[Cite as In re N.C.P., 2014-Ohio-3694.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
IN RE: N.C.P.                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                                               :       Hon. Craig R. Baldwin, J.
                                               :
                                               :
                                               :       Case No. 2014CA00083
                                               :
                                               :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Family Court Division,
                                                   Case No. 2013JCV00315

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            August 25, 2014

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JAMES PHILLIPS                                     DAVID L. SMITH
SCDJFS                                             245 33rd Street N.W.
221 Third Street S.E.                              Canton, OH 44709
Canton, OH 44702
[Cite as In re N.C.P., 2014-Ohio-3694.]


Gwin, P.J.

        {¶1}     Appellant-mother, Nichole Arntz [“Mother”] appeals the April 22, 2014,

judgment entry of the Stark County Court of Common Pleas, Family Court Division,

which terminated her parental rights with respect to her minor child N.C.P. and granted

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

Family Services (“SCJFS”).

                                          Facts and Procedural History

        {¶2}     On April 1, 2013, SCJFS filed a complaint seeking temporary custody of

N.C.P. (b. 03/30/2013) and alleging the child to be dependent and/or neglected. On

June 5, 2013, the child was found to be dependent. 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.

        {¶3}     During the course of the case, the trial court has conducted the required

reviews every six months and has found that the SCJFS has made reasonable efforts to

reunite the family.

        {¶4}     On February 30, 2014, SCJFS filed a motion for permanent custody of

N.C.P. On April 22, 2014, a hearing on the motion for permanent custody was held at

which the following evidence was presented.

        {¶5}     Mother was to complete a parenting assessment at Northeast Ohio

Behavioral Health, follow through with a Quest drug and alcohol assessment and

complete any recommended treatment, submit to random drug test, and secure stable

housing and employment.
Stark County, Case No. 2014CA00083                                                    3


      {¶6}   Mother completed both the parenting and Quest assessments. The

parenting assessment recommended that Mother successfully complete the Goodwill

Parenting Program, complete drug treatment, attend two AA meetings a week, and

secure stable housing and employment. Mother failed to complete those services.

Mother failed to complete the Goodwill Parenting Program. Mother was terminated from

Quest treatment for non-compliance. Mother failed to comply with random urine drug

test and failed to obey a court order dated September 24, 2013 for a hair follicle drug

test. The last drug test Mother submitted to the worker was positive for cocaine. Mother

did not keep in contact with the caseworker. Mother did not have independent housing

or employment on the day of trial.

      {¶7}    Mother has past legal history with SCJFS in cases 2010JCV00178 and

2011JCV00084. The concerns in those cases were the same as in the present case.

Mother failed to complete the case plan requirements in both of those cases and she

stipulated to the grant of permanent custody to SCJFS of those children. Mother

admitted during her testimony on cross-examination that this was the third time she had

a chance to work case plan services and had not successfully completed them.

      {¶8}   On the date of the permanent custody trial Mother was in custody at the

Stark Regional Community Corrections Center [“SRCCC”]. Mother was at SRCCC after

being convicted for failure to comply with a police officer and drug abuse. Mother was

enrolled in courses at SRCCC designed to help with chemical dependency, criminal

activity, and to find employment.

      {¶9}   Mother was not working her case plan or visiting the child before her

incarceration. The caseworker testified that Mother had not visited with her child since
Stark County, Case No. 2014CA00083                                                       4


November of 2013. Mother contended that she was incarcerated for part of that time

and unable to visit. The caseworker testified that Mother was released at one point

while her case was pending and still did not visit with the child. Mother admitted to being

released from jail on January 21, 2014 and not visiting with her child between that date

and the permanent custody trial.

      {¶10} The caseworker testified during the best interest hearing that the child was

placed with the foster family that has adopted his siblings. The child has been placed in

this home since April 1, 2013 and is the only home he has ever known. The foster

parents are the only parents the child knows and they wish to adopt him if the

permanent custody was granted. The child is very bonded to the foster parents and no

bond exists between the child and Mother. The caseworker testified that she believed it

was in the best interest of the child that the permanent custody be granted to the

SCJFS.

      {¶11} Mother testified that if she does not have independent housing when

released from SRCCC she will live with her sister in East Canton. Mother also has the

opportunity to go to the YMCA, but that choice would extend her involvement with

SRCCC and is not stable. Mother testified that her desire is to have more time to

complete case plan services and ultimately have placement of her child.

      {¶12} On April 22, 2014, the trial court filed Findings of Fact and Judgment

Entries, which terminated the parental rights of Mother and granted permanent custody

of N.C.P. to SCJFS.

                                     Assignments of Error

      {¶13} On appeal, Mother asserts the following assignments of error,
Stark County, Case No. 2014CA00083                                                        5


       {¶14} “I. THE JUDGMENT OF THE TRIAL COURT THAT APPELLANT

ABANDONED THE MINOR CHILD WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.

       {¶15} “II. THE COURT'S ORDER STATING THAT [N.C.P.] COULD NOT BE

PLACED WITH ANY BIOLOGICAL PARENT AT THE TIME OF TRIAL OR WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE.”

                                               I & II

       {¶16} Because we find the issues raised in Mother’s first and second

assignments of error are closely related, for ease of discussion, we shall address the

assignments of error together.

                                      A. Burden Of Proof

       {¶17} “[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.

       {¶18} 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
Stark County, Case No. 2014CA00083                                                      6


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).

                                    B. Standard of Review

       {¶19} The Ohio Supreme Court has delineated our standard of review as

follows,

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

       clear and convincing, a reviewing court will examine the record to

       determine whether the trier of facts had sufficient evidence before it to

       satisfy the requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1,

       12 N.E. 526, Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, 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. Tuscarawas Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, ¶17,

rev’d on other grounds, In re D.A. 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829.

       {¶20} In Cross, the Supreme Court further cautioned,
Stark County, Case No. 2014CA00083                                                      7


             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).

                     C. Requirements for Permanent Custody Awards

      {¶21} 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.

      {¶22} 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:
Stark County, Case No. 2014CA00083                                                 8


           (a) The child is not abandoned or orphaned, has not been in the

     temporary custody of one or more public children services agencies or

     private child placing agencies for twelve or more months of a consecutive

     twenty-two-month period, or has not been in the temporary custody of one

     or more public children services agencies or private child placing agencies

     for twelve or more months of a consecutive twenty-two-month period if, as

     described in division (D)(1) of section 2151.413 of the Revised Code, the

     child was previously in the temporary custody of an equivalent agency in

     another state, and the child cannot be placed with either of the child's

     parents within a reasonable time or should not be placed with the child's

     parents;

     (b) the child is abandoned;

     (c) the child is orphaned and there are no relatives of the child who are

     able to take permanent custody; or

     (d) The child has been in the temporary custody of one or more public

     children services agencies or private child placing agencies for twelve or

     more months of a consecutive twenty-two-month period, or the child has

     been in the temporary custody of one or more public children services

     agencies or private child placing agencies for twelve or more months of a

     consecutive twenty-two-month period and, as described in division (D)(1)

     of section 2151.413 of the Revised Code, the child was previously in the

     temporary custody of an equivalent agency in another state.
Stark County, Case No. 2014CA00083                                                       9


       {¶23} 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.

       1). Abandonment-R.C. 2151.414(B) (1) (b).

       {¶24} R.C. 2151.011(C) states that, for purposes of R.C. Chapter 2151, “a child

shall be presumed abandoned when the parents of the child have failed to visit or

maintain contact with the child for more than ninety days, regardless of whether the

parents resume contact with the child after that period of ninety days.”

       {¶25} However,       R.C.   2151.011(C)   merely    creates   a     presumption   of

abandonment, which a parent may rebut. See In re Cornell, 11th Dist. Portage No.

2003-P-0054, 2003-Ohio-5007, fn. 2; In re Phillips, 11th Dist. Ashtabula No. 2005-A-

0020, 2005-Ohio-3774, ¶ 32. While the statute does not provide a definition,"

'[a]bandonment' of a child has been defined as any conduct on the part of the parent

which evinces a settled purpose to forego all parental duties and relinquish all parental

claims to the child." Baker v. Rose, 28 Ohio Misc. 200, 203, 270 N.E.2d 67(C.P. 1970),

citing, In re Masters, 165 Ohio St. 503, 505-506, 137 N.E.2d 752(1956). See, also In re

C.E., 2nd Dist. Champaign No. 2005-CA-11, 2005-Ohio-5913, ¶ 12.

       {¶26} “A presumption effectively reverses the burden of coming forward with

evidence to support a proposition of fact, causing the fact to be deemed established

unless sufficient proof is presented to rebut the presumption. Once the presumption is

rebutted, however, the presumption disappears. Evans v. National Life & Acc. Ins. Co.,
Stark County, Case No. 2014CA00083                                                     10


22 Ohio St.3d 87, 488 N.E.2d 1247(1986), first paragraph of syllabus. Whether

sufficient proof has been presented to rebut, or ‘unseat,’ a legal presumption is an issue

of law for the court. Beresford v. Stanley, 6 Ohio N.P. 38, 9 Ohio Dec. 134, 1898 WL

763.” In re C.E., supra, ¶14.

       {¶27} We recognize that if Mother attempted to visit N.C.P. but was prevented

from doing so by SRCCC, it would be difficult to conclude that her actions were the

equivalent of abandonment. See In re Adoptions of Groh, 153 Ohio App.3d 414, 424,

794 N.E.2d 695(7th Dist. 2003). However, the trial court in the case sub judice, after

hearing testimony, did not find that SRCCC interfered with Mother’s ability to have

attempted visitation.

       {¶28} Mother admitted that she was incarcerated at the Stark County Jail from

November 24, 2013 until January 21, 2014. Mother claimed that she had left voice mail

messages for the caseworker but the caseworker never contacted mother to schedule a

visit. The trial court found that Mother was again incarcerated, this time at SRCCC,

beginning March 27, 2014 with a release date six months in the future.

       {¶29} Because the trial judge is best able to view the witnesses and observe

their demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony, we must give deference to the trial court's

findings of fact. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273(1984).

       {¶30} Based upon the foregoing, as well as the entire record in this case, we find

that Mother did not provide sufficient evidence to rebut the presumption of

abandonment, as contained in R.C. 2151.011(C). In re Cornell at ¶20; In re Cravens,
Stark County, Case No. 2014CA00083                                                     11

3rd Dist. Defiance No. 4-03-48, 2004-Ohio-2356, ¶23; In re Bailey Children, 5th Dist.

Stark No. 2004 CA 00386, 2005-Ohio-2981, ¶ 32.

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

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

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

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

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

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

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

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

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

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

N.E.2d 738; In re: Hurlow, 4th Dist. Gallia No. 98 CA 6, 1998 WL 655414(Sept. 21,

1998); In re: Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145(Apr 10, 1991).

       {¶32} 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
Stark County, Case No. 2014CA00083                                                   12


     and convincing evidence, at a hearing held pursuant to division (A) of this

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

     Revised Code that one or more of the following exist as to each of the

     child's parents, the court shall enter a finding that the child cannot be

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

     with either parent:

            (1) Following the placement of the child outside the child's home

     and notwithstanding reasonable case planning and diligent efforts by the

     agency to assist the parents to remedy the problems that initially caused

     the child to be placed outside the home, the parent has failed continuously

     and repeatedly to substantially remedy the conditions causing the child to

     be placed outside the child's home. In determining whether the parents

     have substantially remedied those conditions, the court shall consider

     parental utilization of medical, psychiatric, psychological, and other social

     and rehabilitative services and material resources that were made

     available to the parents for changing parental conduct to allow them to

     resume and maintain parental duties.

            (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
Stark County, Case No. 2014CA00083                                                 13


     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

     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
Stark County, Case No. 2014CA00083                                                   14


     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:

                                         ***

            (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
Stark County, Case No. 2014CA00083                                                    15


     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.

            (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.
Stark County, Case No. 2014CA00083                                                      16


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

credible evidence. The record includes the recommendation of the Guardian Ad Litem

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

position to determine the credibility of the witnesses.

       {¶34} Mother was incarcerated and would not be released for several months

after the permanent custody hearing. Mother failed to complete the Goodwill Parenting

Program. Mother was terminated from Quest treatment for non-compliance. Mother

failed to comply with random urine drug test and refused to obey a court order dated

September 24, 2013 for a hair follicle drug test. The last drug test Mother submitted to

the worker was positive for cocaine. Mother did not keep in contact with the caseworker.

Mother did not have independent housing or employment on the day of trial. Mother

failed to complete the case plan requirements in two past cases and she stipulated to

the grant of permanent custody to the SCJFS of those children.

       {¶35} The evidence demonstrated the successful efforts Mother had made on

the case plan. On that point, the evidence demonstrates that any improvement that

Mother has made in her life is tentative and, perhaps, temporary, and that she is at risk

of relapse. The trial court found that, regardless of Mother’s compliance with aspects of

her case plan, she was still not able to be a successful parent to N.C.P.

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

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

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

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

reasonable time.
Stark County, Case No. 2014CA00083                                                         17


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

Court properly found N.C.P. could not or should not be returned to Mother within a

reasonable time. Despite offering numerous services, Mother was unable to mitigate the

concerns that led to the child's removal.

                                D. The Best Interest of the Child

       {¶38} 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.

       {¶39} 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. 2014CA00083                                                       18


       {¶40} The trial court made findings of fact regarding the children’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).

       {¶41} 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).

       {¶42} 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 N.C.P.’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

       {¶43} The record makes clear that Mother failed to complete the majority of the

case plan provided by SCJFS and failed to meet even the basic needs of N.C.P.
Stark County, Case No. 2014CA00083                                                     19


      {¶44} Mother failed to maintain stable housing. Mother failed to maintain stable

employment. Mother failed to maintain her sobriety, and further, was incarcerated for

much of the time.

      {¶45} The record does not demonstrate that if she had been offered different

case plan services, the result would have been different.

                                        E. Conclusion

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

had abandoned the child and had failed to remedy the issues that caused the initial

removal and therefore N.C.P. could not be placed with her within a reasonable time or

should not be placed with her was based upon competent credible evidence and is not

against the manifest weight or sufficiency of the evidence. We further find that the trial

court’s decision that permanent custody to SCJFS was in the N.C.P.’s best interest was

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

sufficiency of the evidence.
Stark County, Case No. 2014CA00083                                                  20


      {¶47} 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.



By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
