[Cite as In re L.W., 2022-Ohio-1482.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF:

L.W.

Minor Child

JUDGES:

Hon. Earle E. Wise, Jr., P. J.

Hon. W. Scott Gwin, J.

Hon. John W. Wise, J. 

Case No. 2022 CA 00008

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, 

Juvenile Division, Case No. 2020 JCV 

00376

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 3, 2022

APPEARANCES:

For Appellee For Appellant Father

BRANDON J. WALTENBAUGH BERNARD L. HUNT

STARK COUNTY JFS 2395 McGinty Road, NW

402 2nd Street, SE North Canton, Ohio 44720

Canton, Ohio 44702
Stark County, Case No. 2022 CA 00008 2

Wise, John, J.

{¶1} Appellant-Father W.W. appeals the December 17, 2021, Judgment Entry 

entered by the Stark County Court of Common Pleas, Juvenile Division, which terminated 

his parental rights, privileges, and responsibilities with respect to his minor child, L.W., 

and granted permanent custody of the child to Appellee Stark County Department of Job 

and Family Services (“SCJFS”).

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant W.W. is the Father of the minor child L.W. born October 30, 2020. 

(T. at 10).

{¶3} On April 22, 2021, Stark County Job and Family Services ("SCJFS") filed a 

Complaint alleging the dependency, neglect, and/or abuse of L.W. (DOB 10/30/20). (T. 

at 10). The allegations of the Complaint detailed concerns regarding Appellant's history 

with SCJFS regarding a different child, his criminal history, substance use, untreated 

mental health, and history of not complying with case plan services. (T. at 8-9).

{¶4} On April 23, 2021, the trial court held an emergency shelter care hearing 

and found that probable cause existed for the involvement of SCJFS and that SCJFS had 

engaged in reasonable efforts to prevent the need for the removal of the child. The court 

found continued residence of the child with Appellant was contrary to his best interest of 

the child and approved and adopted the pre-adjudicatory orders requested by SCJFS, 

and granted temporary custody of the child to SCJFS. (T. at 10).

{¶5} On July 7, 2021, the trial court found the child to be abused and placed him 

into the temporary custody of SCJFS. (T. at 10). The trial court also approved and adopted 

the initial case plan, found that SCJFS had made reasonable efforts to finalize the 
Stark County, Case No. 2022 CA 00008 3

permanency planning in effect, and found compelling reasons existed to preclude a filing 

of permanent custody. (T. at 10).

{¶6} On September 23, 2021, SCJFS filed a motion seeking permanent custody 

of the child. (T. at 10-11). 

{¶7} On October 14, 2021, 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. The trial court also 

found that no compelling reasons existed to preclude a filing of permanent custody. (T. at 

11).

{¶8} On November 4, 2021, Attorney Kristen Guardado, the Guardian ad Litem 

for the child filed a report recommending that permanent custody be granted to the 

Agency.

{¶9} On December 16, 2021, the trial court conducted a hearing on the motion 

for permanent custody of the child. (Tr. at 3-23). 

{¶10} Mother of the child stipulated to the motion. (T. 4-7). 

{¶11} Appellant-Father did not attend the hearing. (T. at 2). Appellant-Father’s 

counsel requested a continuance and stated that he had not had contact with AppellantFather for "4 or 5 months". (T. at 7). The trial court denied that motion and proceeded with 

evidence. (T. at 7). 

{¶12} SCJFS presented the following evidence regarding Appellant-Father and 

the child:

{¶13} Caseworker Kimberly Gabel testified for SCJFS. (T. at 8-16). Caseworker

Gabel testified that she had been the assigned caseworker since December of 2020. (T. 
Stark County, Case No. 2022 CA 00008 4

at 9). Ms. Gabel testified that SCJFS had concerns regarding its history with AppellantFather regarding a different child, criminal history, substance use, untreated mental 

health, and history of not complying with case plan services. (T. at 8-9). Ms. Gabel 

testified that Appellant-Father had an active warrant for a drug-related offense. (T. at 9).

Ms. Gabel testified that SCJFS attempted to work with Appellant outside of the legal 

system, but it was unsuccessful. Id. Ms. Gabel testified that Appellant had not visited the

minor child since May 27, 2021. (T. at 13). Ms. Gabel testified that Appellant's case plan 

included completing domestic violence treatment, Goodwill parenting classes, a 

substance abuse assessment, and compliance with drug screens. (T. at 11). Ms. Gabel 

testified that Appellant failed to begin domestic violence treatment, failed to comply with 

substance abuse treatment, and failed to comply with drug screens. (T. at 12). She

testified that Appellant also failed to complete Goodwill parenting classes. (T. at 13). Ms. 

Gabel testified that Appellant was homeless and had only sporadic contact with her 

throughout the case. Id. SCJFS rested for its first portion of the permanent custody trial, 

and the trial court proceeded to the second phase of the trial. (T. at 16).

{¶14} SCJFS presented the following testimony regarding the best interests of the 

child:

{¶15} Caseworker Gabel testified that the child had multiple health issues due to 

being born prematurely and in utero exposure to drugs. (T. at 17). Ms. Gabel testified that 

the child has DiGeorge Syndrome, developmental delays, and multiple other issues. Id. 

Ms. Gabel testified that the child was placed with a third-party placement and that the 

family was adequately caring for L.W., that he was thriving there, and that the family

wanted to adopt the child. (T. at 18-19). Ms. Gabel testified that the placement family had 
Stark County, Case No. 2022 CA 00008 5

already adopted L.W.’s siblings. (T. at 18). Ms. Gabel testified that there was no bond 

between the child and Appellant-Father due to Appellant-Father having failed to visit the 

child since May 21, 2021. (T. at 20). Ms. Gabel further testified that the child would benefit 

from adoption, and that permanent custody was in his best interest. Id.

{¶16} Attorney Guardado, the Guardian ad litem, reiterated her recommendation 

that permanent custody was in the best interest of L.W., and that the child's placement 

was the "best possible placement". (T. at 21-22). 

{¶17} At the conclusion of testimony and evidence, the trial court granted the 

motion for permanent custody from the bench. (T. at 23).

{¶18} By Judgment Entry filed December 17, 2021, the trial court issued its 

findings of fact, granting permanent custody of the child to SCJFS and terminating the 

parental rights of Appellant-Father and mother. Specifically, the trial court found that, 

despite reasonable efforts by SCJFS, the child could not and should not be placed with 

Appellant-Father within a reasonable amount of time, that Appellant-Father had 

abandoned the child, and that the grant of permanent custody was in the child's best 

interests.

{¶19} It is from this judgment entry Father appeals, assigning the following errors:

ASSIGNMENTS OF ERROR

{¶20} "I. THE JUDGMENT OF THE COURT THAT L.W. (DOB 10-30-20) COULD 

NOT BE PLACED WITH THE FATHER WITHIN A REASONABLE PERIOD OF TIME 

WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. 
Stark County, Case No. 2022 CA 00008 6

{¶21} “II. THE TRIAL COURT'S JUDGMENT FINDING THAT L.W.'S BEST 

INTEREST WOULD BE SERVED BY GRANTING PERMANENT CUSTODY WAS 

AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

{¶22} This case comes to us on the expedited calendar and shall be considered 

in compliance with App.R. 11.2(C).

I., II.

{¶23} We elect to address Father's first and second assignments of error together. 

In his first assignment of error, Father maintains the trial court's finding L.W. could not be 

placed with him within a reasonable time was against the manifest weight and sufficiency 

of the evidence. In his second assignment of error, Father contends the trial court's finding 

an award of permanent custody was in the best interest of L.W. was against the manifest 

weight and sufficiency of the evidence

{¶24} 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 fact finder could base its judgment. Cross Truck v. 

Jeffries, Stark App. No. CA5758 (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).

{¶25} 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 
Stark County, Case No. 2022 CA 00008 7

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.

{¶26} 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 twelve or 

more months of a consecutive twenty-two month period ending on or after March 18, 

1999.

{¶27} 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.
Stark County, Case No. 2022 CA 00008 8

{¶28} 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.

{¶29} 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.

{¶30} As set forth in our Statement of the Facts and Case, supra, we find there 

was competent, credible evidence Father failed to remedy the problems which caused 

the removal of L.W. from the home. The trial court found by clear and convincing evidence 

that Appellant-Father had abandoned the child by failing to visit him for a period greater 

than 90 days, and that Appellant- Father had failed to remedy the conditions which caused 

the child to be placed in the care and custody of SCJFS.

{¶31} With respect to the best interest finding, the evidence revealed L.W. has no

bond with Father and only a minimal bond with Mother. L.W. is doing well in his foster 

placement and is bonded with the foster parents. The foster parents have already adopted 

three of his maternal cousins and wish to adopt him also. The foster parents have been 

strong advocates for L.W. with regard to his medical needs and have been able to secure 
Stark County, Case No. 2022 CA 00008 9

him care with a team out of Nationwide Hospital in Columbus which deals specifically with 

DiGeorge Syndrome. L.W. needs stability, routine and permanency in his life. 

Additionally, the guardian ad litem filed a report wherein she opined the best interest of

L.W. would be served by granting permanent custody to SCJFS. The GAL stated that 

L.W. “hit the lottery” with these foster parents.

{¶32} Based upon the foregoing, we find the trial court's findings that L.W. could 

not be placed with Appellant-Father within a reasonable time and that an award of 

permanent custody was in the child's best interest were not against the manifest weight 

of the evidence and were based upon sufficient evidence.

{¶33} Appellant-Father’s two assignments of error are overruled.

{¶34} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Juvenile Division, Stark County, Ohio, is affirmed. 

By: Wise, John, J.

Wise, Earle, P. J., and

Gwin, J., concur.

JWW/kw 0429