. has been adjudicated a dependent minor and placed in the temporary

custody of FCCPS by the Fairfield County, Ohio Juvenile Court on three separate

occasions: June 22, 2006, in Case No. 2006-AB-0070; June 26, 2012, in Case No. 2012-

AB-0094; and August 6, 2014, in Case No. 2014-AB-0088.

      {¶ 5} As to initial concerns of the Agency regarding K.S., there were concerns for

K.S. exhibiting emotional and psychological issues which result in aggressive behavior

towards herself and others; and with her being physically assaultive to her mother,

grandmother, a babysitter, and a teacher. K.S. has been diagnosed with disruptive

behavior disorder not otherwise specified and borderline intellectual functions,

provisional. (T. at 6). Mother had not followed through with consistent mental health or

psychiatric services for said child; and Mother had admitted use of marijuana.
Fairfield County, Case No. 17 CA 12                                                      3


      {¶ 6} Fairfield County Child Protective Services developed a case plan for Mother

to remedy the problems that caused K.S. to be removed from the home. (T. at 20-21).

Mother signed and agreed with the case plan.

      {¶ 7}   Part of Mother’s case plan required her to participate in K.S.'s treatment as

requested by her counselor and follow recommendations of service providers, including

but not limited to family counseling and requested communication with any providers

involved in K.S.'s treatment; demonstrate sobriety through screens for drugs and/or

alcohol; establish stable and consistent housing; and complete a psychological

evaluation and follow all recommendations.

      {¶ 8} No case plan was developed for father because he has not had any contact

with K.S. since May, 2014. (T. at 20).

      {¶ 9} At the closing of the 2012 dependency case concerning K.S., which closed

in September, 2013, K.S. was involved in ongoing mental health counseling due to past

trauma K.S. has suffered. Mother admitted that this past trauma was caused by Mother's

actions.

      {¶ 10} When the initial report of concern in this case was received in March, 2014,

K.S. was no longer in mental health counseling. Mother admitted that K.S. was not

discharged from treatment, but that K.S. refused to go to counseling because she did

not like it. Mother indicated that K.S. was having behavior issues during the time between

September, 2013, and March, 2014, but that Mother did not force K.S. to go to

counseling because "if [K.S.] decides not to do something, it doesn't happen.”

      {¶ 11} Reviews were held for K.S. on November 10, 2014, February 9, 2015,

August 10, 2015, and February 22, 2016.
Fairfield County, Case No. 17 CA 12                                                       4


      {¶ 12} Annual reviews were held on May 6, 2015, and May 2, 2016.

      {¶ 13} On August 4, 2015, FCCPS filed a motion requesting that the temporary

custody of K.S. be amended to an order of permanent custody. An amended motion

requesting that the temporary custody of K.S. be amended to an order or permanent

custody was filed by FCCPS on August 14, 2015.

      {¶ 14} On February 2, 2016, FCCPS filed a motion requesting that the temporary

custody of K.S. with FCCPS be terminated and K. S. be returned to the custody of Mother

and the motion for permanent custody be dismissed.

      {¶ 15} On July 22, 2016, FCCPS again filed a motion requesting that the temporary

custody of K.S. with FCCPS be amended to an order of permanent custody.

      {¶ 16} On September 27, 2016, a pretrial was held on the motion for permanent

custody.

      {¶ 17} On October 18, 2016, an oral hearing on the motion for permanent custody

was held. Present for the hearing was Brittany Karocki, Assistant Prosecuting Attorney;

Karla Nelson, Court Program Manager for FCCPS; Danielle DiMatteo, Case Worker for

FCCPS; Ashleigh Duffy, Case Worker in Training for FCCPS; S.S., Mother of K.S.; Mark

Ort, Attorney for Mother; Christina McGill, Attorney for K.S.; and Jessica Mongold,

Guardian ad Litem.

      {¶ 18} R.G., father of K.S. received notice of the hearing by certified mail on August

11, 2016, but failed to appear.

      {¶ 19} At the hearing, the trial court swore in and heard testimony from Mother

S.S.; Danielle DiMatteo, FCCPS; and Jessica Mongold, Guardian ad Litem.

      {¶ 20} The trial court heard the following testimony and evidence:
Fairfield County, Case No. 17 CA 12                                                    5


      {¶ 21} Upon being placed in FCCPS' custody in May, 2014, K.S. was placed in a

therapeutic foster home. She remained in this home until September, 2014.

      {¶ 22} In September, 2014, K.S. was then placed into a different therapeutic foster

home, where she remained until October, 2014.

      {¶ 23} It was determined that K.S. needed a more restrictive setting than a

therapeutic foster home could provide for her.

      {¶ 24} In October, 2014, K.S. was placed at the Children's Resource Center, a

residential treatment facility in Mt. Vernon, Ohio, where she remained until December

30, 2014.

      {¶ 25} While K.S. was placed at the Children's Resource Center, she was leaving

the facility without permission and was aggressive with staff/peers. It was determined

that K.S. needed a more secure facility than the Children's Resource Center was able to

provide.

      {¶ 26} From December 30, 2014 until September, 2015, K.S. was placed at

Beechbrook, a residential treatment facility that was more secure.

      {¶ 27} K.S. made improvements in her behavior and mental health treatment while

at Beechbrook and was able to be placed on visitation status with her Mother in

September, 2015.

      {¶ 28} K.S. was placed with her Mother on visitation status from September, 2015

until May, 2016.

      {¶ 29} K.S. engaged in self-harm at least three (3) times during her placement with

Mother from September, 2015, to May, 2016:

            In February, 2016, K.S. used a belt to choke herself.
Fairfield County, Case No. 17 CA 12                                                     6


              In April, 2016, K.S. used the glass from a mirror to cut herself.

              In May, 2016, K.S. had a knife and threatened to cut herself.

      {¶ 30} On May 20 or 21, 2016, the caseworker and probation officer for K.S. were

called to the school by both Mother and the school as K.S. was refusing to leave the

school with Mother. K.S. was not able to ride the bus due to previous behavior issues on

the bus.

      {¶ 31} During the time the caseworker and probation officer were present at the

school, K.S. made suicidal comments and was taken to Fairfield Medical Center to be

evaluated.

      {¶ 32} Mother expressed concern to the caseworker at the time of this May, 2016,

incident that K.S. could not return home due to Mother's concern for the other children

in her home, and that she would have to choose between K.S. and her other children.

      {¶ 33} K.S. was sent from Fairfield Medical Center to Belmont Pines for an acute

stay. The recommendation from Belmont Pines was that K.S. be placed in a residential

treatment facility.

      {¶ 34} K.S. was then placed in Adriel, a residential treatment facility, from May,

2016, until September, 2016. K.S. was moved from Adriel due to concerns for her

behaviors and aggression toward staff and other residents.

      {¶ 35} In September, 2016, K.S. was transferred to Bell Fare, a more secure

residential facility, where she was still placed at the time of the hearing.

      {¶ 36} K.S. has run away from residential facilities and is physically aggressive to

staff and peers in the treatment facilities in which she has been placed.
Fairfield County, Case No. 17 CA 12                                                          7


        {¶ 37} K.S. has been placed in juvenile detention while in the residential treatment

facilities for charges of making false alarms, assaulting a staff member and assaulting a

peer.

        {¶ 38} The current recommendation for K.S. by her mental health treatment

providers is for her to be in a residential treatment facility.

        {¶ 39} Mother testified that, while she believes that K.S. initially needed to be in a

treatment facility, she feels that the treatment facility was only necessary at that time

because Mother was then 8 months pregnant and could not handle K.S.'s behaviors due

to her condition in May, 2016. Mother testified that she felt she could manage K.S.'s

current behaviors at home through outpatient treatment, but then agreed that K.S. is

currently in the "place she needs to be", that being residential treatment.

        {¶ 40} Mother further recognized that K.S. is a potential threat to the other children

in her home due to her behaviors. Mother has a four (4) year old and four (4) month old

in her home full-time, and a seven (7) year old at the home part-time. Mother testified

that if K.S. were home and began to have behaviors, the younger children could just

remove themselves from the situation.

        {¶ 41} Mother also testified that K.S. needed to institutionalized at the present time,

and that she was could not afford to pay for the portion of the cost of care not covered

by Medicaid, which was now being paid by FCCPS. (T. at 70-75).

        {¶ 42} With regard to participation in K.S.'s treatment, Mother has participated in

said treatment at the direction of K.S.’s treatment team and maintained contact with

providers since K.S. has been in residential treatment. With regard to participation in

family counseling, Mother is involved with family sessions with K.S.
Fairfield County, Case No. 17 CA 12                                                          8


        {¶ 43} FCCPS referred Mother to Integrated Services for Behavioral Health for a

psychological evaluation. Mother completed the psychological evaluation on August 31,

2016.

        {¶ 44} The psychological evaluation of Mother recommended that Mother engage

in individual counseling, that Mother would benefit from parenting education or coaching,

and that Mother would benefit from seeking medical attention regarding memory issues.

        {¶ 45} With regard to visitation with K. S., Mother currently has visitation with K. S.

in her treatment facility. Mother has seen K. S. four (4) times since May, 2016: zero times

in May, 2016; zero times in June, 2016; twice in July, 2016; once in August, 2016; once

in September, 2016; and zero times in October, 2016.

        {¶ 46} Following the presentation of all evidence and testimony to the trial court,

Jessica Mangold, Guardian ad Litem, testified. She testified that her opinion had not

changed with regard to her written report, and that she still supported the granting of

permanent custody of K.S. to Fairfield County Child Protective Services.

        {¶ 47} On November 17, 2016, the Magistrate’s Decision was filed granting

permanent custody of K.S. to Fairfield County Child Protective Services. The trial court

adopted and approved the Decision on the same day.

        {¶ 48} On November 23, 2016, Mother filed Objections to the Magistrate’s

Decision, arguing that said Decision was in violation of R.C. §2151.414.

        {¶ 49} On February 1, 2017, the trial court filed its Judgment Entry/Orders on

Objection to Magistrate’s Decision, overruling Mother’s objections and adopting the

decision of the Magistrate.

        {¶ 50} Appellant-Mother now appeals, assigning the following errors for review:
Fairfield County, Case No. 17 CA 12                                                        9


                                  ASSIGNMENTS OF ERROR

      {¶ 51} “I. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS

SUFFICIENT EVIDENCE TO SUSTAIN AN ORDER AWARDING THE PERMANENT

CUSTODY OF K.S. TO FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES.

      {¶ 52} “II. THE TRIAL COURT ERRED IN THE APPLICATION OF OHIO

REVISED CODE §§2151.414 AND 2151.415, IN VIOLATION OF THE DUE PROCESS

CLAUSE OF THE CONSTITUTION OF THE UNITED STATES, AND THE DUE

PROCESS CLAUSE OF THE OHIO CONSTITUTION.”

                                                I., II.

      {¶ 53} Appellant herein argues the trial court erred in awarding Appellee

permanent custody of the children. We disagree.

      {¶ 54} As stated by this Court in In the Matter of: S.W., 5th Dist. Stark No.

2016CA00221, 2017-Ohio-807, ¶12:

             [T]he right to raise a child is an 'essential' and 'basic' civil right." In

      re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley

      v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A parent's

      interest in the care, custody and management of his or her child is

      "fundamental." Id.; Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388,

      71 L.Ed.2d 599 (1982). The permanent termination of a parent's rights has

      been described as, "* * * the family law equivalent to the death penalty in a

      criminal case." In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.

      1991). Therefore, parents "must be afforded every procedural and

      substantive protection the law allows." Id.
Fairfield County, Case No. 17 CA 12                                                          10


      {¶ 55} An award of permanent custody must be based upon clear and convincing

evidence. R.C. §2151.414(B)(1). 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. It does not mean

clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d

23 (1986).

                                       Standard of Review

      {¶ 56} The Ohio Supreme Court has delineated our standard of review as follows:

             Where the degree of proof required to sustain an issue must be clear

      and convincing, 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. See Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526,

      Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, Frate v. Rimenik, 115 Ohio St.

      11, 152 N.E. 14, and Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d

      118 (1954).

      {¶ 57} A court of appeals will affirm the trial court's findings “if the record contains

competent, credible evidence by which the court could have formed a firm belief or

conviction that the essential statutory elements for a termination of parental rights have

been established.” In re Adkins, 5th Dist. Nos. 2005AP06–0044 and 2005AP07–0049,

2006-Ohio-431, 2006 WL 242557, ¶17.

      {¶ 58} In Cross, the Supreme Court further cautioned:
Fairfield County, Case No. 17 CA 12                                                        11


             The mere number of witnesses, who may support a claim of one or

      the other of the parties to an action, is not to be taken as a basis for resolving

      disputed facts.     The degree of proof required is determined by the

      impression which the testimony of the witnesses makes upon the trier of

      facts, and the character of the testimony itself. Credibility, intelligence,

      freedom from bias or prejudice, opportunity to be informed, the disposition

      to tell the truth or otherwise, and the probability or improbability of the

      statements made, are all tests of testimonial value. Where the evidence is

      in conflict, the trier of facts may determine what should be accepted as the

      truth and what should be rejected as false. See Rice v. City of Cleveland,

      114 Ohio St. 299, 58 N.E.2d 768, and 161 Ohio St. at 477-478. (Emphasis

      added).

                        Requirements for Permanent Custody Awards

      {¶ 59} R.C. §2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. §2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon filing of a motion for permanent custody of

a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

      {¶ 60} Following the hearing, R.C. §2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to

grant permanent custody to the agency, and that any of the following apply:
Fairfield County, Case No. 17 CA 12                                                 12


            (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; or

            (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.
Fairfield County, Case No. 17 CA 12                                                    13


             (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.

      {¶ 61} Therefore, R.C. §2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

§2151.414(B)(1)(a) through (d) is present before proceeding to a determination

regarding the best interest of the child.

          Parental Placement within a Reasonable Time – R.C. §2151.414(E)(1).

      {¶ 62} The court must consider all relevant evidence before determining the child

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

with the parents. R.C. §2151.414(E). The statute also indicates that if the court makes

a finding under R.C. §2151.414(E)(1)-(15), the court shall determine the children cannot

or should not be placed with the parent. A trial court may base its decision that a child

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

parent upon the existence of any one of the R.C. §2151.414(E) factors. The existence

of one factor alone will support a finding that the child cannot be placed with the parent

within a reasonable time. See In re William S., 75 Ohio St.3d 95, 1996–Ohio–182, 661

N.E.2d 738; In re Hurlow, 4th Dist. Gallia No. 98 CA 6, 1997 WL 701328 (Sept. 21, 1998);

In re Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145 (Apr. 10, 1991).

      {¶ 63} R.C. §2151.414(E) sets forth factors a trial court is to consider in

determining whether a child cannot be placed with either parent within a reasonable
Fairfield County, Case No. 17 CA 12                                                    14


period of time or should not be placed with the parents.         Specifically, Section (E)

provides, in pertinent part, as follows:

             (E) 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, 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 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 changing parental conduct to allow them to resume and

     maintain parental duties.
Fairfield County, Case No. 17 CA 12                                                        15


             ***

             (16) Any other factor the court considers relevant.

      {¶ 64} R.C. §2151.414(D) requires the trial court to consider all relevant factors in

determining whether the child’s best interests would be served by granting the

permanent custody motion.        These factors include but are not limited to: (1) the

interrelationship of the child with others; (2) the wishes of the child; (3) the custodial

history of the child; (4) the child’s need for a legally secure placement and whether such

a placement can be achieved without permanent custody; and (5) whether any of the

factors in divisions (E)(7) to (11) apply.

      {¶ 65} In this case, the trial court made its permanent custody findings pursuant to

R.C. §2151.414(E)(1) and/or (16), since Mother had not remedied the conditions which

led to K.S.’s removal, and Mother was also unable to meet the special needs of the child.

      {¶ 66} As set forth above, the trial court’s findings are based upon competent

credible evidence. The record includes the recommendation of the guardian ad litem for

the child, and the testimony of the witnesses at trial. The trial court was in the best

position to determine the credibility of the witnesses.

      {¶ 67} In the case sub judice, the trial court found by clear and convincing evidence

that K.S. had been in the temporary custody of a public children services agency for

twelve or more months of a consecutive twenty-two month period pursuant to R.C.

§2151.414(B)(1)(d). Mother does not challenge the trial court’s finding.

      {¶ 68} This finding alone, in conjunction with a best interest finding, is sufficient to

support the grant of permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118,

2008–Ohio–5458, ¶ 45.
Fairfield County, Case No. 17 CA 12                                                       16


        {¶ 69} However, even if we consider Mother’s arguments, we find the trial court

did not err in determining the child cannot be placed with Mother at this time or within a

reasonable period.

        {¶ 70} K.S. has been involved with the Agency since 2006. (T. at 6). K.S. has been

found to be dependent, and in the temporary custody of the Agency, on two prior

occasions. (T. at 18-19). In this case, K.S. has been in the emergency shelter care

custody of the Agency since May 30, 2014, and the Agency’s custody on July 29, 2014,

and in the temporary custody of the Agency since August 6, 2014, when she was found

to be dependent. (T. at 18). K.S. has been diagnosed with Disruptive Behavior Disorder,

not otherwise specified, and borderline intellectual functions, provisional. (T. at 6). K.S.

has required and will continue to require extensive residential treatment. (T. at 7). The

cost of the residential treatment is approximately $131, 000.00 per year, which Mother

cannot afford to pay. (T. at 72-73). Mother is unable to control K.S. when she is in

Mother’s custody. (T. at 30). K.S. has engaged in self-harming behavior on three

occasions while in Mother’s custody. (T. at 30-31). Mother agreed that at the present

time, K.S. should not be home with her. (T. at 75). Mother also admitted that she cannot

provide the help K.S. needs. (T. at 92).

        {¶ 71} Based upon the foregoing, as well as the entire record in this case, the Court

properly found K.S. could not or should not be returned to Mother within a reasonable

time.

                         Best Interests – R.C. §2151.414(D)(2)(a) – (d)

        {¶ 72} Here, the trial court found that R.C. §2151.414(E)(1) and (16) applied in this

case.
Fairfield County, Case No. 17 CA 12                                                     17


      {¶ 73} While the evidence demonstrated the Mother has been compliant with her

case plan, the conditions which led to K.S. being removed from the home have not been

remedied. (T. at 24). Despite offering numerous services, Mother was unable to mitigate

the concerns that led to the child's removal.

      {¶ 74} K.S. attempted to harm herself three separate times while under Mother’s

care, despite the treatment she was receiving. (T. at 30). Mother admitted she could not

bring K.S. home at the present time because she still needed to be treated in a residential

facility, and she could not afford to cover the cost. (T. at 72-73, 75).

      {¶ 75} In the case of In re: Summerfield, 5th Dist. Stark No. 2005CA00139, 2005-

Ohio-5523, this Court found where, despite marginal compliance with some aspects of

the case plan, the exact problems that led to the initial removal remained in existence, a

court does not err in finding the child cannot be placed with the parent within a

reasonable time.

                        Other relevant factors – R.C. 2151.414(E)(16).

      {¶ 76} R.C. §2151.414(E)(16) provides that the trial court may consider “Any other

factor the court considers relevant.”

      {¶ 77} In the case at bar, the court noted that as of the time of the hearing, Mother

was unable to care for K.S.’s special needs.

      {¶ 78} In addition to the above findings, the trial court found that K.S. has been in

the agency’s custody for more than two years and no longer qualifies for temporary

custody; K.S. does not meet the requirements for a PPLA because she was only 13

years old at the time of the hearing; and no relative or other interested person has filed

for legal custody of K.S.
Fairfield County, Case No. 17 CA 12                                                     18


      {¶ 79} Therefore, based on the aforementioned facts, the trial court did not abuse

its discretion when it found by clear and convincing evidence that R.C. §2151.414(E)(1)

and (16) were applicable to Mother.



                                          Conclusion

      {¶ 80} For these reasons, we find that the trial court’s determination that Mother

had failed to remedy the issues that caused the initial removal and therefore the child

could not be placed with her within a reasonable time or should not be placed with her

was based upon competent credible evidence and is not against the manifest weight or

sufficiency of the evidence.

      {¶ 81} We further find that the trial court’s decision that permanent custody to

FCCPS was in the child's best interest was based upon competent, credible evidence

and is not against the manifest weight or sufficiency of the evidence.

      {¶ 82} Additionally, based on the foregoing, this Court finds that the trial court’s

application of R.C. §2151.414 was not in error.

      {¶ 83} We further find no support for Appellant’s argument that the trial court erred

in its application of R.C. §2151.415(D)(4) in this case, as it was not the basis for the

granting of permanent custody in this case.

      {¶ 84} Because the evidence in the record supports the trial court’s judgment, we

overrule Mother’s assignments of error, and affirm the decision of the Fairfield County

Court of Common Pleas, Juvenile Division.
Fairfield County, Case No. 17 CA 12                                                      19


       {¶ 85} With these facts, it is impossible for this Court to second guess the trial

court. As stated above, credibility, reliability, and forthrightness are within the province

of the trier of fact.

       {¶ 86} Upon review, we find sufficient clear and convincing evidence to support the

trial court's decision to grant Appellee permanent custody of the child.

       {¶ 87} Assignment of Error I is denied.

       {¶ 88} The judgment of the Court of Common Pleas, Juvenile Division, of Fairfield

County, Ohio, is hereby affirmed.


By: Wise, John, J.

Delaney, P. J., and

Baldwin, J., concur.



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