[Cite as In re A.W., 2013-Ohio-5617.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

IN THE MATTER OF:                                JUDGES:
                                                 Hon. William B. Hoffman, P.J.
A.W.,                                            Hon. John W. Wise, J.
M.P. AND                                         Hon. Craig R. Baldwin, J.
M.P.
                                                 Case No. 2013AP080035
NEGLECTED/DEPENDENT CHILDREN

                                                 OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Tuscarawas County Court
                                              of Common Pleas, Juvenile Court Division,
                                              Case No. 12 JN 00158


JUDGMENT:                                     Affirmed

DATE OF JUDGMENT ENTRY:                       December 18, 2013

APPEARANCES:

For Appellant, Mother - Michelle Phillips     For Appellee

ADAM WILGUS                                   DAVID W. HAVERFIELD
401 Tuscarawas Street West, Suite 200         Tuscarawas County Job & Family Services
Canton, Ohio 44702                            389 16th Street, SW
                                              New Philadelphia, Ohio 44663


For Father - Derrick Waldren                  Guardian ad Litem

MICHAEL JOHNSON                               KAREN DUMMERMUTH
117 South Broadway, P.O. Box 1007             349 East High Avenue, P.O. Box 494
New Philadelphia, Ohio 44663                  New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2013AP080035                                                 2

Hoffman, P.J.


         {¶1}   Appellant Michelle Phillips (“Mother”) appeals the July 19, 2013 Judgment

Entry entered by the Tuscarawas County Court of Common Pleas, Juvenile Division,

which terminated her parental rights, privileges and responsibilities with respect to her

three minor children, granted permanent custody of the two youngest children to

Appellee Tuscarawas County Job and Family Services (“the Agency”), and granted

legal custody of the oldest child to his father, Appellee Derrick Waldren (“Waldren”).

                            STATEMENT OF THE FACTS AND CASE

         {¶2}   Mother and Waldren are the biological parents of A.W. (dob 6/20/06). The

two are not married. Mother and Shawn Cooper (“Cooper”) are the biological parents of
                                                  1
Mir.P. (dob 4/8/10) and Mic.P. (dob 3/12/12).         The Agency has a long history of

involvement with Mother and the children due to concerns regarding Mother’s ability to

meet the children’s basic needs as well as the specialized medical needs of Mir.P. The

Agency was also involved during an investigation concerning the sexual molestation of

A.W. by Cooper.

         {¶3}   On March 22, 2012, the Agency filed a complaint, alleging A.W., Mir.P.,

and Mic.P. were neglected and dependent children, and seeking temporary custody.

The trial court placed the children in the temporary custody of the Agency following an

emergency shelter care hearing. The trial court appointed Attorney Karen Dummermuth

as guardian ad litem for the children.

         {¶4}   The trial court conducted an adjudicatory hearing on May 15, 2012.

Mother and Waldren stipulated to a finding of neglect and dependency. The trial court

1
    Shawn Cooper is not a party to this appeal.
Tuscarawas County, Case No. 2013AP080035                                                3


ordered A.W. placed in the temporary custody of paternal grandmother, Dianna

Waldren, under the protective supervision of the Agency, and Mir.P. and Mic.P. remain

in the temporary custody of the Agency. The trial court also approved and adopted

Mother’s case plan.

      {¶5}   On February 14, 2013, the Agency filed a motion to modify prior

dispositions, seeking permanent custody of Mir.P. and Mic.P., and moving the trial court

to grant legal custody of A.W. to Dianna Waldren. Subsequently, the Agency moved to

modify its motion to modify with respect to A.W. only, withdrawing its request to place

A.W. in the legal custody of Dianna Waldren and requesting the boy be placed in the

legal custody of Waldren.

      {¶6}   The matter came on for hearing on July 11, and 16, 2013.

      {¶7}   Elizabeth Benedetto, the ongoing case worker assigned to the family,

testified the Agency became involved with Mother and the children in March, 2012, due

to concerns regarding Mir.P.’s having a feeding tube and Mother’s inability to

appropriately feed the girl despite the assistance of service providers. Also, A.W. had

significant behavior issues. Further, A.W. was providing much of the care to his siblings.

Benedetto stated Mother’s case plan required her to undergo a psychological evaluation

and follow recommendations, complete parenting classes, attend individual counseling,

and participate in visitation. Further, Mother was required to maintain stable housing

and income. Bendetto acknowledged Mother had completed her case plan, however,

Mother has not made the necessary behavioral changes. Bendetto explained Mother

had not arrived at a point where the children would be safe in her home without 24/7

monitoring. Bendetto expressed concerns regarding Mother’s ability to meet the ever-
Tuscarawas County, Case No. 2013AP080035                                              4


changing needs of the children. Mother requires extensive direction even with basic

parenting, like feeding and changing diapers.

      {¶8}   Dr. Steven Dean, a psychologist, completed Mother’s psychological

evaluation. Dr. Dean interviewed Mother and administered the standard tests. Dr.

Dean diagnosed Mother with dependent personality disorder, which manifests itself in a

lack of confidence, difficulty setting boundaries, and enduring suffering and/or

mistreatment to maintain a relationship. He noted individuals with this personality have

difficulty with confrontations and gravitate toward unhealthy relationships. Counseling

of such an individual would be a long term process. Dr. Dean correlated some of the

problems suffered by the children with Mother’s mental health diagnosis.

      {¶9}   Wendy Smitley, a family service aide, provided parenting education to

Mother, once in a group, and another individually. Smitley testified at the time the

children were removed from Mother’s care, A.W. was taking on much of the parenting

responsibilities. At parenting classes, Mother was cooperative and responsive to the

material presented. Mother’s visits with the children were chaotic and unstructured.

She provided excessive items to the children despite her lack of measurable income.

Mother did not seem to understand what she needed to do for or with the children.

Mother’s visitation remained supervised throughout the case.

      {¶10} Via Judgment Entry filed July 19, 2013, the trial court terminated Mother’s

parental rights with respect to all three children, granted permanent custody of Mir.P.

and Mic.P. to the Agency, and placed A.W. in the legal custody of Waldren. The trial

court found the children could not be placed with Mother within a reasonable time, it
Tuscarawas County, Case No. 2013AP080035                                                   5


was in Mir.P. and Mic.P,’s best interest to be placed in the permanent custody of the

Agency, and it was in A.W.’s best interest to be placed in the legal custody of Waldren.

      {¶11} It is from this judgment entry Mother appeals, raising the following

assignments of error:

      {¶12} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR

CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE.

      {¶13} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING

OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.”

                                              I, II

      {¶14} We elect to address Mother’s assignments of error together. In her first

assignment of error, Mother maintains the trial court's finding the children could not be

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

sufficiency of the evidence. In her second assignment of error, Mother contends the trial

court's finding an award of permanent custody was in the best interest of the children

was against the manifest weight and sufficiency of the evidence.

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

credibility of the 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, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments
Tuscarawas County, Case No. 2013AP080035                                                    6


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

the case will not be reversed as being against the manifest weight of the evidence. C.E.

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

       {¶16} 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 or private child placing agency that has

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

       {¶17} 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 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.

       {¶18} 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
Tuscarawas County, Case No. 2013AP080035                                                   7


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.

       {¶19} 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.

       {¶20} If the child is not abandoned or orphaned, the focus turns to whether the

child cannot be placed with either parent within a reasonable period of time or should

not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of

the child's parents.

       {¶21} As set forth in our statement of the facts and case, supra, we find there

was both sufficient and substantial competent evidence Mother failed to remedy the

problems which initially caused the removal of the child from the home. Although she

completed all of her case plan requirements, Mother was unable to utilize the

information she obtained to properly parent the children. Mother continued to have a

live-in boyfriend despite Dr. Dean’s recommendation to the contrary. Mother lied to
Tuscarawas County, Case No. 2013AP080035                                                 8


Agency personnel regarding this status.        Additionally, Dr. Dean indicated Mother

needed long term therapy to overcome her mental health issues.

       {¶22} With respect to the best interest finding, the evidence revealed Mir.P. and

Mic.P. were thriving in foster care and the foster family desire to adopt the girls. Mir.P.

no longer needed a feeding tube. When Mir.P. first arrived in foster care, she exhibited

a lack of affect and had speech delays. Such issues were quickly resolved once she

entered foster care. Mic.P. had been placed in foster care as a newborn. She has no

known developmental issues.

       {¶23} Based upon the foregoing, we find the trial court's findings the children

could not be placed with Mother within a reasonable time, and an award of permanent

custody was in the best interest of the children were not against the manifest weight of

the evidence and were based upon sufficient evidence. Mother's first and second

assignments of error are overruled.

       {¶24} The judgment of the Tuscarawas County Court of Common Pleas,

Juvenile Division, is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur
                                             ___________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             ___________________________________
                                             HON. JOHN W. WISE


                                             ___________________________________
                                             HON. CRAIG R. BALDWIN
Tuscarawas County, Case No. 2013AP080035                                            9


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                         :
                                          :
A.W.,                                     :
M.P. AND                                  :
M.P.                                      :
                                          :
NEGLECTED/DEPENDENT CHILDREN              :
                                          :
                                          :        JUDGMENT ENTRY
                                          :
                                          :
                                          :        Case No. 2013AP080035


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

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

Appellant.




                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN
