In re M.R. ( 2011 )

[Cite as In re M.R., 2011-Ohio-6528.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
IN THE MATTER OF:
M. R. CASE NO. 4-11-12
ALLEGED DEPENDENT CHILD,
[K. P. - APPELLANT/MOTHER], OPINION
[D. R. - APPELLANT/FATHER].
Appeal from Defiance County Common Pleas Court
Trial Court No. 30252
Judgment Affirmed
Date of Decision: December 19, 2011
APPEARANCES:
Timothy C. Holtsberry for Appellant Mother
Michael C. Wahl for Appellant Father
Morris J. Murray and Russell R. Herman for Appellee
Case No. 4-11-12
ROGERS, P.J.
{¶1} Mother-Appellant, Kimberly P. (“Kimberly” or “Mother”), and
Father-Appellant, David R. (“David” or “Father”), appeal the judgment of the
Court of Common Pleas of Defiance County, Juvenile Division, adjudicating their
daughter, M.R., dependent and granting temporary custody to the Defiance County
Department of Job and Family Services (“the Agency”). On appeal, the Mother
and Father contend that the trial court erred by adjudicating M.R. dependent, and
that the trial court erred by failing to dismiss the complaint due to its untimely
filing. Based upon the following, we affirm the judgment of the trial court.
{¶2} A review of the record shows that on August 17, 2010, the Ohio
Reformatory for Women (“ORW”) sent a fax to the Agency reporting that prison
inmate, Kimberly, had applied to participate in the ABC Nursery program as she
was pregnant and her expected due date was October 20, 2010.1 State’s Exhibit 1.
The fax requested the Agency to report to the ORW whether Kimberly had any
prior involvement with the Agency regarding abuse or neglect on her behalf. Id.The ORW also requested the Agency to complete home studies of alternative
placements in the event Kimberly did not qualify for the ABC Nursery Program.
Id. Included in the fax was a list of these alternative placements. State’s Exhibit
3. The alternative placements listed were David and Jane Stull, Kimberly’s
1
According to the State’s brief, the ABC Nursery program allows the incarcerated new mother to keep her
baby with her while serving her prison sentence.
-2-
Case No. 4-11-12
mother. Id. On September 13, 2010, the Agency sent a letter to the ORW
explaining that Kimberly had no history in Defiance County of abusing or
neglecting other children and reported that she may benefit from the ABC
Program. State’s Exhibit 4. The ORW admitted Kimberly into the program
(State’s Exhibit 5), but on September 17, 2010, Kimberly withdrew her application
in order to join the Intensive Prison Program.2 State’s Exhibit 7. The ORW then
advised the Agency that Mother listed the alternative placements as David and
Deb Ratliff (“Deb”), David’s mother. State’s Exhibit 5.
{¶3} On October 13, 2010, Kimberly gave birth to M.R. On the same day,
the Agency filed an emergency ex parte order requesting emergency temporary
custody of M.R., which the trial court granted. After a hearing on the matter, the
trial court ordered that M.R. be placed in the emergency custody of the Agency.
On October 20, 2010, the Agency filed a complaint, alleging that M.R. is a
dependent child as defined in R.C. 2151.04(A)(C) and seeking that M.R. be placed
in the temporary custody of the Agency or a suitable relative. The Agency alleged
that the child’s biological father had not yet been established, and the child’s
mother was incarcerated. The trial court held the adjudicatory hearing on May
24, 2011 during which the following testimony was adduced.
2
The Intensive Prison Program allows the inmate to be released from prison early upon successful
completion of the program. An inmate cannot be enrolled in both the ABC Program and the Intensive
Prison Program.
-3-
Case No. 4-11-12
{¶4} Nikki Delaney (“Nikki”), an intake employee for the Agency testified
that the Agency received a fax inquiring as to Kimberly’s eligibility for the ABC
Program. The fax included a list of alternative placements in case Kimberly did
not qualify. Nikki testified that she checked into Kimberly and sent a letter to
ORW reporting that Kimberly was a good candidate for the program. Nikki
testified that on September 17, 2010, the Agency received a fax reporting that the
Mother had withdrawn from the ABC Program. The fax included a second list of
alternatives placements, listing Deb and David, and reporting that Kimberly was
due to deliver on October 20, 2010. Nikki testified that she could not remember
what action she or the Agency took after receiving the September 17, 2010 fax.
She stated that when M.R. was born, she contacted Jane Stull, who refused to be a
placement. Nikki continued to testify that previously she had looked into David,
but found that he was being investigated for allegations of rape of a teenage girl.
Nikki testified that due to a misunderstanding of the incarcerated mother rule,
neither she nor her supervisor looked into David or Deb as placements as paternity
had not yet been established. Nikki explained that the incarcerated mother rule
allows non-relatives to be alternative placements for a child when the child is born
to an incarcerated mother, whereas in cases where the mother is not incarcerated,
an alternative placement must be a blood-relative. She also explained that David
was not listed on the birth certificate; that he and the Mother were not married;
-4-
Case No. 4-11-12
and that no other family members of the Mother were listed as potential
placements. Since the Agency believed there were no placements for M.R., it
filed for an ex parte order. Nikki testified that several weeks after M.R.’s birth,
genetic test results established David’s paternity. Lastly, Nikki testified that had
Deb been contacted and had she been an appropriate placement, there would have
been no need to file a dependency action.
{¶5} Deb testified that she is a foster parent and the mother of David by
adoption. Deb stated that she was aware that Kimberly was in prison and was
pregnant. She also testified that previously she had told David and Kimberly that
she would take custody of the child. However, Deb testified that she wrote two
letters to Kimberly, one in September and one in October, 2010, telling Kimberly
she would not take the child due to problems she was having with David and
Kimberly. Photocopies of the letters, reflecting such testimony, were admitted
into evidence. Deb testified that she is now willing to take M.R. and has told the
Agency the same, but that prior to M.R.’s birth, she was not sure if she would have
taken M.R.
{¶6} Neither the Mother nor the Father presented evidence.
{¶7} The judgment entry filed May 31, 2011 adjudicated M.R. a dependent
child on October 13, 2010, as the Mother was incarcerated, and at the time of birth
the child’s father was putative. The judgment entry also included, “[t]he [c]ourt
-5-
Case No. 4-11-12
finds that even though the Agency . . . did not comply strictly with the provisions
of the Ohio Administrative Code regarding placement services for infants of
incarcerated mothers at the time of [M.R.]’s birth, the Agency’s failure to comply
did not create the dependent status of [M.R.].” Judgment Entry, Docket No. 39.
{¶8} On June 28, 2011, a dispositional hearing was held. Through the
judgment entry filed July 8, 2011, the trial court stated that the parties agreed that
it was in the best interests of M.R. to be placed in the temporary custody of the
Agency, and accordingly, ordered temporary custody to remain with the Agency.
Docket No. 42. It is from this judgment that the parties filed their notices of
appeal, asserting the following assignments of error for review.3
Assignments of Error No. I
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FINDING THE CHILD DEPENDENT, WHEN AGENCY DID
NOT FOLLOW THE REQUIREMENTS IN OHIO REVISED
CODE 2151.419 AND OHIO ADMINISTRATIVE CODE
5101:2-42-60[.]
Assignments of Error No. II
TRIAL COURT ERRED BY NOT FOLLOWING THE
REQUIRMENTS R.C. 2151.31 AND R.C. 2151.27[.]
3
Both Mother and Father filed a notice of appeal and an appellate brief. As the briefs are practically
identical, we will address both simultaneously.
-6-
Case No. 4-11-12
Assignments of Error No. I
{¶9} In the first assignments of error, the Appellants challenge the
adjudication of dependency arguing that the Agency did not meet its burden in
establishing that it used reasonable efforts to prevent the removal of the child as
required by R.C. 2151.419(A)(1); that the Agency did not use reasonable efforts as
it failed to comply with Ohio Administrative Code 5101:2-42-60 which required
the Agency to conduct a home assessment of the proposed caregivers; and, that the
trial court erred by failing to address the Agency’s reasonable efforts as required
by R.C. 2151.419(B)(1). The Appellants urge this Court to find that the above
constitutes reversible error.
{¶10} The appropriate standard of review for cases involving an
adjudication of dependency is clear and convincing evidence. R.C.
2151.35(A)(1); Juv.R. 29(E)(4); In re Myers, 3d Dist. No. 13-06-48, 2007-Ohio-
1631, ¶11. “[C]lear and convincing evidence is that measure of degree of proof
which will produce in the mind of the trier of facts a firm belief or conviction as to
the allegations sought to be established.” Cross v. Ledford (1954), 161 Ohio St.
469, 477, 53 O.O. 361, 120 N.E.2d 118, citing Merrick v. Ditzler (1915), 91 Ohio
St. 256, 267, 110 N.E. 493.
{¶11} Revised Code 2151.419(A)(1) provides, in pertinent part, that:
[A]t any hearing held pursuant to section 2151.28 . . . of the
Revised Code at which the court removes a child from the
-7-
Case No. 4-11-12
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 or private child placing agency that filed the
complaint in the case, removed the child from home, has custody
of the child, or will be given custody of the child 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. The agency shall have the burden of
proving that it has made those reasonable efforts.
{¶12} R.C. 2151.419(B)(1) provides that:
A court that is required to make a determination as described in
division (A)(1) or (2) of this section shall issue written findings of
fact setting forth the reasons supporting its determination. If
the court makes a written determination under division (A)(1) of
this section, it shall briefly describe in the findings of fact the
relevant services provided by the agency to the family of the
child, and why those services did not prevent the removal of the
child from the child’s home or enable the child to return safely
home.
{¶13} Ohio Administrative Code 5101:2-46-60(B)(1) provides that:
Upon notification by the correctional facility that postnatal
services will be needed, the [public children services agency] in
the county in which the woman was a resident at the time of
incarceration . . . shall . . . [c]onduct a home assessment of the
proposed relative or non-relative caregiver recommended by the
incarcerated woman . . . and provide a copy of the findings and
recommendation to the correctional facility.
{¶14} Initially, we note that Appellants’ assignments of error challenge
solely the dependency adjudication which occurred one month before the
temporary custody disposition. The adjudication hearing and the resulting
-8-
Case No. 4-11-12
judgment entry focused exclusively on the events prior to and on the date of
M.R.’s birth. Accordingly our analysis is similarly focused.
{¶15} In the case sub judice, we question the propriety of applying R.C.
2151.419(A)(1). The statutory language of particular concern is “. . . 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 (Emphasis added). Our concern
lies with the meaning of the terms “removal” and “home,” neither of which are
defined in Revised Code Chapter 2151. In the present case, the Mother gave birth
while incarcerated and refused to participate in the only program that would allow
her to keep the child; the Father was not a suitable placement due to the ongoing
investigation regarding allegations of rape; the maternal grandmother refused to
take the child, and the evidence presented at the hearing shows that the paternal
grandmother would have refused to take M.R. as well. Therefore, the Agency did
not actively seek to remove the child from the Mother, but rather, the child was
born into an environment in which it could not remain, leaving the Agency no
choice but to take action. Further, we are hesitant to deem a hospital or prison a
home. Although the statute lacks a definition of home, “out-of-home care” is
defined as, inter alia, detention facilities, shelter facilities, institutions, state
institutions, and hospitals. R.C. 2151.011(A)(29). Because M.R. was born in
-9-
Case No. 4-11-12
out-of-home care and could not have remained with either parent, it is unlikely
that M.R., if in fact removed, was removed from a home.
{¶16} Nonetheless, if we were to assume that R.C. 2151.419 did apply to
this case at the time of the adjudication, we find that the Agency’s efforts were
reasonable given the circumstances. A reasonable efforts analysis does not delve
into a discussion of whether the agency could have done more, but whether it did
enough to satisfy the reasonableness standard under the statute. In re R.C., 3d
Dist. Nos. 16-09-11, 16-09-12, 16-09-13, 2010-Ohio-3800, ¶16, citing In re
Leveck, 3d Dist. Nos. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶10.
Reasonable efforts are “the 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
. . .” In re C.F., 113 Ohio St.3d 73, 78, 2007-Ohio-1104, 862 N.E.2d 816.
{¶17} The efforts undertaken by the Agency were as follows: the Agency
approved the Mother for the ABC Program after looking into her prior
involvement with the Agency, and reported the same to the ORW; the Agency
looked into the Father and discovered that he was under investigation for
allegations of rape and was therefore not a suitable placement; and, the Agency
contacted the maternal grandmother who refused to take M.R. The Agency
however, did not conduct a home assessment of or contact the paternal
grandmother due to a misunderstanding of the Administrative Code. Contrary to
-10-
Case No. 4-11-12
the Appellants’ contention, this failure does not render the Agency’s efforts
unreasonable as the evidence at trial established that the paternal grandmother
would not have taken M.R.4 Accordingly, the Agency did establish that it used
reasonable efforts. Moreover, any additional effort taken by the Agency would
have been futile as it could not have prevented the separation of M.R. and her
parents at the time of M.R.’s birth. In the Matter of Chestnut Children, 5th Dist.
No. 05CA39, 2006-Ohio-684, ¶19 (Children Services Board’s failure to make
reasonable efforts was harmless because attempt would have been futile given
mother’s addiction issues, mental illness, and incarceration), citing In the Matter
of Lilley, 4th Dist. No. 04CA22, 2004-Ohio-6156, In the Matter of Crosten (Mar.
21, 1996), 4th Dist. No. 95CA1692; Elmer v. Lucas County Children Services
Board (1987), 36 Ohio App.3d 241, 244, 523 N.E.2d 540.
{¶18} Further, assuming that R.C. 2151.419 applied at the time in issue, the
trial court did not fail to address the Agency’s reasonable efforts in its judgment
entry adjudicating M.R. dependent, as the Appellants contend. The trial court
issued thirteen findings of fact, roughly half of which speak to the Agency’s
efforts. It then found that, “the Agency’s failure [to comply with the Ohio
Administrative Code] did not create the dependent status of [M.R.]” Judgment
4
While we do not condone the Agency’s negligence in misunderstanding and misapplying OAC 2101:2-
42-60, a fact which it does not dispute, we find that compliance would not have changed the result in this
particular case.
-11-
Case No. 4-11-12
Entry, Docket No. 39. Accordingly, this argument is without merit as the trial
court satisfied the statutory provisions in R.C. 2151.419(B)(1).
{¶19} As the trial court’s judgment of dependency is supported by clear and
convincing evidence, we affirm its judgment. Accordingly, we overrule the
Appellants’ first assignments of error.
Assignments of Error No. II
{¶20} The Appellants contend that the trial court erred by failing to dismiss
the complaint as it was untimely filed according to R.C. 2151.27(A)(1) and R.C.
2151.31(D) or (E). As these statutes mandate that a complaint must be filed
before the end of the next business day after the child is taken into custody, and
the Agency filed a complaint ten days after M.R. was taken into custody, the
appellants argue that the trial court committed plain error in failing to dismiss the
complaint.
{¶21} “‘In 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.’” Ordean v. Ordean, 3d Dist. No. 17-06-15, 2007-Ohio-3979, ¶14, quoting
-12-
Case No. 4-11-12
Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997-Ohio-401, 679 N.E.2d 1099,
syllabus.
{¶22} When a trial court issues an ex parte order of emergency custody of
an alleged dependent child, a complaint must be filed “with respect to the child
before the end of the next day after the day on which the child was taken into
custody.” R.C. 2151.27(A)(1); See R.C. 2151.31(D) (directing that the complaint
must be filed “before the end of the next business day after the day on which the
child is taken into custody”).
{¶23} Juv.R. 22(D) requires that objections based on defects in the
institution of the proceeding or on defects in the complaint must be heard before
the adjudicatory hearing. Juv.R. 22(D)(1); Juv.R. 22(D)(2). These prehearing
objections can be made in the form of a motion and shall be filed by the earlier of
seven days prior to the hearing or ten days after the appearance of counsel. Juv.R.
22(E). Failure to make a timely objection constitutes waiver. In re Dukes (1991),
81 Ohio App. 3d 145, 150, 610 N.E. 2d 513; In the Matter of Simon (Oct. 15,
1980), 2d Dist. No. CA 1011, citing In re Hunt (1976), 46 Ohio St. 2d 378, 348
N.E.2d 727, In re Fudge (1997), 59 Ohio App.2d 129, 392 N.E.2d 1262.
{¶24} In the instant case, the hearing on the ex parte motion for temporary
custody was held on October 14, 2010, and temporary custody was granted.
Foster parents took M.R. home from the hospital that same day. The complaint
-13-
Case No. 4-11-12
was filed on October 20, 2010. According to Revised Code Chapter 2151, the
complaint should have been filed before the end of the day on October 15, 2010.
As the State did not file the complaint until October 20, 2010, the complaint was
late and thus in dereliction of the statute. The Appellants, however, never filed
objections, and instead chose to proceed to the hearing. As neither party raised
their objections below, they are waived.
{¶25} The Appellants urge this Court to undertake a plain error analysis,
arguing that it was plain error for the trial court not to dismiss the complaint as
untimely. Despite the late filing, the adjudicatory hearing was not held until seven
months later, at the behest of Mother as she was then out of prison. This Court is
unable to arrive at the conclusion urged by Appellants, as the untimely filing in no
way seriously affected the basic fairness, integrity, or public reputation of the
judicial process or challenged the legitimacy of the underlying judicial process
itself.
{¶26} Accordingly, we overrule the Mother’s and Father’s second
assignments of error.
{¶27} Having found no error prejudicial to the Appellants’ herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
-14-