In re E.C.

2020 Ohio 3807

• Court: Ohio Court of Appeals
• Decided: July 23, 2020
• Docket: 109398
• Status: Published

Opinion

[Cite as In re E.C. , 2020-Ohio-3807.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE E.C., ET AL. : : No. 109398 Minor Children : : [Appeal by D.C., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 23, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD18906596, AD18906597, and AD18906598

Appearances:

Kelly M. Zacharias, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.

MARY J. BOYLE, P.J.:

Appellant, D.C. (“mother”), appeals the juvenile court’s judgment

granting permanent custody of her children, E.C. (d.o.b. May 20, 2009), A.C. (d.o.b.

October 3, 2010), and Al.C. (d.o.b. October 20, 2012), to appellee, Cuyahoga County Department of Children and Family Services (“CCDCFS”). Mother raises three

assignments of error for our review:

1. The CCDCFS has failed to show that a grant of permanent custody would be in the best interest of the child and that the child cannot or should not be placed with a parent within a reasonable period of time.

2. The Court erred in its finding there is no known Native American Ancestry.

3. [CCDCFS] did not meet its burden under ICWA by failing to treat the children as Indian Children.

Finding no merit to mother’s assignments of error, we affirm the

juvenile court’s judgment.

I. Factual and Procedural Background

CCDCFS received emergency temporary custody of the children on

May 21, 2018, pursuant to an ex parte telephonic order, and placed them with their

aunt, who was married to mother’s brother (“aunt”).

On May 22, 2018, CCDCFS filed a complaint for neglect, dependency,

and temporary custody to CCDCFS, and simultaneously filed a motion for

predispositional temporary custody. In the complaint, CCDCFS alleged that mother

had issues with mental health, anger management, and substance abuse that

prevented her from caring for the children. CCDCFS further alleged that the home

in which mother and the children were residing was unsanitary, inappropriate, and

unstable, that mother was not properly maintaining the children’s hygiene, that

mother slept during much of the day leaving Al.C. unattended, and that mother and

the children’s father (“father”) had engaged in domestic violence in the children’s presence. The complaint states that father had a pending criminal court case against

him in Erie County for rape, complicity in the commission of rape, gross sexual

imposition, and pandering sexually oriented material involving a minor.

The court held a hearing on May 22, 2018, upon CCDCFS’s motion

for predispositional temporary custody. At the hearing, mother denied the

allegations in the complaint and objected to a finding of probable cause. After

hearing testimony, the court found probable cause for the children’s removal and

granted CCDCFS’s motion for predispositional temporary custody.

In June 2018, CCDCFS filed mother’s case plan with the juvenile

court. The goal of the case plan was for the children to be reunified with mother.

Under the case plan, mother’s goals included the following: (1) obtain stable and safe

housing, (2) ensure that the children’s basic needs were met on a regular basis, (3)

undergo a psychological evaluation and actively participate and complete any

treatment recommendation, (4) complete a drug and alcohol assessment and follow

all recommendations, (5) maintain sobriety for at least six months before

reunification with the children, and (6) complete a parenting program approved by

a social worker.

The court appointed a guardian ad litem (“GAL”) for the children. On

August 9, 2018, the GAL filed a report and recommendation. The report explained

that mother had been estranged from her family for ten years, but when father was

incarcerated, she moved back to Ohio and moved in with her mother

(“grandmother”). The report states that a “conflict arose” between mother and grandmother. Mother moved in with a friend, and she told the GAL that the housing

was not proper for her children. At mother’s request, aunt came from her home in

Florida to Cleveland to take the children back to Florida to live with her and her

husband. Aunt filed for custody of the children and stayed in Cleveland with

mother’s brother (“uncle”) and the children while this case progressed. The GAL

reported that she twice visited the children at their uncle’s house, and E.C. seemed

excited about the idea of moving to Florida with their aunt. He told the GAL that

sometimes mother “was really sleepy and didn’t feed us.” A.C. likewise told the GAL

that he wanted to move to Florida with aunt. Al.C., the youngest at five years old,

told the GAL that she was going to duplicate herself to stay in Ohio and move to

Florida. The GAL reported that when she spoke with mother in July 2019, mother

was “very agitated” and told the GAL she no longer wanted the children placed with

aunt. The report further states that mother agreed that CCDCFS should receive

temporary custody of the children and that she was not complying with the

recommendations in her case plan.

At an adjudication hearing on August 13, 2018, mother stipulated to

the allegations in the amended complaint, which removed neglect. The amended

complaint alleged that mother was held in a psychiatric unit in December 2017, was

often verbally aggressive toward grandmother, and while at grandmother’s house

she punched and shattered a window while Al.C. was in the home. CCDCFS alleged

that mother needed to engage in a substance-abuse assessment, find appropriate

housing, and maintain Al.C.’s hygiene. CCDCFS further alleged that mother left the violent relationship with father, who had a pending criminal case against him.

CCDCFS presented evidence of the certified indictment against father. The juvenile

court found the three children to be dependent. The juvenile court also approved

the case plan for reunification.

The juvenile court held a dispositional hearing on August 15, 2018,

where mother agreed that the children should be placed in the temporary custody of

CCDCFS. The juvenile court awarded CCDCFS temporary custody of the children,

found that they were not members of a federally recognized Indian tribe, and found

that their continued residence or return to mother’s home was contrary to their best

interest. The magistrate’s dispositional order was approved and adopted by the

juvenile court on September 4, 2018.

In November 2018, CCDCFS conducted a semiannual review

(“SAR”). According to the SAR, mother was living with a friend, no home visit had

been completed, and mother declined to work with the recommended resources to

obtain her own housing. Regarding mental health, mother declined to seek the

recommended services. CCDCFS noted that mother voluntarily hospitalized herself

overnight for self-injurious behavior in December 2017, and she was diagnosed with

major, severe, and recurrent depression and post-traumatic stress disorder. Mother

completed a psychological evaluation through the juvenile court diagnostic clinic,

which reported that mother was guarded and evasive, chose not to amend her

diagnoses, and recommended that mother engage in therapy and complete an

assessment to determine if she should receive medication. As to substance abuse, mother tested positive for marijuana in June and July 2018. In November 2018,

mother completed a substance-abuse assessment and received a recommendation

for nonintensive outpatient treatment. At that time, mother tested positive for

alcohol, marijuana, and cocaine. The juvenile court diagnostic clinic also found that

mother had a moderate cannabis use disorder. Regarding parenting, mother was

participating in supportive visitation with the children but denied that she had

parenting issues. She had missed only one visit. She brought games and read to the

children during the visits, and she sometimes talked to the children “in a military

like fashion.” CCDCFS recommended that the children remain with their aunt and

receive counseling.

CCDCFS conducted another SAR in May 2019. Regarding housing,

mother was living with her boyfriend but was not on the lease. As to mental health

and substance abuse, mother had not engaged in the recommended therapy.

Mother did not complete the requested drug screens in December, January,

February, March, or April. Regarding parenting, mother was engaging in the

supportive visitation program and was appropriate with the children. CCDCFS

recommended that the children’s aunt and her husband in Florida should receive

legal custody of the children.

On May 21, 2019, CCDCFS filed a motion to modify temporary

custody of the children to permanent custody. CCDCFS alleged that the children

could not be placed with either parent within a reasonable time or should not be

placed with either parent, and that at least one of the factors under R.C. 2151.414(E) applied. CCDCFS averred that mother did not have independent housing, had not

engaged in recommended individual counseling or nonintensive outpatient

treatment, and had not complied with random drug screens. CCDCFS alleged that

an award of permanent custody to CCDCFS would be in the children’s best interest.

The juvenile court held a dispositional review hearing on July 29,

2019, and considered testimony presented by the child protection specialist from

CCDCFS assigned to the case. The juvenile court found that mother had not made

significant progress on her case plan, that CCDCFS had made reasonable efforts to

finalize the permanency plan of reunification with mother, and that a continued

extension of CCDCFS’s temporary custody pending the hearing on CCDCFS’s

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

dispositional order was approved and adopted by the juvenile court on August 14,

2019.

On September 16, 2019, mother filed a motion to terminate

temporary custody of the children to CCDCFS and to grant legal custody to her

brother (uncle). Mother stated that the children had been residing with uncle since

June 2019 and were happy there, and that uncle was willing to assume custody of

the children and could provide for their basic needs.

On September 23, 2019, the GAL filed a report and recommendation

in advance of trial. The GAL explained that uncle was willing to care for the children

on a short-term basis, but uncle felt that it was in the children’s best interest for

them to live with aunt and her husband in Florida. The GAL reported that aunt and her husband were willing to adopt the children but not to accept legal custody

because aunt and mother disagreed about the children attending church. The GAL

stated that mother had not completed case plan services, the juvenile diagnostic

clinic’s recommendations, or a drug and alcohol program. Mother still needed

mental health services and had not remedied the conditions that caused the

children’s removal. The GAL recommended that mother’s motion for legal custody

to uncle be denied and that permanent custody of the children be granted to

CCDCFS.

In November 2019, CCDCFS conducted another SAR. As to housing,

mother was still living with her boyfriend, and she was not included on a lease or

deed but mother’s boyfriend reported that mother and the children were welcome

in his home. Regarding mental health, mother engaged with Recovery Resources.

Recovery Resources did not have any recommendations for mother’s mental health,

but mother did not disclose her prior psychological evaluations and

recommendations to Recovery Resources. As to substance abuse, mother completed

a drug assessment in May 2019 through Recovery Resources and tested positive for

marijuana. On June 4, 2019, mother started outpatient treatment, where she was

to attend 20 sessions. During outpatient treatment, the counselor reported that

mother would often be on her phone and pull the hood of her sweatshirt over her

head. On June 25, 2019, mother was discharged from outpatient therapy because

she was testing positive during drug screens and was not participating in groups. In

May 2019, mother tested positive for cocaine and marijuana. In June 2019, mother tested positive for cocaine, marijuana, and amphetamines. Regarding parenting,

mother had developed a routine during her visits with the children, and the visits

were going well.

A. Hearing on Permanent Custody

On December 17, 2019, the juvenile court conducted a trial on

CCDCFS’s permanent custody motion and mother’s motion for legal custody to

uncle. Present at the hearing were mother, mother’s attorney, uncle, uncle’s partner,

the children’s GAL, the CCDCFS child protection specialist, and CCDCFS’s attorney.

At the time of the hearing, E.C. was ten years old, A.C. was nine years old, and Al.C.

was seven years old.

The attorney for CCDCFS told the court that father had been

incarcerated throughout the case, that mother had not substantially complied with

her case plan, and that the children could not and should not be placed with either

parent within a reasonable amount of time. CCDCFS requested that the court grant

CCDCFS permanent custody and place the children with aunt and her husband in

Florida. Mother’s attorney told the court that the children had been doing well living

with uncle and that legal custody of the children should go to him.

The CCDCFS child protection specialist assigned to the children’s

case reviewed why CCDCFS originally obtained temporary custody of the children.

She testified that the permanency plan for the children was reunification with

mother, and a case plan was created to facilitate reunification. Father was not

involved in the case plan because he was incarcerated. The children were engaging in individual and family counseling for their case plan services. The case plan

services for mother were for housing, mental health, substance abuse, and

parenting. Regarding parenting, the child protection specialist testified that mother

completed the supported visitation program.

As to housing and income, the child protection specialist testified that

mother had been residing with her boyfriend for approximately the last year and

that in September 2019, her boyfriend “deeded” his house to mother. She testified

that the house was appropriate for the children. Mother had reported to the child

protection specialist that she was working at Rascal House and that she had been

working throughout most of the case. Mother had not provided monetary support

to the children during the case but brought food for them during some of their visits.

With respect to mental health, the child protection specialist testified

that CCDCFS had referred mother to mental health services throughout the entirety

of the case but that mother had only recently begun to engage with these services.

In June 2018, mother completed a mental health assessment through Catholic

Charities but did not “follow through.” In June 2019, mother completed a

psychological evaluation through the juvenile court clinic. The child protection

specialist testified that throughout this case mother denied that she had any issues

with mental health or substance abuse. But the child protection specialist testified

that mother sought out her current mental health provider because it was closer to

where she was living. The child protection specialist explained that mother had only

recently begun to engage in substance abuse services. In June 2019, mother went

to Recovery Resources but did not successfully complete their services, and in

September 2019, she re-engaged in the services. The child protection specialist

requested random drug screens of mother, on average once a month, and mother

had submitted to five or six screens. The child protection specialist testified that

mother’s first negative drug screen was on October 1, 2019, so mother had

demonstrated her sobriety for the two months before the permanent custody

hearing. CCDCFS was still concerned about mother’s substance use because she had

not completed a program.

The child protection specialist testified that CCDCFS’s temporary

custody should not be further extended because mother had not complied with her

case plan services. She testified that permanent custody to CCDCFS would be in the

best interest of the children because it would provide them with permanency and a

safe and stable home environment.

The child protection specialist explained that if CCDCFS were to

receive permanent custody of the children, the permanency plan for the children

would be for aunt and her husband in Florida to adopt them. Aunt’s husband is

mother’s brother and uncle’s twin. Throughout the case, the children had been

placed with aunt, who had moved to Ohio from Florida to care for the children. Aunt

initially stayed with uncle but later moved into her own place in Columbia Station

with the children and cared for them there. In June 2019, aunt needed to move back to Florida, and the children were placed with uncle. The child protection specialist

testified that the children have a strong relationship with aunt and are bonded with

her. Aunt maintained phone contact with the children after she moved back to

Florida. Aunt and her husband have passed background checks and would be able

to provide for the children. CCDCFS was in the process of evaluating their home,

but the evaluation was not complete at the time of the hearing. The children also

had a good relationship with their cousins, one of whom is a minor, lives with aunt

and her husband, and during part of this case moved to Ohio with aunt. E.C. and

A.C. have expressed a desire to live with aunt and her husband in Florida. The child

protection specialist testified that based on the information she had received from

aunt, she believed that aunt would continue to involve uncle in the children’s lives.

Uncle testified that the children had been placed with him since June

2019, that they were doing very well, and that they were enrolled in school. He said

that E.C. was enrolled in an IEP course for math and science, but otherwise the

children were doing very well in their classes. They had missed only a few days of

school when they were sick, and Al.C. was a classroom helper. Uncle explained that

he had attended a few of mother’s visits with the children at his house, and the

children seemed to have a good bond with mother. The children generally looked

forward to mother’s weekly visits. Uncle testified that he had concerns about the

children reunifying with mother because of “her past history” with drug use.

Uncle testified that he had personally “gone back and forth” on

whether he would accept legal custody of the children. He explained that, “on paper,” aunt and her husband were better qualified to raise the children than he was

because they have a higher income, a larger house, and more parenting experience.

Aunt was also already a stay-at-home parent. Financially, raising the children would

burden uncle more than aunt and her husband, but he would “make it work.” Uncle

had concluded, however, that “the distance in both space on the map and in family

would be more detrimental to the children than the benefits that my sister-in-law

and brother can provide.” When asked if he were willing to assume legal custody of

the children, uncle responded, “if that is what is necessary, yes,” but he hoped that

the children would eventually be reunified with mother. When asked whether he

thought aunt having the children permanently would be in their best interest, he

responded, “like I said, when you look at it on paper, I have said that I agreed with

that course of action, yes.”

Uncle’s partner testified that he lived with uncle and the children, that

the children were happy, healthy, and excelling in school, and that he and uncle

loved the children very much. He said that he and uncle requested a counselor for

the children because A.C. and Al.C. “bicker” with each other. The counselor came to

their home, met with the children separately and with uncle and uncle’s partner, and

had overall been helpful. Uncle’s partner testified that mother had been “great”

during her weekly visits and had never visited while intoxicated or while smelling of

marijuana. He described aunt and her husband as “military people” and that he and

aunt had differing opinions on how to raise the children and the children’s level of

contact with mother. Uncle’s partner said that aunt would prevent mother from seeing the children “as long as she’s doing drugs,” but uncle’s partner would allow

the children to visit with mother as long as she was sober during the visits. Uncle’s

partner testified that he would “absolutely” provide a support system for uncle if the

court were to grant legal custody of the children to uncle.

The children’s GAL recommended that permanent custody be

granted to CCDCFS for all three children and that the children be placed with aunt

and her husband in Florida. She testified that she asked the children on four

different occasions with whom they wanted to live, and E.C. and A.C. consistently

responded that they wanted to live with aunt. Al.C. was not sure where she wanted

to live.

The GAL also testified that when she first visited uncle, he seemed

reluctant to care for the children long term. She explained that he and his partner

loved the children, were taking very good care of them, and wanted to help maintain

a relationship between mother and the children. She also testified that aunt loved

the children and also took very good care of them. The GAL observed that aunt and

her husband were reluctant to accept legal custody because they wanted to take the

children to church, and mother did not want the children to attend church. But the

GAL said that she visited uncle one Sunday and the children and uncle had just

arrived home from church.

B. The Juvenile Court’s Decision

On December 23, 2019, the juvenile court granted CCDCFS

permanent custody of the children. The court found that granting CCDCFS permanent custody was in the children’s best interest and that the children could

not be placed with either of their parents within a reasonable time or should not be

placed with either parent.

With respect to the factors under R.C. 2151.414(E) (which the court

must consider before making the finding under R.C. 2151.414(B)(1)(a), i.e., whether

the children could be placed with a parent within a reasonable time or should not be

placed with a parent), the court found the following factors apply to mother:

R.C. 2151.414(E)(1), mother failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside of her home;

R.C. 2151.414(E)(2), mother has a chronic mental illness and chemical dependency that is so severe that it makes her unable to provide an adequate permanent home within one year after the court holds the hearing in this matter;

R.C. 2151.414(E)(4), mother has demonstrated a lack of commitment toward the children by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide for an adequate permanent home for the child; and

R.C. 2151.414(E)(14), mother is unable to prevent the children from suffering emotional or mental neglect.

With respect to the best-interest factors, the juvenile court considered

the GAL’s recommendation and that the children had been in the temporary custody

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

In the same opinion that was journalized on December 26, 2019,

December 31, 2019, and January 3, 2020, the juvenile court denied mother’s motion

for uncle to have legal custody of the children. Mother appeals the juvenile court’s December 23, 2019 judgment that

was journalized on December 26, 2019, December 31, 2019, and January 3, 2020.

II. Permanent Custody Determination

The juvenile court’s December 23, 2019 judgment both denied

mother’s motion for uncle to have legal custody of the children, and granted

permanent custody of the children to CCDCFS. The grant of permanent custody to

CCDCFS terminates a parent’s rights forever, while the grant of legal custody of the

children to someone else allows a parent to retain “residual parental rights,

privileges, and responsibilities, including, but not limited to, the privilege of

reasonable visitation, consent to adoption, the privilege to determine the child’s

religious affiliation, and the responsibility for support[.]” R.C. 2151.011(B)(30);

R.C. 2151.353(A)(3)(c). Here, mother’s assignments of error and argument

challenge only the court’s order granting permanent custody to CCDCFS, not the

order denying legal custody to uncle. Therefore, we will address only the order

granting permanent custody to CCDCFS.

In her first assignment of error, mother argues that the juvenile court

erred in granting CCDCFS permanent custody of the children because CCDCFS

failed to show that permanent custody would be in the children’s best interest and

that the children cannot or should not be placed with either parent within a

reasonable period of time.

Parents have a basic and fundamental interest in the care, custody,

and management of their children. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169

(1990); In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28.

Parental rights, however, are not absolute, and a parent’s natural rights are always

subject to the ultimate welfare of the child. In re K.M., 10th Dist. Franklin Nos.

15AP-64 and 15AP-66, 2015-Ohio-4682, ¶ 15, citing In re Cunningham, 59 Ohio

St.2d 100, 391 N.E.2d 1034 (1979).

The termination of parental rights is governed by R.C. 2151.414. In re

M.H., 8th Dist. Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 22. R.C. 2151.414 sets

forth a two-part test courts must apply when deciding whether to award permanent

custody to a public services agency. Under the first prong, a court must find by clear

and convincing evidence one of the following five factors:

(a) [T]he child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child’s parents [In making this determination, the juvenile court must consider the factors set forth in R.C. 2151.414(E)];

(b) The child is abandoned;

(c) The child is orphaned and no relatives are able to take permanent custody of the child;

(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period[;] or

(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.

R.C. 2151.414(B)(1)(a)-(e). The second prong requires the court to find, also by clear and

convincing evidence, that granting permanent custody of the child to the agency is

in the best interest of the child. R.C. 2151.414(D)(1) sets forth best-interest factors

that the court must consider when making the best-interest determination under

R.C. 2151.414(D)(1), including:

(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[;]

(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 or private child placing agencies for twelve or more months of a consecutive twenty-two-month period[;]

(d) The child’s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;

(e) Whether any of the factors in divisions (E)(7) to (11) apply in relation to the parents and child.

An appellate court will not reverse a juvenile court’s decision

awarding permanent custody to an agency if the judgment is supported by clear and

convincing evidence. In re J.M-R., 8th Dist. Cuyahoga No. 98902, 2013-Ohio-1560,

¶ 28. “Clear and convincing evidence is that measure or 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, 161 Ohio St. 469, 477, 120

N.E.2d 118 (1954). A reviewing court is required to examine the record to determine whether the trier of fact had sufficient evidence to satisfy the clear and convincing

standard. In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 24.

A. The First Prong – Cannot or Should Not Be Placed with Mother

In her first assignment of error, mother challenges the juvenile court’s

finding that the children could not be placed with her within a reasonable time or

should not be placed with her.1 She argues that CCDCFS failed to provide clear and

convincing evidence of the R.C. 2151.414(E) factors.

R.C. 2151.414(E) sets forth 16 factors used to determine whether

children cannot or should not be placed with their parents. Some of those relevant

factors include whether the parent,

(1) has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home[;]

(2) [has] [c]hronic mental illness * * * or chemical dependency * * * that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing[;] * * *

(4) has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so[;] * * * or

(14) for any reason is unwilling to * * * prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.

Id. If a trial court finds by clear and convincing evidence that any one of the 16

factors exists, it must find that the child cannot or should not be placed with a parent

1 Since mother brought this appeal, and father is incarcerated and has been absent from this proceeding, our analysis will focus on whether the children cannot or should not be placed with mother. within a reasonable period of time and award permanent custody to an authorized

agency. In re D.J., 8th Dist. Cuyahoga No. 88646, 2007-Ohio-1974, ¶ 64.

In its journal entry awarding permanent custody to CCDCFS, the trial

court found R.C. 2151.414(E)(1), (2), (4), and (14) to apply. We find that the record

clearly and convincingly supports the trial court’s findings pursuant to

R.C. 2151.414(E)(1) and (2) but not (4) and (14).

Regarding R.C. 2151.414(E)(1), the trial testimony clearly and

convincingly supports the juvenile court’s finding that mother has failed

continuously and repeatedly to substantially remedy the conditions causing the

children to be placed outside of the children’s home. The children were removed

from mother’s custody due to issues with housing, mental health, substance abuse,

and parenting. Mother stipulated to such allegations in CCDCFS’s amended

complaint. A case plan was created for mother to address these issues. While

mother satisfied her case plan for parenting services, and arguably for housing, she

failed to comply with her case plan regarding mental health and substance abuse.

Regarding housing, the record reflects that mother had been living with her

boyfriend since July 2019, in a house that her boyfriend owned. The child protection

specialist testified that mother’s boyfriend “deeded” mother his house and that the

house would be appropriate for the children. She also testified that mother had been

working during most of this case. However, as to mental health and substance abuse

discussed below, mother failed to comply with her case plan. The trial testimony clearly and convincingly supports the juvenile

court’s finding that mother has a chronic mental illness or chemical dependency that

is so severe that it makes the parent unable to provide an adequate permanent home

for the children at the present time and, as anticipated, within one year after the

permanent custody hearing, pursuant to R.C. 2151.414(E)(2). Mother argues that

she should be presumed not to have a mental illness because her mental-health

diagnosis was never placed on the record even though she completed mental-health

assessments during this case. However, all three SARs state that mother voluntarily

hospitalized herself overnight for self-injurious behavior in December 2017, and she

was diagnosed with major, severe, and recurrent depression and post-traumatic

stress disorder. The juvenile court diagnostic clinic chose not to amend her

diagnosis. Moreover, the record reflects that the juvenile court diagnostic clinic

recommended that mother seek counseling and a medication evaluation. While

testimony showed that mother did seek out her most recent mental health provider,

who was geographically closer to where she was living, testimony also showed that

mother did not follow through with CCDCFS’s referrals for mental health services

throughout the proceedings. Despite CCDCFS’s referrals throughout the

proceedings, mother began to engage in these services only a few months before the

permanent custody hearing.

As to mother’s chemical dependency, the record shows that mother

had a moderate cannabis use disorder and failed to comply with her case plan.

Mother contends that CCDCFS failed to show that her marijuana use interfered with her parenting. She argues that marijuana is legal in Ohio, she had a medical

marijuana card from Michigan, and that she testified that she did not smoke near

the children and did not get high. However, substance abuse services were included

in mother’s case plan, and she failed to comply. The child protection specialist

testified that mother submitted to five or six drug screens, and her first negative

screen was only two months before the permanent custody hearing. In addition to

marijuana, mother tested positive for cocaine on multiple occasions. Mother has

not completed a substance abuse program, was discharged from outpatient therapy

for noncompliance, and has denied having a substance abuse problem. Uncle also

expressed concern about the children reunifying with mother because of her history

of drug use.

Regarding R.C. 2151.414(E)(4) and R.C. 2151.414(E)(14), we do not

find that the trial testimony clearly and convincingly supports the juvenile court’s

finding that mother has demonstrated a lack of commitment toward the children by

failing to regularly support, visit, or communicate with them when able to do so, or

that she is unwilling to prevent the child from suffering physical, emotional, or

sexual abuse, or physical, emotional, or mental neglect. Testimony shows that

mother regularly visited the children throughout the course of these proceedings.

Uncle testified that mother visited the children weekly at his home and that the

children looked forward to the visits. Uncle’s partner testified that mother was

“great” during her weekly visits. Although mother did not provide any monetary

support to the children during these proceedings, she brought food for them during some of their visits. Moreover, parenting services were part of mother’s case plan,

and the child protection specialist testified that mother completed those services.

Because we need to find that clear and convincing evidence supported

only one of the R.C. 2151.414(E) factors, and we find that clear and convincing

evidence supported the trial court’s finding pursuant to R.C. 2151.414(E)(1) and (2),

the trial court did not err in finding that the children could not be returned to

mother’s custody within a reasonable time or should not be placed with mother.

B. The Second Prong – Best Interest

In her first assignment of error, mother argues that CCDCFS failed to

show that the grant of permanent custody to CCDCFS would be in the children’s best

interest. Her arguments center around the R.C. 2151.414(E) factors discussed in the

previous section and not the R.C. 2151.414(D)(1) best-interest factors. Nonetheless,

we will consider R.C. 2151.414(D)(1) to evaluate whether CCDCFS met its burden.

The trial court needs to find only one of the R.C. 2151.414(D)(1)

factors in favor of permanent custody to terminate parental rights. In re J.S., 8th

Dist. Cuyahoga Nos. 101991 and 101992, 2015-Ohio-2701, ¶ 51, citing In re Z.T., 8th

Dist. Cuyahoga No. 88009, 2007-Ohio-827.

The record clearly and convincingly supports the trial court’s finding

pursuant to R.C. 2151.414(D)(1)(c) that the children had been in the temporary

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

CCDCFS obtained emergency custody of the children on May 21, 2018, and moved

to modify temporary custody to permanent custody on May 21, 2019. The children remained in the custody of CCDCFS for over 12 consecutive months, satisfying the

R.C. 2151.414(D)(1)(c) factor.

Although mother does not specifically raise this argument, we find

that the record clearly and convincingly supports that permanent custody of the

children to CCDCFS was in their best interest over legal custody with uncle. The

child protection specialist testified that if CCDCFS were to obtain permanent

custody of the children, their plan would be for aunt and her husband in Florida to

adopt the children. Testimony at the permanent custody hearing showed that the

children had a strong bond with aunt, and the GAL testified that E.C. and A.C.

consistently reported that they wanted to live with aunt and her husband in Florida.

The record reflects that aunt and her husband have housing, income, time,

experience, and the desire to raise the children. While the record shows that uncle

and his partner clearly love the children and have taken very good care of them, even

uncle ultimately agreed that it would be in the children’s best interest to live with

aunt and her husband.

After review, we find there was clear and convincing evidence to

support the trial court’s finding that it was in the children’s best interest to be placed

in the permanent custody of CCDCFS. Accordingly, we overrule mother’s first

assignment of error.

III. Native American Ancestry

In her second assignment of error, mother argues that the juvenile

court erred in finding the children have no known Native American ancestry. In her third assignment of error, mother contends that CCDCFS was obligated to treat the

children as Indian Children under the Indian Child Welfare Act (25 U.S.C. 1901 et

seq., “ICWA”) and as such failed to meet ICWA’s heightened standard for the

termination of parental rights. We will address mother’s second and third

assignments of error together for ease of discussion.

We must review mother’s second and third assignments of error

under a plain error standard of review. In May 2018, the juvenile court included in

its judgment entry that the children were not members of a federally recognized

Indian tribe and were not eligible for membership in a federally recognized Indian

tribe. Mother did not challenge this finding or ever raise the issue with the juvenile

court before this appeal. As such, she has waived all but plain error. Goldfuss v.

Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). Plain errors are those

that prejudice the appellant and that ‘“are clearly apparent on the face of the

record.”’ Wells Fargo Bank, N.A. v. Lundeen, 8th Dist. Cuyahoga No. 107184,

2020-Ohio-28, ¶ 12, quoting Macintosh Farms Community Assn. v. Baker, 8th

Dist. Cuyahoga No. 102820, 2015-Ohio-5263, ¶ 8 . A “failure to timely advise a trial

court of possible error, by objection or otherwise, results in a waiver of the issue for

purposes of appeal” except in “those extremely rare cases where exceptional

circumstances require [the plain error] application to prevent a manifest

miscarriage of justice, and where the error complained of, if left uncorrected, would

have a material adverse effect on the character of, and public confidence in, judicial

proceedings.” Goldfuss at 121. Courts reviewing civil cases for plain error “must proceed with the utmost caution.” Id. Mother has the burden of demonstrating

plain error. Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278, 2015-

Ohio-3731, 42 N.E.3d 718, ¶ 27.

Mother argues that the juvenile court did not satisfy its burden under

ICWA to determine whether the children were Indian children. She contends that

since mother responded that the children have Native American ancestry, the

juvenile court had the burden to investigate further to determine if the children met

the definition of “Indian children.” She argues that nobody asked the child

protection specialists if they talked with the children’s family to inquire about Native

American ancestry and that nobody explained to mother the significance of Native

American ancestry.

Mother also contends that since CCDCFS did not know whether the

children were members of a Native American tribe, CCDCFS should have treated the

children like Indian children. In support of her argument, she points to 25 U.S.C.

1912(d)-(f), which outline requirements for remedial services, foster care placement,

and parental rights termination, respectively. 25 U.S.C. 1912(f) provides that

parental rights may not be terminated absent a determination, “supported by

evidence beyond a reasonable doubt, including testimony of qualified expert

witnesses, that the continued custody of the child by the parent or Indian custodian

is likely to result in serious emotional or physical damage to the child.” Mother also

points to the Bureau of Indian Affairs Guidelines for Implementing ICWA (the

“Guidelines”), which state that an Indian child may not be removed from a parent absent a showing that it is dangerous for the child to remain with his or her parent,

as shown by evidence beyond a reasonable doubt, including expert testimony.

Guidelines at 52, Bureau of Indian Affairs, Guidelines for Implementing the Indian

Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM. Mother argues that

CCDCFS presented no expert witnesses and failed to meet ICWA’s beyond-a-

reasonable-doubt standard for the termination of parental rights.

In 1978, Congress enacted ICWA to address the ‘“wholesale

separation of Indian children from their families.”’ Guidelines at 5, quoting 2 H.R.

Rep. No. 95-1386, at 9 (1978). Congress found that

an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.

25 U.S.C. 1901(4).

This court has explained the applicability of ICWA as follows:

The ICWA provides exclusive jurisdiction to an Indian tribe over child custody proceedings in situations where the Native American child resides or is domiciled within its reservation. 25 U.S.C. 1911(a). Under the act, when an Indian child does not reside on a reservation, child custody proceedings may be initiated in a state court. 25 U.S.C. 1911(b). The act gives the subject Indian child’s tribe the right to intervene in any state court proceeding involving foster care placement or the termination of parental rights. 25 U.S.C. 1911(c). The act imposes a duty on state courts in involuntary custody proceedings “where the court knows or has reason to know that an Indian child is involved,” to have the applicable children’s services agency notify the Indian child’s tribe of the proceedings and its right to intervene. 25 U.S.C. 1912.

In re J.B., 8th Dist. Cuyahoga No. 106045, 2018-Ohio-1201, ¶ 17. ICWA applies to a child custody proceeding in state court only if the

child meets the definition of an “Indian child” under ICWA. Id. at ¶ 18; Guidelines

at 11. ICWA defines “Indian child” as “any unmarried person who is under age

eighteen and is either (a) a member of an Indian tribe or (b) is eligible for

membership in an Indian tribe and is the biological child of a member of an Indian

tribe[.]” 25 U.S.C. 1903(4). “ICWA does not apply simply based on a child or

parent’s Indian ancestry. Instead, there must be a political relationship to the tribe.”

Guidelines at 10.

The party “asserting the applicability of the ICWA” has the burden to

show that the child satisfies ICWA’s definition of an “Indian child.” In re J.B. at ¶ 19.

To meet this burden, the party “must do more than raise the possibility that a child

has [N]ative American ancestry.” Id.

Under ICWA, state courts have a duty to ask the participants in a child

custody proceeding whether they know or have reason to know that the child is an

Indian child, and must do so “at the commencement of the proceeding.” 25 C.F.R.

23.107(a); In re J.B., 8th Dist. Cuyahoga No. 106045, 2018-Ohio-1201, at ¶ 20. State

courts must also “instruct the parties to inform the court if they subsequently receive

information that provides reason to know the child is an Indian child.” 25 C.F.R.

23.107(a).

Here, the juvenile court asked mother at the May 22, 2018 emergency

custody hearing whether there is any Native American ancestry in her or father’s

ancestry. Mother responded, “yes.” The juvenile court then asked mother if the children were eligible for membership in a tribe, and mother said that she did not

know but that the children’s great grandmother on father’s side was a Blackfoot

Indian. The court explained that the existence of Native American ancestry alone is

insufficient for tribe membership and found that there is no known Native American

ancestry that would render the children eligible for tribe membership. The court

instructed the county and mother to notify the court and the appropriate tribe

representative if they discover additional information that would indicate the

children are eligible for tribe membership. Throughout the subsequent hearings in

this case, the juvenile court asked the CCDCFS child protection specialist if the

children’s file contained any known Native American ancestry, and the child

protection specialist consistently replied, “no.”

In support of her argument that the juvenile court should have done

more to determine whether the children were Indian children, mother cites Section

23.107(b) of the regulations implementing ICWA:

(b) If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an “Indian child,” the court must:

(1) Confirm, by way of a report, declaration, or testimony included in the record that the agency or other party used due diligence to identify and work with all of the Tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership); and

(2) Treat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an “Indian child” in this part.

25 C.F.R. 23.107(b). However, 25 C.F.R. 23.107(b) applies only if the court has “reason to

know the child is an Indian child.” Guidelines at 12 (“If the court has ‘reason to

know’ that a child is a member of a Tribe, then certain obligations under the statute

and regulations are triggered[.]”). Mother contends that the juvenile court had

reason to know the children were Indian children because mother told the juvenile

court that their great grandmother was a Blackfoot Indian, which would make the

children one-ninth Native American. She contends that this “blood quantum” is

sufficient for membership for some tribes, and that the children may have additional

relatives who are Blackfoot Indian, which would increase the children’s blood

quantum. In support of her argument, mother points to “U.S. band’s Ordinance 14”

attached as an exhibit to mother’s brief. This exhibit appears to be a quit claim deed,

which does not mention any requirements for tribe membership.

Regardless, 25 C.F.R. 23.107(c) explains that a court has “reason to

know” if a child is an Indian child if one of six factors apply:

(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child;

(2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child;

(3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child;

(4) The court is informed that the domicile or residence of the child, the child’s parent, or the child’s Indian custodian is on a reservation or in an Alaska Native village; (5) The court is informed that the child is or has been a ward of a Tribal court; or

(6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe.

Native American ancestry alone does not meet any of the factors of 25

C.F.R. 23.107(c). Therefore, even though mother told the juvenile court that the

children had Native American ancestry, the juvenile court did not have reason to

know that the children were Indian children. The juvenile court satisfied its burden

under ICWA to ask the proceeding participants at the beginning of this case whether

they knew or had reason to know that the children are Indian children.

Moreover, mother (not CCDCFS) had the burden to show that the

children met the statutory definition of “Indian children” because mother is the

party asserting the applicability of ICWA. In re J.B., 8th Dist. Cuyahoga No. 106045,

2018-Ohio-1201, at ¶ 19. Mother did not show that the children met the statutory

definition of “Indian children.” Therefore, ICWA did not apply to this proceeding.

As such, whether CCDCFS met ICWA’s beyond-a-reasonable-doubt standard to

terminate parental rights is irrelevant.

Accordingly, the juvenile court did not err in finding that the children

have no Native American ancestry that would render the children eligible for tribe

membership, and CCDCFS was not obligated to treat the children as Indian children

under ICWA. We therefore overrule mother’s second and third assignments of

error.

Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and EILEEN A. GALLAGHER, J., CONCUR Permanent custody; R.C. 2151.414; Indian Child Welfare Act

The juvenile court did not err in granting permanent custody of the children to the Cuyahoga County Division of Children and Family Services because the children cannot be placed with either parent within a reasonable time or should not be placed with either parent, and permanent custody was in the children’s best interest. The juvenile court did not err in finding that the children have no known Native American ancestry that would render them eligible for tribe membership. The agency was not obligated to treat the children as Indian children under the Indian Child Welfare Act.