[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], O P I N I O N 

 [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 

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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. 
Case No. 4-11-12 

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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. 
Case No. 4-11-12 

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{¶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; 
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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 
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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. 
Case No. 4-11-12 

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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-Ohio1631, ¶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 
Case No. 4-11-12 

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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 
Case No. 4-11-12 

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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 
Case No. 4-11-12 

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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 
Case No. 4-11-12 

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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. 
Case No. 4-11-12 

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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 
Case No. 4-11-12 

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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 
Case No. 4-11-12 

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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.