IN RE: J.C. and D.P.
(Juvenile Appeal from (Common Pleas Court) Trial Court Nos. JC 1998-6524, JC 2010-5852.
MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorneys for Appellee, MCCS.
DAWN S. GARRETT, Atty. Reg. #55565, Attorney for Appellant, H.P.
(¶ 1} H.P. (Mother) appeals from the trial court's January 11, 2013 orders awarding Montgomery County Children Services (MCCS) permanent custody of two of her children, J.C. and DP.
(¶ 2} Mother advances three assignments of error in this expedited appeal. First, she contends the trial court discriminated against her based on a disability, in violation of the federal Americans with Disabilities Act (ADA), when it terminated her parental rights without making a reasonable effort to accommodate her disability and without first seeking a planned permanent living arrangement. Second, she claims the trial court erred in finding an award of permanent custody to be in the children's best interest when that disposition was not the only means of obtaining a legally secure placement. Third, she asserts that the evidence does not support an award of permanent custody to MCCS.
(¶ 3} The record reflects that J.C. was born in 1997 and was adjudicated dependent in 1998. Since that time, various parties have had custody of J.C. The trial court first granted legal custody to the maternal grandparents. In 2008, the trial court granted legal custody to Mother. In December 2010, however, the trial court granted temporary custody to the maternal great aunt. In January 2011, the trial court granted MCCS temporary custody of J.C. After multiple extensions of temporary custody, MCCS moved for permanent custody in August 2012.
(¶ 4} D.P., the other child at issue, was born in 2006 and was adjudicated dependent in 2010. MCCS obtained temporary custody. After temporary custody was extended, MCCS moved for permanent custody in August 2012.
(¶ 5} The trial court held a hearing on the two permanent-custody motions in October 2012. Based on the evidence presented, it filed separate January 11, 2013 decisions awarding MCCS permanent custody of J.C. and D.P. This appeal followed.
(¶ 6} In her first assignment of error, Mother contends that she has a disability within the meaning of the ADA and that MCCS violated the ADA by failing to make reasonable efforts to accommodate her disability through its services and case-plan objectives and by failing to pursue a planned permanent living arrangement rather than permanent custody. This argument lacks merit for at least four reasons.
(¶ 7} First and foremost, an alleged violation of the ADA is not a defense to a permanent-custody motion. "Title II of the ADA prohibits public entities from discriminating based on disability. The procedure for enforcing the ADA begins with the filing of a complaint with a designated agency." (Citations omitted.) In re C.W., J.W. & H.W., 1st Dist. Hamilton No. C-11032, 2011-Ohio-4756, ¶39. "If appropriate, the agency will refer the case to the Department of Justice[, ] which may file suit in a federal district court. 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." (Citations omitted.) Id. "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." Id. at ¶40 (citing cases from the Fourth, Ninth, and Twelfth appellate districts). We join these courts in finding "that an alleged violation of the ADA by a public children-services agency may not be asserted as a defense in a permanent-custody action brought by that agency" Id. at ¶41.
(¶ 8} Second, Mother failed to allege a violation of the ADA in the proceedings below. As a result, she has waived all but plain error, which does not exist on the record before us.
(¶ 9} Third, Mother has not demonstrated that she has a disability within the meaning of the ADA. The legislation provides that the term "disability" means (1) "a physical or mental impairment that substantially limits one or more major life activities, " (2) "a record of such an impairment, " or (3) "being regarded as having such an impairment." 42 U.S.C. 12102. Here Mother has depression and a mood disorder. She shows evidence of a narcissistic and histrionic personality. She scored in the average to low-average range on various achievement and intelligence tests. She also was found to lack some self awareness and to exercise limited judgment. (Tr. Vol. I at 67-72, 87-88). Whether these limitations establish a "disability" under the ADA is far from clear. Therefore, Mother could not demonstrate plain error even if the ADA did provide a potential defense to a permanent-custody motion.
(¶ 10} Fourth, assuming arguendo that Mother's limitations do qualify as a disability under the ADA, the record reveals that MCCS made reasonable efforts to accommodate her. MCCS developed a case plan and repeatedly worked with Mother to satisfy it. Among other things, the agency referred her numerous times for parenting classes, psychological evaluations, and counseling. Despite regular assistance, Mother largely failed to follow through and did not come close to satisfying her case plan. On appeal, she argues broadly that MCCS did not attempt to accommodate her. She fails to articulate, however, what accommodations should have been provided or how they would have made a difference. The only thing she mentions is the agency's failure to seek a planned permanent living arrangement. But MCCS had no legal obligation to seek a planned permanent living arrangement before moving for permanent custody. See, e.g., In ...