2013 Ohio 3937
Ohio Ct. App.2013Background
- Two children, J.C. (born 1997) and D.P. (born 2006), were in the custody of Montgomery County Children Services (MCCS); MCCS moved for permanent custody in August 2012 after extended periods of temporary custody.
- Mother (H.P.) had prior custody history with removals for lack of supervision, inadequate housing/food, and poor home conditions; she was homeless and had no income at the October 2012 hearing.
- MCCS developed and repeatedly reviewed a case plan requiring housing, income, parenting and anger-management classes, psychological/mental-health assessments, and regular visitation; Mother failed to complete many components and attended few visits.
- Evidence showed D.P. bonded with long-term foster parents who wished to adopt; D.P. had special needs being addressed and had been in MCCS custody at least 12 of 22 months; J.C. was in residential treatment and expected to be adoptable after release.
- Mother asserted three errors on appeal: (1) ADA/disability discrimination for failure to accommodate and failure to seek a planned permanent living arrangement (PPLA); (2) permanent custody was not necessary to obtain legally secure placement; and (3) insufficient evidence supported permanent custody.
- The trial court awarded MCCS permanent custody of both children; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether alleged ADA violation may be asserted as a defense to a public agency permanent-custody motion | Mother: MCCS failed to reasonably accommodate her disability (depression/mood/personality issues) and should have sought a PPLA before seeking permanent custody | MCCS: ADA enforcement proceeds by administrative or federal suit; ADA is not a defense in permanent-custody proceedings; MCCS also contends it made reasonable accommodations and followed case-plan procedures | Court: ADA claim is not a defense to a permanent-custody motion; Mother waived ADA below; even assuming a disability, MCCS made reasonable efforts; assignment overruled |
| Whether a PPLA was required before MCCS sought permanent custody; and whether permanent custody was the only way to secure placement | Mother: MCCS should have sought a PPLA (long-term foster care) instead of permanent custody | MCCS: Not required to seek PPLA; permanent custody is an available disposition and may better provide permanency when appropriate | Court: Agency was not obligated to pursue PPLA; permanent custody was appropriate and provided needed legal permanency; assignment overruled |
| Whether clear-and-convincing evidence supported permanent custody (best interest; inability to place with parent within reasonable time) | Mother: She could remedy conditions; evidence insufficient to show children couldn’t be placed with her within a reasonable time or that permanent custody was in best interest | MCCS: Despite reasonable case planning and efforts, Mother repeatedly failed to remedy conditions; children are bonded to foster placements and need legally secure permanent homes | Court: Evidence supports R.C. 2151.414 findings—parents failed to remedy conditions despite reasonable efforts; children’s best interests favor permanent custody; assignment overruled |
Key Cases Cited
- Miller v. Greene Cty. Children Serv. Bd., 162 Ohio App.3d 416, 833 N.E.2d 805 (2d Dist. 2005) (describing Planned Permanent Living Arrangement and permanence considerations)
- In re A.B., 110 Ohio St.3d 230, 852 N.E.2d 1187 (2006) (PPLA is a last-resort disposition; agency must consider other dispositions before PPLA; PPLA lacks the legal permanency of permanent custody)