[Cite as In re V.J., 2016-Ohio-5896.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: V.J. : Hon. Sheila G. Farmer, P.J.
: Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
:
:
: Case No. 2016CA00118
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
No. 2014JCV00520
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 19, 2016
APPEARANCES:
For SCJFS For Mother
ALLISON TUESDAY MARY G. WARLOP
SCJFS 116 Cleveland Ave. N.W.
110 Central Plaza S, Ste. 400 Suite 500
Canton, OH 44702 Canton, OH 44702
For Guardian Ad Litem For Father
HOLLY DAVIES BERNARD HUNT
101 Central Plaza South 2395 McGinty Rd. N.W.
Chase Tower, Suite 1000 North Canton, OH 44720
Canton, OH 44702
Stark County, Case No. 2016CA00118 2
Gwin, J.
{¶1} Appellant-mother Latasha Humphries [“Mother”] appeals the May 18, 2016
Judgment Entry of the Stark County Court of Common Pleas, Family Court Division,
which terminated her parental rights with respect to her minor child, V.J. (b. May 28, 2014)
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 June 2, 2014, SCJFS filed a complaint alleging the dependency
and/or neglect of V.J. On August 20, 2014, the trial court found V.J. to be a
dependent child and placed her into the temporary custody of SCJFS.
{¶3} On October 1, 2015, SCJFS filed a motion seeking permanent custody of
the child. In its motion, SCJFS alleged, among other things, that the child could not or
should not be placed with Mother within a reasonable amount of time, the child had been
in the temporary custody of SCJFS for 12 or more months of a consecutive 22-month
period, and permanent custody was in her best interest.
{¶4} On May 16, 2016, the Court held a trial on the permanent custody motion,
Also pending at that time were Mother's motion to return and terminate and/or motion to
change legal custody, and motion for home study on maternal aunt.
Permanent Custody Trial.
{¶5} On May 16, 2016, the trial court heard evidence on the motion seeking
permanent custody of V.J.
{¶6} Caseworker Lynsey Overton testified Mother has a history of involvement
with SCJFS. SCJFS became involved with Mother in 2002 regarding two children due
Stark County, Case No. 2016CA00118 3
to the death of a third child. Mother agreed to change legal custody of those two children
to a relative. Mother was involved with SCJFS again regarding two twin boys that she
had. The two boys were placed in the permanent custody of SCJFS. Mother became
involved with SCJFS again regarding her child R.H., Jr. He was also placed in the
permanent custody of SCJFS. Mother became involved with SCJFS again regarding her
child Cynthia who was also placed in the permanent custody of SCJFS. Mother was in
prison when Cynthia was born. Mother was convicted of child endangering and spent
five years in jail for the death of another child, Catana. The child died while in Mother’s
care. After Mother was released from prison, Mother worked a case plan and regained
custody of one of her children until there were concerns about his behavioral issues and
she requested SCJFS take custody of him. The child was then placed in PPLA status.
{¶7} Ms. Overton testified that Mother did engage in case plan services in this
case. Ms. Overton opined that despite these services she had concerns about whether
or not Mother was internalizing the skills that she was learning through her services
providers. She stated that Mother is "able to provide me with ...with good answers but I
cannot guarantee that she could keep [V.J.] safe."
{¶8} Mother's case plan requirements included a parenting evaluation at
Northeast Ohio Behavioral Health, individual counseling and Goodwill Parenting classes.
Ms. Overton testified that Mother completed a parenting evaluation through Northeast
Ohio Behavioral Health. Ms. Overton testified that Mother is engaged in individual
counseling at Minority Behavioral Health and has been for quite some time. Ms. Overton
also testified that Mother completed Goodwill Parenting Classes with a Certificate of
Participation. Goodwill parenting instructors recommended that Mother continue her
Stark County, Case No. 2016CA00118 4
counseling and maintain a safe and appropriate home environment. The instructors also
recommended that if reunification were to occur, then Mother should work with Goodwill
Home Based Services.
{¶9} The caseworker further testified that she had recently been to Mother's
home and Mother had baby gates and things for the baby. She stated that she had a
couple concerns about things, however she had addressed those concerns with Mother
and Mother was able to change the home to better accommodate the child.
{¶10} Ms. Overton testified that according to Mother's therapist, Mother was
making progress. Ms. Overton further testified that Mother is employed and has stable
housing. Mother has been in the same residence since Ms. Overton was assigned to the
case.
{¶11} Ms. Overton also testified that Mother worked with a case manager at
Minority Behavioral Health. Ms. Overton testified regarding Mother, "She's done
everything on her case plan and engaged in it." (T. at 21). Throughout the course of the
case, Mother visited with Victoria every other week for one hour. The caseworker has
observed those visits. Ms. Overton testified,
They're routine. I can tell you exactly what she's going to do ah every
visit. Um there's no safety concerns but it's just ... it's the very same thing.
She deviates very rarely from it. Ah she comes in…she greets Victoria. Um
they go back to the visitation room. She either feeds her breakfast or a
snack depending on whether she ate and then she does her hair. Or puts
lotion on and she just (inaudible) with her clothes…and by the time all of
that's over it’s usually time to go.
Stark County, Case No. 2016CA00118 5
T. at 21. Ms. Overton acknowledged that Mother interacts with Victoria during the visits
and talks to her. Victoria reacts to Mother. There is a bond present. Everything Mother
does with Victoria is appropriate. Mother comes prepared and brings appropriate
supplies. Mother has brought age-appropriate music and movies to play for Victoria on
her laptop.
{¶12} Regarding alternatives to permanent custody, Ms. Overton testified that
Mother provided the name of her sister, Denice Roberson who lives in Florida as a
possible placement option. SCJFS did not investigate her for potential placement. The
caseworker explained that because the agency already had an “ICPC,” the agency did
not move forward with doing another one to investigate Ms. Roberson. Ms. Overton
testified that she gave the sister information on how she could go about getting a private
home study done.
{¶13} Mother's counsel called Sierra Dennis, a professional clinical counselor with
Minority Behavioral Health group. She has worked with Mother since September of 2014.
Mother provided the counselor with documentation from her case plan with SCJFS. Ms.
Dennis began to meet with Mother weekly for therapy sessions beginning in October of
2014.
{¶14} Mother and Ms. Dennis went through three assessment phases to develop
treatment goals and objectives and then worked on those goals and objectives. They
worked on decreasing Mother's anxiety and worked on Mother's decision-making as well
as her inner personal relationships.
Stark County, Case No. 2016CA00118 6
{¶15} Ms. Dennis testified that she and Mother worked on processing Mother's
grief and loss of Catana as well as her loss with her other children and the relationship
with her other children.
{¶16} Ms. Dennis was provided with collateral information including the SCJFS
case plan, and the reports from Northeast Ohio Behavioral Health and Goodwill Parenting
Class.
{¶17} Mother and Ms. Dennis have continued to meet weekly. Mother has been
on time and consistent with her appointments. Ms. Dennis also accompanied Mother to
meetings with SCJFS. Ms. Dennis testified that Mother has made great progress over
the past year and half. She also testified that she observed some of Mother's visits with
V.J. and they went well. Ms. Dennis opined that Mother is internalizing the progress in
counseling.
Best Interest Hearing.
{¶18} Regarding the best interests of the child, Ms. Overton testified that V.J. had
been in the same foster home since removal. The foster parents are interested in
adopting V.J. The agency conducted an out of state home study on a paternal uncle,
which was approved in May of 2015.
{¶19} V.J. has visited the paternal relatives in Missouri. At the beginning, the
paternal relatives came to Ohio to visit V.J. for short visits. In October of 2015, V.J. started
going to Missouri for one week per month. The visits go very well and V.J. has a bond
with her paternal relatives. The paternal relatives are interested in adopting V.J.
{¶20} Mother also provided Denice Roberson as a potential out of state relative
placement. The agency did not conduct a home study on Ms. Roberson because they
Stark County, Case No. 2016CA00118 7
already had an approved ICPC with the paternal relative. However, the caseworker
informed Ms. Roberson that she could contact her local children services agency to
conduct a home study.
{¶21} Regarding Mother's interactions with V.J., the caseworker again testified
that Mother visits consistently with V.J. and the visits go fine. During those visits, Mother
provides the care that she needs to provide for the child. There is a bond between the
child and Mother. Mother has been actively involved in Victoria's doctor's appointments.
{¶22} On May 18, 2016, the trial court issued its findings of fact granting
permanent custody of C.H. to SCJFS and terminating Mother’s parental rights.
Assignments of Error
{¶23} Mother raises two assignments of error,
{¶24} “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO
THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS SCDJFS
FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT GROUNDS EXISTED
FOR PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶25} “II. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO
STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS SCDIFS
FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST
INTERESTS OF THE MINOR CHILD TO GRANT PERMANENT CUSTODY AND SUCH
DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
Stark County, Case No. 2016CA00118 8
Burden of Proof
{¶26} “[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.
{¶27} 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
{¶28} 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
Stark County, Case No. 2016CA00118 9
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.
{¶29} 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).
Stark County, Case No. 2016CA00118 10
Requirements for Permanent Custody Awards
{¶30} 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.
{¶31} 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;
Stark County, Case No. 2016CA00118 11
(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.
{¶32} 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.
Mother’s First Assignment of Error: Parental Placement within a Reasonable
Time- R.C. 2151.414(B) (1) (a).
1. The child 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 – R.C.
2151.414(B)(1)(d).
{¶33} In the case sub judice, the trial court found, pursuant to R.C.
2151.414(B)(1)(d) that the child 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.
Stark County, Case No. 2016CA00118 12
{¶34} “Before a public children-services agency or private child-placing agency
can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the child
must have been in the temporary custody of an agency for at least 12 months of a
consecutive 22–month period.” In re: C.W., 104 Ohio St.3d 163, 2004–Ohio–6411, 818
N.E.2d 1176 at paragraph one of the syllabus. When calculating this time period, the
court in C.W. cautioned, “the time that passes between the filing of a motion for permanent
custody and the permanent-custody hearing does not count toward the 12–month period
set forth in R.C. 2151.414(B)(1)(d).” Id. at 167, 2004–Ohio–6411 at ¶ 26, 818 N.E.2d at
1180. Accord, In re: N.C., 5th Dist. No. 2011-CA-00141, 2011-Ohio-6113, ¶32.
{¶35} In the case at bar, the grant of temporary custody of V.J. to SCJFS occurred
on August 20, 2014. The motion for permanent custody was filed on October 1, 2015.
Thus, V.J. had been in the temporary custody of SCJFS for at least 12 months of a
consecutive 22-month period at the time the motion for permanent custody was filed.
Mother has not challenged the twelve of twenty-two month finding.
{¶36} This finding alone, in conjunction with a best-interest finding, is sufficient to
support the grant of permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118,
2008–Ohio–5458, ¶ 45. Accord In re H.P., 12th Dist. Preble No. CA2010–07–010, 2011–
Ohio–1148, ¶ 42; In re C.E., 3rd Dist. Hancock Nos. 5–09–02, 509–03, 2009–Ohio–6027,
¶ 18; In re D.J., 2nd Dist. Montgomery No. 21906, 2007–Ohio–6677, ¶ 23; In re Donell
F., 6th Dist. Lucas No. L–04–1308, 2005–Ohio–4175, ¶ 25.
{¶37} Further, the trial court’s finding that V.J. could not be placed with Mother
within a reasonable period was not against the manifest weight or sufficiency of the
evidence.
Stark County, Case No. 2016CA00118 13
{¶38} The trial court further found V.J. could not be placed with Mother within a
reasonable period of time and should not be placed with Mother pursuant to R.C.
2151.414(E). R.C. 2151.414(E) sets forth the factors a trial court must consider in
determining whether a child cannot or should not be placed with a parent within a
reasonable time. If the court finds, by clear and convincing evidence, the existence of
any one of the following factors, “the court shall enter a finding that the child cannot be
placed with [the] parent within a reasonable time or should not be placed with either
parent”
{¶39} 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
either parent within a reasonable time or should not be placed with either
parent:
Stark County, Case No. 2016CA00118 14
(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
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
Stark County, Case No. 2016CA00118 15
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.
(7) The parent has been convicted of or pleaded guilty to one of the
following:
***
Stark County, Case No. 2016CA00118 16
(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
provide a legally secure permanent placement and adequate care for the
health, welfare, and safety of the child.
Stark County, Case No. 2016CA00118 17
(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.
{¶40} Caseworker Overton testified that Mother was convicted of Child
Endangering (R.C. 2919.22) and served five years in prison. R.C. 2151.414(E)(6). The
victim of the crime committed by Mother was a sibling of V.J. The child died while in
Mother’s care.
Stark County, Case No. 2016CA00118 18
{¶41} In the present case, Mother has had parental rights involuntarily terminated
with respect to a sibling of the child. R.C. 2151.414(E)(11). Caseworker Overton testified
that Mother has involuntarily lost permanent custody of four children.
{¶42} Accordingly, the trial court’s finding that V.J. would be at risk if she were to
be returned to Mother is not against the manifest weight or sufficiency of the evidence.
Mother’s Second Assignment of Error: The Best Interest of the Child.
{¶43} 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.
{¶44} 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.
Stark County, Case No. 2016CA00118 19
{¶45} 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
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).
{¶46} 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).
{¶47} 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 V.J.’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.
{¶48} During the best interest portion of the trial, Caseworker Overton testified
that V.J. is a healthy, developmentally on track child. V.J. is bonded and extremely
attached to her foster family. The foster family wants to adopt V.J. V.J. has also had
Stark County, Case No. 2016CA00118 20
brief visits with her paternal uncle and his family. She is also bonded to that family.
Likewise, they are interested in adoption. In the opinion of Caseworker Overton,
permanent custody is in V.J.'s best interest.
{¶49} In contrast to her foster family and paternal family, Ms. Overton described the
bond between the child and Mother as "routine." She based this opinion on Mother's lack of
adaptability throughout visits with the child as well as their interactions. According to Ms.
Overton, Mother does not comprehend cues the child gives her signaling that she wants to play,
and falls into the same routine during all of her visits. She believes that V.J. would benefit from
adoption, and that benefit far outweighs the risk of harm due to the severing of Mother’s
parental rights.
{¶50} Ms. Holly Davies, Guardian ad Litem for the child, also agreed that
permanent custody was in V.J.'s best interest.
Conclusion
{¶51} For these reasons, we find that the trial court’s determination that the child
could not be placed with Mother 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 child's best interest was based upon competent, credible
evidence and is not against the manifest weight or sufficiency of the evidence.
{¶52} 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, Family Court Division.
{¶53} Mother’s first and second assignments of error are overruled.
Stark County, Case No. 2016CA00118 21
{¶54} 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
In re V.J.
Combined Opinion