[Cite as In re J.K., 2013-Ohio-1050.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
IN THE MATTER OF:                              :   Patricia A. Delaney, P.J.
                                               :   William B. Hoffman, J.
           J.K. AND C.A.                       :   John W. Wise, J.
                                               :
                                               :
                                               :   Case No. 2012 CA 00212
                                               :
                                               :
                                               :   OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from Stark County
                                                    Court of Common Pleas, Juvenile
                                                    Division, Case No. 2010JCV01494

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             March 18, 2013

APPEARANCES:

For Appellee                                        For Appellant

LISA A. LOUY                                        MARY WARLOP
Stark County Job and                                116 Cleveland Avenue, N.W.
Family Services                                     Suite 500
221 Third Street, S.E.                              Canton, Ohio 44702
Canton, Ohio 44702
[Cite as In re J.K., 2013-Ohio-1050.]


Hoffman, J.

        {¶1}     Appellant, L.M., appeals the October 29, 2012 judgment entered by the

Stark County Court of Common Pleas, Juvenile Division, which terminated her parental

rights, privileges and responsibilities with respect to her two minor children J.K. and

C.A., and granted permanent custody to Appellee Stark County Department of Jobs and

Family Services.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     Appellant is the biological mother of J.K. (dob 3-5-2001) and C.A. (dob 5-

10-2010). The biological fathers of the children are not parties to this appeal.

        {¶3}     On January 3, 2011, Appellee filed a complaint alleging the children were

dependent and neglected. The children were adjudicated dependent on March 8, 2011,

and placed in the temporary custody of Appellee.

        {¶4}     Appellant has four other children, none of whom are in her custody.

Appellant transferred legal custody of three of the children to her mother, and she refers

to them as her brothers and sisters. The other child was adopted by Appellant’s former

landlord, and when asked about the child, Appellant fails to recognize this child.

        {¶5}     Appellant’s case plan required her to complete a parenting evaluation at

Northeast Ohio Behavioral Health (NEOBH) and follow all recommendations, complete

an evaluation at Quest and follow all recommendations, successfully complete Goodwill

parenting classes, and provide treatment to the children regarding physical and/or

mental abnormalities which prevented them from thriving in her care.

        {¶6}     Appellant      completed   her   assessment   at   NEOBH;   however,   no

recommendations for services could be made due to Appellant’s low level of mental
Stark County App. Case No. 2012 CA 00212                                             3


functioning. Dr. Amy Thomas of NEOBH reported Appellant functions at the level of a

nine-year-old child, which prevents her from processing any newly obtained information

from any recommended services.

       {¶7}   Appellant completed a drug and alcohol assessment at Quest and was

recommended into a treatment class, but she failed to attend the class.

       {¶8}   Appellant refused to connect with the Bureau of Vocational Rehabilitation

services when suggested by Appellee, claiming she “didn’t need that.” Tr. 7. She went

to Coleman Behavioral Health to address mental health diagnoses of bi-polar disorder,

anxiety disorder, adjustment disorder and borderline intellectual functioning, but was

last seen for counseling at the facility in July of 2011.

       {¶9}   Appellant began attending Goodwill parenting classes, but was terminated

after one week due to “combative, argumentative and uncooperative behaviors.” Tr. 7.

She was threatening toward other participants in the class and insisted on differently

timed breaks and a separated learning environment from the rest of the class. Goodwill

offered to re-enroll Appellant in the program after she received counseling, but

Appellant failed to attend counseling after July of 2011.

       {¶10} When C.A. was first taken into temporary custody she was seven months

old and weighed ten pounds and ten ounces. She has a double cleft palate which

requires occupational therapy to assist with eating and language development.

Appellant did not acknowledge C.A. was improperly nourished for her age.

       {¶11} Visits between Appellant and the children were difficult, with Appellant

relating to J.K. as a peer and having little interaction with C.A.
Stark County App. Case No. 2012 CA 00212                                                 4


       {¶12} Appellee moved for permanent custody of the children on April 11, 2012.

Following a hearing, the trial court granted the motion and awarded permanent custody

of both children to Appellee on October 29, 2012.

       {¶13} Appellant assigns a single error on appeal:

       {¶14} “THE      TRIAL     COURT      ERRED      AND     VIOLATED       MOTHER’S

FUNDAMENTAL PARENTAL RIGHTS AND FAILED TO COMPLY WITH O.R.C.

2151.414 BY TERMINATING MOTHER’S PARENTAL RIGHTS BASED SOLELY ON

HER LIMITED COGNITIVE ABILITY.”

       {¶15} In order to grant a request for permanent custody, the trial court is

required to engage in a two-part analysis. First, as required by R.C. 2151.414, it must

find one of the factors below exists:

       {¶16} “ (B)(1) Except as provided in division (B)(2) of this section, the court may

grant permanent custody of a child to a movant if the court determines at the hearing

held pursuant to division (A) of this section, 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:

       {¶17} “The child is not abandoned or orphaned, has not 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, or has

not 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 if, as described in division (D)(1) of section 2151.413 of the Revised

Code, the child was previously in the temporary custody of an equivalent agency in
Stark County App. Case No. 2012 CA 00212                                                    5


another state, 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.

       {¶18} “(b) The child is abandoned.

       {¶19} “(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.

       {¶20} “(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, or 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 and, as

described in division (D)(1) of section 2151.413 of the Revised Code, the child was

previously in the temporary custody of an equivalent agency in another state.”

       {¶21} The trial court is then required to engage in an assessment of whether a

grant of permanent custody is in the best interest of the child utilizing factors set forth in

R.C. 2151.414(D) as follows:

       {¶22} “(D)(1) In determining the best interest of a child at a hearing held

pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of

section 2151.353 or division (C) of section 2151.415 of the Revised Code, the court

shall consider all relevant factors, including, but not limited to, the following:

       {¶23} “(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;
Stark County App. Case No. 2012 CA 00212                                                6


       {¶24} “(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;

       {¶25} “(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, or 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 and, as described in division (D)(1) of section

2151.413 of the Revised Code, the child was previously in the temporary custody of an

equivalent agency in another state;

       {¶26} “(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;

       {¶27} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

       {¶28} The trial court found the children could not be placed with Appellant within

a reasonable time.     The trial court also found permanent custody was in the best

interest of the children, who were placed in a foster-to-adopt home and were bonded to

the foster parents, while they were not strongly bonded to Appellant.

       {¶29} Appellant argues the court’s findings were based solely on her limited

cognitive abilities, which the Ohio Supreme Court prohibited in In re D.A., 113 Ohio St.

3d 88, 2007-Ohio-1105, 862 N.E.2d 829.

       {¶30} The Ohio Supreme Court held in In re D.A. as follows:
Stark County App. Case No. 2012 CA 00212                                                 7


       {¶31} “The trial court stated that D.A.'s future could be ‘seriously 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 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.

       {¶32} “We do not mean to minimize the trial court's concern about appellants'

ability to parent their son. R.C. 2151.414, however, does not permit a parent's

fundamental right to raise his or her child to be terminated based on mental retardation

alone. In other cases in which the parental rights of mentally retarded persons have

been terminated pursuant to R.C. 2151.414(E)(1) or (2), objective evidence existed to

show that the statute was satisfied. See, e.g., In re C.E., Butler App. Nos. CA2006–01–

015 and CA2006–02–024, 2006-Ohio-4827, 2006 WL 2663464 (the mother needed

constant supervision and prompting to meet child's basic needs and had inadequate

housing); In re King, Fairfield App. No. 05 CA 77, 2006-Ohio-781, 2006 WL 401598 (the

mother consistently relied on others to meet many of her basic needs and lost her

housing).” Id. at ¶36-37.

       {¶33} The instant case is distinguishable from In re D.A. In the instant case, the

court’s finding the children could not be placed with Appellant within a reasonable time

was supported by evidence other than her limited cognitive abilities. She was unable to

care for C.A.’s physical needs caused by her cleft palate, resulting in the

malnourishment of the child. Although NEOBH recommended no services be provided
Stark County App. Case No. 2012 CA 00212                                                 8


to Appellant due to her low mental functioning, Appellee did attempt to provide case

plan services to Appellant. Appellant failed to follow through with treatment suggested

by Quest. She rejected Appellee’s attempts to get her involved and Appellant refused

to connect with the Bureau of Vocational Rehabilitation services when suggested by

Appellee, claiming she “didn’t need that.” Tr. 7. She went to Coleman Behavioral

Health to address mental health diagnoses of bi-polar disorder, anxiety disorder,

adjustment disorder and borderline intellectual functioning, but was last seen there for

counseling in July of 2011. Appellant began attending Goodwill parenting classes, but

was terminated after one week due to “combative, argumentative and uncooperative

behaviors.” Tr. 7. She was threatening toward other participants in the class and

insisted on differently timed breaks and a separated learning environment from the rest

of the class. Goodwill offered to re-enroll Appellant in the program after she received

counseling, but Appellant failed to attend counseling after July of 2011.

       {¶34} As to the court’s finding permanent custody was in the best interest of the

children, this finding was also supported by evidence other than Appellant’s low

cognitive functioning. She had difficulty at visits, relating to J.K. as a peer and not

bonding at all with C.A. The children were functioning well in a foster-to-adopt home.

       {¶35} Based on the evidence, we find the court did not err in granting permanent

custody to Appellee, and did not base its findings solely on Appellant’s low intellectual

functioning as prohibited by In re D.A., supra.
Stark County App. Case No. 2012 CA 00212                                           9


       {¶36} The assignment of error is overruled.

       {¶37} The judgment of the Stark County Common Pleas Court, Juvenile

Division, is affirmed.




By: Hoffman, J.

Delaney, P.J. and

Wise, J. concur

                                                 s/ William B. Hoffman_____________



                                                 s/ Patricia A. Delaney _____________



                                                 s/ John W. Wise _________________

                                                             JUDGES




WBH/r0301
[Cite as In re J.K., 2013-Ohio-1050.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                              :
                                               :
           J.K. AND C.A.                       :
                                               :
                                               :
                                               :        JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :        CASE NO. 2012 CA 00212




    For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas, Juvenile Division, is affirmed. Costs assessed to

Appellant.




                                                   s/ William B. Hoffman _______________


                                                   s/ Patricia A. Delaney _______________


                                                   s/ John W. Wise ___________________

                                                                  JUDGES
