[Cite as In re R.T., 2013-Ohio-1139.]

COURT OF APPEALS 

 STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: 

 R.T., JR. 

 

 

: JUDGES: 

: Patricia A. Delaney, P.J. 

: Sheila G. Farmer, J. 

: John W. Wise, J. 

: 

: Case No. 2012CA00220 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from Stark County 

 Court of Common Pleas, Family 

Court Division, Case No. 

2010JCV01342 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: March 18, 2013 

APPEARANCES: 

For Stark County Job and For Appellant 

Family Services 

 AARON KOVALCHIK 

JAMES B. PHILLIPS 116 Cleveland Ave., N.W. 

221 Third Street, S.E. Suite 808 

Canton, Ohio 44702 Canton, Ohio 44702 

 
[Cite as In re R.T., 2013-Ohio-1139.]

Delaney, J. 

{¶1} Appellant, T.W. (mother), appeals from the November 1, 2012, Judgment 

Entry of the Stark County Court of Common Pleas, Family Court Division, terminating 

her parental rights and granting permanent custody of R.T., Jr. to Stark County 

Department of Job and Family Services. 

STATEMENT OF THE FACTS AND CASE

{¶2} R.T., Jr. (DOB 8/19/09) is the child of appellant T.W. and R.T., who is not 

part of this appeal. On November 30, 2010, the child was placed into the emergency 

temporary custody of Stark County Department of Job and Family Services (“SCDJFS”). 

On December 1, 2010, SCDJFS filed a complaint alleging that R.T., Jr. was a neglected 

and/or dependent child. As memorialized in a Magistrate’s Order filed on December 2, 

2010, R.T., Jr. was placed in the temporary custody of SCDJFS following a shelter care 

hearing. 

{¶3} Thereafter, on February 1, 2011, appellant stipulated to a finding of 

dependency and the trial court found R.T., Jr. to be a dependent child. The court 

ordered that the child remain in the temporary custody of SCDJFS. 

{¶4} On July 19, 2012, SCDJFS filed a motion requesting a change of legal 

custody of R.T., Jr. to a relative. SCDJFS, in its motion, alleged that appellant had lost 

housing, continued using marijuana, had not completed case plan services, and was 

unable to care for R.T., Jr. However, after the relative indicated that he was no longer 

willing to accept custody of R.T., Jr. or to maintain his placement, SCDJFS, on August 

28, 2012, filed an amended motion seeking permanent custody of R.T., Jr. 
Stark County App. Case No. 2012 CA 00220 3 

{¶5} A hearing on SCDJFS’ motion was held on October 23, 2012. At the 

hearing, Cheri Smith, a caseworker with SCDJFS, testified that R.T., Jr. had never been 

out of the temporary custody of the agency since November 30, 2010. Smith testified 

that she prepared a case plan for appellant that addressed concerns over drug abuse, 

instability in employment and housing, and domestic violence between appellant and 

R.T., Jr.’s father. The case plan required appellant to attend Well Child appointments for 

R.T., Jr. so that she would remain informed about his health, to submit to random urine 

screens, to submit to alcohol and substance abuse assessments at Quest and follow all 

recommendations, and to complete a parenting assessment at Northeast Ohio 

Behavioral Health and to follow any recommendations. Northeast Ohio Behavioral 

Health recommended that appellant attend Renew, maintain stable housing and 

employment, attend individual counseling, and attend Goodwill Parenting classes. Smith 

testified that appellant completed a parenting evaluation and Goodwill Parenting. 

Appellant, however, did not complete Renew. Smith testified that appellant “went for 

several months, October, November, and December of last year she attended Renew. 

However, in February she did not go back. She was scheduled again for a 

reassessment on 8/21 of 2012 and she no-showed for that assessment...” Transcript at 

10. 

{¶6} Appellant also failed to complete Quest. According to Smith, appellant had 

been doing well, but dropped out and cancelled a reassessment that had been 

scheduled for August over substance abuse concerns. Appellant had testified positive 

for marijuana on May 14, 2012. Smith testified that appellant missed six sessions at 
Stark County App. Case No. 2012 CA 00220 4 

Quest that she needed to complete. On October 11, 2012, appellant again tested 

positive for marijuana. 

{¶7} Smith further testified appellant had recently become employed part-time 

as a secretary, but that appellant had failed to maintain any form of stable employment 

during the two years of the case. She testified that appellant was only employed one 

other time for a brief period during the pendency of the case. Appellant also lacked 

housing, having lost her housing in March of 2012. Smith testified that appellant told her 

that she was staying with her father, but refused to give Smith the address. As a result, 

Smith was unable to determine if the house was appropriate or not. 

{¶8} Smith, when asked, indicated that she had concerns about appellant being 

involved with R.T., Jr.’s father. She testified that she had been told by relatives and 

others that appellant and R.T. were still involved, but that appellant denied such 

involvement. Smith further testified that appellant had a history of going back to R.T. 

The following testimony was adduced when Smith was asked whether she believed that 

appellant had completed enough services to reduce the risk to the child: 

{¶9} “A. No, I do not. 

{¶10} “Q. Why do you say that? 

{¶11} “A. Because just recently I’ve had a urine screen, or not, sorry, a swab, 

where she was positive for marijuana. She was very well informed. We had our 

conversations and I’m sure she has also spoken with her attorney about what needed to 

be done still, like Quest and Renew. She does not have housing. I can’t confirm or 

deny whether the home that she’s currently staying in is appropriate for [R.T., Jr.] I 
Stark County App. Case No. 2012 CA 00220 5 

don’t see where we’ve made much of any progress from when I became involved in this 

case to this point.” Transcript at 13. 

{¶12} Smith also testified that appellant visited with R.T., Jr. consistently 

throughout the case and that she loved him and he had a bond with her. She testified 

that the agency could not grant any more extensions in this case and that she believed 

that the child would be at risk if returned to appellant because appellant used marijuana, 

lacked stable housing, and there were concerns that she was still involved with R.T. 

She testified that she did not believe that appellant had made much progress during the 

case. 

{¶13} On cross-examination, Smith testified that appellant had completed Quest 

Women’s Issues Group, but had not completed the entire Quest program. Smith 

testified that although appellant successfully completed Goodwill Home Based 

parenting, there were concerns over appellant smoking in the home because R.T., Jr. 

had asthma. The following testimony was adduced when Smith was asked why the child 

was never returned home even though appellant had successfully completed Goodwill 

Home Based: 

{¶14} “A. She completed, yes. 

{¶15} “Q. Okay, but yet we never returned them? 

{¶16} “A. No, we did not. 

{¶17} “Q. Even though at the particular time her urine screens were clean and 

she had housing. 

{¶18} “A. She did. 
Stark County App. Case No. 2012 CA 00220 6 

{¶19} “Q. She had completed at least enough of the program to permit home 

visits. 

{¶20} “A. Yes. 

{¶21} “Q. So what happened from the time where we’re ready to return to now 

we have a motion for Permanent Custody pending? 

{¶22} “A. Well, first of all there’s been a quite a bit of time that’s gone by since 

then. There were concerns that Mom’s residence I was alerted that there were 

concerns at Mom’s residence that the Father was harassing her and that there was 

some more domestic violence issues that were occurring. 

{¶23} “Q. Anyone charged with domestic violence? 

{¶24} “A. I have the reports. There were no charges, but there were numerous 

calls to her residence for that reason.” Transcript at 17-18. 

{¶25} On cross-examination, Smith testified that appellant had three or four 

sessions left at Renew when she left. She also testified that appellant maintained the 

same housing from September of 2011 until March of 2012. According to Smith, a 

majority of appellant’s urine screens were dirty. Smith also testified that she was still 

receiving reports of possible domestic violence between appellant and R.T. after 

appellant had dropped out of the Renew program. 

{¶26} At the best interest portion of the hearing, Smith testified that the child had 

been in the temporary custody of the agency since November 30, 2010. She testified 

that the child was Caucasian, was around three years old, and that he has asthma that 

was not being treated with medication. Smith testified that R.T., Jr. was very angry and 

that he had had severe temper tantrums and kicked and bit. In a previous home, he had 
Stark County App. Case No. 2012 CA 00220 7 

pushed a two year old down some steps. According to Smith, in the two different homes 

that he had been in, R.T., Jr. spread feces on the walls and furniture and urinated in a 

closet. She testified that he had been in a new home since September 10, 2012, and 

was not exhibiting such behavior in the current foster home. 

{¶27} In total, R.T., Jr. has had six placements. Smith testified that a couple 

were due to his behaviors and that some were because of attempts to reunite him with 

the family. He was initially placed with an aunt, but had to be moved because the aunt 

allow appellant and R.T. access to R.T., Jr. The child then did well in the foster home 

until he was moved into a house with his sister, who was medically fragile. Smith 

testified that at such time, they started seeing the above behavioral problems. Because 

that foster mother was unable to handle the behavioral problems, R.T., Jr. was moved 

back to the original foster home. After that foster family was no longer willing to adopt 

R.T., Jr. he was placed with appellant’s stepfather and his current partner in June of 

2012. Smith testified that R.T., Jr. did well for a while, but that then his behavior 

worsened and he pushed a two year old down some steps. R.T., Jr. was then moved to 

his current foster home. Smith also testified that he had had been in such home since 

September 10, 2012 and that such foster family, who had two other adopted children 

with similar behaviors, was interested in adopting him. 

{¶28} When asked, Smith testified that two other relatives had come forward to 

be considered for home placement. One was appellant’s cousin who never came into 

be fingerprinted and did not call back to have the home study completed despite being 

contacted numerous times by the agency. The second was the father’s sister. Smith 

testified that, after a home study, the sister was approved, but that the sister told Smith 
Stark County App. Case No. 2012 CA 00220 8 

that she could only care for R.T., Jr. on a temporary basis until appellant and R.T., Jr. 

got their act together. Such relative did not want to adopt the child. 

{¶29} Smith testified that there was a bond between appellant and R.T., Jr. and 

that R.T., Jr. loved appellant. Smith testified that the interaction between appellant and 

R.T., Jr. had been limited and that he had seen her every couple of weeks over the last 

two years, Smith voiced concerns that appellant did not interact enough with R.T., Jr. 

during the visits. When asked if the benefit of permanent custody outweighed any harm 

in breaking the bond between appellant and her son, Smith testified affirmatively and 

indicated that R.T., Jr. needed stability and had been moved around too much. 

{¶30} On cross-examination, Smith testified that R.T., Jr. did not exhibit any of 

the behavioral problems during his visits with appellant. She admitted that it was not 

until R.T., Jr. had been moved into the same home as his sister that he began exhibiting 

behavioral problems. 

{¶31} At the hearing, father R.T.’s sister testified that she was unwilling to adopt 

R.T., Jr. but would keep him temporarily until appellant and R.T. got their act together. 

She testified that she could not guarantee that she and her husband would be willing to 

keep R.T., Jr. until he turned 18 and that it was not her intention to do so. She testified 

that she would not put R.T., Jr. in harm’s way by returning him to his parents. 

{¶32} At the hearing, the Guardian ad Litem testified that appellant’s ICAN 

housing had been cancelled over concerns about domestic violence and that the 

“domestic violence thing has been going on for years,..” Transcript at 55. She also 

stated that she observed the last visit that appellant had with R.T., Jr. and that during 

the two hour visit, appellant was on the phone for at least 45 minutes and that the rest 
Stark County App. Case No. 2012 CA 00220 9 

of the time appellant had little interaction with R.T., Jr. She stated that it was in the 

child’s best interest for permanent custody to be granted to the agency. 

{¶33} Pursuant to a Judgment Entry filed on November 1, 2012, the trial court 

terminated appellant’s parental rights and granted permanent custody of R.T., Jr. to 

SCDJFS. On the same date, the trial court filed Findings of Fact and Conclusions of 

Law. 

{¶34} Appellant now raises the following assignments of error on appeal: 

{¶35} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD 

CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A 

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY 

OF THE EVIDENCE. 

{¶36} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST 

INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF 

PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND 

SUFFICIENCY OF THE EVIDENCE.” 

I, II 

{¶37} Appellant, in her two assignments of error, argues that the trial court erred 

in awarding permanent custody of the child to SCDJFS. Appellant specifically contends 

that SCDJFS failed to prove by clear and convincing evidence that the child could not or 

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

award of permanent custody was in the child's best interest. 

{¶38} 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, 
Stark County App. Case No. 2012 CA 00220 10 

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, 

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. 

{¶39} 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). 

{¶40} 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. 

{¶41} 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 
Stark County App. Case No. 2012 CA 00220 11 

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 

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

March 18, 1999. 

{¶42} 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. 

{¶43} 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. 

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

child 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 
Stark County App. Case No. 2012 CA 00220 12 

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. 

{¶45} 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. 

{¶46} The trial court determined that the child could not be placed with appellant 

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

findings: 

{¶47} “(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.” 
Stark County App. Case No. 2012 CA 00220 13 

{¶48} A review of the record supports the trial court's decision that the child 

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 

that caused the child to be removed. As is stated above, there was testimony that 

appellant had lost her housing in March of 2012, claimed that she was living with her 

father, and then refused to give the agency her address. As a result, the agency was 

unable to determine if the housing was appropriate for R.T., Jr. In addition, appellant 

lacked stable employment throughout the case. While there was testimony that 

appellant obtained part-time employment in September of 2012, there was testimony 

that she had one other short term period of employment during pendency of the case. 

Moreover, appellant failed to attend Well Child appointments as required and had tested 

positive for marijuana on May 14, 2012 and October of 2012. In addition, appellant did 

not complete at Quest and dropped out of Renew with three or four sessions to go. As 

noted by the trial court in its decision, there were also was continuing concerns about 

appellant’s ongoing relationship with R.T., which had been violent in the past. 

Furthermore, the trial court voiced concerns over appellant’s smoking in the home while 

knowing that R.T., Jr. had asthma. 

{¶49} 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 
Stark County App. Case No. 2012 CA 00220 14 

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

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

agree. 

{¶50} At the hearing, there was testimony that R.T., Jr., who had been in the 

agency’s custody since November 30, 2010, had significant behavioral problems and 

that he had been moved six times during the pendency of the case. Smith testified that 

his current foster parents had experience with children with similar issues and that they 

had adopted two such children and were interested in adopting R.T., Jr. Smith further 

testified that R.T., Jr. needed a stable permanent home and that he had been moved 

around too much. When asked if the benefit of permanent custody outweighed any 

harm in breaking the bond between appellant and her son, Smith testified affirmatively. 

Furthermore, the Guardian ad Litem, in her November 1, 2012, Report, recommended 

that permanent custody be granted to the agency. The Guardian noted that appellant 

had lost her housing, had stopped attending Quest and had an ongoing drug problem. 

{¶51} In addition, there was testimony that R.T., Jr. had only seen appellant 

every other week for the past two years. As is stated above, there also was testimony 

that appellant, during her visits with R.T., Jr., did not interact with him enough and, 

during one visit, spent a great deal of time on the phone. 

{¶52} Appellant, in her brief, notes that a family member with an approved home 

study was willing to take custody of R.T., Jr. However, this family member clearly stated 

that she was not interested in adopting R.T., Jr. and was only interested in keeping him 

on a temporary basis until appellant and R.T. could get their acts together. 
Stark County App. Case No. 2012 CA 00220 15 

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

that R.T., Jr. could not or should not be placed with appellant within a reasonable period 

of time and that the grant of permanent custody to the agency was in his best interest. 

{¶54} Appellant’s two assignments of error are, therefore, overruled. 

{¶55} Accordingly, the judgment of the Stark County Court of Common Pleas, 

Family Court Division, is affirmed. 

By: Delaney, P.J. 

Farmer, J. and 

Wise, J. concur 

______________________________ 

______________________________ 

______________________________ 

 JUDGES 

PAD/d0304 
[Cite as In re R.T., 2013-Ohio-1139.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: : 

 : 

 R.T., JR. : 

 : 

 : 

 : JUDGMENT ENTRY 

 : 

 : 

 : 

 : CASE NO. 2012 CA 00220 

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

judgment of the Stark County Court of Common Pleas, Family Court Division, is 

affirmed. Costs assessed to Appellant. 

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 JUDGES