In re A.B.

[Cite as In re A.B., 

.]




                       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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Case No. 9-22-12


       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, 

, quoting Eastley v. Volkman, 

,

, quoting Tewarson v. Simon, 

 (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., 

, 

, ¶ 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, 

 (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, 

 (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, 

. “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, 

 (1997), quoting State v. Martin, 

 (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, 

 (1990), citing Stanley v. Illinois, 

,

 (1972) and Meyer v. Nebraska, 

, 

(1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and

management of the child.” 

 quoting Santosky v. Kramer, 

, 

 (1982). However, the rights and interests of a natural parent are not

absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 

. 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, 

, ¶ 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, 

, citing In re

B.C., 

, 

. “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,

, ¶ 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, 

.

       {¶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, 

,

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¶ 23, quoting In re A.F., 3d Dist. Marion No. 9-11-27, 

, ¶ 55 and

citing R.C. 2151.414(B)(1). “The best interest determination is based on an analysis

of R.C. 2151.414(D).” 

       {¶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., 

.

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Case No. 9-22-12


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


                                       -10-
Case No. 9-22-12


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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Case No. 9-22-12


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, 

 (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., 

, 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, 

. 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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