In re C/S Children

2025 Ohio 1639

• Court: Ohio Court of Appeals
• Decided: May 7, 2025
• Docket: C-250018, C-250026, C-250041
• Status: Published

Opinion

[Cite as In re C/S Children, 2025-Ohio-1639.]

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

IN RE: C/S CHILDREN : APPEAL NOS. C-250018 C-250026 : C-250041 TRIAL NO. F/19/1267 X :

:

: JUDGMENT ENTRY

This cause was heard upon the appeals, the record, the briefs, and arguments. The judgment of the trial court is affirmed for the reasons set forth in the Opinion filed this date. Further, the court holds that there were reasonable grounds for these appeals, allows no penalty, and orders that costs are taxed under App.R. 24. The court further orders that 1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 5/7/2025 per order of the court.

By:_______________________ Administrative Judge IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: C/S CHILDREN : APPEAL NOS. C-250018 C-250026 : C-250041 TRIAL NO. F/19/1267 X :

: OPINION

Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 7, 2025

Alex van der Zee, for Appellant Mother,

Cynthia S. Daugherty, for Appellant F.C.S.,

ProKids, Inc., and Jeffery A. McCormick, for Appellant Guardian ad Litem,

Connie M. Pillich, Hamilton County Prosecuting Attorney, and Patsy A. Bradbury, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services. OHIO FIRST DISTRICT COURT OF APPEALS

MOORE, Judge.

{¶1} Appellants Mother, Guardian ad Litem (“GAL”), and F.C.S., putative

father of one of the children, appeal the Hamilton County Juvenile Court’s judgment

adopting the magistrate’s decision and awarding appellee the Hamilton County

Department of Job and Family Services (“HCJFS”) permanent custody of F.C. and L.S.

For the reasons set forth below, we affirm the juvenile court’s judgment.

I. Factual and Procedural History

{¶2} This case began in September 2019, when HCJFS filed a complaint

alleging that Mother had neglected and rendered F.C. (born in 2017) and L.S. (born in

2015) dependent. HCJFS also alleged that Mother’s three other minor children were

also dependent. The other children, however, are not at issue in this case.

{¶3} At the time of the complaint, Mother and her five minor children lived

with her parents in Cincinnati, Ohio. The complaint alleged that Mother left the

children alone for days, that F.C. was twice seriously injured because of inadequate

supervision, and Mother’s paramour, F.C.S., was abusive towards her. The complaint

also alleged that Mother abused drugs and was an addict, and that her home was unfit

for habitation due to numerous hazards. The complaint stated that the children’s legal

father (now Mother’s ex-husband) lives out of state and has no interest in continuing

a relationship with either Mother or the children. Mother and F.C.S. believe that F.C.S.

is F.C.’s biological father and F.C.S. is listed as the father on F.C.’s birth certificate.1

But no tests have been performed to establish F.C.S. as the biological father or

disestablish the paternity of the legal father.

{¶4} Attached to the complaint were stipulations from Mother asserting that

1 Since the name of the alleged father and child are the same, “S” is included to identify the alleged

father as “F.C. Senior” or “F.C.S.” OHIO FIRST DISTRICT COURT OF APPEALS

F.C.S. had beaten her in the past, bound her to a tent, kidnapped F.C., and stolen her

car. Following the day-one hearing, the magistrate granted interim custody of the five

children to HCJFS. In January 2020, the children were adjudicated dependent and

placed into the temporary custody of HCJFS.

{¶5} The magistrate granted HCJFS’s August 2020 and February 2021

motions to extend the grant of temporary custody of F.C. and L.S. Between September

2020 and June 2021, Mother did not visit or otherwise engage in any way with either

child. From June 2021 forward, Mother re-engaged with visitation services, and began

to visit F.C. and L.S.

{¶6} On August 9, 2021, HCJFS moved to modify custody, from temporary

to permanent. Then, in late August, F.C. and L.S.’s three other siblings were placed

with T.B., their biological father. T.B. took the initial steps to receive ICPC approval

for F.C. and L.S. but later reported that he would not be able to care for the two

additional children because he lacked the capacity to handle the logistics of caring for

that many children.

{¶7} From August 2021 until April 2024, the permanent-custody trial was

delayed by numerous motions and continuances. While the children were in HCJFS’s

custody, Mother moved to Kentucky.

{¶8} To determine if F.C. and L.S. could be returned to her, an Interstate

Compact on the Placement of Children (“ICPC”) referral was required because Mother

now lived in Kentucky. On three separate occasions, the court directed HCJFS to make

an ICPC referral. On June 30, 2022, the Kentucky Cabinet for Health and Family

Services (“KCHFS”) returned the first referral, stating that it “cannot process the

request” because it had been reported that Mother was not engaged in therapy.

{¶9} On November 30, 2022, KCHFS denied the second referral, stating that

4 OHIO FIRST DISTRICT COURT OF APPEALS

Mother could not be approved until Mother’s visitation rights progressed to

unsupervised. At the time, Mother’s visitation rights were restricted to supervised

community visitation.

{¶10} The third referral was denied on January 7, 2024. In its denial, KCHFS

cited two concerns. First, the report noted that Mother had lost her job and lacked

stable income. KCHFS feared that Mother would be unable to adequately provide for

F.C., L.S., and the two other children living with her. Second, the report noted that

there was an ongoing investigation into an alleged domestic disturbance at Mother’s

home. KCHFS’s report concluded that it could process another referral if Mother’s

financial situation were to change and if she could demonstrate that her home was

safe. Around the same time as its third denial, HCJFS restricted Mother’s visitation

with F.C. and L.S. to supervised visitation.

{¶11} In May 2022, D.B., the alleged biological father of L.S., made his first

appearance. D.B. lived in Kentucky, had no relationship with L.S., and did not want

custody of L.S. Instead, D.B. deferred to what the court believed was in the children’s

best interests. On February 2024, F.C.S. petitioned for custody of L.S. as a nonparent.

{¶12} On April 29, 2024, the trial commenced on HCJFS’s permanent-

custody motion. The agency first called Madelynn Yeager, the caseworker assigned to

F.C. and L.S.’s case. Yeager recalled that Mother had progressed with the case plan’s

objectives by engaging in counseling and substance-abuse treatment and by

maintaining consistent visitation with the children. Yeager, however, also testified

that the agency had ongoing concerns with Mother’s relationship with F.C.S.

{¶13} Yeager explained that Mother had claimed that she and F.C.S. were not

in contact with one another. But, Yeager observed F.C.S. at Mother’s home while

conducting a surprise home visit in February 2023. Yeager also testified that in

5 OHIO FIRST DISTRICT COURT OF APPEALS

December 2023, the agency became aware of a September 2023 incident in which

police were called to Mother’s home. Specifically, a neighbor called police about an

argument between Mother and F.C.S. that started outside Mother’s home and then

continued inside.

{¶14} Yeager also explained that the agency had concerns about F.C.S.’s

sobriety, his alleged history of abusing Mother, his failure to engage in agency services,

and his limited interaction with the children—he had only visited F.C. and L.S. twice

while they were in agency custody.

{¶15} At the conclusion of the first trial date, the magistrate heard oral

arguments on Mother’s request for an expedited ICPC to be completed. Mother filed

a motion 40 minutes before the start of trial, requesting that the magistrate order

HCJFS to initiate a fourth ICPC referral. Mother’s counsel argued that all outstanding

concerns with Mother assuming custody of the children had been remedied, since

Mother had secured stable employment and had proof that the September 2023

domestic disturbance was unsubstantiated. HCJFS argued that it would be improper

to make a fourth referral in the case.

{¶16} The magistrate found that Mother’s motion was untimely and declined

to order HCJFS to make another ICPC referral. However, the magistrate stated her

entry denying the motion did not preclude HCJFS from making a fourth ICPC referral

if it chose to.

{¶17} On July 18, 2024, the trial resumed and HCJFS’s counsel recalled

Yeager. Yeager explained the agency was not going to make a fourth ICPC referral,

unless a court ordered it to do so. Yeager explained that a fourth referral was

inappropriate, given that three others had previously been denied. Yeager testified

that the agency doubted whether Mother had remedied the causes of the third denial.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶18} Yeager testified that both Mother and the GAL asserted that F.C.S. did

not assault her during the September 2023 incident when police were called to

Mother’s home. Despite these assurances, Yeager testified that the agency still had

other concerns, including Mother’s ability to earn a stable income.

{¶19} Yeager explained that Mother’s employability was limited by her

obligation to transport F.C.S., F.C.S.’s mother, and one of her other children to medical

appointments. While Mother had made progress in satisfying the case-plan objectives,

Yeager concluded that the agency would not make a fourth referral.

{¶20} Yeager also testified about her interactions with F.C.S. Yeager recalled

that she made an ICPC referral for F.C.S. but that the referral was not processed

because he had not engaged in any agency services. Yeager explained that she needed

F.C.S. to sign a release of information before she could make a diagnostic referral, but

that he would continually cancel meetings with her, and he never attempted to engage

with the agency.

{¶21} On July 31st, Mother called her three supporting witnesses. Lauren

Jones, a KCHFS employee, testified that she had reviewed Mother’s third ICPC referral

and had concerns about Mother’s income and the September 2023 domestic

disturbance. Jones stated that KCHFS’s policy required that Mother could not be

approved while the investigation into the September 2023 incident was ongoing.

Jones stated that the agency could process another ICPC referral if Mother could prove

that she had stable income and if the investigation found that the domestic-abuse

claim was unsubstantiated.

{¶22} The children’s GAL recommended that custody of the children be

remanded to Mother. The GAL testified that she had worked on the case since its

inception, and that she believed it was in the children’s best interest to return to their

7 OHIO FIRST DISTRICT COURT OF APPEALS

Mother’s care. The GAL testified that Mother has maintained sobriety, stable

employment, and housing, and has built strong bonds with the children. In addition,

the GAL explained that the children wanted to return to Mother, that Mother

continued to participate in therapy, and that she has been engaged with the children’s

school and their foster parents.

{¶23} Mother also called Savannah McCarty, a KCHFS caseworker who

investigated the September 2023 domestic disturbance. McCarty testified that she

interviewed Mother, F.C.S., and Mother’s other children living at the home, in addition

to conducting a home visit. McCarty concluded that the allegation was

unsubstantiated, that there was no evidence that F.C.S. struck Mother or that F.C.S.

was regularly there, and that the agency would process another ICPC for Mother.

{¶24} On August 15, 2024, the magistrate awarded HCJFS permanent custody

of F.C. and L.S. The magistrate made specific findings that neither Mother nor F.C.S.

remedied the concerns that prompted the children to be placed in agency custody. The

magistrate conducted an analysis of the R.C. 2151.414(D)(2) factors and concluded the

court was mandated to make a permanent-custody award to the agency.

{¶25} The magistrate made further discretionary findings that awarding

HCJFS permanent custody was in the children’s best interest. The magistrate’s

findings considered the factors listed in R.C. 2151.414(D)(1)(a)-(e) and 2151.414 (E).

The magistrate determined that while the children were bonded with Mother and

wanted to be with her, Mother and F.C.S. had abandoned the children. The magistrate

further determined that the children could not be placed with either parent in a

reasonable amount of time, because neither Mother nor F.C.S. had ICPC approval.

The magistrate further detailed that the agency had outstanding concerns with the

alleged history of domestic abuse between Mother and F.C.S., Mother’s fabricated

8 OHIO FIRST DISTRICT COURT OF APPEALS

claims that F.C.S. held her hostage and drugged her, Mother’s untruthfulness in

whether she has communicated with F.C.S., and F.C.S.’s history of substance abuse

and failure to engage in agency services.

{¶26} Further, the magistrate stated that given the duration that the children

were in the temporary custody of HCJFS, the court lacked the statutory authority to

stay the proceedings and order HCJFS to make a fourth ICPC referral. The magistrate

noted that Mother had cited no authority that compelled the agency to make an

additional referral following a denial.

{¶27} Mother, F.C.S., and the GAL objected to the magistrate’s findings. The

parties collectively argued that the magistrate’s conclusion was not supported by

sufficient evidence, was against the manifest weight of the evidence, and was not in

the children’s best interest. Mother’s and the GAL’s objection asserted that the

magistrate improperly failed to order HCJFS to make a fourth ICPC referral. F.C.S.’s

objection specifically argued that Mother, as a biological parent, did not require ICPC

approval prior to placement with her.

{¶28} On January 3, 2025, the juvenile court approved and adopted the

magistrate’s decision in part. The court determined that the magistrate’s finding that

an award of permanent custody was statutorily mandated was not supported by

caselaw. The court, however, agreed with the magistrate’s analysis of the discretionary

best-interest factors and determined that a grant of permanent custody to HCJFS was

in the children’s best interest. The court found that the magistrate properly refused to

order HCJFS to issue a fourth ICPC referral, and that the court could not remand

custody to Mother without ICPC approval.

{¶29} Mother, F.C.S., and the GAL timely appealed.

9 OHIO FIRST DISTRICT COURT OF APPEALS

II. Analysis

{¶30} Appellants each raise one assignment of error on appeal, asserting that

the trial court’s award of permanent custody was not supported by sufficient evidence

and was against the manifest weight of the evidence.

A. Sufficiency and Manifest Weight

{¶31} Our review of the juvenile court’s termination of parental rights turns

on whether the court’s decision was supported by clear and convincing evidence. In

re Ar. L., 2024-Ohio-231, ¶ 24 (1st Dist.). “Clear and convincing evidence is evidence

sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the

facts sought to be established.” Id., quoting In re S.W., 2023-Ohio-2210, ¶ 11 (1st

Dist.).

{¶32} With respect to our review of whether the court’s judgment was

supported by sufficient evidence, we review sufficiency arguments in the permanent-

custody context by independently reviewing the evidence to determine if the juvenile

court’s decision was supported by clear and convincing evidence. In re K.D., 2024-

Ohio-5582, ¶ 48 (1st Dist.).

{¶33} In reviewing whether the court’s judgment was against the manifest

weight of the evidence, “we must weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether—in resolving the

conflicts in the evidence—the juvenile court clearly lost its way. . . .” In re Ar. L. at ¶

25.

{¶34} A juvenile court’s termination of an individual’s parental rights is

governed by R.C. 2151.414. In re S/F Children, 2025-Ohio-822, ¶ 36 (1st Dist.). The

juvenile court must make two findings before awarding permanent custody to the state

agency. First, the court must have found that one of the R.C. 2151.414(B)(1)(a)-(e) and

10 OHIO FIRST DISTRICT COURT OF APPEALS

2151.414(E) factors applies. See In re Ar.L., 2024-Ohio-231, at ¶ 26 (1st Dist.). Second,

the court must have found that awarding the agency with permanent custody was in

the in child’s best interest under R.C. 2151.414(D)(1)(a)-(e). Id.

{¶35} Here, the juvenile court determined that the children were eligible for

permanent custody to HCJFS, finding that R.C. 2151.414(B)(1)(b) and)(d) were

satisfied.

{¶36} R.C. 2151.414(B)(1)(b) provides that a child is eligible for permanent-

custody placement if the child has been abandoned. R.C. 2151.011(C) presumes that a

child is abandoned when a parent has failed to maintain contact for more than 90 days.

{¶37} R.C. 2151.414(B)(1)(d) establishes that a child may be placed in the

permanent custody of the state agency if the child has been in the agency’s temporary

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

{¶38} The trial court appropriately determined that the circumstances in this

case satisfied both requirements. First, the children have been in the temporary

custody of HCJFS since 2019, well beyond the 12-of-22 month minimum required

under R.C. 2151.414(B)(1)(d). This finding renders consideration of the (B)(1)(b)

factor moot.

{¶39} However, even if the (B)(1)(d) factor did not apply, the juvenile court

appropriately concluded the children had been abandoned. This court has determined

that parents may rebut the presumption of abandonment by putting forth evidence

that their absence was justified. In re P/W Children, 2020-Ohio-3513, ¶ 36-37 (1st

Dist.) (finding a parent’s failure to justify four years without visiting his or her child

did not rebut the presumption of abandonment); compare In re Custody of C.E.,

2005-Ohio-5913, ¶ 15 (2d Dist.) (finding that a parent rebutted the presumption of

abandonment by showing her absence and lack of contact was to avoid a physically

11 OHIO FIRST DISTRICT COURT OF APPEALS

violent estranged partner). The presumption of abandonment remains even if the

parent resumes contact after 90 days. See In re A.D., 2022-Ohio-2346, ¶ 24 (1st Dist.).

{¶40} Here, the juvenile court found that Mother did not visit the children

from September 9, 2020, until June 2, 2021. The record also shows that Mother could

have contacted either child during this period but chose not to. While Mother asserts

that she has now rekindled a meaningful relationship with her children, this claim

alone is insufficient to rebut the presumption that she abandoned the children.

Similarly, the court found that F.C.S. last visited the children in agency care in July

2020. Neither Mother nor F.C.S. introduced evidence to justify their absence.

{¶41} Turning to the second prong, the court appropriately concluded that

permanent custody with the agency was in the children’s best interest. The juvenile

court considered the R.C. 2151.414(D)(1) best-interest factors, which include

(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 services

agencies for 12 or more months of a consecutive 22-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 factors in R.C. 2151.414(E)(7)-(11) apply.

12 OHIO FIRST DISTRICT COURT OF APPEALS

No one factor is dispositive. In re Ar. L., 2024-Ohio-231, at ¶ 29 (1st Dist.).

{¶42} Appellants do not dispute the court’s conclusion on the first two factors

and agree that Mother and the children are bonded, and that the children wish to

return to Mother’s care.

{¶43} However, Mother and F.C.S. suggest that the time the children spent in

agency custody weighs in favor of placement with Mother. In In re P.S.M., 2024-Ohio-

2794, ¶ 21 (1st Dist.), we held that a child’s time in agency custody is measured from

the date a child enters agency temporary custody until the date the agency moves for

permanent custody. While the magistrate erroneously concluded that the children had

remained in agency custody for 1808 days, the juvenile court appropriately

determined that children were in custody 706 days, or roughly 23 months, until the

agency initially moved for permanent custody. Because the children remained in

agency custody for more than 12 months over a 22-month period, R.C.

2151.414(D)(1)(c) has been satisfied.

{¶44} Appellants primarily focus on the court’s finding under (D)(1)(d) that

the children’s need for a secure legal placement could not be achieved without a grant

of permanent custody, and (D)(1)(e), that the children were abandoned.

{¶45} A legally secure placement is “more than a house with four walls” but is

a stable environment with one or more dependable adults who will provide for the

child’s needs.” In re K.D., 2024-Ohio-5582, at ¶ 53 (1st Dist.). For a child to be

placed out of state, this court has generally recognized that an ICPC approval is

required. In re A.B., 2023-Ohio-589, ¶ 26 (1st Dist.), citing In re E.H., 2020-Ohio-28,

¶ 38 (5th Dist.). The ICPC, as adopted in Ohio, applies “to the interstate placement of

a child subject to ongoing court jurisdiction in the sending state, due to allegations or

findings that the child has been abused, neglected, or [rendered dependent].” R.C.

13 OHIO FIRST DISTRICT COURT OF APPEALS

5103.20, Article III(A)(1). The compact provides that “[t]he child shall not be sent,

brought, or caused to be sent or brought into the receiving state until the appropriate

public authorities in the receiving state notify the sending agency, in writing, to the

effect that the proposed placement does not appear to be contrary to the interest of the

child.” R.C. 5103.23, Article III(D). See In re A.B., at ¶ 25. (holding that without

approval from the receiving state, the juvenile court could not approve placement with

an out-of-state parent).

{¶46} However, there are circumstances where the ICPC is inapplicable.

Article III(B) of R.C. 5103.20 recognizes eight exceptions, which includes (B)(5), the

placement of a child with a “non-custodial parent.” Article II(L) defines a “non-

custodial parent” as an individual “at the time of the commencement of court

proceedings in the sending state, [who] does not have sole legal custody or has joint

legal custody of a child, and who is not the subject of allegations or findings of child

abuse or neglect.” A noncustodial parent is relieved from having to secure ICPC

approval upon (1) the parent proving to the sending state’s satisfaction that the parent

has a substantial relationship with the child; (2) the court making a written finding

that placement with the parent is in the child’s best interest; and (3) the court in the

sending state dismisses its jurisdiction in the child’s case. R.C. 5103.20, Article

III(B)(5); See In re T.K.M., 2019-Ohio-5076, ¶ 35 (1st Dist.) (holding that a

noncustodial parent was not exempt from needing ICPC approval because he satisfied

none of the three conditions).

{¶47} Here, Mother does not qualify as a noncustodial parent. At the

commencement of this case, Mother had legal custody of the children. Further, the

case commenced in response to allegations that Mother had neglected and rendered

the children dependent. Our determination that Mother does not qualify as a

14 OHIO FIRST DISTRICT COURT OF APPEALS

noncustodial parent renders further analysis of the R.C. 5103.20, Article III(B)(5)

factors as moot.

{¶48} Mother’s arguments that she is exempt from ICPC applicability is

similarly unpersuasive. Mother references R.C. 5103.23, Article III(A), which states

that

No sending agency shall send, bring, or cause to be sent or brought into

any other party state any child for placement in foster care or as a

preliminary to a possible adoption unless the sending agency shall

comply with each and every requirement set forth in this article and

with the applicable laws of the receiving state governing the placement

of children therein.

(Emphasis added.) Mother asserts that since she is not a foster-care placement or

adoption possibility, the parameters of the ICPC do not apply.

{¶49} This narrow reading of R.C. 5103.23 forgoes other relevant portions of

the statute and fails to consider how our case law has addressed the issue. R.C.

5103.23, Article III(D) instructs that no child shall be placed out of state until the

receiving state informs the sending state that placement does not conflict with the best

interest of the child. This section is written to generally apply, regardless of whether

that placement is with a parent. As stated, R.C. 5103.20, Article III(B), which details

the exemptions, does provide a narrow exemption for “non-custodial parents,” which

is not applicable here.

{¶50} Further, our case law has consistently recognized that an out-of-state

parent, like any out-of-state placement alternative, requires ICPC approval. See In re

A.B., 2023-Ohio-589, at ¶ 35 (1st Dist.) (holding that the lack of an approved ICPC

makes placement with parent impossible); In re K.S., 2022-Ohio-14, ¶ 36-37 (1st

15 OHIO FIRST DISTRICT COURT OF APPEALS

Dist.), quoting In re T.K.M., 2019-Ohio-5076, at ¶ 35 (1st Dist.) (when receiving state

does not approve placement, “the child shall not be placed[,]” with that out-of-state

parent). Thus, the juvenile court correctly found that Mother cannot serve as a legal

secure placement for F.C. and L.S.

{¶51} Even if Mother had an approved ICPC home study, the juvenile court’s

conclusion that Mother would not serve as a secure placement was supported by

competent and credible evidence. The court considered testimony from an HCJFS

caseworker that showed that Mother was untruthful about her relationship with

F.C.S., and that the two had communicated despite Mother’s denials. The court also

heard testimony that F.C.S. did not engage in any case services. The court considered

the allegations that F.C.S. had beaten Mother in the past and Mother’s false claims

that F.C.S. had held her hostage and forced her to take drugs. While the GAL testified

that the children would be more secure with Mother than in the foster-care system,

these concerns do not outweigh the agency’s trepidation in placing the children in a

home that may expose them to the dangers of domestic violence. Therefore, the

juvenile court did not err in concluding that neither Mother nor F.C.S. could serve as

a legally secure placement, despite the lack of ICPC approval.

{¶52} As to the parties’ challenge with the court’s R.C. 2151.414(D)(1)(e)

findings, Mother and F.C.S. again challenge the abandonment findings. The (D)(1)(e)

section considers if any of the factors in R.C. 2151.414(E)(7) to (11) apply, which

include the (E)(10) factor of abandonment. Our prior analysis of Mother’s

abandonment challenge applies here. Despite her rekindled relationship with F.C. and

L.S., Mother has failed to rebut the presumption that she abandoned her children.

{¶53} Accordingly, we conclude that there was clear and convincing evidence

to support the juvenile court’s decision to grant permanent custody of F.C. and L.S. to

16 OHIO FIRST DISTRICT COURT OF APPEALS

the HCJFS. Without ICPC approval, neither child could be placed with Mother.

Further, the best-interest factors are supported by sufficient evidence and weigh in

favor of permanent custody being awarded to the agency. Upon a review of the record,

the juvenile court did not lose its way.

III. Conclusion

{¶54} For the forgoing reasons, we overrule each appellant’s sole assignment

of error.

{¶55} The judgment of the juvenile court is affirmed.

Judgment accordingly.

ZAYAS, J., concurs. KINSLEY, P.J., dissents.

KINSLEY, Presiding Judge, dissenting,

{¶56} In certain circumstances, Ohio law outsources the determination of

whether a child will ever see his parent again to an out-of-state administrative agency.

Rather than leaving that life-altering decision to an Ohio court, an Ohio social worker,

or anyone with connections to the child in Ohio, the State instead gives the unchecked

power to separate a family to another state’s executive branch. And it does so without

affording even the most basic due process—an attorney, an appeal, the ability to

compel necessary evidence—to the parent.

{¶57} I cannot condone the application of this broken system to Mother, F.C.,

and L.S. Because I believe that Ohio law, and Ohio’s ICPC statute in specific, violate

Mother’s due process rights, I would sustain Mother’s assignment of error and reverse

the judgment of the juvenile court. And because I believe the juvenile court’s

disposition depriving F.C. and L.S. of their relationship with their Mother was against

the manifest weight of the evidence, I would not remand the matter to the juvenile

17 OHIO FIRST DISTRICT COURT OF APPEALS

court, but would instead return the children to Mother’s sole custody. I therefore

respectfully dissent.

Due Process

{¶58} The Fourteenth Amendment to the United States Constitution secures

the right of all persons to due process before their life, liberty, or property is deprived

by state government. See U.S. Const., amend. XIV (“nor shall any State deprive any

person of life, liberty, or property without due process of law”). Ratified during the

Reconstruction Era, this provision was intended to radically limit the power of state

courts to conduct unfair proceedings. Danforth v. Minnesota, 552 U.S. 264, 269-270

(2008). The core promise of the Due Process Clause is therefore that a hearing to take

away a person’s liberty will be “fundamentally fair.” Santosky v. Kramer, 455 U.S.

745, 753-754 (1982).

{¶59} The protections of the Due Process Clause apply without regard to a

person’s citizenship status. See, e.g., Plyler v. Doe, 457 U.S. 202, 211 (1982) (“Aliens,

even aliens whose presence in this country is unlawful, have long been recognized as

‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”).

Thus, Ohio citizenship is not a prerequisite to obtaining constitutionally sufficient due

process from Ohio courts.

{¶60} In the context of parental rights, parents have a well-defined and

historically-recognized liberty interest in their relationships with their children. See

Troxel v. Granville, 530 U.S. 57, 65 (2000) (identifying a parent’s interest in the care,

custody, and control of their children as “perhaps the oldest of the fundamental liberty

interests”). A parent’s liberty interest in raising a child does not evaporate simply

because the parent has not behaved perfectly or has temporarily lost custody to the

government. Santosky at 753. “Even when blood relationships are strained, parents

18 OHIO FIRST DISTRICT COURT OF APPEALS

retain a vital interest in preventing the irretrievable destruction of their family life.”

Id. In fact, the right to parent one’s children is so fundamental that termination of

parental rights has been described as “the family law equivalent of the death penalty.”

In re Hayes, 79 Ohio St.3d 46, 48 (1997). The State must accordingly afford due

process to parents before terminating their parental rights. In re James, 2007-Ohio-

2335, ¶ 16. This means that parents are entitled to “every procedural and substantive

protection the law allows.” Hayes at 48.

{¶61} Thus, in a parental termination case, due process consists of, at a bare

minimum, a hearing with adequate notice, the opportunity to cross-examine witnesses

who make dispositional recommendations, and, in most cases, the right to be present

at the hearing itself. See In re Hoffman,2 2002-Ohio-5368, ¶ 25; In re N.G., 2009-

Ohio-4915, ¶ 12 (4th Dist.). A parent facing parental termination is also entitled to

appointed counsel under the Ohio Constitution if they cannot afford representation.

See State ex rel. Heller v. Miller, 61 Ohio St.2d 6 (1980); see also Lassiter v. Dept. of

Social Servs., 452 U.S. 18 (1981) (holding that Fourteenth Amendment due process

can include the right to appointed counsel in parental termination cases where the

matter is particularly complex); R.C. 2151.414(A)(1) (requiring parents in parental

termination proceeding to receive notice of right to appointed counsel if they are

indigent). And, given the complexity of the procedures by which the government

removes children from the care of their parents, additional measures—such as a

heightened burden of proof on the State—may also be required to ensure that a

2 In Hoffman, the Ohio Supreme Court resolved a question of first impression:does a parent in a parental termination case have a due process right to cross-examine a guardian ad litem on the basis of her custody recommendation? Hoffman, 2002-Ohio-5368, at ¶ 10. In answering that question in the affirmative, the Ohio Supreme Court relied squarely upon decisions from South Carolina, the District of Columbia, Minnesota, and California in construing the mandates of constitutional due process. Id. at ¶ 19-23.

19 OHIO FIRST DISTRICT COURT OF APPEALS

parent’s liberty is constitutionally safeguarded. See, e.g., Santosky, 455 U.S. at 769-

770 (requiring the government to prove parental termination standards by at least

clear and convincing evidence rather than by a preponderance of the evidence).

{¶62} When a parent claims entitlement to additional process, the test set

forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), guides the inquiry into

whether existing procedures adequately safeguard a parent’s liberty interest in raising

her children. That test weighs the nature of the parent’s interest, the risk of erroneous

deprivation of the parent’s liberty under existing procedures, and the administrative

burden on the government if additional procedures are required. Id. In balancing the

Mathews factors, a parent’s interest in a parental termination proceeding is

“commanding,” “important,” and “far more precious than any property right.”

Santosky at 758-759; Lassiter at 27.

{¶63} Mother argued below and before this court that the application of Ohio’s

ICPC procedures afforded her constitutionally insufficient due process. I agree. As

applied to Mother, Ohio’s ICPC statute suffers from four serious constitutional flaws:

(1) by vesting the decision to seek an ICPC evaluation entirely with the sending agency,

Ohio’s ICPC statute does not afford out-of-state parents a meaningful opportunity to

be heard; (2) by relying on out-of-state administrative law, Ohio’s ICPC statute fails to

secure a parent’s right to obtain judicial review of an adverse ICPC determination; (3)

by failing to ensure that parents facing parental termination have access to counsel to

challenge out-of-state ICPC determinations, Ohio’s ICPC statute does not comport

with the basic tenets of state constitutional due process; and (4) by outsourcing the

determination of a child’s disposition—an inherently judicial function—to an out-of-

state executive agency, Ohio’s ICPC statute violates the separation of powers principle.

For these reasons, I would sustain Mother’s assignment of error and return F.C. and

20 OHIO FIRST DISTRICT COURT OF APPEALS

L.S. to her care.

A. The Interstate Compact on Placement of Children

{¶64} Ohio’s ICPC statute is codified in part at R.C. 5103.23. The stated

purpose of Ohio’s ICPC law is to enable states to cooperate with each other in the

interstate placement of children. R.C. 5103.23, Article I. Originally adopted by New

York in 1960, ICPC model legislation has been implemented by all 50 states and the

District of Columbia. See In re A.R.M., 2020-Ohio-954, ¶ 13 (10th Dist.). ICPC

legislation is identical in every state. Ursula Gilmore et al., Delays in the Interstate

Foster and Adoption Home Study Process, 8 U.C. Davis J.Juv.L. & Policy 55, 61

(2004).

{¶65} The ICPC statute places strict guardrails on when Ohio, as the sending

agency, may place an abused, neglected, or dependent child with an out-of-state

placement. First, the “sending agency” must give written notice to the receiving state

of its intention to place the child in that state. R.C. 5103.23, Article I(B). Both child

welfare agencies like HCJFS and the juvenile court constitute a “sending agency”

under Ohio’s ICPC statute. See id. at Article II(B) (defining a “sending agency” as “a

party state, officer or employee thereof; a subdivision of a party state, or officer of

employee thereof; [or] a court of a party state . . . .”). Thus, by the plain terms of the

law, both HCJFS and the juvenile court can send notice of an out-of-state placement

to a receiving state. Second, the ICPC statute forbids out-of-statement placements

until the receiving state notifies the sending agency in writing that the proposed

placement “does not appear contrary to the interests of the child.” Id. at Article III(D).

The ICPC statute therefore envisions that the receiving state will conduct an evaluation

into whether the out-of-state placement is in the child’s interests and will report that

information to the sending agency. See, e.g., Gilmore at 61-64 (describing ICPC

21 OHIO FIRST DISTRICT COURT OF APPEALS

evaluation process).

{¶66} Many states do not apply the ICPC’s notice-and-evaluation requirement

to out-of-state placements with a parent, either because the state statute adopting the

ICPC specifically excludes parents from the out-of-state evaluation regime or because

courts have determined that the overarching purpose of the ICPC does not apply to

parents regardless of how a statute is written. See, e.g., In the Interest of C.R.-A.A.,

521 S.W.3d 893, 903-907 (Tex.Civ.App. 2017) (summarizing state and federal court

holdings on the question of whether the ICPC applies to placements with out-of-state

parents). But Ohio courts, including this one, have interpreted the strict mandates of

R.C. 5103.23, Article III, to apply to out-of-state placements with parents. See In re

A.B., 2023-Ohio-589, ¶ 24-26 (1st Dist.).

{¶67} To date, no court in Ohio has considered the due process implications

of doing so. But at least one Ohio appellate court has suggested, in dicta, that applying

the out-of-state placement requirement to a state which forecloses judicial review of

ICPC evaluations would be constitutionally problematic. See In re B.L., 2018-Ohio-

547, ¶ 22-23 (12th Dist.) (“Father posits that there is no right to appeal a denied [ICPC]

home study in Texas. . . . This court would be concerned if that were true that an Ohio

law had effectively incorporated Texas law or policy precluding judicial review of an

administrative agency’s decision.”). And the courts of other states have raised due

process concerns with the strict mandates of the ICPC as applied to parents’ rights.

See, e.g., L.H. v. Indiana Dept. of Child Servs., 142 N.E.3d 977 (Ind.App. 2020)

(finding due process violation when state erroneously subjected father to ICPC

requirements); Matter of Emmanuel B. (Lynette J.), 175 A.D.3d 49, 60 (N.Y.Sup.Ct.

2019) (“Essentially, the ICPC permits a child to be denied placement . . . at the sole

discretion of an administrator, without offering any recourse to the parent. This

22 OHIO FIRST DISTRICT COURT OF APPEALS

bureaucratic barrier between the father and child infringes upon the father’s

substantive and procedural due process rights as a parent.”).3

{¶68} Mother therefore raises important constitutional questions in this

proceeding. In the court below, she sought to compel HCJFS to seek a fourth ICPC

evaluation for the purpose of preserving her liberty interest in parenting her children.

She additionally challenged the validity of the denial of the third ICPC placement. In

this appeal, she expressed confusion as to Kentucky’s administrative procedures and

requested further action from the juvenile court. Mother is correct that Ohio’s ICPC

scheme suffers from serious constitutional flaws that undermine the juvenile court’s

judgment.

B. Lack of a Meaningful Opportunity to be Heard

{¶69} Mother first argues a due process right to compel a fourth ICPC notice-

and-evaluation. She contends that the juvenile court should have ordered HCJFS to

notify Kentucky of its intent to place F.C. and L.S. with her. And she suggests that,

had it done so, the evaluation would have revealed that placement with her was in the

children’s interests, such that she would have retained custody of her children.

{¶70} Parents in a parental termination case have a right to present evidence

and witnesses on their behalf. See In re C.K., 2013-Ohio-4513, ¶ 15 (2d Dist.); see also

In re Robert S., 966 A.2d 894, ¶ 14 (Me. 2009) (observing that right to present

evidence in a parental termination case is a component of due process). As we have

explained in other contexts, the right to due process safeguards “the opportunity to be

3 While it can have state constitutional counterparts, due process is, in large part, a federal constitutional principle. Thus, reliance on extraterritorial authorities can be instructive in construing how due process applies in proceedings that sever parental rights. See, e.g., Hoffman, 2002-Ohio-5368, at ¶ 19-23 (relying on case law from four jurisdictions outside Ohio in determining that parents have a due process right to cross-examine dispositional witnesses in permanent custody proceedings).

23 OHIO FIRST DISTRICT COURT OF APPEALS

heard at a meaningful time and in a meaningful manner,” which includes the

opportunity to bring forward evidence that bears on the issues before the court. Tyra

v. Griffith, 2025-Ohio-912, ¶ 49 (1st Dist.); State v. Day, 2022-Ohio-1954, ¶ 15 (1st

{¶71} The definition of a “sending agency” in R.C. 5103.23, Article II(B),

includes child welfare agencies like HCJFS and the juvenile court. But it excludes

parents who reside out of state. Thus, a parent is not empowered under the ICPC

statute to cause the receiving state to evaluate whether placement with that parent is

in the child’s interest. And since R.C. 5103.23, Article III(D), as judicially construed,

prohibits placing a child with an out-of-state parent absent an approved ICPC, a

sending agency can in effect torpedo a parent’s liberty interest in parenting their child

simply by refusing to notify the receiving state of its intent to send the child there.

Stated another way, Ohio’s ICPC statute places the decision of whether to seek an out-

of-state parental placement solely with the unbridled discretion of the sending agency

and outside the reach of the parent.

{¶72} Applying the Mathews factors, this is constitutionally deficient.4 The

first Mathews factor focuses on Mother’s interest. Mathews, 424 U.S. at 335. As the

Supreme Court has repeatedly observed, parents have a commanding liberty interest

in their relationship with their children. See Troxel, 530 U.S. at 65. Thus, Mother’s

interest in parenting F.C. and L.S. is both fundamental and strong. Id. This weighs in

favor of Mother’s asserted due process right to compel an ICPC evaluation.

4 Mother raised a constitutional due process right to compel a fourth ICPC evaluation before the

juvenile court. That court rejected Mother’s argument out of hand without conducting a Mathews analysis. The failure to apply the correct constitutional authority to Mother’s due process argument is in and of itself a basis for reversing the juvenile court’s judgment. The Mathews factors are well- settled, and their application to due process claims in parental termination cases has been the law of the land since Lassiter was decided by the Supreme Court in 1981. See Lassiter, 452 U.S. at 27.

24 OHIO FIRST DISTRICT COURT OF APPEALS

{¶73} The second Mathews factor considers the risk that Mother’s parental

rights will be erroneously terminated under the current system. Mathews at 335. This

risk is high. The ICPC evaluation was an important mechanism by which the juvenile

court could assess the children’s current interests, and its absence deprived the court

of critical information about the children’s present reality. As a result, the juvenile

court’s order cited stale information from 2020 and 2021 rather than more up-to-date

details that could have been gained from an ICPC in 2024.

{¶74} The final Mathews factor accounts for the administrative burden on the

State of the additional requested process. Id. As to this factor, the juvenile court found

that conducting a further ICPC evaluation would take too much time, noting that

temporary custody had expired in 2021. But the juvenile court’s reliance on a timeline

to deny Mother’s ICPC request was specious. After all, HCJFS ordered the third ICPC

evaluation in late 2023, and the juvenile court never explained why the third

evaluation was timely but a fourth would not be. Moreover, federal law requires that

all ICPC evaluations be completed and reports be returned to sending agencies within

60 days. See 42 U.S.C. 671(a)(26)(A)(i). In contrast, the dispositional hearings in this

case lasted more than 90 days, from April 29 to July 31, 2024. Given this difference

in timing, an ICPC evaluation would have been the most expeditious way to determine

the appropriate placement for F.C. and L.S.

{¶75} Under these circumstances, the juvenile court violated Mother’s due

process rights by interpreting the ICPC to prohibit a fourth evaluation. Mother has a

strong liberty interest in retaining a relationship with her children. That interest was

negatively impacted by the lack of current information before the juvenile court, since

Mother lacked a procedure by which to compel an ICPC evaluation. Engaging with the

ICPC process would have caused no more delay in Mother’s case than the juvenile

25 OHIO FIRST DISTRICT COURT OF APPEALS

court’s own dispositional process did.

{¶76} I would accordingly sustain this aspect of Mother’s due process

challenge and find that Mother has a right to compel the ICPC evaluation that stood

between her and her liberty interest in her family.

C. Lack of Judicial Review in Kentucky

{¶77} In addition to challenging her inability to compel a fourth ICPC

evaluation, Mother also raised an issue below regarding the invalidity of the third ICPC

evaluation. Kentucky rejected placement with Mother in January of 2024 under R.C.

5103.23, Article III(D), because of the ongoing investigation into F.C.S.’s conduct and

because of questions about Mother’s income. Mother contends that these findings

were inaccurate.

{¶78} The record supports Mother’s contention. Evidence presented to the

juvenile court demonstrates that, at least as to the September 2023 incident involving

F.C.S., concerns about domestic violence were unfounded. F.C.S. came to Mother’s

residence to report that he had recently been diagnosed with a congenital health

condition that their child may have inherited. While he and Mother may have verbally

argued during F.C.S.’s visit, no acts of violence occurred—and certainly none that can

be attributed to Mother. The record also demonstrates that Mother had gainful

employment at the time of the third ICPC evaluation. Mother therefore makes a

compelling argument that HCJFS’s third ICPC request should have been granted by

Kentucky.

{¶79} This raises an additional due process problem with Ohio’s ICPC statute:

the lack of judicial review when a receiving state denies the placement. In dicta, the

Twelfth District expressed its concern over such a state of affairs. In re B.L., 2018-

Ohio-547, at ¶ 22-23 (12th Dist.). I share this perspective. Judicial review of denied

26 OHIO FIRST DISTRICT COURT OF APPEALS

out-of-state ICPC evaluations is required to ensure that parents’ paramount liberty

interests are not erroneously deprived. Id.; see also Mathews, 424 U.S. at 335.

{¶80} At oral argument, counsel for HCJFS contended that ICPC evaluations

are subject to judicial review in Kentucky, citing two regulatory provisions: (1) 922

Ky.Admin.Regs. 1:320, Section 9 (“Section 9”), which permits an aggrieved party from

a final order of the secretary of the Cabinet for Health and Family Services to petition

for judicial review of that order, and (2) Ky.Rev.Stat.Ann. 23A.010(4), which states in

pertinent part that “the Circuit Court may be authorized by law to review the actions

or decisions of administrative agencies.” Neither of these regulations conclusively

secure judicial review for aggrieved parents whose ICPC evaluations are denied by

Kentucky authorities.

{¶81} By its very terms, Section 9 applies to final orders issued by the Cabinet

secretary after an administrative hearing. This is so because Section 9 refers to final

orders issued pursuant to Ky.Rev.Stat.Ann. 13B.120, a statute governing the

disposition of administrative hearings. 922 Ky.Admin.Regs. 1:320, Section 3(1)(a)(2)

excludes from resolution by administrative hearing any issue a court is currently

litigating. An ICPC evaluation of a parent who is a party to a parental termination

proceeding therefore cannot be judicially reviewed in Kentucky under Section 9.

Because a court is necessarily and simultaneously considering whether to place the

child with the parent or to terminate parental rights, the matter cannot be

administratively appealed and therefore cannot result in a final order subject to

judicial review.

{¶82} Ky.Rev.Stat.Ann. 23A.010(4) provides no meaningful substitute. In

addition to the portion of the statute cited in court by HCJFS’s attorney, the provision

also indicates that circuit court review of administrative agencies is not an appeal but

27 OHIO FIRST DISTRICT COURT OF APPEALS

instead an original action. See Ky.Rev.Stat.Ann. 23A.010(4). The form of review

afforded by this provision is discretionary, and, as Kentucky courts have held, not

every administrative ruling is subject to judicial attack. Taxpayer’s Action Group v.

Madison Cty. Bd. of Elections, 652 S.W.2d 666, 668 (Ky.App. 1983).5 This provision

therefore fails to secure the right of judicial review of a denied ICPC evaluation in

{¶83} I do not reach this conclusion lightly or without extensive research.

Navigating another state’s internal regulations, policies, and procedures governing

how ICPC evaluations are to be processed is no small task. Perhaps for this reason,

there are no reported (or unreported) Kentucky decisions seeking judicial review of a

denied ICPC placement. The ICPC was developed in the 1960s and has been on the

books for more than half a century. Yet, to date, no parent in Kentucky has apparently

seen fit to challenge an out-of-state placement denial in court.

{¶84} Absent an opportunity to seek judicial review of Kentucky’s ICPC denial,

Mother was denied due process.

D. Failure to Safeguard the Right to Counsel

{¶85} Mother was similarly denied the right to an attorney to assist her in

navigating Kentucky’s complicated judicial review system. The Ohio Constitution

requires the appointment of counsel for an indigent parent facing the termination of

her parental rights. See Heller, 61 Ohio St.2d at 6. Mother qualified for an appointed

attorney under this principle. But, as revealed at oral argument, her counsel was

unfamiliar with Kentucky law and did not assist her in challenging the third ICPC

5 Kentucky courts have also disclaimed the notion that there is a constitutional right to appeal an

administrative decision. See Franklin v. Natural Resources & Environmental Protection Cabinet, 1989 Ky.App. LEXIS 46, *4 (Jan. 6, 1989).

28 OHIO FIRST DISTRICT COURT OF APPEALS

denial. This is not to fault Mother’s counsel. It is unclear from the record whether she

is admitted to practice in Kentucky or whether her appointment to represent Mother

in this action included within its scope the obligation to file an original action on

Mother’s behalf in Kentucky.

{¶86} Certainly Kentucky did not appoint counsel for Mother to assist her in

challenging the denied ICPC evaluation. The record contains no indication that any

attorney made an appearance in Kentucky on Mother’s behalf.

{¶87} Without counsel, Mother lacked the ability to avail herself of any

procedures Kentucky law may have established to challenge the ICPC placement

denial. The failure to appoint counsel for Mother in Kentucky violated Mother’s due

process rights under the Ohio Constitution.

E. Separation of Powers

{¶88} This brings me to my final, and perhaps most serious, concern. R.C.

5103.23, Article III(D), violates the separation of powers principle.

{¶89} Although not explicitly embedded in the Ohio Constitution, the

separation of powers principle is inherent and fundamental to our democratic form of

government. State ex rel. Dann v. Taft, 2006-Ohio-1825, ¶ 55. It embodies a system

of checks and balances across the three coequal branches of government—executive,

legislative, and judicial. Id. The doctrine requires that each branch of government be

permitted to exercise its respective powers without encroachment from the others, so

that the independence and integrity of each branch of government is preserved. Id.;

State ex rel. AFSCME v. Taft, 2004-Ohio-493, ¶ 31 (3d Dist.).

{¶90} The disposition of parental termination cases is a judicial function. See

R.C. 2151.414. When the State seeks to permanently remove a child from his parent’s

custody, the juvenile court is vested with determining the ultimate outcome following

29 OHIO FIRST DISTRICT COURT OF APPEALS

an adversarial hearing. R.C. 2151.414(A)(1), (B)-(E). Neither the General Assembly

nor an executive agency has the authority to terminate a parent’s custodial rights. Id.

Only a court has this power. Id.

{¶91} R.C. 5103.23, Article III(D), disrupts this balance of power by

outsourcing the judicial function to an out-of-state executive agency. As judicially

construed, Article III(D) precludes placement with an out-of-state parent unless the

receiving state’s child welfare authority has approved it. See In re A.B., 2023-Ohio-

589, at ¶ 24-26 (1st Dist.). This effectively removes the determination of whether a

child should be placed with his parent from the judiciary and vests it with another

state’s executive branch. It in essence gives a veto over a parent’s relationship to the

other state’s evaluator.

{¶92} This is how the juvenile court interpreted R.C. 5103.23, Article III(D).

On no fewer than four occasions, it held, either directly or indirectly, that it could not

place F.C. and L.S. with Mother unless Kentucky approved the placement. It also held

that it could not review the receiving state’s refusal to accept the placement under the

ICPC, in essence making Kentucky’s child welfare agency the final arbiter of the

children’s fate.

{¶93} A statute that vests an executive agency with judicial decision-making is

unconstitutional. See State v. Bodyke, 2010-Ohio-2424, ¶ 53; State v. Sterling, 2007-

Ohio-1790, ¶ 35. R.C. 5203.23, Article III(D), impermissibly usurps the judiciary’s

role in determining contested parental termination cases where a parent resides out-

of-state. As one New York appellate court observed, “the ICPC permits a child to be

denied placement . . . at the sole discretion of an administrator, without offering any

recourse to the parent.” Matter of Emmanuel B. (Lynette J.), 175 A.D.3d at 60.

Particularly given the fundamental liberty interest at stake for the parent, due process

30 OHIO FIRST DISTRICT COURT OF APPEALS

requires more.

{¶94} For these reasons, I believe Mother was deprived of her constitutional

right to due process. As applied to her, Ohio’s ICPC statute failed to afford her a

meaningful opportunity to present evidence that would support the return of her

children, failed to secure judicial review of Kentucky’s ICPC placement denial, failed

to protect her right to counsel in Kentucky, and violated the separation of powers

principle. I would accordingly sustain Mother’s assignment of error and reverse the

judgment of the juvenile court terminating Mother’s parental rights with respect to

F.C. and L.S.

Best Interest Factors

{¶95} In addition to Mother’s due process arguments, I would also sustain the

assignments of error of Mother, Father, and the GAL for the additional reason that the

juvenile court abused its discretion in applying the best interest factors. All parties

but HCJFS believed it to be in the children’s best interests for them to be placed with

Mother. This includes the GAL, who had observed the children for five years and was

uniquely situated to speak to their best interest. The juvenile court disagreed with the

GAL’s recommendation on the basis of stale evidence that did not reflect Mother’s or

the children’s current reality. To the extent the juvenile court considered more current

information, it drew that information from the faulty third ICPC evaluation that

Mother lacked the ability to challenge in Kentucky.

{¶96} Contrary to the outdated and unchallenged information cited by the

juvenile court, the record reveals that, at the time of the dispositional hearing, Mother

had fully completed case plan services, was living a stable and comfortable life, was

adequately caring for her other children, and was the best person to provide long-term

care and support to F.C. and L.S. The record also reveals instability and uncertainty

31 OHIO FIRST DISTRICT COURT OF APPEALS

in the children’s current foster placements, making them an unsuitable alternative to

Mother’s care. Reviewing the record as a whole, I therefore believe it was in the

children’s best interest to remain with Mother. I would accordingly conclude that the

juvenile court abused its discretion in awarding permanent custody of F.C. and L.S. to

HCJFS and would reverse its judgment.