[Cite as In re N.C., 2011-Ohio-6113.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF: : Hon. W. Scott Gwin, P.J. N.C. (D.O.B. 03/06/09) : Hon. William B. Hoffman, J. N.C. (D.O.B. 03/06/09) : Hon. Sheila G. Farmer, J. MINOR CHILDREN : : : Case No. 2011-CA-00141 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2009JCV00290
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 21, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JERRY COLEMAN MARY G. WARLOP STARK COUNTY JFS 116 Cleveland Avenue N.W. 221 Third Street S.E. Suite 400 Canton, OH 44702 Canton, OH 44702 [Cite as In re N.C., 2011-Ohio-6113.]
Gwin, P.J.
{¶ 1} Appellant-father A.M.1 appeals the May 31, 2011, judgment entry of the
Stark County Court of Common Pleas, Family Court Division, which terminated his
parental rights with respect to his minor twins, N.C. and N.C. and granted permanent
custody of the children to appellee, Stark County Job and Family Services (hereinafter
“SCJFS”).
I. PROCEDURAL HISTORY
{¶ 2} Appellant A.M is the biological father of N.C. [b. 03.06.2009] and N.C. [b.
03.06.2009].2
{¶ 3} On March 13, 2009, SCJFS filed a complaint alleging that the two children
were neglected children and seeking temporary custody due to Mother’s extensive
history with the agency including her having lost custody of two older children to
relatives. The children were removed from Mother’s custody. The initial concerns that
led to removal did not concern appellant. By Judgment Entry filed March 24, 2009 the
trial court appointed a volunteer CASA Guardian ad Litem [“GAL”], to represent the best
interests of the children.
{¶ 4} On May 7, 2009, the children were found to be neglected and continued in
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. The children have been in the temporary custody
of SCJFS since that time.
1 For purposes of anonymity, initials designate appellant’s name only. See, e.g., In re C.C., Franklin App. No. 07-AP-993, 2008-Ohio-2803 at ¶ 1, n.1. 2 The biological mother is not a party to this appeal. Stark County, Case No. 2011-CA-00141 3
{¶ 5} On August 4, 2009, SCJFS filed a Motion for Permanent Custody with
respect to the biological mother. A hearing on that motion as well as the annual review
hearing was scheduled for September 8, 2009. On September 9, 2009, appellant was
identified as an alleged father to the children. On September 15, 2009 SCJFS
requested appellant be joined to this action as a necessary party. Appellant submitted
to genetic testing and was determined to be the father of the children. Paternity was
established in October 2009.
{¶ 6} The SCJFS requested and the trial court granted two six-month
extensions of temporary custody to allow parties to complete case plan services.
{¶ 7} When SCJFS became involved, appellant was engaged to his fiancée with
whom he resided along with her eleven-year-old child. Appellant had been the primary
father figure for his fiancée’s child for the past nine years. N.C. and N.C. were the result
of a brief encounter between appellant and Mother when appellant had cheated on his
fiancée. Upon establishing paternity, appellant began visiting with the children once per
week, and never missed any visits.
{¶ 8} In November of 2009, SCJFS developed a new case plan which contained
the following services for appellant: 1.) Submit to a substance abuse evaluation at
Quest recovery services; 2.) Submit to regular urine screens; 3.) Complete a parenting
evaluation at Northeast Ohio Behavioral Health and follow any treatment
recommendations. Appellant submitted to an evaluation at Quest Recovery Services
and also cooperated with regular urine screens during the pendency of the case.
Appellant admitted to a long-term history of marijuana use. He consistently tested
negative for drug use since May 2010, according to both urine screens, and a hair Stark County, Case No. 2011-CA-00141 4
follicle test. Appellant never missed a requested urine screen and never submitted a
dilute screen. Appellant established a consistent pattern of sobriety and compliance with
the drug screen requests. Appellant successfully completed treatment at Quest
Recovery, specifically the Intensive Outpatient program on June 3, 2010. Appellant
also completed eight relapse prevention groups, attended the required twelve step
meetings, and took part in aftercare sessions. According to the final report, appellant’s
prognosis was good.
{¶ 9} On January 12, 2011, SCJFS filed a motion to change legal custody of the
children to appellant stating that appellant had completed a parenting evaluation,
Goodwill Parenting classes, Quest treatment and had maintained sobriety since May
2010; and, appellant had reported having obtained independent housing and has
income. On February 4, 2011, appellant also filed a motion for a change of legal
custody and termination of SCJFS involvement. However, the reunification efforts were
not successful and the children were not placed into Appellant’s custody.
{¶ 10} Appellant also completed the NEOBH parenting evaluation. The
evaluation was done and submitted in January of 2010. NEOBH recommended that
appellant and his fiancée participate in counseling. Counseling between appellant and
his fiancée never took place because appellant’s fiancée, who is not a party to the case,
refused to take part in services. However, appellant testified that he and his fiancée
had actually met with a pastor together and talked a lot and that his fiancée had gone to
the Catholic Community Center on her own.
{¶ 11} NEOBH also recommended that appellant participate in the Goodwill
Home Based Parenting Program. SCJFS amended appellant’s case plan to permit Stark County, Case No. 2011-CA-00141 5
appellant to engage in Goodwill Parenting Classes as an alternative and required
appellant to establish stable and appropriate independent housing separate from his
fiancée. This was due to appellant’s fiancée being distraught over appellant having had
children by another woman. Appellant successfully completed the Goodwill Parenting
Class. The exit summary recommended that appellant obtain independent housing,
continue to maintain sobriety, work the case plan, and complete the Home Based
Program. Goodwill reported that appellant’s motivation, attendance, and attitude were
good and positive. Appellant was described as courteous, respectful, and attentive.
{¶ 12} Regarding visitation, there were never any problems with appellant’s visits
during the Goodwill Parenting classes. Appellant was very attentive to the children. The
children were beginning to form a bond that has grown. Appellant was affectionate and
put the children at ease. Appellant was interactive, patient, nurturing, and engaging
with the children. The children began calling appellant “Daddy.” The intensive, every-
day program lasted from July 26, 2010 through October 14, 2010. After the classes
were complete, appellant received supervised visitation at the agency weekly until the
permanent custody motion was filed at which time it was decreased to every other week
for two hours. Appellant visited his children from October 2009 through the permanent
custody trial. Appellant never canceled a visit and came prepared. There were never
any incidents or problems during the visitation. The caseworker testified that she
personally observed visits and that they had began to form a bond and it has grown
stronger and stronger.
{¶ 13} Appellant’s fiancée ultimately did not want to continue with counseling or
do the agency requested fingerprints or cooperate with this case. The caseworker did Stark County, Case No. 2011-CA-00141 6
not report finding any previous agency involvement with appellant, or his fiancée, or his
fiancée’s son over the past nine years. Appellant’s fiancée has never been happy that
appellant cheated on her. Appellant attempted to get her to engage in services and be
supportive and accept the twins. Appellant was to at least make an effort to try couple’s
counseling with his fiancée, but that effort failed. He was required to attempt to engage
in couple’s counseling with his fiancée with the goal of reunifying him with the children in
the home he shared with his fiancée. When that failed he was instructed to get
independent housing.
{¶ 14} Appellant receives $674.00 in social security disability payment. Appellant
established independent housing on his own. Appellant obtained independent housing
in December 2010 and began fixing it up in January 2011. His lease was signed
January 24, 2011. SCJFS visited his home January 26, 2011 and found it to be in
deplorable condition. The worker scheduled another appointment to view any changes
made to the residence but appellant cancelled the appointment. The Court continued
the hearing to allow appellant’s residence to be viewed.
{¶ 15} On the second day of trial, the case worker testified that she had recently
inspected the home. She testified that she had the opportunity to inspect the home
after the completion of part one of trial on May 3, 2011. The home had working utilities
including electricity and running hot and cold water. The home was a three-bedroom
home. She testified that the children’s room contained two beds and a play area for the
kids. There was an outfit for each child, play cars, and a television. There were bed
linens on the children’s beds and a dresser for the children. There were car seats for the
children in the home. There was a smoke detector, which just needed a new battery. Stark County, Case No. 2011-CA-00141 7
She testified that there were towels in the bathroom, but no personal items. There was
dish soap in the kitchen. The kitchen cupboards were clean. The refrigerator was clean
and working. The caseworker indicated that the children had never been to appellant’s
home. However, she contended that the home was not prepared for the children’s
arrival because there was no food for the children other than two cans of Vienna
sausage and chips. The caseworker acknowledged if appellant went to the store for
one hour, he could acquire the necessary supplies and resolve the problem with basic
sundries. The case worker testified that although the children’s room was done up, the
other two bedrooms were empty and not painted. However, she also stated that
appellant reported that he slept on the couch and she recalled there being throw pillows
on the couch, but could not remember whether there was a blanket as well. The
caseworker indicated that there was substantial improvement in the home since her
initial visit. Appellant had removed the mess, cleaned, painted the walls, and acquired
furniture. SCJFS did not assist appellant in any way in his effort to establish
independent housing. The trial court in its findings noted that “The agency’s only
assistance in helping father obtain independent housing was suggesting that he seek
government subsidized housing.” for which he was not eligible. “The father found this
house solely through his own efforts. The court recognizes the efforts father has made
in remaining drug free and obtaining housing”
{¶ 16} Appellant does not have custody of any of his prior children. Appellant
has involuntarily lost custody of a prior child pursuant to a permanent custody
proceeding. Stark County, Case No. 2011-CA-00141 8
{¶ 17} On March 4, 2011, the SCJFS filed an amended motion seeking
permanent custody of the children. On May 3, 2011 and May 17, 2011 hearings were
held on the motion for permanent custody.
{¶ 18} During the best interest phase, the caseworker again testified that
appellant and the children are continuing to form their bond through visits. She
indicated that appellant has been appropriate with the children. She stated that the
children had visited with appellant once per week for almost one year and a half.
Appellant has been appropriate at all of the visits. The children recognize appellant.
The children know who he is and call him “Daddy.”
{¶ 19} The GAL submitted a report to the court regarding the permanent custody
motion in which the GAL recommended that the court grant permanent custody to
SCJFS. Upon cross-examination, the GAL admitted that he had not observed appellant
with the children since appellant was enrolled in Goodwill Parenting in August 2010.
The GAL observed two of Father’s Goodwill visits. He admitted that his previous GAL
report was positive about what he observed at the visits with appellant and the children.
He had not observed them together since then. He had not visited appellant’s home
prior to the permanent custody trial. He further testified that much of the information he
put in his reports, he received from the caseworker.
{¶ 20} On May 31, 2011, the court issued a written judgment entry with findings
of fact and conclusions of law determining that grounds existed to grant permanent
custody to SCJFS. The court based its decision on the following grounds: the children
have been in the temporary custody of SCJFS since May of 2009, thus 12 months or
more within a consecutive 22-month period. The court found that the children could not Stark County, Case No. 2011-CA-00141 9
be returned to appellant or Mother based upon their failure to remedy the problems that
led to the removal of these children. The court stated it was unable to find that either
parent will remedy these problems within a reasonable period of time.
{¶ 21} Regarding the best interest of the children, the court found that although
the children are bonded with appellant, the benefits of permanency outweighed the
detriments of severing any existing bond. The court ordered all parental rights
terminated and granted permanent custody to SCJFS.
{¶ 22} It is from this entry that the appellant-father has appealed.
II. ASSIGNMENTS OF ERROR
{¶ 23} On appeal, appellant-father asserts the following 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 IT IS IN THE BEST INTEREST OF THE MINOR CHILDREN TO GRANT
PERMANENT CUSTODY.
{¶ 25} “II. THE TRIAL COURT ERRED BY FINDING GROUNDS FOR
PERMANENT CUSTODY AS SUCH DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
A. Burden of Proof
{¶ 26} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, quoting Stanley v. Illinois
(1972), 405 U.S. 645, 92 S.Ct. 1208. A parent's interest in the care, custody and
management of his or her child is “fundamental.” Id.; Santosky v. Kramer (1982), 455 Stark County, Case No. 2011-CA-00141 10
U.S. 745, 753, 102 S.Ct. 1388. 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 (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45. 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 (1986), 25 Ohio St.3d
101, 103-104, 495 N.E.2d 23.
B. Standard of Review
{¶ 28} Even under the clear and convincing standard, our review is deferential. If
some competent, credible evidence going to all the essential elements of the case
supports the trial court’s judgment, an appellate court must affirm the judgment and not
substitute its judgment for that of the trial court. In re Myers III, Athens App. No.
03CA23, 2004-Ohio-657, ¶ 7, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564
N.E.2d 54. The credibility of witnesses and weight of the evidence are issues primarily
for the trial court, as the trier of fact. In re Ohler, Hocking App. No. 04CA8, 2005-Ohio-
1583, ¶ 15, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461
N.E.2d 1273. Stark County, Case No. 2011-CA-00141 11
III. Requirements for Permanent Custody Awards
{¶ 29} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
must schedule a hearing, and provide notice, upon filing of a motion for permanent
custody of a child by a public children services agency or private child placing agency
that has temporary custody of the child or has placed the child in long-term foster care.
{¶ 30} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, 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 and the parents cannot be located; (c) the child is orphaned and
there are no relatives of the child who are able to take permanent custody; or (d) the
child has been in the temporary custody of one or more public children services
agencies or private child placement agencies for twelve or more months of a
consecutive twenty-two month period ending on or after March 18, 1999.
{¶ 31} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B) (1) (a) through (d) is present before proceeding to a determination
regarding the best interest of the child. Stark County, Case No. 2011-CA-00141 12
A. Temporary Custody for at least 12 out of a consecutive 24 month period-
R.C. 2151.414(B)(1)(d).
{¶ 32} 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.
{¶ 33} In the case at bar, the children were removed from the home on March 13,
2009. The motion for permanent custody was filed March 16, 2011. Thus, the minor
children have been in the temporary custody of the agency for more than twelve out of
the last twenty-two months pursuant to R.C. 2151.414(B)(1)(d).
{¶ 34} In the case sub judice, the trial court found, pursuant to R.C. 2151.414
(B)(1)(d) that the children 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. The trial court
further stated, pursuant to that the children could not be placed with either parent within
a reasonable time. See, R.C. 2151. 414( B)(1)(a).
{¶ 35} 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, Stark App. No.2004CA00349, Stark County, Case No. 2011-CA-00141 13
2005–Ohio–2304, at paragraph 17; In re Dalton, Tuscarawas App. No.2007 AP 0041,
2007–Ohio–5805, ¶ 88. Thus, having made this finding, which is supported by the
record, it was not necessary for the trial court to also make a finding that the minor child
could not be returned within a reasonable time. See In re Whipple Children, Stark App.
No.2002CA00406, 2003-Ohio-1101, at ¶ 26.
{¶ 36} Thus, appellant's parental rights can lawfully be terminated upon a finding
that the child has been in the temporary custody of SCJFS for 12 or more months of a
consecutive 22-month period, and upon a finding that it is in the best interest of the
child. R.C. 2151.414(B)(1)(d).
{¶ 37} In his First Assignment of Error appellant challenges only the trial court's
determination concerning the best interest of the children. However, in his Second
Assignment of Error, appellant challenges the trial court’s finding ostensibly under R.C.
2151.414(B)(1)(a), that the children could not or should not be placed with the appellant
within a reasonable period of time, based upon a finding that one or more of the factors
set forth in R.C. 2151.414(E) are applicable, and also upon a separate finding that it is
in the best interest of the child, using the best-interest factors set forth under R.C.
2151.414(D).
A. Parental Placement within a Reasonable Time-R.C. 2151.414(B) (1) (a).
{¶ 38} 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 Stark County, Case No. 2011-CA-00141 14
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 (Sept. 21, 1998), Gallia App. No. 98 CA 6, 1997 WL 701328;
In re: Butcher (Apr. 10, 1991), Athens App. No. 1470, 1991 WL 62145.
{¶ 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:
{¶ 40} “(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:
{¶ 41} “(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 Stark County, Case No. 2011-CA-00141 15
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.
{¶ 42} “***
{¶ 43} “(16) Any other factor the court considers relevant.”
{¶ 44} R.C. 2151.414(D) requires the trial court to consider all relevant factors in
determining whether the child's best interests would be served by granting the
permanent custody motion. These factors include but are not limited to: (1) the
interrelationship of the child with others; (2) the wishes of the child; (3) the custodial
history of the child; (4) the child's need for a legally secure placement and whether such
a placement can be achieved without permanent custody; and (5) whether any of the
factors in divisions (E) (7) to (11) apply.
{¶ 45} As previously noted, 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, Stark App.
No.2004CA00349, 2005–Ohio–2304, at paragraph 17; In re Dalton, Tuscarawas App.
No.2007 AP 0041, 2007–Ohio–5805, ¶ 88. Thus, the trial court having made this
finding, which is supported by the record, was not required to also make a finding that
the minor child could not be returned within a reasonable time. See In re Whipple
Children, Stark App. No.2002CA00406, 2003-Ohio-1101, at ¶ 26. Stark County, Case No. 2011-CA-00141 16
{¶ 46} Therefore, appellant’s reliance upon R.C. 2151.414(B)(1)(a) is misplaced
because no finding under R.C. 2151. 414(B)(1)(a) was necessary under the facts of this
case.
B. The Best Interest of the Child.
{¶ 47} 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.
{¶ 48} 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 (1994), 95 Ohio
App.3d 309, 315. 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.
{¶ 49} In the case at bar, the trial court noted that appellant had been given two
(2) six month extensions in order to work on his case plan. Further, SCJFS had at one Stark County, Case No. 2011-CA-00141 17
point attempted to return the children by filing a motion to change custody. However,
appellant despite his diligent efforts was unable to provide a suitable home for the
children.
{¶ 50} In the case of In re: Summerfield, Stark App. 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.
{¶ 51} Further, substantial compliance with a case plan, in and of itself, does not
prove that a grant of permanent custody to an agency is erroneous. In re Watkins v.
Harris (Aug. 30, 1995), 9th Dist. No. 17068, at 9. The dispositive issue is not whether
the parent has substantially complied with the case plan, but rather, whether the parent
has substantially remedied the conditions that caused the child's removal. See, e.g., In
re McKenzie (Oct. 18, 1995), 9th Dist. No. 95CA0015, at 7-8; In re Pittman, Summit
App. No. 20894, 2002-Ohio-2208 at ¶ 60.
{¶ 52} In the case at bar, the trial court noted the many positive changes
appellant has made in his life. The trial court recognized the bond he has formed with
his children. The court found that despite this bond, the benefits of permanency in the
children's lives, particularly given their ages, outweigh the detriments of severing any
existing bond.
{¶ 53} We recognize the seriousness of the matter at hand. It is a firmly
established principal of law that a parent has a fundamental right to care for and have
custody of his or her child. In re Shaeffer Children (1993), 85 Ohio App.3d 683, 621 Stark County, Case No. 2011-CA-00141 18
N.E.2d 426; citing Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71
L.Ed.2d 599. This fundamental right is not lost based on a parent's temporary loss of
custody. Id at 751- 755. Indeed, the United States Supreme Court has stated, "It is
cardinal with us that the custody, care and nurture of the child reside first in the
parents," Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-1213, 31
L.Ed.2d 551; citing Prince v. Massachusetts (1944), 321 U.S. 158, 166, 64 S.Ct. 438, 88
L.Ed. 645. Therefore, the termination of parental rights is an alternative of last resort;
sanctioned only when the welfare of a child necessitates such action. See In re Wise
(1994), 96 Ohio App.3d 619, 645 N.E.2d 812; In re Cunningham (1979), 59 Ohio St.2d
100, 391 N.E.2d 1034.
{¶ 54} Furthermore, "[p]ermanent termination of parental rights has been
described as the 'family law equivalent of the death penalty in a criminal case.'
Therefore, parents 'must be afforded every procedural and substantive protection the
law allows.' “(Citations omitted.) In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d
680, 682-683. Consequently, the right of parents to raise their children, coupled with the
concomitant right of children to be raised by their parents, may not be interfered with
unless the parent is unfit. Baker v. Baker (1996), 113 Ohio App.3d 805, 682 N.E.2d 661;
citing Quilloin v. Walcott (1978), 434 U.S. 246, 98 S.Ct. 549.
{¶ 55} We too, find that the evidence demonstrated the successful efforts
appellant-father had made in the case to regain custody of his children. On that point,
the evidence demonstrates that the improvement the appellant-father has made in his
life is tentative and, perhaps, temporary, and that he is at risk of relapse. The trial court Stark County, Case No. 2011-CA-00141 19
found that, regardless of appellant's compliance with aspects of his case plan, he was
still not able to be a successful parent to his children.
{¶ 56} The trial court further 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 (Nov. 13, 2000), Stark App. No. 2000CA00244, quoting In re Awkal
(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424.
{¶ 57} 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 (February 10, 1982), Stark App. No. CA-5758. “A fundamental premise of our
criminal trial system is that ‘the [trier of fact] is the lie detector.’ United States v. Barnard,
490 F.2d 907, 912 (C.A.9 1973) (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct.
1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of witness
testimony, therefore, has long been held to be the ‘part of every case [that] belongs to
the [trier of fact], who are presumed to be fitted for it by their natural intelligence and
their practical knowledge of men and the ways of men.’ Aetna Life Ins. Co. v. Ward, 140
U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”. United States v. Scheffer
(1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267. 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 Stark County, Case No. 2011-CA-00141 20
conveyed to us through the written record. Trickey v. Trickey [1952], 158 Ohio St. 9, 13-
14,106 N.E.2d 772, 774; Bechtol v. Bechtol (1990) 49 Ohio St.3d 21, 21, 550 N.E.2d
178, 179.
{¶ 58} In the case at bar, the judgment entry granting permanent custody
specifically included a statement that the trial court had considered all the factors listed
in R.C. 2151.414. “The fact that the trial court did not specifically mention each of the
factors listed in R.C. 2151.414(D) does not mean that the trial court did not consider
such factors.” In re Schupbach Children (July 6, 2000), Tuscarawas App. 2000 AP
010005.
{¶ 59} The Guardian ad Litem also indicated that it was in the children’s best
interest to be placed in the permanent custody of SCJFS.
IV. Conclusion
{¶ 60} For these reasons, we find that the trial court’s determination that the
children 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 was 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 not against the
manifest weight or sufficiency of the evidence.
{¶ 61} Appellant's first and second assignments of error are overruled. Stark County, Case No. 2011-CA-00141 21
{¶ 62} The judgment of the Stark County Court of Common Pleas, Juvenile Court
Division is affirmed.
By Gwin, P.J., and
Farmer, J., concur;
Hoffman, J., concurs
separately
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. SHEILA G. FARMER WSG:clw 1108 Stark County, Case No. 2011-CA-00141 22
Hoffman, J., concurring
(¶61) I concur in the majority’s analysis and disposition regarding the trial court’s
“best interests” determination and satisfaction of R.C. 2151.414(B)(1)(d).
(¶62) I write separately only to note I do not find R.C. 2151.414(B)(1)(a) was
satisfied in this case.
_____________________________________ HON. WILLIAM B. HOFFMAN [Cite as In re N.C., 2011-Ohio-6113.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: N.C. (D.O.B. 03/06/09) N.C. (D.O.B. 03/06/09) MINOR CHILDREN : : : : : : JUDGMENT ENTRY : : : : CASE NO. 2011-CA-00141
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas, Juvenile Court Division is affirmed. Costs to
appellant.
_________________________________ HON. SHEILA G. FARMER