      [Cite as In re C.W., 2011-Ohio-4756.]

                       IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                        HAMILTON COUNTY, OHIO



IN RE: C.W., J.W., and H.W.                   :   APPEAL NO. C-110342
                                                  TRIAL NO. F08-1032
                                              :

                                              :   O P I N I O N.




Civil Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 21, 2011


Raymond Becker, for Appellant Christa Williams,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and John Hatcher,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Peggy Ann Markstein, Guardian Ad Litem for C.W., J.W., and H.W.




Please note: This case has been removed from the accelerated calendar.
                         OHIO FIRST DISTRICT COURT OF APPEALS




S YLVIA S IEVE H ENDON , Judge.

       {¶1}     Appellant Christa Williams appeals the judgment of the Hamilton

County Juvenile Court granting permanent custody of three of her children, C.W.,

J.W., and H.W., to the Hamilton County Department of Job and Family Services

(“HCJFS”).


                                  Factual Background


       {¶2}     In April 2008, HCJFS initiated proceedings to obtain custody of five

of Williams’ children. The oldest children, C.F., M.W., and S.W., were 12, nine, and

eight years old, respectively. C.W. was two years old, and J.W. was 11 months old. At

that time, H.W., the youngest of Williams’ six children, had not yet been born.

       {¶3}     Williams stipulated to the following facts that had been alleged in

HCJFS’s complaint for temporary custody:

       {¶4}     “[C.F.] is diagnosed with developmental disabilities and exhibits

marked speech problems. [C.F.] has received services from MRDD1 in the past, but

Ms. Williams decided that he no longer needed them, and believed that if the service

was to continue, it would be in-home. Ms. Williams reports that she continues to

receive SSI benefits for [C.F.’s] disability.

       {¶5}     “On March 11, 2008, HCJFS received an allegation that [M.W. and

S.W.] were not attending school on a consistent basis and were coming to school

dirty. HCJFS went to Ms. Williams’ home on March 11. Ms. Williams met the social

worker at her car and said she was leaving. After Ms. Williams left, the worker

knocked on the door which was answered by [C.F.].          Police were called and in the


1 “MRDD” is an acronym for the Hamilton County Board of Mental Retardation and
Developmental Disabilities. The agency’s name has been changed to the Hamilton County Board
of Developmental Disabilities Services.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



interim[,] a person identifying herself as Ms. Williams[’] live in sister arrived and

allowed HCJFS into the home. The home had a foul odor and the children were very

dirty. The entry hallway presented a safety hazard as the egress was blocked by a

large screen television and a couch. Food crumbs, dirty baby bottles, opened food

cans, overturned plants and clothes littered the floors.     The gas stove had two

burners burning on high flame though nothing was cooking on them. A chair was

pushed against the stove. The door to the basement was open and garbage and

rusted metal covered the floor. Mother also was referred for a diagnostic assessment

and a [“]help me grow[”] referral was made for the family.

       {¶6}    “On March 5, 2008, Ms. Williams was convicted of two counts of

failure to send to school in relation to [M.W. and S.W.]

       {¶7}    “On April 1, 2008[,] HCJFS appeared at the Williams home for a

scheduled visit. The home was again observed to be disorganized. The television

and couch remained in the entry hallway. Empty cans of food with sharp edges were

found on the floor. Full garbage bags were stacked around the living areas of the

home. Garbage was noted on the floors in the living areas. Limited food was in the

refrigerator. Broken glass was found on the floor near [C.W. and J.W.] [C.W.] had

no shoes on and was dragging the baby around the room. When asked if she needed

help with cleaning the glass, Ms. Williams remained seated on the couch and told

HCJFS to clean it up. A window without glass or screen was observed in the room

covered only by a blanket. One boxspring was observed in Ms. Williams[’] room.

Ms. Williams reports that she, her sister Michelle, [C.W., and J.W.] sleep on the

boxspring. [J.W.’s] crib is filled with garbage bags and household items. [C.F.,

M.W., and S.W.] sleep on couches. Ms. Williams and the children were observed to

have very poor hygiene and exhibited a strong body odor.

       {¶8}    “Ms. Williams exhibits symptoms of mental illness but denies being

diagnosed with a mental illness. HCJFS has observed inconsistent statements made


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                       OHIO FIRST DISTRICT COURT OF APPEALS



by Ms. Williams and drastic mood swings. Ms. Williams was told on April 1, 2008

that she had a diagnostic assessment scheduled on April 17, 2008. Ms. Williams

stated that she would not attend the assessment. Subsequent to the removal of the

children by HCJFS on April 1, 2008, Ms. Williams phoned the HCJFS worker who

had just removed the children from her home to report that the workers from Help

Me Grow had just taken her children.”

       {¶9}    The whereabouts of the children’s fathers was unknown.

       {¶10}   In June 2008, the children were adjudicated dependent and

neglected, and were placed into the temporary custody of HCJFS. The court ordered

Williams to comply with mental-health and case-management services and to

complete parenting classes. The court also required her to obtain stable housing and

employment.

       {¶11}   C.W. and J.W. were placed in the same foster home. Both exhibited

profound developmental delays and significant behavioral problems and required

extensive supportive services.

       {¶12}   When C.W. entered foster care, she exhibited masturbatory behaviors

associated with victims of sexual abuse. She lacked appropriate physical boundaries

and would approach strange adults as if she knew them. C.W. required individual

counseling and psychiatric medications for anxiety and behavioral issues.       She

attended speech, occupational, and physical therapy. According to C.W.’s therapist,

C.W. needed a stable home environment with predictable limits and consequences.

Moreover, C.W. required caregivers who were able to respond appropriately to her

emotional, physical, and developmental needs.

       {¶13}   When J.W. entered foster care, he had significant developmental and

speech delays. He engaged in aggressive behavior and had attachment and sensory

issues. J.W. was enrolled in a therapeutic preschool program, and received speech,

occupational, and physical therapy.     His therapist testified that due to J.W.’s


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intensive, ongoing needs, he required a calm, nurturing environment and a very

organized home, with caregivers who could accompany him to his numerous

appointments.

       {¶14}     In March 2009, HCJFS moved to modify temporary custody of the

children to permanent custody.

       {¶15}     In May 2009, Williams went to a hospital emergency room. She

stood up from her wheelchair in triage and gave birth to her sixth child, H.W. The

infant hit her head on the floor, and the umbilical cord was severed. As a result,

H.W. was in an intensive-care unit, using a breathing tube and a feeding machine,

for two weeks.

       {¶16}     At the time of H.W.’s birth, Williams was homeless and had been

homeless for approximately one year. Williams initially identified a man that she

had met only two months earlier as the infant’s father. When she was told that that

was medically impossible, she named another man as the father, but she was unable

to provide any identifying information about him.

       {¶17}     Interim custody of the infant was granted to HCJFS. Then, in June

2009, HCJFS moved for permanent custody of H.W.

       {¶18}     In July 2009, HCJFS withdrew its motions for permanent custody of

Williams’ oldest three children, because they had been placed in Planned Permanent

Living Arrangements.

       {¶19}     During their time in foster care, C.W. and J.W. demonstrated

significant developmental progress as a result of their caregivers’ addressing their

extensive needs.

       {¶20}     In June 2010, the magistrate recommended granting permanent

custody of C.W., J.W., and H.W. to HCJFS. In May 2011, the trial court overruled

Williams’ objections to the magistrate’s decision and adopted the decision as the

judgment of the court.


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                        OHIO FIRST DISTRICT COURT OF APPEALS



                          Manifest Weight of the Evidence


       {¶21}   In her first assignment of error, Williams argues that the trial court

erred by granting permanent custody of C.W., J.W., and H.W. to HCJFS.                 She

contends that the judgment was against the manifest weight of the evidence.

       {¶22}   A court may grant a motion for permanent custody if it determines by

clear and convincing evidence that (1) permanent custody is in the child’s best

interest, and (2) the child cannot be placed with either of the child’s parents within a

reasonable time or should not be placed with either parent. R.C. 2151.414(B)(1)(a).

       {¶23}   Clear and convincing evidence is that which will produce in the mind

of the trier of fact a firm belief or conviction as to the facts sought to be established.

In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613. A

reviewing court will not reverse the judgment of a trial court as being against the

manifest weight of the evidence if the record contains some competent, credible

evidence from which the court could have found that the essential statutory elements

for permanent custody had been established by clear and convincing evidence. In re

McCluskey, 1st Dist. No. C-050702, 2006-Ohio-4034, ¶14.

       {¶24}   In determining a child’s best interest, a court must consider all

relevant factors, including (1) the interaction and interrelationship of the child with

the child’s parents, siblings, relatives, foster caregivers, out-of-home providers, and

any other person who may significantly affect the child, (2) the child’s wishes, as

expressed directly by the child or through the child’s guardian ad litem, (3) the

custodial history of the child, including whether the child has been in the temporary

custody of children services agencies for 12 or more months, and (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. R.C. 2151.414(D)(1).




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                         OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25}      Our review of the record convinces us that the trial court considered

each of these factors and that the court’s granting of permanent custody was based

on competent, credible evidence. The court considered evidence of (1) the children’s

relationships with their mother and with their foster parents, (2) the guardian ad

litem’s recommendation to grant permanent custody of the children to HCJFS, (3)

the children’s custody in their foster homes, and (4) the inability of Williams to

provide a stable, permanent home.

       {¶26}      Williams, though, asserts that the trial court lacked sufficient

evidence to find that the children could not be placed with her within a reasonable

time or should not be placed with her. Such a finding is mandatory when a court

concludes that any one of several statutory factors applies to each parent. R.C.

2151.414(E).

       {¶27}      After considering competent, credible evidence, the trial court

concluded that the factor in R.C. 2151.414(E)(1) applied to Williams because she had

not substantially remedied the conditions causing the children to be placed outside

her home despite reasonable efforts by HCJFS to reunify the family.           See R.C.

2151.414(E)(1).

       {¶28}      In making that determination, the court relied on evidence that

Williams had made little progress despite her participation in services made

available to her by HCJFS. She had received extensive parenting coaching, but she

had been unable to effectively manage the children or meet their needs during

supervised visitation. At no point did Williams’ visitation with the children progress

to a point where she was able to have unsupervised contact with them.              She

demonstrated only a superficial understanding of the intensive needs of C.W. and

J.W., and did not participate in their day-to-day therapeutic sessions.

       {¶29}      Throughout much of the proceedings, Williams had been unable to

maintain stable housing. Moreover, despite efforts by HCJFS to educate Williams on


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                        OHIO FIRST DISTRICT COURT OF APPEALS



hygiene issues, the court found that she was “not able to maintain herself in a healthy

and clean manner, much less three children.” Consequently, we hold that the trial

court’s determination that C.W., J.W., and H.W., could not be placed with Williams

within a reasonable time or should not be placed with her was based on competent,

credible evidence.

       {¶30}    Because sufficient evidence supported the award of permanent

custody to HCJFS, we overrule the first assignment of error.


                                 Psychiatric Expert


       {¶31}    In her second assignment of error, Williams argues that the trial court

erred when it denied her request for the appointment of a psychiatric expert to aid in

the presentation of her case.

       {¶32}    Due process requires the appointment of a psychiatric expert in

permanent-custody proceedings where a parent’s mental or emotional health is the

predominant and determinative issue. See In re Brown (Nov. 26, 1986), 1st Dist. No.

C-850878; In re Shaeffer Children (1993), 85 Ohio App.3d 683, 621 N.E.2d 426. But

where a parent’s mental health is not at issue, psychiatric expertise would contribute

little to the proceedings and is not required. Brown, supra.

       {¶33}    The trial court’s finding that the children could not be placed with

Williams within a reasonable time was based upon her failure to substantially

remedy the conditions that had caused the children to be placed outside her home, a

statutory factor in R.C. 2151.414(E)(1). The court did not base its finding upon the

existence of the R.C. 2151.414(E)(2) factor, that is, that she suffered chronic mental

illness or chronic emotional illness. See In re B.G., 8th Dist. No. 81982, 2003-Ohio-

3256, ¶23.     Because Williams’ mental health was not the predominant issue or

determinative issue in the court’s permanent-custody decision, a psychiatrist’s



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                          OHIO FIRST DISTRICT COURT OF APPEALS



testimony was not necessary to counter any allegation that her mental condition had

affected her parenting ability. Id.

        {¶34}    Accordingly, we hold that due process did not require the court to

appoint a psychiatric expert to assist her in her defense, and we overrule the second

assignment of error.


                      The ADA and the Rehabilitation Act of 1973


        {¶35}    In her third assignment of error, Williams argues that the termination

of her parental rights violated her rights under the Americans with Disabilities Act of

1990 (“ADA”), Section 12101, et seq., Title 42, U.S.Code, and the Rehabilitation Act

of 1973, Section 794, Title 29, U.S.Code.          She contends that HCJFS did not

reasonably accommodate her disability insofar as “services were not available to her

because of her disability,” thereby rendering futile her efforts toward reunification.

        {¶36}    In March 2010, the court denied Williams’ motion to provide services

to accommodate her disability. At a hearing on her motion, Williams specifically

agreed, and the court held, that HCJFS had offered all relevant and available

services.   The court noted that HCJFS had provided Williams hands-on parenting

training, mental-health services, and case-management services.        The court noted

that Williams had been referred to MRDD, but had not been able to establish her

eligibility for its services.

        {¶37}    The Rehabilitation Act proscribes discrimination based upon a

person’s disability by any program or activity receiving federal financial assistance.

Id. Nothing in the record indicated that HCJFS was the recipient of federal funds, a

prerequisite for an action under the Rehabilitation Act. See id; see, also, In re

Rodriguez (Aug. 4, 1999), 9th Dist. No. 98CA007073. Consequently, Williams failed

to establish that she had a right to protection under the Act.



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                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶38}   Even if proof of federal funding had been present in the record,

Williams failed to demonstrate that she was disabled for purposes of either the

Rehabilitation Act or the ADA.

       {¶39}   Because similar standards govern Williams’ ADA and Rehabilitation

Act claims, we will discuss the claims together. See Bartell v. Lohiser (C.A.6, 2000),

215 F.3d 550, 560. Title II of the ADA prohibits public entities from discriminating

based on disability. Section 12132, Title 42, U.S.Code. The procedure for enforcing

the ADA begins with the filing of a complaint with a designated agency. Section

12133, Title 42, U.S.Code.     If appropriate, the agency will refer the case to the

Department of Justice which may file suit in a federal district court.          Id.   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. Id.

       {¶40}   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.   See In re Moore (Sept. 5, 2000), 12th Dist. No. CA99-09-153; In re

Harmon (Sept. 25, 2000), 4th Dist. No. 00 CA 2694; In re D.J., 12th Dist. No.

CA2008-06-142, 2008-Ohio-5424. For example, in In re Rodriguez, supra, the

Ninth Appellate District held that a parent could not use the ADA as a ground to

contest the granting of permanent custody of her children to the children-services

agency because neither the ADA nor the related regulations provide that the violation

of the ADA by a public entity may be used as a defense against a legal action by the

public entity. The court declined the parent’s invitation to create a new means of

enforcement that had not been adopted by Congress or included by the Attorney

General in the regulations adopted to implement the ADA. Id.

       {¶41}   We are persuaded by the Ninth Appellate District’s analysis, 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


                                              10
                        OHIO FIRST DISTRICT COURT OF APPEALS



as a defense in a permanent-custody action brought by that agency. See Moore,

Harmon, and D.J., supra. And in light of Williams’ concession that there were no

further accommodations that could have been provided by HCJFS, we conclude that

there was no violation of her rights under either act. Accordingly, we overrule the

third assignment of error and affirm the trial court’s judgment.

                                                                      Judgment affirmed.




SUNDERMANN, P.J., and CUNNINGHAM, J., concur.

Please Note:
       The court has recorded its own entry on the date of the release of this opinion.




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