[Cite as In re Q.G., 2016-Ohio-1180.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
IN RE: Q.G.                                   :       Hon. Sheila G. Farmer, P.J.
                                              :       Hon. W. Scott Gwin, J.
                                              :       Hon. William B. Hoffman, J.
                                              :
                                              :
                                              :       Case No. 2015CA00219
                                              :
                                              :
                                              :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Stark County Court of
                                                  Common Pleas, FamilyCourt Division, Case
                                                  No. 2015JCV00076

JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           March 21, 2016



APPEARANCES:



For SCDJFS                                        For Appellant

CHRISTINA EOFF                                    AARON KOVALCHIK
300 Market Avenue N.                              116 Cleveland Avenue N.W.
Canton, OH 44702                                  Suite 808
                                                  Canton, OH 44702
Stark County, Case No. 2015CA00219                                                         2

Gwin, J.

       {¶1}   Appellant-father Michael Hogan [“Father”] appeals the November 17, 2015

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

which terminated his parental rights with respect to his minor child, Q.G. (b. Jan. 15, 2015)

and granted permanent custody of the child to appellee, Stark County Department of Jobs

and Family Services (hereinafter “SCJFS”).

                                  Facts and Procedural History

       {¶2}   On January 27, 2015, the SCJFS filed a Complaint alleging abuse, neglect

and dependency of Q.R. and seeking temporary custody of the child. At an emergency

shelter care hearing on January 27, 2015, Mother and Father appeared.                  After

consultation with their attorneys, both parents stipulated to a finding of probable cause.

The Court found probable cause and awarded temporary custody to the SCJFS.

       {¶3}   On April 3, 2015, the trial court found Q.G. to be abused and placed her

into the temporary custody of SCJFS. The trial court approved and adopted the case

plan and found that SCJFS had made reasonable efforts to prevent the need for the

continued removal of the child from the home.

       {¶4}   On July 9, 2015, the trial court reviewed the case. The trial court approved

and adopted the case plan review packet, found that compelling reasons existed to

preclude filing for permanent custody, found that SCJFS had made reasonable efforts to

finalize the permanency planning in effect, and maintained status quo.

       {¶5}   On September 3, 2015, SCJFS filed a motion seeking permanent custody

of the child. SCJFS alleged, among other things, that the child could not be placed with

the parent within a reasonable amount of time, the parent had demonstrated a lack of
Stark County, Case No. 2015CA00219                                                       3


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

child when able to do so, the parent had parental rights terminated pursuant to R.C.

2151.353, 2151.414, or 2151.415 with respect to a sibling of the child, and permanent

custody was in the child's best interest.

                                    Permanent Custody Trial.

       {¶6}   On November 10, 2015, the trial court heard evidence on SCJFS's motion

seeking permanent custody of Q.G.

       {¶7}   Prior to the start of the hearing, counsel for Father made an oral motion

to continue the hearing on the ground that he had no contact with Father and needed

additional time to prepare for the permanent custody hearing. The trial court denied the

motion to continue, as well as counsel’s subsequent motion to withdraw as Father’s

attorney.

       {¶8}   Caseworker Sue Snyder testified the agency became involve at Q.G.’s

birth due to a positive cocaine test of both Mother and child. She further testified that

Father had involuntarily lost permanent custody of a different child in the past.

       {¶9}   Ms. Snyder testified the case plan services for both Mother and Father

included Parenting Evaluation at Northeast Ohio Behavioral Health (NEM), drug/alcohol

assessments at Quest and case management services to include stable housing, stable

employment and mental health treatment.            Father was to participate in anger

management and sex offender treatment with Melymbrosia. However, Father had not

engaged in almost any case plan service. Father had failed to provide any support or

have any communication with Q.G. for multiple months. Ms. Snyder further testified that

Father was incarcerated and not due to be released until July of 2016.
Stark County, Case No. 2015CA00219                                                       4


       {¶10} The agency did conduct a home study of the paternal grandmother.

However, she was denied placement due to her past history.

       {¶11} Father testified that his warrant held him back from completing case plan

services. Father further testified that he wanted to have a relative gain custody of his

child instead of permanent custody and that he wanted the court to grant an extension.

Father testified that he would be able to engage in services during the time that he is

incarcerated.

       {¶12} Upon conclusion of Father's testimony, the Permanent Custody hearing

proceeded to the best interest portion of the trial.

       {¶13} Sue Snyder was recalled by SCJFS. Snyder testified that Q.G. has been

placed in a foster home with a half sibling since her birth and she is meeting all of her

milestones. Ms. Snyder testified that Father never gave her any names of relatives when

she met with him at the jail prior to the permanent custody hearing. However, upon cross-

examination she admitted that she did not ask him for names of relatives. Ms. Snyder

testified that Father's interactions with Q.G. were normal.

       {¶14} Father took the stand during the best interest phase and testified that no

one ever approached him in regards to relative placement. Father once again testified

that he would like another opportunity to gain custody of his child. Additionally, Father

testified that he did not believe his grandmother was given a chance to obtain custody of

his daughter. Father's trial counsel then made an oral motion for an extension of temporary

custody.

       {¶15} On November 17, 2015, the trial court issued its findings of fact granting

permanent custody of Q.G. to SCJFS and terminating Father's parental rights. The trial
Stark County, Case No. 2015CA00219                                                       5


court found that Q.G. could not and should not be placed with Father at this time or within

a reasonable period of time, Father had demonstrated a lack of commitment toward his

child by failing to regularly support, visit, or communicate with her when able to do so,

Father had his parental rights involuntarily terminated as to a sibling of Q.G., and

permanent custody was in Q.G.'s best interest.

                                      Assignments of Error

      {¶16} Father raises four assignments of error,

      {¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT

GRANT APPELLANT'S MOTION FOR A CONTINUANCE.

      {¶18} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD

CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT THIS TIME OR

WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE.

      {¶19} “III. 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.

      {¶20} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT

GRANT APPELLANT'S MOTION FOR AN EXTENSION OF TEMPORARY CUSTODY.”

                                        Burden of Proof

      {¶21} “[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
Stark County, Case No. 2015CA00219                                                            6

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(sixth Dist. 1991).

Therefore, parents “must be afforded every procedural and substantive protection the law

allows.” Id.

       {¶22} 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 does not mean

clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d

23 (1986).

                                        Standard of Review

       {¶23} 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.
Stark County, Case No. 2015CA00219                                                         7

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.

      {¶24} 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,

      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).

                        Requirements for Permanent Custody Awards

      {¶25} 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
Stark County, Case No. 2015CA00219                                                          8


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.

       {¶26} 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

       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
Stark County, Case No. 2015CA00219                                                        9


       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.

       {¶27} 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.

            Father’s First Assignment of Error: Failure to Grant a Continuance.

       {¶28} In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), the

Court considered the matter under a due process analysis. It said:

              The matter of continuance is traditionally within the discretion of the

       trial judge, and it is not every denial of a request for more time that violates

       due process even if the party fails to offer evidence.... Contrariwise, a

       myopic insistence upon expeditiousness in the face of a justifiable request

       for delay can render the right to defend with counsel an empty formality....

       There are no mechanical tests for deciding when a denial of a continuance

       is so arbitrary as to violate due process. The answer must be found in the

       circumstances present in every case, particularly in the reasons presented

       to the trial judge at the time the request is denied....”

Id. at 589, 84 S.Ct. at 849.
Stark County, Case No. 2015CA00219                                                      10


      {¶29} Ordinarily a reviewing court analyzes a denial of a continuance in terms of

whether the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84

S.Ct. 841, 11 L.Ed.2d 921(1964).

      {¶30} In denying Father’s request for a continuance the trial court found,

             Father's counsel requested a continuance due to his inability to

      contact his client previously which he indicated had hampered his ability to

      thoroughly prepare for trial. While Father was incarcerated at the time of

      the trial, he was not incarcerated between the adjudication in April 2015 until

      September 9, 2015, however, he did not maintain contact with his attorney

      during that period. He told the Guardian that he was laying low because he

      knew he had a warrant outstanding. The agency worker went to the jail and

      met with Father on October 14, 2015. She discussed the case plan and the

      status of the case with Father. Even this did not cause Father to contact

      his counsel. The Court delayed the start of the trial to allow Attorney

      Coleridge time to consult with his client, but the request for a continuance

      was denied [.]

Findings of Fact and Conclusions of Law, filed Nov. 17, 2015 at 3.

      {¶31} Under the circumstances of this case, we find the trial court did not abuse

its discretion in denying Father’s motion for a continuance.

            Father’s Second Assignment of Error: 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
Stark County, Case No. 2015CA00219                                                        11


the parents. R.C. 2151.414(E). The statute also indicates that 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

       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
Stark County, Case No. 2015CA00219                                                    12


     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;

            (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
Stark County, Case No. 2015CA00219                                                      13


     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 parent who

     committed the offense poses an ongoing danger to the child or a sibling of

     the child.
Stark County, Case No. 2015CA00219                                                   14


            (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

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

     evidence to prove that, notwithstanding the prior termination, the parent can
Stark County, Case No. 2015CA00219                                                       15


      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.

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

R.C. 2151.414(E)(1), (4) and /or (11).

      {¶35} As set forth above, the trial court’s findings are based upon competent

credible evidence. The record includes the recommendation of the guardian ad litem for
Stark County, Case No. 2015CA00219                                                           16


the child, and the testimony of the witnesses at trial. The trial court was in the best position

to determine the credibility of the witnesses.

         {¶36} Father was incarcerated for much of the time during which the case plan

was in effect. He failed or refused to start or finish programs because of outstanding

warrants for his arrest. Father failed to complete a parenting evaluation, a drug and

alcohol assessment, and have stable employment and stable housing. Father further

failed to participate in anger management and sex offender treatment. Father’s last visit

with the child was June 2015. Father missed two scheduled visits. Father has not

provided support to his child. Finally, Father had lost custody of another child.

         {¶37} The evidence did not demonstrate that Father successfully completed any

aspect of his case plan. On that point, the evidence demonstrates that any improvement

that Father has made in his life is tentative and, perhaps, temporary, and that he is at risk

of relapse. The trial court found that Father was not able to be a successful parent to this

child.

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

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

properly found the child could not or should not be returned to Father within a reasonable

time. Despite offering numerous services, Father was unable to mitigate the concerns

that led to the child's removal.
Stark County, Case No. 2015CA00219                                                          17


            Father’s Third Assignment of Error: The Best Interest of the Child.

       {¶40} 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.

       {¶41} 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.

       {¶42} The trial court made findings of fact regarding the child’s best interest. 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
Stark County, Case No. 2015CA00219                                                        18

Children, 5th Dist. Stark No. 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).

       {¶43} 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. Stark 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).

       {¶44} In the present case, the trial court’s decision indicates it considered the best

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

court’s finding that granting the motion for permanent custody is in Q.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 SCJFS. In the case at bar, in addition

to the testimony, the trial court considered the report of the GAL.

       {¶45} The record makes clear that Father failed to complete the majority of the

case plan provided by SCJFS and failed to meet even the basic needs of the child. As

set forth in our Facts and Procedural History, supra, Father failed to remedy the problems

that initially caused the removal of the child from the home. Father was not consistent

with his case plan. Very little if anything, has changed with respect to Father since this

case began. He does not understand the problems with his behavior, or his lifestyle.

Father displays poor judgment and poor coping skills.         Father has been unable to
Stark County, Case No. 2015CA00219                                                                19


demonstrate any meaningful change in his behavior in spite of losing custody of another

child.

         {¶46} During the best interest portion of the trial, Ms. Snyder testified that Q.G. was very

well taken care of in her foster placement. The child and her foster family were very bonded. The

foster home was the only home that the child knew, given her removal from Father and her mother

when she was only one day old. Ms. Snyder testified that the foster family was open to

allowing both parents to maintain contact with Q.G. The foster parents took care of Q.G.'s

mother when she was a minor child, and also adopted Q.G.'s sibling, who was also living in the

same home. Q.G. and her sibling have a very close relationship. The foster family wants to

adopt Q.G. Ms. Snyder also testified that permanent custody was in Q.G.'s best interest

and that the child would suffer no ill effects if Father's parental rights were terminated.

         {¶47} Jaclyn Palumbo, Guardian ad Litem for the child, also testified during the

best interest portion of the trial. Ms. Palumbo opined that permanent custody was in

Q.G.'s best interest because she was "in a good, safe place.” Ms. Palumbo also testified

that "(she) (was) guardian to many other children and (she) wish(ed) they all had as good

of (sic) home to be placed in and potentially be adopted by."

              Father’s Fourth Assignment of Error: Failure to Grant Extension of

                                       Temporary Custody

         {¶48} Pursuant to Ohio Revised Code Section 2151.415(D), the court may

extend the temporary custody order of the child for a period of up to six months, if it

determines at the hearing, by clear and convincing evidence, that the extension is in the

best interest of the child, there has been significant progress on the case plan of the

child, and there is reasonable cause to believe that the child will be reunified with one
Stark County, Case No. 2015CA00219                                                       20


of the parents or otherwise permanently placed within the period of extension.

       {¶49} The record makes clear that Father failed to complete any of the case plan

provided by SCJFS and failed to meet even the needs of the child. Father failed to

maintain stable housing. Father failed to maintain stable employment. Father failed to

maintain his sobriety, and further, was incarcerated for much of the time. The record does

not demonstrate that if he had been offered different case plan services, or additional time

to complete services the result would have been different. Father has failed to

demonstrate an abuse of discretion by the trial court. In re: T.G., 12th Dist. Warren Nos.

CA2014-07-101, CA2014-08-106, 2014-Ohio-5569, ¶28.

                                           Conclusion

       {¶50} For these reasons, we find that the trial court’s determination that Father

had failed to remedy the issues that caused the initial removal and therefore the child

could not be placed with him within a reasonable time or should not be placed with him

was based upon competent credible evidence and is not against the manifest weight or

sufficiency of the evidence. We further find that the trial court’s decision that permanent

custody to SCJFS was in the child's best interest was based upon competent, credible

evidence and is not against the manifest weight or sufficiency of the evidence.

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

overrule Father’s four assignments of error, and affirm the decision of the Stark County

Court of Common Pleas, Family Court Division.

       {¶52} Father’s first, second, third and fourth assignments of error are overruled.
Stark County, Case No. 2015CA00219                                            21


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

Division is affirmed.



By Gwin, J.,

Farmer, P.J., and

Hoffman, J., concur
