In re D.A.

• Decision Date: 28 March 2007
• Docket Number: No. 2006-0514.,2006-0514.
• Citation: 2007 Ohio 1105,862 N.E.2d 829,113 Ohio St.3d 88
• Parties: In re D.A.
• Court: Ohio Supreme Court

862 N.E.2d 829

113 Ohio St.3d 88

2007-Ohio-1105

In re D.A.

No. 2006-0514.

Supreme Court of Ohio.

Submitted September 20, 2006.

Decided March 28, 2007.

J. Dean Carro, Akron, for appellants.

David W. Haverfield and Michelle A. McGonnell, for appellee.

Katherine Hunt Federle and Jason A. Macke, urging reversal for amicus curiae, the Justice for Children Project.

LANZINGER, J.

{¶ 1} We 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 custody 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 severely 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 basis for 30 minutes both before and after visits with their son. At the end of September, the teacher suspended appellants' classes because she believed that they might be better able to retain information if she waited until they had home visitations with D.A. and classes could be held in their home. In addition to parenting classes, appellants also attended seven therapy meetings at Community Mental Healthcare over the course of five months to help them deal with their grief and emotional issues related to their separation from D.A. and to discuss parenting issues, such as child discipline. With respect to the case plan's requirement that they be assessed for MRDD services, the agency was notified that appellants did not qualify for MRDD services due to their ability to meet their basic needs without help from MRDD.

{¶ 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 to 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 continually 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, 109 Ohio St.3d 1423, 2006-Ohio-1967, 846 N.E.2d 533. In essence, appellants claim that the trial court failed to comply with statutory requirements in terminating their parental rights. We agree.

Fundamental Right

{¶ 8} In Troxel v. Granville (2000), 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49, the United States Supreme Court noted that parents' interest in the care custody, and control of their children "is perhaps the oldest of the fundamental liberty interests recognized by this Court." The protection of the family unit has long been a paramount concern of the courts, as indicated in Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551:

{¶ 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, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), `basic civil rights of man,' Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and `[r]ights far more precious * * * than property rights,' May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953). `It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, 262 U.S. at 399, 43 S.Ct. at 626 the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, 316 U.S. at 541, 62 S.Ct. at 1113 , and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring)."

{¶ 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), 52 Ohio St.2d 89, 97, 6 O.O.3d 293, 297, 369 N.E.2d 1047, 1051-1052; Clark v. Bayer (1877), 32 Ohio St. 299, 310," In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, and that "[p]ermanent termination of parental rights has been described as `the family law equivalent of the death penalty in a criminal case.' In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54. Therefore, parents `must be afforded every procedural and substantive protection the law allows.' Id." In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680.

{¶ 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), 59 Ohio St.2d 100, 105, 13 O.O.3d 78, 391 N.E.2d 1034.

Permanent-Custody Procedure

{¶ 12} Before parental rights are terminated and permanent custody granted to a children services agency, R.C. 2151.414(B)(1) requires a court to determine "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:

{¶ 13} "(a) The child is not abandoned or orphaned 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 ending on or after March 18, 1999, 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.

{¶ 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 public 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} R.C. 2151.414(E) provides guidelines for a court charged with determining whether a child cannot or should not be placed with either parent within a reasonable period of time under R.C. 2151.414(B)(1)(a) and requires that such a finding be made if it is established by clear and convincing evidence that one or more of 16 factors exist with respect to each parent.

{¶ 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. R.C. 2151.414(D).

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...