[Cite as In re K.R., 2016-Ohio-486.]


                                           COURT OF APPEALS
                                          STARK COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


 IN THE MATTER OF:                                 :   JUDGES:
 K.R. MINOR CHILD                                  :
                                                   :   Hon. William B. Hoffman, P.J.
                                                   :   Hon. Patricia A. Delaney, J.
                                                   :   Hon. Craig R. Baldwin, J.
                                                   :
                                                   :   Case No. 2015CA00162
                                                   :
                                                   :
                                                   :
                                                   :
                                                   :   OPINION


CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas, Family Court Division,
                                                       Case No. 2014 JCV 00543



JUDGMENT:                                              AFFIRMED




DATE OF JUDGMENT ENTRY:                                February 9, 2016




APPEARANCES:

 For Plaintiff-Appellee:                               For Defendant-Appellant:

 STARK COUNTY JFS                                      ANTHONY J. WISE
 BRANDON J. WALTENBAUGH                                201 Cleveland Ave. SW, Ste. 104
 300 Market Ave. North                                 Canton, OH 44702
 Canton, OH 44702
Stark County, Case No. 2015CA00162                                                        2

Delaney, J.

       {¶1} Defendant-appellant Tiffany Powell (“Mother”) appeals from the August 12,

2015 Judgment Entry of the Stark County Court of Common Pleas, Family Court Division,

terminating her parental rights with respect to her minor child, K.R. (d.o.b. 6/3/2014).

Appellee is the Stark County Department of Jobs and Family Services (the Agency).

       {¶2} This case is related to In the Matter of K.R., 5th Dist. Stark No.

2015CA00166. Both cases arise from the same facts, come to us on the expedited

calendar, and shall be considered in compliance with App. R. 11.2(C).

                          FACTS AND PROCEDURAL HISTORY

       {¶3} Mother and Father have one child together, K.R. Father is presently serving

a prison term of 15 years to life upon a conviction of murder, a crime he is accused of

committing with Mother. The victim of the murder is the father of Mother’s older children.

Mother is also incarcerated but still awaiting trial.

       {¶4} Mother has eight children and has an extensive history with the Agency

prior to K.R.’s birth; K.R. is her youngest child. Mother has been convicted of contributing

to the delinquency of a minor because two teenage children did not attend school for five

years; she did not seek appropriate medical or dental care for the children which led to

significant health issues; she failed to apply for benefits that would have contributed to

the children’s welfare because she was unable to provide an address, being frequently

homeless; and police became involved when a home the family lived in was found to be

in deplorable condition. On that occasion, police found the children hiding under a porch.

At different times throughout the Agency’s involvement with Mother, workers have been

unable to locate her.
Stark County, Case No. 2015CA00162                                                     3


       {¶5} Two of Mother’s older children were placed in the Agency’s permanent

custody in Stark County Court of Common Pleas, Family Court Division case number

2013JCV00949. Legal custody of three children was granted to a relative, and cases for

two remaining children were still pending at the time of the permanent custody hearing in

the instant case.

       {¶6} Father and Mother’s only child together is K.R.        Father has no prior

involvement with the Agency; his case plan was sent to the Summit County Jail where he

was already incarcerated when the Agency opened its case with K.R. The Agency’s

concerns with Father (in addition to his imprisonment for murder) include assessment of

his parenting, competency, and cognitive abilities.

       {¶7} Domestic violence is also an issue for both Mother and Father.

       {¶8} At the time of the evidentiary hearing, Mother had not had contact with K.R.

since her birth, or over 90 days before. Father was also incarcerated upon K.R.’s birth

and has never met K.R. Mother and Father have no-contact orders with K.R.

       {¶9} During her involvement with the Agency in connection with her other

children, Mother has successfully completed portions of case plans in the past, including

obtaining a mental health assessment from Northeastern Ohio Behavioral Health;

attending domestic violence counseling at Renew; and completing a drug and alcohol

assessment with no findings.      Shortly before her arrest for murder, Mother made

arrangements to attend parenting classes in Summit County, but was arrested before she

could complete any substantial portion of the classes.

       {¶10} Father has not made any progress on his case plan.
Stark County, Case No. 2015CA00162                                                       4


       {¶11} The Agency caseworker testified K.R. cannot be placed with Mother or

Father in a reasonable period of time. Father is already serving his prison term, and even

if Mother is not convicted in the criminal case and is released from jail, she could not

complete case plan services in a reasonable period of time to establish she is able to care

for K.R. Mother is in need of comprehensive mental health treatment, a psychiatric

consultation, counseling through Renew, and parenting classes. A psychologist testified

Mother is in need of intensive mental health treatment of at least a year and a half to

address her preoccupation with her own needs over those of her children and her

paranoid personality disorder.

       {¶12} Neither parent took any steps to reduce risks posed to K.R.

       {¶13} K.R. is a happy and healthy 14-month-old with no developmental or medical

issues. She is presently placed with a foster family; five of her half-siblings are in

placement with a relative and two are in foster care. The half-siblings do have contact

with each other and visit together regularly for birthdays and holidays.

       {¶14} K.R. has been with the same foster family since she was discharged from

the hospital after birth. She is doted upon by her foster parents and by two other children

in the home. She has toys of her own and is closely bonded with the foster family. She

has community and church support and attends daycare several times a week. K.R.’s

foster family wants to adopt her and is committed to maintaining K.R.’s relationships with

her half-siblings and other relatives.

       {¶15} The Agency investigated relatives for placement with no positive results.

The caseworker testified she recently learned of additional persons who might be
Stark County, Case No. 2015CA00162                                                      5


interested in placement which would require additional time for investigation and home

studies.

                              Permanent Custody Proceedings

       {¶16} Immediately after K.R.’s birth, the Agency filed a complaint alleging

dependency and an emergency shelter care hearing was held on June 5, 2014. The trial

court awarded emergency temporary custody of K.R. to the Agency and re-affirmed

orders for the parents to complete parenting evaluations and to follow all

recommendations.

       {¶17} K.R. was found to be dependent on August 14, 2014 and placed in the

temporary custody of the Agency. The trial court approved and adopted a case plan and

found the Agency made reasonable efforts to prevent the need for continued removal of

the child from the home.

       {¶18} The case was reviewed on November 21, 2014 and the trial court approved

and adopted the case plan review packet, found compelling reasons existed to preclude

filing for permanent custody, found the Agency made reasonable efforts to prevent the

need for continued removal of the child from the home, and maintained the status quo.

       {¶19} The Agency filed a motion seeking permanent custody of K.R. on April 30,

2015, alleging K.R. could not be placed with Mother or Father within a reasonable time;

the child was abandoned; and permanent custody is in her best interest. The trial court

reviewed the case on May 1, 2015, approved and adopted the case plan review packet,

found the Agency made reasonable efforts in finalizing the permanency plan in effect,

and found no compelling reasons existed to preclude a request for permanent custody.

       {¶20} The matter proceeded to evidentiary hearing on August 4, 2015.
Stark County, Case No. 2015CA00162                                                           6


       {¶21} On August 12, 2015 the trial court issued its findings of fact granting

permanent custody of K.R. to the Agency and terminating the parental rights of Mother

and Father.

       {¶22} Mother now appeals from the decision of the trial court.

       {¶23} Mother raises two assignments of error:

                               ASSIGNMENTS OF ERROR

       {¶24} “I.    THE TRIAL COURT ERRED IN NOT GRANTING [MOTHER’S]

MOTION TO EXTEND TEMPORARY CUSTODY FOR SIX (6) MONTHS.”

       {¶25} “II. THE TRIAL COURT’S JUDGMENT THAT THE BEST INTERESTS OF

THE MINOR CHILD WOULD BE SERVED BY GRANTING PERMANENT CUSTODY

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

                                         ANALYSIS

                                              I.

       {¶26} In her first assignment of error, Mother argues the trial court should have

granted her motion to extend temporary custody for six months. We disagree.

       {¶27} A trial court's decision to grant or deny an extension of temporary custody

is a discretionary one. See, R.C. 2151.415(D)(1) and (2).

       {¶28} Pursuant to R.C. 2151.415(D)(1), a trial court can extend temporary custody

for six months only if it finds, by clear and convincing evidence, (1) that such an extension

is in the best interests of the child, (2) that there has been significant progress on the case

plan, and (3) that there is reasonable cause to believe that the child will be reunified with

a parent or otherwise permanently placed within the period of extension. See, In re

McNab, 5th Dist. Nos. 2007 AP 11 0074, 2007 AP 11 0075, 2008–Ohio–1638.
Stark County, Case No. 2015CA00162                                                         7


       {¶29} Mother argues the trial court’s denial of her request for extension effectively

denies her “every procedural and substantial protection the law allows,” but the trial court

is not required to do so when the evidence fails to establish any of the elements required

by R.C. 2151.415(D)(1). Mother argues she made significant progress on her case plans

in connection with her older children and her criminal case remains unresolved. We note,

however, even if Mother was released from jail immediately, she requires at least a year

and a half of intensive mental health treatment before she can establish the ability to care

for K.R. We find the evidence, as set forth more fully above, supports the conclusion an

extension of temporary custody was not in K.R.'s best interests, but instead is best served

by the award of legal custody to TCJFS.

       {¶30} Mother’s first assignment of error is overruled.

                                                 II.

       {¶31} In her second assignment of error, Mother argues the Agency did not

establish by clear and convincing evidence that permanent custody is in the best interest

of K.R. We disagree.

       {¶32} “[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). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing

evidence is that evidence “which will provide in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue

must be clear and convincing, a reviewing court will examine the record to determine
Stark County, Case No. 2015CA00162                                                          8


whether the trier of facts had sufficient evidence before it to satisfy the requisite degree

of proof.” Id. at 477, 120 N.E.2d 118. 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. C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

       {¶33} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence in the parties'

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

       {¶34} 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 the filing of a motion for permanent custody

of a child by a public children services agency.

       {¶35} 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; (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
Stark County, Case No. 2015CA00162                                                           9


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.

        {¶36} 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, a 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.

        {¶37} In the instant case, Mother challenges only the trial court’s findings as to

best-interest.1 We have frequently noted, “[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. No.2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re

Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994). The trial court

determined it was in the best interest of K.R. to be placed in the Agency's permanent

custody and we agree.

        {¶38} K.R. has been with the same foster family since birth; the foster home is

appropriate and the parents and children in the home dote on K.R. They want to adopt


1
       As the trial court noted in its findings of fact and conclusions of law, two of Mother’s
older children were placed in the permanent custody of the Agency, thus relieving the
Agency of the obligation to make reasonable efforts to return K.R. and requiring the trial
court to find K.R. cannot be placed with Mother within a reasonable period of time.
Mother’s conviction upon one count of contributing to the delinquency or unruliness of a
minor also requires the trial court to find K.R. cannot be placed with Mother within a
reasonable period of time.
Stark County, Case No. 2015CA00162                                                      10


and are very bonded with K.R. Although she is not placed with her half-siblings, the foster

family is committed to maintaining and continuing her relationships with her family.

       {¶39} Proposed relative and kinship placements have not worked out. Father

argues the Agency should have further investigated Sonia Frazier for kinship placement,

but the record reveals only that Ms. Frazier filed a motion for legal custody and a motion

to intervene and both were overruled.

       {¶40} There is no bond between K.R. and either Mother or Father and there have

been no visits. The trial court found the harm of breaking this nonexistent bond is far

outweighed by the benefit of permanency and stability in K.R.’s life and we agree. Clear

and convincing evidence supports the trial court's conclusion that it is in K.R.'s best

interest to grant permanent custody to the Agency.

       {¶41} Upon our review of the record in light of the pertinent statutory factors, we

find the record contains clear and convincing evidence which supports the trial court's

determination. The granting of permanent custody of K.R. to the Agency was made in

consideration of the child's best interests and was not an abuse of discretion.

       {¶42} Mother’s second assignment of error is overruled.




                                     CONCLUSION

       {¶43} Mother’s two assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas, Family Court Division is affirmed.

By: Delaney, J. and

Hoffman, P.J.
Stark County, Case No. 2015CA00162   11


Baldwin, J., concur.
