[Cite as In re N.C.P., 2014-Ohio-3694.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN RE: N.C.P. : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2014CA00083 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2013JCV00315
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 25, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES PHILLIPS DAVID L. SMITH SCDJFS 245 33rd Street N.W. 221 Third Street S.E. Canton, OH 44709 Canton, OH 44702 [Cite as In re N.C.P., 2014-Ohio-3694.]
Gwin, P.J.
{¶1} Appellant-mother, Nichole Arntz [“Mother”] appeals the April 22, 2014,
judgment entry of the Stark County Court of Common Pleas, Family Court Division,
which terminated her parental rights with respect to her minor child N.C.P. and granted
permanent custody of the child to appellee, Stark County Department of Jobs and
Family Services (“SCJFS”).
Facts and Procedural History
{¶2} On April 1, 2013, SCJFS filed a complaint seeking temporary custody of
N.C.P. (b. 03/30/2013) and alleging the child to be dependent and/or neglected. On
June 5, 2013, the child was found to be dependent. 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.
{¶3} During the course of the case, the trial court has conducted the required
reviews every six months and has found that the SCJFS has made reasonable efforts to
reunite the family.
{¶4} On February 30, 2014, SCJFS filed a motion for permanent custody of
N.C.P. On April 22, 2014, a hearing on the motion for permanent custody was held at
which the following evidence was presented.
{¶5} Mother was to complete a parenting assessment at Northeast Ohio
Behavioral Health, follow through with a Quest drug and alcohol assessment and
complete any recommended treatment, submit to random drug test, and secure stable
housing and employment. Stark County, Case No. 2014CA00083 3
{¶6} Mother completed both the parenting and Quest assessments. The
parenting assessment recommended that Mother successfully complete the Goodwill
Parenting Program, complete drug treatment, attend two AA meetings a week, and
secure stable housing and employment. Mother failed to complete those services.
Mother failed to complete the Goodwill Parenting Program. Mother was terminated from
Quest treatment for non-compliance. Mother failed to comply with random urine drug
test and failed to obey a court order dated September 24, 2013 for a hair follicle drug
test. The last drug test Mother submitted to the worker was positive for cocaine. Mother
did not keep in contact with the caseworker. Mother did not have independent housing
or employment on the day of trial.
{¶7} Mother has past legal history with SCJFS in cases 2010JCV00178 and
2011JCV00084. The concerns in those cases were the same as in the present case.
Mother failed to complete the case plan requirements in both of those cases and she
stipulated to the grant of permanent custody to SCJFS of those children. Mother
admitted during her testimony on cross-examination that this was the third time she had
a chance to work case plan services and had not successfully completed them.
{¶8} On the date of the permanent custody trial Mother was in custody at the
Stark Regional Community Corrections Center [“SRCCC”]. Mother was at SRCCC after
being convicted for failure to comply with a police officer and drug abuse. Mother was
enrolled in courses at SRCCC designed to help with chemical dependency, criminal
activity, and to find employment.
{¶9} Mother was not working her case plan or visiting the child before her
incarceration. The caseworker testified that Mother had not visited with her child since Stark County, Case No. 2014CA00083 4
November of 2013. Mother contended that she was incarcerated for part of that time
and unable to visit. The caseworker testified that Mother was released at one point
while her case was pending and still did not visit with the child. Mother admitted to being
released from jail on January 21, 2014 and not visiting with her child between that date
and the permanent custody trial.
{¶10} The caseworker testified during the best interest hearing that the child was
placed with the foster family that has adopted his siblings. The child has been placed in
this home since April 1, 2013 and is the only home he has ever known. The foster
parents are the only parents the child knows and they wish to adopt him if the
permanent custody was granted. The child is very bonded to the foster parents and no
bond exists between the child and Mother. The caseworker testified that she believed it
was in the best interest of the child that the permanent custody be granted to the
SCJFS.
{¶11} Mother testified that if she does not have independent housing when
released from SRCCC she will live with her sister in East Canton. Mother also has the
opportunity to go to the YMCA, but that choice would extend her involvement with
SRCCC and is not stable. Mother testified that her desire is to have more time to
complete case plan services and ultimately have placement of her child.
{¶12} On April 22, 2014, the trial court filed Findings of Fact and Judgment
Entries, which terminated the parental rights of Mother and granted permanent custody
of N.C.P. to SCJFS.
Assignments of Error
{¶13} On appeal, Mother asserts the following assignments of error, Stark County, Case No. 2014CA00083 5
{¶14} “I. THE JUDGMENT OF THE TRIAL COURT THAT APPELLANT
ABANDONED THE MINOR CHILD WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
{¶15} “II. THE COURT'S ORDER STATING THAT [N.C.P.] COULD NOT BE
PLACED WITH ANY BIOLOGICAL PARENT AT THE TIME OF TRIAL OR WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
OF THE EVIDENCE.”
I & II
{¶16} 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
{¶17} “[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.
{¶18} 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 Stark County, Case No. 2014CA00083 6
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
{¶19} 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. Tuscarawas Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, ¶17,
rev’d on other grounds, In re D.A. 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829.
{¶20} In Cross, the Supreme Court further cautioned, Stark County, Case No. 2014CA00083 7
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
{¶21} 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.
{¶22} 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. 2014CA00083 8
(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. 2014CA00083 9
{¶23} 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). Abandonment-R.C. 2151.414(B) (1) (b).
{¶24} R.C. 2151.011(C) states that, for purposes of R.C. Chapter 2151, “a child
shall be presumed abandoned when the parents of the child have failed to visit or
maintain contact with the child for more than ninety days, regardless of whether the
parents resume contact with the child after that period of ninety days.”
{¶25} However, R.C. 2151.011(C) merely creates a presumption of
abandonment, which a parent may rebut. See In re Cornell, 11th Dist. Portage No.
2003-P-0054, 2003-Ohio-5007, fn. 2; In re Phillips, 11th Dist. Ashtabula No. 2005-A-
0020, 2005-Ohio-3774, ¶ 32. While the statute does not provide a definition,"
'[a]bandonment' of a child has been defined as any conduct on the part of the parent
which evinces a settled purpose to forego all parental duties and relinquish all parental
claims to the child." Baker v. Rose, 28 Ohio Misc. 200, 203, 270 N.E.2d 67(C.P. 1970),
citing, In re Masters, 165 Ohio St. 503, 505-506, 137 N.E.2d 752(1956). See, also In re
C.E., 2nd Dist. Champaign No. 2005-CA-11, 2005-Ohio-5913, ¶ 12.
{¶26} “A presumption effectively reverses the burden of coming forward with
evidence to support a proposition of fact, causing the fact to be deemed established
unless sufficient proof is presented to rebut the presumption. Once the presumption is
rebutted, however, the presumption disappears. Evans v. National Life & Acc. Ins. Co., Stark County, Case No. 2014CA00083 10
22 Ohio St.3d 87, 488 N.E.2d 1247(1986), first paragraph of syllabus. Whether
sufficient proof has been presented to rebut, or ‘unseat,’ a legal presumption is an issue
of law for the court. Beresford v. Stanley, 6 Ohio N.P. 38, 9 Ohio Dec. 134, 1898 WL
763.” In re C.E., supra, ¶14.
{¶27} We recognize that if Mother attempted to visit N.C.P. but was prevented
from doing so by SRCCC, it would be difficult to conclude that her actions were the
equivalent of abandonment. See In re Adoptions of Groh, 153 Ohio App.3d 414, 424,
794 N.E.2d 695(7th Dist. 2003). However, the trial court in the case sub judice, after
hearing testimony, did not find that SRCCC interfered with Mother’s ability to have
attempted visitation.
{¶28} Mother admitted that she was incarcerated at the Stark County Jail from
November 24, 2013 until January 21, 2014. Mother claimed that she had left voice mail
messages for the caseworker but the caseworker never contacted mother to schedule a
visit. The trial court found that Mother was again incarcerated, this time at SRCCC,
beginning March 27, 2014 with a release date six months in the future.
{¶29} Because the trial judge is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing
the credibility of the proffered testimony, we must give deference to the trial court's
findings of fact. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
1273(1984).
{¶30} Based upon the foregoing, as well as the entire record in this case, we find
that Mother did not provide sufficient evidence to rebut the presumption of
abandonment, as contained in R.C. 2151.011(C). In re Cornell at ¶20; In re Cravens, Stark County, Case No. 2014CA00083 11
3rd Dist. Defiance No. 4-03-48, 2004-Ohio-2356, ¶23; In re Bailey Children, 5th Dist.
Stark No. 2004 CA 00386, 2005-Ohio-2981, ¶ 32.
2). Parental Placement within a Reasonable Time- R.C. 2151.414(B) (1) (a).
{¶31} 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. Gallia No. 98 CA 6, 1998 WL 655414(Sept. 21,
1998); In re: Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145(Apr 10, 1991).
{¶32} 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. 2014CA00083 12
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. 2014CA00083 13
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. 2014CA00083 14
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. 2014CA00083 15
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. 2014CA00083 16
{¶33} As set forth above, the trial court’s findings are based upon competent
credible evidence. The record includes the recommendation of the Guardian Ad Litem
for the child, and the testimony of the witnesses at trial. The trial court was in the best
position to determine the credibility of the witnesses.
{¶34} Mother was incarcerated and would not be released for several months
after the permanent custody hearing. Mother failed to complete the Goodwill Parenting
Program. Mother was terminated from Quest treatment for non-compliance. Mother
failed to comply with random urine drug test and refused to obey a court order dated
September 24, 2013 for a hair follicle drug test. The last drug test Mother submitted to
the worker was positive for cocaine. Mother did not keep in contact with the caseworker.
Mother did not have independent housing or employment on the day of trial. Mother
failed to complete the case plan requirements in two past cases and she stipulated to
the grant of permanent custody to the SCJFS of those children.
{¶35} 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
her case plan, she was still not able to be a successful parent to N.C.P.
{¶36} In the case of In re: Summerfield, 5th Dist. Stark No. 2005CA00139, 2005-
Ohio-5523, this court found where, despite marginal compliance with some aspects of
the case plan, the exact problems that led to the initial removal remained in existence, a
court does not err in finding the child cannot be placed with the parent within a
reasonable time. Stark County, Case No. 2014CA00083 17
{¶37} Based upon the foregoing, as well as the entire record in this case, the
Court properly found N.C.P. could not or should not be returned to Mother within a
reasonable time. Despite offering numerous services, Mother was unable to mitigate the
concerns that led to the child's removal.
D. The Best Interest of the Child
{¶38} 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.
{¶39} 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. 2014CA00083 18
{¶40} 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. 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).
{¶41} 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).
{¶42} 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 N.C.P.’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
{¶43} The record makes clear that Mother failed to complete the majority of the
case plan provided by SCJFS and failed to meet even the basic needs of N.C.P. Stark County, Case No. 2014CA00083 19
{¶44} Mother failed to maintain stable housing. Mother failed to maintain stable
employment. Mother failed to maintain her sobriety, and further, was incarcerated for
much of the time.
{¶45} The record does not demonstrate that if she had been offered different
case plan services, the result would have been different.
E. Conclusion
{¶46} For these reasons, we find that the trial court’s determination that Mother
had abandoned the child and had failed to remedy the issues that caused the initial
removal and therefore N.C.P. 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 N.C.P.’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. 2014CA00083 20
{¶47} 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.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur