In re L.M.
[THOMAS E. MORRISON, SR. - APPELLANT]
[LOLA A. STEWART - APPELLANT]
O P I N I O N
APPEARANCES:
Brian N. Gernert for Appellants
Michael J. Wiener for Appellee
PRESTON, J.
{¶1} Appellants, Lola A. Stewart (“Stewart“) and Thomas E. Morrison, Sr. (“Morrison“), appeal the April 4, 2018 decisions of the Crawford County Court of Common Pleas, Juvenile Division, granting permanent custody of their minor children, T.M., L.M., and L.M.M., to Crawford County Job and Family Services (the “agency“). For the reasons that follow, we affirm.
{¶2} On April 18, 2017, the agency filed a complaint in case numbers 2175061 and 2175062 alleging T.M. and L.M., respectively, to be neglected children under
{¶3} Stewart and Morrison stipulated at a hearing on May 8, 2017 that T.M. and L.M. are neglected children, and the trial court adjudicated them to be neglected children under
{¶4} On July 17, 2017, Stewart filed a motion to stay or dismiss the agency‘s request that the trial court grant it permanent custody of T.M. and L.M. (Case No. 2175061, Doc. No. 11); (Case No. 2175062, Doc. No. 11).
{¶5} After a hearing on July 17, 2017, the trial court ordered on August 14, 2017 that T.M. and L.M. remain in the temporary custody of the agency. (Case No. 2175061, Doc. No. 16); (Case No. 2175062, Doc. No. 16).
{¶6} At a hearing on September 18, 2017, the agency orally moved to withdraw its request that the trial court grant it permanent custody of T.M. and L.M. and orally requested that the trial court grant it temporary custody of T.M. and L.M. (Case No. 2175061, Doc. No. 21); (Case No. 2175062, Doc. No. 21). As a result of the agency‘s request, the trial court issued its dispositional entry on October 23, 2017 committing T.M. and L.M. to the temporary custody of the agency under
{¶8} During the pendency of the cases, Stewart gave birth to L.M.M. in October 2017. (See Case No. 2175181, Doc. No. 1). On December 4, 2017, the agency filed a complaint in case number 2175181 alleging L.M.M. to be a dependent child under
{¶9} Stewart and Morrison stipulated at a hearing on December 22, 2017 that L.M.M. is a dependent child and the trial court adjudicated on January 25, 2018 that L.M.M. is a dependent child under
{¶11} On May 17, 2017, the trial court appointed T.M. and L.M. a Guardian Ad Litem (“GAL“). (Case No. 2175061, Doc. No. 7); (Case No. 2175062, Doc. Nos. 7, 26). The trial court appointed L.M.M. the same GAL on December 4, 2017. (Case No. 2175181, Doc. No. 4). The GAL filed his reports on September 18, 2017 recommending that the trial court award permanent custody of T.M. and L.M. to the agency. (Case No. 2175061, Doc. No. 20); (Case No. 2175062, Doc. No. 20). The GAL filed reports on February 27, 2018 recommending that the trial court award permanent custody of T.M., L.M., and L.M.M. to the agency. (Case No. 2175198, Doc. No. 7); (Case No. 2175199, Doc. No. 7); (Case No. 2175181, Doc. No. 17).
{¶12} After a hearing on February 27, 2018, the trial court granted permanent custody of T.M. and L.M. to the agency on April 4, 2018 under
{¶13} On April 9, 2018, the agency submitted its semi-annual administrative reviews regarding T.M., L.M., and L.M.M., which were accepted by the trial court.
{¶14} On May 1, 2018, Stewart and Morrison filed their notices of appeal. They raise one assignment of error for our review.
Assignment of Error
Crawford County Department of Job and Family Services Did Not Act in Good Faith/Make a Good Faith Effort to Reunify Parent and Child/Prevent the Termination of the Parent Child Relationship
{¶15} In their assignment of error, Stewart and Morrison argue that the trial court erred in granting permanent custody of T.M., L.M., and L.M.M. to the agency because the agency failed to make a “good faith” effort to reunite them with their children. In particular, Stewart and Morrison contend that the agency failed “to make reasonable modifications to rules, policies, or practices” as required by the Americans with Disabilities Act (“ADA“). (Appellants’ Brief at 6).
{¶16} The right to raise one‘s child is a basic and essential right. In re Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399 (1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, the rights and interests of a natural parent are not absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These
{¶17} When considering a motion for permanent custody of a child, the trial court must comply with the statutory requirements set forth in
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:
(a) 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, * * * 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}
(E) In determining at a hearing * * * whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing * * * that one or more of the following exist as to each of the child‘s parents, the court shall enter a finding that the child cannot
be placed with either parent within a reasonable time or should not be placed with either parent: (1) Following the placement of the child outside the child‘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 child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child‘s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
* * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child[.]
{¶20} “Under
(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;
(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;
(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, * * *; (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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶21} If the trial court makes these statutorily required determinations, a reviewing court will not reverse a trial court‘s decision unless it is not supported by clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 43, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985) and In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). “Clear and convincing evidence is that which is sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” In re S.G., 2015-Ohio-2306, at
{¶22} Stewart and Morrison do not challenge any of the trial court‘s findings under
{¶23} No one section of the Revised Code addresses the concept of reasonable efforts. Overall, Ohio‘s child-welfare laws are designed
In re C.F. at ¶ 29. In particular, under
{¶24} In this case, after the agency withdrew its motions for permanent custody regarding T.M. and L.M., the trial court issued dispositional entries committing T.M. and L.M. to the temporary custody of the agency under
{¶25} Regardless of whether the trial court needed to make the reasonable-efforts finding again, the trial court made the same findings in its entries granting the agency permanent custody of T.M. and L.M. (Case No. 2175198, Doc. No. 8); (Case No. 2175199, Doc. No. 8). See In re B.S. at ¶ 38. Indeed, the trial court detailed the efforts that the agency took toward remedying the conditions preventing reunification. In particular, the trial court discussed the “deplorable home conditions” which led to the removal of the children from the home. (Case No. 2175198, Doc. No. 8); (Case No. 2175199, Doc. No. 8). The trial court noted that “[t]he on-going caseworker testified she repeatedly instructed [Stewart and Morrison] on what needed to be done to remedy the problem.” (Id.); (Id.). Further, the trial court discussed the efforts of the agency in consulting with “other social service agencies in the area * * * about the provision of [in-home housekeeping]
{¶26} In the case of L.M.M., because the trial court issued its dispositional entry granting permanent custody of L.M.M. to the agency under
If the agency removed the child from home during an emergency in which the child could not safely remain at home and the agency did not have prior contact with the child, the court is not prohibited, solely because the agency did not make reasonable efforts during the emergency to prevent the removal of the child, from determining that the agency made those reasonable efforts. In determining whether
reasonable efforts were made, the child‘s health and safety shall be paramount.
Moreover, the trial court adopted and incorporated the agency‘s case plan, which identified reunification as its goal, into its adjudicatory entry. (See Case No. 2175181, Doc. No. 16). Finally, as we discussed above, the trial court detailed the efforts that the agency took to reunify the family in its dispositional entries granting permanent custody of the children to the agency. (See Case No. 2175181, Doc. No. 18). Accordingly, we conclude that the trial court more than sufficiently made its reasonable-efforts determinations in L.M.M.‘s case.
{¶27} The trial court‘s reasonable-efforts findings are supported by clear and convincing evidence. At the February 27, 2018 permanent-custody hearing, Holly Kaple (“Kaple“), who was the Crawford County Children Services‘s (“CCCS“) intake caseworker assigned to the case involving T.M. and L.M., testified that T.M. and L.M. were removed from the home on April 14, 2017 due to the “deplorable” conditions of the home. (Feb. 27, 2018 Tr. at 10-12). According to Kaple, “[t]he home had a strong odor about it. There was a cockroach infestation in the home. There were animals. There were two dogs in the home, and the floors were covered with feces and cockroaches.” (Id. at 12). Kaple identified State‘s Exhibit 6 as the photographs that she took depicting the conditions of the home on April 14, 2017. (Id. at 12-13).
{¶29} According to Rachel, Stewart and Morrison were informed that the residence to which they moved in November 2017 exhibited structural concerns “that would not qualify” as suitable for T.M. and L.M. to be reunited with them. (Id. at 32). Despite that information, Stewart and Morrison “chose to rent this trailer with the structural concerns.” (Id.). After Rachel provided Stewart and Morrison a list of items to “fix” in the residence, Stewart and Morrison again moved in January 2018. (Id. at 36). (See State‘s Ex. 15). (See also Feb. 27, 2018 Tr. at 40-41). Rachel
{¶30} Rachel testified that she “always told [Stewart and Morrison] to clean the home as if the children were living in the home.” (Id. at 35). Rachel also testified that she provided instructions on items that Stewart and Morrison needed to repair to permit reunification. (Id. at 39). Indeed, Rachel identified State‘s Exhibit 15 as “a home improvement list that [she] had given to the family” detailing items reflected by State‘s Exhibits 12 and 13 that needed to be remedied for reunification. (Id. at 40). Despite Rachel‘s instructions, she continued to observe conditions preventing reunification. (See id. at 35). (See also id. at 44).
{¶31} Rachel testified that the agency investigated alternative placements for T.M. and L.M. throughout the agency‘s “nine open cases with the family.” (Id. at 46-47).
{¶32} On cross-examination, Rachel testified that she established the family‘s case plans, which identified reunification as their goal. (Id. at 48). (See Case No. 2175061, Doc. No. 26); (Case No. 2175062, Doc. No. 25); (Case No. 2175181, Doc. No. 16) (See also Feb. 27, 2018 Tr. at 59-60). As part of the case plans, Stewart and Morrison were to work with the Crawford County Board of Developmental Disabilities (“CCBDD“); however, it was discovered that Stewart
{¶33} On re-direct examination, Rachel testified that of the nine times that T.M. and L.M. were removed from their home, eight were due to “filthy, deplorable home conditions.” (Id. at 78). Rachel further testified that, of those eight times, Stewart and Morrison remedied the home conditions after the agency provided them with instructions. (Id. at 78-79). According to Rachel, Stewart and Morrison “failed to implement” those instructions in this case. (Id. at 79). Rachel testified that she explored home-care-services options that were available to assist Stewart and Morrison. (Id. at 79-80).
{¶34} The GAL also testified. (Id. at 81). He testified that, even if Stewart and Morrison qualified for services with the CCBDD, that agency does not provide home-care services. (Id. at 87-88).
{¶36} First, Stewart and Morrison failed to allege any violation of the ADA in the trial court. As such, they waived all but plain error on appeal. In re J.C., 2d Dist. Montgomery No. 25608, 2013-Ohio-3937, ¶ 8; In re L.B.J., 4th Dist. Lawrence Nos. 17CA2 and 17CA3, 2017-Ohio-4416, ¶ 17, citing Snyder v. Stevens, 4th Dist. Scioto No. 12CA3465, 2012-Ohio-4120, ¶ 15. See In re Dailey, 10th Dist. Franklin No. 04AP-1346, 2005-Ohio-2196, ¶ 23. “‘[I]n appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.‘” Brandon v. Brandon, 3d Dist. Mercer No. 10-08-13, 2009-Ohio-3818, ¶ 37, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus.
{¶37} Even assuming that Stewart and Morrison properly asserted plain error on appeal, their argument does not amount to plain error because “an alleged violation of the ADA is not a defense to a permanent-custody motion.” In re J.C.
{¶38} Therefore, we conclude that the trial court did not err by granting permanent custody of T.M., L.M., and L.M.M. to the agency. Stewart and Morrison‘s assignment of error is overruled.
{¶39} Having found no error prejudicial to the appellants herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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