[Cite as In re E.H., 2020-Ohio-2835.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                           :       JUDGES:
                                            :       Hon. Patricia A. Delaney, P.J.
E.H., W.H., J.N.                            :       Hon. Craig R. Baldwin, J.
                                            :       Hon. Earle E. Wise, Jr., J.
                                            :
                                            :
                                            :       Case Nos. 2019 CA 00108
                                            :                 2019 CA 00109
                                            :                 2019 CA 00110
                                            :
                                            :       OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Juvenile Division, Case Nos.
                                                    F2017-0351, F2017-0352, F2017-
                                                    0353


JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   May 6, 2020


APPEARANCES:

For Appellant-Father                                For Appellee-LCJFS

JERMAINE COLQUITT                                   PAULA M. SAWYERS
33 West Main Street                                 20 South Second Street
Suite 109                                           Fourth Floor
Newark, OH 43055                                    Newark, OH 43055

For Mother                                          Guardian ad Litem

Carolynn E. Fittro                                  SCOTT SIDNER
1335 Dublin Road                                    39 Northview Drive
Suite 115F                                          Johnstown, OH 43031
Columbus, OH 43215
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                  2


Wise, Earle, J.

      {¶ 1} Appellant-Father, C.H., appeals the October 1, 2019 judgment entries of the

Court of Common Pleas of Licking County, Ohio, Juvenile Division, denying motions for

legal custody and terminating his parental rights and granting permanent custody of his

children to appellee, the Licking County Department of Job and Family Services.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} On May 22, 2017, appellee filed complaints for temporary legal custody of

E.H. born in March 2015 (Case No. F2017-0351), W.H. born in March 2017 (Case No.

F2017-0352), and J.N. born in November 2012 (Case No. F2017-0353), claiming the

children to be dependent children. Father of E.H. and W.H. is appellant herein; father of

J.N. is J.A., presumed deceased; mother of all three children is N.H. Appellee had been

granted emergency shelter care of the children three days earlier.

      {¶ 3} An adjudicatory hearing was held before a magistrate on July 12, 2017. By

decisions filed same date, the magistrate found the children to be dependent and ordered

temporary custody of the children to remain with appellee. The trial court approved and

adopted the magistrate's decisions via judgment entries filed July 13, 2017. Case plans

were immediately filed thereafter.

      {¶ 4} On November 8, 2017, mother filed motions to grant temporary custody of

the children to either the children's maternal grandparents or their maternal great aunt

and uncle.

      {¶ 5} On April 18, 2018, appellee filed motions for permanent custody due to the

parents being unable to make any significant progress on the case plans and the children

should not or could not be placed with either parent within a reasonable amount of time.
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                     3


Mother's motions for temporary custody were to be heard at the permanent custody

hearing. Hearings were held before a magistrate on February 15, and 22, 2019. Prior to

the hearings, mother orally moved to amend her motions for temporary custody to

motions for legal custody to either of the aforementioned relatives. By decisions filed July

22, 2019, the magistrate denied the motions for legal custody and granted appellee's

motions for permanent custody.

       {¶ 6} Each parent filed objections. By judgment entries filed October 1, 2019, the

trial court denied the objections, approved and adopted the magistrate's decisions, and

granted permanent custody of the children to appellee.

       {¶ 7} Appellant-Father filed an appeal in each case and this matter is now before

this court for consideration.1 The assignments of error in each of the three appeals are

identical and are as follows:

                                             I

       {¶ 8} "THE MAGISTRATE ABUSED ITS DISCRETION WHEN IT DENIED

MOTHER'S MOTION TO GRANT LEGAL CUSTODY OF ALL THREE MINOR

CHILDREN TO EITHER MATERNAL GRANDPARENTS OR IN THE ALTERNATIVE TO

MATERNAL GREAT AUNT AND UNCLE [C. AND T. A.] AND ERRED IN GRANTING

THE LICKING COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

PERMANENT CUSTODY OF THE MINOR CHILDREN."

                                             II




1Mother also filed appeals (Case Nos. 2019 CA 00111, 2019 CA 00112, and 2019 CA
00113), and her arguments will be reviewed therein.
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                    4


      {¶ 9} "THE TRIAL COURT ERRED IN FINDING THAT THE BEST INTERESTS

OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING OF

PERMANENT CUSTODY."

                                             I

      {¶ 10} In his first assignment of error, father claims the trial court abused its

discretion in denying mother's motions for legal custody to relatives. We disagree.

      {¶ 11} R.C. 2151.353(A)(3) states the following in pertinent part:



             (A) If a child is adjudicated an abused, neglected, or dependent child,

      the court may make any of the following orders of disposition:

             (3) Award legal custody of the child to either parent or to any other

      person who, prior to the dispositional hearing, files a motion requesting legal

      custody of the child or is identified as a proposed legal custodian in a

      complaint or motion filed prior to the dispositional hearing by any party to

      the proceedings.



      {¶ 12} We agree with the following analysis set forth by our colleagues from the

Eighth District in In re D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio-

4818, ¶ 19-22:



             Legal custody is significantly different than the termination of

      parental rights in that, despite losing legal custody of a child, the parent of

      the child retains residual parental rights, privileges, and responsibilities. In
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                    5


      re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14, citing R.C.

      2151.353(A)(3)(c). In such a case, a parent's right to regain custody is not

      permanently foreclosed. In re M.J.M. [8th Dist. Cuyahoga No. 94130, 2010-

      Ohio-1674] at ¶ 12. For this reason, the standard the trial court uses in

      making its determination is the less restrictive "preponderance of the

      evidence." Id. at ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455, 751

      N.E.2d 552 (7th Dist.2001).       "Preponderance of the evidence" means

      evidence that is more probable, more persuasive, or of greater probative

      value. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7.

             Unlike permanent custody cases in which the trial court is guided by

      the factors outlined in R.C. 2151.414(D) before terminating parental rights

      and granting permanent custody, R.C. 2151.353(A)(3) does not provide

      factors the court should consider in determining the child's best interest in

      a motion for legal custody. In re G.M. at ¶ 15. We must presume that, in

      the absence of best interest factors in a legal custody case, "the legislature

      did not intend to require the consideration of certain factors as a predicate

      for granting legal custody."     Id. at ¶ 16.    Such factors, however, are

      instructive when making a determination as to the child's best interest. In

      re E.A. [8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193] at ¶ 13.

             The best interest factors include, for example, the interaction of the

      child with the child's parents, relatives, and caregivers; the custodial history

      of the child; the child's need for a legally secure permanent placement; and

      whether a parent has continuously and repeatedly failed to substantially
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                    6


      remedy the conditions causing the child to be placed outside the child's

      home. R.C. 2151.414(D).

             Because custody determinations " 'are some of the most difficult and

      agonizing decisions a trial judge must make,' " a trial judge must have broad

      discretion in considering all of the evidence. In re E.A. at ¶ 10, quoting

      Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We

      therefore review a trial court's determination of legal custody for an abuse

      of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).

      An abuse of discretion implies that the court's attitude is unreasonable,

      arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

      219, 450 N.E.2d 1140 (1983).



Accord, In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-3214; Stull v. Richland

County Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48, 2012-Ohio-738.



      {¶ 13} Final hearings were held on February 15, and 22, 2019. On the morning of

the first hearing date, mother orally moved to amend her motions for temporary custody

to motions for legal custody to either the children's maternal grandparents (F.M. and E.M.)

or their maternal great aunt and uncle (C.A. and T.A.). T. at 7-8. The magistrate

acknowledged that the grandparents and the great aunt signed a statement of

understanding form as required under R.C. 2151.353(A)(3). T. at 8.

      {¶ 14} The children's maternal grandmother, F.M., testified she and her husband

live in a three bedroom mobile home. T. at 12. They have enough income to meet all of
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                       7


their financial needs as well as the children's. T. at 14. She was aware of the oldest child

having special needs, but the child was getting help and that would continue. T. at 15.

She could not testify to the child's special needs "because I don't know." T. at 27. She

was not aware of any issues with the younger two children. T. at 15. She had sisters

and sisters-in-law as a support system to help out. Id. She did not know the children's

birthdates. T. at 31. She has visited with the children and they are bonded. T. at 16.

She never filled out paperwork seeking placement because "it happened so fast" and the

original caseworker told her not to bother because they would not get the children. T. at

19-20. F.M. stated she had convictions for a DWI in 2009 and one in 2012, and a drug

related charge, "but I went to rehab, I finished that, and I've been clean for five years." T.

at 20-21. She no longer consumes alcohol. T. at 21-22. Her drug related charge was

abusing harmful intoxicants in 2013. T. at 22. She denied having a substantiated physical

abuse case with Children's Services when mother was a child, stating, "[t]hat went

nowhere," "I never went to court for none of that." T. at 23, 43. She stated she has always

wanted the children. T. at 27.

       {¶ 15} F.M.'s husband, E.M., testified he understood the oldest child had special

needs as the child was autistic. T. at 47. He has visited with the children and they are

bonded. T. at 49-50. He testified he was prepared to have the children in his home. T.

at 50. However, in October 2018 and again just prior to the hearing, E.M. told the

guardian ad litem he did not think it was feasible for him and his wife to care for the

children. T. at 55. Overnight he changed his mind. Id. He explained "there were doubts

whether we would be able to handle them and everything, and she has guaranteed me
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                   8


or promised me that she's had a change of heart and that she really wants to do it so I

agreed with her." T. at 56. He did not know the children's birthdates. T. at 66.

       {¶ 16} The children's maternal great aunt, C.A., testified she was aware that the

oldest child had autism, and she would be able to meet the child's special needs. T. at

77. She lives in a three bedroom home with her husband and her seventeen year old

child. T. at 78. She and her husband have enough income to meet all of their financial

needs as well as the children's. T. at 79-80. She has a close bond with the oldest child

because at one time, her older daughter was taking care of the child. T. at 81. She really

did not know much about the youngest child. Id. The oldest child was removed because

C.A.'s daughter failed to complete the required paperwork.       T. at 85.   The original

caseworker asked C.A. to take a drug screen, but she refused. T. at 83. C.A. tried to

visit with the children once a week until the oldest child was removed from her daughter's

care. T. at 86-87. C.A. wanted the children, but did nothing to follow up because she

was "waiting to hear what everything was going on because I'd been kinda of in the loop.

I don't really know where the children are, what's going on with them." T. at 88. The

guardian ad litem called C.A. and left two voice messages that she acknowledged

receiving, but never returned his calls. T. at 92-93, 347-348. C.A. never had all three of

the children over at the same time. T. at 95. She did not know the children's birthdates.

T. at 101.

       {¶ 17} The foster mother of the oldest child testified the child's been diagnosed

with autism and cognitive delays. T. at 125, 129-130. She explained the child's behaviors

and the in home treatment she provides for the child. T. at 126-127. She opined the child
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                      9


"takes a lot of care, a lot of constant care and [the child's] always going to take a lot of

constant care for the rest of [the child's] life." T. at 128.

       {¶ 18} Rebecca Inboden is the family's ongoing caseworker. She testified the

maternal grandmother would not be able to pass a home study because of her criminal

history.   T. at 268.     Plus she had "demonstrated some fairly inappropriate and

uncooperative behavior towards agency staff." Id. Maternal grandfather stated he could

not care for the children by himself. T. at 269. Maternal great aunt "acknowledged that

she had a history of substance abuse and that she had sought treatment for that." T. at

269-270. Appellee asked her to do a random drug screen, but she refused. T. at 297.

There was also a concern that her husband had a domestic violence conviction in the

past; therefore, C.A. and her husband would have been excluded as potential relative

options for the children. T. at 270. C.A. was told she could visit with the children. She

visited in February of 2018, and did not return for any more visits. T. at 300-301. Ms.

Inboden opined the relatives "would be probably very overwhelmed very quickly with the

children's needs, and how young the children are, and how extensive the needs are, and

the level of care that's involved." T. at 300.

       {¶ 19} In his decisions filed July 22, 2019, the magistrate noted several concerns

with the maternal grandparents, the most notable was his concern with F.M.'s "apparent

lack of knowledge about these children." F.M. was not able to testify to the oldest child's

special needs because she just did not know. Given the foster mother's testimony as to

this child's significant needs, it is apparent F.M. "has no real idea" as to what the child's

needs are. The magistrate noted this is especially important given the fact that the

maternal grandparents "are on the fence about becoming permanent custodians for these
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                    10


children." They admitted to telling the guardian ad litem on more than one occasion that

they could not care for the children, but changed their minds the night before the hearing.

This was a concern as they "don't seem fully committed to taking on responsibility for

these three children." The magistrate concluded the following: "Given the hesitance of

the two to take on this task, the scale of the task presented by three young [children] and

the exceptional needs of [J.], the undersigned simply cannot see how this would work

long-term. For these reasons, the motion of Mr. and Mrs. [M.] for custody should be

denied."

       {¶ 20} The magistrate had the same concerns with C.A. It was unclear whether

she understood all that was involved in caring for the oldest child's special needs and add

to that "the needs of caring for two other young children and it seems that Ms. [A.], though

acting with good intentions, has not demonstrated that she is able and willing to take on

these three children and meet their needs permanently." The magistrate concluded her

request for legal custody should be denied.

       {¶ 21} Upon review, based upon a preponderance of the evidence presented as

outlined above, we cannot say the trial court abused its discretion in denying the motions

for legal custody.

       {¶ 22} Assignment of Error I is denied.

                                              II

       {¶ 23} In his second assignment of error, father claims the trial court erred in

finding clear and convincing evidence that the children's best interests would be best

served by granting permanent custody to appellee. We disagree.
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                         11


       {¶ 24} R.C.2151.414(B)(1) states permanent custody may be granted if the trial

court determines, by clear and convincing evidence, that it is in the best interest of the

child and:



              (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.

              (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 * * *.

              (e) The child or another child in the custody of the parent or parents

       from whose custody the child has been removed has been adjudicated an

       abused, neglected, or dependent child on three separate occasions by any

       court in this state or another state.



       {¶ 25} 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), paragraph three of the

syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).

"Where the degree of proof required to sustain an issue must be clear and convincing, a
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                    12


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." Cross at 477.

       {¶ 26} R.C. 2151.414(E) sets out the factors relevant to determining whether a

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

be placed with the parents. Said section states in pertinent part the following:



              (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:

              (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
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                     13


       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.

                (16) Any other factor the court considers relevant.



       {¶ 27} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in

determining the best interest of a child:



                (D)(1) In determining the best interest of a child at a hearing held

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

       or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised

       Code, the court shall consider all relevant factors, including, but not limited

       to, the following:

                (a) The interaction and interrelationship of the child with the child's

       parents, siblings, relatives, foster caregivers and out-of-home providers,

       and any other person who may significantly affect the child;

                (b) 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;

                (c) The custodial history of the child, including whether the child has

       been in the temporary custody of one or more public children services
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                      14


       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;

              (d) 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;

              (e) Whether any of the factors in divisions (E)(7) to (11) of this section

       apply in relation to the parents and child.



       {¶ 28} Father does not contest the fact that the children were placed in appellee's

temporary custody on May 19, 2017, adjudicated on July 12, 2017, and the permanent

custody hearings were held on February 15, and 22, 2019. As found by the trial court,

the children have been in appellee's custody for over twelve months of a consecutive

twenty-two-month period. R.C. 2151.414(B)(1)(d).

       {¶ 29} Ms. Inboden testified the initial concerns with the family were domestic

violence between mother and father, mental health concerns for mother, and substance

abuse concerns for both parents. T. at 236-237. Father's case plan addressed mental

health and substance abuse issues, and medical neglect of the children. T. at 237-238,

257.   At the initial intake in May 2017, father tested positive for amphetamines,
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                      15


methamphetamine, and THC.         T. at 258.    Father self-referred for substance abuse

services at LAPP, but did not complete the program and his case was "closed non

successful, uncompliant." T. at 260-261. Father's substance abuse continued to be an

ongoing problem. He tested positive for drugs on multiple random drug screens, and

refused drug screens on at least two occasions. T. at 244-245, 259-260, 281-282, 313-

314. Father's substance abuse remains a concern. T. at 261.

       {¶ 30} As for mental health, father had a past diagnosis of PSTD which he felt was

no longer relevant. T. at 262. Also, there was a concern of domestic violence. Id. Father

never produced verification of undergoing any mental health evaluation. T. at 263, 311.

Father's mental health remains a concern. Id.

       {¶ 31} Father's parenting skills were an issue as the two older children had

developmental delays i.e., difficulties with speech, articulation, communicating. T. at 250,

263. Father attended one or two classes at Heartbeats, a pregnancy and parenting

support facility, but did not follow through. T. at 263-264. Father's parenting skills remain

a concern. T. at 264.

       {¶ 32} Father's employment and housing were not an issue until he and mother

separated and he moved to North Carolina to live with his brother. T. at 264-265. Father

provided verification of employment in North Carolina. T. at 265.

       {¶ 33} Father regularly visited with the children and the visits went "[v]ery well," he

was "very attentive and engaged with the kids." T. at 266. He even traveled from North

Carolina for visitations. T. at 199, 303.
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                    16


       {¶ 34} The children were in foster care and were making remarkable progress. T.

at 266-268. Their basic and special needs were being met, and their respective foster

parents wanted to adopt them. T. at 114, 128-129, 266, 268, 309.

       {¶ 35} Ms. Inboden stated the case plan services have not been completed and

"what has been attempted, doesn't appear to be sufficient to alleviate the concerns or

provide any reassurance that the children's needs will be met and they'll be safe." T. at

274.

       {¶ 36} Scott Sidner is the guardian ad litem.      He testified he observed visits

between father and the children and they went "[r]eally well." T. at 338-339. He could

tell father "loved the kids and vice versa." T. at 340-341. Father responded appropriately

to the children's behaviors and redirected the children when necessary. T. at 340. He

"was doing really well in the last part of the visits, not just his section but coming there

and interacting with the kids and everything." T. at 341. However, he did not believe

father was capable of meeting the basic and special needs of the children. T. at 357. It

was his opinion that granting permanent custody to the agency would be in the children's

best interests. T. at 358.

       {¶ 37} Father testified at the time of the hearing, he and mother had been

separated for eight months. T. at 197-198. He lived in North Carolina with his brother

and his family in a rented home. T. at 197. He travels to Ohio every two weeks to visit

with the children. T. at 199. He acknowledged that he was given a copy of the case plan,

and understood what was required: maintain employment/income, substance abuse

assessment and treatment, and mental health counseling. T. at 200-201. He was

currently employed and received disability income. T. at 199-200, 206. He completed
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                  17


LAPP education, but did not follow up on recommended services because "I wanted to

get something that showed a completion, a certificate." T. at 201-202. Instead he

completed an online program through Open Path. T. at 202; Father's Exhibit B. However,

he admitted to testing positive for illegal substances after completing the program and

using marijuana in the past few months prior to the hearing. T. at 202-203. He did not

refuse one of the drug screens, he just wanted to wait "to allow the time to actually have

to urinate." T. at 320, 330-331. He received a mental health discharge from the VA in

2015. T. at 326-327; Father's Exhibit C. He did not seek any additional mental health

evaluation other than ongoing reevaluation with a VA therapist "just to see if there's any

need for any further concern. They deemed nothing at that point. That there was no

further concern for any continuous evaluation." T. at 203-204, 327-328. He felt his

continuous involvement with the VA was satisfactory. T. at 328. He stated he took an

online parenting class. T. at 209, 324-326; Father's Exhibit A. Although the oldest child

was not his child, he consider the child to be his, and was aware of the child's special

needs. T. at 204. Father stated Ms. Inboden had told him that he would never get his

children back as long as he stayed with mother. Id.

      {¶ 38} On the issue of permanent custody regarding father, the magistrate found

the children had been in the agency's temporary custody for twenty months of a

consecutive twenty-two month period, and father "has also made minimal progress" on

his case plan objectives. See Magistrate's Decisions filed July 22, 2019. While he did

engage in mental health services through the VA, participated in an online program for

substance abuse, and took an online parenting class, he admitted to continued

"substance abuse through much of the case." He did not have independent housing and
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                      18


lived out of state. The magistrate found father "may be worse off than when the case

started as well." The magistrate further noted because father now lives in North Carolina,

the Interstate Compact for the Placement of Children (hereinafter "ICPC") applied in this

case. As quoted by the magistrate, Article VI(A) of the ICPC states, " 'no child subject to

this compact shall be placed into a receiving state until approval for such placement is

obtained.' " Article VI(B) states if " 'the public child placing agency in the receiving state

does not approve the proposed placement then the child shall not be placed.' " The trial

court did not receive any such approval from North Carolina; therefore, the magistrate

could not recommend an order of placement with father. The magistrate recommended

the termination of parental rights, and determined "the best way for these children to

achieve stability and permanency is through adoption." The magistrate recommended

permanent custody of the children to the agency. By judgment entries filed October 1,

2019, the trial court denied father's objections and approved and adopted the magistrate's

decisions.

       {¶ 39} As explained by our brethren from the Second District in In re A.J.S. & R.S.,

2d Dist. Miami No. 2007CA2, 2007-Ohio-3433, ¶ 22:



              Accordingly, issues relating to the credibility of witnesses and the

       weight to be given the evidence are primarily for the trier of fact. In this

       regard, "[t]he underlying rationale of giving deference to the findings of the

       trial court rests with the knowledge that 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
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110                        19


       testimony." Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77,

       80, 461 N.E.2d 1273. Finally, an appellate court must adhere to every

       reasonable presumption in favor of the trial court's judgment and findings of

       fact. In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240, citing

       Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638

       N.E.2d 533.



       {¶ 40} Further, " 'the 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, *2 (Nov. 13, 2000),

quoting In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994).

       {¶ 41} From the testimony, it is clear that father loves his children and wishes to

parent them.      However, the evidence is also clear that despite the services and

caseworkers available to him for some twenty-one months, he has not been able to

maintain the services and/or successfully complete them. The children are thriving in

their respective foster homes and appear to be healthy and happy. Given the evidence

presented, it is impossible for this court to second guess the trial court. As stated above,

credibility, reliability, and forthrightness are within the province of the trier of fact.

       {¶ 42} Upon review, we find sufficient clear and convincing evidence to support the

trial court's decisions to terminate father's parental rights and grant permanent custody of

the children to the agency.
Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA 00110           20


      {¶ 43} Assignment of Error II is denied.

      {¶ 44} The judgments of the Court of Common Pleas of Licking County, Ohio are

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.

EEW/db
