[Cite as In re C.C, 2016-Ohio-6981.]




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



IN RE:

        C.C.,                                               CASE NO. 9-16-07

ADJUDICATED DEPENDENT CHILD.
                                                            OPINION
[CHRISTOPHER COOPER - APPELLANT]


IN RE:

        I.C.,                                               CASE NO. 9-16-08

ADJUDICATED DEPENDENT CHILD.
                                                            OPINION
[CHRISTOPHER COOPER - APPELLANT]


                Appeals from Marion County Common Pleas Court,
                                Juvenile Division
                    Trial Court Nos. 13AB0082 and 13AB0083

                                       Judgments Affirmed

                         Date of Decision: September 26, 2016


APPEARANCES:

        Nathan D. Witkin for Appellant

        Justin J. Kahle for Appellee
Case Nos. 9-16-07, 9-16-08


PRESTON, J.

       {¶1} Appellant, Christopher Cooper (“Cooper”), appeals the January 25,

2016 judgment entries of the Marion County Court of Common Pleas, Juvenile

Division, granting permanent custody of his children, C.C. and I.C., to appellee, the

Marion County Children’s Services Board (the “Agency”). For the reasons that

follow, we affirm.

       {¶2} C.C. and I.C. are the minor children of Cooper and Jodie Botkin

(“Botkin”). (See Case No. 13AB0082, Doc. No. 42); (Case No. 13AB0083, Doc.

No. 41). On May 13, 2013, the Agency filed motions “for ex parte/emergency

orders with notice of hearing.” (Case No. 13AB0082, Doc. No. 1); (Case No.

13AB0083, Doc. No. 1). That same day, the trial court held a shelter-care hearing

and granted the Agency temporary custody of C.C. and I.C. (Case No. 13AB0082,

Doc. Nos. 2, 3); (Case No. 13AB0083, Doc. Nos. 2, 3).

       {¶3} After filing multiple complaints in 2013 and 2014 that the trial court

dismissed, on the Agency’s motion, under R.C. 2151.35, the Agency filed its most

recent complaints on March 12, 2014. (Case No. 13AB0082, Doc. No. 42); (Case

No. 13AB0083, Doc. No. 41). (See also Case No. 13AB0082, Doc. Nos. 4, 23, 34);

(Case No. 13AB0083, Doc. Nos. 4, 23, 34). In its March 12, 2014 complaints, the

Agency alleged that C.C. and I.C. are neglected and dependent children under R.C.

2151.03 and 2151.04, respectively, and requested that the trial court grant to the


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Case Nos. 9-16-07, 9-16-08


Agency permanent custody of C.C. and I.C. or, alternatively, temporary custody and

protective supervision of C.C. and I.C. (Case No. 13AB0082, Doc. No. 42); (Case

No. 13AB0083, Doc. No. 41).

        {¶4} On August 8, 2013, the trial court appointed counsel to represent

Cooper. (Case No. 13AB0082, Doc. No. 21); (Case No. 13AB0083, Doc. No. 21).

        {¶5} At multiple points since these cases commenced on May 13, 2013, the

Agency submitted case plans to the trial court, which the trial court approved and

incorporated into disposition entries. (See Case No. 13AB0082, Doc. Nos. 15, 44,

71, 143, 144); (Case No. 13AB0083, Doc. Nos. 15, 43, 70, 139, 140). The Agency

also filed semiannual administrative reviews. (Case No. 13AB0082, Doc. Nos. 31,

51, 73, 84, 122); (Case No. 13AB0083, Doc. Nos. 31, 50, 71, 80, 118).

        {¶6} On June 3, 2014, the trial court held an adjudicatory hearing as to

Cooper.1 (Case No. 13AB0082, Doc. No. 67); (Case No. 13AB0083, Doc. No. 65).

On August 6, 2014, the trial court filed a judgment entry adjudicating C.C. and I.C.

dependent as to Cooper. (Id.); (Id.).

        {¶7} On April 6, 2015, the Agency filed motions for permanent custody of

C.C. and I.C. (Case No. 13AB0082, Doc. No. 82); (Case No. 13AB0083, Doc. No.

78).



1
  C.C. and I.C. were adjudicated dependent as to Botkin at an earlier hearing. (See Case No. 13AB0082,
Doc. No. 45); (Case No. 13AB0083, Doc. No. 44). The allegations of neglect were dismissed as to Botkin.
(See id.); (Id.).

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Case Nos. 9-16-07, 9-16-08


       {¶8} On December 14, 2015, Cooper filed motions for legal custody of C.C.

and I.C. (Case No. 13AB0082, Doc. No. 137); (Case No. 13AB0083, Doc. No.

133). The motions stated, “Although this motion is being filed at a later stage in the

case, an order granting legal custody of the minor children to Mr. Cooper is in the

best interests of said children.” (Id.); (Id.).

       {¶9} The trial court held a permanent-custody hearing on December 21,

2015. (Dec. 21, 2015 Tr. at 1).

       {¶10} On January 15, 2016, Cooper filed in each case a “request for home-

study and motion to stay.” (Case No. 13AB0082, Doc. No. 141); (Case No.

13AB0083, Doc. No. 137). In those motions, he requested that the trial court “order

[the Agency] to conduct a home-study of Mr. Cooper’s mother, Dorothy Abner, for

possible placement of the minor children.” (Id.); (Id.).

       {¶11} On January 25, 2016, the trial court filed judgment entries denying

Cooper’s motions for a home study and granting the Agency permanent custody of

C.C. and I.C. (Case No. 13AB0082, Doc. No. 142); (Case No. 13AB0083, Doc.

No. 138).

       {¶12} On February 24, 2016, Cooper filed notices of appeal. (Case No.

13AB0082, Doc. No. 145); (Case No. 13AB0083, Doc. No. 141). He raises five

assignments of error for our review. We will address Cooper’s first, second, third,

and fourth assignments of error together, followed by his fifth assignment of error.


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Case Nos. 9-16-07, 9-16-08


                            Assignment of Error No. I

       The case plans in this matter did not meet the requirements of
       R.C. 2151.412 because they excluded appellant as biological
       father of the minor children herein.

                           Assignment of Error No. II

       Marion County Children Services did not have the authority to
       file a motion for permanent custody under R.C. 2151.413(D)(3)(B)
       and the trial court committed plain error by granting the motion.

                           Assignment of Error No. III

       The trial court abused its discretion in this matter by finding that
       Marion County Children Services made reasonable efforts to
       reunify the family in this matter.

                           Assignment of Error No. IV

       The case plans in this matter did not follow the general goals and
       priorities of R.C. 2151.412(H).

       {¶13} In his first assignment of error, Cooper argues that, by not including

him in the case plans for C.C. and I.C., the Agency failed to satisfy the requirements

of R.C. 2151.412 and Ohio Adm.Code 5101:2-38-05. In his second assignment of

error, Cooper argues, “Because the Agency did not even extend a case plan to

Appellant/Father, R.C. §2151.413(D)(3)(b) precludes the Agency from filing a

motion for permanent custody. The granting of this defective motion was, therefore,

plain error committed by the trial court.” (Appellant’s Brief at 6-7). In his third

assignment of error, Cooper argues that the Agency “did not make reasonable efforts

to reunify the minor children with [Cooper]” because the Agency did not include

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Case Nos. 9-16-07, 9-16-08


him in the case plan and otherwise failed to take “any actions that would qualify as

‘reasonable efforts’ under R.C. §2151.419.” (Appellant’s Brief at 7, 10). In his

fourth assignment of error, Cooper argues that the Agency failed to attempt to find

family-placement options before attempting foster care, contrary to the

requirements of R.C. 2151.412(H).

       {¶14} R.C. 2151.419 imposes a duty on the part of children services agencies

to make 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.’” In re B.P., 3d Dist. Logan

No. 8-15-07, 2015-Ohio-5445, ¶ 39, quoting R.C. 2151.419(A)(1). “[T]he agency

bears the burden of showing that it made reasonable efforts.” In re T.S., 3d Dist.

Mercer Nos. 10-14-13, 10-14-14, and 10-14-15, 2015-Ohio-1184, ¶ 26, citing R.C.

2151.419(A)(1). “We review under an abuse-of-discretion standard a trial court’s

finding that an agency made reasonable efforts toward reunification.” In re A.M.,

3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 24, citing In re C.F., 113 Ohio

St.3d 73, 2007-Ohio-1104, ¶ 48 and In re Sherman, 3d Dist. Hancock Nos. 5-06-21,

5-06-22, and 5-06-23, 2006-Ohio-6485, ¶ 11. An abuse of discretion suggests that

the trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219 (1983).




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Case Nos. 9-16-07, 9-16-08


       {¶15} “‘Case plans are the tools that child protective service agencies use to

facilitate the reunification of families who * * * have been temporarily separated.’”

In re T.S. at ¶ 26, quoting In re Evans, 3d Dist. Allen No. 1-01-75, 2001 WL

1333979, *3 (Oct. 30, 2001). R.C. 2151.412 governs a children services agency’s

use of case plans and provides, in relevant part:

       (A) Each public children services agency and private child placing

       agency shall prepare and maintain a case plan for any child to whom

       the agency is providing services and to whom any of the following

       applies:

       (1) The agency filed a complaint pursuant to section 2151.27 of the

       Revised Code alleging that the child is an abused, neglected, or

       dependent child;

       (2) The agency has temporary or permanent custody of the child;

       (3) The child is living at home subject to an order for protective

       supervision;

       (4) The child is in a planned permanent living arrangement.

R.C. 2151.412(A). Ohio Adm.Code 5101:2-38-05 sets forth specific case-plan

requirements of a public children services agency concerning children in its custody

or under its protective supervision. See In re A.P., 9th Dist. Medina No. 12CA0022-

M, 2012-Ohio-3873, ¶ 32. Those regulations require that an agency, if it initiates


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the case-planning process, provide verbal or written notification to certain parties,

including the child’s parents, and “[w]ork with all parties on the development,

implementation, and review of the case plan.”         Ohio Adm.Code 5101:2-38-

05(B)(1), (2) (2010) and Ohio Adm.Code 5101:2-38-05(E)(1), (2) (2014) (current

version at Ohio Adm.Code 5101:2-38-05(G)(1), (2) (2016)). See also In re A.P. at

¶ 32.

        {¶16} “Agencies have an affirmative duty to diligently pursue efforts to

achieve the goals in the case plan.” In re T.S. at ¶ 27, citing In re Evans at *3.

“‘Nevertheless, the issue is not whether there was anything more that [the agency]

could have done, but whether the [agency’s] case planning and efforts were

reasonable and diligent under the circumstances of this case.’” Id., quoting In re

Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶

10. “‘“Reasonable efforts” does not mean all available efforts. Otherwise, there

would always be an argument that one more additional service, no matter how

remote, may have made reunification possible.’” In re H.M.K., 3d Dist. Wyandot

Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 95, quoting In re M.A.P., 12th Dist.

Butler Nos. CA2012-08-164 and CA2012-08-165, 2013-Ohio-655, ¶ 47. “We also

note that the statute provides that in determining whether reasonable efforts were

made, the child’s health and safety is paramount.” In re T.S. at ¶ 27, citing R.C.

2151.419(A)(1).


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Case Nos. 9-16-07, 9-16-08


      R.C. 2151.413(D)(3)(b) provides:

      An agency shall not file a motion for permanent custody under

      division (D)(1) or (2) of this section if any of the following apply:

      ***

      (b) If reasonable efforts to return the child to the child’s home are

      required under section 2151.419 of the Revised Code, the agency has

      not provided the services required by the case plan to the parents of

      the child or the child to ensure the safe return of the child to the child’s

      home.

R.C. 2151.413(D)(3)(b). “[T]he inquiry under R.C. 2151.413(D)(3)(b) is whether

the agency provided the services specified in the case plan.” (Emphasis sic.) In re

J.H., 12th Dist. Clinton No. CA2015-07-014, 2016-Ohio-640, ¶ 34.

      {¶17} R.C. 2151.412(H) sets forth “general priorities” by which an agency

“shall” be guided in developing a case plan. See In re A.J., 5th Dist. Licking No.

14-CA-35, 2014-Ohio-3755, ¶ 20-21. The portion of R.C. 2151.412(H) relevant to

Cooper’s argument addresses who “should” have custody of a child:

      (H) In the agency’s development of a case plan and the court’s

      review of the case plan, the child’s health and safety shall be the

      paramount concern. The agency and the court shall be guided by the

      following general priorities:


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Case Nos. 9-16-07, 9-16-08


      (1) A child who is residing with or can be placed with the child’s

      parents within a reasonable time should remain in their legal custody

      even if an order of protective supervision is required for a reasonable

      period of time;

      (2) If both parents of the child have abandoned the child, have

      relinquished custody of the child, have become incapable of

      supporting or caring for the child even with reasonable assistance, or

      have a detrimental effect on the health, safety, and best interest of the

      child, the child should be placed in the legal custody of a suitable

      member of the child’s extended family;

      (3) If a child described in division (H)(2) of this section has no

      suitable member of the child’s extended family to accept legal

      custody, the child should be placed in the legal custody of a suitable

      nonrelative who shall be made a party to the proceedings after being

      given legal custody of the child;

      (4) If the child has no suitable member of the child’s extended

      family to accept legal custody of the child and no suitable nonrelative

      is available to accept legal custody of the child and, if the child

      temporarily cannot or should not be placed with the child’s parents,

      guardian, or custodian, the child should be placed in the temporary


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Case Nos. 9-16-07, 9-16-08


       custody of a public children services agency or a private child placing

       agency * * *.

R.C. 2151.412(H)(1), (2), (3), (4). Ohio courts have consistently recognized that

the language of R.C. 2151.412(H) is precatory, not mandatory. In re A.J., 5th Dist.

Licking No. 14-CA-35, 2014-Ohio-3755, ¶ 21, quoting In re M.H., 4th Dist. Vinton

No. 11 CA683, 2011-Ohio-5140, ¶ 44-45.

       {¶18} We will now address Cooper’s assignments of error in the following

order: first, third, second, and fourth. We begin by addressing Cooper’s argument,

under his first assignment of error, that the Agency failed to satisfy its case-plan

obligations under R.C. 2151.412 and Ohio Adm.Code 5101:2-38-05. We reject this

argument. The record reveals that Cooper was represented by counsel beginning in

August 2013, less than three months after the Agency filed the original complaints.

(See Case No. 13AB0082, Doc. No. 21); (Case No. 13AB0083, Doc. No. 21).

Nevertheless, Cooper did not object to his being excluded from the case plan, and

he did not otherwise express to the trial court a desire to be included in the case plan.

See In re N.M., 9th Dist. Summit No. 27400, 2014-Ohio-4783, ¶ 29 (“We note that

both parents were represented by counsel and during the course of the proceedings,

neither counsel argued that the failure to sign the case plans was substantively

prejudicial to either parent.”). Therefore, Cooper waived this issue for purposes of

appeal. In re C.B.C., 4th Dist. Lawrence No. 15CA18, 2016-Ohio-916, ¶ 87 (“[T]he


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Case Nos. 9-16-07, 9-16-08


trial court adopted the case plan as part of its dispositional order. Yet the father did

not raise any of these objections before the trial court at a time when it could have

corrected any error. Consequently, he has forfeited them for purposes of appeal.”).

See also In re S.B., 7th Dist. Harrison No. 13 HA 3, 2013-Ohio-5870, ¶ 26 (“An

appellate court will not consider any error which could have called to the trial court’s

attention at a time when such error could have been corrected or avoided by the trial

court.”).

       {¶19} Even were we to address the merits of Cooper’s argument, we would

reject it because Cooper ignores the efforts the Agency undertook to contact him

and include him in case planning. He suggests that the Agency’s decision not to

include him in the case plan was based purely on his being incarcerated. This

suggestion is belied by the record. The case plans reference Cooper’s incarceration

in Kentucky.     (See Case No. 13AB0082, Doc. Nos. 15, 44, 71); (Case No.

13AB0083, Doc. Nos. 15, 43, 70). The semiannual administrative reviews elaborate

on the efforts of the Agency to communicate with Cooper and potential kinship

placements. (See Case No. 13AB0082, Doc. Nos. 31, 51, 73, 84, 122); (Case Nos.

13AB0083, Doc. Nos. 31, 50, 71, 80, 118). The semiannual administrative review

filed on November 4, 2013 provides:

       The father of [C.C.] and [I.C.] lives in Kentucky. He got out of jail in

       July after serving 22 months for burglary charges. His name is


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Case Nos. 9-16-07, 9-16-08


      Christopher Cooper and he is not eligible to have the children based

      on his previous history. * * * The agency has sent out kinship letters

      to Kentucky for [C.C.] and [I.C.] to their father’s kin. The [Interstate

      Compact on the Placement of Children (“ICPC”)] packet was sent in

      September. The agency is waiting to hear from Kentucky regarding

      the ICPC results. There is no available kin in Ohio.

(Case No. 13AB0082, Doc. No. 31 at 5); (Case No. 13AB0083, Doc. No. 31 at 5).

The semiannual administrative review filed on May 2, 2014 provides:

      The agency has completed ICPC with kin in Kentucky. The ICPC

      placement was denied. No other kin have been identified at this time.

      ***

      Please note that ICPC kinship placement options were explored as an

      optional plan for the boys for reunification—however, the agency has

      received verbal denial of the relative ICPC for Kentucky. The father

      of [C.C.] and [I.C.], Christopher Cooper, lives in Kentucky. He got

      out of jail in July 2013 after serving 22 months for burglary charges.

      He has not expressed interest in placement and his previous history is

      of concern. Father, Christopher Cooper, does not have a relationship

      with the children. He was sent a letter by certified mail asking for a




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Case Nos. 9-16-07, 9-16-08


      response by January 31, 2014 to be added to the case plan and a

      response was not received by the agency.

(Case No. 13AB0082, Doc. No. 51 at 5-6); (Case No. 13AB0083, Doc. No. 50 at 5-

6). The semiannual administrative review filed on October 31, 2014 reflects that

Cooper contacted the Agency once in June 2014:

      The boys’ father, Christopher Cooper, was recently released, but was

      re-arrested. He had not expressed interest in placement until late June

      when he was again released. At that time he said he was visiting

      relatives in Florida and hopes to move to Marion and to seek custody

      at that time. There has been no recent contact with/from him.

      ***

      [Cooper] had not expressed an interest in placement until June 26

      when he called to say he will move to Marion and seek custody at that

      time. His previous history is of concern. Father, Christopher Cooper,

      does not have a relationship with the children.

(Case No. 13AB0082, Doc. No. 73 at 6-7); (Case No. 13AB0083, Doc. No. 71 at 6-

7). The semiannual administrative review filed on May 1, 2015 documents the

Agency’s ongoing efforts to identify a kinship placement: “Agency continues to

request Kinship options. When Kinship options come available caseworker checks

background and may complete a homestudy if preliminary background check is


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Case Nos. 9-16-07, 9-16-08


OK.” (Case No. 13AB0082, Doc. No. 84 at 5); (Case No. 13AB0083, Doc. No. 80

at 5). The semiannual administrative review filed on October 19, 2015 reflects that

Cooper did not communicate with the Agency since the summer of 2014:

       The boys’ father, Christopher Cooper, is in and out of trouble with

       law enforcement. He had not expressed interest in placement until

       late June 2014 when he was again released. At that time he said he

       was visiting relatives in Florida and hopes to move to Marion and seek

       custody at that time. The agency has received no recent contact

       with/from him since Summer 2014.

(Case No. 13AB0082, Doc. No. 122 at 6); (Case No. 13AB0083, Doc. No. 118 at

6).

       {¶20} In addition to these semiannual administrative reviews, which the

Agency filed with the trial court, the ongoing caseworker for the Agency, Corina

Pryor (“Pryor”), testified to the Agency’s limited success in communicating with

Cooper.   (See Dec. 21, 2015 Tr. at 71-76).       The Agency mailed letters and

documents to the address it had on file for Cooper, and that correspondence was not

returned. (Id. at 112-114, 116-117). According to Pryor, she last heard from Cooper

in June 2014, when he came to the Agency in person after a court hearing. (Id. at

71, 80, 86, 108). When asked about the content of that meeting, Pryor testified, “It

was more of he wasn’t going to be appropriate to have the children and he had like


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family. So names of family, addresses, things * * * of that nature.” (Id. at 71). At

the meeting, Cooper gave Pryor names of family members for possible kinship

placement. (Id. at 107). Before that meeting in June 2014, Pryor did not have

contact with Cooper. (Id. at 86).

         {¶21} The Agency looked into the potential kinship placements suggested by

Cooper, but none proved to be viable options. (Id. at 71-74, 107-110). This included

exploration of ICPC kinship placement options in Kentucky; however, those

requests were denied.2 (Id. at 72-73). The Agency also explored placement with

Cooper’s mother and stepfather; however, according to Pryor, the Agency

determined that placement to be inappropriate because “the fingerprints came back

inappropriate * * * on some criminal history that was on ‘em.” (Id. at 73-74). The

Agency sent letters to three other potential kinship placements that were suggested

to the Agency, but the Agency did not hear back from them. (Id. at 74, 109).

         {¶22} Pryor testified that Cooper did not make any attempts to contact or

visit C.C. and I.C., which would have had to have occurred through the Agency.

(Id. at 74). When asked if Cooper ever indicated that he wanted to be included in

the case plan, Pryor testified, “I mean, at one point, you know, he thought that he

would maybe try to come up here and work the Case Plan.”                                     (Id. at 75).




2
 In describing ICPC, Pryor testified, “It’s asking that State and then the jurisdiction of whichever agency’s
over that area to go do an investigation and check out the family.” (Dec. 21, 2015 Tr. at 73).

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Nevertheless, to Pryor’s knowledge, at no point did Cooper suggest that he wanted

to be included in the case plan. (Id. at 87, 114).

         {¶23} Based on this record, we reject Cooper’s argument, under his first

assignment of error, that the Agency failed to satisfy its case-plan obligations under

R.C. 2151.412 and Ohio Adm.Code 5101:2-38-05. The Agency prepared and

maintained a case plan as required by R.C. 2151.412. The Agency notified Cooper

when it initiated the case-planning process, as required by Ohio Adm.Code 5101:2-

38-05. The Agency also pursued, albeit without success, the kinship placements

suggested by Cooper, including Cooper’s mother as suggested in Cooper’s January

15, 2016 “request[s] for home-study and motion[s] to stay.” Accordingly, the

Agency satisfied its statutory and regulatory obligations. See In re N.M., 2014-

Ohio-4783, at ¶ 29-31; In re Borders, 12th Dist. Brown No. CA2001-10-017, 2002-

Ohio-2578, ¶ 9-13; In re Perry, 4th Dist. Vinton No. 06CA648, 2006-Ohio-6128, ¶

53-56.

         {¶24} Furthermore, the version of the rule on which Cooper relies, Ohio

Adm.Code 5101:2-38-05, that was in effect at the time these cases were pending in

the trial court indicates that a child’s parent bears the “responsibility to work with

the agency in jointly developing, implementing, and reviewing the case plan.” Ohio

Adm.Code 5101:2-38-05(B)(1) (2010) and Ohio Adm.Code 5101:2-38-05(E)(1)

(2014). The record reflects that Cooper failed to satisfy his responsibility to work


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with the Agency. See In re N.M. at ¶ 29-31; In re Borders at ¶ 9-13; In re Perry at

¶ 53-56. In fact, aside from the motion for legal custody that Cooper filed in each

case the week before the permanent-custody hearing, and aside from his contesting

the Agency’s permanent-custody motion, the record reveals that the Agency,

Cooper’s counsel, and Cooper himself did not believe that Cooper could serve as a

suitable placement option for the children. Even as late as the January 21, 2016

hearing, Cooper’s counsel conceded, “Obviously, he’s acknowledged – he – he’s in

no position to take [the children] but he believes his mother is in a position.” (Jan.

21, 2016 Tr. at 4).

       {¶25} Cooper relies heavily on In re S.R.; however, that case is

distinguishable. 9th Dist. Summit No. 27209, 2014-Ohio-2749. In In re S.R.,

“Father’s name is not included on any of the case plans in this case, and no written

explanation is given for his failure to sign in agreement or participate in the planning

process.” Id. at ¶ 44. In these cases, Cooper’s name is included in the case plans,

and written explanations appear in the records concerning Cooper’s failure to sign

in agreement or participate in the case-planning process. In In re S.R., “Father

contacted the intake caseworker via telephone within days of receiving the

complaint, he had continual telephone conversations with the intake and ongoing

caseworkers during the pendency of this case, and he expressed his desire to have

S.R. live with him.” Id. at ¶ 8. In these cases, despite its efforts, the Agency had


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limited success in communicating with Cooper, and when there was

communication, any interest Cooper expressed in seeking custody was contingent

on his moving to Marion. In In re S.R., “CSB and Father went back and forth

disagreeing about the need for Father to submit to DNA testing [to confirm

paternity] for a period of at least 16 months,” during which “Father was never

included on S.R.’s case plan and CSB offered no reunification services to him or

any members of his family.” Id. at ¶ 29. In these cases, Cooper—not the children’s

birth certificates—was the only impediment to his being included in the case-

planning process. Moreover, unlike in In re S.R., the Agency looked into Cooper’s

suggested kinship placements. In In re S.R., “Father * * * was not represented by

counsel.” Id. at ¶ 12. Here, the Agency initiated the cases in May 2013, and Cooper

has been represented by counsel from September 2013 to the present. In In re S.R.,

the caseworker “misled the magistrate about CSB’s ability to locate Father.” Id. at

¶ 8. In these cases, the Agency did not mislead the trial court. For all of these

reasons, In re S.R. is distinguishable, and we reject the argument Cooper makes

under his first assignment of error.

       {¶26} The arguments Cooper makes under his second and third assignments

of error are related in part to the one he makes under his first assignment of error.

We reject Cooper’s argument, under his third assignment of error, that the Agency

“did not make reasonable efforts to reunify the minor children with [Cooper]”


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Case Nos. 9-16-07, 9-16-08


because the Agency did not include him in the case plan and otherwise failed to take

“any actions that would qualify as ‘reasonable efforts’ under R.C. §2151.419.”

(Appellant’s Brief at 7, 10). Based on our discussion above, we reject Cooper’s

contention that the Agency failed to make reasonable efforts because it did not

include him in the case plan. We also reject his argument that the Agency otherwise

failed to make reasonable efforts toward reunifying the children with Cooper. The

Agency attempted to communicate with Cooper; however, aside from saying that

he might want to be included in the case plan if he moved back to Marion, Cooper

did not indicate that he wanted to be included in the case plan. The Agency

investigated potential kinship placements suggested by Cooper. We conclude that

the trial court did not abuse its discretion in concluding that the Agency’s efforts

toward reunification were reasonable and diligent under the circumstances of these

cases. See In re C.B.C., 4th Dist. Lawrence No. 15CA18, 2016-Ohio-916, ¶ 77,

citing In re Billingsley, 3d Dist. Putnam No. 12-02-07, 2003-Ohio-344, ¶ 24; In re

Savannah J., 6th Dist. Lucas No. L-08-1123, 2008-Ohio-5217, ¶ 41-42.

      {¶27} Next, we reject Cooper’s argument, under his second assignment of

error, that R.C. 2151.413(D)(3)(b) precluded the Agency from filing motions for

permanent custody “[b]ecause the Agency did not even extend a case plan to

[Cooper].”    (Appellant’s Brief at 6-7).        As we discussed above, R.C.

2151.413(D)(3)(b) precludes an agency from filing a permanent-custody motion if


                                       -20-
Case Nos. 9-16-07, 9-16-08


reasonable efforts are required under R.C. 2151.419 and if the agency has not

provided the services required by the case plan. Based on our rejection above of

Cooper’s arguments that the Agency failed to satisfy its case-planning obligations

and failed to make reasonable efforts toward reunification, we reject Cooper’s

argument that the Agency was required under R.C. 2151.413(D)(3)(b) to include

Cooper in the case plan before it could file a motion for permanent custody.

Moreover, to the extent Cooper argues that R.C. 2151.413(D)(3)(b) precluded the

Agency from filing a motion for permanent custody because it failed to make

reasonable efforts under R.C. 2151.419, we reject Cooper’s argument. See In re

J.H., 2016-Ohio-640, at ¶ 34 (“R.C. 2151.413(D)(3)(b) provides that if a ‘12 of 22’

case would otherwise require the agency to undertake reasonable efforts pursuant to

R.C. 2151.419, then the filing of the permanent custody motion is precluded unless

the agency has ‘provided the services required by the case plan to the parents of the

child or the child to ensure the safe return of the child to the child’s home.’”

(Emphasis sic.)).

       {¶28} Finally, we reject Cooper’s argument, under his fourth assignment of

error, that the Agency failed to attempt to find family-placement options before

attempting foster care, contrary to the requirements of R.C. 2151.412(H). Even

assuming without deciding that Cooper can rely on the precatory R.C. 2151.412(H)

in the manner he does, we conclude that the record reflects that the Agency


                                        -21-
Case Nos. 9-16-07, 9-16-08


attempted to locate suitable kinship placements. Contrary to Cooper’s argument,

those efforts are documented in the written records of these cases, and the

caseworker testified at the permanent-custody hearing concerning the Agency’s

exhaustive efforts in attempting to identify suitable kinship placements. Therefore,

we reject the argument Cooper makes under his fourth assignment of error. See In

re A.J., 5th Dist. Licking No. 14-CA-35, 2014-Ohio-3755, ¶ 23-24 (“The record in

this case shows that [the agency] made reasonable efforts to place the children with

a suitable relative but its investigation revealed there was no relative suitable for

placement.”).

       {¶29} Cooper’s first, second, third, and fourth assignments of error are

overruled.

                           Assignment of Error No. V

       The trial court abused its discretion by finding that Marion
       County Children Services satisfied both prongs of the permanent
       custody test by clear and convincing evidence.

       {¶30} In his fifth assignment of error, Cooper argues that the trial court

abused its discretion in finding that the Agency satisfied R.C. 2151.414.

Specifically, Cooper argues that the trial court erred in relying on R.C.

2151.414(E)(4) to conclude under R.C. 2151.414(B)(1)(a) that C.C. and I.C. cannot

be placed with a parent within a reasonable period of time. Cooper also argues,

“[T]he reasoning in In re S.R. indicates that a parent cannot be faulted for being


                                        -22-
Case Nos. 9-16-07, 9-16-08


absent twelve (12) out of twenty-two (22) months when he was not on the case plan

during those twenty-two (22) months.” (Appellant’s Brief at 15, citing In re S.R.,

2014-Ohio-2749, at ¶ 49).

       {¶31} 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. 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) 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:

       (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.

       ***




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Case Nos. 9-16-07, 9-16-08


       (d) 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 *

       * *.

R.C. 2151.414(B)(1)(a), (d). 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.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.

       {¶32} “[T]he    findings    under   R.C.    2151.414(B)(1)(a)     and     R.C.

2151.414(B)(1)(d) are alternative findings, [and] each is independently sufficient to

use as a basis to grant the Agency’s motion for permanent custody.” In re M.R., 3d

Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶ 80. Under the plain language of

R.C. 2151.414(B)(1)(d), when a child has been in an agency’s temporary custody

for 12 or more months of a consecutive 22-month period, a trial court need not find

that the child cannot be placed with either parent within a reasonable time or should

not be placed with the parents. In re A.M., 2015-Ohio-2740, at ¶ 14, citing In re

I.G., 3d Dist. Marion Nos. 9-13-43, 9-13-44, and 9-13-45, 2014-Ohio-1136, ¶ 30,

citing R.C. 2151.414(B)(1)(d).


                                        -24-
Case Nos. 9-16-07, 9-16-08


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

2151.414(B)(1) applies, the trial court must determine, by clear and convincing

evidence, whether granting the agency permanent custody of the child is in the

child’s best interest.” (Emphasis sic.) In re A.F. at ¶ 55, citing In re D.M., 3d Dist.

Hancock Nos. 5-09-12, 5-09-13, and 5-09-14, 2009-Ohio-4112, ¶ 33 and In re K.H.,

3d Dist. Hancock No. 5-10-06, 2010-Ohio-3801, ¶ 30. In determining whether

granting the agency permanent custody is in the best interest of the child, R.C.

2151.414(D)(1) provides:

       [T]he court shall consider all relevant factors, including, but not

       limited to, the following:

       (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




                                         -25-
Case Nos. 9-16-07, 9-16-08


       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)(a)-(e).

       {¶34} “Clear and convincing evidence is more than a preponderance of the

evidence but not as much evidence as required to establish guilt beyond a reasonable

doubt as in a criminal case; rather, it is evidence which provides the trier of fact with

a firm belief or conviction as to the facts sought to be established.” In re H.M.K.,

2013-Ohio-4317, at ¶ 42, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d

Dist.1994), citing Cincinnati Bar Assn. v. Massengale, 58 Ohio St.3d 121, 122

(1991). “Upon review, an appellate court ‘must examine the record and determine

if the trier of fact had sufficient evidence before it to satisfy this burden of proof.’”

Id. at ¶ 43, quoting In re Meyer at 195, citing In re Adoption of Holcomb, 18 Ohio

St.3d 361, 368 (1985).       “A reviewing court will not reverse a trial court’s

determination unless it is not supported by clear and convincing evidence.” Id.,

citing In re Meyer at 195, citing In re Adoption of Holcomb at 368 and In re Adoption


                                          -26-
Case Nos. 9-16-07, 9-16-08


of Lay, 25 Ohio St.3d 41, 42 (1986). See also In re A.E., 3d Dist. Seneca Nos. 13-

14-14 and 13-14-15, 2014-Ohio-4540, ¶ 28 (“A court’s decision to terminate

parental rights will not be overturned as against the manifest weight of the evidence

if the record contains competent, credible evidence by which a court can determine

by clear and convincing evidence that the essential statutory elements for a

termination of parental rights have been established.”), citing In re B.G.W., 10th

Dist. Franklin No. 08AP-081, 2008-Ohio-3693 and In re Nevaeh J., 6th Dist. Lucas

No. L-06-1093, 2006-Ohio-6628, ¶ 17.

       {¶35} In this case, although the findings under R.C. 2151.414(B)(1)(a) and

R.C. 2151.414(B)(1)(d) are alternative findings, the trial court found both that C.C.

and I.C. cannot be placed with a parent within a reasonable period of time and that

C.C. and I.C. have been in the temporary custody the Agency for twelve or more

months of a consecutive twenty-two-month period. Cooper offers arguments as to

why each finding is erroneous. As we will explain below, we hold that clear and

convincing evidence supports the trial court’s determination that C.C. and I.C. have

been in the temporary custody the Agency for twelve or more months of a

consecutive twenty-two-month period, thereby satisfying R.C. 2151.414(B)(1)(d).

Based on that conclusion, we need not address Cooper’s arguments concerning the

trial court’s alternative finding under R.C. 2151.414(B)(1)(a). See In re A.M., 2015-

Ohio-2740, at ¶ 17.


                                        -27-
Case Nos. 9-16-07, 9-16-08


       {¶36} Regarding R.C. 2151.414(B)(1)(d), C.C. and I.C. have been in the

temporary custody of the Agency since May 10, 2013, including on the date the

Agency filed its motions for permanent custody—April 8, 2015. Cooper’s argument

is that time during which he was not included in the case plan should not be included

in the “12 of 22” calculation. In making that argument, Cooper relies exclusively

on In re S.R. In that case, the Ninth District Court of Appeals concluded, “The trial

court had no authority to make a ‘12 of 22’ finding under the facts of this case

because Father was not provided with any reasonable reunification efforts.”

(Emphasis sic.). In re S.R., 2014-Ohio-2749, at ¶ 47, 49. We reject Cooper’s

reliance on In re S.R. for two reasons. First, as we discussed in detail above, the

case is distinguishable from these cases. Second, we concluded above that the

Agency satisfied its obligation to make reasonable reunification efforts.

Accordingly, we conclude that the trial court had sufficient evidence before it to

conclude by clear and convincing evidence that the children were in the Agency’s

temporary custody for 12 or more months of a consecutive 22-month period.

       {¶37} Finally, Cooper offers no argument concerning the trial court’s

determination that granting permanent custody of C.C. and I.C. to the Agency is in

the children’s best interests. Therefore, we will not address that prong of the R.C.

2151.414 inquiry. See In re A.C., 9th Dist. Summit No. 23627, 2007-Ohio-5525, ¶

14.


                                        -28-
Case Nos. 9-16-07, 9-16-08


       {¶38} Cooper’s fifth assignment of error is overruled.

       {¶39} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                                Judgments Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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