[Cite as In re T.L.H., 2011-Ohio-692.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
IN THE MATTER OF:                              :   Sheila G. Farmer, P.J.
                                               :   Julie A. Edwards, J.
          T.L.H. (DOB 11/04/1999)              :   Patricia A. Delaney, J.
                                               :
          E.N.K. (DOB 09/04/2002)              :   Case No. 2010CA00255
                                               :
          S.L.K. (DOB 07/11/2006)              :
                                               :   OPINION
            MINOR CHILD(REN)




CHARACTER OF PROCEEDING:                            Civil Appeal from Stark County
                                                    Court of Common, Juvenile Division,
                                                    Pleas Case No. 2008JCV 01341

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             February 14, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

LISA A. LOUY                                        MARY WARLOP
Legal Counsel                                       116 Central Plaza, South
Stark County Department of                          Suite 500
Job & Family Services                               Canton, Ohio 44702
300 Market Avenue North
Canton, Ohio 44702
[Cite as In re T.L.H., 2011-Ohio-692.]


Edwards, J.

        {¶1}     Appellant, Lashaun Hudson, appeals a judgment of the Stark County

Common Pleas Court, Juvenile Division, awarding permanent custody of her children

T.L.H.(DOB 11/14/1999), E.N.K. (DOB 9/4/2002) and S.L.K. (DOB 7/11/2006) to

appellee Stark County Department of Job and Family Services (SCDJFC).

                                    STATEMENT OF FACTS AND CASE

        {¶2}     Appellee filed a complaint on November 25, 2008, alleging that appellant’s

three children who are the subject of this appeal were dependent and/or neglected, and

seeking temporary custody of the children.1 Eric King is the natural father of E.N..K.

and S.L.K. Darren Newman is the natural father of T.L.H. The concerns of the agency

were substance abuse, homelessness and domestic violence.                          Appellant and the

children were residing with a relative, but were placed in a homeless shelter after the

relative was evicted from her home. Appellant failed to follow the rules of the shelter

and was kicked out of the shelter. Appellee could not place her in another shelter due

to her history of problems in shelters and her drug use, and appellee therefore filed the

complaint seeking temporary custody of the children.

        {¶3}     At a shelter care hearing, the court ordered the children into the

emergency custody of appellee.              On February 5, 2009, the parents stipulated to

dependency and the children were ordered to remain in the temporary custody of DHS.

        {¶4}     Appellant’s case plan required her to complete a parenting evaluation,

participate in Goodwill parenting services, attend counseling, obtain and maintain

housing and employment, initiate services with MR/DD, participate in services at Renew


1
 A fourth child, A.K., was born March 23, 2009, and is the subject of a separate trial court and appellate
case.
Stark County App. Case No. 2010CA00255                                                   3


to address domestic violence issues, receive a drug and alcohol assessment at Quest

and cooperate with CSEA in establishing paternity for T.L.H.

        {¶5}   Case plan services for Eric King and Darren Newman included parenting

evaluations and drug and alcohol assessments.

        {¶6}   All three parents failed to substantially complete their case plan services.

Further, appellant stopped participating in visitation with the children in September,

2009, and both Eric King and Darren Newman stopped visiting the children in August,

2009.

        {¶7}   On October 23, 2009, appellee filed a motion seeking permanent custody

of the children. On January 5, 2010, the court held a hearing on the motion. Following

the hearing the court found that the children could not be placed with either parent

within a reasonable time pursuant to R.C. 2151.414(E).

        {¶8}   The court held a hearing on June 24, 2010, concerning whether

permanent custody was in the best interest of the children.           At the hearing, the

caseworker for the family testified that while the children had a strong bond with

appellant, she felt that permanent custody was in the best interest of the children. The

children were doing well in the foster home, which was a potential adoptive placement.

Further, the agency investigated potential relative placements but none were found to

be suitable and willing to take the children.

        {¶9}   On July 13, 2010, the court filed Findings of Fact and Conclusions of Law

finding permanent custody to be in the best interest of the children. On August 17,

2010, the court awarded permanent custody of the children to appellee.           Appellant

assigns a single error on appeal:
Stark County App. Case No. 2010CA00255                                                       4


       {¶10} “THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY

TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE

THAT IT IS IN THE BEST INTEREST OF THE MINOR CHILDREN TO GRANT

PERMANENT CUSTODY.”

       {¶11} A trial court's decision to grant permanent custody of a child must be

supported by clear and convincing evidence. 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.”

Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118; In re: Adoption of Holcomb

(1985), 18 Ohio St.3d 361, 481 N.E.2d 613.

       {¶12} In reviewing whether the trial court based its decision upon clear and

convincing evidence, “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.”

State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60; See also, C.E.

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

court's judgment is “supported by some competent, credible evidence going to all the

essential elements of the case,” a reviewing court may not reverse that judgment.

Schiebel, 55 Ohio St.3d at 74, 564 N.E.2d 54.

       {¶13} Moreover, “an appellate court should not substitute its judgment for that of

the trial court when there exists competent and credible evidence supporting the
Stark County App. Case No. 2010CA00255                                                       5

findings of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses

and the weight to be given the evidence are primarily for the trier of fact. As the court

explained in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d

1273:

        {¶14} “The 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 testimony.”

        {¶15} Moreover, deferring to the trial court on matters of credibility is “crucial in a

child custody case, where there may be much evident in the parties' demeanor and

attitude that does not translate to the record well.” Davis v. Flickinger (1997), 77 Ohio

St.3d 415, 419, 674 N.E.2d 1159; see, also, In re: Christian, Athens App. No. 04CA10,

2004-Ohio-3146; In re: C. W., Montgomery App. No. 20140, 2004-Ohio-2040.

        {¶16} Pursuant to 2151.414(B)(1), the court may grant permanent custody of a

child to the movant if the court determines “that it is in the best interest of the child to

grant permanent custody to the agency that filed the motion for permanent custody and

that any of the following apply:

        {¶17} “(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,

... and the child cannot be placed with either of the child's parents within a reasonable

period of time or should not be placed with the child's parents. * * *
Stark County App. Case No. 2010CA00255                                                      6


       {¶18} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child with the child's parents, siblings, relatives, foster parents and out-of-home

providers, and any other person who may significantly affect the child; (2) the wishes of

the child as expressed directly by the child or through the child's guardian ad litem, with

due regard for the maturity of the child; (3) the custodial history of the child; and (4) the

child's need for a legally secure permanent placement and whether that type of

placement can be achieved without a grant of permanent custody.

       {¶19} Appellant does not challenge the court’s finding that the children cannot

be placed with her within a reasonable time, but only challenges the court’s finding that

permanent custody is in the best interest of the children.

       {¶20} At the best interest hearing, Taranna Francisco, the caseworker for the

family, testified that all the children are placed together in the same foster home and the

foster parents have expressed a desire to adopt the children. She testified that the

children are bonding with the foster parents and the extended family of the foster

parents. The children are engaging in extracurricular activities and sports at school,

and are in counseling to address behavioral and adjustment issues. The foster parents

are working with the school to address the needs of the children. She testified that

there were no suitable relatives able or willing to take the children. She testified that

while the children do have a strong bond with their parents, the long-term stability

gained through a permanent home would outweigh the consequences of severing that
Stark County App. Case No. 2010CA00255                                                 7


bond. She testified that the children needed a safe and stable home in which their

needs can be met on a daily, ongoing basis.

      {¶21} The court’s finding that permanent custody is in the best interest of the

children despite the strong bond they shared with appellant is supported by clear and

convincing evidence.

      {¶22} Appellant argues the court should have continued temporary custody for

six more months. However, appellant has not challenged the court’s finding that the

children could not be placed with her within a reasonable time. The record does not

demonstrate that it would be in the children’s best interests to spend six more months in

temporary foster care. She further argues that T.L.H. should have been placed with

Darren Newman.      Newman is not a party to this appeal.          Further, the evidence

presented in the first portion of the bifurcated hearing demonstrated that he had been

convicted of involuntary manslaughter at the age of 17 for killing his brother in self-

defense and had a domestic violence conviction for leaving marks on his child through

physical punishment.    His parenting evaluation demonstrated that he was cannabis

dependent and suffered from post traumatic stress disorder.          He failed to attend

counseling, tested positive for marijuana, didn’t follow through with drug treatment and

failed to submit urine screens. The court accordingly found, based on this evidence,

that T.L.H. could not be placed with Newman within a reasonable time. Therefore, it

would not be in T.L.H.’s best interest to be placed with Newman.
Stark County App. Case No. 2010CA00255                                       8


       {¶23} The assignment of error is overruled.

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

Division, is affirmed.




By: Edwards, J.

Farmer, P.J. and

Delaney, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                          JUDGES

JAE/r0121
[Cite as In re T.L.H., 2011-Ohio-692.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                              :
                                               :
          T.L.H. (DOB 11/04/1999)              :
                                               :
          E.N.K. (DOB 09/04/2002)              :
                                               :
          S.L.K. (DOB 07/11/2006)              :
                                               :
            MINOR CHILD(REN)                   :          JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 2010CA00255




    For the reasons stated in our accompanying Memorandum-Opinion on file, the

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

Costs assessed to appellant.




                                                   _________________________________


                                                   _________________________________


                                                   _________________________________

                                                                JUDGES
