[Cite as In re T.A., 2012-Ohio-2048.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                                               :      Hon. W. Scott Gwin, J.
IN RE T.A.                                     :      Hon. William B. Hoffman, J.
                                               :
                                               :      Case No. 2012CA00029
                                               :
                                               :
                                               :
                                               :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Family Court Division,
                                                   Case No. 2009 JCV 01439


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            May 7, 2012



APPEARANCES:

For Mother-Appellant:                                 For Appellee:

JENNIFER A. ROBERTS                                   JERRY A. COLEMAN
122 Central Plaza North, Suite B3                     Stark County DJFS
Canton, OH 44702                                      221 – 3rd St. SE
                                                      Canton, OH 44702
[Cite as In re T.A., 2012-Ohio-2048.]


Delaney, P.J.

        {¶1} Mother-Appellant Jessica Yarnell appeals the January 23, 2012

judgment of the Stark County Court of Common Pleas, Family Court Division to grant

permanent custody of T.A. to Appellee Stark County Department of Job and Family

Services (“SCDJFS”).

                              FACTS AND PROCEDURAL HISTORY

        {¶2} Mother is the mother of T.A., born June 29, 2006, and S.Y., born October

23, 2008. S.Y. is not part of this action because on June 3, 2011, the child was placed

in the legal custody of the child’s father. T.A.’s father has not appeared in this action.

        {¶3} On November 9, 2009, SCDJFS filed a complaint requesting T.A. be

placed in the temporary custody of SCDJFS. At the time of the filing, the concerns

were the lack of parental supervision and parental drug use. T.A. was demonstrating

aggressive behaviors towards S.Y., such as pouring Comet cleanser on the child

causing chemical burns. The shelter care hearing was held on November 12, 2009

and T.A. was placed in the temporary custody of SCDJFS.

        {¶4} On January 29, 2010, the trial court found T.A. to be neglected and

continued his temporary custody with SCDJFS. The trial court adopted a case plan

for Mother to complete a parenting evaluation at Northeast Ohio Behavioral Health

and follow any recommendations; complete a Quest drug assessment; engage in

counseling; complete Goodwill’s parenting program; and participate in Intensive

Parent Child Interaction (IPCI) therapy. In addition, Mother was not to permit T.A. to

be around the maternal grandparents due to their pervasive marijuana use.
Stark County, Case No. 2012CA00029                                                   3


      {¶5} SCDJFS was granted two six-month extensions of temporary custody.

Mother was working on her case plan by completing her parenting evaluation, the

Goodwill Parenting program, IPCI, and the Quest assessment. Mother was engaged

in mental health counseling. Mother had appropriate housing for T.A.

      {¶6} On June 14, 2011, SCDJFS attempted reunification of the family by

placing T.A. on an extended visit with Mother. As part of the extended visit, Mother

was to take T.A. to protective daycare, continue his counseling with Child and

Adolescent Behavioral Health, and to abide by the court order prohibiting contact

between T.A. and his maternal grandparents. Mother was also to remain compliant

with her services and to refrain from using illegal substances.

      {¶7} During the extended visit, Mother did not take T.A. to his counseling or to

protective daycare. Mother permitted T.A. to visit with his maternal grandparents.

Mother also missed her counseling appointments. She was not in counseling in June,

July, August, and September.

      {¶8} During the extended visit, Mother tested positive for marijuana use. She

tested positive on July 26, August 1, August 10, and August 23.

      {¶9} SCDJFS removed T.A. from Mother’s care on August 1, 2011 and

returned him to his foster home.

      {¶10} In September 2011, Mother’s visitation with T.A. was terminated because

of T.A.’s negative reactions to the visits. T.A. had tantrums, defecated in his pants,

and hit people after visitation with Mother due to her confusing messages to T.A.

Mother told T.A. his foster mother was his “fake mom” and T.A. did not have to listen

to her. With the termination of visitation, T.A.’s outbursts and negative behavior were
Stark County, Case No. 2012CA00029                                                    4


less dramatic and less frequent.        T.A. receives services for his emotional and

behavioral concerns through Child and Adolescent Behavioral Health, Northeast Ohio

Behavioral Health, and Akron Children’s Hospital.         T.A. is bonded with his foster

family.

          {¶11} Dr. Aimee Thomas of Northeast Behavioral Health Services examined

Mother for her parenting evaluations. During her assessment, Mother admitted to

smoking marijuana all day, every day when she was parenting her children.            Dr.

Thomas felt Mother’s drug usage directly contributed to Mother’s poor supervision of

her children.     Dr. Thomas recommended that Mother demonstrate nine months of

sobriety before placing T.A. with Mother.

          {¶12} T.A. has been in the temporary custody of SCDJFS since November 12,

2009. SCDJFS filed a motion for permanent custody on September 16, 2011.

          {¶13} The Guardian ad litem recommended that SCDJFS be granted

permanent custody of T.A.

          {¶14} On January 22, 2012, the trial court held a hearing on the motion for

permanent custody.       The trial court granted the motion for permanent custody on

January 23, 2012. It is from this decision Mother now appeals.

                               ASSIGNMENTS OF ERROR

          {¶15} Mother raises two Assignments of Error:

          {¶16} “I. 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
Stark County, Case No. 2012CA00029                                                        5


CONVINCING EVIDENCE THAT IT IS IN THE BEST INTEREST OF THE MINOR

CHILDREN TO GRANT PERMANENT CUSTODY.

       {¶17} “II. THE TRIAL COURT ERRED BY FINDING GROUNDS FOR

PERMANENT CUSTODY AS SUCH DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                       ANALYSIS

                                           I., II.

       {¶18} We consider Mother’s first and second Assignments of Error together.

       {¶19} As an appellate court, we are not fact finders; 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

his or her judgment. Cross Truck v. Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911

(Feb. 10, 1982).    Accordingly, judgments supported by some competent, credible

evidence going to all the essential elements of the case will not be reversed as being

against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54

Ohio St.2d 279, 376 N.E.2d 578 (1978). Furthermore, it is well established that the

trial court is in the best position to determine the credibility of witnesses. See, e.g., In

re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio

St .2d 230, 227 N.E.2d 212 (1967).

       {¶20} R.C. 2151.414(B)(1) reads as follows: “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
Stark County, Case No. 2012CA00029                                                  6


permanent custody of the child to the agency that filed the motion for permanent

custody and that any of the following apply:

      {¶21} “(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 time or should not be placed with the child's parents.

      {¶22} “* * *

      {¶23} “(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 * * *.”

      {¶24} In this case, the trial court found T.A. had been in the temporary custody

of SCDJFS for a period greater than 12 months of a consecutive 22-month period.

We find the record supports this conclusion.

      {¶25} The trial court went on to make a determination that T.A. could not be

placed with either parent within a reasonable time nor should T.A. be placed with

either parent. 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, a trial

court is to consider the existence of one or more factors under R.C. 2151.414(E),

including whether or not “[f]ollowing 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
Stark County, Case No. 2012CA00029                                                    7


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.” See R.C. 2151.414(E)(1).

      {¶26} T.A. was removed from Mother’s care because of her drug dependency,

which affected her ability to supervise her children and meet T.A.’s needs. Mother

complied with her case plan and abstained from drug usage when T.A. was

temporarily removed from Mother’s care. Based on Mother’s compliance, SCDJFS

reunified Mother and T.A. with the goal of permanent reunification. Within weeks of

T.A. being in her care, Mother resumed using marijuana and failed to do the things

necessary to care for T.A. and herself. Mother did complete her case plan, but could

not maintain her success while caring for T.A. The evidence shows that T.A. requires

structure and consistency but Mother cannot provide those things while she is drug

dependent.

      {¶27} The trial court next determined it was in T.A.’s best interests to be placed

in the permanent custody of SCDJFS. 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. No. 2000CA00244, 2000 WL
Stark County, Case No. 2012CA00029                                                      8

1700073 (Nov. 13, 2000) quoting In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d

424 (1994).

       {¶28} In determining the best interest of a child for purposes of permanent

custody disposition, the trial court is required to consider the factors contained in R.C.

2151.414(D). These factors are as follows:

       {¶29} “(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;

       {¶30} “(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;

       {¶31} “(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 * * *;

       {¶32} “(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;

       {¶33} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

       {¶34} T.A. has a history of oppositional and aggressive behavior.          He first

came to the attention of SCDJFS because he poured Comet cleanser on his younger

sibling, causing chemical burns.       He was removed from two daycare programs

because of his aggressive behavior.
Stark County, Case No. 2012CA00029                                                    9


      {¶35} Mother had visitation with T.A. until September 2011, when Mother told

him his foster mother was his “fake mom” and he did not have to listen to her. During

that time, T.A.’s behaviors degenerated into temper tantrums, aggression, and soiling

his pants.   He put a child in his daycare into a chokehold.       When the visitation

terminated, T.A.’s behavior improved.

      {¶36} T.A. is in a foster-to-adopt home. He has resided with the family for two

years and is bonded with the family.      The foster family meets T.A.’s needs and

provides him the structure he requires.

      {¶37} The Guardian ad litem recommended it would be in T.A.’s best interests

to be placed in the permanent custody of SCDJFS.

      {¶38} Based on this record, we find no error in the trial court’s determination it

would be in the best interests for T.A. to be placed in the permanent custody of

SCDJFS.
Stark County, Case No. 2012CA00029                                            10


                                   CONCLUSION

       {¶39} Mother’s first and second Assignments of Error are overruled.

       {¶40} The judgment of the Stark County Court of Common Pleas, Family Court

Division, is affirmed.

By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. W. SCOTT GWIN



                                      HON. WILLIAM B. HOFFMAN




PAD:kgb
[Cite as In re T.A., 2012-Ohio-2048.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

                                               :
                                               :
                                               :
IN RE T.A.                                     :
                                               :
                                               :   JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :   Case No. 2012CA00029
                                               :




    For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas, Family Court Division is affirmed.       Costs

assessed to Appellant.




                                            HON. PATRICIA A. DELANEY



                                            HON. W. SCOTT GWIN



                                            HON. WILLIAM B. HOFFMAN
