[Cite as In re N.G., 2013-Ohio-192.]


                                           COURT OF APPEALS
                                        FAIRFIELD COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT

                                                           JUDGES:
IN RE: N.G.                                       :        Hon. Patricia A. Delaney, P.J.
                                                  :        Hon. William B. Hoffman, J.
                                                  :        Hon. Sheila G. Farmer, J.
                                                  :
                                                  :
                                                  :        Case No. 2012-CA-104
                                                  :
                                                  :
                                                  :        OPINION




CHARACTER OF PROCEEDING:                              Civil appeal from the Fairfield County Court
                                                      of Common Pleas Court, Juvenile Division,
                                                      Case No. 2008AB196


JUDGMENT:                                             Affirmed

DATE OF JUDGMENT ENTRY:                               January 16, 2013

APPEARANCES:

For: Stephanie Griffin                                For: Child Protective Services

WILLIAM J. HOLT                                       JOCELYN S. KELLY
Box 2252                                              Assistant County Prosecutor
2140 Granville Pike                                   239 West Main Street
Lancaster, OH 43130                                   Lancaster, OH 43130

For: N.G.                                             Guardian Ad Litem

JESSICA MONGOLD                                       MICHELLE EDGAR
123 South Broad Street                                414 East Main Street
Suite 206                                             Lancaster, OH 43130
Lancaster, OH 43130
                                                      For: J.G.
                                                      JAMES FIELDS
                                                      117 West Main Street, Ste. 206
                                                      Lancaster, OH 43130
[Cite as In re N.G., 2013-Ohio-192.]


Hoffman, J.

        {¶1}     Mother, Stephanie Griffin [“Mother”] appeals the August 20, 2012,

judgment entry of the Fairfield County Court of Common Pleas, Juvenile Court Division,

which terminated her parental rights with respect to her minor children C.G.,1 P.G.2 and

N.G. and granted permanent custody of the children to appellee, Fairfield County Child

Protective Services (hereinafter “FCCPS”) .

                                          I. PROCEDURAL HISTORY

        {¶2}     C.G. was born November 2, 1995. P.G. was born December 18, 1998.

N.G. was born October 26, 2001.

        {¶3}     On June 12, 2008, C.G., P.G. and N.G. were placed in the temporary

shelter custody of FCCPS. On September 30, 2008, C.G., P.G. and N.G. were found to

be dependent minors and were placed in the temporary custody of FCCPS. On October

20, 2009, the temporary custody of C.G., P.G. and N.G. with FCCPS was terminated,

they were returned to the custody of Mother, and they were placed under court ordered

protective supervision with FCCPS.

        {¶4}     On February 3, 2011, C.G., P.G. and N.G. were again placed in the

temporary custody of FCCPS. On May 31, 2011, the temporary custody of C.G., P.G.

and N.G. with FCCPS was terminated, they were returned to the custody of Mother, and

they were placed under court ordered protective supervision with FCCPS.




        1
         C .G. has filed a separate appeal from the decision in Fairfield County Court of Common Pleas,
Juvenile Court Division, Case No. 2008 AB 194 See, In re P.G., 5th District No. 2012 CA 00102.
        2
          P.G. has filed a separate appeal from the decision in Fairfield County Court of Common Pleas,
Juvenile Court Division, Case No. 2008 AB 195 See, In re P.G., 5th District No. 2012 CA 00103.
Fairfield County, Case No. 2012-CA-104                                                3


       {¶5}   On September 22, 2011, C.G., P.G. and N.G. were again placed in the

temporary shelter custody of FCCPS. On March 22, 2012, C.G., P.G. and N.G. were

placed in the temporary custody of FCCPS.

       {¶6}   On May 8, 2012, the motion for permanent custody was filed. The trial on

the motion for permanent custody was held on May 29, 2012. The Court heard

testimony from April Wagner, the caseworker for FCCPS, and from Mother. The Court

noted that on May 29, 2012, Michelle Edgar filed the report of the Guardian Ad Litem,

which supported the Agency's motion for permanent custody. The Court further noted

pursuant to Ohio Revised Code Section 2151.414(C), the Guardian Ad Litem report was

timely filed and no evidence was presented that either parent or child was prejudiced by

the report being filed on May 29, 2012. At the conclusion of all of the testimony, the

Court ordered the parties to provide proposed findings of fact and conclusions of law to

the Court.

                               A. The Permanent Custody Trial

       {¶7}   Mother attended the trial on the motion for permanent custody held on

May 29, 2012. Evidence was presented Mother has known since September 2011, that

absent substantial compliance by Mother with the case plan, the direction of FCCPS

would be towards permanent custody for C.G., P.G. and N.G.

       {¶8}   FCCPS had concerns regarding Mother’s issues with substance abuse,

employment, and stable housing. FCCPS required Mother to submit to random screens

for drugs and/or alcohol, successfully complete treatment for drug and/or alcohol issues

at the Recovery Center, obtain and maintain employment, obtain and maintain stable

housing, and visit with her children.
Fairfield County, Case No. 2012-CA-104                                               4


                                     1. Drug screening

      {¶9}   In September 2011, Mother missed nine (9) screens for drugs and/or

alcohol. Due to lack of compliance, she was suspended from the screening program

from September 28, 2011 to October 12, 2011.

      {¶10} On October 17, 2011, Mother re-engaged with the screening program and

provided a negative screen for drugs and/or alcohol. On October 19, 2011, she again

provided a negative screen for drugs and/or alcohol. However, Mother then missed

requested screens on October 25, 2011, October 26, 2011, October 27, 2011, October

28, 2011, and October 31, 2011. Accordingly, Mother was again suspended from the

screening program due to lack of compliance.

      {¶11} Mother provided one screen on November 7, 2011. From November 7,

2011 to February 15, 2012, Mother provided no screens for drugs and/or alcohol, and

was again suspended from the screening program due to lack of compliance.

      {¶12} On February 16, 2012, Mother tested positive for marijuana and

suboxone. Although she had a valid prescription for suboxone in the past, there was no

evidence presented Mother had a valid prescription for suboxone or any prescription for

marijuana on or about February 16, 2012.

                                         2. Treatment

      {¶13} Prior to September 2011, Mother was consistently attending treatment

appointments at the Recovery Center and was attending 12-step meetings at least three

times per week.
Fairfield County, Case No. 2012-CA-104                                                   5


      {¶14} From September 2011 to April 2012, Mother did not attend any treatment

appointments at the Recovery Center and admitted to using illegal substances

throughout that time.

      {¶15} From October 2011 to February 2012, Mother admitted she did not attend

any 12-step meetings.

      {¶16} Mother did attend an emergency appointment at the Recovery Center on

May 17, 2011, but is required to attend three (3) community resource group sessions

before she can be readmitted into a treatment program.

                                           3. Housing

      {¶17} Prior to September 2011, Mother did have housing through a housing

voucher obtained through a community services program. Mother admitted at trial she

has not had housing that would be appropriate for her children since January 2012.

Mother further admitted she is staying with a friend, but this location is not large enough

to accommodate her children. Mother also conceded she is "bouncing around" and she

"stays where she can."

                                        4. Employment

      {¶18} Mother had employment until September 2011. Mother claimed at trial she

lost her job in September 2011, due to her incarceration in the Fairfield County jail.

Mother remained unemployed through February 2012, when she worked for

approximately three weeks through a temporary agency. From early March 2012, until

the permanent custody trial on May 29, 2012, Mother has been unemployed.
Fairfield County, Case No. 2012-CA-104                                                   6


                                      5. Mental Health

      {¶19} During the permanent custody trial, Mother emphasized her need for a

psychological evaluation. It was argued that after September 2011, FCCPS should have

facilitated a psychological evaluation for Mother. Throughout the history of this case,

there have been no recommendations or referrals for a psychological evaluation by any

mental health professional providing services to Mother. No motions were made by any

party during the course of this case asking the trial court to order a psychological

evaluation.

                               B. The Trial Court’s Decision

      {¶20} The trial court, upon reviewing the evidence, made the following findings,

              Since   September,    2011,    [Mother]    has   not   consistently

      demonstrated that she is clean and sober. [Mother] has not consistently

      submitted to screens for drugs and/or alcohol, as outlined in the case plan

      and ordered by the Court.

                                         ***

              From February 21, 2012 to April 10, 2012, [Mother] missed fifteen

      (15) requested screens for drugs and/or alcohol. On April 11, 2012, April

      12, 2012, April 17, 2012, and April 20, 2012, [Mother] tested positive for

      marihuana, [Sic.] suboxone, and benzodiazepine. There is no evidence

      that [Mother] had a valid prescription for marihuana, [Sic.] benzodiazepine

      or suboxone on or about April, 2012. [Mother] has not submitted to a

      screen for drugs and/or alcohol since April 20, 2012.

                                         ***
Fairfield County, Case No. 2012-CA-104                                              7


            Fairfield County Child Protective Services still has a legitimate

      issue concerning [Mother’s] ability to remain clean and sober. Not only has

      her screening history demonstrated that she is not remaining clean and

      sober, but [Mother] has admitted using marihuana[Sic.] and suboxone as

      recently as May 28, 2012 (the day before the permanent custody trial) and

      heroin (her drug of choice) as recently as the week prior to May 29, 2012.

      On May 29, 2012, [Mother] admitted that she does not have a valid

      prescription for suboxone. On May 29, 2012, [Mother] that it would not

      appropriate for her to be caring for her children while she is under the

      influence of the drugs she has consumed.

                                          ***

            [Mother] had the knowledge, skills and tools of what do to upon a

      relapse, but chose not to utilize any of her education and experience.

      [Mother] had all the resources in place to assist her upon a relapse, but

      chose not to utilize any of her service providers upon her relapse. Due to

      her substance abuse issues, [Mother] is in no position to properly care for

      [C.G., N.G. and N.G.] at the present time or in the foreseeable future.

                                          ***

            [Mother] admits that she has not had housing that would be

      appropriate for her children since January, 2012. [Mother] admits that she

      is staying with a friend, and that this location is not large enough to

      accommodate her children. [Mother] admits that she is "bouncing around"

      and that she "stays where she can."
Fairfield County, Case No. 2012-CA-104                                                  8


                                           ***

             From early March, 2012 [sic.] until the permanent custody trial on

      May 29, 2012, [Mother] has been unemployed. Throughout the history of

      this case, [Mother] has had occasional employment and has been unable

      to maintain the employment for more than a few months at a time.

             [Mother] also has a- history of not being honest with Fairfield

      County Child Protective Services about her relationships with men. These

      relationships with men impact her ability to care for her children and could

      potentially place the children at risk of harm. This information is relevant to

      the Court.

             During the permanent custody trial, [Mother] emphasized her

      alleged need for a psychological evaluation. It was argued that after

      September, 2011, Fairfield County Child Protective Services should have

      facilitated a psychological evaluation for [Mother]. The status of [Mother’s]

      mental health is unknown, but the record is clear that throughout the

      history of this case, there have been no recommendations or referrals for

      a psychological evaluation by any mental health professional providing

      services to [Mother]. The record is equally clear that no motions have

      been made by any party, including [Mother], for the Court to order a

      psychological evaluation. After September, 2011, even if Fairfield County

      Child Protective Services had believed that a psychological evaluation

      would have benefitted [Mother], her lack of compliance with other services

      and her lack of contact with the Agency would have made it unlikely that a
Fairfield County, Case No. 2012-CA-104                                               9


      limited resource such as a psychological evaluation would have been

      scheduled for her. The lack of a psychological evaluation does not impact

      the finding that Fairfield County Child Protective Services developed a

      reasonable case plan and exerted diligent efforts to assist [Mother] to

      remedy the problems that caused C.G., P.G. and N.G. to be removed from

      the home.

               The record indicates that [Mother] was actively engaged in mental

      health treatment, three (3) times per week, until approximately September,

      2011. [Mother] states that the lack of insurance is the reason she has not

      engaged in mental health services since September, 2011, however there

      is nothing in the record to indicate that she attempted to obtain mental

      health services from any other providers. [Mother’s] lack of compliance

      with any aspect of her case plan since September, 2011 is relevant to the

      Court.

               [Mother] has not had a visit with C.G., P.G. and N.G. since October

      26, 2011. From October, 2011 to February, 2012, [Mother] has had very

      little contact with Fairfield County Child Protective Services. This

      information is relevant to the Court.

      {¶21} On March 23, 2012, the trial court filed Findings of Fact and Judgment

Entries in each child’s case, which terminated Mother’s parental rights with respect to

her minor children and granted permanent custody of the children to FCCPS.

      {¶22} It is from these entries Mother has appealed.
Fairfield County, Case No. 2012-CA-104                                                   10


                                  II. ASSIGNMENT OF ERROR

       {¶23} On appeal, Mother asserts the following assignment of error,

       {¶24} “IT IS NOT IN THE BEST INTEREST OF A CHILD FOR CHILD

PROTECTIVE SERVICES TO BE GRANTED PERMANENT CUSTODY IF CHILD

PROTECTIVE        SERVICES        HAS    FAILED    TO    HAVE      A   PSYCHOLOGICAL

EXAMINATION DONE OF A PARENT WHO IS BONDED TO THE CHILD AND HAS

EXHIBITED THE ABILITY TO PARENT THE CHILD.”

                                        A. Burden Of Proof

       {¶25} “[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.

       {¶26} 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
Fairfield County, Case No. 2012-CA-104                                                   11

does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-

104, 495 N.E.2d 23(1986).

                                     B. Standard of Review

       {¶27} 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.

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.

       {¶28} In Cross, the Supreme Court further cautioned,

              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,
Fairfield County, Case No. 2012-CA-104                                               12


      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).

                     III. Requirements for Permanent Custody Awards

      {¶29} 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.

      {¶30} 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, 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
Fairfield County, Case No. 2012-CA-104                                                  13


       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.

       {¶31} 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.
Fairfield County, Case No. 2012-CA-104                                                 14


        A. Parental Placement within a Reasonable Time- R.C. 2151.414(B) (1) (a).

       {¶32} 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 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. No. 98 CA 6, 1998 WL 655414(Sept. 21, 1998); In

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

       {¶33} 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

       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
Fairfield County, Case No. 2012-CA-104                                                15


      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.

             (2) Chronic mental illness, chronic emotional illness, mental

      retardation, physical disability, or chemical dependency of the parent that

      is so severe that it makes the parent unable to provide an adequate

      permanent home for the child at the present time and, as anticipated,

      within one year after the court holds the hearing pursuant to division (A) of

      this section or for the purposes of division (A)(4) of section 2151.353 of

      the Revised Code;
Fairfield County, Case No. 2012-CA-104                                              16


             (3) The parent committed any abuse as described in section

      2151.031 of the Revised Code against the child, caused the child to suffer

      any neglect as described in section 2151.03 of the Revised Code, or

      allowed the child to suffer any neglect as described in section 2151.03 of

      the Revised Code between the date that the original complaint alleging

      abuse or neglect was filed and the date of the filing of the motion for

      permanent custody;

             (4) The parent has demonstrated a lack of commitment toward the

      child by failing to regularly support, visit, or communicate with the child

      when able to do so, or by other actions showing an unwillingness to

      provide an adequate permanent home for the child;

             (5) The parent is incarcerated for an offense committed against the

      child or a sibling of the child;

             (6) The parent has been convicted of or pleaded guilty to an

      offense under division (A) or (C) of section 2919.22 or under section

      2903.16, 2903.21, 2903.34, 2905.01, 2905.02, 2905.03, 2905.04,

      2905.052907.07, 2907.08, 2907.09, 2907.12, 2907.21,2907.22, 2907.23,

      2907.252907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2911.01,

      2911.02, 2911.11, 2911.12,2919.12, 2919.24, 2919.25, 2923.12, 2923.13,

      2923.161, 2925.02, or 3716.11 of the Revised Code and the child or a

      sibling of the child was a victim of the offense or the parent has been

      convicted of or pleaded guilty to an offense under section 2903.04 of the

      Revised Code, a sibling of the child was the victim of the offense, and the
Fairfield County, Case No. 2012-CA-104                                                17


      parent who committed the offense poses an ongoing danger to the child or

      a sibling of the child.

             (7) The parent has been convicted of or pleaded guilty to one of the

      following:

                                          ***

             (8) The parent has repeatedly withheld medical treatment or food

      from the child when the parent has the means to provide the treatment or

      food, and, in the case of withheld medical treatment, the parent withheld it

      for a purpose other than to treat the physical or mental illness or defect of

      the child by spiritual means through prayer alone in accordance with the

      tenets of a recognized religious body.

             (9) The parent has placed the child at substantial risk of harm two

      or more times due to alcohol or drug abuse and has rejected treatment

      two or more times or refused to participate in further treatment two or

      more times after a case plan issued pursuant to section 2151.412 of the

      Revised Code requiring treatment of the parent was journalized as part of

      a dispositional order issued with respect to the child or an order was

      issued by any other court requiring treatment of the parent.

             (10) The parent has abandoned the child.

             (11) The parent has had parental rights involuntarily terminated with

      respect to a sibling of the child pursuant to this section or section or

      2151.415 of the Revised Code, or under an existing or former law of this

      state, any other state, or the United States that is substantially equivalent
Fairfield County, Case No. 2012-CA-104                                                 18


      to those sections, and the parent has failed to provide clear and

      convincing evidence to prove that, notwithstanding the prior termination,

      the parent can provide a legally secure permanent placement and

      adequate care for the health, welfare, and safety of the child.

             (12) The parent is incarcerated at the time of the filing of the motion

      for permanent custody or the dispositional hearing of the child and will not

      be available to care for the child for at least eighteen months after the

      filing of the motion for permanent custody or the dispositional hearing.

             (13) The parent is repeatedly incarcerated, and the repeated

      incarceration prevents the parent from providing care for the child.

             (14) The parent for any reason is unwilling to provide food, clothing,

      shelter, and other basic necessities for the child or to prevent the child

      from suffering physical, emotional, or sexual abuse or physical, emotional,

      or mental neglect.

             (15) The parent has committed abuse as described in section

      2151.031 of the Revised Code against the child or caused or allowed the

      child to suffer neglect as described in section 2151.03 of the Revised

      Code, and the court determines that the seriousness, nature, or likelihood

      of recurrence of the abuse or neglect makes the child's placement with the

      child's parent a threat to the child's safety.

             (16) Any other factor the court considers relevant.
Fairfield County, Case No. 2012-CA-104                                                  19


       {¶34} In this case, the trial court made its permanent custody findings pursuant

to R.C. 2151.414(E)(1), (4) and /or (16). The trial court further found that N.G. could not

be placed with Mother within a reasonable time or should not be placed with her.

       {¶35} As set forth above, we find 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.

       {¶36} N.G. loves her Mother and her Mother loves her and has developed a

bond. The evidence demonstrated the successful efforts Mother had made on two

occasions in the past to regain custody of N.G. On that point, the evidence

demonstrates any improvement Mother has made in her life is tentative and, perhaps,

temporary, and she is at risk of relapse. The trial court found, regardless of Mother’s

compliance with aspects of her case plan, she was still not able to be a successful

parent to N.G.

       {¶37} In the case of In re: Summerfield, 5th Dist. 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.

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

Court properly found N.G. 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 child's removal.
Fairfield County, Case No. 2012-CA-104                                                     20


                                B. The Best Interest of the Child

       {¶39} 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.

       {¶40} 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.

       {¶41} The trial court made findings of fact regarding the children’s best interest.

It is well-established “[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
Fairfield County, Case No. 2012-CA-104                                                  21

Children, 5th Dist. 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).

      {¶42} 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

v. Jeffries, 5th Dist. 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).

      {¶43} In the present case, the trial court's decision indicates it considered the

best interest factors. Upon review of the record, it is clear the record supports the trial

court's finding granting the motion for permanent custody is in N.G.’s best interest. The

trial court concluded the child's need for legally secure placement could not be achieved

without awarding permanent custody to FCCPS.

      {¶44} The record makes clear appellant failed to complete the majority of the

case plan provided by FCCPS and failed to meet even the basic needs of N.G.

      {¶45} The trial court found Mother had not "consistently demonstrated that she

was clean and sober" and her substance abuse issues meant it was "no longer safe for

[N.G.] to be in her care." Mother failed to maintain stable housing and admitted she had

not had housing appropriate for the children since January 2012. Mother failed to

maintain stable employment and only maintained occasional employment for a few

months at a time.
Fairfield County, Case No. 2012-CA-104                                                   22


       {¶46} Concerning her mental health contentions, the trial court found,

                After September, 2011, even if Fairfield County Child Protective

       Services had believed that a psychological evaluation would have

       benefitted [Mother’s], her lack of compliance with other services and her

       lack of contact with the Agency would have made it unlikely that a limited

       resource such as a psychological evaluation would have been scheduled

       for her. The lack of a psychological evaluation does not impact the finding

       that Fairfield County Child Protective Services developed a reasonable

       case plan and exerted diligent efforts to assist [Mother] to remedy the

       problems....

                The record indicates that [Mother] was actively engaged in mental

       health treatment, three (3) times per week, until approximately September,

       2011. [Mother] states that the lack of insurance is the reason she has not

       engaged in mental health services since September, 2011, however there

       is nothing in the record to indicate that she attempted to obtain mental

       health services from any other providers. [Mother’s] lack of compliance

       with any aspect of her case plan since September, 2011 is relevant to the

       Court.

       {¶47} The record does not demonstrate if Mother had been offered different

case plan services, the result would have been different. As the caseworker stated,

"because of the lack of consistency on [Mother's] end, it would be difficult to * * * figure

out what needs she has."
Fairfield County, Case No. 2012-CA-104                                               23


      {¶48} Although several relatives have come forward, at the time of trial no other

family members had been approved for placement.

                                        IV. Conclusion

      {¶49} For these reasons, we find the trial court’s determination that Mother had

failed to remedy the issues that caused the initial removal and therefore N.G. 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. We further find the trial court’s decision permanent custody to FCCPS

was in N.G.’s best interest was based upon competent, credible evidence and is not

against the manifest weight or sufficiency of the evidence.

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

overrule Mother’s sole assignments of error, and affirm the decision of the Fairfield

County Court of Common Pleas, Juvenile Court Division.

By Hoffman, J.,

Delaney, P.J., and

Farmer, J. concur


                                             s/ William B. Hoffman ________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Patricia A. Delaney ________________
                                             HON. PATRICIA A. DELANEY


                                             s/ Sheila G. Farmer __________________
                                             HON. SHEILA G. FARMER
[Cite as In re N.G., 2013-Ohio-192.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                       FIFTH APPELLATE DISTRICT


IN RE: N.G.                                       :
                                                  :
                                                  :
                                                  :
                                                  :
                                                  :        JUDGMENT ENTRY
                                                  :
                                                  :
                                                  :
                                                  :        CASE NO. 2012-CA-104


             For the reasons stated in our accompanying Opinion, we affirm the decision

of the Fairfield County Court of Common Pleas, Juvenile Court Division.              Costs to

Appellant.




                                                      s/ William B. Hoffman ________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      s/ Patricia A. Delaney ________________
                                                      HON. PATRICIA A. DELANEY


                                                      s/ Sheila G. Farmer __________________
                                                      HON. SHEILA G. FARMER
