[Cite as In re N.C., 2011-Ohio-6113.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
IN THE MATTER OF:                              :       Hon. W. Scott Gwin, P.J.
N.C. (D.O.B. 03/06/09)                         :       Hon. William B. Hoffman, J.
N.C. (D.O.B. 03/06/09)                         :       Hon. Sheila G. Farmer, J.
MINOR CHILDREN                                 :
                                               :
                                               :       Case No. 2011-CA-00141
                                               :
                                               :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Family Court Division,
                                                   Case No. 2009JCV00290

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            November 21, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JERRY COLEMAN                                      MARY G. WARLOP
STARK COUNTY JFS                                   116 Cleveland Avenue N.W.
221 Third Street S.E.                              Suite 400
Canton, OH 44702                                   Canton, OH 44702
[Cite as In re N.C., 2011-Ohio-6113.]


Gwin, P.J.

        {¶ 1} Appellant-father A.M.1 appeals the May 31, 2011, judgment entry of the

Stark County Court of Common Pleas, Family Court Division, which terminated his

parental rights with respect to his minor twins, N.C. and N.C. and granted permanent

custody of the children to appellee, Stark County Job and Family Services (hereinafter

“SCJFS”).

                                        I. PROCEDURAL HISTORY

        {¶ 2} Appellant A.M is the biological father of N.C. [b. 03.06.2009] and N.C. [b.

03.06.2009].2

        {¶ 3} On March 13, 2009, SCJFS filed a complaint alleging that the two children

were neglected children and seeking temporary custody due to Mother’s extensive

history with the agency including her having lost custody of two older children to

relatives. The children were removed from Mother’s custody. The initial concerns that

led to removal did not concern appellant. By Judgment Entry filed March 24, 2009 the

trial court appointed a volunteer CASA Guardian ad Litem [“GAL”], to represent the best

interests of the children.

        {¶ 4} On May 7, 2009, the children were found to be neglected and continued in

the temporary custody of the SCJFS. The court further found that the agency had made

reasonable efforts to prevent the need for removal of the child from the home and

approved and adopted the case plan. The children have been in the temporary custody

of SCJFS since that time.



1
  For purposes of anonymity, initials designate appellant’s name only. See, e.g., In re C.C., Franklin App.
No. 07-AP-993, 2008-Ohio-2803 at ¶ 1, n.1.
2
  The biological mother is not a party to this appeal.
Stark County, Case No. 2011-CA-00141                                                      3


       {¶ 5} On August 4, 2009, SCJFS filed a Motion for Permanent Custody with

respect to the biological mother. A hearing on that motion as well as the annual review

hearing was scheduled for September 8, 2009. On September 9, 2009, appellant was

identified as an alleged father to the children. On September 15, 2009 SCJFS

requested appellant be joined to this action as a necessary party. Appellant submitted

to genetic testing and was determined to be the father of the children. Paternity was

established in October 2009.

       {¶ 6} The SCJFS requested and the trial court granted two six-month

extensions of temporary custody to allow parties to complete case plan services.

       {¶ 7} When SCJFS became involved, appellant was engaged to his fiancée with

whom he resided along with her eleven-year-old child. Appellant had been the primary

father figure for his fiancée’s child for the past nine years. N.C. and N.C. were the result

of a brief encounter between appellant and Mother when appellant had cheated on his

fiancée. Upon establishing paternity, appellant began visiting with the children once per

week, and never missed any visits.

       {¶ 8} In November of 2009, SCJFS developed a new case plan which contained

the following services for appellant: 1.) Submit to a substance abuse evaluation at

Quest recovery services; 2.) Submit to regular urine screens; 3.) Complete a parenting

evaluation   at   Northeast    Ohio   Behavioral   Health   and    follow   any   treatment

recommendations. Appellant submitted to an evaluation at Quest Recovery Services

and also cooperated with regular urine screens during the pendency of the case.

Appellant admitted to a long-term history of marijuana use.        He consistently tested

negative for drug use since May 2010, according to both urine screens, and a hair
Stark County, Case No. 2011-CA-00141                                                   4


follicle test. Appellant never missed a requested urine screen and never submitted a

dilute screen. Appellant established a consistent pattern of sobriety and compliance with

the drug screen requests. Appellant successfully completed treatment at Quest

Recovery, specifically the Intensive Outpatient program on June 3, 2010. Appellant

also completed eight relapse prevention groups, attended the required twelve step

meetings, and took part in aftercare sessions. According to the final report, appellant’s

prognosis was good.

      {¶ 9} On January 12, 2011, SCJFS filed a motion to change legal custody of the

children to appellant stating that appellant had completed a parenting evaluation,

Goodwill Parenting classes, Quest treatment and had maintained sobriety since May

2010; and, appellant had reported having obtained independent housing and has

income. On February 4, 2011, appellant also filed a motion for a change of legal

custody and termination of SCJFS involvement. However, the reunification efforts were

not successful and the children were not placed into Appellant’s custody.

      {¶ 10} Appellant also completed the NEOBH parenting evaluation. The

evaluation was done and submitted in January of 2010. NEOBH recommended that

appellant and his fiancée participate in counseling. Counseling between appellant and

his fiancée never took place because appellant’s fiancée, who is not a party to the case,

refused to take part in services. However, appellant testified that he and his fiancée

had actually met with a pastor together and talked a lot and that his fiancée had gone to

the Catholic Community Center on her own.

      {¶ 11} NEOBH also recommended that appellant participate in the Goodwill

Home Based Parenting Program. SCJFS amended appellant’s case plan to permit
Stark County, Case No. 2011-CA-00141                                                  5


appellant to engage in Goodwill Parenting Classes as an alternative and required

appellant to establish stable and appropriate independent housing separate from his

fiancée. This was due to appellant’s fiancée being distraught over appellant having had

children by another woman. Appellant successfully completed the Goodwill Parenting

Class. The exit summary recommended that appellant obtain independent housing,

continue to maintain sobriety, work the case plan, and complete the Home Based

Program. Goodwill reported that appellant’s motivation, attendance, and attitude were

good and positive. Appellant was described as courteous, respectful, and attentive.

      {¶ 12} Regarding visitation, there were never any problems with appellant’s visits

during the Goodwill Parenting classes. Appellant was very attentive to the children. The

children were beginning to form a bond that has grown. Appellant was affectionate and

put the children at ease. Appellant was interactive, patient, nurturing, and engaging

with the children. The children began calling appellant “Daddy.” The intensive, every-

day program lasted from July 26, 2010 through October 14, 2010.       After the classes

were complete, appellant received supervised visitation at the agency weekly until the

permanent custody motion was filed at which time it was decreased to every other week

for two hours. Appellant visited his children from October 2009 through the permanent

custody trial. Appellant never canceled a visit and came prepared. There were never

any incidents or problems during the visitation.    The caseworker testified that she

personally observed visits and that they had began to form a bond and it has grown

stronger and stronger.

      {¶ 13} Appellant’s fiancée ultimately did not want to continue with counseling or

do the agency requested fingerprints or cooperate with this case. The caseworker did
Stark County, Case No. 2011-CA-00141                                                      6


not report finding any previous agency involvement with appellant, or his fiancée, or his

fiancée’s son over the past nine years. Appellant’s fiancée has never been happy that

appellant cheated on her. Appellant attempted to get her to engage in services and be

supportive and accept the twins. Appellant was to at least make an effort to try couple’s

counseling with his fiancée, but that effort failed. He was required to attempt to engage

in couple’s counseling with his fiancée with the goal of reunifying him with the children in

the home he shared with his fiancée. When that failed he was instructed to get

independent housing.

       {¶ 14} Appellant receives $674.00 in social security disability payment. Appellant

established independent housing on his own. Appellant obtained independent housing

in December 2010 and began fixing it up in January 2011. His lease was signed

January 24, 2011. SCJFS visited his home January 26, 2011 and found it to be in

deplorable condition. The worker scheduled another appointment to view any changes

made to the residence but appellant cancelled the appointment. The Court continued

the hearing to allow appellant’s residence to be viewed.

       {¶ 15} On the second day of trial, the case worker testified that she had recently

inspected the home. She testified that she had the opportunity to inspect the home

after the completion of part one of trial on May 3, 2011. The home had working utilities

including electricity and running hot and cold water. The home was a three-bedroom

home. She testified that the children’s room contained two beds and a play area for the

kids. There was an outfit for each child, play cars, and a television. There were bed

linens on the children’s beds and a dresser for the children. There were car seats for the

children in the home. There was a smoke detector, which just needed a new battery.
Stark County, Case No. 2011-CA-00141                                                  7


She testified that there were towels in the bathroom, but no personal items. There was

dish soap in the kitchen. The kitchen cupboards were clean. The refrigerator was clean

and working. The caseworker indicated that the children had never been to appellant’s

home. However, she contended that the home was not prepared for the children’s

arrival because there was no food for the children other than two cans of Vienna

sausage and chips. The caseworker acknowledged if appellant went to the store for

one hour, he could acquire the necessary supplies and resolve the problem with basic

sundries. The case worker testified that although the children’s room was done up, the

other two bedrooms were empty and not painted. However, she also stated that

appellant reported that he slept on the couch and she recalled there being throw pillows

on the couch, but could not remember whether there was a blanket as well.           The

caseworker indicated that there was substantial improvement in the home since her

initial visit. Appellant had removed the mess, cleaned, painted the walls, and acquired

furniture.    SCJFS did not assist appellant in any way in his effort to establish

independent housing. The trial court in its findings noted that “The agency’s only

assistance in helping father obtain independent housing was suggesting that he seek

government subsidized housing.” for which he was not eligible. “The father found this

house solely through his own efforts. The court recognizes the efforts father has made

in remaining drug free and obtaining housing”

       {¶ 16} Appellant does not have custody of any of his prior children. Appellant

has involuntarily lost custody of a prior child pursuant to a permanent custody

proceeding.
Stark County, Case No. 2011-CA-00141                                                    8


      {¶ 17} On March 4, 2011, the SCJFS filed an amended motion seeking

permanent custody of the children. On May 3, 2011 and May 17, 2011 hearings were

held on the motion for permanent custody.

      {¶ 18} During the best interest phase, the caseworker again testified that

appellant and the children are continuing to form their bond through visits.         She

indicated that appellant has been appropriate with the children. She stated that the

children had visited with appellant once per week for almost one year and a half.

Appellant has been appropriate at all of the visits. The children recognize appellant.

The children know who he is and call him “Daddy.”

      {¶ 19} The GAL submitted a report to the court regarding the permanent custody

motion in which the GAL recommended that the court grant permanent custody to

SCJFS. Upon cross-examination, the GAL admitted that he had not observed appellant

with the children since appellant was enrolled in Goodwill Parenting in August 2010.

The GAL observed two of Father’s Goodwill visits. He admitted that his previous GAL

report was positive about what he observed at the visits with appellant and the children.

He had not observed them together since then. He had not visited appellant’s home

prior to the permanent custody trial. He further testified that much of the information he

put in his reports, he received from the caseworker.

      {¶ 20} On May 31, 2011, the court issued a written judgment entry with findings

of fact and conclusions of law determining that grounds existed to grant permanent

custody to SCJFS. The court based its decision on the following grounds: the children

have been in the temporary custody of SCJFS since May of 2009, thus 12 months or

more within a consecutive 22-month period. The court found that the children could not
Stark County, Case No. 2011-CA-00141                                                      9


be returned to appellant or Mother based upon their failure to remedy the problems that

led to the removal of these children. The court stated it was unable to find that either

parent will remedy these problems within a reasonable period of time.

      {¶ 21} Regarding the best interest of the children, the court found that although

the children are bonded with appellant, the benefits of permanency outweighed the

detriments of severing any existing bond.        The court ordered all parental rights

terminated and granted permanent custody to SCJFS.

      {¶ 22} It is from this entry that the appellant-father has appealed.

                                II. ASSIGNMENTS OF ERROR

      {¶ 23} On appeal, appellant-father asserts the following 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 IT IS IN THE BEST INTEREST OF THE MINOR CHILDREN TO GRANT

PERMANENT CUSTODY.

      {¶ 25} “II. THE TRIAL COURT ERRED BY FINDING GROUNDS FOR

PERMANENT CUSTODY AS SUCH DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                      A. Burden of Proof

      {¶ 26} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

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

(1972), 405 U.S. 645, 92 S.Ct. 1208. A parent's interest in the care, custody and

management of his or her child is “fundamental.” Id.; Santosky v. Kramer (1982), 455
Stark County, Case No. 2011-CA-00141                                                    10


U.S. 745, 753, 102 S.Ct. 1388. 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 (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45. 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 (1986), 25 Ohio St.3d

101, 103-104, 495 N.E.2d 23.

                                    B. Standard of Review

      {¶ 28} Even under the clear and convincing standard, our review is deferential. If

some competent, credible evidence going to all the essential elements of the case

supports the trial court’s judgment, an appellate court must affirm the judgment and not

substitute its judgment for that of the trial court. In re Myers III, Athens App. No.

03CA23, 2004-Ohio-657, ¶ 7, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564

N.E.2d 54. The credibility of witnesses and weight of the evidence are issues primarily

for the trial court, as the trier of fact. In re Ohler, Hocking App. No. 04CA8, 2005-Ohio-

1583, ¶ 15, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461

N.E.2d 1273.
Stark County, Case No. 2011-CA-00141                                                    11


                      III. Requirements for Permanent Custody Awards

       {¶ 29} 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

must 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.

       {¶ 30} 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, 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 and the parents cannot be located; (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 placement agencies for twelve or more months of a

consecutive twenty-two month period ending on or after March 18, 1999.

       {¶ 31} 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.
Stark County, Case No. 2011-CA-00141                                                    12


       A. Temporary Custody for at least 12 out of a consecutive 24 month period-

                                    R.C. 2151.414(B)(1)(d).

       {¶ 32} 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.

       {¶ 33} In the case at bar, the children were removed from the home on March 13,

2009. The motion for permanent custody was filed March 16, 2011. Thus, the minor

children have been in the temporary custody of the agency for more than twelve out of

the last twenty-two months pursuant to R.C. 2151.414(B)(1)(d).

       {¶ 34} In the case sub judice, the trial court found, pursuant to R.C. 2151.414

(B)(1)(d) that the children 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. The trial court

further stated, pursuant to that the children could not be placed with either parent within

a reasonable time. See, R.C. 2151. 414( B)(1)(a).

       {¶ 35} As findings under R.C. 2151. 414(B)(1)(a) and R.C. 2151. 414(B)(1)(d) are

alternative findings, each is independently sufficient to use as a basis to grant the

motion for permanent custody. In re Langford Children, Stark App. No.2004CA00349,
Stark County, Case No. 2011-CA-00141                                                     13

2005–Ohio–2304, at paragraph 17; In re Dalton, Tuscarawas App. No.2007 AP 0041,

2007–Ohio–5805, ¶ 88. Thus, having made this finding, which is supported by the

record, it was not necessary for the trial court to also make a finding that the minor child

could not be returned within a reasonable time. See In re Whipple Children, Stark App.

No.2002CA00406, 2003-Ohio-1101, at ¶ 26.

       {¶ 36} Thus, appellant's parental rights can lawfully be terminated upon a finding

that the child has been in the temporary custody of SCJFS for 12 or more months of a

consecutive 22-month period, and upon a finding that it is in the best interest of the

child. R.C. 2151.414(B)(1)(d).

       {¶ 37} In his First Assignment of Error appellant challenges only the trial court's

determination concerning the best interest of the children. However, in his Second

Assignment of Error, appellant challenges the trial court’s finding ostensibly under R.C.

2151.414(B)(1)(a), that the children could not or should not be placed with the appellant

within a reasonable period of time, based upon a finding that one or more of the factors

set forth in R.C. 2151.414(E) are applicable, and also upon a separate finding that it is

in the best interest of the child, using the best-interest factors set forth under R.C.

2151.414(D).

     A. Parental Placement within a Reasonable Time-R.C. 2151.414(B) (1) (a).

       {¶ 38} 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
Stark County, Case No. 2011-CA-00141                                                     14


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 (Sept. 21, 1998), Gallia App. No. 98 CA 6, 1997 WL 701328;

In re: Butcher (Apr. 10, 1991), Athens App. No. 1470, 1991 WL 62145.

       {¶ 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:

       {¶ 40} “(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:

       {¶ 41} “(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
Stark County, Case No. 2011-CA-00141                                                    15


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.

       {¶ 42} “***

       {¶ 43} “(16) Any other factor the court considers relevant.”

       {¶ 44} 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.

       {¶ 45} As previously noted, findings under R.C. 2151. 414(B)(1)(a) and R.C.

2151. 414(B)(1)(d) are alternative findings, each is independently sufficient to use as a

basis to grant the motion for permanent custody. In re Langford Children, Stark App.

No.2004CA00349, 2005–Ohio–2304, at paragraph 17; In re Dalton, Tuscarawas App.

No.2007 AP 0041, 2007–Ohio–5805, ¶ 88. Thus, the trial court having made this

finding, which is supported by the record, was not required to also make a finding that

the minor child could not be returned within a reasonable time. See In re Whipple

Children, Stark App. No.2002CA00406, 2003-Ohio-1101, at ¶ 26.
Stark County, Case No. 2011-CA-00141                                                       16


        {¶ 46} Therefore, appellant’s reliance upon R.C. 2151.414(B)(1)(a) is misplaced

because no finding under R.C. 2151. 414(B)(1)(a) was necessary under the facts of this

case.

                               B. The Best Interest of the Child.

        {¶ 47} 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.

        {¶ 48} 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 (1994), 95 Ohio

App.3d 309, 315. 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.

        {¶ 49} In the case at bar, the trial court noted that appellant had been given two

(2) six month extensions in order to work on his case plan. Further, SCJFS had at one
Stark County, Case No. 2011-CA-00141                                                   17


point attempted to return the children by filing a motion to change custody. However,

appellant despite his diligent efforts was unable to provide a suitable home for the

children.

       {¶ 50} In the case of In re: Summerfield, Stark App. 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.

       {¶ 51} Further, substantial compliance with a case plan, in and of itself, does not

prove that a grant of permanent custody to an agency is erroneous. In re Watkins v.

Harris (Aug. 30, 1995), 9th Dist. No. 17068, at 9. The dispositive issue is not whether

the parent has substantially complied with the case plan, but rather, whether the parent

has substantially remedied the conditions that caused the child's removal. See, e.g., In

re McKenzie (Oct. 18, 1995), 9th Dist. No. 95CA0015, at 7-8; In re Pittman, Summit

App. No. 20894, 2002-Ohio-2208 at ¶ 60.

       {¶ 52} In the case at bar, the trial court noted the many positive changes

appellant has made in his life. The trial court recognized the bond he has formed with

his children. The court found that despite this bond, the benefits of permanency in the

children's lives, particularly given their ages, outweigh the detriments of severing any

existing bond.

       {¶ 53} We recognize the seriousness of the matter at hand. It is a firmly

established principal of law that a parent has a fundamental right to care for and have

custody of his or her child. In re Shaeffer Children (1993), 85 Ohio App.3d 683, 621
Stark County, Case No. 2011-CA-00141                                                      18

N.E.2d 426; citing Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71

L.Ed.2d 599. This fundamental right is not lost based on a parent's temporary loss of

custody. Id at 751- 755. Indeed, the United States Supreme Court has stated, "It is

cardinal with us that the custody, care and nurture of the child reside first in the

parents," Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-1213, 31

L.Ed.2d 551; citing Prince v. Massachusetts (1944), 321 U.S. 158, 166, 64 S.Ct. 438, 88

L.Ed. 645. Therefore, the termination of parental rights is an alternative of last resort;

sanctioned only when the welfare of a child necessitates such action. See In re Wise

(1994), 96 Ohio App.3d 619, 645 N.E.2d 812; In re Cunningham (1979), 59 Ohio St.2d

100, 391 N.E.2d 1034.

       {¶ 54} Furthermore, "[p]ermanent termination of parental rights has been

described as the 'family law equivalent of the death penalty in a criminal case.'

Therefore, parents 'must be afforded every procedural and substantive protection the

law allows.' “(Citations omitted.) In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d

680, 682-683. Consequently, the right of parents to raise their children, coupled with the

concomitant right of children to be raised by their parents, may not be interfered with

unless the parent is unfit. Baker v. Baker (1996), 113 Ohio App.3d 805, 682 N.E.2d 661;

citing Quilloin v. Walcott (1978), 434 U.S. 246, 98 S.Ct. 549.

       {¶ 55} We too, find that the evidence demonstrated the successful efforts

appellant-father had made in the case to regain custody of his children. On that point,

the evidence demonstrates that the improvement the appellant-father has made in his

life is tentative and, perhaps, temporary, and that he is at risk of relapse. The trial court
Stark County, Case No. 2011-CA-00141                                                           19


found that, regardless of appellant's compliance with aspects of his case plan, he was

still not able to be a successful parent to his children.

       {¶ 56} The trial court further 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 (Nov. 13, 2000), Stark App. No. 2000CA00244, quoting In re Awkal

(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424.

       {¶ 57} 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 (February 10, 1982), Stark App. No. CA-5758. “A fundamental premise of our

criminal trial system is that ‘the [trier of fact] is the lie detector.’ United States v. Barnard,

490 F.2d 907, 912 (C.A.9 1973) (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct.

1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of witness

testimony, therefore, has long been held to be the ‘part of every case [that] belongs to

the [trier of fact], who are presumed to be fitted for it by their natural intelligence and

their practical knowledge of men and the ways of men.’ Aetna Life Ins. Co. v. Ward, 140

U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”. United States v. Scheffer

(1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267. 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
Stark County, Case No. 2011-CA-00141                                                     20

conveyed to us through the written record. Trickey v. Trickey [1952], 158 Ohio St. 9, 13-

14,106 N.E.2d 772, 774; Bechtol v. Bechtol (1990) 49 Ohio St.3d 21, 21, 550 N.E.2d

178, 179.

       {¶ 58} In the case at bar, the judgment entry granting permanent custody

specifically included a statement that the trial court had considered all the factors listed

in R.C. 2151.414. “The fact that the trial court did not specifically mention each of the

factors listed in R.C. 2151.414(D) does not mean that the trial court did not consider

such factors.” In re Schupbach Children (July 6, 2000), Tuscarawas App. 2000 AP

010005.

       {¶ 59} The Guardian ad Litem also indicated that it was in the children’s best

interest to be placed in the permanent custody of SCJFS.

                                         IV. Conclusion

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

children 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 was 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 children’s best interest was not against the

manifest weight or sufficiency of the evidence.

       {¶ 61} Appellant's first and second assignments of error are overruled.
Stark County, Case No. 2011-CA-00141                                             21


       {¶ 62} The judgment of the Stark County Court of Common Pleas, Juvenile Court

Division is affirmed.

By Gwin, P.J., and

Farmer, J., concur;

Hoffman, J., concurs

separately




                                          _________________________________
                                          HON. W. SCOTT GWIN

                                          _________________________________
                                          HON. WILLIAM B. HOFFMAN

                                          _________________________________
                                          HON. SHEILA G. FARMER
WSG:clw 1108
Stark County, Case No. 2011-CA-00141                                                     22


Hoffman, J., concurring


   (¶61)     I concur in the majority’s analysis and disposition regarding the trial court’s

      “best interests” determination and satisfaction of R.C. 2151.414(B)(1)(d).

   (¶62)     I write separately only to note I do not find R.C. 2151.414(B)(1)(a) was

      satisfied in this case.



                                         _____________________________________
                                         HON. WILLIAM B. HOFFMAN
[Cite as In re N.C., 2011-Ohio-6113.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:
N.C. (D.O.B. 03/06/09)
N.C. (D.O.B. 03/06/09)
MINOR CHILDREN                                 :
                                               :
                                               :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 2011-CA-00141




    For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Court of Common Pleas, Juvenile Court Division is affirmed. Costs to

appellant.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN

                                                   _________________________________
                                                   HON. WILLIAM B. HOFFMAN

                                                   _________________________________
                                                   HON. SHEILA G. FARMER
