In re D.A.
Lead Opinion
{¶ 1} Wе accepted this discretionary appeal to determine whether the parental rights of a mentally retarded couple were properly terminated and permanent custody of their son properly awarded to Tuscarawas County Job and Family Services. We reverse.
Procedural Facts
{¶ 2} In early 2004, appellants voluntarily relinquished custody of their ten-year-old son, D.A., who was having behavioral problems, to appellee, Tuscarawas County Job and Family Services (“the agency”). After 30 days, the agency sought temporary custоdy of D.A. by filing a complaint alleging that the boy was a neglected and dependent child. The agency filed a motion to dismiss the count of neglect at the adjudicatory hearing, and the magistrate recommended that D.A. be found to be a dependent child. The trial court approved and adopted the magistrate’s decision on April 14, 2004.
{¶ 3} The trial court adopted the agency’s case plan developed for appellants, which required them to undergo psychological evaluations and follow the evaluating psychologist’s recommendations. Both parents were required to attend parenting classes and were to be assessed for services by the Department of Mental Retardation and Developmental Disabilities (“MRDD”). The mother was also expected to attend therapy to learn to control her response to stress.
{¶ 4} The psychological evaluations revealed that D.A.’s father has an IQ of 62 on the Wechsler Adult Intelligence Scale and that his mother has an IQ of 59. Concluding that the parents’ mental conditions sevеrely limited their ability to provide adequate care for their son, the psychologist recommended individual therapy to improve their skills. Appellants began parenting classes at the agency in August 2004. Initially in a class with other parents, at the request of the parenting-education teacher, they began meeting for classes on an individual
{¶ 5} Despite these steps toward reunification, on January 21, 2005, the agency filed a motion seeking permanent custody of D.A. The trial court held a hearing on May 27, 2005. It found that, although appellants love their son very much and were willing to do anything necessary to bring him home, returning D.A. to them was not in his best interest, because they have “very low cognitive skills that hinder their day to day functioning” and “demonstrate no ability to engage in the type of complex thinking necessary tо parent a child.” The trial court expressed its concern that appellants function as the child’s peers instead of as his parents. It further found that to allow “a normally functioning child like [D.A.] to be parented by two parents with the severe limitations demonstrated by [appellants] is to seriously jeopardize his healthy, successful future.” The court found that D.A. “cannot and should not be placed with either parent within a reasonable time” because “despite diligent, reasonable efforts * * *, both parents have failed continuаlly and repeatedly for a period of six months or more to substantially remedy the conditions causing removal.” The trial court ordered that D.A. be placed in the permanent custody of the agency.
{¶ 6} The parents appealed to the Fifth District Court of Appeals, which determined that the record supported the finding that both parents had failed continually and repeatedly to substantially remedy the conditions causing removal. The Fifth District also upheld the trial court’s finding that granting the agency permanent custody was in D.A.’s best interest because returning him to appellants would seriously jeopardize his healthy, successful future.
{¶ 7} We accepted the discretionary appeal. In re Adkins,
Fundamental Right
{¶ 8} In Troxel v. Granville (2000),
{¶ 9} “The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska,
{¶ 10} We note that this court has long held that “parents who are suitable persons have a ‘paramount’ right to the custody of their minor children. In re Perales (1977),
{¶ 11} The fundamental interest of parents is not absolute, however. Once the case reaches the disposition phase, the best interest of the child controls. The termination of parental rights should be an alternative of “last resort.” In re Cunningham (1979),
Permanent-Custody Procedure
{¶ 12} Before parental rights are terminated and permanent custody granted to a children services agency,
{¶ 14} “(b) The child is abandoned.
{¶ 15} “(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
{¶ 16} “(d) The child has been in the temporary custody of one or more рublic children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999.”
{¶ 17}
{¶ 18} The court next must determine whether granting permanent custody to a children services agency is in the child’s best interest. It is required to consider several factors, including the relationship between the child and the child’s parents and foster caregivers, the child’s wishes, the custodial history of the child, and the child’s need for a legally secure permanent placement.
Analysis
{¶ 19} Appellants argue that their parental rights were terminated solely due to their limited cognitive abilities, violating their rights to raise their son. They contend that their low IQ scores were the only objective evidence to support a finding that D.A. could not or should not be placed with them and that it was in his best interest to terminate their parental rights.
{¶ 20} The agency acknowledges that
{¶ 21} To satisfy either
{¶ 22} “(1) Following the placement of the child outside the child’s home and notwithstanding reasonable case planning and diligent efforts by the agenсy to
{¶ 23} “(2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the [disposition] hearing * *
{¶ 24} D.A. was initially rеmoved from his home at his mother’s request due to his aggressive behavior and her concern that she could not adequately handle him. After the agency was awarded temporary custody, appellants were given four objectives in the case plan: (1) complete psychological evaluations and follow all recommendations, (2) attend parenting classes, (3) complete an MRDD assessment, and (4) attend therapy. At the disposition hearing, there was testimony that D.A.’s defiant behavior decreased over time. It is undisputed that appellants complied with every aspect of their case plan with the exception of completing parenting classes, and that failure was due to the agency’s suspension of classes after one month.
{¶ 25} What was disputed was appellants’ ability to parent D.A. due to their mental retardation. The trial court found as follows:
{¶ 26} “3. [D.A.] has progressed well in foster care even though he would still prefer to be with his parents. It is clear that there is a strong family bond between [D.A.] and his family. This Court recognizes that this family does nоt demonstrate many of the irresponsible, uncaring, or dangerous characteristics that are regularly evident in many permanent custody cases. It is clear that [D.A.’s] parents love him very much and are willing to do anything necessary to secure his return home.
{¶27} “4. Evidence that this would not be in the best interest of [D.A.] is revealed in the results of the psychological evaluations of his parents. Both [father and mother] demonstrate IQ levels between 62 and 59, respectively. Practically speaking, both parents have no real comprehension as to why [D.A.] was removed form [sic] their care. They possess very low cognitive skills that hinder their day to day functioning. They demonstrate no ability to engage in the type of complex thinking necessary to parent a child. [The parents] did not internalize any lessons provided in their parenting classes in any significant way.
{¶ 28} “5. [D.A.] continues to do well in school and his behavior is very appropriate. He does not demonstrate any intellectual limitations and performs well in the mainstream classroom.
{¶ 29} “6. To expect a normally functioning child like [D.A.] to be parented by two parents with the severe limitations demonstrated by [the parents] is to seriously jeopardize his healthy, successful future.”
{¶ 30} The trial court concluded that “despite diligent, reasonable efforts and planning by the Tuscarawas County Job and Family Services to remedy the problems which caused removal of the child, both parents have failed continually and repeatedly for a period of six months or more to substantially remedy the conditions causing removal”
{¶ 31} The psychologist testified that appellants lacked the skills to provide аdequate care and expressed concern that due to their mental retardation, they would use authority instead of reasoning to obtain D.A.’s compliance. There is no evidence to support this concern. In fact, it was the exact opposite that led to this case’s initiation. His mother recognized that she did not know how to handle D.A. and sought help.
{¶ 32} The parenting-education teacher testified that appellants function as D.A.’s peers and that his mother has displayed attention-seeking behavior around him. The tеacher did acknowledge, however, that appellants had retained some of the parenting-class information from week to week and that the mother recognized when D.A. needed discipline and attempted to discipline him. The teacher expressed concern about the parents’ ability to consistently apply the skills taught in her classes. But they were never given an opportunity to apply these parenting skills, since they were never permitted to complete the classes. In In re Alexis K.,
{¶ 33} Despite making several findings regarding the parents’ limited cognitive abilities, the trial court did not find that appellants were unable to provide an adequate home for D.A. due to their mental retаrdation, a finding that is required to satisfy
{¶ 34} The dissent relies in part on the family’s previous contact with the agency, including the removal of two other children from the mother many years before, as well as the case manager’s testimony that the mother displayed aggressive behavior toward D.A. during a visitation. But as the court of appeals noted, the trial court did not use the prior history as a reason that D.A. could not or should not be returned to his parents within a reasonable time. See In re Adkins, Tuscarawas App. Nos. 2005AP06-0044 and 2005AP07-0049,
{¶ 35} As for what would be in D.A.’s best interest, the trial court again focused on his parents’ limited cognitive abilities. Their mental retardation, however, is not what should have been considered. Instead, the court should have considered factors such as their relationship with their child, whether they had ever harmed him, and where the child wished to live.
{¶ 36} The trial court stated that D.A.’s future could be “sеriously jeopardized” if he remained with his parents. But there was no evidence that they have harmed D.A. either physically, emotionally, or mentally. D.A. has done well in school, and his behavior is appropriate. At this point, it is speculation to say that he may not reach his full potential if he remains with his parents. We hold that when determining the best interest of a child under
{¶ 38} Finally, the dissent indicates that we would not hesitate to find that it was in D.A.’s best interest to be removed from his parents if the same actions were undertaken by parents of average intelligence and there was concern about their future conduct. But that is simply not true. The record fails to demonstrate any harm or threat of harm to D.A., and the trial court’s repeated reference to the low cognitive abilities of the parents indicates that that was thе sole reason for the termination of parental rights.
{¶ 39} Due to the emphasis placed on D.A.’s parents’ mental retardation and the lack of clear and convincing evidence that their limited abilities have caused or threatened to cause harm to him, we conclude that the trial court failed to comply with
Conclusion
{¶ 40} We hold that the termination of appellants’ parental rights based solely on mental retardation does not comply with
Judgment reversed.
Notes
. Although the trial court included the language “for a period of six months or more” in its finding, this language was removed from E.C. 2151.414(E)(1) when the statute was amended in 1996. Am.Sub.H.B. No. 419,146 Ohio Laws, Part III. 4660, 4681.
. The trial court did find that appellants had “demonstrated a lack of commitment toward their child and have failed to provide an adequate home for the child.” This finding is apparently an attempt to find that
Concurrence in Part
concurring in part and dissenting in part.
{¶ 42}
{¶ 43} Here, the court was determining bоth the best interest of the child under
{¶ 44} In determining whether a child can be placed with either parent within a reasonable time, a court must, under
{¶ 45} The record in this case provides several facts that are relevant to the court’s determinations under
{¶ 46} In 2004, D.A. was placed in temporary custody with the agency after his mother contacted the police and indicated that she was afraid she would hurt her son if he were not removed from her home. The court also found that the parents “have no real comprehension as to why [D.A.] was removed from their care” and that there was “no information to indicate that the deficits demonstrated by [the parents could] be improved to any significant degree.”
{¶ 47} The agency case manager testified that she had observed the mother display aggressive behavior toward her son during a supervised visit and that she did not observe any changes in the ability of the parents to care for D.A. during the year D.A. was in temporary custody.
{¶ 48} An agеncy employee responsible for parent-education classes for D.A.’s parents also observed no real changes in the parents’ ability to care for their son and continued to be concerned over the parents’ lack of understanding of basic parenting concepts. The agency had a difficult time providing services to the parents and implementing the case plan as a result of the intellectual limitations of the parents and the parents’ failure to engage in appropriate services.
{¶ 49} A board-certified psychologist who evaluated D.A.’s parents testified as to her significant concern regarding the parents’ ability to provide adequate care for D.A.
{¶ 50}
{¶ 51} The trial court’s judgment entry states that the court considered all the factors listed in
{¶ 52} The court of appeals correctly stated that it could not overturn the trial court’s findings “if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights have been established.” In re Adkins, 5th Dist. Nos. 2005AP06-0044 and 2005AP07-0049,
{¶ 53} Because I conclude that the court of appeals correctly applied the proper standard of review to the trial court judgment, I respectfully dissent.