[Cite as In re J.W., 2014-Ohio-2950.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                              :   JUDGES:
WEST / MITCHELL CHILDREN                       :
J.W.                                           :   Hon. William B. Hoffman, P.J.
A.M.                                           :   Hon. Sheila G. Farmer, J.
                                               :   Hon. Patricia A. Delaney, J.
                                               :
                                               :   Case No. 2014CA00032
                                               :
                                               :
                                               :
                                               :
                                               :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Family Court Division,
                                                   Case No. 2011JCV00254



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            June 16, 2014



APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

STARK COUNTY D.J.F.S.                              JENNIFER ROBERTS
LISA A. LOUY                                       401 West Tuscarawas St. Suite 300
221 Third Street S.E.                              Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2014CA00032                                                     2

Delaney, J.

       {¶1} Appellant S.W. (“Mother”) appeals from the February 3, 2014 Judgment

Entry and Findings of Fact and Conclusions of Law of the Stark County Court of

Common Pleas, Family Court Division. Appellee is the Stark County Department of Job

and Family Services (“Agency”).

       {¶2} This case comes to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C).

                        FACTS AND PROCEDURAL HISTORY

       {¶3} Mother has three children: J.W. (DOB. March 6, 2005), A.M. (age 4),1 and

Z.M. (age 1 ½). This appeal concerns only J.W. Mother does not have custody of A.M.

and Z.M. because she consented to a change of legal custody of those children to an

aunt in Chicago. The father of J.W. is not a party to this appeal.

       {¶4} Mother became involved with the Agency in 2009 upon the birth of one of

J.W.’s siblings. In March 2010, Mother was arrested for theft and drug possession and

served five days in jail. Afterward she sought drug treatment but in February 2011 she

was arrested for O.V.I. and possession of drug paraphernalia, resulting in a jail term of

10 days.

       {¶5} The Agency filed a complaint alleging J.W. to be dependent and/or

neglected on February 24, 2011. A shelter care hearing was held on February 25, 2011

and J.W. was ordered into the Agency’s temporary custody.

       {¶6} J.W. was found to be dependent on May 24, 2011. The trial court placed

J.W. in the temporary custody of the Agency, found the Agency made reasonable

1
  Although the case caption references A.M., Mother does not contest the change of
legal custody of A.M.
Stark County, Case No. 2014CA00032                                                    3


efforts to prevent the need for removal of the child from the home and approved and

adopted a case plan.

       {¶7} Mother worked case plan services and J.W. returned to Mother’s home on

extended visits. On March 1, 2012, J.W. was returned to Mother’s custody subject to

protective supervision.    The family’s caseworker testified that at this point in time,

Mother had done very well with her case plan; she completed Goodwill Parenting and

Quest alcohol and drug treatment.

       {¶8} Also in March 2012, however, Mother was again charged with drug

possession and possession of drug paraphernalia. Mother did not advise the Agency of

this arrest.

       {¶9} Mother also began testing positive for drugs and had more drug-related

arrests.   Mother’s arrests continued with a probation revocation in August, 2012

resulting in her incarceration in a community-based corrections facility. Mother was

released in December 2012 but tested positive for cocaine in April 2013 and November

2013. Mother’s probation was revoked and she was placed in SRCCC, where she

remained at the time of trial.

       {¶10} On June 18, 2012, J.W. was returned to temporary custody of the Agency

because of Mother’s arrest.

       {¶11} On July 17, 2012, the trial court reviewed the case and found the Agency

made reasonable efforts to finalize permanency planning for J.W. and compelling

reasons precluded a filing for permanent custody. Temporary custody was extended

while the Agency considered possible relative placements.
Stark County, Case No. 2014CA00032                                                     4


      {¶12} On March 8, 2013, J.W. was placed in a Planned Permanent Living

Arrangement (PPLA) to permit interstate home studies to be completed for a relative in

Chicago, the aunt who obtained legal custody of J.W.’s siblings. Eventually, though,

placement in Chicago did not work out and J.W. returned to Stark County foster care.

      {¶13} On November 18, 2013, the Agency moved for permanent custody as to

J.W. only.

      {¶14} The trial court heard evidence on January 30, 2014.

      {¶15} Evidence at trial established Mother was presently serving a criminal

sentence at the Stark Regional Community Correction Center (SRCCC) and was not

due to be released until mid-March. SRCCC is a prison alternative; upon release,

Mother would still be on felony probation and violations thereof could result in new

criminal charges or prison time. Although Mother did well at SRCCC, upon her release

she would have no independent housing and her discharge would include housing at

the YWCA. In SRCCC Mother was involved in counseling for anger management,

victim awareness, and chemical dependency.

      {¶16} At the time of trial, Mother had not been in touch with the caseworker for

approximately two months.

      {¶17} Mother acknowledged she remains a drug addict despite numerous

attempts and opportunities to obtain treatment. She acknowledged the traumatic effect

her drug abuse has had on J.W. and agreed he needs and deserves a permanent,

stable family environment. She testified she has not been the mother her son deserves

and said she wants him to know she never gave up on him and loves him very much.
Stark County, Case No. 2014CA00032                                                       5


       {¶18} J.W. is an 8-year-old Caucasian boy with no medical issues. He has been

diagnosed with A.D.H.D. and is medicated for that condition; he is sometimes impulsive

and acts out, requiring redirection. These conditions have improved in the time J.W.

has been in foster placement, which is a loving, positive, supportive environment that is

very structured.

       {¶19} J.W. last saw Mother in late August or early September 2013 after he

returned from Chicago. His visits with Mother revealed the two are definitely bonded,

although Mother was frequently crying and upset during the visits and had to be

instructed to keep her composure. During one visit at a McDonald’s Playland, Mother

climbed into the playground equipment with J.W. and sat with him, crying.

       {¶20} J.W.’s caseworker testified in her opinion it is in J.W.’s best interest for

permanent custody to be granted to the Agency, despite the bond with Mother, because

the risk of repeating Mother’s pattern of substance abuse is too high.         The limited

interaction J.W. has with Mother makes him nervous and uncomfortable. He is old

enough to be aware of and to describe aspects of Mother’s behavior that make him

uncomfortable, including her distress during visits.    J.W. told the caseworker about

Mother’s behavior while she was using, often falling down or asleep, requiring him to

care for his younger sister. He told his foster mother he loves his mom and remembers

being with her for better and for worse.     J.W. has already suffered the loss of his

siblings and, in the caseworker’s estimation, struggles with the fact he will not be living

with them in Chicago.

       {¶21} J.W. has been in the same foster placement each time he has been in

Agency custody. His foster family has been licensed for a long time and has fostered
Stark County, Case No. 2014CA00032                                                    6


many children, some of whom they have adopted. Adoption of J.W. is a possibility. He

has many siblings of a wide age range in the foster family and the home is described as

a very structured environment. He refers to his foster parents as “Mom” and “Dad.”

      {¶22} A relative who lives in Michigan contacted the Agency at one point to

inquire about custody of J.W. The caseworker explained the interstate home study

process and although the relative initially expressed some hesitation, immediately prior

to the permanent custody hearing she did request that a home study be initiated.

      {¶23} Upon inquiry by the trial court, the guardian ad litem stated he agreed

J.W.’s best interests are served by granting permanent custody to the Agency.

      {¶24} The trial court journalized its findings of fact and conclusions of law on

February 3, 2014.    The trial court terminated Mother’s parental rights and granted

permanent custody of J.W. to the Agency.

      {¶25} Mother now appeals from the trial court’s Judgment Entry and Findings of

Fact and Conclusions of Law.

      {¶26} Mother raises two assignments of error:

                             ASSIGNMENTS OF ERROR

      {¶27} “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 CONVINCING EVIDENCE

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

PERMANENT CUSTODY.”
Stark County, Case No. 2014CA00032                                                         7


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

PERMANENT CUSTODY AS SUCH DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                        ANALYSIS

       {¶29} Mother’s two assignments of error are related and will be considered

together. Mother argues the trial court’s decision to grant permanent custody to the

Agency is not in J.W.’s best interest and is against the manifest weight of the evidence.

We disagree.

       {¶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). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1). 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). “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.” Id. at 477.

       {¶31} If some competent, credible evidence going to all the essential elements

of the case supports the trial court's judgment, an appellate court must affirm the

judgment and not substitute its judgment for that of the trial court. C.E. Morris Co. v.

Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
Stark County, Case No. 2014CA00032                                                      8


       {¶32} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence in the parties'

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

       {¶33} 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 the filing of a motion for permanent custody

of a child by a public children services agency.

       {¶34} 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: (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; or (d) the child has been in the temporary custody

of one or more public children services agencies or private child placement agencies for

twelve or more months of a consecutive twenty-two month period ending on or after

March 18, 1999.

       {¶35} 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, a trial court will
Stark County, Case No. 2014CA00032                                                          9


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.

       {¶36} 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.

       {¶37} In this case the trial court found J.W. was abandoned by Mother based

upon her lack of contact with him for more than 90 days [R.C. 2151.414(B)(1)(b)] and

J.W. was in the temporary custody of the Agency for a period in excess of twelve

months during a consecutive 22-month period [R.C. 2151.414(B)(1)(d)]. These findings

are supported by clear and convincing evidence and Mother does not challenge them.

                   R.C. 2151.414(E) Factors: Clear and Convincing Evidence

       {¶38} The trial court also found J.W. could not be placed with Mother within a

reasonable time or should not be placed with Mother, a finding Mother challenges. If the

child is not abandoned or orphaned, the focus turns to whether the child cannot be

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

the parents. Under R.C. 2151.414(E), the trial court must consider all relevant evidence
Stark County, Case No. 2014CA00032                                                      10


before making this determination. The trial court is required to enter such a finding if it

determines, by clear and convincing evidence, that one or more of the factors

enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the child's

parents.2

       {¶39} The trial court found that notwithstanding the reasonable case planning

and diligent efforts of the Agency to assist Mother to remedy the problems that initially

caused J.W. to be placed outside the home, Mother failed to remedy the conditions

causing J.W. to be placed outside of the home. R.C. 2151.414(E)(1). Mother argues she

substantially complied with case plan services and almost completed SRCCC, which

she describes as “intensive inpatient treatment.” While evidence does show Mother

substantially complied with the case plan requirements, the statute provides she must

substantially remedy the conditions that caused her child to be placed outside of the

home. We are compelled to find Mother’s cycle of treatment and relapse still poses a

high risk to the safety and stability of J.W.

       {¶40} The trial court commended Mother’s attempts at battling her addiction, as

do we, but noted the cycle of substance abuse continues. Mother has relapsed in the

past and the initial concerns that led to Agency involvement three years ago have not

been alleviated. Despite completion of Goodwill Parenting and Quest treatment for

substance abuse, Mother again tested positive for drugs and was arrested for drug-

related activity. Her substance abuse has led to criminal activity and time spent in jail

and prison alternatives.    The risks to J.W. have not lessened.      Upon release from



2
  The trial court also found J.W. could not be placed with his father, J.S., within a
reasonable time or should not be placed with him within a reasonable time. J.S. is not a
party to this appeal.
Stark County, Case No. 2014CA00032                                                    11


SRCCC, Mother will not have independent housing. Although Mother’s case manager

at SRCCC testified she is doing well in the program, she only monitors Mother’s

progress based upon reports from Mother’s various counseling programs.           Another

relapse will result in prison.

       {¶41} We find the trial court’s decision is supported by the evidence presented

under R.C. 2151.414(E)(1).

                                     Best Interests of J.W.

       {¶42} We next turn to the issue of best interests. We have frequently noted “[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), citing In re Awkal, 85 Ohio App.3d 309, 316, 642

N.E.2d 424 (8th Dist.1994). The trial court determined it was in the best interest of the

children to be placed in the permanent custody of the Agency pursuant to R.C.

2151.414(D) and we agree.

       {¶43} J.W. deserves safety, stability, and permanence. We do not question

Mother’s demonstrated love for J.W.; she acknowledges her addiction and profoundly

regrets the trauma it has caused for J.W. Unfortunately, though, the record of this case

demonstrates J.W. has been removed twice due to Mother’s relapses, the second time

despite the availability of case plan services. His foster placement is positive for him

and provides structure, love, and support he needs. We acknowledge J.W. is suffering

not only the loss of his Mother but also the loss of his siblings who remain in Chicago.
Stark County, Case No. 2014CA00032                                                    12


Permanent custody will permit the upheaval and trauma to end. Allowing Mother more

time to complete drug treatment is not in J.W.’s best interest.

       {¶44} We conclude the trial court did not err in finding J.W. cannot or should not

be placed with Mother within a reasonable period of time and the grant of permanent

custody to the Agency is in the child’s best interests.

       {¶45} Mother’s first and second assignments of error are overruled.

                                      CONCLUSION

       {¶46} Mother’s two assignments of error are overruled and the judgment of the

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

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.
