In re T.C.

[Cite as In re T.C., 2020-Ohio-882.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
T.C., X.C. & X.C. : Hon. Craig R. Baldwin, J.
:
:
: Case Nos. 2019CA00162 :
2019CA00163
: 2019CA00164
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
Nos. 2017JCV01061, 2017JCV01062,&
2017JCV01063
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 9, 2020
APPEARANCES:
For Appellee For Appellant
BRANDON J. WALTENBAUGH AARON KOVALCHIK
STARK COUNTY JFS 116 Cleveland Avenue N.W.
402 2nd St. S.E. Suite 808
Canton, OH 44702 Canton, OH 44702
Stark County, Case Nos. 2019CA00162, 2019CA00163,& 2019CA00164 2
Gwin, P.J.
{¶1} Appellant R.C. appeals from the September 26, 2019 judgment entry of the
Stark County Court of Common Pleas, Juvenile Division, terminating his parental rights
and granting permanent custody of T.C., X.C., and X.C., to the Stark County Department
of Job and Family Services (“SCDJFS”).
Facts & Procedural History
{¶2} R.C. is the father (“Father”) of T.C., born June 1, 2007, X.C., born May 26,
2009, and X.C., born October 25, 2010. E.L. is the mother (“Mother”) of the children.
{¶3} On August 25, 2017, SCDJFS filed a complaint of dependency and/or
neglect with regards to T.C., X.C., and X.C. The complaint alleged, in part, that Mother
was reported to be homeless after a domestic incident with her paramour, J.B; SCDJFS
provided Mother and the children with housing for one week; SCDJFS directed Mother to
contact the homeless hotline daily to find long-term housing; Mother never contacted the
homeless hotline and returned to live with J.B. with the children; Mother then would not
cooperate with the agency; the worker smelled marijuana during a home visit; Mother and
J.B. refused to take a drug screen; the children were taken into emergency custody on
August 24, 2017, after a drug raid on the home; Mother and J.B. were in the Stark County
Jail; and Father was in the Stark County Jail on a felonious assault charge.
{¶4} The trial court appointed Amy Petrick (“Petrick”) as guardian ad litem
(“GAL”) for the children on September 8, 2017. The trial court held a hearing on
November 6, 2017. The trial court deleted the allegations of neglect. Mother and Father
stipulated to a finding of dependency. The trial court placed the children into the
temporary custody of SCDJFS.
Stark County, Case Nos. 2019CA00162, 2019CA00163,& 2019CA00164 3
{¶5} The magistrate held a further dispositional hearing on February 20, 2018.
On April 25, 2018, SCDJFS filed a motion for immediate review/motion for no contact
order. In the motion, SCDJFS stated that Father had recently been released from prison
and was demanding visits with his children. The agency’s position was that visits between
Father and the children would be harmful until Father engaged in case management
services. After a hearing on May 3, 2018, the magistrate issued a judgment entry finding
that Father stipulated to the no contact order and that a no contact order would be in place
until it was therapeutically recommended by the children’s therapist/counselor that
contact should resume.
{¶6} In May of 2018, the case plan was amended to add Father. Father’s case
plan required him to: complete a parenting evaluation; not expose the children to drug
use or illegal activities; abstain from the use of drugs or alcohol; complete a drug and
alcohol assessment and follow the recommendations of the evaluation; and submit to
random drug screens. On June 24, 2018, SCDJFS filed a motion to extend temporary
custody. The trial court granted the motion and extended temporary custody to SCDJFS
until February 24, 2019. SCDJFS filed a second motion to extend temporary custody on
January 18, 2019. The trial court granted the motion and extended temporary custody to
SCDJFS until August 24, 2019.
{¶7} Father filed a motion to rescind the no contact order on July 16, 2019,
seeking visitation with the children. SCDJFS filed a motion for permanent custody with
regards to T.C., X.C., and X.C. on July 24, 2019. On July 25, 2019, Petrick filed a motion
for permanent custody with regards to T.C., X.C., and X.C. On August 14, 2019, the
Stark County, Case Nos. 2019CA00162, 2019CA00163,& 2019CA00164 4
magistrate held a hearing and lifted the no contact order, allowing Father to begin to visit
with the children when it was therapeutically recommended by the children’s counselors.
{¶8} The trial court conducted a trial on the motion for permanent custody on
September 17, 2019. Counsel for Mother stated that Mother did not contest the motion
for permanent custody and felt it was in the best interest of the children for the motion to
be granted.
{¶9} Miah Kinlow (“Kinlow”), the caseworker for T.C., X.C., and X.C., was
assigned to the case in June of 2018. Kinlow testified the agency initially became involved
with the children in 2017 when the children were removed by police from their home due
to the home being raided for drugs and Mother’s arrest. The children have been in the
temporary custody of the agency since November of 2017. Kinlow stated the agency
asked for a no contact order with regards to Father during the case because there were
concerns with his criminal history. He had just been released from prison for discharging
a weapon in front of children. The no contact order was in place from May of 2018 through
August 14, 2019. Thus, Father had no contact with the children for a period in excess of
ninety days. Kinlow testified no visits between the children and Father have occurred
since August 14, 2019. Father was released from prison in February of 2018. From
February of 2018 until August 14th, Father did not call Kinlow and request to visit the
children. Since the no contact order was lifted on August 14, 2019, Father never
contacted Kinlow to visit the children.
{¶10} As to Father’s case plan, Kinlow stated Father was to complete a parenting
assessment, which he completed in May of 2018. Additionally, father was to: comply
with all aspects of his parole, complete an anger management program, attend individual
Stark County, Case Nos. 2019CA00162, 2019CA00163,& 2019CA00164 5
counseling, and complete the Goodwill parenting program. The requirements in his case
plan were delayed because Father was in prison. At the time of the hearing, Father had
recently completed his probation and recently completed anger management. Kinlow
was unsure if Father completed individual counseling. Kinlow testified Father waited too
long to complete his case plan services; thus, as a result, the children have been in the
agency’s custody for two years. Additionally, the children have not spent any time with
Father in over a year. Kinlow stated the children do not mention Father much and have
worked with their counselors as to their issues with Father.
{¶11} Kinlow testified the agency has made reasonable efforts at reunification and
believes there are compelling reasons to grant permanent custody to SCDJFS. Further,
that the children are bonded with their foster family, are finding stability in their foster
home, and are thriving in their foster home.
{¶12} On cross-examination, Kinlow testified Father has completed everything
that has been asked of him with the exception of the Goodwill Parenting Program. Kinlow
did not ask for Father to be put into Goodwill Parenting because Father first had to
complete his anger management program, and Father was not finished with his anger
management program when the agency filed for permanent custody. Kinlow did not look
into another parenting program. Father is currently employed as a store manager at
Metro PCS.
{¶13} Kinlow also testified at the best interest portion of the trial. T.C. has some
issues, but is currently in counseling. T.C., X.C., and X.C. are all in the same foster home,
and have been in this foster home since September of 2017. Kinlow stated the children
are happy in the foster home and are doing well. They are bonded to their foster parents
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and Kinlow has seen a positive change in the children in the foster home. Kinlow has not
observed any visits between the children and Father. Kinlow believes the children will
benefit from permanency and adoption. T.C. told Kinlow she was sad she would not be
reunified with Mother, but stated if she could not be with Mother, she would like to remain
in the foster home. Both X.C. and X.C. told Kinlow they would like to remain in the foster
home. Kinlow stated the children do not talk much about Father, but, when they do, it is
generally about things in the past. Kinlow believes it is in the best interest of the children
for permanent custody to be granted to SCDJFS.
{¶14} Dr. Amy Thomas (“Thomas”) of Lighthouse Family Center previously
worked for Northeast Ohio Behavioral Health. She completed Father’s parenting
evaluation. Thomas was concerned about Father’s mental health because of his
perception that he may be a prophet and she was also concerned about Father’s criminal
history, including recent charges that included firing a gun at the mother of one of his
children in the presence of some of his younger children. Thomas was concerned
Father’s grandiosity with the belief he was a prophet would cause him to disregard
information as it relates to his children or his participation in treatment. Thomas
categorized this as a “barrier that it’s really difficult to get beyond.”
{¶15} Father did not understand how his behaviors impacted others because he
perceived himself as a victim. Father reported to Thomas that he was in a psychiatric
hospital as a child, he was removed from his home at age three or four, he was physically
abused in a foster home, and had a juvenile justice history. Thomas stated Father
continued to be involved in the criminal justice system into adulthood, which interfered
with his relationships with his children due to repeated incarcerations.
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{¶16} Father told Thomas he has twelve children, with his romantic relationships
sometimes overlapping with one another. Father acknowledged there was some physical
violence in all of his relationships except one. Thomas noted a pattern by Father of when
he felt cheated on or slighted by a woman, he would react in anger.
{¶17} Thomas diagnosed Father with other specified trauma and stressor related
disorder, major depressive disorder, anti-social personality disorder, narcissist traits, and
a provisional diagnosis of a delusional disorder. Thomas made recommendations, but
believed his prognosis was not favorable because of his mental health concerns, criminal
history, domestic violence history, victim mentality, and his lack of insight. Thomas
testified successful completion of services is not just going through the motions, but also
includes the demonstration by Father that he had made significant changes based upon
the new information. Thomas’ recommendations for Father included: continue the HOPE
program through the courts, continue to take his prescribed medications, complete anger
management, complete Goodwill Parenting, avoid further involvement with the criminal
justice system, maintain emotional stability, gain meaningful employment, and home-
based services.
{¶18} Father called as a witness Kelly Stuhldreher (“Stuhldreher”), a counselor at
Summit Psychological Associates, who worked with Father through the HOPE program,
which is a form of mental health probation. Stuhldreher testified that Father completed
the counseling requirements for the HOPE track. She believes Father benefited from the
counseling. On cross-examination, Stuhldreher testified treatment through the HOPE
program does not touch at all on Father’s ability to parent his children.
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{¶19} Father next called Sandra Fronimo (“Fronimo”) as a witness. Fronimo is
employed at the Voyager Program, an anger management program that Father was a
part of through his probation. Fronimo stated Father is almost finished with the program,
as he has one more assignment to do to complete the program. Fronimo testified Father
made remarkable changes throughout the year, including taking ownership of his
behavior and not blaming other people for his behavior. Father told Fronimo he wanted
to be a role model for his children. On cross-examination, Fronimo stated the Voyager
Program does not include Father’s children at all and she has never observed him in his
relationships with his children.
{¶20} Father called witness Ashley Williamson (“Williamson”) of Stark County
Adult Probation, who supervises Father while he is on probation. While Father had some
bumps to begin with, Williamson stated that, as of the last six months, Father has had no
issues. Father successfully completed the re-entry program and maintained employment.
On cross-examination, Williamson testified Father is approximately halfway through his
three-year probation period. Further, that she has not had any involvement with Father
with regards to his children, but it was reported to her that Father has eighteen children.
{¶21} Father called Nicole Flores (“Flores”), his direct supervisor at Elite Wireless
Group, an authorized dealer for Metro PCS. Flores testified that Father is an excellent
employee, he is very responsible, and she relies on him. Flores has never seen Father
with his children.
{¶22} Father testified that he has done everything he has been asked to do in this
case. Father testified he has fourteen children, including one child that passed away and
one that was adopted. Father has a relationship with all of his children except T.C., X.C.,
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and X.C. Father does not think there is any reason why he should not be around these
children, as he previously cared for them when Mother abandoned them approximately
two years ago. Father has been employed since May of 2018 and now is a manager.
Father is trying to consolidate his child support since he is supporting twelve children.
{¶23} On cross-examination, Father testified his youngest child was born in June
of 2019. Father has “no earthly idea” how behind he is in child support payments. Father
sends his children in Cleveland money every couple of weeks. Father is on good terms
with T.T., the person he was accused of having a gun around. Father last saw T.C., X.C.,
and X.C. in approximately June or July of 2017. It has been about two years since Father
has seen the children. Father testified he thought the counselors were going to contact
him with regards to visiting the children, so he did not contact the counselors or Kinlow
with regards to visitation.
{¶24} Petrick filed a report recommending permanent custody of the children be
granted to SCDJFS. Petrick feels strongly that permanency needs to be established for
the children. While Petrick noted that Father has complied with his case plan, she stated
he has made no effort to establish a relationship with the children. The children have told
Petrick they are happy, safe, and loved in their current placement and want to remain
there with visits from Mother. Petrick stated the children have told her they want to remain
in their current placement if they cannot be with Mother multiple times over the course of
the pendency of the case, the most recent being in August of 2019.
{¶25} Petrick attended the trial, but her recommendation did not change based
upon the testimony she heard. Petrick stated she has seen the children once or twice a
month since 2017, and the children have always stated if they could not be with Mother,
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they wanted to remain in the foster home. When Petrick asked the children about their
father, they thought she was talking about Mother’s boyfriend J.B., as they called him
their father. Petrick stated the children do not want to live with Father because they do
not know him and have not seen him in almost four years. Petrick strongly believes is in
the children’s best interest for permanent custody to be granted to SCDJFS.
{¶26} The trial court issued a judgment entry on September 26, 2019 terminating
Father’s parental rights with regards to T.C., X.C., and X.C., and granting permanent
custody of the children to SCDJFS. Simultaneously, the trial court issued extensive
findings of fact and conclusions of law. The trial court found Kinlow’s testimony to be
credible. The trial court determined that since T.C., X.C., and X.C. have continuously
remained in the custody of SCDJFS from November 6, 2017 until the date of the hearing
on September 17, 2019, the children have been in the custody of the agency for a period
greater than twelve months of a consecutive twenty-two month period. As to Father’s
visitation, the trial court found no visits have occurred for a period in excess of ninety
days; thus, Father has abandoned T.C., X.C., and X.C.
{¶27} The trial court found that when Father completed his parenting assessment,
the children had been in agency custody for ten months; when he completed his
counseling, the children had been in agency custody for seventeen months; Father has
not yet completed Goodwill Parenting Class because he had to first finish anger
management counseling; Father has had no contact with the children for over one year;
and the children do not talk about Father much.
{¶28} The trial court found Thomas gave credible testimony. Further, that it was
Thomas’ expert opinion that Father would have to not only complete the various programs
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in his case plan, but would have to demonstrate changes; however, at the time of trial,
the children had been in the custody of the agency for over two years. The court shared
Thomas’ concern about Father’s stability resulting from Father reporting to Thomas that
he was filled with the Holy Ghost, experiences prophetic dreams, and was able to speak
in tongues. The trial court found: Father was incarcerated from 2000 until 2004; Father
denied using drugs, but he tested positive for drugs in May of 2018; Father failed to accept
personal responsibility for his problematic choices; Father’s denials and perception of
himself interfere with his ability to make the changes necessary to raise his children safety
and competently; Father’s inability to prioritize the safety of his children is illustrated by
his decision to shoot at the mother of some of his children in the presence of their children;
and Thomas’ report was insightful with regard to Father’s psychological issues and how
those issues negatively affect his ability to parent.
{¶29} The trial court found Stuhldreher gave credible testimony, but also found
she acknowledged the HOPE program does not deal with Father’s ability to parent.
Similarly, the trial court found Fronimo gave credible testimony, but she acknowledged
she has never observed Father interact with the children and Father had not yet
completed the Voyager program. As to Father’s testimony, the trial court found he
seemed to dodge responsibility with regards to certain incidents; his lack of understanding
as to his role in his criminal acts was evident during his testimony where Father admitted
he discharged a gun around a minor child, but minimized his responsibility when he
testified he went to prison because of a plea deal; and Father focuses on the
technicalities, not the realities, of his criminal situation.
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{¶30} The trial court issued the following decision as to permanency and
placement: Father abandoned T.C., X.C., and X.C. by failing to visit or maintain contact
with them for more than ninety days; notwithstanding reasonable case planning and
diligent efforts by the agency, Father has failed to remedy the conditions that caused T.C.,
X.C., and X.C. to be placed; and the children cannot be placed with either parent within
a reasonable time, nor should they be placed with either parent.
{¶31} As to the best interest determination, the trial court set forth the relevant
statutory factors. The trial court found: Kinlow’s testimony as to best interest was credible;
the children have been placed together in a foster home since 2017; they maintain contact
with a half-sibling; the children are happy at the foster home and are involved in many
extra-curricular activities; the children are thriving and only positive changes have been
noted; the children are bonded to the foster mothers; the foster mothers want to adopt the
children; there have been no visits between Father and the children since the beginning
of the case; the children are sad they are not going back to Mother, but are open to
adoption by their current foster placement; the potential of harm of severing the potential
bond of either parent is outweighed by the benefit of permanency for T.C., X.C., and X.C.;
Kinlow testified permanent custody to the agency was in the children’s best interest;
Petrick recommended the permanent custody of the children to SCDJFS; and Petrick
believes it would be detrimental to remove the children from the foster home. The trial
court concluded that, despite the minimal bond that may have developed between Father
and T.C., X.C., and X.C., the harm caused by severing the bond with Father is outweighed
by the benefits of permanency in each child’s life; and it is in the best interest of the
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children to grant permanent custody to SCDJFS, as they deserve to be in a stable and
loving environment.
{¶32} Father appeals the September 26, 2019 judgment entry of the Stark County
Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶33} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT THIS
TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶34} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTEREST
OF THE MINOR CHILDREN WOULD BE SERVED BY GRANTING OF PERMANENT
CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
Permanent Custody
{¶35} “[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). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1).
{¶36} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). “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.” Id. at 477. If some competent, credible evidence going to
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all the essential elements of the case supports the trial court’s judgment, an appellate
court must affirm the judgment and not substitute its judgment for that of the trial court.
C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶37} 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 evidence 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).
{¶38} 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.
{¶39} 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
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more months of a consecutive twenty-two month period ending on or after March 18,
1999.
{¶40} 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.
I.
{¶41} In his first assignment of error, Father argues the finding that the children
cannot or should not be placed with Father within a reasonable time was not proven by
clear and convincing evidence. Father cites to the testimony that he did everything he
could do on his case plan, including completing the parenting assessment, completing
counseling, completing anger management, doing well on probation, and obtaining stable
employment.
{¶42} We first note that the trial court determined, pursuant to R.C.
2151.414(B)(1)(d), the children had been in the temporary custody of the agency for a
period of time in excess of twelve of the prior twenty-two consecutive months. Kinlow
testified the children were placed into the temporary custody of SCDJFS in November of
2017 and were continuously in the temporary custody of the agency until September 17,
2019, the date of the trial. Thus, the children have been in the custody of the agency for
more than twelve out of the last twenty-two months.
{¶43} As findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are
alternative findings, each is independently sufficient to use as a basis to grant the motion
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for permanent custody. In re Daltoni, 5th Dist. Tuscarawas No. 2007 AP 0041, 2007-
Ohio-5805. This finding alone, in conjunction with a best interest finding, is sufficient to
support the grant of permanent custody. In re Calhoun, 5th Dist. Stark No. 2008CA00118,
2008-Ohio-5458.
{¶44} Additionally, in this case, the trial court found, by clear and convincing
evidence, that Father abandoned the children pursuant to R.C. 2151.414(B)(1)(b).
Pursuant to R.C. 2151.011(C), a child is “presumed abandoned when the parties of the
child have failed to visit or maintain contact with the child for more than ninety days,
regardless of whether the parents resume contact with the child after that period of ninety
days.” We find there is competent and credible evidence to support this determination.
Kinlow testified that Father had no contact with the children for a period in excess of ninety
days, as there was a no contact order in place starting when Father was released from
prison in 2018 until August of 2019. Kinlow further stated Father has not seen the children
after the no contact order was lifted in August of 2019, as he never contacted Kinlow for
visitation. On cross-examination, Father testified he last had contact with the children in
June or July of 2017 and it has been about two years since he has seen the children.
Petrick testified the children have not seen Father for almost four years.
{¶45} A trial court’s finding of abandonment under R.C. 2151.414(B)(1)(b) will
satisfy the first prong of the permanent custody test, independent of a finding under R.C.
2151.414(B)(1)(a), allowing the court to move on to the second prong of considering
whether the grant of permanent custody to the agency is in the best interest of the child.
In re A.M., 5th Dist. Stark No. 2013 CA 00113, 2013-Ohio-4152.
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{¶46} Because Father has not challenged the twelve of twenty-two month finding
or the finding of abandonment, we would not need to address the merits of this
assignment of error. However, even if we consider Father’s argument, the trial court did
not err in determining the children cannot be placed with Father at this time or within a
reasonable period of time. 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.
{¶47} A review of the record supports the trial court’s conclusion that the children
cannot be placed with Father within a reasonable time. Father’s incarceration significantly
impacted his ability to complete his case plan objectives in a reasonable amount of time.
Kinlow testified Father waited too long to complete his case plan services and, as a result,
the children have now been in the agency’s custody for over two years. As noted by the
trial court, when Father completed his parenting assessment the children had been in
agency custody for ten months and when he completed his counseling, the children had
been in agency custody for seventeen months. Further, Kinlow stated the children have
not had contact with Father for over a year. Thomas testified that Father’s grandiosity
and belief he was a prophet caused him to disregard information as it relates to his
children or participating in treatment. Thomas categorized this as a “barrier that it’s really
difficult to get beyond.” Additionally, Thomas stated it was not enough for Father to simply
complete his case plan, but he had to demonstrate he had made real changes based
upon the completion of the plan and treatment. Petrick feels strongly that permanency
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needs to be established for the children. Even though the children have been in the
custody of the agency for two years, Petrick stated Father has made no effort to establish
a relationship with the children.
{¶48} Father’s argument centers around the fact that he did everything that was
asked of him during the case and substantially completed his case plan. The witnesses
called by Father testified to his completion of various programs. However, Stuhldreher
testified the HOPE program does not touch on Father’s ability to parent and Fromino
stated the Voyager anger management program does not include children and she never
saw Father with his children. Similarly, Williamson testified she has no involvement with
Father with regards to his children. As this Court has held, the successful completion of
a case plan is not dispositive on the issue of reunification. In the Matter of A.H., 5th Dist.
Richland No. 18CA96, 2019-Ohio-1509. While it may be in Father’s best interest to
complete the case plan, this is only one factor for the trial court to consider. Id.{¶49} We find there is competent and credible evidence to support the trial court’s
finding that the children cannot be placed with Father within a reasonable amount of time.
{¶50} Father’s first assignment of error is overruled.
II.
{¶51} In his second assignment of error, Father contends the trial court’s
determination that the best interest of the children would be served by the granting of
permanent custody to SCDJFS was against the manifest weight and sufficiency of the
evidence. Father argues the testimony at trial showed the children only had positive
memories of him and a bond exists between him and the children. Further, that his
testimony demonstrates he is capable and willing to be a parent.
Stark County, Case Nos. 2019CA00162, 2019CA00163,& 2019CA00164 19
{¶52} 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).
{¶53} 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; (4) the child’s need for a
legally secure placement and whether that type of placement can be achieved without a
grant of permanent custody; and (e) whether any of the factors in divisions (E)(7) to (11)
of this section apply in relation to the parents and child. No one element is given greater
weight or heightened significance. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816.
{¶54} A child’s best interests are served by the child being placed in a permanent
situation that fosters growth, stability, and security. The willingness of a relative to care
for the child does not alter what a court considers in determining permanent custody. In
re Patterson, 134 Ohio App.3d 119, 730 N.E.2d 439 (9th Dist. 1999); In re Adoption of
Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991). Accordingly, a court is not
Stark County, Case Nos. 2019CA00162, 2019CA00163,& 2019CA00164 20
required to favor a relative if, after considering all the factors, it is in the child’s best interest
for the agency to be granted permanent custody. In re R.P. and I.S., 5th Dist. Tuscarawas
No. 2011AP050024, 2011-Ohio-5378.
{¶55} The court must consider all of the elements in R.C. 2151.414(D) as well as
other relevant factors. There is not one element that is given greater weight than the
others pursuant to the statute. In re Schafer, 11 Ohio St.3d 498, 2006-Ohio-5513, 857
N.E.2d 532. In re Schafer made it clear that a trial court’s statutory duty, when
determining whether it is in the best interest of a child to grant permanent custody to an
agency, does not include finding by clear and convincing evidence that no suitable relative
was available for placement. Id. R.C. 2151.414 “requires the court to find the best option
for the child once a determination has been made pursuant to R.C. 2151.414(B)(1)(a)
through (d). The statute does not make the availability of a placement that would not
require a termination of parental rights an all-controlling factor. The statute does not even
require the court to weigh that factor more heavily than other factors.” Id. at 111.
{¶56} 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.
{¶57} We find the trial court did not err in finding that granting permanent custody
to SCDJFS was in the best interest of T.C., X.C., and X.C. Kinlow and Petrick both
testified that granting permanent custody to SCDJFS would be in the best interest of the
children. Similarly, both believe that permanency needs to be established for the children,
as they have been in the custody of agency for two years. The children have not had any
Stark County, Case Nos. 2019CA00162, 2019CA00163,& 2019CA00164 21
contact with Father for over a year and, as noted by Petrick, even though Father has
complied with his case plan, he has made no effort to establish a relationship with the
children. Petrick testified the children do not want to live with Father because they have
not seen him in almost four years.
{¶58} The children are in the same foster home, and have been in this foster home
since September of 2017. Kinlow stated the children are happy, bonded to the foster
parents, and are doing well. While in the foster placement, the children visit with Mother
and their half-sibling. Kinlow believes the children will benefit from permanency and
adoption. Petrick has seen the children once or twice a month since September of 2017
and she strongly believes it is in the best interest of the children to have permanency in
their lives. The children have told both Kinlow and Petrick that if they cannot live with
Mother, they want to remain in their current placement.
{¶59} We find the trial court properly considered and weighed the factors in R.C.
2151.414(D) and the trial court’s conclusion that the granting of permanent custody to
SCDJFS is in the best interest of the children is supported by competent and credible
evidence. Father’s second assignment of error is overruled.
Stark County, Case Nos. 2019CA00162, 2019CA00163,& 2019CA00164 22
{¶60} Based on the foregoing, we find the trial court did not abuse its discretion in
granting permanent custody of T.C., X.C., and X.C. to SCDJFS. Father’s assignments of
error are overruled and the September 26, 2019 judgment entry of the Stark County Court
of Common Pleas, Juvenile Division, is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur