[Cite as In re H.M., 2013-Ohio-237.]

COURT OF APPEALS 

 TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: 

H.M., H.M. AND G.M. 

 

 

: JUDGES: 

: Patricia A. Delaney, P.J. 

: William B. Hoffman, J. 

: Sheila G. Farmer, J. 

: 

: Case No. 2012 AP 09 0056 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County 

 Court of Common Pleas, Juvenile 

Division, Case No. 10 JN 00584 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: January 11, 2013 

APPEARANCES: 

For Appellee-Tuscarawas County For Appellant-C.S. 

Job and Family Services 

DAVID HAVERFIELD JOHN A. GARTRELL 

389 – 16th Street, S.W. Assistant Public Defender 

New Philadelphia, Ohio 44663 153 N. Broadway 

 New Philadelphia, Ohio 44663 

Guardian Ad Litem For Father-Gabriel Mortier 

KAREN DUMMERMUTH DOUG JACKSON 

349 East High Avenue 214 N. Dawson Street 

New Philadelphia, Ohio 44663 Dennison, Ohio 44621 

 
[Cite as In re H.M., 2013-Ohio-237.]

Delaney, P.J. 

{¶1} Appellant, C.S. (mother), appeals from the August 13, 2012 Judgment 

Entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, terminating 

her parental rights and granting permanent custody of H.M., H.M., and G.M. to 

Tuscarawas County Job and Family Services. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Appellant is the mother of H.M. (DOB 10/20/04), H.M. (DOB 11/28/05) and 

G.M. (DOB 1/20/07). Appellant and the children’s father, who is not part of this appeal, 

have never been married. 

{¶3} On November 22, 2010, Tuscarawas County Job and Family Services 

(hereinafter “TCJFS”) filed a complaint alleging that the children were neglected and 

dependent children. The complaint alleged, in part, that appellant had no housing and 

had failed to meet the basic needs of her children. Pursuant to a Judgment Entry filed 

the same day, the children were placed in the temporary custody of TCJFS. Appellant 

was granted supervised visitation with the children “as is acceptable to TCJFS”. 

{¶4} An adjudicatory hearing was held on December 22, 2010. At the hearing, 

appellant stipulated that the children were neglected and dependent children and the 

trial court found them to be neglected and dependent children. The trial court ordered 

that the children would remain in the temporary custody of TCJFS. 

{¶5} A case plan was filed with the court on December 22, 2010. The plan 

required appellant to complete a psychological evaluation and follow any treatment 

recommendations, to participate in parenting education classes and domestic violence 
Tuscarawas County App. Case No. 2012 AP 09 0056 3 

counseling and to obtain appropriate housing. The plan also required appellant to 

obtain steady employment and to provide for the basic needs of her children. 

{¶6} A dispositional hearing was held on January 18, 2011. As memorialized in 

a Judgment Entry filed on January 19, 2011, the trial court, upon consent of the parties 

and the recommendation of the Guardian Ad Litem, ordered that the children remain in 

the temporary custody of TCJFS. The trial court also adopted the case plan and ordered 

that appellant’s visits with the children would remain supervised. 

{¶7} On October 3, 2011, TCJFS filed a motion seeking a six month extension 

of its temporary custody. TCJFS, in its motion, indicated that appellant had completed a 

psychological evaluation and was actively engaged in counseling, that she had 

completed parenting education and that her visits with the children went well. TCJFS 

further alleged that appellant lacked any source of income and was residing in a one 

bedroom apartment. 

{¶8} Appellant, on November 10, 2011, filed a motion seeking expanded 

visitation with the children on the basis that she had complied with her case plan. The 

trial court, pursuant to a Judgment Entry filed on December 1, 2011, granted TCJFS’ 

motion to extend temporary custody, but did not grant appellant increased visitation with 

the children. 

{¶9} On April 2, 2012, TCJFS filed a motion seeking permanent custody of the 

children. TCJFS, in its motion, alleged that the children had been in the temporary 

custody of the agency for a period in excess of twelve out of the prior twenty-two 

months and that appellant had failed to alleviate the conditions that caused the children 

to be placed with the agency. A hearing on such motion was held on August 9, 2012. 
Tuscarawas County App. Case No. 2012 AP 09 0056 4 

{¶10} At the hearing, Kristina Blick, case manager at TCJFS, testified that the 

children had consistently been in the agency’s custody since November of 2010. She 

testified that the children were placed in the agency’s custody because appellant moved 

from place to place and lived with “some inappropriate individuals” and that the basic 

needs of the children were not being met. T. at 3. According to Blick, the family had a 

substantial history of involvement with child welfare agencies not only in Tuscarawas 

County, but also in Georgia where they previously had resided. The issues in Georgia 

concerned lack of stable housing, neglect and concerns of domestic violence. 

{¶11} Blick testified that a case plan was developed for appellant that required 

her to complete a psychological examination and to follow any recommendations, to 

complete a parenting class and domestic violence counseling, and to be able to provide 

for the children’s basic needs in terms of income and housing. Appellant completed a 

psychological evaluation. The following testimony was adduced when Blick was asked 

whether specific treatment recommendations were made for appellant: 

{¶12} “A. Yes. 

{¶13} “Q. Okay, what additional services was she required to do? 

{¶14} “A. He [Dr. Dean at Community Mental Healthcare] recommended 

individual counseling, uh, he also recommended that she see a physician regarding her 

depression, and that she obtain employment by possibly being referred to the Bureau of 

Vocational Rehabilitation, also that she be required to obtain her GED, and he 

recommended parent education. 
Tuscarawas County App. Case No. 2012 AP 09 0056 5 

{¶15} “Q. Okay, uh, so since follow (sic) the recommendations of the 

psychological were part of the case plan, she was then required to complete those 

items as well, correct? 

{¶16} “A. Right. 

{¶17} “Q. Alright, has she completed counseling? 

{¶18} “A. Um, she started counseling early on in the case at Community Mental 

Healthcare with Rosie Das. She attended about four to six sessions, and she 

[appellant] terminated that in June of 2011. She’s recently reported that she’s started 

seeing a counselor again, um, McKenzie Povlinko at Personal and Family Counseling 

Services. Carrie was only willing to sign a release for us to verify her attendance at 

those sessions. So she started, uh, at the end of June, attending weekly. 

{¶19} “Q. So there was about a year gap in there where she wasn’t doing any 

counseling? 

{¶20} “A. Correct. 

{¶21} “Q. Okay, and as far as her recent counseling, she’s unwilling to allow you 

access to whatever information the counselor has, correct? 

{¶22} “A. Right, other than that she’s attending. 

{¶23} “Q. Okay, alright, from your perspective, has she successfully completed 

that part of her case plan? 

{¶24} “A. No.” T. at 5-6. 

{¶25} Blick further testified that appellant successfully completed parenting 

classes and domestic violence counseling, but had not obtained her GED and had not 

been employed since the start of the case. While appellant was referred for services to 
Tuscarawas County App. Case No. 2012 AP 09 0056 6 

the Bureau of Vocational Rehabilitation, Blick testified that appellant never followed 

through after a work assessment was performed on her and that the Bureau closed 

appellant‘s case because they did not have a current address for her. Appellant never 

followed through with the program to see if she could obtain employment, but claimed 

that her doctors told her that she could not work due to back issues. 

{¶26} Blick further testified that appellant had no income and no residence of her 

own and that, in her opinion, appellant was not in any position to provide for the basic 

needs of her children. She further testified that appellant was not in any better position 

now than when the case was initiated to meet such needs. 

{¶27} Blick was questioned about appellant and her visitation with her children. 

She testified that appellant had consistently visited with the children throughout the case 

and that the visits remained supervised. According to Blick, the visits went well. 

{¶28} Blick further testified that the children were all placed together in the same 

foster home and had been during the entire time that they were in foster care. She 

testified that the children were doing well in their foster home and that the foster parents 

were interested in adopting them if permanent custody was granted to the agency. 

While a relative home study was conducted to determine if the parental grandparents, 

who resided in Georgia, were suitable, Blick testified that the state of Georgia would not 

approve placement and that the agency was unable to pursue that as an option. Blick 

further testified that she believed that it would be in the best interest of the children for 

permanent custody to be granted to the agency. 

{¶29} On cross-examination, Blick testified that appellant terminated counseling 

because she did not like talking to people about her personal life and did not feel that 
Tuscarawas County App. Case No. 2012 AP 09 0056 7 

counseling was helping her. She further testified that appellant had applied for social 

security disability benefits due to physical issues caused by back problems, but had 

been denied twice and was appealing. Blick testified that appellant told her that 

appellant’s doctor said that she could not work. 

{¶30} At the hearing, appellant testified that she was residing with a family friend 

and had been doing so for about a month. She testified that she previously had been 

renting an apartment, but had no way to pay her bills. According to appellant, she was 

trying to get social security disability benefits. Appellant admitted that she had not had 

income for the last fourteen months, but testified that she had received six months of 

public assistance. Appellant also admitted that she had never followed up with the 

Rehabilitation Services Commission and testified that she had no disc in her lower back 

and had trouble sitting for long periods of time. She testified that her back problems 

were a result of an epidural that she had received when her daughter was born. She 

also testified that she never obtained her GED because “it was just a suggestion...” and 

that she never had the motivation to get one. T. at 46-47. When questioned about her 

counseling, appellant testified that she stopped attending because she did not like the 

counselor. Appellant was unable to specify how she would provide for her children if she 

did not receive social security disability benefits. She admitted that she had done 

nothing since her social security appeal was denied in April of 2012 to secure 

employment. 

{¶31} The following is an excerpt from appellant’s testimony at the hearing: 

{¶32} “Q. The problem is, ma’am, that if we look back and we say, we go back 

to, um, we go back to January of 2006 is when Tuscarawas County opened the case, or 
Tuscarawas County App. Case No. 2012 AP 09 0056 8 

had an investigation, we can go back 2006, 2007, 2008 is when we first start seeing, in 

writing, children are dirty, family in the homeless shelter, uh, family without furniture and 

mattresses. I mean, we have at least four years of showing failure to provide for the 

children. That’s your responsibility, would you agree, that none of us have a 

responsibility to provide for your children but the parents? 

{¶33} “A. Correct. 

{¶34} “Q. Okay, we have at least four years, most likely when we go back to 

2006, January of 2006, Tusc. County, home in poor condition, mom not taking care of 

the children, dad playing Xbox. Help Me Grow was involved at that time. 

{¶35} “A. Correct. 

{¶36} “Q. So we have issues dating all the way back to 2006. Now we’ve got a 

case plan that clearly outlines what you have to do to get the children returned, okay, 

and you’re saying you have food stamps so that should be enough? 

{¶37} “A. No, there’s assistance out there for people who need it.” T. at 55-56. 

{¶38} At the hearing, Chris Tracey, a supervised visitation monitor with Personal 

and Family Counseling, testified that she supervised visitation between appellant and 

her children. The visitation was for two hours a week. Tracey testified that appellant 

missed five visits and had attended approximately 50 visits. According to Tracey, the 

visits went well and the children entered the room smiling. Tracey testified that she had 

no concerns with appellant’s visits and that it appeared appellant loved her children and 

that they loved her. 

{¶39} Pursuant to a Judgment Entry filed on September 10, 2012, the trial court 

terminated appellant’s parental rights and granted permanent custody of the three 
Tuscarawas County App. Case No. 2012 AP 09 0056 9 

children to TCJFS. The trial court found that the children could not and should not be 

placed with either parent within a reasonable time and that appellant and the children’s 

father had failed to substantially remedy the conditions causing the children to be 

removed. The trial court further found that the children had been in the temporary 

custody of TCJFS for a period in excess of twelve out of the prior twenty-two months. 

{¶40} Appellant now raises the following assignment of error on appeal: 

{¶41} “THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING 

PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS JOB AND FAMILY 

SERVICES FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT 

THE CHILDREN COULD NOT BE PLACED WITH MOTHER IN A REASONABLE 

AMOUNT OF TIME, AND THAT AN AWARD OF PERMANENT CUSTODY WAS IN 

THE CHILDREN’S BEST INTEREST.” 

I 

{¶42} Appellant, in her sole assignment of error, argues that the trial court erred 

in awarding permanent custody of the children to TCJFS. Appellant specifically 

contends that TCJFS failed to prove by clear and convincing evidence that the children 

could not be placed with appellant within a reasonable amount of time and that an 

award of permanent custody was in the children’s best interest. 

{¶43} As an appellate court, we neither weigh the evidence nor judge the 

credibility of the witnesses. Our role is to determine whether there is relevant, 

competent, and credible evidence upon which the finder of fact could base its judgment. 

Cross Truck Equipment Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758, 1982 

WL 2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent, 
Tuscarawas County App. Case No. 2012 AP 09 0056 10 

credible evidence going to all the essential elements of the case will not be reversed as 

being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr., 54 

Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. 

{¶44} Issues relating to the credibility of witnesses and the weight to be given to 

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d 

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is 

“crucial in a child custody case, where there may be much evident in the parties' 

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77 

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997). 

{¶45} 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 the 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. 

{¶46} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to 

grant permanent custody of the child to the public or private agency if the court 

determines, by clear and convincing evidence, it is in the best interest of the child to 

grant permanent custody to the agency, and that any of the following apply: (a) the child 

is not abandoned or orphaned, and the child cannot be placed with either of the child's 

parents within a reasonable time or should not be placed with the child's parents; (b) the 

child is abandoned; (c) the child is orphaned and there are no relatives of the child who 

are able to take permanent custody; or (d) the child has been in the temporary custody 

of one or more public children services agencies or private child placement agencies for 
Tuscarawas County App. Case No. 2012 AP 09 0056 11 

twelve or more months of a consecutive twenty-two month period ending on or after 

March 18, 1999. 

{¶47} In determining the best interest of the child at a permanent custody 

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors, 

including, but not limited to, the following: (1) the interaction and interrelationship of the 

child with the child's parents, siblings, relatives, foster parents and out-of-home 

providers, and any other person who may significantly affect the child; (2) the wishes of 

the child as expressed directly by the child or through the child's guardian ad litem, with 

due regard for the maturity of the child; (3) the custodial history of the child; and (4) the 

child's need for a legally secure permanent placement and whether that type of 

placement can be achieved without a grant of permanent custody. 

{¶48} 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, a 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. 

{¶49} In this case, the trial court found by clear and convincing evidence that 

the children had been in the temporary custody of a public children services agency for 

twelve or more months of a consecutive twenty-two-month period pursuant to R.C. 

2151.414(B)(1)(d). Appellant does not challenge the trial court's finding. This finding 

alone, in conjunction with a best-interest finding, is sufficient to support the grant of 

permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118, 2008–Ohio–5458, ¶ 45. 
Tuscarawas County App. Case No. 2012 AP 09 0056 12 

{¶50} If the child is not abandoned or orphaned, the focus turns to whether the 

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

not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all 

relevant evidence before making this determination. The trial court is required to enter 

such a finding if it determines, by clear and convincing evidence, that one or more of the 

factors enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of 

the child's parents. 

{¶51} The trial court determined that the children could not be placed with 

appellant within a reasonable time pursuant to R.C. 2151.414(E)(1), which requires the 

following findings: 

{¶52} “(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 the purpose of changing parental conduct to allow them to resume and maintain 

parental duties.” 

{¶53} A review of the record supports the trial court's decision that the children 

cannot be placed with appellant within a reasonable time and that the agency provided 

reasonable case planning and diligent efforts to assist appellant to remedy the problems 
Tuscarawas County App. Case No. 2012 AP 09 0056 13 

that caused the children to be removed. The record indicates that appellant has had a 

long history with children’s services involvement, both in Ohio and Georgia. As noted 

by the trial court, appellant has no income, has failed to obtain her GED due to lack of 

motivation and has failed to follow through with counseling and with vocational training. 

Appellant, on her own, terminated counseling for a year because she did not like her 

counselor and did not like revealing personal details. While she recently started 

counseling, she refused to provide TCJFS with a release. In addition, appellant does 

not have her own housing and is not employed. As noted by the trial court in its 

decision, appellant “is completely unable and unwilling to meet her parental 

responsibilities.” 

{¶54} We next turn to the issue of best interest. We have frequently noted, “[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. No. 2000CA00244, 2000 

WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 

424 (8th Dist. 1994). The trial court determined it was in the best interest of the children 

to be placed in the permanent custody of appellee pursuant to R.C. 2151.414(D), and 

we agree. 

{¶55} Testimony was adduced that the three children have been in the same 

foster home for a period of time and were doing well. In addition, there was testimony 

that the children had behavioral issues that had improved while they were in foster care. 

Testimony also was adduced that the foster parents were interested in adopting the 
Tuscarawas County App. Case No. 2012 AP 09 0056 14 

children. The Guardian Ad Litem, in her August 2, 2012 report, recommended that the 

children be placed in the permanent custody of TCJFS. The Guardian Ad Litem noted 

that, prior the children being in custody, the family was unstable and the parents had 

been unable to make the necessary changes. Clear and convincing evidence supports 

the trial court’s conclusion that it is in the best interest of the children to grant permanent 

custody to TCJFS. 

{¶56} Based on the foregoing, we find that the trial court did not err in awarding 

permanent custody of the children to TCJFS. 

{¶57} Appellant’s sole assignment of error is, therefore, overruled. 
Tuscarawas County App. Case No. 2012 AP 09 0056 15 

{¶58} Accordingly, the judgment of the Tuscarawas County Court of Common 

Pleas, Juvenile Division, is affirmed. 

By: Delaney, P.J. 

Hoffman, J. and 

Farmer, J. concur 

______________________________ 

______________________________ 

______________________________ 

 JUDGES 

PAD/d1218 
[Cite as In re H.M., 2013-Ohio-237.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: : 

 : 

H.M., H.M. AND G.M. : 

 : 

 : 

 : JUDGMENT ENTRY 

 : 

 : 

 : 

 : CASE NO. 2012 AP 09 0056 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is 

affirmed. Costs assessed to Appellant. 

 _________________________________ 

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 _________________________________ 

 JUDGES