[Cite as In re L.M., 2018-Ohio-3712.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY


IN RE:
                                              CASE NO. 3-18-08
       L.M.,

ADJUDGED NEGLECTED CHILD.
                                              OPINION
[THOMAS E. MORRISON, SR. - APPELLANT]
[LOLA A. STEWART - APPELLANT]



IN RE:
                                              CASE NO. 3-18-09
       T.M.,

ADJUDGED NEGLECTED CHILD.
                                              OPINION
[THOMAS E. MORRISON, SR. - APPELLANT]
[LOLA A. STEWART - APPELLANT]



IN RE:
                                              CASE NO. 3-18-10
       L.M.M.,

ADJUDGED NEGLECTED CHILD.
                                              OPINION
[THOMAS E. MORRISON, SR. - APPELLANT]
[LOLA A. STEWART - APPELLANT]
Case Nos. 3-18-08, 3-18-09 and 3-18-10




            Appeals from Crawford County Common Pleas Court
                              Juvenile Division
             Trial Court Nos. C 2175061, C 2175062, F 2175181,
                         F 2175198 and F 2175199,

                              Judgments Affirmed

                    Date of Decision:    September 17, 2018


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 R.C. 2151.03(A)(2). (Case No. 2175061, Doc. No. 1); (Case No.



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Case Nos. 3-18-08, 3-18-09 and 3-18-10


2175062, Doc. No. 1). In its complaint, the agency requested that the trial court

grant it permanent custody of T.M. and L.M. (Id.); (Id.).

       {¶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 R.C. 2151.03(A)(2) on June 8, 2018. (Case No. 2175061, Doc. No.

10); (Case No. 2175062, Doc. No. 10). Also at the May 8, 2017 hearing, the trial

court granted the agency temporary custody of T.M. and L.M. (Id.); (Id.).

       {¶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 R.C.

2151.353(A)(2)(a). (Id.); (Id.).


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


       {¶7} The agency submitted its case plans regarding T.M. and L.M. to the trial

court on November 29, 2017. (Case No. 2175061, Doc. No. 23); (Case No.

2175062, Doc. No. 23). The trial court approved the case plans on January 25, 2018

and incorporated those plans into its entries. (Case No. 2175061, Doc. No. 26);

(Case No. 2175062, Doc. No. 25).

       {¶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 R.C. 2151.04(C).         (Id.).   In its complaint, the agency

requested that the trial court grant it permanent custody of L.M.M. (Id.). After a

shelter-care hearing that same day, the trial court granted the agency temporary

custody of L.M.M. (Case No. 2175181, Doc. No. 8).

       {¶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 R.C. 2151.04(C). (Case No. 2175181, Doc. No.

16). The trial court ordered that L.M.M. remain in the temporary custody of the

agency, approved the agency’s case plan regarding L.M.M., which was submitted

to the trial court on December 22, 2017, and incorporated the case plan into its entry

of adjudication. (Id.).




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Case Nos. 3-18-08, 3-18-09 and 3-18-10


       {¶10} On December 19, 2017, the agency filed motions for permanent

custody of T.M. and L.M. (Case No. 2175198, Doc. No. 1); (Case No. 2175199,

Doc. No. 1).

       {¶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 R.C. 2151.413.

(Case No. 2175198, Doc. No. 8); (Case No. 2175199, Doc. No. 8). Also on April

4, 2018, the trial court issued its dispositional entry granting permanent custody of

L.M.M. to the agency under R.C. 2151.353(A)(4). (Case No. 2175181, Doc. No.

18).

       {¶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.


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


(Case No. 2175061, Doc. Nos. 34, 38); (Case No. 2175062, Doc. Nos. 31, 35); (Case

No. 2175181, Doc. Nos. 19, 23).

       {¶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,

92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625

(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, 102

S.Ct. 1388 (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

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Case Nos. 3-18-08, 3-18-09 and 3-18-10


rights may be terminated under appropriate circumstances and when the trial court

has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-

52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶ 6.

        {¶17} When considering a motion for permanent custody of a child, the trial

court must comply with the statutory requirements set forth in R.C. 2151.414.1 See

In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 14. R.C.

2151.414(B)(1) establishes a two-part test for courts to apply when determining

whether to grant a motion for permanent custody: (1) the trial court must find that

one of the circumstances in R.C. 2151.414(B)(1)(a)-(e) apply, and (2) the trial court

must find that permanent custody is in the best interest of the child. In re S.G., 9th

Dist. Wayne No. 15AP0005, 2015-Ohio-2306, ¶ 10. See also In re Brown, 98 Ohio

App.3d 337, 343 (3d Dist.1994). R.C. 2151.414(B)(1) provides, in relevant part,

that a trial 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:




1
  A trial court’s consideration of a motion for permanent custody under R.C. 2151.353(A)(4) or 2151.413
involves considering the requirements of R.C. 2151.414.

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Case Nos. 3-18-08, 3-18-09 and 3-18-10


      (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.

R.C. 2151.414(B)(1)(a). “Specifically concerning R.C. 2151.414(B)(1)(a), ‘[i]f one

or more of the factors enumerated in R.C. 2151.414(E) is found to be present by

clear and convincing evidence, the trial court shall find that the child cannot be

placed with the parents within a reasonable period of time or should not be placed

with the parents.’” In re A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 13,

quoting In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 54, citing In re

Goodwin, 3d Dist. Shelby No. 17-08-12, 2008-Ohio-5399, ¶ 23.

      {¶18} R.C. 2151.414(E) provides, in relevant part:

      (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


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


      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[.]

R.C. 2151.414(E)(1), (4).


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


       {¶19} “‘If the trial court determines that any provision enumerated in R.C.

2151.414(B)(1) applies,’ it must proceed to the second prong of the test, which

requires the trial court to ‘determine, by clear and convincing evidence, whether

granting the agency permanent custody of the child is in the child’s best interest.’”

In re K.M.S., 3d Dist. Marion No. 9-15-37, 2017-Ohio-142, ¶ 23, quoting In re A.F.

at ¶ 55, and citing R.C. 2151.414(B)(1). “The best interest determination is based

on an analysis of R.C. 2151.414(D).” Id.

       {¶20} “Under R.C. 2151.414(D)(1), the trial court is required to consider all

relevant factors listed in that subdivision, as well as any other relevant factors.” Id.

at ¶ 24, citing In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12, and 8-13-14, 2014-

Ohio-755, ¶ 27. The R.C. 2151.414(D)(1) factors include:

       (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


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


       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.

R.C. 2151.414(D)(1). “Under this test, the trial court considers the totality of the

circumstances when making its best interest determination and no single factor is

given greater weight than others by the statute.” In re K.M.S. at ¶ 24, citing In re

Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56 and In re Z.Y., 8th Dist.

Cuyahoga No. 86293, 2006-Ohio-300, ¶ 13.

       {¶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


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


¶ 10, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

       {¶22} Stewart and Morrison do not challenge any of the trial court’s findings

under R.C. 2151.414. Rather, Stewart and Morrison contend that the trial court

erred by granting permanent custody of T.M., L.M., and L.M.M. to the agency after

erroneously concluding that the agency made “good faith efforts” toward

reunification. (Appellants’ Brief at 14). As an initial matter, because the statute

“does not require a children services agency to make a ‘good faith’ effort to reunify

children with their parents,” we are assuming that Stewart and Morrison are arguing

that the trial court erroneously concluded that the agency made “reasonable efforts”

toward reunification. In re N.R.S., 3d Dist. Crawford Nos. 3-17-07, 3-17-08, and 3-

17-09, 2018-Ohio-125, ¶ 21. See also In re C.F., 113 Ohio St.3d 73, 2007-Ohio-

1104, ¶ 28 (“When the state intervenes to protect a child’s health or safety, ‘[t]he

state’s efforts to resolve the threat to the child before removing the child or to permit

the child to return home after the threat is removed are called “reasonable

efforts.”’”), quoting Crossley, Defining Reasonable Efforts: Demystifying the

State’s Burden Under Federal Child Protection Legislation, 12 B.U.Pub.Int.L.J.

259, 260 (2003).

       {¶23} No one section of the Revised Code addresses the concept of

       reasonable efforts. Overall, Ohio’s child-welfare laws are designed


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


       to care for and protect children, “whenever possible, in a family

       environment, separating the child from the child’s parents only when

       necessary for the child’s welfare or in the interests of public safety.”

       R.C. 2151.01(A). To that end, various sections of the Revised Code

       refer to the agency’s duty to make reasonable efforts to preserve or

       reunify the family unit.

In re C.F. at ¶ 29. In particular, under R.C. 2151.419, when a trial court

       removes a child from the child’s home or continues the removal of a

       child from the child’s home, the court shall determine whether the

       public children services agency * * * has made reasonable efforts to

       prevent the removal of the child from the child’s home, to eliminate

       the continued removal of the child from the child’s home, or to make

       it possible for the child to return safely home.

R.C. 2151.419(A)(1). The Supreme Court of Ohio “determined that the trial court

is not obligated, under R.C. 2151.419, to make a determination that the agency used

reasonable efforts to reunify the family at the time of the permanent custody hearing

unless the agency has not established that reasonable efforts have been made prior

to the hearing.” (Emphasis sic.) In re N.R.S. at ¶ 25, citing In re C.F. at ¶ 41, 43

(concluding that the reasonable-efforts determination under R.C. 2151.419 does not

apply to permanent-custody motions under R.C. 2151.413 or to hearings on such


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


motions under R.C. 2151.414). “According to the Ohio Supreme Court, the trial

court is only obligated to make a determination that the agency has made reasonable

efforts to reunify the family at ‘adjudicatory, emergency, detention, and temporary-

disposition hearings, and dispositional hearings for abused, neglected, or dependent

children, all of which occur prior to a decision transferring permanent custody to

the state.’” In re B.S., 3d Dist. Allen No. 1-15-44, 2015-Ohio-4805, ¶ 36, quoting

In re C.F. at ¶ 41.

       {¶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 R.C.

2151.353(A)(2). At that dispositional hearing, the agency submitted its case plans

to the trial court for approval. See In re C.F. at ¶ 29 (noting that R.C. 2151.412

“requires the agency to prepare and maintain a case plan for children in temporary

custody with the goal ‘[t]o eliminate with all due speed the need for the out-of-home

placement so that the child can safely return home’”), quoting R.C. 2151.412. In

its dispositional entries, the trial court approved the agency’s case plans after

concluding, in part, that the agency’s case plans “reasonably address correcting the

presenting problems.” (Case No. 2175061, Doc. No. 26); (Case No. 2175062, Doc.

No. 25).    The trial court also incorporated the agency’s case plans into its

dispositional entries. As such, we conclude that the trial court made the appropriate


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


reasonable-efforts finding prior to its hearing on the agency’s motion for permanent

custody of T.M. and L.M. Thus, the trial court was not required to determine

whether the agency used reasonable efforts to reunify T.M. and L.M. with their

parents at the permanent-custody hearing. Compare In re N.R.S. at ¶ 26 (concluding

that the trial court was not required to make a reasonable-efforts finding in its

permanent-custody entry because it made the required finding in a prior

adjudicatory/depositional entry).

       {¶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]




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Case Nos. 3-18-08, 3-18-09 and 3-18-10


services [and a life-skills coach] and that neither of these were available in this area

* * *.” (Id.); (Id.).

       {¶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 R.C.

2151.353(A)(4), the trial court made its reasonable-efforts findings in its shelter-

care entry, adjudicatory entry, and dispositional entry. The trial court concluded in

its shelter-care entry that “due to the exigent nature of the circumstances all

reasonable efforts to work with the child in the home and prevent a removal was

[sic] not possible of completion and the surrounding situation and conditions

existing present a significant danger to the safety and welfare of the child for which

a removal is necessary to protect the child until the adjudication.” (Case No.

2175181, Doc. No. 8). In addition to the requirement under R.C. 2151.419(A)(1)

that the trial court determine whether the agency made reasonable efforts to preserve

or reunify the family unit, R.C. 2151.419(A)(1) further provides:

       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


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


       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).


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       {¶28} Next, Brook Rachel (“Rachel”), a caseworker with CCCS, testified

that she was assigned to the case involving T.M. and L.M., and L.M.M. after her

birth. (Id. at 18-19). According to Rachel, she “would make monthly home visits

to their home” and “would do notes throughout the home, and then [she] would also

take pictures throughout the home” during her visits. (Id. at 19-20). Rachel

identified State’s Exhibits 7, 8, and 9 as photographs that she took depicting

conditions of the home in July, August, and September 2017, respectively. (Id. at

20-21, 24). Rachel testified that the family moved to a new residence in October

2017. (Id. at 27). Rachel identified State’s Exhibit 10 as photographs depicting the

condition of the new residence in October 2017. (Id.). The family again moved in

November 2017. (Id. at 29). Rachel identified State’s Exhibits 11 and 12 as

photographs depicting the conditions of that residence in November and December

2017, respectively. (Id.).

       {¶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


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


identified State’s Exhibits 13 and 14 as photographs depicting the conditions of that

residence in January and February 2018, respectively. (Feb. 27, 2018 Tr. at 36-39,

42-44).

       {¶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


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and Morrison were not eligible for services with that agency. (Feb. 27, 2018 Tr. at

48-49). Rachel testified, “We’ve had cases like [Stewart and Morrison’s], or home

condition cases, and we have not yet been able to find any remedy or service that

somebody comes in and teaches them how to clean or cleans their home for them.”

(Id. at 52). (See also id. at 62). Rachel testified that she informed Stewart and

Morrison of the availability of monetary assistance to assist them in securing

appropriate housing; however, she testified that Stewart and Morrison did not take

advantage of that service. (Id. at 57-58).

       {¶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).




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       {¶35} Thus, there is clear and convincing evidence supporting the trial

court’s conclusion that the agency made reasonable efforts toward reunification.

Nonetheless, Stewart and Morrison argue that the agency’s efforts were not

reasonable because it failed “to utilize reasonable modifications” as required by the

ADA. (Appellants’ Brief at 14). We reject Stewart and Morrison’s argument.

       {¶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.


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


at ¶ 7. See In re L.B.J. at ¶ 18 (“We find no plain error because the failure to comply

with the ADA does not serve as a basis for invalidating an award of permanent

custody and it cannot be raised as a defense to termination of parental rights.”),

citing In re Harmon, 4th Dist. Scioto No. 00CA2693, 2000 WL 1424822, *8 (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.”), citing In re Rodriguez, 9th

Dist. Wayne No. 98CA007073, 1999 WL 568115, *7-8 (Aug. 4, 1999), and citing

In re B.A., 8th Dist. Cuyahoga No. 104496, 2016-Ohio-7786, ¶ 7, 10 (“Ohio courts

of appeals are generally in agreement that an alleged violation of the ADA does not

provide a defense in an action brought to terminate parental rights. * * * [B]ased on

numerous holdings across the country, this court takes the position that a violation

of the ADA is not a valid defense to a permanent custody action.”), In re J.C. at ¶ 7

(“First and foremost, an alleged violation of the ADA is not a defense to a

permanent-custody motion. * * * The procedure for enforcing the ADA begins with

the filing of a complaint with a designated agency.”), In re C.W., 1st Dist. Hamilton

No. C-110342, 2011-Ohio-4756, ¶ 41 (“We are persuaded by the Ninth Appellate

District’s analysis [in In re Rodriguez], as well as that of other Ohio appellate

districts that have addressed the issue, in holding that an alleged violation of the

ADA by a public children-services agency may not be asserted as a defense in a


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Case Nos. 3-18-08, 3-18-09 and 3-18-10


permanent-custody action brought by that agency.”), and In re D.J., 12th Dist.

Butler No. CA2008-06-142, 2008-Ohio-5424, ¶ 11 (“[A]gain we ‘decline the

invitation to create a new means of enforcement that was not adopted by Congress

or included by the attorney general in the regulations adopted to implement the

ADA.’”), quoting In re Moore, 12th Dist. Butler No. CA99-09-153, 2000 WL

1252028, *8 (Sept. 5, 2000).

       {¶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.

/jlr




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