[Cite as In re E.H. , 2020-Ohio-2835.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. Patricia A. Delaney, P.J. E.H., W.H., J.N. : Hon . Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. : : : Case Nos. 2019 CA 00108 : 2019 CA 00109 : 2019 CA 00110 : : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. F2017-0351, F2017-0352, F2017- 0353

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 6, 2020

APPEARANCES: For Appellant-Father For Appellee-LCJFS JERMAINE COLQUITT PAULA M. SAWYERS 33 West Main Street 20 South Second Street Suite 109 Fourth Floor Newark, OH 43055 Newark, OH 43055 For Mother Guardian ad Litem Carolynn E. Fittro SCOTT SIDNER 1335 Dublin Road 39 Northview Drive Suite 115F Johnstown, OH 43031 Columbus, OH 43215Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 2
Wise, Earle, J. {¶ 1} Appellant-Father, C.H., appeals the October 1, 2019 judgm ent entries of the Court of Common Pleas of Licking County, Ohio, Juvenile Divisio n, denying motions for legal custody and terminating his parental rights and granting permanent custody of his children to appellee, the Licking County Department of Job and Family Services. FACTS AND PROCEDURAL HISTORY {¶ 2} On May 22, 2017, appellee filed complaints for temporary legal custody of E.H. born in March 2015 (Case No. F2017-0351), W.H. born in Mar ch 2017 (Case No. F2017-0352), and J.N. born in November 2012 (Case No. F2017-035 3), claiming the children to be dependent children. Father of E.H. and W.H. is appellant herein; father of J.N. is J.A., presumed deceased; mother of all three children i s N.H. Appellee had been granted emergency shelter care of the children three days earli er. {¶ 3} An adjudicatory hearing was held before a magistrate on J uly 12, 2017. By decisions filed same date, the magistrate found the children to be dependent and ordered temporary custody of the children to remain with appellee. The trial court approved and adopted the magistrate's decisions via judgment entries filed J uly 13, 2017. Case plans were immediately filed thereafter. {¶ 4} On November 8, 2017, mother filed motions to grant tempor ary custody of the children to either the children's maternal grandparents or their maternal great aunt and uncle. {¶ 5} On April 18, 2018, appellee filed motions for permanent c ustody due to the parents being unable to make any significant progress on the ca se plans and the children should not or could not be placed with either parent within a r easonable amount of time.Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 3 Mother's motions for temporary custody were to be heard at the permanent custody hearing. Hearings were held before a magistrate on February 15 , and 22, 2019. Prior to the hearings, mother orally moved to amend her motions for temp orary custody to motions for legal custody to either of the aforementioned relat ives. By decisions filed July 22, 2019, the magistrate denied the motions for legal custody a nd granted appellee's motions for permanent custody. {¶ 6} Each parent filed objections. By judgment entries filed October 1, 2019, the trial court denied the objections, approved and adopted the mag istrate's decisions, and granted permanent custody of the children to appellee. {¶ 7} Appellant-Father filed an appeal in each case and this ma tter is now before this court for consideration. 1 The assignments of error in each of the three appeals are identical and are as follows: I {¶ 8} "THE MAGISTRATE ABUSED ITS DISCRETION WHEN IT DENIED MOTHER'S MOTION TO GRANT LEGAL CUSTODY OF ALL THREE MINOR CHILDREN TO EITHER MATERNAL GRANDPARENTS OR IN THE ALTERNATIVE TO MATERNAL GREAT AUNT AND UNCLE [C. AND T. A.] AND ERRED IN GRANT ING THE LICKING COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES PERMANENT CUSTODY OF THE MINOR CHILDREN." II

1 Mother also filed appeals (Case Nos. 2019 CA 00111, 2019 CA 001 12, and 2019 CA 00113), and her arguments will be reviewed therein.Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 4 {¶ 9} "THE TRIAL COURT ERRED IN F INDING THAT THE BEST INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY." I {¶ 10} In his first assignment of error, father claims the tria l court abused its discretion in denying mother's motions for legal custody to rel atives. We disagree. {¶ 11} R.C. 2151.353(A)(3) states the following in pertinent pa rt:

(A) If a child is adjudicated an abused, neglected, or depende nt child, the court may make any of the following orders of disposition: (3) Award legal custody of the child to either parent or to an y other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child or is identified as a proposed legal custo dian in a complaint or motion filed prior to the dispositional hearing byany party to the proceedings.

{¶ 12} We agree with the following analysis set forth by our co lleagues from the Eighth District in In re D.T., 8th Dist. Cuyahoga Nos. 100970 and 100971, 2014-Ohio4818, ¶ 19-22:

Legal custody is significantly different than the termination of parental rights in that, despite losing legal custody of a chil d, the parent of the child retains residual parental rights, privileges, and res ponsibilities. InLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 5
re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 14, citing R.C

. 2151.353(A)(3)(c). In such a case, a parent's right to regain custody is not permanently foreclosed. In re M.J.M. [8th Dist. Cuyahoga No. 94130, 2010- Ohio-1674] at ¶ 12. For this reason, the standard the trial co urt uses in making its determination is the less restrictive "preponderance of the evidence." Id. at ¶ 9, citing In re Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 (7th Dist.2001). "Preponderance of the evidence" me ans evidence that is more probable, more persuasive, or of greater probative value. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7. Unlike permanent custody cases in which the trial court is gui ded by the factors outlined in R.C. 2151.414(D) before terminating par ental rights and granting permanent custody, R.C. 2151.353(A)(3) does not pr ovide factors the court should consider in determining the child's be st interest in a motion for legal custody. In re G.M. at ¶ 15. We must presume that, in the absence of best interest factors in a legal custody case, " the legislature did not intend to require the consideration of certain factors as a predicate for granting legal custody." Id. at ¶ 16. Such factors, however, are instructive when making a determination as to the child's best interest. In re E.A. [8th Dist. Cuyahoga No. 99065, 2013-Ohio-1193] at ¶ 13. The best interest factors include, for example, the interactio n of the child with the child's parents, relatives, and caregivers; the custodial history of the child; the child's need for a legally secure permanent p lacement; and whether a parent has continuously and repeatedly failed to subs tantiallyLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 6
remedy the conditions causing the child to be placed outside th e child's home. R.C. 2151.414(D). Because custody determinations " 'are some of the most difficu lt and agonizing decisions a trial judge must make,' " a trial judge m ust have broad discretion in considering all of the evidence. In re E.A. at ¶ 10, quoting Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We therefore review a trial court's determination of legal custody for an abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). An abuse of discretion implies that the court's attitude is unr easonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Accord, In re L.D., 10th Dist. Franklin No. 12AP-985, 2013-Ohio-3214; Stull v. Richland County Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48, 2012-Ohio-738.

{¶ 13} Final hearings were held on February 15, and 22, 2019. On the morning of the first hearing date, mother orally moved to amend her motion s for temporary custody to motions for legal custody to either the children's maternal grandparents (F.M. and E.M.) or their maternal great aunt and uncle (C.A. and T.A.). T. at 7-8. The magistrate acknowledged that the grandparents and the great aunt signed a statement of understanding form as required under R.C. 2151.353(A)(3). T. a t 8. {¶ 14} The children's maternal grandmother, F.M., testified she and her husband live in a three bedroom mobile home. T. at 12. They have enou gh income to meet all ofLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 7

their financial needs as well as the children's. T. at 14. Sh e was aware of the oldest child having special needs, but the child was getting help and that w ould continue. T. at 15. She could not testify to the child's special needs "because I d on't know." T. at 27. She was not aware of any issues with the younger two children. T. at 15. She had sisters and sisters-in-law as a support system to help out. Id. She did not know the children's birthdates. T. at 31. She has visited with the children and t hey are bonded. T. at 16. She never filled out paperwork seeking placement because "it ha ppened so fast" and the original caseworker told her not to bother because they would n ot get the children. T. at 19-20. F.M. stated she had convictions for a DWI in 2009 and o ne in 2012, and a drug related charge, "but I went to rehab, I finished that, and I've been clean for five years." T. at 20-21. She no longer consumes alcohol. T. at 21-22. Her d rug related charge was abusing harmful intoxicants in 2013. T. at 22. She denied hav ing a substantiated physical abuse case with Children's Services when mother was a child, st ating, "[t]hat went nowhere," "I never went to court for none of that." T. at 23, 43. She stated she has always wanted the children. T. at 27. {¶ 15} F.M.'s husband, E.M., testified he understood the oldest child had special needs as the child was autistic. T. at 47. He has visited wit h the children and they are bonded. T. at 49-50. He testified he was prepared to have the children in his home. T. at 50. However, in October 2018 and again just prior to the he aring, E.M. told the guardian ad litem he did not think it was feasible for him and his wife to care for the children. T. at 55. Overnight he changed his mind. Id. He explained "there were doubts whether we would be able to handle them and everything, and she has guaranteed meLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 8 or promised me that she's had a change of heart and that she re ally wants to do it so I agreed with her." T. at 56. He did not know the children's bi rthdates. T. at 66. {¶ 16} The children's maternal great aunt, C.A., testified she was aware that the oldest child had autism, and she would be able to meet the chil d's special needs. T. at 77. She lives in a three bedroom home with her husband and her seventeen year old child. T. at 78. She and her husband have enough income to me et all of their financial needs as well as the children's. T. at 79-80. She has a close bond with the oldest child because at one time, her older daughter was taking care of the child. T. at 81. She really did not know much about the youngest child. Id. The oldest child was removed because C.A.'s daughter failed to complete the required paperwork. T. at 85. The original caseworker asked C.A. to take a drug screen, but she refused. T. at 83. C.A. tried to visit with the children once a week until the oldest child was removed from her daughter's care. T. at 86-87. C.A. wanted the children, but did nothing to follow up because she was "waiting to hear what everything was going on because I'd b een kinda of in the loop. I don't really know where the children are, what's going on wit h them." T. at 88. The guardian ad litem called C.A. and left two voice messages that she acknowledged receiving, but never returned his calls. T. at 92-93, 347-348. C.A. never had all three of the children over at the same time. T. at 95. She did not kno w the children's birthdates. T. at 101. {¶ 17} The foster mother of the oldest child testified the chil d's been diagnosed with autism and cognitive delays. T. at 125, 129-130. She exp lained the child's behaviors and the in home treatment she provides for the child. T. at 12 6-127. She opined the childLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 9
"takes a lot of care, a lot of constant care and [the child's] always going to take a lot of constant care for the rest of [the child's] life." T. at 128. {¶ 18} Rebecca Inboden is the family's ongoing caseworker. She testified the maternal grandmother would not be able to pass a home study bec ause of her criminal history. T. at 268. Plus she had "demonstrated some fairly in appropriate and uncooperative behavior towards agency staff." Id. Maternal grandfather stated he could not care for the children by himself. T. at 269. Maternal gre at aunt "acknowledged that she had a history of substance abuse and that she had sought tr eatment for that." T. at 269-270. Appellee asked her to do a random drug screen, but sh e refused. T. at 297. There was also a concern that her husband had a domestic violen ce conviction in the past; therefore, C.A. and her husband would have been excluded as potential relative options for the children. T. at 270. C.A. was told she could visit with the children. She visited in February of 2018, and did not return for any more vi sits. T. at 300-301. Ms. Inboden opined the relatives "would be probably very overwhelme d very quickly with the children's needs, and how young the children are, and how exten sive the needs are, and the level of care that's involved." T. at 300. {¶ 19} In his decisions filed July 22, 2019, the magistrate not ed several concerns with the maternal grandparents, the most notable was his concer n with F.M.'s "apparent lack of knowledge about these children." F.M. was not able to testify to the oldest child's special needs because she just did not know. Given the foster mother's testimony as to this child's significant needs, it is apparent F.M. "has no rea l idea" as to what the child's needs are. The magistrate noted this is especially important g iven the fact that the maternal grandparents "are on the fence about becoming permanen t custodians for theseLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 10
children." They admitted to telling the guardian ad litem on m ore than one occasion that they could not care for the children, but changed their minds t he night before the hearing. This was a concern as they "don't seem fully committed to takin g on responsibility for these three children." The magistrate concluded the following: "Given the hesitance of the two to take on this task, the scale of the task presented b y three young [children] and the exceptional needs of [J.], the undersigned simply cannot se e how this would work long-term. For these reasons, the motion of Mr. and Mrs. [M.] for custody should be denied." {¶ 20} The magistrate had the same concerns with C.A. It was u nclear whether she understood all that was involved in caring for the oldest c hild's special needs and add to that "the needs of caring for two other young children and i t seems that Ms. [A.], though acting with good intentions, has not demonstrated that she is a ble and willing to take on these three children and meet their needs permanently." The ma gistrate concluded her request for legal custody should be denied. {¶ 21} Upon review, based upon a preponderance of the evidence presented as outlined above, we cannot say the trial court abused its discre tion in denying the motions for legal custody. {¶ 22} Assignment of Error I is denied. II {¶ 23} In his second assignment of error, father claims the tri al court erred in finding clear and convincing evidence that the children's best interests would be best served by granting permanent custody to appellee. We disagree.Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 11 {¶ 24} R.C.2151.414(B)(1) states permanent custody may be grant ed if the trial court determines, by clear and convincing evidence, that it is in the best interest of the child and:

(a) The child is not abandoned or orphaned * * * and the child cannot be placed with either of the child's parents within a reasonabl e 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 ch ild who are able to take permanent custody. (d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies fo r twelve or more months of a consecutive twenty-two-month period * * *. (e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudica ted an abused, neglected, or dependent child on three separate occasio ns by any court in this state or another state.

{¶ 25} Clear and convincing evidence is that evidence "which wi ll provide in the mind of the trier of facts a firm belief or conviction as to th e facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of th e syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). "Where the degree of proof required to sustain an issue must be clear and convincing, aLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 12
reviewing court will examine the record to determine whether th e trier of facts had sufficient evidence before it to satisfy the requisite degree o f proof." Cross at 477. {¶ 26} R.C. 2151.414(E) sets out the factors relevant to determ ining whether a child cannot be placed with either parent within a reasonable p eriod of time or should not be placed with the parents. Said section states in pertinent p art the following:

(E) In determining at a hearing held pursuant to division (A) o f 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 paren t within a reasonable period of time or should not be placed with the pare nts, 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: (1) Following the placement of the child outside the child's ho me and notwithstanding reasonable case planning and diligent efforts b y the agency to assist the parents to remedy the problems that initially cau sed the child to be placed outside the home, the parent has failed continuous ly and repeatedly to substantially remedy the conditions causing the c hild to be placed outside the child's home. In determining whether the pa rents haveLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 13
substantially remedied those cond itions, the court shall consid er parental utilization of medical, psychiat ric, psychological, and other s ocial and rehabilitative services and materi al resources that were made a vailable to the parents for the purpose of changing parental conduct to all ow them to resume and maintain parental duties. (16) Any other factor the court considers relevant.

{¶ 27} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in determining the best interest of a child:

(D)(1) In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall consider all relevant factors, including, but not limited to, the following: (a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; (b) 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; (c) The custodial history of the child, including whether the c hild has been in the temporary custody of one or more public children se rvicesLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 14 agencies or private child placing agencies for twelve or more m onths of a consecutive twenty-two-month period, or the child has been in t he temporary custody of one or more public children services agenc ies or private child placing agencies for twelve or more months of a c onsecutive 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 t emporary custody of an equivalent agency in another state; (d) The child's need for a legally secure permanent placement a nd whether that type of placement can be achieved without a grant of permanent custody to the agency; (e) Whether any of the factors in divisions (E)(7) to (11) of t his section apply in relation to the parents and child.

{¶ 28} Father does not contest the fact that the children were placed in appellee's temporary custody on May 19, 2017, adjudicated on July 12, 2017 , and the permanent custody hearings were held on February 15, and 22, 2019. As fo und by the trial court, the children have been in appellee's custody for over twelve mo nths of a consecutive twenty-two-month period. R.C. 2151.414(B)(1)(d). {¶ 29} Ms. Inboden testified the initial concerns with the fami ly were domestic violence between mother and father, mental health concerns for mother, and substance abuse concerns for both parents. T. at 236-237. Father's case plan addressed mental health and substance abuse issues, and medical neglect of the c hildren. T. at 237-238, 257. At the initial intake in May 2017, father tested positive for amphetamines,Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 15
methamphetamine, and THC. T. at 258. Father self-referred for substance abuse services at LAPP, but did not complete the program and his case was "closed non successful, uncompliant." T. at 260-261. Father's substance a buse continued to be an ongoing problem. He tested positive for drugs on multiple rand om drug screens, and refused drug screens on at least two occasions. T. at 244-245, 259-260, 281-282, 313- 314. Father's substance abuse remains a concern. T. at 261. {¶ 30} As for mental health, father had a past diagnosis of PST D which he felt was no longer relevant. T. at 262. Also, there was a concern of d omestic violence. Id. Father never produced verification of undergoing any mental health eva luation. T. at 263, 311. Father's mental health remains a concern. Id. {¶ 31} Father's parenting skills were an issue as the two older children had developmental delays i.e., difficulties with speech, articulati on, communicating. T. at 250, 263. Father attended one or two classes at Heartbeats, a pregn ancy and parenting support facility, but did not follow through. T. at 263-264. Father's parenting skills remain a concern. T. at 264. {¶ 32} Father's employment and housing were not an issue until he and mother separated and he moved to North Carolina to live with his broth er. T. at 264-265. Father provided verification of employment in North Carolina. T. at 2 65. {¶ 33} Father regularly visited with the children and the visit s went "[v]ery well," he was "very attentive and engaged with the kids." T. at 266. He even traveled from North Carolina for visitations. T. at 199, 303.Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 16 {¶ 34} The children were in foster care and were making remarka ble progress. T. at 266-268. Their basic and special needs were being met, and their respective foster parents wanted to adopt them. T. at 114, 128-129, 266, 268, 30 9. {¶ 35} Ms. Inboden stated the case plan services have not been completed and "what has been attempted, doesn't appear to be sufficient to al leviate the concerns or provide any reassurance that t he children's needs will be met a nd they'll be safe." T. at 274. {¶ 36} Scott Sidner is the guardian ad litem. He testified he observed visits between father and the children and they went "[r]eally well." T. at 338-339. He could tell father "loved the kids and vice versa." T. at 340-341. F ather responded appropriately to the children's behaviors and redirected the children when ne cessary. T. at 340. He "was doing really well in the last part of the visits, not just his section but coming there and interacting with the kids and everything." T. at 341. How ever, he did not believe father was capable of meeting the basic and special needs of th e children. T. at 357. It was his opinion that granting permanent custody to the agency w ould be in the children's best interests. T. at 358. {¶ 37} Father testified at the time of the hearing, he and moth er had been separated for eight months. T. at 197-198. He lived in North Carolina with his brother and his family in a rented home. T. at 197. He travels to Ohi o every two weeks to visit with the children. T. at 199. He acknowledged that he was giv en a copy of the case plan, and understood what was required: maintain employment/income, s ubstance abuse assessment and treatment, and mental health counseling. T. at 200-201. He was currently employed and received disability income. T. at 199-2 00, 206. He completedLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 17
LAPP education, but did not follow up on recommended services b ecause "I wanted to get something that showed a completion, a certificate." T. at 201-202. Instead he completed an online program through Open Path. T. at 202; Fath er's Exhibit B. However, he admitted to testing positive for illegal substances after co mpleting the program and using marijuana in the past few months prior to the hearing. T . at 202-203. He did not refuse one of the drug screens, he just wanted to wait "to allo w the time to actually have to urinate." T. at 320, 330-331. He received a mental health discharge from the VA in 2015. T. at 326-327; Father's Exhibit C. He did not seek any additional mental health evaluation other than ongoing reevaluation with a VA therapist "just to see if there's any need for any further concern. They deemed nothing at that poin t. That there was no further concern for any continuous evaluation." T. at 203-204, 327-328. He felt his continuous involvement with the VA was satisfactory. T. at 328 . He stated he took an online parenting class. T. at 209, 324-326; Father's Exhibit A . Although the oldest child was not his child, he consider the child to be his, and was awa re of the child's special needs. T. at 204. Father stated Ms. Inboden had told him that he would never get his children back as long as he stayed with mother. Id. {¶ 38} On the issue of permanent custody regarding father, the magistrate found the children had been in the agency's temporary custody for twe nty months of a consecutive twenty-two month period, and father "has also made minimal progress" on his case plan objectives. See Magistrate's Decisions filed July 22, 2019. While he did engage in mental health services through the VA, participated i n an online program for substance abuse, and took an online parenting class, he admitte d to continued "substance abuse through much of the case." He did not have in dependent housing andLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 18 lived out of state. The magistrate found father "may be worse off than when the case started as well." The magistrate further noted because father now lives in North Carolina, the Interstate Compact for the Placement of Children (hereinaft er "ICPC") applied in this case. As quoted by the magistrate, Article VI(A) of the ICPC s tates, " 'no child subject to this compact shall be placed into a receiving state until appro val for such placement is obtained.' " Article VI(B) states if " 'the public child placi ng agency in the receiving state does not approve the proposed placement then the child shall no t be placed.' " The trial court did not receive any such approval from North Carolina; th erefore, the magistrate could not recommend an order of placement with father. The mag istrate recommended the termination of parental rights, and determined "the best wa y for these children to achieve stability and permanency is through adoption." The mag istrate recommended permanent custody of the children to the agency. By judgment e ntries filed October 1, 2019, the trial court denied father's objections and approved a nd adopted the magistrate's decisions. {¶ 39} As explained by our brethren from the Second District in In re A.J.S. & R.S., 2d Dist. Miami No. 2007CA2, 2007-Ohio-3433, ¶ 22:

Accordingly, issues relating to the credibility of witnesses an d the weight to be given the evidence are primarily for the trier of fact. In this regard, "[t]he underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is be st able to view the witnesses and observe their demeanor, gestures and voice in flections, and use these observations in we ighing the credibility of the p rofferedLicking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 19
testimony." Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. Finally, an appellate court must adhere t o every reasonable presumption in favor of the trial court's judgment a nd findings of fact. In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240, citing Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638 N.E.2d 533.

{¶ 40} Further, " 'the discretion which the juvenile court enjo ys in determining whether an order of permanent custody is in the best interest o f 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 con cerned.' " In re Mauzy Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, *2 (Nov. 13, 2000), quoting In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994). {¶ 41} From the testimony, it is clear that father loves his ch ildren and wishes to parent them. However, the evidence is also clear that despite the services and caseworkers available to him for some twenty-one months, he has not been able to maintain the services and/or successfully complete them. The c hildren are thriving in their respective foster homes and appear to be healthy and happ y. Given the evidence presented, it is impossible for this court to second guess the trial court. As stated above, credibility, reliability, and forthrightness are within the pro vince of the trier of fact. {¶ 42} Upon review, we find sufficient clear and convincing evi dence to support the trial court's decisions to terminate father's parental rights a nd grant permanent custody of the children to the agency.Licking County, Case Nos. 2019 CA 00108, 2019 CA 00109, 2019 CA00110 20 {¶ 43} Assignment of Error II is denied. {¶ 44} The judgments of the Court of Common Pleas of Licking Co unty, Ohio are hereby affirmed. By Wise, Earle, J. Delaney, P.J. and Baldwin, J. concur.
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