[Cite as In re J.J., 2020-Ohio-1020.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: J.J.. & A.J. 

 

 

JUDGES: 

: Hon. William B. Hoffman, P.J. 

: Hon. W. Scott Gwin, J. 

: Hon. Earle E. Wise, J. 

: 

: 

: Case Nos. 2019CA00167 : 

 2019CA00168 

: 

: 

: OPINION 

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of 

Common Pleas, Family Court Division, 

Case Nos. 2018JCV00724 & 

2018JCV00725 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: March 16, 2020 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

BRANDON J. WALTENBAUGH DEAN L. GRASE 

Stark County JFS 700 Courtyard Centre 

402 2nd St. S.E. 116 Cleveland Avenue NW 

Canton, OH 44702 Canton, OH 44702 
[Cite as In re J.J., 2020-Ohio-1020.]

Gwin, .J. 

{¶1} Appellant-mother [“Mother”] appeals the October 9, 2019 Judgment Entry 

of the Stark County Court of Common Pleas, Family Court Division, which terminated her 

parental rights with respect to her minor children and granted permanent custody of the 

children to appellee, Stark County Jobs and Family Services [“SCJFS”]. 

Facts and Procedural History 

{¶2} On July 12, 2018, SCJFS filed a complaint alleging the dependency and/or 

neglect of J.J. (b. 06.13.2011) and A.J. (b. 07.01.2016)1. 

{¶3} On July 13, 2018, the trial court held an emergency shelter care hearing 

and found that probable cause existed for the involvement of SCJFS, continued 

residence of the children in the home would be contrary to their best interests and welfare, 

and SCJFS made reasonable efforts to prevent the need for placement and/or to make 

it possible for the children to return home or remain in the home. The trial court also placed 

the children into the emergency temporary custody of SCJFS. 

{¶4} On August 28, 2018, the trial court found the children to be dependent and 

placed them into the temporary custody of SCJFS. The trial court also approved and 

adopted the case plan and found that SCJFS had made reasonable efforts to prevent the 

need for the continued removal of the children from the home. 

{¶5} On January 9, 2019, the trial court reviewed the case. The trial court approved 

and adopted the case plan, found that SCJFS had made reasonable efforts to finalize the 

permanency planning in effect, and ordered status quo. 

 1 A third child, A.K. (b. 03.27.2010) was originally included in the complaint; however, Mother 

stipulated to permanent custody of this child. (T. Aug. 6, 2019 at 3; 18-19; T. Oct 7, 2019 at 3-4). 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 3 

{¶6} On May 31, 2019, SCJFS filed motions seeking permanent custody of the 

children. 

{¶7} On June 7, 2019, the trial court again reviewed the case. The trial court 

approved and adopted the case plan, found that SCJFS had made reasonable efforts to 

finalize the permanency planning in effect, and ordered status quo. At this hearing, the 

trial court found that there were no compelling reasons to preclude a request for 

permanent custody to SCJFS. 

{¶8} On August 6, 2019, the trial court heard evidence on the motions seeking 

permanent custody of the children. At the hearing, Mother stipulated to SCJFS's motions 

requesting permanent custody of her children. The trial court underwent a dialogue 

with Mother about her rights associated with the hearing and the ramifications of stipulating 

to permanent custody. (T. Aug. 6, 2019 at 3-9). Mother signed a form confirming her 

desire to waive those rights and stipulate to permanent custody. (Id. at 3-9). Due to the 

stipulations and the subsequent testimony, the trial court granted permanent custody of 

the children to SCJFS. (T. Aug. 6, 2019 at 18-19). 

{¶9} On September 27, 2019, Mother filed motions requesting to withdraw her 

prior stipulations to permanent custody concerning A.J. and J.J. Those motions were set 

for a hearing on October 7, 2019. 

{¶10} On September 30, 2019, the Guardian ad Litem for the children submitted a 

report recommending that the children be placed into the permanent custody of SCJFS. 

{¶11} On October 7, 2019, the trial court heard evidence on the motions seeking 

permanent custody of the children and on Mother’s motions to withdraw her prior 

stipulations. The trial court granted Mother’s motions to withdraw her prior stipulations 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 4 

and proceeded with evidence on the permanent custody motions. . 

Permanent Custody Hearing, October 7, 2019. 

{¶12} Caseworker Kimberly Gabel testified for SCJFS. Ms. Gabel testified that 

Mother had not completed her case plan and had not significantly reduced the risk she 

posed to her children. Specifically, Ms. Gabel testified that Mother's case plan required 

her to complete a parenting assessment, maintain sobriety, engage in substance abuse 

services, engage in mental health services, and obtain appropriate housing and 

employment. 

{¶13} Caseworker Gabel testified that the night before the children were taken 

into temporary custody of SCJFS, the children had witnessed a shooting in the home 

of Mother’s drug-dealer paramour. (T. Oct. 7, 2019 at 16-17). 

{¶14} Caseworker Gabel testified that Mother completed a parenting 

assessment and was diagnosed with alcohol use disorder, cannabis use disorder, 

simulant use disorder, opiate use disorder, major depressive disorder with recurrent 

psychosis, generalized anxiety disorder, rule-out bipolar personality disorder, dependent 

personality disorder, and borderline personality disorder. Ms. Gabel testified that, in 

addition to the previous services, the parenting evaluation recommended for Mother to 

complete a psychiatric evaluation, participate in anger management services, and obtain 

four months of sobriety prior to initiating parenting classes. Caseworker Gabel testified 

that Mother had tested positive for opiates, methamphetamine, cocaine, and/or 

barbiturates at least 25 times throughout the case. In fact, Ms. Gabel testified that Mother 

was positive for barbiturates, opiates, and marijuana on the day of the trial. Caseworker 

Gabel testified that she "almost begged" Mother to engage in substance abuse services, 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 5 

to no avail. Ms. Gabel testified that Mother did not complete a psychiatric evaluation and 

had been inconsistent with her mental health treatment. Ms. Gabel testified that Mother 

did not participate in anger management services. Caseworker Gabel testified that she 

was not aware of Mother's employment status and was unable to verify that Mother had 

appropriate housing. On cross-examination, Ms. Gabel testified that Mother had 

consistently stated that she was not doing any residential services. 

{¶15} Mother testified on her own behalf. Mother admitted that she quit intensive 

outpatient treatment for her drug use. Mother further acknowledged she did not have 

independent housing. Mother testified she had not completed a psychiatric evaluation and 

was not taking medication to address her mental health issues. Mother admitted she did 

not have stable employment. 

{¶16} Mother testified that she had an appointment for Section 8 housing the 

following day, after having been on the waiting list for 4 years. (T. Oct. 7, 2019 at 24). 

In the Judgment Entry filed August 18, 2018, the Magistrate noted that, “Mother has 

reached out to Phoenix Rising on her own to set up counseling.” See, Docket Entry No. 

38. The Magistrate further noted that, “mother has been consistent with visitation and 

does well.” 

{¶17} At trial, Mother further testified that she is on the waiting list for in-patient 

drug treatment. Mother testified that she attempted intensive outpatient treatment, but 

transportation became an issue for her. The Case Plan Review Packet, filed Jan. 9, 

2019, noted that the assessment by Northeast Ohio Behavioral Health recognized 

Mother may have difficulty mainlining sobriety as an outpatient, and may need residential 

treatment. Docket No. 46 at 3. 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 6 

{¶18} Mother was previously employed as a landscaper with her stepfather and 

at a factory in Cuyahoga Falls. Mother stated that she passed drug tests at her 

employment, so may have had some short-term sobriety. The Case Plan Review 

Packet, filed Jan. 9, 2019 indicated that Mother had been employed as a waitress and 

had provided screenshot verifying her pay to SCJFS. Case Plan Review Packet, filed 

Jan. 9 2019, at 5. Docket Entry No. 46. 

{¶19} Mother testified that she believed she could address the case plan concerns 

if the trial court granted a six-month extension of temporary custody. 

{¶20} The court heard testimony concerning the best interest of the children. Ms. 

Gabel testified that one of the children is in counseling. Ms. Gabel testified that the 

children were placed together in a foster home. Ms. Gabel testified that the foster parents 

were interested in adoption. The children are bonded with each other and with the foster 

family. Caseworker Gabel testified that S.T., Mother’s stepfather recently came forward 

indicating a desire for placement of the children. Ms. Gabel testified that SCJFS had not 

yet completed a formal home study for S.T., and that he has concerning criminal and 

children services history. Ms. Gabel testified that S.T. had initiated the process of 

becoming a foster parent. Ms. Gabel testified that S.T. would be considered for adoption 

if he became a foster parent and permanent custody was granted. 

{¶21} Ms. Gabel testified that visits between Mother and the children were a 

"rollercoaster ride of emotion" due to Mother’s cycling from crying to falling asleep to being 

combative and angry. On cross-examination, Ms. Gabel testified that the children are 

bonded with their Mother. Despite the bond, Ms. Gabel testified that she believed 

permanent custody of the children was in their best interests. 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 7 

{¶22} S.T. testified for Mother. S.T. testified that he is Mother’s stepfather. S.T. 

testified that Appellant's mother was a drug addict. S.T. testified that he had past 

involvement with children services. S.T. testified that he was about to start the process 

of becoming a foster parent. S.T. testified that he was going to pursue adopting the 

children. S.T. testified that he was "disappointed" in Mother for the events that led to the 

removal of the children from her home. 

{¶23} The Guardian ad Litem for the children, made a statement. She testified 

that permanent custody of the children was in their best interests. 

{¶24} The trial court took the matter under advisement. 

{¶25} On October 9, 2019, the trial court issued its findings of fact granting 

permanent custody of the children to SCJFS and terminating Mother's parental rights. 

Specifically, the trial court found that, despite reasonable efforts by SCJFS, the children 

could not be placed with Mother within a reasonable amount of time, the children had 

been in the temporary custody of SCJFS for 12 or more months in a consecutive 22-month 

period, and permanent custody was in the children's best interests. 

Assignment of Error 

{¶26} Mother raises one Assignment of Error: 

{¶27} “I. THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY 

TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) 

AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT 

ADEQUATE GROUNDS EXISTED FOR A GRANT OF PERMANENT CUSTODY AND 

THEREFORE SUCH DECISION WAS CONTRARY TO THE MANIFEST WEIGHT OF 

THE EVIDENCE.” 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 8 

{¶28} At the outset, we note that SCJFS concedes that the trial court was incorrect 

in finding that the children had been in the continuous custody of SCJFS for 12 of 22 

months (Appellant’s Brief at 12). However, in the case at bar, the trial court provided 

additional finding pursuant to R.C. 2151.414(B)(1) and R.C. 2151.414(E) upon which to 

base a grant of permanent custody. 

{¶29} Mother argues that the Trial Court abused its discretion in finding that there 

was Clear and Convincing Evidence that these children could not or should not be placed 

with the parent within a reasonable amount of time. When the Motion for Permanent 

Custody was filed, Mother still had an approximately fifteen-month window in which to 

achieve sobriety. Such finding that this could not be achieved in the available time period 

was contrary to the manifest weight of the evidence and therefore the trial court's granting 

of Permanent Custody to the SCJFS should be reversed. (Mother’s Brief at 16-17). 

BURDEN OF PROOF. 

{¶30} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re 

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405 

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody, 

and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S. 

745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent's 

rights has been described as, “* * * the family law equivalent to the death penalty in a 

criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991). 

Therefore, parents “must be afforded every procedural and substantive protection the law 

allows.” Id. 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 9 

{¶31} An award of permanent custody must be based upon clear and convincing 

evidence. R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and 

convincing evidence” as “[t]he measure or degree of proof that will produce in the mind 

of the trier of fact a firm belief or conviction as to the allegations sought to be established. 

It is intermediate, being more than a mere preponderance, but not to the extent of such 

certainty as required beyond a reasonable doubt as in criminal cases. It does not mean 

clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d 

23 (1986). 

STANDARD OF APPELLATE REVIEW.

{¶32} 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. 

{¶33} Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court 

of appeals will affirm the trial court's findings “if the record contains competent, credible 

evidence by which the court could have formed a firm belief or conviction that the essential 

statutory elements for a termination of parental rights have been established.” In re 

Adkins, 5th Dist. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 

242557, ¶17. 

{¶34} In Cross, the Supreme Court further cautioned, 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 10 

 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). 

Requirements for Permanent Custody Awards 

{¶35} 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. 

{¶36} 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 Nos. 2019CA00167 & 2019CA00168 11 

 (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 Nos. 2019CA00167 & 2019CA00168 12 

{¶37} 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. 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 

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, 1997 WL 701328 (Sept. 21, 1998); 

In re Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145(Apr. 10, 1991). 

{¶39} R.C. 2151.414(E) sets forth factors a trial court is to consider in determining 

whether a child cannot be placed with either parent within a reasonable period of time or 

should not be placed with the parents. Specifically, Section (E) provides, in pertinent part, 

as follows: 

 (E) In determining at a hearing held pursuant to division (A) of this 

section or for the purposes of division (A)(4) of section 2151.353 of the 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 13 

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: 

 (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. 

* * * 

(16) Any other factor the court considers relevant. 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 14 

{¶40} 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. 

{¶41} “Reasonable efforts” have been described as the state's efforts to resolve a 

threat to a child's health or safety before removing the child from the home or permitting 

the child to return home, which follow an intervention to protect a child from abuse or 

neglect. See In re C.F., 113 Ohio St. 3d 73, 862 N.E. 2d 816, 2007- Ohio-1104, ¶ 28, 

citing Will L. Crossley, Defining Reasonable Efforts: Demystifying the State's Burden 

Under Federal Child Protection Legislation (2003), 12 B.U. Pub.Int.L.J. 259, 260. These 

efforts are required because of the fundamental nature of the right to parent one's 

children. In re C.F., ¶ 21. 

{¶42} The Ohio Supreme Court has held that the trial court is not obligated by 

R.C. 2151.419 to make a determination that the agency used reasonable efforts to reunify 

the family at the time of the permanent custody hearing unless the agency has not 

established that reasonable efforts have been made prior to that hearing. See In re C.F.,

113 Ohio St.3d 73, 2007–Ohio– 104, ¶ 41; ¶ 43; See, also, R.C. 2151.419. The trial court 

is only obligated to make a determination that the agency has made reasonable efforts to 

reunify the family at “adjudicatory, emergency, detention, and temporary-disposition 

hearings, and dispositional hearings for abused, neglected, or dependent children, all of 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 15 

which occur prior to a decision transferring permanent custody to the state.” In re C.F. at 

¶ 41. 

{¶43} A parent’s successful completion of the terms of a case plan is not 

dispositive on the issue of reunification. The ultimate question under R.C. 2151.414(A)(1) 

is whether the parent has substantially remedied the conditions that caused the child’s 

removal. In re Shchigelski, 11th Dist. No. 99–G–2241, 2000 WL 1568388 (Oct. 20, 2000); 

In re McKenzie, 9th Dist. No. 95CA0015, 1995 WL 608285 (Oct. 18, 1995). A parent can 

successfully complete the terms of a case plan yet not substantially remedy the conditions 

that caused the children to be removed-the case plan is simply a means to a goal, but not 

the goal itself. Hence, the courts have held that the successful completion of case plan 

requirements does not preclude a grant of permanent custody to a social services agency. 

In re J.L., 8th Dist. No. 84368, 2004–Ohio–6024, ¶20; In re Mraz, 12th Dist. Nos. 

CA2002–05–011, CA2002–07–014, 2002–Ohio–7278. 

{¶44} The trial court had the discretion, consistent with the best interests of the 

children, to determine whether to grant Mother a six-month extension of temporary 

custody. See R.C. 2151.415(D) (1). See, also, In re T.W., C.W., F.W., & R.W., 9th Dist. 

No. 21594, 2003–Ohio–7185, ¶ 6; In re E.T., C.D., & Cr.D., 9th Dist. Summit No. 227290, 

2005-Ohio-6087, ¶9. An abuse of discretion can be found where the reasons given by 

the court for its action are clearly untenable, legally incorrect, or amount to a denial of 

justice, or where the judgment reaches an end or purpose not justified by reason and the 

evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re 

Guardianship of S .H. 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State 

v. Firouzmandi, 5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54. 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 16 

{¶45} R.C. 2151.415(D)(1) provides that, 

 The court may extend the temporary custody order of the child for a 

period of up to six months, if it determines at the hearing, by clear and 

convincing evidence, that the extension is in the best interest of the child, 

there has been significant progress on the case plan of the child, and there 

is reasonable cause to believe that the child will be reunified with one of the 

parents or otherwise permanently placed within the period of extension. 

* * * 

{¶46} In the case at bar, the record reflects that Mother tested positive for drugs 

26 times during the course of the proceedings, including the day of the permanent custody 

hearing. Mother did not accomplish more than a minuscule compliance with only a few 

of the case plan requirements. In other words, Mother did not demonstrate “significant 

progress” on the case plan, nor does the record reflect that the children could be reunited 

with Mother within the period of the extension. Providing more services to an individual 

who has not availed herself of the services already provided or made available to her is 

not required. We find no abuse of discretion in not granting Mother an additional 6-month 

extension of temporary custody. 

{¶47} 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 children, and the testimony of the witnesses at trial. The trial court was in the best 

position to determine the credibility of the witnesses. Nothing in the record of this case 

suggests that Mother’s behavior would change if given more time to work on her case 

plan. 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 17 

{¶48} The evidence demonstrated very little success 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 his case 

plan, she was still not able to be a successful parent to these children. It appears that 

Mother cannot raise her children without the structure and the support of SCJFS. Without 

the involvement of numerous outside resources, Mother simply is unable to maintain a 

safe and structured environment in the home and to remain drug free. 

{¶49} 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. 

{¶50} Based upon the foregoing, as well as the entire record in this case, the Court 

properly found the children could not or should not be returned to Mother within a 

reasonable time. Despite offering numerous services, Mother was unable to mitigate the 

concerns that led to the children’s removal.

The Best Interest of the Child. 

{¶51} Mother set forth no assignment of error, or argument concerning the “best 

interest of the children.” 

{¶52} 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 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 18 

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. 

{¶53} 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. 

{¶54} The trial court made findings of fact regarding J.J. and A.J.’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). 

{¶55} 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 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 19 

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). 

{¶56} 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 J.J. and A.J.’s best 

interest. The trial court concluded the child's need for legally secure placement could not 

be achieved without awarding permanent custody to SCJFS. 

Conclusion 

{¶57} For these reasons, we find that the trial court’s determination that AppellantMother had failed to remedy the issues that caused the initial removal and therefore the 

children could not be placed with her within a reasonable time or should not be placed 

with her was based upon competent credible evidence and is not against the manifest 

weight or sufficiency of the evidence. 

{¶58} We further find that the trial court’s decision that permanent custody to 

SCJFS was in the child's best interest was based upon competent, credible evidence and 

is not against the manifest weight or sufficiency of the evidence. 
Stark County, Case Nos. 2019CA00167 & 2019CA00168 20 

{¶59} Because the evidence in the record supports the trial court’s judgment, we 

overrule Appellant-Mother’s sole assignments of error, and affirm the decision of the Stark 

County Court of Common Pleas, Family Court Division. 

By Gwin, J., 

Hoffman, P.J., and 

Wise, Earle, J., concur