[Cite as In re H.F., 2014-Ohio-3899.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: : Hon. William B. Hoffman, P.J.
H. F. : Hon. W. Scott Gwin, J.
A. W. : Hon. Sheila G. Farmer, J.
:
:
: Case No. 2014CA00093
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case Nos.
2012JCV01093, 2013JCV00779
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 8, 2014
APPEARANCES:
For Appellee For Appellant
QUAY COMPTON RODNEY A. BACA
SCJFS SCHNARS, BACA & INFANTINO, LLC
221 Third Street S.E. 610 Market Avenue North
Canton, OH 44702 Canton, OH 44702
[Cite as In re H.F., 2014-Ohio-3899.]
Gwin, P.J.
{¶1} Appellant-mother, Arionna Freeman [“Mother”] appeals the May 2, 2014,
judgment entry of the Stark County Court of Common Pleas, Juvenile Court Division,
which terminated her parental rights with respect to her minor children H.F. and A.W.
and granted permanent custody of the children to appellee, Stark County Department of
Jobs and Family Services (“SCJFS”).
Facts and Procedural History
{¶2} On November 6, 2012, the SCJFS filed a complaint in 2012 JCV 01093,
seeking temporary custody of H.F., born August 7, 2012. The complaint alleged the
child to be a dependent and/or neglected, and sought temporary custody. After a shelter
care hearing on November 7, 2012, the court ordered H.F. into the emergency
temporary custody of the SCJFS.
{¶3} On January 10, 2013, H.F. was found dependent and placed into the
temporary custody of the SCJFS. The court further found that the agency had made
reasonable efforts to prevent the need for removal of the child from the home and
approved and adopted the case plan.
{¶4} On May 3, 2013, the trial court reviewed this case. The case plan review
packet was approved and adopted and the court made reasonable efforts and
compelling reasons findings. The status quo was maintained.
{¶5} On August 3, 2013, Mother gave birth to A. W. On August 7, 2013, SCJFS
filed a complaint in 2013 JCV 00779, seeking temporary custody of A.W. The complaint
alleged A.W. to be a dependent and/or neglected child and requested temporary
Stark County, Case No. 2014CA00093 3
custody. After a shelter care hearing on August 7, 2013, the court ordered A.W. into the
emergency temporary custody of the SCJFS.
{¶6} On October 2, 2013, A.W. was found to be a dependent child and was
placed into the temporary custody of the SCJFS. The court further found that the
agency had made reasonable efforts to prevent the need for removal of the child from
the home and approved and adopted the case plan. Also on October 2, 2013, the court
reviewed H.F.’s case. The case plan review packet was approved and adopted and the
court made reasonable efforts and compelling reasons findings. The status quo was
maintained.
{¶7} On January 30, 2014, the court reviewed A.W.’s case. The case plan
review packet was approved and adopted and the court made reasonable efforts
findings but specifically did not find compelling reasons existed to preclude a permanent
custody filing. The status quo was maintained.
{¶8} On March 5, 2014, the SCJFS filed a motion requesting permanent
custody of both children.
{¶9} On March 28, 2014, the trial court again reviewed H.F.’s case. The court
again approved and adopted the case plan review packet, found that the SCJFS had
made reasonable efforts to finalize permanency planning and maintained the status quo
pending hearing on the permanent custody motion. The court failed to find compelling
reasons existed to preclude a permanent custody finding.
{¶10} On April 14, 2014, both parents filed motions for Extension of Temporary
Custody of the children.
Stark County, Case No. 2014CA00093 4
{¶11} The following evidence was presented during the evidentiary hearing upon
all the pending motions conducted by the trial court on April 24, 2014.
{¶12} SCJFS became involved with the family after H.F.'s birth when Mother
tested positive for marijuana. There were additional concerns with domestic violence
between the parents. SCJFS attempted to work voluntarily with the parents through the
Alternative Response Unit. However, because the parents were failing to follow through
with services the SCJFS filed its complaint.
{¶13} The initial case plan was for Mother to obtain and maintain stable housing,
complete a Quest assessment, submit to urinalysis or drug testing, establish paternity,
complete assessments at Northeast Ohio Behavioral Health, and attend Goodwill
Parenting. After court involvement, Mother was pregnant with her second child.
{¶14} A.W. was found to be a dependent child on October 2, 2013 and placed
into the temporary custody of the agency. The case plan developed in H.F.’s case was
also adopted and made an order of the court in A.W.’s case.
{¶15} During the pendency of this case, Mother had completed her parenting
evaluation at Northeast Ohio Behavioral Health and attended Goodwill Parenting. The
caseworker testified that Mother's parenting skills were not a concern, as she was able
to care for her children.
{¶16} Mother had completed her Quest assessment and they did not
recommend any treatment. Mother cooperated with establishing paternity as ordered in
her case plan. Mother engaged in Goodwill Parenting in a timely manner and received a
certificate of participation. Mother visited beyond what the minimal supervised visitation
Stark County, Case No. 2014CA00093 5
was allowed by the Agency. Mother's visitation was always consistent. Mother and
children were bonded.
{¶17} Dr. Aimee Thomas from Northeast Ohio Behavioral Health testified that
Mother had an average IQ. She further testified that Mother had symptoms of post-
traumatic stress disorder and also meets the criteria for major depressive disorder. Dr.
Thomas diagnosed her with cannabis dependence even though after Quest evaluations
there was no treatment recommended. In spite of the fact the caseworker had testified
that Mother appears to be bonded with her children, Dr. Thomas concluded that Mother
would have attachment difficulties that could likely translate into a lack of ability to bond
with her own children. Dr. Thomas testified that Mother was attending Goodwill
Parenting and she appeared to be learning proper parenting methods. Mother reported
that she loved going to Goodwill Parenting and she felt it was a way to improve herself.
{¶18} Dr. Thomas further testified that she had concerns that Mother was high
risk to reconcile with the father of the children and that she not regain custody unless he
also completed case plan services. Dr. Thomas further recommended that, in the event
Mother regains custody, she should also engage in home-based services through
Goodwill. Dr. Thomas opined that if Mother failed to follow all recommendations, her
prognosis would be "poor.”
{¶19} Ongoing family service worker Stacey Senff testified that Mother started
working with a mentor by the name of Michelle Mungo, who had a very positive effect
upon Mother. Ms. Senff testified that the initial concerns at the time the case was
opened were not remedied, that being those of drug abuse and domestic violence.
However, during cross examination, Ms. Senff testified that Mother has maintained
Stark County, Case No. 2014CA00093 6
housing, completed all requirements of Quest, she has participated in random tests that
have come back negative, completed her Northeast Ohio Behavioral Health parenting
evaluation, completed Goodwill Parenting, and completed the Intensive Parent Child
Intervention Program [“IPCI”]. Furthermore, Mother completed the referral at Coleman.
{¶20} Jennifer Fire, who is employed by Goodwill Industries, testified that Mother
did very well in the curriculum-based part of the program and completed the majority of
her program goals; she increased knowledge on the pretest post-test, was attentive in
class, and did well during her visits. Ms. Fire testified Mother was attending to her
daughters’ needs and completed 14 out of 15 of her program goals while attending
Goodwill Parenting. She further testified Mother retained and comprehended the
information presented and obtained a good score on her post-test and it appeared that
she was able to understand the concepts in the program. Ms. Fire testified the visits
between Mother and her child went very well and she was appropriate and attended to
her children's needs, bringing the necessary supplies during these visits. Mother’s
interaction with her children was appropriate and they appeared to be bonded
{¶21} However, Ms. Fire testified that based on Mother's own statements, Ms.
Fire continued to have concerns with Mother's ability to choose healthy relationships
affecting both herself and her children. Ms. Fire found this especially concerning as
Goodwill parenting classes do cover the effects of domestic violence on children and
families. Of further concern was Mother’s repeated statements that she "was done, she
wasn't going back to him, she wasn't going to do that", statements that simply don't ring
true in light of Mother's actions. Ultimately, Ms. Fire testified that Mother did complete
Stark County, Case No. 2014CA00093 7
the Goodwill program but "it was not successfully" as "she did not make the lifestyle
changes that were necessary...”
{¶22} After completion of Goodwill, Mother did enroll and engage in the IPCI
program.
{¶23} Mother did not complete her counseling, anger management or domestic
violence counseling requirements. Caseworker Stacy Senff testified that she only
attended services at Freespace a "couple of times.” She testified that Mother had not
consistently attended mental health counseling at Coleman.
{¶24} Most concerning was that there were continued concerns that Mother had
maintained a relationship with Mr. Williamson, the father of the children, despite several
instances of domestic violence.
{¶25} Ms. Mitchell, the initial caseworker for H.F. testified that on February 18,
2013, Mother had gone to a Goodwill class and stated that she had missed the previous
day’s class because she was involved in an incident of domestic violence with the
children’s father, Martez Williamson. She stated to the Goodwill instructor that Mr.
Williamson had come to her home intoxicated claiming he was hungry and in need of a
shower. She felt sorry for him and allowed him in the home. He then refused to leave
the home and proceeded to kick her in the stomach although she was pregnant at the
time. He then would not allow her to leave the apartment. She was finally able to leave
after being held for 12 hours. She went to the hospital and filed a police report. The
Goodwill instructor and caseworker worked with Mother that day to get her into a
shelter. She did go but was asked to leave after just a few days as she refused to follow
Stark County, Case No. 2014CA00093 8
the shelter rules. She failed to follow through with the criminal charges or obtain a civil
protection order.
{¶26} Shortly after that incident, the caseworker testified that she had received a
call from Mother. Mother was on a SARTA bus and father was on the same bus. Father
was threatening and yelling at Mother and she feared for her safety. The caseworker
advised Mother to call 9-1-1 and called 9-1-1 herself after disconnecting from Mother.
The bus driver also contacted the police from the bus. The driver eventually pulled over
the bus as Father was so disruptive that the driver feared for the safety of all the
passengers. The police intervened after the bus pulled over and father left the bus with
the police.
{¶27} After that date, the caseworker testified that she was transporting Mother
to a bus stop. When she neared the bus stop, Father was present and appeared to be
waiting for Mother. Mother was texting someone and the caseworker did not feel Mother
would be safe being dropped off there. The caseworker then cancelled her appointment
to drive Mother home.
{¶28} Finally, on June 27, 2013, the caseworker went to Mother's home and
found Mr. Williamson entering Mother's apartment with his own key. Ms. Mitchell found
this especially concerning as father had exhibited violent behavior throughout the
SCJFS' involvement and had made no effort to complete case plan services. She
testified that Father had been arrested for domestic violence in December after the
SCJFS file its first complaint. She stated that Father was unable to attend the first few
visits and the initial family team meeting in the case after he had assaulted Mother
outside the Alliance public library.
Stark County, Case No. 2014CA00093 9
{¶29} Caseworker Stacy Senff, who took over H.F.’s case and was the
caseworker for A.W.’s case, testified that on October 15, 2013, she accidentally
happened upon Mother and Father waiting together at a bus stop in Alliance. Mother
admitted later that she had accompanied Father to his Melymbrosia intake appointment
later that same day. Ms. Senff further testified that on November 27, 2013, she
received a call that Mother and Father were attempting to apply for public assistance
and were stating that they lived together and had custody of the children.
{¶30} Ms. Senff testified that H.F. and A.W. are African-American girls. H.F. has
no medical or behavioral issues. A.W. has reflux and is on a special formula but is
otherwise healthy. The girls are placed together in a foster-to-adopt home. This is a
newer home for them as their initial foster placement was an older couple who are not
willing to adopt. The girls transitioned to the new home without issue and are doing very
well there.
{¶31} SCJFS did look into potential relative placements, a paternal relative and
a maternal relative. Neither of those relatives was able to pass a home study and
therefore could not be considered for placement.
{¶32} Ms. Senff testified that the girls do know Mother as she has consistently
visited. However, they separate easily at the end of visits.
{¶33} Ms. Senff testified that she believes that an order granting permanent
custody of the children to the SCJFS would be in their best interests as the girls are
thriving in their current placement and parents cannot provide them with a safe, stable,
nurturing home.
Stark County, Case No. 2014CA00093 10
{¶34} Ms. Mungo testified on Mother's behalf. She stated that she had provided
a home and support for Mother during a portion of the case. She observed many visits
with Mother and the children and felt that Mother did a good job with them. She
believes, based on her observations, that Mother and the children are attached and that
she loves her children. She believes that the children should be with Mother. She
admitted that Mother does have some issues to work on. On cross-examination, she
admitted that Mother has lied to her and that she continued to have contact with Father
while residing with the Mungo’s. She admitted that even with the Mungo's support,
Mother was not completing case plan services.
{¶35} Mother also testified during the best interest phase of trial. She testified
that she completed some, but not all, of her case plan services. She admitted that she
knew she needed to do domestic violence counseling but that she did not do it because
"I was too pregnant and it was too hot to go all the way to Canton from Alliance...” She
further testified that she was in a relationship with Mr. Williamson beginning at age 18
but that it has been more than a year since they were involved. This was despite the
previous testimony of domestically violent incidents that had occurred, much within the
year before trial.
{¶36} On May 2, 2014, the trial court filed Findings of Fact and Judgment
Entries, which terminated the parental rights of Mother and granted permanent custody
of H.F. and A.W. to SCJFS.
Assignments of Error
{¶37} On appeal, Mother asserts the following assignments of error,
Stark County, Case No. 2014CA00093 11
{¶38} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
OF THE EVIDENCE.
{¶39} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
I & II
{¶40} Because we find the issues raised in Mother’s first and second
assignments of error are closely related, for ease of discussion, we shall address the
assignments of error together.
A. Burden Of Proof
{¶41} “[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.
Stark County, Case No. 2014CA00093 12
{¶42} 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).
B. Standard of Review
{¶43} 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.
Stark County, Case No. 2014CA00093 13
{¶44} 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).
C. Requirements for Permanent Custody Awards
{¶45} 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.
{¶46} 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:
Stark County, Case No. 2014CA00093 14
(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 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.
Stark County, Case No. 2014CA00093 15
{¶47} 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.
1. Temporary Custody for at least 12 out of a consecutive 22 month period-
R.C. 2151.414(B) (1) (d)
{¶48} In the case sub judice, the trial court found, pursuant to R.C. 2151.
414(B)(1)(d) that H.F. had been in the temporary custody of the agency for a period of
time in excess of twelve of the prior twenty-two consecutive months. (Findings of Fact
and Conclusions of Law, filed May 2, 2014 at 17). The trial court further stated, pursuant
to R.C. 2151. 414(B)(1)(a), that H.F. could not be placed with either parent within a
reasonable time.(Id.) Mother challenges only the court's finding that the children, both
H.F. and A.W. cannot be placed with her within a reasonable time.
{¶49} As findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are
alternative findings, each is independently sufficient to use as a basis to grant the
motion for permanent custody. In re Langford Children, Fifth District Stark. No.
2004CA00349, 2005-Ohio-2304, ¶17; In re Dalton, Fifth Dist. Tuscarawas No.2007 AP
0041, 2007-Ohio-5805, ¶88. Therefore, because Mother has not challenged the twelve
of twenty-two month finding, we would not need to address the merits of this
assignment of error with respect to H.F. In re N.D., Fifth District Stark No.
2010CA00334, 2011-Ohio-685, ¶27. This finding alone, in conjunction with a best-
Stark County, Case No. 2014CA00093 16
interest finding, is sufficient to support the grant of permanent custody. In re Calhoun,
5th Dist. No. 2008CA00118, 2008–Ohio–5458, ¶ 45.
2. Parental Placement within a Reasonable Time- R.C. 2151.414(B) (1) (a).
{¶50} 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 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).
{¶51} 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
Stark County, Case No. 2014CA00093 17
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 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
Stark County, Case No. 2014CA00093 18
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
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
Stark County, Case No. 2014CA00093 19
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.
(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
Stark County, Case No. 2014CA00093 20
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 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.
Stark County, Case No. 2014CA00093 21
{¶52} In the case at bar, the trial court found,
Extensive services were offered to this family to prevent removal,
and, after removal, to bring about reunification. The Alternative Response
Team attempted to work with Mother and Father in order to prevent the
removal of [H.F.] Ms. Mitchell provided bus passes, transportation and
housing. After [A.W.] was removed, Ms. Senff continued the efforts started
by Ms. Mitchell to reunify the children with Mother. Mother did not want to
go to Renew so a referral was made to Freespace. She went three times
and has not been back. Mother did not want to go to Guidestone so a
referral was made to Coleman Center. Mother had the support of the
foster family where the children were placed. In fact, a friend of the foster
family, Michelle Mungo invited Mother to live with her family, and she did
for a number of months. Mother actually enjoyed more than the normal
number of visits because the Mungo family supervised her with the
children and modeled good parenting for her. Mother had the benefit of
much more community support than most parents who are attempting to
reunify. However, Mother was deceitful. She lied about going to school for
her GED. The Mungo family stopped their involvement in December 2013.
Father did not begin services until after [A.W.]'s birth in August 2013. He
was not cooperative with the agency or service providers.
The parents have not remedied the conditions that led to the
removal of the children. Both parents allege they have no current
relationship. The Court does not find that assertion credible and the
Stark County, Case No. 2014CA00093 22
children are in danger of emotional and physical harm if they are in the
presence of Father. Mother has done some good work on the case plan.
She has not had an easy life, and the Court is very sympathetic to her, but
the statute specifically instructs the Court not to consider the effect that
granting permanent custody would have upon her. She has not shown an
ability to protect the children from Father. She needs counseling to
address domestic violence and to help her avoid relationships that
recreate her traumatic past. She has avoided that counseling. When
asked why, she said it was "too hot and I was too pregnant to come to
Canton." That was obviously prior to [A.W.]’s birth nine months ago.
{¶53} As set forth in our statement of facts above, the trial court’s findings are
based upon competent credible evidence. The record includes the testimony of the
witnesses at trial. The trial court was in the best position to determine the credibility of
the witnesses. As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911(Feb. 10,
1982).
{¶54} The evidence demonstrated the successful efforts Mother had made on
the case plan. On that point, the evidence demonstrates that any improvement that
Mother has made in her life is tentative and, perhaps, temporary, and that she is at risk
of relapse. The trial court found that, regardless of Mother’s compliance with aspects of
Stark County, Case No. 2014CA00093 23
her case plan, she was still not able and unwilling to take the necessary steps to protect
herself and her children from domestic violence from the Father.
{¶55} 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.
{¶56} Based upon the foregoing, as well as the entire record in this case, the
Court properly found both H.F. and A.W. 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 children’s removal.
D. The Best Interest of the Child
{¶57} 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.
{¶58} 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
Stark County, Case No. 2014CA00093 24
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.
{¶59} The trial court made findings of fact regarding the children’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
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).
{¶60} 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).
{¶61} 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
Stark County, Case No. 2014CA00093 25
trial court's finding that granting the motion for permanent custody is in H.F.’s and
A.W.’s best interest. The trial court concluded the children’s need for legally secure
placement could not be achieved without awarding permanent custody to SCJFS
{¶62} The record makes clear that Mother failed to complete necessary portions
of the case plan provided by SCJFS and failed to even try to leave or remedy the
abusive relationship with the Father.
{¶63} The record does not demonstrate that if she had been offered different
case plan services, the result would have been different.
E. Conclusion
{¶64} For these reasons, we find that the trial court’s determination that Mother
had failed to remedy the issues that caused the initial removal and therefore the
children 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 that the trial court’s decision that
permanent custody to SCJFS was in the children’s best interest, was based upon
competent, credible evidence and is not against the manifest weight or sufficiency of the
evidence.
Stark County, Case No. 2014CA00093 26
{¶65} Because the evidence in the record supports the trial court’s judgment, we
overrule Mother’s two assignments of error, and affirm the decision of the Stark County
Court of Common Pleas, Juvenile Court Division.
By Gwin, J.,
Hoffman, P.J., and
Farmer, J., concur
In re H.F.
Combined Opinion