In re A.B.

Gwin, P.J.

Appeal from the Tuscarawas Court of Common Pleas, Juvenile Division, Case No. 22JN00018

For-Appellant

NICHOLAS A. DOUGHTY

For-Appellee

LISA VITALE ARNOLD

Tuscarawas County JFS

Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

Gwin, P.J.

{¶1} Appellant appeals the January 27, 2023 judgment entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, terminating her parental rights and granting permanent custody of A.B. to the Tuscarawas County Department of Job and Family Services ("TCJFS").

Facts & Procedural History

{¶2} S.A. is the mother ("Mother") of A.B., who was born on February 7, 2015. D.B. is the father ("Father") of A.B.

{¶3} On January 24, 2022, TCJFS filed a complaint for dependency and/or neglect with regards to A.B. The complaint alleged, in part: Mother was operating a vehicle with a suspended license with A.B. in the vehicle; drugs and needles were found in the vehicle; Mother contacted A.B.'s former foster parents to get A.B.; Mother was taken to Belmont County Jail; Mother stated she was aware her friend in the car with her was involved with drugs, but did not believe there was any danger to A.B.; Mother is charged with driving under suspension, possession of drug abuse instruments, obstructing official business, and endangering children; Mother has a prior children services history that involves drugs, domestic violence, and dirty home conditions; in September of 2018, Mother was the perpetrator in a substantiated physical abuse case; in November of 2018, A.B. was placed in the temporary custody of Harrison County Job and Family Services due to substantiated abuse and neglect; the child was returned to Mother in June of 2020; and A.B.'s Father is incarcerated in a correctional institution on a child endangerment charge. The trial court held a shelter care hearing and placed A.B. in the temporary custody of TCJFS on January 24, 2022.

{¶4} The trial court held an adjudicatory hearing on February 15, 2022. In a judgment entry, the magistrate found A.B. to be an abused and neglected child. The trial court adopted the case plan on March 17, 2022. The trial court held a dispositional review hearing on March 17, 2022, and review hearings on May 9, 2022, July 19, 2022, and October 18, 2022. In judgment entries issued after each of these hearings, the trial court found TCJFS made reasonable efforts to avoid the continued removal of the child from the home.

{¶5} Mother filed a motion to return custody and/or return custody with protective supervision on October 19, 2022. On October 26, 2022, TCJFS filed a motion to suspend visitation. TCJFS stated in the motion that, at a recent visit, Mother became so angry she had to be escorted out of the building after yelling at the staff and acting in a threatening manner.

{¶6} TCJFS filed a motion for permanent custody of A.B. on November 29, 2022. The motion outlined the issues with Mother, including: Mother failed to complete a psychological assessment; Mother was combative and argumentative during individual counseling; Mother failed to complete a parenting class; and, at a recent supervised visit, Mother had to be escorted out the building.

{¶7} The trial court conducted a trial on TCJFS' motion for permanent custody, Mother's motion to return custody, and TCJFS' motion to suspend visitation on January 24, 2023.

{¶8} Dr. Aimee Thomas ("Thomas") is a licensed psychologist who completed an assessment on Mother. During the initial clinical interview, Mother was difficult to engage, often giving one-word answers. During the second interview, Mother was slightly more forthcoming, but Thomas felt her insight was poor and her presentation was unusual. Mother's responses revealed concerns with depressive symptoms, a substance abuse disorder, and an unspecified personality disorder. Thomas testified that, during the interview, it was evident there was some underlying psychological or neurological issues present with Mother. While Thomas had a difficult time making a diagnosis, Thomas stated these issues clearly impacted Mother's insight and her judgment, particularly in terms of how she perceives her life versus what is actually occurring.

{¶9} Thomas diagnosed Mother with other specified depressive disorder and other specified personality disorder. Thomas felt Mother was not taking her case plan seriously. Thomas made numerous recommendations with regards to Mother, including: Mother participate in a neurological evaluation, Mother should embrace psychiatric services and comply with their recommendations, Mother should participate in Goodwill Parenting classes at TCJFS, Mother should complete an anger management program, and Mother should increase the number of times she meets with Dr. Welty. Thomas' biggest concern about Mother with regards to parenting is Mother's lack of insight.

{¶10} Thomas' report and recommendations were introduced into evidence. In the report, Thomas questions Mother's willingness or ability to embrace Thomas' recommended neurological evaluation or psychiatric services. Thomas found Mother's statements "suggest a lack of insight into her presentation and a possible underlying severe mental illness that might account for this very unusual presentation." Thomas found Mother to be a "very impaired individual who has historically placed herself in high-risk situations." Thomas has serious concerns with Mother's judgment, reasoning, and her perception of acceptable lifestyle choices as she raises her child. Thomas concluded that, unless and until Mother participates in psychiatric services and further neurological testing that might ascertain the source of her very unusual presentation, she will be unable to make meaningful progress in her case plan services.

{¶11} Dr. Mark Welty ("Welty") is a therapist and licensed professional clinical counselor. Welty is Mother's therapist. Since the beginning of the case plan, Mother saw three other therapists, and was transferred to Welty after the other therapists felt their time with Mother was not productive. Welty completed a diagnostic assessment of Mother. He diagnosed her with post-traumatic stress disorder with stimulant use history, paranoid personality disorder, and an adjustment disorder with mixed disturbance of emotion and conduct.

{¶12} Welty and Mother put together a treatment plan that included general goals to improve mood regulation, the ability to be less depressed, and increase skills as a parent. Welty had sessions with Mother once per month. Welty wanted Mother to do sessions weekly, but Mother chose to have the sessions monthly rather than weekly. Welty does not recommend that Mother be discharged from counseling. One of the previous therapists recommended Mother attend an IOP (intensive outpatient program) in March of 2022, but Mother did not want to do the program.

{¶13} Elizabeth Wilson ("Wilson") is a family service aide at TCJFS. Wilson teaches the parenting class. Mother twice attended the first parenting class, but two separate times did not come back. Wilson observed visitations next door to Mother's visits. Wilson testified it was a regular occurrence for Mother to be yelling at her visitation aide. Wilson observed this frequent yelling made A.B. nervous. On October 19, 2022, Wilson was in the hallway. Mother walked out of the visitation room with A.B., told A.B. to "shut up," and Mother yelled and argued with her visitation aide who told her she could not leave the room with the child. A supervisor took Mother and her visitation aide into another room, while Wilson took A.B. into a separate room. Wilson observed that A.B. was crying. Wilson was concerned for the safety of the visitation aides at the agency due to Mother's aggressive behavior.

{¶14} Rachel Light ("Light") is the caseworker assigned to A.B. Prior to TCJFS' involvement with the family, there was a substantiated abuse and neglect case against Mother and Father in Harrison County, and A.B. was in the temporary custody of Harrison County from November of 2018 to June of 2020. The conditions that led to the removal in Harrison County were drug use, domestic violence, and dirty home conditions. Mother lost custody of a second child to the child's biological father in the Harrison County case. A.B. is currently with the same foster family that she was with from November of 2018 to June of 2020.

{¶15} Mother's case plan required her to: maintain housing and sufficient income to support her and A.B.; complete a psychological assessment and follow all recommendations; complete a drug and alcohol assessment and follow all recommendations; complete the agency's parenting class; submit to random drug screens; and meet with Light once per month.

{¶16} Light testified that Mother has maintained the same housing for the duration of the case, and obtained full-time employment in March of 2022. Light originally referred Mother to the Village Network for a psychological assessment. Mother made an appointment in February of 2022 at the Village Network, but did not show for the appointment, and chose not to reschedule. Light then changed the assessment location to Lighthouse Family Center. Mother made an appointment with Lighthouse in June of 2022, but cancelled that appointment. Mother rescheduled for November of 2022, and completed the assessment in December of 2022. However, Mother has not followed the recommendations of Dr. Thomas or Dr. Welty. Mother did complete an alcohol and drug assessment. Mother attended only two classes of the agency's parenting class, and was removed from the class. Mother asked Light for an online option. Mother completed a four-day online class, however, Light testified Mother did not fully participate in the sessions. Mother has completed all random drug screens and has tested negative.

{¶17} Mother has met with Light once per month, but Light testified to safety concerns surrounding these meetings. Shortly after Light was assigned to the case, Mother began e-mailing Light inappropriate emails containing personal attacks. Thus, Light always met with Mother at the agency. After the October 2022 incident where Mother was escorted out the building during a supervised visit, Light contacted Mother via phone because Mother was no longer allowed in the building. During the meetings, Mother was very short and uncooperative with Light. Light observed various personality changes with Mother. Light tried talking to Mother numerous times about getting the case plan services completed.

{¶18} Mother had once-a-week supervised visits with A.B. Light observed approximately five visits. The visits went "ok," but Light saw A.B. cry numerous times during the visits because Mother upset her. For example, Mother would frequently insist that A.B was physical ill when she was not. The visits were stopped in October of 2022 after the incident where Mother was escorted out of the building.

{¶19} Light testified that Mother has not substantially completed her case plan, and only began several of the case plan components after TCJFS filed their motion for permanent custody. Further, that Mother has not remedied the concerns that led to the removal of A.B. from the home. Light has several concerns about A.B. returning to Mother's care, including Mother's underlying and unaddressed mental issues, Mother's anger management issues, and the overall negative effect Mother has on A.B. Light believes A.B. needs a secure and permanent placement. Light does not believe permanency can be achieved without permanent custody to the agency. Light stated the agency did not ask for a six-month extension because the agency has not seen sufficient progress within the last year, as many services were delayed by Mother's choice. Further, Mother has not shown she would comply with any services, such as Thomas' extensive recommendations. Light believes the agency made reasonable efforts in providing services to Mother.

{¶20} The agency attempted to locate relatives to take custody of A.B. Mother's sister, who lives in Oregon, initially made a request of TCJFS to do a home study, but later withdrew the request and chose not to proceed with placement.

{¶21} Light testified that A.B. is thriving in the foster home. She is very bonded to her foster parents and foster siblings. She has been with the family for a total of 2.5 years, including the time from Harrison County. A.B. had to catch-up in school because Mother was previously home-schooling A.B.; however, A.B. is now doing well in school. A.B. loves Mother, but wants stability and permanency. Light recommends permanent custody be granted to TCJFS.

{¶22} The GAL initially attempted to contact Mother in February 2022. She sent additional letters in April of 2022 and January of 2023. Mother never responded. The GAL spoke to Mother briefly in the hallway at court hearings, but Mother never contacted the GAL until two weeks before the permanent custody trial.

{¶23} The GAL has concerns about A.B. returning to Mother's home based upon the information A.B. provided to her, Mother's history, and Mother's lack of completion of her case plan. A.B. has consistently told the GAL that she loves Mother very much and is conflicted about whether she wants to return to live with Mother. However, A.B. told the GAL there are many things she knows are better in foster care. For example, the foster parents take good care of her, help her learn, help her remember to brush her teeth, and go to school. A.B. told the GAL when she was in Mother's care, Mother would encourage her to steal when they went to stores, allowed her to watch TV all day, and did not make her go to school.

{¶24} The GAL believes it is in the best interest of A.B. for permanent custody to be granted to TCJFS. The GAL based her opinion on: the history of A.B. being removed from Mother twice, the trauma A.B. had, Mother's inability to complete her case plan, A.B.'s bond to the foster family, and A.B.'s ability to express to the GAL that, even though she loves Mother very much, she knows the foster home is the safest place for her.

{¶25} Mother believes she has put in substantial effort to complete her case plan. She acknowledges she did not complete her case plan, but testified that was "out of her hands," and she did what she could to the best of her ability. She stated she would like A.B. to be returned to her care. Mother does not believe she has a good relationship with Light, and testified that Light failed to contact her. Mother testified she does not have any mental health issues or anger management issues. Mother could not answer the question as to why she does not want to see Dr. Welty more than once per month.

{¶26} The trial court issued a judgment entry on January 27, 2023, containing findings of fact and conclusions of law, granting permanent custody of A.B. to TCJFS, and terminating Mother and Father's parental rights. In its findings of fact, the trial court found, in part: A.B. has been in the temporary custody of TCJFS since January 21, 2022 and has been in the continuous temporary custody of TCJFS from January 21, 2022 to present; Mother has a prior history with Harrison County DJFS for approximately eighteen months due to drug use, domestic violence, and home conditions; Mother maintained stable housing, employment, and completed a drug assessment; Mother did not want to participate in the psychological interview; Mother was diagnosed with other specified depressive disorder and other specified personality disorder (impulsive, angry, oppositional); Thomas has concerns with A.B. being returned to Mother; Mother's lack of insight is concerning; the assessment completed by Welty diagnosed Mother with paranoid personality disorder, adjustment disorder, post-traumatic stress disorder, and stimulant use disorder (methamphetamine); Mother would only agree to monthly counseling sessions; Mother did not want to participate in recommended inpatient treatment; an incident occurred during visitation in October of 2022; A.B. is thriving in her foster home and is bonded to her foster parents; A.B. is doing well in school; and the GAL recommended permanent custody be granted to TCJFS.

{¶27} The trial court found A.B. cannot and should not be placed with either parent within a reasonable time. Further, that, despite diligent and reasonable efforts and planning by TCJFS, Mother and Father have failed to substantially remedy the conditions causing removal. The trial court found, considering the factors contained in R.C. 2151.414, it is in the best interest of A.B. to be placed in the permanent custody of TCJFS, and that the harm caused by severing the bond with Mother is outweighed by the benefits of permanency in the child's life. The trial court also denied Mother's motion to return custody.

{¶28} Mother appeals the January 27, 2023 judgment entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, and assigns the following as error:

{¶29} "I. APPELLANT WAS DEPRIVED OF HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

{¶30} "II. THE TRIAL COURT'S FINDING THAT THE CHILD COULD NOT BE PLACED WITH APPELLANT WITHIN A REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶31} "III. THE TRIAL COURT'S FINDING THAT THE BEST INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY A GRANT OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

Permanent Custody

{¶32} "[T]he right to raise a child is an 'essential' and 'basic' civil right." In re Murray, 52 Ohio St.3d 155, 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).

{¶33} 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 and credible evidence going to 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).

{¶34} 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, 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, 674 N.E.2d 1159 (1997).

{¶35} R.C. 2151.414 sets forth the guidelines a trial court must follow when deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court schedule a hearing and provide notice upon filing of a motion for permanent custody of a child by a public children services agency.

{¶36} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to grant permanent custody of the child to the public or private agency if the court determines, by clear and convincing evidence, it is in the best interest of the child to grant permanent custody to the agency, and that any of the following apply: (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.

{¶37} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial court must apply when ruling on a motion for permanent custody. In practice, 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.

{¶38} In her first assignment of error, Mother argues she was deprived of effective assistance of counsel because trial counsel failed to file a motion for six-month extension, failed to prepare Mother for direct examination, and failed to object to certain testimony of the GAL.

{¶39} We have recognized ineffective assistance claims in permanent custody appeals. In re Utt, 5th Dist. Stark No. 2003CA00196, 2003-Ohio-4576. Where the proceeding contemplates the loss of parents' "essential" and "basic" civil rights to raise their children, "* * * the test for ineffective assistance of counsel used in criminal cases is equally applicable to actions seeking to force the permanent, involuntary, termination of parental custody." In re Wingo, 143 Ohio App.3d 652, 2001-Ohio-2477, 758 N.E.2d 780 (4th Dist. Ross). Our standard of review for an ineffective assistance claim is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). These cases require a two-prong analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel's assistance was ineffective, i.e., whether counsel's performance fell below an objective standard of reasonable representation and violated any of his or her essential duties to the client. Id. If we find ineffective assistance of counsel, we must then determine whether or not the defense was actually prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial is suspect. Id. This requires a showing that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the trial would have been different. Id. Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of professional assistance. State v. Sallie, 81 Ohio St.3d 673, 693 N.E.2d 267 (1998).

{¶40} Mother argues counsel should have moved for an extension of temporary custody to the agency to give her more time to complete her case plan. We first note that counsel for Mother did file a motion to return custody and/or return custody with protective supervision on October 19, 2022, and the trial court heard that motion on the same date as the permanent custody motion. Further, R.C. 2151.415 does not provide that a parent may file a request for an extension of temporary custody to the agency. In the Matter of T.G., 5th Dist. Stark Nos. 2021CA00119, 2021CA00120, 2021CA00121, 2022-Ohio-1213. Further, as part of the permanent custody hearing, the trial court found A.B. could not or should not be placed with either parent within a reasonable period of time. R.C. 2151.414. This finding precludes granting a motion to return the children to Mother. In the Matter of T.G., 5th Dist. Stark Nos. 2021CA00119, 2021CA00120, 2021CA00121, 2022-Ohio-1213. Therefore, counsel would not be deficient for not filing such a motion. Id. Mother has failed to demonstrate trial counsel's performance fell below an objective standard of reasonable representation.

{¶41} As to motions filed by the agency, R.C. 2151.353(A), (D), and (F) provide for temporary custody orders, expiration of these orders, and motions to extend those orders on behalf of the children's services agency. They do not specify a procedure for another party to seek custody on an agency's behalf. There is no legal basis for an extension of temporary custody filed by Mother, and it is not evident from the record that there is any factual basis to assume such a motion would have been granted. In re A.R., 5th Dist. Stark No. 2022CA00148, 2023-Ohio-1359. In fact, Light specifically testified that a six-month extension was not filed by the agency because there was not sufficient case plan progress made by Mother because Mother chose to delay starting many case plan services.

{¶42} Mother contends her trial counsel was ineffective for failing to object, on the basis that it was impermissible hearsay testimony, to the testimony of the GAL that A.B. reported to the GAL that Mother would encourage A.B. to steal, not attend school, and allow the child to watch television all day. However, "given the guardian's role and the requirements that she explain her investigation and the basis for her recommendation, her report and testimony may necessarily include information about what other people told her." DiDonato v. DiDonato, 5th Dist. Tuscarawas Nos. 2015 AP 07 0042, 2015 AP 09 0051, 2016-Ohio-1611, citing Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012-Ohio-2615; Geary v. Geary, 5th Dist. Delaware No. 14CAF050033, 2015-Ohio-259. The GAL is specifically tasked with articulating to the court the wishes of the child. The GAL's testimony regarding A.B.'s statements in regard to Mother was directly related to the GAL's description and determination of what A.B.'s wishes were. Further, even if counsel were deficient in failing to object to this testimony, Mother fails to show how she was prejudiced by this alleged deficiency. There is no indication the trial court would have made a different determination without this testimony by the GAL, particularly since there are multiple other factors taken into consideration in a best interest determination.

{¶43} Finally, Mother argues counsel failed to prepare her for direct examination. Mother's private conversations with her trial counsel are not before us. A claim of ineffective assistance of counsel cannot be raised on direct appeal if it relies on evidence outside the record. To the extent that Mother's claim relies on communications with her attorney outside the record, it is not properly raised on direct appeal. State v. Hendricks, 5th Dist. Muskingum No. CT2016-0010, 2017-Ohio-259.

{¶44} To the extent that Mother's claim relies on her testimony during direct examination on the record, we find there is nothing on the record to show that Mother's trial counsel encouraged her to refuse to answer questions, which she did several times. Counsel asked basic and simple questions of Mother on direct examination, and attempted to guide her through questions. Counsel for Mother indicated to the trial court that Mother felt like she had not been heard throughout the case, so counsel encouraged Mother to tell the court what she wanted to say. When Mother struggled to remember what she wanted to tell the court, counsel for Mother requested a recess. After the recess, counsel for Mother re-framed the questions to attempt to jar Mother's memory as to what she wanted to tell the court.

{¶45} As to Mother's suggestion that trial counsel should have asked her if she would comply with a future neurological exam and other case plan services, Mother makes no demonstration of prejudice. There is no indication that anything other than permanent custody would have been granted had Mother answered these questions in the affirmative, given the testimony and evidence presented by TCJFS. Mother delayed completing the psychological assessment for ten months, was less than forthcoming during the assessment, refused to attend counseling more than one per month, refused to enter a recommended inpatient counseling program, and Mother's testimony on cross-examination indicated she did not agree with Thomas' diagnoses.

{¶46} We find Mother's trial counsel's actions did not fall below the objective standard of reasonable representation. Further, Mother has not demonstrated a reasonable probability that the outcome of the proceeding would have been different if counsel would have moved to extend temporary custody, objected to one phrase contained in the GAL's testimony, or asked different questions of Mother upon direct examination. Mother's first assignment of error is overruled.

II.

{¶47} In her second assignment of error, Mother contends the elements of R.C. 2151.414(B)(1)(A) and (E) were not met because the finding that A.B. could not or should not be placed with Mother within a reasonable time was not proven by clear and convincing evidence.

{¶48} In determining whether a child cannot be placed with Mother at this time or within a reasonable period of time, R.C. 2151.414(E) provides 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. In this case, the trial court found that, despite reasonable case planning and diligent efforts by the agency to assist Mother in remedying 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 home.

{¶49} Mother argues this finding is in error because: she has not tested positive for drugs during the case, she has maintained employment and housing, she does not present a safety risk to the child, she completed her psychological assessment, and she engaged in counseling. Mother contends she took substantial steps toward improving herself and in completing her case plan.

{¶50} We disagree with Mother and find a review of the record supports the trial court's conclusion that A.B. cannot be placed with Mother within a reasonable time because Mother has failed to substantially remedy the conditions causing A.B. to be placed outside the home.

{¶51} Light testified that Mother has not remedied the concerns that led to removal, as Mother has unaddressed mental issues, anger issues, and still has an overall negative effect on A.B. These issues are evidenced by Mother's visitation with A.B., where Mother: caused A.B. to cry because of her actions; yelled at the visitation aide; and attempted to remove the child from the visitation room, causing an October 2022 incident where Mother screamed at the visitation aide and was escorted out of the building. Light testified to Mother's history with the children's services agency in Harrison County, where many of the same issues existed, and A.B. was in temporary agency custody for eighteen months. Though A.B. was returned to Mother, less than eighteen months later, TCJFS became involved after Mother's arrest.

{¶52} Thomas testified that Mother's mental issues have impacted her insight and judgment, and that Mother continues to be an impaired individual who places herself in high-risk situations. Thomas has serious concerns about Mother's judgment and reasoning at it relates to parenting A.B. Despite multiple attempts by the GAL to get Mother to contact her, Mother did not contact the GAL until two weeks prior to the permanent custody trial.

{¶53} Mother cites to the portions of the case plan she completed in support of her argument. While Mother did complete portions of her case plan, Light testified she did not substantially complete the case plan, and only began doing some of the key components of the case plan after TCJFS filed its motion for permanent custody. For example, Mother scheduled her psychological assessment in both February and June of 2022, but cancelled both appointments. Mother was not forthcoming or cooperative with Dr. Thomas until TCJFS filed their motion for permanent custody. Mother was twice removed from in-person parenting classes for absenteeism. Though Mother did attend an online parenting class, she did not fully participate in the session. While Mother did meet with Light each month, she was uncooperative. Though Dr. Welty recommended weekly counseling, Mother refused, and would only attend counseling once per month. Dr. Thomas made extensive recommendations that Mother did not complete because she delayed scheduling the assessment. Mother intentionally chose to delay starting several of her case plan services, and her lack of earlier progress is due to her own lack of efforts.

{¶54} Further, this Court has recognized that even where a parent has participated in his or her case plan and completed most or all of the plan requirements, a trial court may still properly determine that such parent has not substantially remedied the problems leading to agency involvement. In the Matter of L.D., 5th Dist. Licking No. 18 CA 0023, 2018-Ohio-3380; 2007-Ohio-3802. A parent's successful completion of the terms of a case plan is not dispositive on the issue of reunification, as the ultimate question under R.C. 2151.414(A)(1) is whether the parent has substantially remedied the conditions that caused the child's removal. In re A.R., 5th Dist. Stark No. 2022CA00148, 2023-Ohio-1359. As detailed above, Mother has not substantially remedied the conditions that caused A.B.'s removal from the home.

{¶55} We find there is competent and credible evidence to support the trial court's finding that A.B. cannot be placed with Mother within a reasonable time because the delay in completing the case plan objectives and failure of Mother to reduce the risks posed when the child was first removed are directly attributable to the actions and inactions of Mother. Mother's second assignment of error is overruled.

III.

{¶56} In her third assignment of error, Mother argues the trial court's determination that the best interest of the child would be served by the granting permanent custody to TCJFS was against the manifest weight and sufficiency of the evidence. Mother cites to her bond with A.B. in support of her argument.

{¶57} 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 the child should be accorded the utmost respect, given the nature of the proceeding and the impact that court's determination will have on the lives of the parties concerned." In re Mauzy Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1799973 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist. 1994).

{¶58} 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 (5) whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

{¶59} 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.

{¶60} 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, 85 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist. 1994).

{¶61} We find the trial court did not commit error in finding that granting permanent custody to TCJFS is in the best interest of A.B.

{¶62} Light testified that A.B. is thriving in her foster home, and is bonded to her foster parents and siblings. A.B. has been with this foster family for approximately two-and-a-half years, because, when A.B. was removed from Mother's care in Harrison County, A.B. was with this same foster family for eighteen months. Light stated that while A.B. loves Mother, the benefit of permanency and stability outweighs any bond A.B. has with Mother. Light believes it is in the best interest of the child to grant permanent custody to TCJFS.

{¶63} The GAL testified that A.B. loves Mother, but knows things are better at the foster home, and knows the foster home is the safest and best place for her. The GAL testified it is in A.B.'s best interest for permanent custody to be granted to TCJFS.

{¶64} 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 TCJFS is in the best interest of the child is supported by competent and credible evidence.

{¶65} Mother's third assignment of error is overruled.

{¶66} Based on the foregoing, Mother's assignments of error are overruled.

{¶67} The January 27, 2023 judgment entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, is affirmed.

Gwin, P.J., Delaney, J., and Baldwin, J., concur