In re A.B.

[Cite as In re A.B., 2022-Ohio-4234.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
IN RE:
CASE NO. 9-22-12
A.B.
ADJUDGED DEPENDENT CHILD.
OPINION
[TERRY B. - APPELLANT]
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 2019 AB 0234
Judgment Affirmed
Date of Decision: November 28, 2022
APPEARANCES:
Edwin M. Bibler for Appellant
Jocelyn Stefancin for Appellee
Case No. 9-22-12
MILLER, J.
{¶1} Father-appellant, Terry B., appeals the March 16, 2022 judgment of the
Marion County Court of Common Pleas, Family Division, granting permanent
custody of his son, A.B., to appellee, Marion County Children Services (the
“Agency”). For the reasons that follow, we affirm.
I. Facts & Procedural History
{¶2} A.B. is the biological son of Terry B. and Courtney C. A.B. has cerebral
palsy, is reliant on a wheelchair, and requires extensive, constant care. The Agency
grew concerned that A.B.’s needs were not being met by Terry, with whom A.B.
was residing, and that the conditions of Terry’s home were unsuitable for A.B.
{¶3} On November 8, 2019, the Agency filed a complaint in the trial court
alleging that A.B. was a dependent child. (Doc. No. 1). The Agency requested that
A.B. be placed under its protective supervision. A case plan for Terry was adopted
by the trial court on January 16, 2020.
{¶4} On December 30, 2019, the trial court appointed a guardian ad litem
(“GAL”) for A.B. (Doc. No. 9). On January 21, 2020, the GAL filed a motion for
an emergency hearing, which she requested after a concerning home visit with A.B.
and Terry. (Doc. No. 13). An emergency hearing was held on January 24, 2020.
(Doc. No. 15). At the conclusion of the hearing, A.B. was committed to the
temporary emergency custody of the Agency. (Doc. No. 15).
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{¶5} On numerous occasions during the pendency of the case, the Agency
dismissed and refiled its complaint. On each occasion, the trial court’s previous
orders continued in effect and A.B. remained in the temporary custody of the
Agency. The Agency refiled its complaint for the final time on November 5, 2020.
(Doc. Nos. 50, 51).
{¶6} On November 30, 2020, A.B. was adjudicated dependent with respect
to Terry. (Doc. No. 74). On December 17, 2020, A.B. was adjudicated dependent
with respect to Courtney. (Doc. No. 58). Following the adjudications, A.B. was
continued in the temporary custody of the Agency.
{¶7} On September 3, 2021, the Agency filed a motion requesting permanent
custody of A.B. (Doc. No. 77). On November 16, 2021, the GAL filed her report
recommending that the Agency be granted permanent custody of A.B. (Doc. No.
87).
{¶8} A permanent-custody hearing was held on November 22, 2021. On
March 16, 2022, the trial court granted the Agency’s motion and awarded permanent
custody of A.B. to the Agency.
II. Assignment of Error
{¶9} On March 22, 2022, Terry filed a notice of appeal.1 He raises the
following assignment of error for our review:
1
Courtney is not a party to this appeal.
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The trial court’s judgment in granting permanent custody was
against the manifest weight of the evidence and contrary to law,
and amounted to an abuse of discretion, as granting Marion
County Children’s Services motion for permanent custody was
not in the best interest of A.B.
III. Discussion
{¶10} In his assignment of error, Terry argues that the trial court’s decision
awarding the Agency permanent custody of A.B. is against the manifest weight of
the evidence.
A. Manifest-Weight Review of Permanent-Custody Decisions
{¶11} “When an appellate court reviews whether a trial court’s permanent
custody decision is against the manifest weight of the evidence, the court ‘“weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered.”’” In re Dn.R., 3d Dist. Shelby No. 17-
20-06, 2020-Ohio-6794, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th
Dist.2001).
{¶12} In a permanent custody case, the ultimate question for a reviewing
court is “whether the juvenile court’s findings * * * were supported by clear and
convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 43.
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“Clear and convincing evidence” is the “‘measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the allegations
sought to be established. It is intermediate, being more than a mere preponderance,
but not to the extent of such certainty as required beyond a reasonable doubt as in
criminal cases. It does not mean clear and unequivocal.’” In re Dn.R. at ¶ 17,
quoting In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986). “In determining
whether a trial court based its decision upon clear and convincing evidence, ‘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 ¶ 18,
quoting State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). “Thus, if the children
services agency presented competent and credible evidence upon which the trier of
fact reasonably could have formed a firm belief that permanent custody is
warranted, then the court’s decision is not against the manifest weight of the
evidence.” In re R.M., 4th Dist. Athens Nos. 12CA43 and 12CA44, 2013-Ohio-
3588, ¶ 55.
{¶13} “Reviewing courts should accord deference to the trial court’s decision
because the trial court has had the opportunity to observe the witnesses’ demeanor,
gestures, and voice inflections that cannot be conveyed to us through the written
record.” In re S.D., 5th Dist. Stark No. 2016 CA 00124, 2016-Ohio-7057, ¶ 20. “A
reviewing court should find a trial court’s permanent custody decision against the
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manifest weight of the evidence only in the ‘“exceptional case in which the evidence
weighs heavily against the [decision].”’” In re Dn.R. at ¶ 19, quoting State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d
172, 175 (1st Dist.1983).
B. Standards & Procedures for the Termination of Parental Rights
{¶14} The right to raise one’s child is a basic and essential right. In re
Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651,
92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625(1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and
management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102
S.Ct. 1388 (1982). However, the rights and interests of a natural parent are not
absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These
rights may be terminated under appropriate circumstances and when the trial court
has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-
52, 5-02-53 and 5-02-54, 2003-Ohio-1269, ¶ 6.
{¶15} “R.C. 2151.414 outlines the procedures that protect the interests of
parents and children in a permanent custody proceeding.” In re N.R.S., 3d Dist.
Crawford Nos. 3-17-07, 3-17-08 and 3-17-09, 2018-Ohio-125, ¶ 12, citing In re
B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26. “When considering a motion for
permanent custody of a child, the trial court must comply with the statutory
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requirements set forth in R.C. 2151.414.” In re A.M., 3d Dist. Marion No. 9-14-46,
2015-Ohio-2740, ¶ 13. “R.C. 2151.414(B)(1) establishes a two-part test for courts
to apply when determining whether to grant a motion for permanent custody: (1)
the trial court must find that one of the circumstances in R.C. 2151.414(B)(1)(a)-
(e) applies, and (2) the trial court must find that permanent custody is in the best
interest of the child.” In re Y.W., 3d Dist. Allen No. 1-16-60, 2017-Ohio-4218, ¶
10.
{¶16} As relevant to this case, R.C. 2151.414(B)(1) provides:
[T]he court may grant permanent custody of a child to a movant if the
court determines at the hearing held pursuant to [R.C. 2151.414(A)],
by clear and convincing evidence, that it is in the best interest of the
child to grant permanent custody of the child to the agency that filed
the motion for permanent custody and that any of the following apply:
***
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period *
* *.
R.C. 2151.414(B)(1)(d).
{¶17} “‘If the trial court determines that any provision enumerated in R.C.
2151.414(B)(1) applies,’ it must proceed to the second prong of the test, which
requires the trial court to ‘determine, by clear and convincing evidence, whether
granting the agency permanent custody of the child is in the child’s best interest.’”
In re K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38 and 9-15-39, 2017-Ohio-142,
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¶ 23, quoting In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 55 and
citing R.C. 2151.414(B)(1). “The best interest determination is based on an analysis
of R.C. 2151.414(D).” Id.{¶18} “Under R.C. 2151.414(D)(1), the trial court is required to consider all
relevant factors listed in that subdivision, as well as any other relevant factors.” Id.
at ¶ 24, citing In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12 and 8-13-13, 2014-
Ohio-755, ¶ 27. The factors specifically listed in R.C. 2151.414(D)(1) are:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the
child;
(b) 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;
(c) The custodial history of the child, including whether the child
has been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period * * *;
(d) 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 to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414(D)(1). “Under this test, the trial court considers the totality of the
circumstances when making its best interest determinations. No single factor is
given more weight than others.” In re N.R.S., 2018-Ohio-125, at ¶ 16.
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C. The trial court’s decision granting permanent custody of A.B. to the Agency
is not against the manifest weight of the evidence.
{¶19} Terry does not dispute that A.B. had been in the Agency’s temporary
custody for 12 or more months of a consecutive 22-month period at the time the
Agency filed its motion for permanent custody on September 3, 2021. Therefore,
Terry does not challenge the trial court’s determination that R.C. 2151.414(B)(1)(d)
applies to A.B. Instead, in his assignment of error, Terry argues the trial court erred
by determining that permanent custody is in A.B.’s best interest. Thus, the sole
issue in this case is whether clear and convincing evidence supports the trial court’s
finding that permanent custody is in A.B.’s best interest.
{¶20} At the permanent-custody hearing, Makenzie McGill, an ongoing
caseworker with the Agency, testified about A.B., his needs, and the events that
precipitated his removal from Terry’s home. McGill testified that A.B. has cerebral
palsy and a history of significant seizures. (Nov. 22, 2021 Tr. at 9). She stated that
A.B. underwent surgery when he was two years old to address the seizures and that
he experiences fewer seizures at present, though he is still taking some medication
to ameliorate them. (Nov. 22, 2021 Tr. at 10). McGill further testified that the right
side of A.B.’s body is mostly paralyzed, that he relies principally on a wheelchair
to move about, and that he is blind in one eye and partially deaf. (Nov. 22, 2021 Tr.
at 10). According to McGill, A.B. is nonverbal. (Nov. 22, 2021 Tr. at 11).
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{¶21} At the time of A.B.’s removal, A.B. was living with Terry. According
to McGill, Courtney has little to no involvement with A.B. McGill testified that,
during the pendency of the case, Courtney expressed that she is not able to care for
A.B. (Nov. 22, 2021 Tr. at 14). McGill said that Courtney had no visitation with
A.B. (Nov. 22, 2021 Tr. at 15).
{¶22} McGill testified that A.B. was initially removed from Terry’s care due
to concerns about the safety and cleanliness of Terry’s home, as well as A.B. being
underweight, issues relating to A.B.’s medical care, and his lack of attendance at
school. McGill stated that Terry’s home was extremely dirty, with cat litter and
feces on the floor, among other things. According to McGill, A.B. had been sent to
school with cockroaches on him, and on occasions, school personnel would have to
bathe A.B. because he would be covered in his own feces. (Nov. 22, 2021 Tr. at
41). McGill testified that, at the time, A.B. needed hip surgery but doctors would
not operate because they were concerned that the conditions of Terry’s home would
expose A.B. to an intolerable risk of infection. (Nov. 22, 2021 Tr. at 41). McGill
also testified that Terry’s home was extremely cluttered, which was a concern
because the clutter made it difficult to move A.B. throughout the home in his
wheelchair. (See Nov. 22, 2021 Tr. at 17-18).
{¶23} Consequently, obtaining and maintaining safe, clean, and stable
housing was a key objective of Terry’s case plan. McGill testified that Terry was
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provided with storage bins and a dumpster to try to address the clutter in his home.
(Nov. 22, 2021 Tr. at 17-18). However, Terry did not remain in his home in Marion.
McGill stated that approximately one year before the permanent-custody hearing,
Terry was homeless for a period of time before he and his wife settled in a house in
Bellefontaine. (Nov. 22, 2021 Tr. at 11, 19). McGill testified that Terry’s new
house is less cluttered than his Marion house, but that cleanliness issues persist.
(Nov. 22, 2021 Tr. at 18). Specifically, Terry still struggles to keep up on dishes
and trash that could attract bugs and the house still smells like animal feces and
urine. (Nov. 22, 2021 Tr. at 18, 44).
{¶24} But in McGill’s view, the problems with Terry’s Bellefontaine home
go well beyond cleanliness. According to McGill, Terry’s Bellefontaine home is in
a general state of disrepair. McGill testified that the roof leaks and that the flooring
is incomplete or loose in places. (Nov. 22, 2021 Tr. at 12, 21). McGill stated that
the unfinished flooring was especially problematic because it would require Terry
to carry A.B. in and out of the home. (Nov. 22, 2021 Tr. at 43). In addition, the
upstairs level of the home is unfinished and unfurnished, the foundation is sinking,
and there is mold and rot. (Nov. 22, 2021 Tr. at 21).
{¶25} McGill also testified that Terry has difficulty maintaining utilities at
the Bellefontaine home. (Nov. 22, 2021 Tr. at 17). Electricity is supplied to the
home, but Terry often uses a space heater and, on occasion, the stove to heat the
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home. (Nov. 22, 2021 Tr. at 58-59). Furthermore, the home was sometimes without
running water, which resulted in the toilet and bathtub becoming very dirty. (Nov.
22, 2021 Tr. at 44).
{¶26} Moreover, McGill testified that Terry’s Bellefontaine home is not
“wheelchair friendly” and that it is very cramped. McGill stated that even if Terry
could establish a bedroom for A.B. upstairs, Terry could not consistently get A.B.
up and down the stairs because the stairs cannot accommodate A.B.’s wheelchair.
(Nov. 22, 2021 Tr. at 42). McGill also testified that the bathroom is not handicap
accessible. (Nov. 22, 2021 Tr. at 43). In summarizing her issues with Terry’s
Bellefontaine home, McGill noted that when A.B. is not in his wheelchair, he
“scoots” around on the floor. (Nov. 22, 2021 Tr. at 11-12). In McGill’s opinion,
the Bellefontaine home is not suitable because A.B. could not safely “scoot” and
because his wheelchair could realistically navigate only the first level of the home.
(Nov. 22, 2021 Tr. at 11-12, 70).
{¶27} McGill testified about other things standing in the way of A.B.
returning to Terry’s care. McGill stated that, as part of his case plan, Terry was
required to attend A.B.’s medical appointments. McGill testified that while Terry
does have a vehicle, he has legal impediments with his driver’s license due to
outstanding fees. (Nov. 22, 2021 Tr. at 12, 34). As a consequence, Terry could not
drive to A.B.’s medical appointments and was absent for the majority of them. (See
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Nov. 22, 2021 Tr. at 13, 46). Furthermore, due to his vehicle situation, Terry was
unable to attend many in-person visits with A.B. (Nov. 22, 2021 Tr. at 16). McGill
testified that it had been at least one year since Terry visited in-person with A.B.,
but that Terry did visit with A.B. over Zoom. (Nov. 22, 2021 Tr. at 16, 22-23).
According to McGill, Terry attended most of his scheduled Zoom visits with A.B,
and during these visits, A.B. laughed and got along well with Terry. (Nov. 22, 2021
Tr. at 22-23, 36).
{¶28} McGill also testified about Terry’s employment history and financial
situation. McGill stated that Terry had been able to maintain employment
throughout the pendency of the case, though he had recently lost his job. (Nov. 22,
2021 Tr. at 51). McGill testified that Terry receives money from social security and
that his wife is also employed. (Nov. 22, 2021 Tr. at 51). In McGill’s opinion,
given Terry’s income, Terry ought to have been able to pay the fines and fees that
limited his ability to drive his vehicle. (Nov. 22, 2021 Tr. at 52). According to
McGill, Terry instead acquired more pets and paid for their needs while some of his
or his wife’s own basic needs went unmet. (Nov. 22, 2021 Tr. at 52). McGill stated
that Terry had a hard time budgeting and that he was not proficient at financial
management or prioritization. (Nov. 22, 2021 Tr. at 52).
{¶29} In addition, McGill stated that Terry had a hard time prioritizing or
realizing which of A.B.’s needs were most important or most in need of attention.
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(Nov. 22, 2021 Tr. at 17). McGill suggested that Terry had not made much progress
on these issues during the pendency of the case and that she doubted he could
sufficiently plan for A.B.’s hygienic requirements, his medical appointments, or the
rest of his special needs. (Nov. 22, 2021 Tr. at 17, 25). McGill testified that Terry
would be capable of meeting A.B.’s emotional needs and that he could care for A.B.
on a short-term basis. (Nov. 22, 2021 Tr. at 16). However, she doubted that Terry
could consistently care for A.B. for a long period of time. (Nov. 22, 2021 Tr. at 16,
47). McGill testified that “[a] lot of the concern with parenting ability comes from
cognitive concerns” about Terry and that parenting classes might help Terry “but
not to the standard needed for [A.B.’s] care.” (Nov. 22, 2021 Tr. at 55). McGill
stated that she was concerned that if A.B. was returned to Terry and if the Agency’s
involvement ended, then Terry would have to find services and advocate for A.B.,
which Terry had had a difficult time doing for himself. (Nov. 22, 2021 Tr. at 56).
{¶30} A.B.’s current foster parents, Kenneth and Mary Elizabeth Holycross,
also testified at the permanent-custody hearing. The Holycrosses testified that they
are specially certified to foster special-needs children like A.B. and that they foster
two other special-needs children in addition to A.B. (Nov. 22, 2021 Tr. at 76, 98).
They testified that A.B. needs intensive, constant, and around-the-clock care. (Nov.
22, 2021 Tr. at 77, 85, 100-102, 107-109). They stated that, among other things,
they must change A.B.’s diaper four to six times per day, maintain his equipment,
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feed him a special diet, administer his medications, help him perform certain
stretching exercises, and, on occasion, bathe him multiple times per day. (Nov. 22,
2021 Tr. at 77, 86-92, 107). Many of these tasks are physically demanding. (Nov.
22, 2021 Tr. at 86-92, 107-108). In addition, A.B. must see specialists in Columbus
one to two times every three months, and he attends speech, occupational, and
physical therapy sessions three times every week. (Nov. 22, 2021 Tr. at 79, 109).
{¶31} The Holycrosses testified that A.B. has thrived in their care. They
stated that they recently acquired a tablet for A.B., which A.B. can use for
rudimentary communication. (Nov. 22, 2021 Tr. at 78). Kenneth testified that the
family home is handicap accessible and that A.B. does not spend much of his time
at home in his wheelchair. (Nov. 22, 2021 Tr. at 81, 94). Instead, A.B. “scoots”
around to various parts of the house, which A.B. can navigate with relative ease.
(Nov. 22, 2021 Tr. at 81, 94-95). Mary Elizabeth testified that A.B. prefers to be
out of his wheelchair. (Nov. 22, 2021 Tr. at 103). Kenneth testified that A.B. will
need a clean home that is handicap accessible and that his caretaker must be able to
recognize and attend to A.B.’s needs, understand the recommendations of A.B.’s
doctors, and have appropriate transportation for A.B. (Nov. 22, 2021 Tr. at 96).
Mary Elizabeth stated that lack of utilities, including running water, unsuitable
transportation, and inadequate financial resources would be obstacles to caring for
A.B. (Nov. 22, 2021 Tr. at 108-109).
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{¶32} In addition, the Holycrosses testified that A.B. has integrated well into
their family and that he is beloved by his foster siblings. (Nov. 22, 2021 Tr. at 81,
101). Kenneth referred to A.B. as a “pure joy.” (Nov. 22, 2021 Tr. at 80). For her
part, McGill testified that she observed A.B. interact with his foster parents on
numerous occasions and that, based on her observations, A.B. gets along well with
his foster parents, who are attentive to his needs and do a good job comforting him
when he is upset. (Nov. 22, 2021 Tr. at 26-27). McGill stated that A.B. is bonded
with his foster family. (Nov. 22, 2021 Tr. at 26-27). The Holycrosses testified that
they are considering adopting A.B. but have not reached a decision yet. (Nov. 22,
2021 Tr. at 83, 103).
{¶33} Furthermore, the Holycrosses testified that they try to make sure that
A.B. visits with Terry weekly on Zoom. (Nov. 22, 2021 Tr. at 82, 102-103). They
stated that the visits go well. (Nov. 22, 2021 Tr. at 82, 102-103). Kenneth testified
that A.B. had missed a few Zoom visits with Terry, but that Terry was not at fault
for most of the missed visits and that they tried to make up the appointments
whenever possible. (Nov. 22, 2021 Tr. at 82).
{¶34} Finally, in her report recommending that the Agency be granted
permanent custody of A.B., the GAL touched on many of the matters raised in
McGill’s and the Holycrosses’ testimonies. The GAL, pointing to the same
cleanliness, habitability, and accessibility issues raised in McGill’s testimony,
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opined that Terry’s Bellefontaine house was not appropriate for A.B. The GAL also
documented the dearth of in-person visits with A.B., and she indicated that she had
witnessed several Zoom visits where Terry was “more interested in speaking with
the foster parents than in engaging with [A.B.].” (Doc. No. 87). She also noted that
A.B.’s placement with the Holycrosses was a “good fit” and that his needs were
being met. On cross-examination, the GAL confirmed many of the observations
contained in her written report. She testified that while A.B. and Terry have an
appropriate relationship, Terry’s Bellefontaine home is simply incompatible with
A.B.’s needs and, to her knowledge, Terry has not taken any steps to address the
issues. (Dec. 6, 2021 Tr. at 16-27). She also testified regarding the issues with
Terry’s transportation. Specifically, she stated that while Terry has a van that could
“technically” accommodate A.B. and his wheelchair, she was not sure whether the
van was equipped to securely carry the wheelchair. (Dec. 6, 2021 Tr. at 29).
{¶35} Having reviewed the record, we conclude that clear and convincing
evidence supports the trial court’s finding that permanent custody is in A.B.’s best
interest. Terry clearly loves A.B. and interacts appropriately with him. See R.C.
2151.414(D)(1)(a). Moreover, Terry has made some progress in addressing the
issues that led to A.B.’s removal from his custody. However, A.B. had been out of
Terry’s custody for over two years by the time of the trial court’s ruling on the
Agency’s motion for permanent custody. See R.C. 2151.414(D)(1)(c). In that time,
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Terry failed repeatedly to obtain safe, clean, and accessible housing for A.B., which
was perhaps the chief objective of Terry’s case plan. See R.C. 2151.414(E)(1) and
(4); In re R.P., 2d Dist. Montgomery Nos. 27746 and 27747, 2018-Ohio-517, ¶ 58,
fn. 3 (indicating that R.C. 2151.414(E)(1) and (4) can be used in the best-interest
determination because “R.C. 2151.414(D)(1) does not limit the factors that can be
considered”). Furthermore, Terry failed to resolve the issues with his vehicle that
would have potentially allowed him to visit with A.B. in person and attend A.B.’s
medical appointments, even though it appears Terry had sufficient financial
resources to do so. See R.C. 2151.414(E)(4). Meanwhile, A.B. was placed with a
foster family who attends to all A.B.’s needs and provides A.B. with an accessible
living space. A.B. is strongly bonded to his foster family and relates well to his
foster parents and foster siblings. See R.C. 2151.414(D)(1)(a).
{¶36} Furthermore, there is no reasonable expectation that Terry will be able
in the foreseeable future to provide A.B. with the supportive environment he needs
to thrive. As indicated by McGill’s testimony, there is substantial concern that Terry
lacks the skills necessary to consistently recognize, prioritize, and address A.B.’s
tremendous needs. These shortcomings were attributed to Terry’s “cognitive
concerns.” “When determining the best interest of a child under R.C. 2151.414(D)
at a permanent-custody hearing, a trial court may not base its decision solely on the
limited cognitive abilities of the parents.” In re D.A., 113 Ohio St.3d 88, 2007-
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Ohio-1105, syllabus. However, a parent’s cognitive abilities may be relevant to
determining the child’s best interests where there is “objective evidence” presented
showing that the parent’s “cognitive status impeded [their] ability to care for [their]
children in that [they were] unable to recognize or protect [the] children from harm.”
In re M.N., 4th Dist. Athens No. 08CA9, 2008-Ohio-4821, ¶ 23. Here, Terry’s
cognitive issues contributed to A.B.’s removal insofar as they limited Terry’s ability
to recognize A.B.’s needs, provide a safe and clean environment for A.B., and
ensure that A.B. went to school regularly and attended medical appointments.
Given Terry’s lack of significant progress in this case, it is doubtful that Terry’s
cognitive issues would not still impede his ability to care for A.B. by rendering
Terry unable to fully recognize A.B.’s needs and protect him. Ultimately, A.B. is
in need of a legally secure permanent placement, and there is no indication that
Terry or anyone within his familial or social circle will be able to provide that. See
R.C. 2151.414(D)(1)(d).
{¶37} In sum, clear and convincing evidence supports the trial court’s
determination that permanent custody is in A.B.’s best interest. Therefore, we
conclude the trial court’s decision awarding permanent custody of A.B. to the
Agency is not against the manifest weight of the evidence.
{¶38} Terry’s assignment of error is overruled.
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Case No. 9-22-12
IV. Conclusion
{¶39} For the foregoing reasons, Terry’s assignment of error is overruled.
Having found no error prejudicial to the appellant herein in the particulars assigned
and argued, we affirm the judgment of the Marion County Court of Common Pleas,
Family Division.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
/jlr
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