In re J.C.

2013 Ohio 3937

Opinion

[Cite as In re J.C., 2013-Ohio-3937.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: : : Appellate Case No. 25608 J.C. and D.P. : : Trial Court Nos. JC 1998-6524 : Trial Court Nos. JC 2010-5852 : : (Juvenile Appeal from : (Common Pleas Court) : : ...........

OPINION

Rendered on the 13th day of September, 2013.

...........

MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorneys for Appellee, MCCS

DAWN S. GARRETT, Atty. Reg. #55565, 70 Birch Alley, Suite 240, Dayton, Ohio 45440 Attorney for Appellant, H.P.

.............

HALL, J.,

{¶ 1} H.P. (Mother) appeals from the trial court’s January 11, 2013 orders awarding

Montgomery County Children Services (MCCS) permanent custody of two of her children, J.C. and D.P.

{¶ 2} Mother advances three assignments of error in this expedited appeal. First, she

contends the trial court discriminated against her based on a disability, in violation of the federal

Americans with Disabilities Act (ADA), when it terminated her parental rights without making a

reasonable effort to accommodate her disability and without first seeking a planned permanent

living arrangement. Second, she claims the trial court erred in finding an award of permanent

custody to be in the children’s best interest when that disposition was not the only means of

obtaining a legally secure placement. Third, she asserts that the evidence does not support an

award of permanent custody to MCCS.

{¶ 3} The record reflects that J.C. was born in 1997 and was adjudicated dependent in

1998. Since that time, various parties have had custody of J.C. The trial court first granted legal

custody to the maternal grandparents. In 2008, the trial court granted legal custody to Mother. In

December 2010, however, the trial court granted temporary custody to the maternal great aunt.

In January 2011, the trial court granted MCCS temporary custody of J.C. After multiple

extensions of temporary custody, MCCS moved for permanent custody in August 2012.

{¶ 4} D.P., the other child at issue, was born in 2006 and was adjudicated dependent in

2010. MCCS obtained temporary custody. After temporary custody was extended, MCCS moved

for permanent custody in August 2012.

{¶ 5} The trial court held a hearing on the two permanent-custody motions in October

2012. Based on the evidence presented, it filed separate January 11, 2013 decisions awarding

MCCS permanent custody of J.C. and D.P. This appeal followed.

{¶ 6} In her first assignment of error, Mother contends that she has a disability within

the meaning of the ADA and that MCCS violated the ADA by failing to make reasonable efforts 3

to accommodate her disability through its services and case-plan objectives and by failing to

pursue a planned permanent living arrangement rather than permanent custody. This argument

lacks merit for at least four reasons.

{¶ 7} First and foremost, an alleged violation of the ADA is not a defense to a

permanent-custody motion. “Title II of the ADA prohibits public entities from discriminating

based on disability. The procedure for enforcing the ADA begins with the filing of a complaint

with a designated agency.” (Citations omitted.) In re C.W., J.W. & H.W., 1st Dist. Hamilton No.

C-11032, 2011-Ohio-4756, ¶39. “If appropriate, the agency will refer the case to the Department

of Justice[,] which may file suit in a federal district court. An alternative procedure is for a

private individual to directly initiate an action, with or without waiting for the federal

administrative procedure to run its course.” (Citations omitted.) Id. “Ohio courts have refused to

apply the ADA so as to provide a defense to individuals in permanent-custody actions initiated by

public children-services agencies.” Id. at ¶40 (citing cases from the Fourth, Ninth, and Twelfth

appellate districts). We join these courts in finding “that an alleged violation of the ADA by a

public children-services agency may not be asserted as a defense in a permanent-custody action

brought by that agency.”1 Id. at ¶41.

{¶ 8} Second, Mother failed to allege a violation of the ADA in the proceedings below.

As a result, she has waived all but plain error, which does not exist on the record before us.

1 The only Ohio case law Mother cites supporting the ADA’s applicability as a defense to a permanent-custody motion is In re Burrows, 4th Dist. Athens No. 95CA1698, 1996 WL 309979 (May 30, 1996). In that case, the Fourth District “assum[ed] without deciding” that the ADA applied. Id. at *3. In a more recent case, however, the Fourth District concluded that the ADA did not provide a defense to a permanent-custody motion. See In re Harmon, 4th Dist. Scioto No. 00 CA 2693, 2000 WL 1424822, *12 (Sept. 25, 2000) (“We do not believe that a failure to comply with the ADA serves as a basis for invalidating an award of permanent custody. Rather, the ADA appears to contemplate a separate procedure for its enforcement.”). 4

{¶ 9} Third, Mother has not demonstrated that she has a disability within the meaning

of the ADA. The legislation provides that the term “disability” means (1) “a physical or mental

impairment that substantially limits one or more major life activities,” (2) “a record of such an

impairment,” or (3) “being regarded as having such an impairment.” 42 U.S.C. 12102. Here

Mother has depression and a mood disorder. She shows evidence of a narcissistic and histrionic

personality. She scored in the average to low-average range on various achievement and

intelligence tests. She also was found to lack some self awareness and to exercise limited

judgment. (Tr. Vol. I at 67-72, 87-88). Whether these limitations establish a “disability” under

the ADA is far from clear. Therefore, Mother could not demonstrate plain error even if the ADA

did provide a potential defense to a permanent-custody motion.

{¶ 10} Fourth, assuming arguendo that Mother’s limitations do qualify as a disability

under the ADA, the record reveals that MCCS made reasonable efforts to accommodate her.

MCCS developed a case plan and repeatedly worked with Mother to satisfy it. Among other

things, the agency referred her numerous times for parenting classes, psychological evaluations,

and counseling. Despite regular assistance, Mother largely failed to follow through and did not

come close to satisfying her case plan. On appeal, she argues broadly that MCCS did not attempt

to accommodate her. She fails to articulate, however, what accommodations should have been

provided or how they would have made a difference. The only thing she mentions is the agency’s

failure to seek a planned permanent living arrangement. But MCCS had no legal obligation to

seek a planned permanent living arrangement before moving for permanent custody. See, e.g., In

re D.J., 12th Dist. Butler No. CA2008-06-142, 2008-Ohio-5424, ¶12; In re A.B., 110 Ohio St.3d

230, 2006-Ohio-4359, 852 N.E.2d 1187, ¶34-36. For the foregoing reasons, Mother’s first 5

assignment of error is overruled.

{¶ 11} In her second assignment of error, Mother claims the trial court erred in finding

an award of permanent custody to be in the children’s best interest when that disposition was not

the only means of obtaining a legally secure placement. In her third assignment of error, Mother

asserts that the evidence does not support an award of permanent custody to MCCS. Because

these assignments of error are similar, we will consider them together.

{¶ 12} This court recently set forth the standards governing permanent-custody

determinations as follows:

R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency. The

statute requires the court to find, by clear and convincing evidence, that: (1)

granting permanent custody of the child to the agency is in the best interest of the

child; and (2) either the child (a) cannot be placed with either parent within a

reasonable period of time or should not be placed with either parent if any one of

the factors in R.C. 2151.414(E) are present; (b) is abandoned; (c) is orphaned and

no relatives are able to take permanent custody of the child; or (d) has been in the

temporary custody of one or more public or private children services agencies for

twelve or more months of a consecutive twenty-two month period. * * *

R.C. 2151.414(D) directs the trial court to consider all relevant factors

when determining the best interest of the child, including but not limited to: (1)

the interaction and interrelationship of the child with the child’s parents, relatives,

foster parents and any other person who may significantly affect the child; (2) the 6

wishes of the child; (3) 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; (4) 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; and (5) whether any of the factors in

R.C. 2151.414(E)(7) through (11) are applicable.

In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶14-15.

{¶ 13} Here the trial court made the findings required to award MCCS permanent

custody. With regard to both children, the trial court found, by clear and convincing evidence,

that they could not be placed with either parent within a reasonable time and that an award of

permanent custody was in the children’s best interest. We see no error in these determinations,

which enjoy ample evidentiary support.

{¶ 14} As a threshold matter, we note that neither child’s father has challenged the trial

court’s permanent-custody determination. The trial court found that J.C.’s father was unknown

and that the location of D.P’s father, who has a pending warrant for his arrest on a rape charge,

was unknown. With regard to Mother, the record reflects that the children most recently were

removed from her care in 2010 due to a lack of supervision, a lack of food, and poor home

conditions. (Tr. Vol. II at 12-13). The lack of supervision involved D.P. and another sibling, J.P.,

wandering around the neighborhood naked and dirty. (Id. at 8). MCCS developed a case plan to

address its concerns. As amended, the plan included requirements for Mother to obtain suitable

housing and income, to complete parenting and anger-management classes, to undergo 7

psychological and mental-health assessments, and to follow through with visitation and all other

recommendations. (Id. at 16). The agency went over the case plan with Mother monthly to review

her objectives and what she needed to do. (Id. at 15). Despite those efforts, Mother did not come

close to meeting her objectives.

{¶ 15} At the time of the permanent-custody hearing, Mother was homeless and residing

in a temporary shelter that could not accommodate children. (Id. at 17, 22). Prior to that

arrangement, she had spent time in at least two other shelters. (Id. at 20-21). When the case plan

was drafted in 2010, Mother had no income. (Id. at 22). She still lacked any income at the time of

the October 2012 permanent-custody hearing. (Id. at 22, 25). Although Mother did participate in

some classes and assessments, she failed to follow through with all requirements. Specifically,

she completed only six of eleven sessions of a parenting class. (Id. at 29). She also failed to

complete anger-management classes and failed to complete required mental-health counseling.

(Id. at 31-33, 35-37). With regard to visitation, Mother had attended only a small number of the

scheduled weekly sessions between January 1, 2012, and the October 2012 hearing. (Id. at 51).

Her last visit before the hearing took place on May 23, 2012. (Id.). A clinical psychologist who

examined Mother opined that “she was going to have a lot of significant difficulty in being able

to parent her children consistently on a day-to-day basis.” (Tr. Vol. I at 87).

{¶ 16} The evidence before us clearly and convincingly supports a finding that J.C. and

D.P. cannot be placed with either parent within a reasonable time because “[f]ollowing the

placement of the [children] outside the [children’s] home and notwithstanding reasonable case

planning and diligent efforts by the agency to assist the parents to remedy the problems that

initially caused the [children] to be placed outside the home, the parent has failed continuously 8

and repeatedly to substantially remedy the conditions causing the [children] to be placed outside

the [children’s] home.” R.C. 2151.414(E)(1).

{¶ 17} The record also supports the trial court’s finding that an award of permanent

custody is in the children’s best interest. Perhaps the most significant factor is the children’s

interaction with Mother and others. The record reflects that D.P. is well bonded with his

long-term foster parents, who desire to adopt him. (Tr. Vol. I at 153). D.P. is receiving treatment

for his special behavioral, emotional, and educational needs and is making good progress. (Id. at

136-145). The record contains evidence that neither J.C. nor D.P. is bonded with Mother. (Id. at

84-85). J.C. in particular seemed “very detached” in Mother’s presence. (Id. at 85). J.C. also has

emotional, behavioral, and mental-health issues that are being dealt with in a residential treatment

facility. (Tr. Vol. II at 56). MCCS anticipates J.C. being returned to foster care with a longer-term

goal of adoption. (Id. at 58). The record contains evidence that both children are adoptable. (Id. at

58, 60).

{¶ 18} The record also reflects that D.P. has been in the temporary custody of MCCS for

twelve or more months of a consecutive twenty-two-month period, which is a relevant

best-interest factor. As for J.C., she had been in the temporary custody of MCCS since January

2011. Before that, she had been in the temporary custody of a relative. The children’s need for a

legally secure placement is a best-interest factor militating in favor of permanent custody. The

record demonstrates that a legally secure placement cannot be achieved without a grant of

permanent custody to MCCS. Mother has not completed her case plan and does not appear close

to being able to regain custody. D.P.’s foster parents are qualified to adopt him and are waiting to

do so. J.C. is making progress in a residential facility and will be adoptable after her release. 9

{¶ 19} The trial court also found that there are no relatives or others willing to accept

legal custody of the children. Although Mother disputes this conclusion, the record contains

evidence to support it. During the hearing, various potential legal custodians were discussed. An

MCCS representative explained why none of them were viable candidates. (Tr. Vol. II at 61-69).

On appeal, Mother argues that J.C. could have been placed with a person named T.V. and that

D.P. could have been placed with a couple, A.M. and D.M. MCCS reasonably found T.V.

unsuitable, however, given her own recent history with a children-services agency and the fact

that she recently had been reunified with her own children. (Id. at 62). As for A.M. and D.M., the

record contains evidence that they reported no longer being interested. (Id. at 66, 77). Unlike

D.P.’s long-term foster parents, A.M. and D.M. also had never even seen D.P. and did not

participate in the hearing. (Id. at 72, 113, 115). Having reviewed the record, we cannot say that

the trial court erred in finding, by clear and convincing evidence, that an award of permanent

custody to MCCS was in the children’s best interest.

{¶ 20} In arguing to the contrary, Mother repeatedly suggests that the agency was

required to seek a planned permanent living arrangement in lieu of permanent custody. We

disagree. “A planned permanent living arrangement, formerly called long-term foster care, ‘is an

alternative form of custody in which the child is placed in a foster home or institution, with the

intention that the child will remain in that home or institution until he is no longer in the county

child services system.’” Miller v. Greene Cty. Children Serv. Bd., 162 Ohio App.3d 416,

2005-Ohio-4035, 833 N.E.2d 805, ¶20 (2d Dist.), quoting In re D.B., 8th Dist. Cuyahoga No.

81421, 2003-Ohio-3521, ¶6. “‘A PPLA does not sever the parental bonds as permanent custody

does, but it also does not provide the child with a legally permanent placement.’” Id., quoting In 10

re D.B. at ¶6. The Ohio Supreme Court has characterized a planned permanent living

arrangement as a “last resort.” In re A.B., 110 Ohio St.3d 230, 2006-Ohio-4359, 852 N.E.2d

1187, ¶36. Such an arrangement lacks the permanency and stability that foster children need. Id.

at ¶34-36. Before seeking a planned permanent living arrangement, a children-services agency

must demonstrate that it has tried or considered all other possible dispositions. Id. at ¶36.

{¶ 21} Here MCCS chose to pursue another possible disposition—permanent

custody—and it was not prohibited from doing so. Notably, in In re A.B., the Ohio Supreme

Court reversed the placement of a child in a planned permanent living arrangement where the

children-services agency did not request that disposition and instead sought permanent custody.

Id. at ¶37; see also In re D.J., 12th Dist. Butler No. CA2008-06-142, 2008-Ohio-5424, ¶12

(finding that a children-services agency “had no obligation” to request a planned permanent

living arrangement instead of permanent custody). Mother’s second and third assignments of

error are overruled.

{¶ 22} The judgment of the Montgomery County Common Pleas Court, Juvenile

Division, is affirmed.

FAIN, P.J., and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck Matthew T. Crawford Dawn S. Garrett Hon. Nick Kuntz