[Cite as In re V.J., 2016-Ohio-5896.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                        JUDGES:
IN THE MATTER OF: V.J.                         :        Hon. Sheila G. Farmer, P.J.
                                               :        Hon. W. Scott Gwin, J.
                                               :        Hon. William B. Hoffman, J.
                                               :
                                               :
                                               :        Case No. 2016CA00118
                                               :
                                               :
                                               :        OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Juvenile Division, Case
                                                   No. 2014JCV00520

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            September 19, 2016



APPEARANCES:

For SCJFS                                          For Mother

ALLISON TUESDAY                                    MARY G. WARLOP
SCJFS                                              116 Cleveland Ave. N.W.
110 Central Plaza S, Ste. 400                      Suite 500
Canton, OH 44702                                   Canton, OH 44702

For Guardian Ad Litem                              For Father
HOLLY DAVIES                                       BERNARD HUNT
101 Central Plaza South                            2395 McGinty Rd. N.W.
Chase Tower, Suite 1000                            North Canton, OH 44720
Canton, OH 44702
Stark County, Case No. 2016CA00118                                                        2

Gwin, J.

       {¶1}   Appellant-mother Latasha Humphries [“Mother”] appeals the May 18, 2016

Judgment Entry of the Stark County Court of Common Pleas, Family Court Division,

which terminated her parental rights with respect to her minor child, V.J. (b. May 28, 2014)

and granted permanent custody of the child to appellee, Stark County Department of Jobs

and Family Services (hereinafter “SCJFS”).

                                  Facts and Procedural History

       {¶2}   On June 2, 2014, SCJFS filed a complaint alleging the dependency

and/or neglect of V.J. On August 20, 2014, the trial court found V.J. to be a

dependent child and placed her into the temporary custody of SCJFS.

       {¶3}   On October 1, 2015, SCJFS filed a motion seeking permanent custody of

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

should not be placed with Mother within a reasonable amount of time, the child had been

in the temporary custody of SCJFS for 12 or more months of a consecutive 22-month

period, and permanent custody was in her best interest.

       {¶4}   On May 16, 2016, the Court held a trial on the permanent custody motion,

Also pending at that time were Mother's motion to return and terminate and/or motion to

change legal custody, and motion for home study on maternal aunt.

                                    Permanent Custody Trial.

       {¶5}   On May 16, 2016, the trial court heard evidence on the motion seeking

permanent custody of V.J.

       {¶6}   Caseworker Lynsey Overton testified Mother has a history of involvement

with SCJFS. SCJFS became involved with Mother in 2002 regarding two children due
Stark County, Case No. 2016CA00118                                                       3


to the death of a third child. Mother agreed to change legal custody of those two children

to a relative. Mother was involved with SCJFS again regarding two twin boys that she

had. The two boys were placed in the permanent custody of SCJFS. Mother became

involved with SCJFS again regarding her child R.H., Jr. He was also placed in the

permanent custody of SCJFS. Mother became involved with SCJFS again regarding her

child Cynthia who was also placed in the permanent custody of SCJFS. Mother was in

prison when Cynthia was born. Mother was convicted of child endangering and spent

five years in jail for the death of another child, Catana. The child died while in Mother’s

care. After Mother was released from prison, Mother worked a case plan and regained

custody of one of her children until there were concerns about his behavioral issues and

she requested SCJFS take custody of him. The child was then placed in PPLA status.

       {¶7}   Ms. Overton testified that Mother did engage in case plan services in this

case. Ms. Overton opined that despite these services she had concerns about whether

or not Mother was internalizing the skills that she was learning through her services

providers. She stated that Mother is "able to provide me with ...with good answers but I

cannot guarantee that she could keep [V.J.] safe."

       {¶8}   Mother's case plan requirements included a parenting evaluation at

Northeast Ohio Behavioral Health, individual counseling and Goodwill Parenting classes.

Ms. Overton testified that Mother completed a parenting evaluation through Northeast

Ohio Behavioral Health.     Ms. Overton testified that Mother is engaged in individual

counseling at Minority Behavioral Health and has been for quite some time. Ms. Overton

also testified that Mother completed Goodwill Parenting Classes with a Certificate of

Participation. Goodwill parenting instructors recommended that Mother continue her
Stark County, Case No. 2016CA00118                                                         4


counseling and maintain a safe and appropriate home environment. The instructors also

recommended that if reunification were to occur, then Mother should work with Goodwill

Home Based Services.

        {¶9}   The caseworker further testified that she had recently been to Mother's

home and Mother had baby gates and things for the baby. She stated that she had a

couple concerns about things, however she had addressed those concerns with Mother

and Mother was able to change the home to better accommodate the child.

        {¶10} Ms. Overton testified that according to Mother's therapist, Mother was

making progress. Ms. Overton further testified that Mother is employed and has stable

housing. Mother has been in the same residence since Ms. Overton was assigned to the

case.

        {¶11} Ms. Overton also testified that Mother worked with a case manager at

Minority Behavioral Health.        Ms. Overton testified regarding Mother, "She's done

everything on her case plan and engaged in it." (T. at 21). Throughout the course of the

case, Mother visited with Victoria every other week for one hour. The caseworker has

observed those visits. Ms. Overton testified,

               They're routine. I can tell you exactly what she's going to do ah every

        visit. Um there's no safety concerns but it's just ... it's the very same thing.

        She deviates very rarely from it. Ah she comes in…she greets Victoria. Um

        they go back to the visitation room. She either feeds her breakfast or a

        snack depending on whether she ate and then she does her hair. Or puts

        lotion on and she just (inaudible) with her clothes…and by the time all of

        that's over it’s usually time to go.
Stark County, Case No. 2016CA00118                                                       5


T. at 21. Ms. Overton acknowledged that Mother interacts with Victoria during the visits

and talks to her. Victoria reacts to Mother. There is a bond present. Everything Mother

does with Victoria is appropriate.     Mother comes prepared and brings appropriate

supplies. Mother has brought age-appropriate music and movies to play for Victoria on

her laptop.

        {¶12} Regarding alternatives to permanent custody, Ms. Overton testified that

Mother provided the name of her sister, Denice Roberson who lives in Florida as a

possible placement option. SCJFS did not investigate her for potential placement. The

caseworker explained that because the agency already had an “ICPC,” the agency did

not move forward with doing another one to investigate Ms. Roberson. Ms. Overton

testified that she gave the sister information on how she could go about getting a private

home study done.

        {¶13} Mother's counsel called Sierra Dennis, a professional clinical counselor with

Minority Behavioral Health group. She has worked with Mother since September of 2014.

Mother provided the counselor with documentation from her case plan with SCJFS. Ms.

Dennis began to meet with Mother weekly for therapy sessions beginning in October of

2014.

        {¶14} Mother and Ms. Dennis went through three assessment phases to develop

treatment goals and objectives and then worked on those goals and objectives. They

worked on decreasing Mother's anxiety and worked on Mother's decision-making as well

as her inner personal relationships.
Stark County, Case No. 2016CA00118                                                            6


         {¶15} Ms. Dennis testified that she and Mother worked on processing Mother's

grief and loss of Catana as well as her loss with her other children and the relationship

with her other children.

         {¶16} Ms. Dennis was provided with collateral information including the SCJFS

case plan, and the reports from Northeast Ohio Behavioral Health and Goodwill Parenting

Class.

         {¶17} Mother and Ms. Dennis have continued to meet weekly. Mother has been

on time and consistent with her appointments. Ms. Dennis also accompanied Mother to

meetings with SCJFS. Ms. Dennis testified that Mother has made great progress over

the past year and half. She also testified that she observed some of Mother's visits with

V.J. and they went well. Ms. Dennis opined that Mother is internalizing the progress in

counseling.

                                       Best Interest Hearing.

         {¶18} Regarding the best interests of the child, Ms. Overton testified that V.J. had

been in the same foster home since removal. The foster parents are interested in

adopting V.J. The agency conducted an out of state home study on a paternal uncle,

which was approved in May of 2015.

         {¶19} V.J. has visited the paternal relatives in Missouri. At the beginning, the

paternal relatives came to Ohio to visit V.J. for short visits. In October of 2015, V.J. started

going to Missouri for one week per month. The visits go very well and V.J. has a bond

with her paternal relatives. The paternal relatives are interested in adopting V.J.

         {¶20} Mother also provided Denice Roberson as a potential out of state relative

placement. The agency did not conduct a home study on Ms. Roberson because they
Stark County, Case No. 2016CA00118                                                         7


already had an approved ICPC with the paternal relative. However, the caseworker

informed Ms. Roberson that she could contact her local children services agency to

conduct a home study.

       {¶21} Regarding Mother's interactions with V.J., the caseworker again testified

that Mother visits consistently with V.J. and the visits go fine. During those visits, Mother

provides the care that she needs to provide for the child. There is a bond between the

child and Mother. Mother has been actively involved in Victoria's doctor's appointments.


       {¶22} On May 18, 2016, the trial court issued its findings of fact granting

permanent custody of C.H. to SCJFS and terminating Mother’s parental rights.


                                       Assignments of Error

       {¶23} Mother raises two assignments of error,


       {¶24} “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO

THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS SCDJFS

FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT GROUNDS EXISTED

FOR PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

       {¶25} “II. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO

STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS SCDIFS

FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST

INTERESTS OF THE MINOR CHILD TO GRANT PERMANENT CUSTODY AND SUCH

DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
Stark County, Case No. 2016CA00118                                                            8


                                          Burden of Proof

       {¶26} “[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.

       {¶27} 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

       {¶28} 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
Stark County, Case No. 2016CA00118                                                         9

      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, and Frate v. Rimenik, 115

      Ohio St. 11, 152 N.E. 14.

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). 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.

      {¶29} In Cross, the Supreme Court further cautioned,

             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.

161 Ohio St. at 477-478. (Emphasis added).
Stark County, Case No. 2016CA00118                                                         10


                        Requirements for Permanent Custody Awards

       {¶30} 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.

       {¶31} 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:

              (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;
Stark County, Case No. 2016CA00118                                                    11


              (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.

       {¶32} 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.

       Mother’s First Assignment of Error: Parental Placement within a Reasonable

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

       1. The child had been in the temporary custody of the agency for a period of

time in excess of twelve of the prior twenty-two consecutive months – R.C.

2151.414(B)(1)(d).

       {¶33} In the case sub judice, the trial court found, pursuant to R.C.

2151.414(B)(1)(d) that the child had been in the temporary custody of the agency for a

period of time in excess of twelve of the prior twenty-two consecutive months.
Stark County, Case No. 2016CA00118                                                        12


      {¶34} “Before a public children-services agency or private child-placing agency

can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the child

must have been in the temporary custody of an agency for at least 12 months of a

consecutive 22–month period.” In re: C.W., 104 Ohio St.3d 163, 2004–Ohio–6411, 818

N.E.2d 1176 at paragraph one of the syllabus. When calculating this time period, the

court in C.W. cautioned, “the time that passes between the filing of a motion for permanent

custody and the permanent-custody hearing does not count toward the 12–month period

set forth in R.C. 2151.414(B)(1)(d).” Id. at 167, 2004–Ohio–6411 at ¶ 26, 818 N.E.2d at

1180. Accord, In re: N.C., 5th Dist. No. 2011-CA-00141, 2011-Ohio-6113, ¶32.

      {¶35} In the case at bar, the grant of temporary custody of V.J. to SCJFS occurred

on August 20, 2014. The motion for permanent custody was filed on October 1, 2015.

Thus, V.J. had been in the temporary custody of SCJFS for at least 12 months of a

consecutive 22-month period at the time the motion for permanent custody was filed.

Mother has not challenged the twelve of twenty-two month finding.

      {¶36} 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. Accord In re H.P., 12th Dist. Preble No. CA2010–07–010, 2011–

Ohio–1148, ¶ 42; In re C.E., 3rd Dist. Hancock Nos. 5–09–02, 509–03, 2009–Ohio–6027,

¶ 18; In re D.J., 2nd Dist. Montgomery No. 21906, 2007–Ohio–6677, ¶ 23; In re Donell

F., 6th Dist. Lucas No. L–04–1308, 2005–Ohio–4175, ¶ 25.

      {¶37} Further, the trial court’s finding that V.J. could not be placed with Mother

within a reasonable period was not against the manifest weight or sufficiency of the

evidence.
Stark County, Case No. 2016CA00118                                                        13


       {¶38} The trial court further found V.J. could not be placed with Mother within a

reasonable period of time and should not be placed with Mother pursuant to R.C.

2151.414(E). R.C. 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 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”

       {¶39} 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 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:
Stark County, Case No. 2016CA00118                                                    14


            (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.

            (2) Chronic mental illness, chronic emotional illness, mental

     retardation, physical disability, or chemical dependency of the parent that is

     so severe that it makes the parent unable to provide an adequate

     permanent home for the child at the present time and, as anticipated, within

     one year after the court holds the hearing pursuant to division (A) of this

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

     Revised Code;

            (3) The parent committed any abuse as described in section

     2151.031 of the Revised Code against the child, caused the child to suffer

     any neglect as described in section 2151.03 of the Revised Code, or

     allowed the child to suffer any neglect as described in section 2151.03 of

     the Revised Code between the date that the original complaint alleging
Stark County, Case No. 2016CA00118                                                      15


     abuse or neglect was filed and the date of the filing of the motion for

     permanent custody;

            (4) The parent has demonstrated a lack of commitment toward the

     child by failing to regularly support, visit, or communicate with the child when

     able to do so, or by other actions showing an unwillingness to provide an

     adequate permanent home for the child;

            (5) The parent is incarcerated for an offense committed against the

     child or a sibling of the child;

            (6) The parent has been convicted of or pleaded guilty to an offense

     under division (A) or (C) of section 2919.22 or under section 2903.16,

     2903.21, 2903.34, 2905.01, 2905.02, 2905.03, 2905.04, 2905.052907.07,

     2907.08, 2907.09, 2907.12, 2907.21,2907.22, 2907.23, 2907.252907.31,

     2907.32, 2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11,

     2911.12, 2919.12, 2919.24, 2919.25, 2923.12, 2923.13, 2923.161,

     2925.02, or 3716.11 of the Revised Code and the child or a sibling of the

     child was a victim of the offense or the parent has been convicted of or

     pleaded guilty to an offense under section 2903.04 of the Revised Code, a

     sibling of the child was the victim of the offense, and the parent who

     committed the offense poses an ongoing danger to the child or a sibling of

     the child.

            (7) The parent has been convicted of or pleaded guilty to one of the

     following:

                                          ***
Stark County, Case No. 2016CA00118                                                   16


            (8) The parent has repeatedly withheld medical treatment or food

     from the child when the parent has the means to provide the treatment or

     food, and, in the case of withheld medical treatment, the parent withheld it

     for a purpose other than to treat the physical or mental illness or defect of

     the child by spiritual means through prayer alone in accordance with the

     tenets of a recognized religious body.

            (9) The parent has placed the child at substantial risk of harm two or

     more times due to alcohol or drug abuse and has rejected treatment two or

     more times or refused to participate in further treatment two or more times

     after a case plan issued pursuant to section 2151.412 of the Revised Code

     requiring treatment of the parent was journalized as part of a dispositional

     order issued with respect to the child or an order was issued by any other

     court requiring treatment of the parent.

            (10) The parent has abandoned the child.

            (11) The parent has had parental rights involuntarily terminated with

     respect to a sibling of the child pursuant to this section or section 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. 2016CA00118                                                       17


             (12) The parent is incarcerated at the time of the filing of the motion

      for permanent custody or the dispositional hearing of the child and will not

      be available to care for the child for at least eighteen months after the filing

      of the motion for permanent custody or the dispositional hearing.

             (13) The parent is repeatedly incarcerated, and the repeated

      incarceration prevents the parent from providing care for the child.

             (14) The parent for any reason is unwilling to provide food, clothing,

      shelter, and other basic necessities for the child or to prevent the child from

      suffering physical, emotional, or sexual abuse or physical, emotional, or

      mental neglect.

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

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

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

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

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

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

             (16) Any other factor the court considers relevant.

      {¶40} Caseworker Overton testified that Mother was convicted of Child

Endangering (R.C. 2919.22) and served five years in prison. R.C. 2151.414(E)(6). The

victim of the crime committed by Mother was a sibling of V.J. The child died while in

Mother’s care.
Stark County, Case No. 2016CA00118                                                          18


       {¶41} In the present case, Mother has had parental rights involuntarily terminated

with respect to a sibling of the child. R.C. 2151.414(E)(11). Caseworker Overton testified

that Mother has involuntarily lost permanent custody of four children.

       {¶42} Accordingly, the trial court’s finding that V.J. would be at risk if she were to

be returned to Mother is not against the manifest weight or sufficiency of the evidence.

       Mother’s Second Assignment of Error: The Best Interest of the Child.

       {¶43} 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.

       {¶44} The focus of the “best interest” determination is upon the child, not the

parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a

grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d

309, 315, 642 N.E.2d 424(8th Dist. 1994). A finding that it is in the best interest of a child

to terminate the parental rights of one parent is not dependent upon the court making a

similar finding with respect to the other parent. The trial court would necessarily make a

separate determination concerning the best interest of the child with respect to the rights

of the mother and the rights of the father.
Stark County, Case No. 2016CA00118                                                        19


       {¶45} The trial court made findings of fact regarding the child’s best interest. It is

well-established that “[t]he discretion which the juvenile court enjoys in determining

whether an order of permanent custody is in the best interest of a child should be

accorded the utmost respect, given the nature of the proceeding and the impact the

court’s determination will have on the lives of the parties concerned.” In re: Mauzy

Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073(Nov. 13, 2000), quoting

In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424(8th Dist. 1994).

       {¶46} As an appellate court, we neither weigh the evidence nor judge the

credibility of witnesses. Our role is to determine whether there is relevant, competent and

credible evidence, upon which the fact finder could base its judgment. Cross Truck v.

Jeffries, 5th Dist. Stark No. CA–5758, 1981 WL 6321 (Feb. 10, 1982). “Reviewing courts

should accord deference to the trial court’s decision because the trial court has had the

opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that

cannot be conveyed to us through the written record, Miller v. Miller, 37 Ohio St.3d 71,

523 N.E.2d 846 (1988).

       {¶47} In the present case, the trial court’s decision indicates it considered the best

interest factors. Upon review of the record, it is clear that the record supports the trial

court’s finding that granting the motion for permanent custody is in V.J.’s best interest.

The trial court concluded the child’s need for legally secure placement could not be

achieved without awarding permanent custody to SCJFS.

       {¶48} During the best interest portion of the trial, Caseworker Overton testified

that V.J. is a healthy, developmentally on track child. V.J. is bonded and extremely

attached to her foster family. The foster family wants to adopt V.J. V.J. has also had
Stark County, Case No. 2016CA00118                                                              20


brief visits with her paternal uncle and his family. She is also bonded to that family.

Likewise, they are interested in adoption. In the opinion of Caseworker Overton,

permanent custody is in V.J.'s best interest.

       {¶49} In contrast to her foster family and paternal family, Ms. Overton described the

bond between the child and Mother as "routine." She based this opinion on Mother's lack of

adaptability throughout visits with the child as well as their interactions. According to Ms.

Overton, Mother does not comprehend cues the child gives her signaling that she wants to play,

and falls into the same routine during all of her visits. She believes that V.J. would benefit from

adoption, and that benefit far outweighs the risk of harm due to the severing of Mother’s

parental rights.

       {¶50} Ms. Holly Davies, Guardian ad Litem for the child, also agreed that

permanent custody was in V.J.'s best interest.

                                              Conclusion

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

could not be placed with Mother 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. We further find that the trial court’s decision that permanent

custody to SCJFS 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.

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

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

Court of Common Pleas, Family Court Division.

       {¶53} Mother’s first and second assignments of error are overruled.
Stark County, Case No. 2016CA00118                                            21


       {¶54} The judgment of the Stark County Court of Common Pleas, Family Court

Division is affirmed.



By Gwin, J.,

Farmer, P.J., and

Hoffman, J., concur
