[Cite as In re R.T., 2013-Ohio-1139.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
IN THE MATTER OF:                              :   Patricia A. Delaney, P.J.
                                               :   Sheila G. Farmer, J.
           R.T., JR.                           :   John W. Wise, J.
                                               :
                                               :   Case No. 2012CA00220
                                               :
                                               :
                                               :   OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from Stark County
                                                    Court of Common Pleas, Family
                                                    Court Division, Case No.
                                                    2010JCV01342

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             March 18, 2013

APPEARANCES:

For Stark County Job and                            For Appellant
Family Services
                                                    AARON KOVALCHIK
JAMES B. PHILLIPS                                   116 Cleveland Ave., N.W.
221 Third Street, S.E.                              Suite 808
Canton, Ohio 44702                                  Canton, Ohio 44702
[Cite as In re R.T., 2013-Ohio-1139.]


Delaney, J.

        {¶1}     Appellant, T.W. (mother), appeals from the November 1, 2012, Judgment

Entry of the Stark County Court of Common Pleas, Family Court Division, terminating

her parental rights and granting permanent custody of R.T., Jr. to Stark County

Department of Job and Family Services.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     R.T., Jr. (DOB 8/19/09) is the child of appellant T.W. and R.T., who is not

part of this appeal. On November 30, 2010, the child was placed into the emergency

temporary custody of Stark County Department of Job and Family Services (“SCDJFS”).

On December 1, 2010, SCDJFS filed a complaint alleging that R.T., Jr. was a neglected

and/or dependent child. As memorialized in a Magistrate’s Order filed on December 2,

2010, R.T., Jr. was placed in the temporary custody of SCDJFS following a shelter care

hearing.

        {¶3}     Thereafter, on February 1, 2011, appellant stipulated to a finding of

dependency and the trial court found R.T., Jr. to be a dependent child. The court

ordered that the child remain in the temporary custody of SCDJFS.

        {¶4}     On July 19, 2012, SCDJFS filed a motion requesting a change of legal

custody of R.T., Jr. to a relative. SCDJFS, in its motion, alleged that appellant had lost

housing, continued using marijuana, had not completed case plan services, and was

unable to care for R.T., Jr. However, after the relative indicated that he was no longer

willing to accept custody of R.T., Jr. or to maintain his placement, SCDJFS, on August

28, 2012, filed an amended motion seeking permanent custody of R.T., Jr.
Stark County App. Case No. 2012 CA 00220                                                3


      {¶5}   A hearing on SCDJFS’ motion was held on October 23, 2012. At the

hearing, Cheri Smith, a caseworker with SCDJFS, testified that R.T., Jr. had never been

out of the temporary custody of the agency since November 30, 2010. Smith testified

that she prepared a case plan for appellant that addressed concerns over drug abuse,

instability in employment and housing, and domestic violence between appellant and

R.T., Jr.’s father. The case plan required appellant to attend Well Child appointments for

R.T., Jr. so that she would remain informed about his health, to submit to random urine

screens, to submit to alcohol and substance abuse assessments at Quest and follow all

recommendations, and to complete a parenting assessment at Northeast Ohio

Behavioral Health and to follow any recommendations. Northeast Ohio Behavioral

Health recommended that appellant attend Renew, maintain stable housing and

employment, attend individual counseling, and attend Goodwill Parenting classes. Smith

testified that appellant completed a parenting evaluation and Goodwill Parenting.

Appellant, however, did not complete Renew. Smith testified that appellant “went for

several months, October, November, and December of last year she attended Renew.

However, in February she did not go back. She was scheduled again for a

reassessment on 8/21 of 2012 and she no-showed for that assessment…” Transcript at

10.

      {¶6}   Appellant also failed to complete Quest. According to Smith, appellant had

been doing well, but dropped out and cancelled a reassessment that had been

scheduled for August over substance abuse concerns. Appellant had testified positive

for marijuana on May 14, 2012. Smith testified that appellant missed six sessions at
Stark County App. Case No. 2012 CA 00220                                                4


Quest that she needed to complete. On October 11, 2012, appellant again tested

positive for marijuana.

       {¶7}   Smith further testified appellant had recently become employed part-time

as a secretary, but that appellant had failed to maintain any form of stable employment

during the two years of the case. She testified that appellant was only employed one

other time for a brief period during the pendency of the case. Appellant also lacked

housing, having lost her housing in March of 2012. Smith testified that appellant told her

that she was staying with her father, but refused to give Smith the address. As a result,

Smith was unable to determine if the house was appropriate or not.

       {¶8}   Smith, when asked, indicated that she had concerns about appellant being

involved with R.T., Jr.’s father. She testified that she had been told by relatives and

others that appellant and R.T. were still involved, but that appellant denied such

involvement. Smith further testified that appellant had a history of going back to R.T.

The following testimony was adduced when Smith was asked whether she believed that

appellant had completed enough services to reduce the risk to the child:

       {¶9}   “A. No, I do not.

       {¶10} “Q. Why do you say that?

       {¶11} “A. Because just recently I’ve had a urine screen, or not, sorry, a swab,

where she was positive for marijuana.      She was very well informed.      We had our

conversations and I’m sure she has also spoken with her attorney about what needed to

be done still, like Quest and Renew. She does not have housing. I can’t confirm or

deny whether the home that she’s currently staying in is appropriate for [R.T., Jr.] I
Stark County App. Case No. 2012 CA 00220                                                5


don’t see where we’ve made much of any progress from when I became involved in this

case to this point.” Transcript at 13.

        {¶12} Smith also testified that appellant visited with R.T., Jr. consistently

throughout the case and that she loved him and he had a bond with her. She testified

that the agency could not grant any more extensions in this case and that she believed

that the child would be at risk if returned to appellant because appellant used marijuana,

lacked stable housing, and there were concerns that she was still involved with R.T.

She testified that she did not believe that appellant had made much progress during the

case.

        {¶13} On cross-examination, Smith testified that appellant had completed Quest

Women’s Issues Group, but had not completed the entire Quest program. Smith

testified that although appellant successfully completed Goodwill Home Based

parenting, there were concerns over appellant smoking in the home because R.T., Jr.

had asthma. The following testimony was adduced when Smith was asked why the child

was never returned home even though appellant had successfully completed Goodwill

Home Based:

        {¶14} “A. She completed, yes.

        {¶15} “Q. Okay, but yet we never returned them?

        {¶16} “A. No, we did not.

        {¶17} “Q. Even though at the particular time her urine screens were clean and

she had housing.

        {¶18} “A. She did.
Stark County App. Case No. 2012 CA 00220                                                     6


          {¶19} “Q. She had completed at least enough of the program to permit home

visits.

          {¶20} “A. Yes.

          {¶21} “Q. So what happened from the time where we’re ready to return to now

we have a motion for Permanent Custody pending?

          {¶22} “A. Well, first of all there’s been a quite a bit of time that’s gone by since

then.     There were concerns that Mom’s residence I was alerted that there were

concerns at Mom’s residence that the Father was harassing her and that there was

some more domestic violence issues that were occurring.

          {¶23} “Q. Anyone charged with domestic violence?

          {¶24} “A. I have the reports. There were no charges, but there were numerous

calls to her residence for that reason.” Transcript at 17-18.

          {¶25} On cross-examination, Smith testified that appellant had three or four

sessions left at Renew when she left. She also testified that appellant maintained the

same housing from September of 2011 until March of 2012. According to Smith, a

majority of appellant’s urine screens were dirty. Smith also testified that she was still

receiving reports of possible domestic violence between appellant and R.T. after

appellant had dropped out of the Renew program.

          {¶26} At the best interest portion of the hearing, Smith testified that the child had

been in the temporary custody of the agency since November 30, 2010. She testified

that the child was Caucasian, was around three years old, and that he has asthma that

was not being treated with medication. Smith testified that R.T., Jr. was very angry and

that he had had severe temper tantrums and kicked and bit. In a previous home, he had
Stark County App. Case No. 2012 CA 00220                                                 7


pushed a two year old down some steps. According to Smith, in the two different homes

that he had been in, R.T., Jr. spread feces on the walls and furniture and urinated in a

closet. She testified that he had been in a new home since September 10, 2012, and

was not exhibiting such behavior in the current foster home.

        {¶27} In total, R.T., Jr. has had six placements. Smith testified that a couple

were due to his behaviors and that some were because of attempts to reunite him with

the family. He was initially placed with an aunt, but had to be moved because the aunt

allow appellant and R.T. access to R.T., Jr. The child then did well in the foster home

until he was moved into a house with his sister, who was medically fragile. Smith

testified that at such time, they started seeing the above behavioral problems. Because

that foster mother was unable to handle the behavioral problems, R.T., Jr. was moved

back to the original foster home. After that foster family was no longer willing to adopt

R.T., Jr. he was placed with appellant’s stepfather and his current partner in June of

2012.    Smith testified that R.T., Jr. did well for a while, but that then his behavior

worsened and he pushed a two year old down some steps. R.T., Jr. was then moved to

his current foster home. Smith also testified that he had had been in such home since

September 10, 2012 and that such foster family, who had two other adopted children

with similar behaviors, was interested in adopting him.

        {¶28} When asked, Smith testified that two other relatives had come forward to

be considered for home placement. One was appellant’s cousin who never came into

be fingerprinted and did not call back to have the home study completed despite being

contacted numerous times by the agency. The second was the father’s sister. Smith

testified that, after a home study, the sister was approved, but that the sister told Smith
Stark County App. Case No. 2012 CA 00220                                                 8


that she could only care for R.T., Jr. on a temporary basis until appellant and R.T., Jr.

got their act together. Such relative did not want to adopt the child.

       {¶29} Smith testified that there was a bond between appellant and R.T., Jr. and

that R.T., Jr. loved appellant. Smith testified that the interaction between appellant and

R.T., Jr. had been limited and that he had seen her every couple of weeks over the last

two years, Smith voiced concerns that appellant did not interact enough with R.T., Jr.

during the visits. When asked if the benefit of permanent custody outweighed any harm

in breaking the bond between appellant and her son, Smith testified affirmatively and

indicated that R.T., Jr. needed stability and had been moved around too much.

       {¶30} On cross-examination, Smith testified that R.T., Jr. did not exhibit any of

the behavioral problems during his visits with appellant. She admitted that it was not

until R.T., Jr. had been moved into the same home as his sister that he began exhibiting

behavioral problems.

       {¶31} At the hearing, father R.T.’s sister testified that she was unwilling to adopt

R.T., Jr. but would keep him temporarily until appellant and R.T. got their act together.

She testified that she could not guarantee that she and her husband would be willing to

keep R.T., Jr. until he turned 18 and that it was not her intention to do so. She testified

that she would not put R.T., Jr. in harm’s way by returning him to his parents.

       {¶32} At the hearing, the Guardian ad Litem testified that appellant’s ICAN

housing had been cancelled over concerns about domestic violence and that the

“domestic violence thing has been going on for years,..” Transcript at 55.        She also

stated that she observed the last visit that appellant had with R.T., Jr. and that during

the two hour visit, appellant was on the phone for at least 45 minutes and that the rest
Stark County App. Case No. 2012 CA 00220                                                9


of the time appellant had little interaction with R.T., Jr. She stated that it was in the

child’s best interest for permanent custody to be granted to the agency.

       {¶33} Pursuant to a Judgment Entry filed on November 1, 2012, the trial court

terminated appellant’s parental rights and granted permanent custody of R.T., Jr. to

SCDJFS. On the same date, the trial court filed Findings of Fact and Conclusions of

Law.

       {¶34} Appellant now raises the following assignments of error on appeal:

       {¶35} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD

CANNOT      OR   SHOULD      NOT     BE   PLACED WITH APPELLANT WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE.

       {¶36} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF

PERMANENT        CUSTODY       WAS     AGAINST        THE   MANIFEST       WEIGHT    AND

SUFFICIENCY OF THE EVIDENCE.”

                                              I, II

       {¶37} Appellant, in her two assignments of error, argues that the trial court erred

in awarding permanent custody of the child to SCDJFS. Appellant specifically contends

that SCDJFS failed to prove by clear and convincing evidence that the child could not or

should not be placed with appellant within a reasonable amount of time and that an

award of permanent custody was in the child's best interest.

       {¶38} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant,
Stark County App. Case No. 2012 CA 00220                                               10


competent, and credible evidence upon which the finder of fact could base its judgment.

Cross Truck Equipment Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758, 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 Constr., 54

Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

      {¶39} 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 evident 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).

      {¶40} 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 or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

      {¶41} 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
Stark County App. Case No. 2012 CA 00220                                                   11


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.

       {¶42} 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.

       {¶43} 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, a 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.

       {¶44} In this case, the trial court found by clear and convincing evidence that the

child had been in the temporary custody of a public children services agency for twelve

or more months of a consecutive twenty-two-month period pursuant to R.C.

2151.414(B)(1)(d). Appellant does not challenge the trial court's finding. This finding
Stark County App. Case No. 2012 CA 00220                                               12


alone, in conjunction with a best-interest finding, is sufficient to support the grant of

permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118, 2008–Ohio–5458, ¶ 45.

       {¶45} 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 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.

       {¶46} The trial court determined that the child could not be placed with appellant

within a reasonable time pursuant to R.C. 2151.414(E)(1), which requires the following

findings:

       {¶47} “(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 the purpose of changing parental conduct to allow them to resume and maintain

parental duties.”
Stark County App. Case No. 2012 CA 00220                                             13


      {¶48} A review of the record supports the trial court's decision that the child

cannot be placed with appellant within a reasonable time and that the agency provided

reasonable case planning and diligent efforts to assist appellant to remedy the problems

that caused the child to be removed. As is stated above, there was testimony that

appellant had lost her housing in March of 2012, claimed that she was living with her

father, and then refused to give the agency her address. As a result, the agency was

unable to determine if the housing was appropriate for R.T., Jr. In addition, appellant

lacked stable employment throughout the case. While there was testimony that

appellant obtained part-time employment in September of 2012, there was testimony

that she had one other short term period of employment during pendency of the case.

Moreover, appellant failed to attend Well Child appointments as required and had tested

positive for marijuana on May 14, 2012 and October of 2012. In addition, appellant did

not complete at Quest and dropped out of Renew with three or four sessions to go. As

noted by the trial court in its decision, there were also was continuing concerns about

appellant’s ongoing relationship with R.T., which had been violent in the past.

Furthermore, the trial court voiced concerns over appellant’s smoking in the home while

knowing that R.T., Jr. had asthma.

      {¶49} We next turn to the issue of best interest. 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. No.2000CA00244, 2000

WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d
Stark County App. Case No. 2012 CA 00220                                                14


424 (8th Dist.1994). The trial court determined it was in the best interest of the child to

be placed in the permanent custody of appellee pursuant to R.C. 2151.414(D), and we

agree.

         {¶50} At the hearing, there was testimony that R.T., Jr., who had been in the

agency’s custody since November 30, 2010, had significant behavioral problems and

that he had been moved six times during the pendency of the case. Smith testified that

his current foster parents had experience with children with similar issues and that they

had adopted two such children and were interested in adopting R.T., Jr. Smith further

testified that R.T., Jr. needed a stable permanent home and that he had been moved

around too much.      When asked if the benefit of permanent custody outweighed any

harm in breaking the bond between appellant and her son, Smith testified affirmatively.

Furthermore, the Guardian ad Litem, in her November 1, 2012, Report, recommended

that permanent custody be granted to the agency. The Guardian noted that appellant

had lost her housing, had stopped attending Quest and had an ongoing drug problem.

         {¶51} In addition, there was testimony that R.T., Jr. had only seen appellant

every other week for the past two years. As is stated above, there also was testimony

that appellant, during her visits with R.T., Jr., did not interact with him enough and,

during one visit, spent a great deal of time on the phone.

         {¶52} Appellant, in her brief, notes that a family member with an approved home

study was willing to take custody of R.T., Jr. However, this family member clearly stated

that she was not interested in adopting R.T., Jr. and was only interested in keeping him

on a temporary basis until appellant and R.T. could get their acts together.
Stark County App. Case No. 2012 CA 00220                                               15


       {¶53} Based on the foregoing, we find that the trial court did not err in finding

that R.T., Jr. could not or should not be placed with appellant within a reasonable period

of time and that the grant of permanent custody to the agency was in his best interest.

       {¶54} Appellant’s two assignments of error are, therefore, overruled.

       {¶55} Accordingly, the judgment of the Stark County Court of Common Pleas,

Family Court Division, is affirmed.

By: Delaney, P.J.

Farmer, J. and

Wise, J. concur




                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES




PAD/d0304
[Cite as In re R.T., 2013-Ohio-1139.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                              :
                                               :
          R.T., JR.                            :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 2012 CA 00220




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

judgment of the Stark County Court of Common Pleas, Family Court Division, is

affirmed. Costs assessed to Appellant.




                                                   _________________________________


                                                   _________________________________


                                                   _________________________________

                                                                JUDGES
