[Cite as In re J.J., 2020-Ohio-1020.]


                                            COURT OF APPEALS
                                           STARK COUNTY, OHIO
                                        FIFTH APPELLATE DISTRICT

                                                           JUDGES:
IN THE MATTER OF: J.J.. & A.J.                     :       Hon. William B. Hoffman, P.J.
                                                   :       Hon. W. Scott Gwin, J.
                                                   :       Hon. Earle E. Wise, J.
                                                   :
                                                   :
                                                   :       Case Nos.   2019CA00167 :
                                                           2019CA00168
                                                   :
                                                   :
                                                   :       OPINION




CHARACTER OF PROCEEDING:                               Civil appeal from the Stark County Court of
                                                       Common Pleas, Family Court Division,
                                                       Case Nos. 2018JCV00724 &
                                                       2018JCV00725

JUDGMENT:                                              Affirmed




DATE OF JUDGMENT ENTRY:                                March 16, 2020


APPEARANCES:

For Plaintiff-Appellee                                 For Defendant-Appellant

BRANDON J. WALTENBAUGH                                 DEAN L. GRASE
Stark County JFS                                       700 Courtyard Centre
402 2nd St. S.E.                                       116 Cleveland Avenue NW
Canton, OH 44702                                       Canton, OH 44702
[Cite as In re J.J., 2020-Ohio-1020.]


Gwin, .J.

        {¶1}     Appellant-mother [“Mother”] appeals the October 9, 2019 Judgment Entry

of the Stark County Court of Common Pleas, Family Court Division, which terminated her

parental rights with respect to her minor children and granted permanent custody of the

children to appellee, Stark County Jobs and Family Services [“SCJFS”].

                                        Facts and Procedural History

        {¶2}     On July 12, 2018, SCJFS filed a complaint alleging the dependency and/or

neglect of J.J. (b. 06.13.2011) and A.J. (b. 07.01.2016)1.

        {¶3}     On July 13, 2018, the trial court held an emergency shelter care hearing

and found that probable cause existed for the involvement of SCJFS, continued

residence of the children in the home would be contrary to their best interests and welfare,

and SCJFS made reasonable efforts to prevent the need for placement and/or to make

it possible for the children to return home or remain in the home. The trial court also placed

the children into the emergency temporary custody of SCJFS.

        {¶4}     On August 28, 2018, the trial court found the children to be dependent and

placed them into the temporary custody of SCJFS. The trial court also approved and

adopted the case plan and found that SCJFS had made reasonable efforts to prevent the

need for the continued removal of the children from the home.

        {¶5}     On January 9, 2019, the trial court reviewed the case. The trial court approved

and adopted the case plan, found that SCJFS had made reasonable efforts to finalize the

permanency planning in effect, and ordered status quo.




        1 A third child, A.K. (b. 03.27.2010) was originally included in the complaint; however, Mother
stipulated to permanent custody of this child. (T. Aug. 6, 2019 at 3; 18-19; T. Oct 7, 2019 at 3-4).
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                          3


       {¶6}   On May 31, 2019, SCJFS filed motions seeking permanent custody of the

children.

       {¶7}   On June 7, 2019, the trial court again reviewed the case. The trial court

approved and adopted the case plan, found that SCJFS had made reasonable efforts to

finalize the permanency planning in effect, and ordered status quo. At this hearing, the

trial court found that there were no compelling reasons to preclude a request for

permanent custody to SCJFS.

       {¶8}   On August 6, 2019, the trial court heard evidence on the motions seeking

permanent custody of the children. At the hearing, Mother stipulated to SCJFS's motions

requesting permanent custody of her children. The trial court underwent a dialogue

with Mother about her rights associated with the hearing and the ramifications of stipulating

to permanent custody. (T. Aug. 6, 2019 at 3-9). Mother signed a form confirming her

desire to waive those rights and stipulate to permanent custody. (Id. at 3-9). Due to the

stipulations and the subsequent testimony, the trial court granted permanent custody of

the children to SCJFS. (T. Aug. 6, 2019 at 18-19).

       {¶9}   On September 27, 2019, Mother filed motions requesting to withdraw her

prior stipulations to permanent custody concerning A.J. and J.J. Those motions were set

for a hearing on October 7, 2019.

       {¶10} On September 30, 2019, the Guardian ad Litem for the children submitted a

report recommending that the children be placed into the permanent custody of SCJFS.

       {¶11} On October 7, 2019, the trial court heard evidence on the motions seeking

permanent custody of the children and on Mother’s motions to withdraw her prior

stipulations. The trial court granted Mother’s motions to withdraw her prior stipulations
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                         4


and proceeded with evidence on the permanent custody motions. .

       Permanent Custody Hearing, October 7, 2019.

       {¶12} Caseworker Kimberly Gabel testified for SCJFS. Ms. Gabel testified that

Mother had not completed her case plan and had not significantly reduced the risk she

posed to her children. Specifically, Ms. Gabel testified that Mother's case plan required

her to complete a parenting assessment, maintain sobriety, engage in substance abuse

services, engage in mental health services, and obtain appropriate housing and

employment.

       {¶13} Caseworker Gabel testified that the night before the children were taken

into temporary custody of SCJFS, the children had witnessed a shooting in the home

of Mother’s drug-dealer paramour. (T. Oct. 7, 2019 at 16-17).

       {¶14} Caseworker Gabel testified that Mother completed a parenting

assessment and was diagnosed with alcohol use disorder, cannabis use disorder,

simulant use disorder, opiate use disorder, major depressive disorder with recurrent

psychosis, generalized anxiety disorder, rule-out bipolar personality disorder, dependent

personality disorder, and borderline personality disorder. Ms. Gabel testified that, in

addition to the previous services, the parenting evaluation recommended for Mother to

complete a psychiatric evaluation, participate in anger management services, and obtain

four months of sobriety prior to initiating parenting classes. Caseworker Gabel testified

that Mother had tested positive for opiates, methamphetamine, cocaine, and/or

barbiturates at least 25 times throughout the case. In fact, Ms. Gabel testified that Mother

was positive for barbiturates, opiates, and marijuana on the day of the trial. Caseworker

Gabel testified that she "almost begged" Mother to engage in substance abuse services,
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                          5


to no avail. Ms. Gabel testified that Mother did not complete a psychiatric evaluation and

had been inconsistent with her mental health treatment. Ms. Gabel testified that Mother

did not participate in anger management services. Caseworker Gabel testified that she

was not aware of Mother's employment status and was unable to verify that Mother had

appropriate housing.    On cross-examination, Ms. Gabel testified that Mother had

consistently stated that she was not doing any residential services.

      {¶15} Mother testified on her own behalf. Mother admitted that she quit intensive

outpatient treatment for her drug use. Mother further acknowledged she did not have

independent housing. Mother testified she had not completed a psychiatric evaluation and

was not taking medication to address her mental health issues. Mother admitted she did

not have stable employment.

      {¶16} Mother testified that she had an appointment for Section 8 housing the

following day, after having been on the waiting list for 4 years. (T. Oct. 7, 2019 at 24).

In the Judgment Entry filed August 18, 2018, the Magistrate noted that, “Mother has

reached out to Phoenix Rising on her own to set up counseling.” See, Docket Entry No.

38. The Magistrate further noted that, “mother has been consistent with visitation and

does well.”

      {¶17} At trial, Mother further testified that she is on the waiting list for in-patient

drug treatment. Mother testified that she attempted intensive outpatient treatment, but

transportation became an issue for her. The Case Plan Review Packet, filed Jan. 9,

2019, noted that the assessment by Northeast Ohio Behavioral Health recognized

Mother may have difficulty mainlining sobriety as an outpatient, and may need residential

treatment. Docket No. 46 at 3.
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                           6


       {¶18} Mother was previously employed as a landscaper with her stepfather and

at a factory in Cuyahoga Falls.       Mother stated that she passed drug tests at her

employment, so may have had some short-term sobriety.              The Case Plan Review

Packet, filed Jan. 9, 2019 indicated that Mother had been employed as a waitress and

had provided screenshot verifying her pay to SCJFS. Case Plan Review Packet, filed

Jan. 9 2019, at 5. Docket Entry No. 46.

       {¶19} Mother testified that she believed she could address the case plan concerns

if the trial court granted a six-month extension of temporary custody.

       {¶20} The court heard testimony concerning the best interest of the children. Ms.

Gabel testified that one of the children is in counseling. Ms. Gabel testified that the

children were placed together in a foster home. Ms. Gabel testified that the foster parents

were interested in adoption. The children are bonded with each other and with the foster

family. Caseworker Gabel testified that S.T., Mother’s stepfather recently came forward

indicating a desire for placement of the children. Ms. Gabel testified that SCJFS had not

yet completed a formal home study for S.T., and that he has concerning criminal and

children services history.   Ms. Gabel testified that S.T. had initiated the process of

becoming a foster parent. Ms. Gabel testified that S.T. would be considered for adoption

if he became a foster parent and permanent custody was granted.

       {¶21} Ms. Gabel testified that visits between Mother and the children were a

"rollercoaster ride of emotion" due to Mother’s cycling from crying to falling asleep to being

combative and angry. On cross-examination, Ms. Gabel testified that the children are

bonded with their Mother.      Despite the bond, Ms. Gabel testified that she believed

permanent custody of the children was in their best interests.
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                         7


       {¶22} S.T. testified for Mother. S.T. testified that he is Mother’s stepfather. S.T.

testified that Appellant's mother was a drug addict.      S.T. testified that he had past

involvement with children services. S.T. testified that he was about to start the process

of becoming a foster parent. S.T. testified that he was going to pursue adopting the

children. S.T. testified that he was "disappointed" in Mother for the events that led to the

removal of the children from her home.

       {¶23} The Guardian ad Litem for the children, made a statement. She testified

that permanent custody of the children was in their best interests.

       {¶24} The trial court took the matter under advisement.

       {¶25} On October 9, 2019, the trial court issued its findings of fact granting

permanent custody of the children to SCJFS and terminating Mother's parental rights.

Specifically, the trial court found that, despite reasonable efforts by SCJFS, the children

could not be placed with Mother within a reasonable amount of time, the children had

been in the temporary custody of SCJFS for 12 or more months in a consecutive 22-month

period, and permanent custody was in the children's best interests.

                                       Assignment of Error

       {¶26} Mother raises one Assignment of Error:

       {¶27} “I. THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY

TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS)

AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT

ADEQUATE GROUNDS EXISTED FOR A GRANT OF PERMANENT CUSTODY AND

THEREFORE SUCH DECISION WAS CONTRARY TO THE MANIFEST WEIGHT OF

THE EVIDENCE.”
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                         8


       {¶28} At the outset, we note that SCJFS concedes that the trial court was incorrect

in finding that the children had been in the continuous custody of SCJFS for 12 of 22

months (Appellant’s Brief at 12). However, in the case at bar, the trial court provided

additional finding pursuant to R.C. 2151.414(B)(1) and R.C. 2151.414(E) upon which to

base a grant of permanent custody.

       {¶29} Mother argues that the Trial Court abused its discretion in finding that there

was Clear and Convincing Evidence that these children could not or should not be placed

with the parent within a reasonable amount of time. When the Motion for Permanent

Custody was filed, Mother still had an approximately fifteen-month window in which to

achieve sobriety. Such finding that this could not be achieved in the available time period

was contrary to the manifest weight of the evidence and therefore the trial court's granting

of Permanent Custody to the SCJFS should be reversed. (Mother’s Brief at 16-17).

       BURDEN OF PROOF.

       {¶30} “[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.
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                             9


       {¶31} 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

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).

       STANDARD OF APPELLATE REVIEW.

       {¶32} 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.

       {¶33} 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. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL

242557, ¶17.

       {¶34} In Cross, the Supreme Court further cautioned,
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                           10


              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).

       Requirements for Permanent Custody Awards

       {¶35} 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.

       {¶36} 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 Nos. 2019CA00167 & 2019CA00168                                  11


           (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 Nos. 2019CA00167 & 2019CA00168                                         12


       {¶37} 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. Parental Placement within a Reasonable Time–R.C. 2151.414(B)(1)(a).

       {¶38} 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, 1997 WL 701328 (Sept. 21, 1998);

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

       {¶39} 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
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                      13


     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

     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.

                                           ***

            (16) Any other factor the court considers relevant.
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                           14


       {¶40} R.C. 2151.414(D) requires the trial court to consider all relevant factors in

determining whether the child’s best interests would be served by granting the permanent

custody motion. These factors include but are not limited to: (1) the interrelationship of

the child with others; (2) the wishes of the child; (3) the custodial history of the child; (4)

the child’s need for a legally secure placement and whether such a placement can be

achieved without permanent custody; and (5) whether any of the factors in divisions (E)(7)

to (11) apply.

       {¶41} “Reasonable efforts” have been described as the state's efforts to resolve a

threat to a child's health or safety before removing the child from the home or permitting

the child to return home, which follow an intervention to protect a child from abuse or

neglect. See In re C.F., 113 Ohio St. 3d 73, 862 N.E. 2d 816, 2007- Ohio-1104, ¶ 28,

citing Will L. Crossley, Defining Reasonable Efforts: Demystifying the State's Burden

Under Federal Child Protection Legislation (2003), 12 B.U. Pub.Int.L.J. 259, 260. These

efforts are required because of the fundamental nature of the right to parent one's

children. In re C.F., ¶ 21.

       {¶42} The Ohio Supreme Court has held that the trial court is not obligated by

R.C. 2151.419 to make a determination that the agency used reasonable efforts to reunify

the family at the time of the permanent custody hearing unless the agency has not

established that reasonable efforts have been made prior to that hearing. See In re C.F.,

113 Ohio St.3d 73, 2007–Ohio– 104, ¶ 41; ¶ 43; See, also, R.C. 2151.419. The trial court

is only obligated to make a determination that the agency has made reasonable efforts to

reunify the family at “adjudicatory, emergency, detention, and temporary-disposition

hearings, and dispositional hearings for abused, neglected, or dependent children, all of
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                       15


which occur prior to a decision transferring permanent custody to the state.” In re C.F. at

¶ 41.

        {¶43} A parent’s successful completion of the terms of a case plan is not

dispositive on the issue of reunification. The ultimate question under R.C. 2151.414(A)(1)

is whether the parent has substantially remedied the conditions that caused the child’s

removal. In re Shchigelski, 11th Dist. No. 99–G–2241, 2000 WL 1568388 (Oct. 20, 2000);

In re McKenzie, 9th Dist. No. 95CA0015, 1995 WL 608285 (Oct. 18, 1995). A parent can

successfully complete the terms of a case plan yet not substantially remedy the conditions

that caused the children to be removed-the case plan is simply a means to a goal, but not

the goal itself. Hence, the courts have held that the successful completion of case plan

requirements does not preclude a grant of permanent custody to a social services agency.

In re J.L., 8th Dist. No. 84368, 2004–Ohio–6024, ¶20; In re Mraz, 12th Dist. Nos.

CA2002–05–011, CA2002–07–014, 2002–Ohio–7278.

        {¶44} The trial court had the discretion, consistent with the best interests of the

children, to determine whether to grant Mother a six-month extension of temporary

custody. See R.C. 2151.415(D) (1). See, also, In re T.W., C.W., F.W., & R.W., 9th Dist.

No. 21594, 2003–Ohio–7185, ¶ 6; In re E.T., C.D., & Cr.D., 9th Dist. Summit No. 227290,

2005-Ohio-6087, ¶9. An abuse of discretion can be found where the reasons given by

the court for its action are clearly untenable, legally incorrect, or amount to a denial of

justice, or where the judgment reaches an end or purpose not justified by reason and the

evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re

Guardianship of S .H. 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State

v. Firouzmandi, 5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54.
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                         16


        {¶45} R.C. 2151.415(D)(1) provides that,

               The court may extend the temporary custody order of the child for a

        period of up to six months, if it determines at the hearing, by clear and

        convincing evidence, that the extension is in the best interest of the child,

        there has been significant progress on the case plan of the child, and there

        is reasonable cause to believe that the child will be reunified with one of the

        parents or otherwise permanently placed within the period of extension.

                                             ***

        {¶46} In the case at bar, the record reflects that Mother tested positive for drugs

26 times during the course of the proceedings, including the day of the permanent custody

hearing. Mother did not accomplish more than a minuscule compliance with only a few

of the case plan requirements. In other words, Mother did not demonstrate “significant

progress” on the case plan, nor does the record reflect that the children could be reunited

with Mother within the period of the extension. Providing more services to an individual

who has not availed herself of the services already provided or made available to her is

not required. We find no abuse of discretion in not granting Mother an additional 6-month

extension of temporary custody.

        {¶47} 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 children, and the testimony of the witnesses at trial. The trial court was in the best

position to determine the credibility of the witnesses. Nothing in the record of this case

suggests that Mother’s behavior would change if given more time to work on her case

plan.
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                          17


       {¶48} The evidence demonstrated very little success 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 his case

plan, she was still not able to be a successful parent to these children. It appears that

Mother cannot raise her children without the structure and the support of SCJFS. Without

the involvement of numerous outside resources, Mother simply is unable to maintain a

safe and structured environment in the home and to remain drug free.

       {¶49} 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.

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

properly found the children 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 children’s removal.

       The Best Interest of the Child.

       {¶51} Mother set forth no assignment of error, or argument concerning the “best

interest of the children.”

       {¶52} 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
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                           18


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.

       {¶53} 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.

       {¶54} The trial court made findings of fact regarding J.J. and A.J.’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).

       {¶55} 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
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                         19


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).

       {¶56} 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 J.J. and A.J.’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.

       Conclusion

       {¶57} For these reasons, we find that the trial court’s determination that Appellant-

Mother had failed to remedy the issues that caused the initial removal and therefore the

children 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.

       {¶58} We further find that the trial court’s decision that permanent custody to

SCJFS was in the child's best interest was based upon competent, credible evidence and

is not against the manifest weight or sufficiency of the evidence.
Stark County, Case Nos. 2019CA00167 & 2019CA00168                                       20


      {¶59} Because the evidence in the record supports the trial court’s judgment, we

overrule Appellant-Mother’s sole assignments of error, and affirm the decision of the Stark

County Court of Common Pleas, Family Court Division.

By Gwin, J.,

Hoffman, P.J., and

Wise, Earle, J., concur
