[Cite as In re A.R., 2011-Ohio-6571.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
IN THE MATTER OF:                              :       Hon. W. Scott Gwin, P.J.
 A.R. (D.O.B. 10-21-97)                        :       Hon. Sheila G. Farmer, J.
 Z.R. (D.O.B. 7-15-06)                         :       Hon. John W. Wise, J.
                                               :
                                               :
                                               :       Case No. 2011-CA-00196
                                               :
                                               :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Juvenile Division, Case
                                                   No. 2009-JCV-01483

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            December 19, 2011



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

LISA A. LOUY                                       MELODY L. BRIAND
Stark County Job & Family Services                 Public Defender's Office
221 Third Street. S.E.                             200 Tuscarawas Street W., Ste. 200
Canton, OH 44702                                   Canton, OH 44702
[Cite as In re A.R., 2011-Ohio-6571.]


Gwin, P.J.

          {1}    Appellant T.R., the biological mother of A.R., age 14 and Z.R., age 5,

appeals a judgment of the Court of Common Pleas, Juvenile Division, of Stark County,

Ohio, which terminated appellant’s parental rights and granted permanent custody of

the two children to Stark County Job & Family Services (SCJFS). Appellant assigns two

errors to the trial court:

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

CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH MOTHER-APPELLANT

WITHIN A REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.

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

INTEREST OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING

OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.”

          {4}    On November 24, 2009, SCJFS filed its initial complaint seeking

temporary custody of the two children, alleging they were dependent, neglected, and/or

abused. At the shelter care hearing, the court placed the children in the emergency

temporary custody of relatives with protective supervision by SCJFS. On January 28,

2010, the court found the children to be dependent and continued its temporary orders.

The court approved and adopted the case plan SCJFS had devised to reunite the

family.

          {5}     On September 28, 2010, the court granted SCJFS temporary custody of

the children and they were placed in a foster home. On April 20, 2011, SCJFS filed the
Stark County, Case No. 2011-CA-00196                                                     3


motion for permanent custody of the children. On August 9, 2011, the Juvenile Court

issued its judgment entry terminating appellant’s parental rights and responsibilities and

granting permanent custody of the two children to SCJFS.

       {6}    The right to raise one’s 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. A parent has a fundamental interest in the care, custody and

management of her child. Santosky v. Kramer (1982), 455 U.S. 745. The permanent

termination of a parent’s rights has often been called the family law equivalent of the

death penalty, and as such, courts must afford every procedural and substantial

protection the law allows to the parents. In Re: Smith (1991), 77 Ohio App. 3d 1, 16.

The controlling principle to be observed, however, is the ultimate welfare of the child. In

Re: Cunningham (1979), 59 Ohio St. 2d 100, 106, 391 N.E. 2d 1034.

       {7}    A trial court’s decision to grant permanent custody of a child to a public

children’s services agency must be supported by clear and convincing evidence. Our

Supreme Court has defined clear and convincing evidence as proof that produces in the

mind of the trier of fact a firm belief or conviction as to the allegations sought to be

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

       {8}    Both of appellant’s assignments of error allege the court’s decision is not

supported by the manifest weight and sufficiency of the evidence. Our standard of

reviewing the decision of a trial court in a permanent custody matter is to review the

entire record and determine whether there is sufficient competent and credible evidence

to support the judgment rendered by the trial court.         Seasons Coal Company v.

Cleveland (1984), 10 Ohio St. 3d 77, 80, 461 N.E. 2d 1273. Trickey v. Trickey (1952),
Stark County, Case No. 2011-CA-00196                                                     4


158 Ohio St. 9, 13, 106 N.E. 2d 772. The trial court must resolve disputed issues of fact

and weigh the testimony and credibility of the witnesses. Bechtol v. Bechtol (1990), 49

Ohio St. 3d 21, 23, 550 N.E. 2d 178. We defer to the trial court’s discretion because the

trial court had the opportunity to observe the witnesses and parties in weighing the

credibility of the proffered testimony in a way a reviewing court cannot. Thus, our

standard of review is the abuse of discretion standard.         The Supreme Court has

frequently defined the term abuse of discretion as demonstrating the trial court’s attitude

is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St. 3d 217, 219, 450 N.E. 2d 1140.

                                                I.

       {9}    In her first assignment of error, appellant argues the trial court erred in

finding the children cannot or should not be placed with her within a reasonable time.

       {10} R.C. 2151.414(B)(1) addresses under what circumstances a trial court

may grant permanent custody. This statute provides as follows:

       {11}   “(B)(1) Except as provided in division (B)(2) of this section, the court may

grant permanent custody of a child to a movant if the court determines at the hearing

held pursuant to division (A) of this section, by clear and convincing evidence, that it is

in the best interest of the child to grant permanent custody of the child to the agency

that filed the motion for permanent custody and that any of the following apply:

      {12}    “(a) The child is not abandoned or orphaned 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
Stark County, Case No. 2011-CA-00196                                                     5


ending on or after March 18, 1999, 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.

       {13}   “(b) The child is abandoned.

       {14}   “(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.

      {15}    “(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 ending on or after March 18, 1999.”

       {16} R.C. 2151.414(D) lists the factors a court should consider in determining

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

The statute states in pertinent part:

       {17} “(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 the purpose of changing parental conduct to allow them to resume and maintain

parental duties.

       {18} “(2) Chronic mental illness, chronic emotional illness, mental retardation,

physical disability, or chemical dependency of the parent that is so severe that it makes
Stark County, Case No. 2011-CA-00196                                                     6


the parent unable to provide an adequate permanent home for the child at the present

time and, as anticipated, within one year after the court holds the hearing pursuant to

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

the Revised Code;

       {19} ***

       {20} “(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.

       {21} ***

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

      {23}   The trial court made ten findings of fact with regard to whether the children

can be or should be placed with appellant within a reasonable time. The court found the

original concerns which necessitated the removal of the children from appellant’s

custody were domestic violence, drug use, housing issues, and mental health issues.

The court found SCJFS prepared a case plan which was adopted by the court on

January 28, 2010. The case plan required appellant to submit to a parenting evaluation

at the Northeast Ohio Behavioral Health, and to follow the recommendations made by

the evaluator. Appellant was to obtain a Quest evaluation and follow recommendations.

Appellant was to secure independent appropriate housing and employment and

complete Goodwill Parenting classes.
Stark County, Case No. 2011-CA-00196                                                    7


       {24}   The trial court found appellant had completed the parenting assessment at

Northeast Ohio Behavioral Health, but had not followed the recommendations.

Appellant had completed a Quest evaluation but had relapsed and continues to abuse

alcohol and marijuana. The court noted her continued failure to drop positive urines has

resulted in no contact with her children for over a year. The court found appellant was

living with a friend, but had neither housing on her own nor any employment. The court

found appellant attends the Crisis Center in an attempt to address her depression over

the loss of her children.

       {25}   The court found the concerns which had necessitated removal of the

children from appellant’s custody had not been remedied. The court found appellant has

long term mental and drug issues, and her prognosis is poor. The court found despite

SCJFS’s reasonable efforts to assist her, appellant had failed continuously and

repeatedly to substantially remedy the conditions which were the basis for the children’s

removal from the home.

       {26}   The court also found the children had been in the custody of SCJFS for

twelve months out of the last twenty-two consecutive months as of the hearing date of

August 9, 2011.

       {27}   At the outset, we find the trial court was incorrect in finding the children

had been in the custody of the agency for twelve months out of the last twenty-two

consecutive months. The record demonstrates SCJFS received temporary custody of

the children on September 28, 2010, and the agency filed its motion for permanent

custody on April 20, 2011. The Supreme Court has cautioned that when calculating the

length of time children have been in an agency’s custody, the time that passes between
Stark County, Case No. 2011-CA-00196                                                      8


the filing of the motion for permanent custody and the permanent custody hearing does

not count towards the twelve-month period set forth in RC. 2151.414. In Re: C.W., 104

Ohio St. 3d 163, 2004-Ohio-6411, 818 N.E. 2d 1176.

       {28}   The statute authorizing the court to grant permanent custody is in the

disjunctive. If the child has not been in the temporary custody of the agency for the

prescribed time, then the court may review whether the children cannot and should not

be placed with either of the parents within a reasonable time.

       {29}   Appellant argues first, appellant was not prosecuted for domestic violence

and the case plan did not address any concerns about it. Regarding housing, appellant

argues the case worker did not thoroughly investigate the arrangement between

appellant and her friend, and in fact, appellant’s housing arrangement with her friend

was stable. Appellant admits continuing to use marijuana but asserts SCJFS did not

refer her for further treatment when she relapsed after completing the Quest Program.

Appellant argues the case worker knew she used marijuana as a coping mechanism for

stress, but the case worker did not attempt to alleviate the stress generated by the

removal of the children. Appellant argues the case worker’s testimony that she had not

complied with counseling was not credible, and appellant did in fact comply and takes

her medication. Finally, appellant urges the trial court relied too much on Dr. Thomas’

testimony that appellant’s prognosis was poor, because Dr. Thomas had not consulted

with appellant’s treatment provider.

       {30}   It is apparent that the trial court simply did not believe appellant made

sufficient timely efforts to remedy the conditions in her home. We find there is sufficient,

competent and credible evidence in the record from which the court could conclude by
Stark County, Case No. 2011-CA-00196                                                     9


clear and convincing evidence the children could not and should not be placed with her

within a reasonable time.

       {31}   The first assignment of error is overruled.

                                                 II.

       {32}   In her second assignment of error, appellant argues the trial court erred in

finding the best interest of the minor children would be served by granting permanent

custody to SCJFS.

       {33}   R.C. 2151.414(D) sets out the factors a court should consider in

determining the best interest of the child. The relevant factors are:

       {34}   "(1) The interaction and interrelationship of the child with the child's

parents, siblings, relatives, foster care givers and out-of-home providers, and any other

person who may significantly affect the child;

       {35}   "(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;

       {36}   "(3) The custodial history of the child, including whether 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 ending on or after March 18, 1999;

       {37}   "(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

to the agency;

       {38}   ***”
Stark County, Case No. 2011-CA-00196                                                   10


      {39}   The trial court made eleven findings of fact with regard to the best interest

of the children. The court found neither child has any special physical, educational, or

medical issues but the younger child has some behavioral issues. The court found no

relative placement options have been provided. The court found there was minimal

bond between appellant and the older child, but there is a bond with the younger child.

The court found appellant had failed to visit or call about the children because she was

involved in drugs. The court found the children are extremely bonded to one another,

and should remain together for purposes of adoption. The court found the parents of

the children are either unable or unwilling to provide a safe and stable environment for

them, and the guardian ad litem has recommended permanent custody be granted to

SCJFS. The court found the children are in a stable foster home, and the older child

has expressed her desire not to return to her mother. The trial court found it was in the

best interest of the children to grant permanent custody to SCJFS so they could be

adopted. The court found the children deserved the opportunity for a stable life in which

they can thrive and grow and become fully functioning members of society.

      {40}   Appellant argues because the agency denied her any contact with the

children, the trial court could not have clearly determined whether appellant and the

children interacted in a positive manner. Appellant argues the trial court relied on

information provided to the children’s counselor and the testimony of the case worker

regarding one single visit. There was testimony the younger child expressed a desire to

return home and wanted to be reunited with appellant.

      {41}   During the pendency of the motion for permanent custody, appellant

moved to extend the temporary custody order so she could continue to work on her
Stark County, Case No. 2011-CA-00196                                                     11


case plan and reunify her family.      Appellant asserts reunification with her is in the

children’s best interest, and the trial court erred in finding they should be adopted.

       {42}   We have reviewed the record, and we find there was sufficient, competent

and credible evidence presented from which the trial court could determine by clear and

convincing evidence it was in the best interest of these children for permanent custody

to be awarded to SCJFS so they could be adopted.

       {43}   The second assignment of error is overruled.

       {44}   For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, of Stark County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur


                                               _________________________________
                                               HON. W. SCOTT GWIN

                                               _________________________________
                                               HON. SHEILA G. FARMER

                                               _________________________________
                                               HON. JOHN W. WISE
WSG:clw 1205
[Cite as In re A.R., 2011-Ohio-6571.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:
A.R. (D.O.B. 10-21-97)
Z.R. (D.O.B. 7-15-06 )                         :
                                               :
                                               :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                         Defendant-Appellee    :       CASE NO. 2011-CA-00196




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

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

Costs to appellant.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN

                                                   _________________________________
                                                   HON. SHEILA G. FARMER

                                                   _________________________________
                                                   HON. JOHN W. WISE
