In re A.H. ( 2021 )

[Cite as In re A.H., 2021-Ohio-1577.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: A.H. JUDGES:
Hon. William B. Hoffman, P.J.
Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
Case No. 2020 CA 00072
O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
No. F 2018-0443
JUDGMENT: Vacated and remanded
DATE OF JUDGMENT ENTRY: May 4, 2021
APPEARANCES:
For Appellee - L.C.J.F.S. For Appellant – Charles Holmes
WILLIAM C. HAYES JERMAINE L. COLQUITT
Licking County Prosecutor 33 W. Main Street, Suite #109
Newark, Ohio 43055
PAULA M. SAWYERS
Assistant Prosecuting Attorney For Mother – Noel Holmes
20 S. Second Street, Fourth Floor
Newark, Ohio 43055 BONNIE VANGELOFF
P.O. Box 4174
Guardian Ad Litem 6400 Emerald Parkway
Dublin, Ohio 43016
SCOTT SIDNER
55 South Main Street, Suite C
Johnstown, Ohio 43031
Licking County, Case No. 2020 CA 00072 2
Hoffman, P.J.
{¶1} Appellant Charles Holmes (“Father”) appeals the October 29, 2020
Judgment Entry entered by the Licking County Court of Common Pleas, Juvenile Division,
which approved and adopted the magistrate’s September 25, 2020 decision,
recommending Father’s parental rights with respect to his minor child be terminated, and
permanent custody of the Child be granted to appellee Licking County Job and Family
Services (“LCJFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Father and Noel Holmes (“Mother”)1 are the biological parents of the Child.
Permanent custody of Mother’s three older children was granted to LCJFS in February,
2019. Father is the biological father of two of the older children.
{¶3} On July 2, 2018, the trial court granted an emergency ex parte order for
removal of the Child. On the same day, LCJFS filed a complaint, alleging the Child was
dependent due to Father and Mother’s mental health and substance abuse issues. The
Complaint further alleged Mother tested positive for THC at the Child’s birth, Mother lied
about being pregnant, neither parent was employed and did not have independent means
to support the Child, and Father had moved out of state. In addition, the Complaint noted
the concerns which led to LCJFS becoming involved with the three older children
remained, to wit: substance abuse, mental health issues, domestic violence, and
economic instability. The trial court granted emergency shelter care custody of the Child
to LCJFS on July 3, 2018. The trial court appointed Attorney Scott Sidner as Guardian
ad Litem for the Child.
1 Mother is not a party to this Appeal.
Licking County, Case No. 2020 CA 00072 3
{¶4} Following an adjudicatory hearing on September 4, 2018, the magistrate
found the Child to be dependent. The trial court conducted semi-annual review hearings
on October 25, 2018, and April 25, 2019, and maintained the status quo each time.
LCJFS filed a motion for permanent custody on May 29, 2019. On August 14, 2019,
Mother filed a motion to grant legal custody of the Child to maternal grandparents or, in
the alternative, maternal great aunt and uncle.
{¶5} The magistrate conducted the permanent custody hearing on July 6,
September 22, and September 23, 2020.
{¶6} At the close of evidence on the first day of the hearing, Father made an oral
motion pursuant to the Interstate Compact on the Placement of Children (“I.C.P.C.”),
requesting LCJFS initiate the I.C.P.C. study of Father’s home in North Carolina. The
magistrate scheduled the motion for a “non-oral hearing to allow any party to file a
response should they wish to do so.” August 5, 2020 Magistrate’s Decision.
{¶7} LCJFS filed a memorandum contra on July 10, 2020, arguing the motion
was untimely. LCJFS explained, before another state approves an I.C.P.C., an agency
must gather “a significant amount of demographic information from the party who intends
to accept placement.” July 10, 2020 Memorandum Contra to Father’s Oral Motion for
ICPC at 1, unpaginated. LCJFS detailed the efforts made by the social worker to obtain
the necessary information from Father and Father’s brother. The GAL filed a response
on July 10, 2020, also arguing Father’s request was untimely. The GAL noted: “The need
for an ICPC in this case is not a matter newly discovered by Father. In fact, the
undersigned has mentioned that no ICPC had been requested by Father it [sic] in previous
GAL Reports in this case and/or the siblings’ case.” July 10, 2020 GAL’s Response to
Licking County, Case No. 2020 CA 00072 4
Father’s Request for ICPC at 2. The GAL added Father testified about the ICPC
requirement during the February, 2019 permanent custody trial involving the Child’s
siblings.
{¶8} Via Decision filed August 5, 2020, the magistrate denied Father’s motion for
an I.C.P.C. home study. The magistrate found “this request has simply been made too
late.” Id. at 2, unpaginated. The magistrate added, “While [counsel for Father] did seek
to initiate a home study for his client much earlier in the case, his efforts were thwarted
by his client’s brother, and it appears by his client as well.” Id. The magistrate also noted
the matter had been pending over two years and granting the request would delay
permanency for the Child. Id.
{¶9} Rebecca Inboden, an on-going social worker, testified she was assigned to
the family in May, 2017, when the three older children were placed in the custody of
LCJFS. Inboden indicated Father and Mother are legally married, but are separated. The
Child was born during the pendency of the case involving the older children. At the time
of the Child’s birth, the concerns which resulted in the removal of the older children
remained, including substance abuse, mental health, domestic violence, financial stability
and housing. Father and Mother were non-compliant with case plan services, not
engaging in any services, and failing to address any of the issues of concern.
{¶10} Inboden met with Mother at the hospital on July 2, 2018, and reviewed the
case plan with her. Mother had denied being pregnant when Inboden asked her during
a conversation on May 9, 2018. Inboden did not learn of Mother’s pregnancy until the
Child was born. Father had moved to North Carolina the week prior to the Child’s birth.
During a telephone conversation on June 21, 2018, Father informed Inboden he had
Licking County, Case No. 2020 CA 00072 5
moved and he and Mother were separating. Father did not disclose Mother’s pregnancy
during the conversation.
{¶11} A copy of the case plan was mailed to Father. Father’s case plan included
mental health and substance abuse services, obtain and maintain stable housing and
employment, and address domestic violence issues. Inboden stated Father’s income
appears to be sufficient as he receives monthly VA benefits and is employed at a grocery
store earning approximately $14.50/hour. Inboden did not have verification of Father’s
residence, but it was her understanding Father was residing with his brother.
{¶12} During the course of the case involving the older children, Father had
positive drug screens, the majority of which were for marijuana. Father completed an
intake at the Licking County Alcohol Prevention Program (“LAPP”) in September, 2017.
Father did not follow through with the recommended services. He completed another
assessment at LAPP in February, 2020. Father was advised to follow the
recommendations from the 2017 intake. At the time of the hearing, Father had not
followed through with the recommendations. Father had negative drug screens in 2020.
{¶13} Inboden noted it had been relatively difficult to assist Father with the case
plan due to the physical distance. Her primary means of communicating with Father was
through email. Inboden expressed concerns about Father’s ability to parent the Child
“because there are things I can’t – I can’t verify with father at this point.” Transcript July
6, 2020 Hearing at 21. Father participated in parenting classes during the case involving
the older children.
{¶14} Inboden stated Father’s visits with the Child “go really well.” July 6, 2020
Tr. at 28. Father is appropriate and engaged. Although the Child appears happy to see
Licking County, Case No. 2020 CA 00072 6
Father, Inboden would not go so far to say the Child is bonded with Father. Father’s
attorney advised Inboden Father’s brother was interested in being considered as a
potential placement option for the Child. In September, 2019, Inboden contacted Father’s
brother, who lives in North Carolina. Inboden described Father’s brother as “caught off
guard by my call.” Id. at 34. Father’s brother told Inboden, “I don’t know what I could tell
you.” He indicated he needed to call Inboden back and would do so within 30 minutes.
Inboden never received a return call.
{¶15} With respect to the best interest portion of the hearing, Inboden testified the
Child is two years old. He is placed in a foster home with two of his older brothers, and
has been in the home since his initial removal from Parents’ care. The Child receives full-
time services through Early Head Start due to speech delays. The Child is well adjusted
and is bonded with his biological brothers, his foster siblings, and his foster parents. All
of his needs are being met. The foster parents are in the process of adopting the two
older children and are interested in adopting the Child. Inboden indicated alternative
relative placement was not approved by LCJFS due to various concerns.
{¶16} Nicole McCullough testified on the final day of the hearing. McCullough was
assigned to the family as the ongoing social worker in August, 2020, after Inboden left
LCJFS. McCollough met Parents following the July 6, 2020 hearing. Thereafter, Father
texted McCollough with his contact information and address. In an August 21, 2020 email,
McCullough asked Father to send an updated paystub, which he did on September 6,
2020. McCullough asked Father if he had completed the LAPP recommendations from
his initial intake, which was the recommendation following his February, 2020 mental
health assessment. Father indicated the recommendations were no longer valid.
Licking County, Case No. 2020 CA 00072 7
McCullough described Father’s visits with the Child as appropriate, and indicated Father
loved the Child. McCullough had not heard from Father’s brother. Father did not provide
McCullough with any photographs of his residence. Father did not provide the social
worker with a lease.
{¶17} On cross-examination, McCullough admitted she had not seen Father’s
home and had not asked Father for photographs or a virtual tour of the home. McCullough
stated she did not have any contact with Father’s brother. On redirect, McCullough
testified Father did not offer or ask her whether she wanted photographs or a virtual tour
of the home. McCullough added Father did not ask her to come to the home or ask her
to speak with his brother.
{¶18} Inboden was recalled on the final day of the hearing. She testified, during
her involvement in the case, Father had not successfully completed any form of
substance abuse treatment. Inboden stated, following his September, 2017 intake, LAPP
recommended Father participate in individual outpatient therapy. Father attended only
one session. He declined further services. Following his February, 2020 mental health
assessment, LAPP recommended Father follow through with the September, 2017
recommendation with regard to substance abuse treatment. Inboden continued to have
concerns about Father’s substance abuse as she had no documentation showing he had
completed any treatment.
{¶19} Inboden learned at the previous day’s hearing Father had moved to Raleigh,
North Carolina, from Zebulon, North Carolina, and he had been living in Raleigh for a
year. Inboden recalled she spoke with Father’s brother in September, 2019. When she
asked him if he was interested in having the Child placed in his home, Father’s brother
Licking County, Case No. 2020 CA 00072 8
was hesitant, commenting he did not know what to say. Inboden was unable to obtain
any information regarding the suitability of the home. Although Father’s brother advised
Inboden he would call her back, he never did. Father emailed Inboden wanting to know
why she contacted his brother. According to Inboden, Father “seemed a little perturbed
that I had contacted his brother.” Tr. Vol. III at 168.
{¶20} With respect to the decision not to do the I.C.P.C. home study, Inboden
explained it is a lengthy application process and she had been unable to obtain
information about Father’s living situation and was not provided with any other information
necessary for the home study. Father’s brother did not call Inboden back to give her the
information she requested, including the social security numbers dates of birth, and
places of employment for all household members over the age of 18. Father was aware
of the information needed, but also failed to provide such to Inboden. Inboden added
Father had sufficient income and resources to secure independent housing, yet he chose
not to do so.
{¶21} Inboden still had concerns regarding Father’s lack of progress on his case
plan. With respect to Father’s negative drug screens, Inboden noted she only had access
to Father when he was in Ohio for scheduled visitation with the Child and Father was
aware he would be drug screened at that time. Inboden explained she prefers random
drug screens so a parent is unable to prepare and there is more validity to the results.
{¶22} On cross-examination, Inboden acknowledged she did not attempt to
contact Father’s brother a second time. She explained, “I guess if I’m placing a child with
an individual who is going to be responsible for caring for that individual, I would want to
know that that individual is invested and they’re motivated to want to reunify with that
Licking County, Case No. 2020 CA 00072 9
individual on their own without me having to constantly pursue it.” Id. at 174. Inboden
added, “I mean, it’s not my norm to call somebody to ask them to take a – to take a child
on unless I have reason to believe that this is really something that they want to do.” Id.
Inboden admitted she had not asked Father for photographs or a virtual tour of the home.
When asked by counsel for Mother, Inboden stated an ICPC was never initiated or
completed.
{¶23} On cross-examination, Inboden stated Father’s last positive drug test was
in 2019. Inboden could not recall whether it had been an entire year or just several
months since Father’s last positive drug screen. Indoben was asked to read aloud the
screening impression of Father’s February, 2020 LAPP assessment. Inboden stated:
“Cannabis use disorder in full sustained remission is the diagnostic language that they
use. Methamphetamine use disorder, full sustained remission. Problem related to legal
circumstances.” Tr. Vol. II at 171-172. Inboden then read the recommendations and
treatment: “Complete abstinence from alcohol and all non-prescribed medication.
Regular urine and breathalyzer testing. Regular attendance at AA and NA if beneficial.
And complete the assessment process at this agency. NO further services are currently
indicated.” Id. At 172. Inboden acknowledged the assessment did not recommend
outpatient treatment. Inboden noted Father was typically only screened when he was in
Ohio, and conceded she had not asked for assistance with screening from any other
agency. Inboden admitted Father seemed bonded with the Child and she has no reason
to believe the Child would be unsafe with Father.
{¶24} The Guardian ad Litem, Scott Sidner, filed his report on June 29, 2020, and
a supplemental report on September 22, 2020, which was authored on September 21,
Licking County, Case No. 2020 CA 00072 10
2020. Sidner recommended permanent custody of the Child be granted to LCJFS. The
GAL expressed concerns about Father’s history of substance abuse and Father’s housing
situation, which he did not believe was stable. Sidner acknowledged he had not visited
Father’s home in North Carolina and had not requested funds to make the trip.
{¶25} Sidner observed Father and the Child during visitation. He noted the Child
gravitates toward Father, and believes Father and the Child have a bond. Sidner visited
the Child in his foster home. The Child is bonded with his foster parents. The Child has
been in the home for a substantial period of his short life. Sidner opined, other than
visitation, Father has not completed his case plan.
{¶26} Sidner was permitted to make a statement. He explained the trial court’s
July 22, 2019 Judgment Entry, granting permanent custody of the three older children to
LCJFS, acted as a “blueprint of what the Court was looking for, deficiencies and good
things, that could be used for [the Child’] case to show the parents as to what the Court’s
looking for, this is what needs to be done, and it just wasn’t done.” Tr. Vol. III at 201.
{¶27} In its July 22, 2019 Judgment Entry, which was admitted as State’s Exhibit
2, the trial court found Father “was aware of the requirement of the I.C.P.C. for placement
of the children out of state, be that with him or with his brother.” Id. at 4. The trial court
continued:
[Father] is residing in North Carolina. Pursuant to Article III(A)(1),
Interstate Compact for the Placement of Children (codified at Revised Code
5103.20, commonly called the I.C.P.C., a placement with [Father] would
need to meet the requirements of the I.C.P.C. The I.C.P.C. applies to cases
Licking County, Case No. 2020 CA 00072 11
involving ‘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 deprived as defined by the laws of the
sending state * * *.’ As such, the I.C.P.C. applies to this case. Article VI(A)
then states that ‘no child subject to this compact shall be placed into a
receiving state until approval for such placement is obtained.’ In Article
VI(B), the Compact states that if ‘the public child placing agency in the
receiving state does not approve the proposed placement then the child
shall not be placed.’ There is no approval from North Carolina for the
placement of the children with [Father].
Id. at 11.
{¶28} Father testified on his own behalf. He stated he had completed his drug
and alcohol, and mental health assessments. Based upon the recommendations, Father
believed he had completed those two case plan objectives. Father lived with his brother
and his family in a six-bedroom home in North Carolina. A bedroom is designated for the
Child. Although Father’s name is not on the lease, Father pays his brother $200/month
as rent. Father’s brother was unable to attend the hearing because he could not get the
time of from work. Father receives $1300/month in VA benefits. He also works 40
hours/week at Food Lion, a grocery store, and earns $14.28/hour. Father has a driver’s
license, owns a car, and maintains insurance on the vehicle.
{¶29} Father flies to Ohio bi-weekly for visits with the Child. He explained he flies
into Columbus, stays overnight in a hotel, then travels by bus to Newark for his visits.
Licking County, Case No. 2020 CA 00072 12
Father indicated he looks forward to the visits and the visits are “great.” He is bonded
with the Child. Father explained the expense of traveling to Ohio has prevented him from
obtaining his own housing. According to Father, he provided Inboden with his address
when he initially moved to North Carolina and subsequently with his current address
before she contacted his brother. Father testified he has not received any emails or
telephone calls requesting an address. Father also stated he was not asked to provide a
virtual tour of the home.
{¶30} Father denied having admitted during a previous hearing he was diagnosed
with post-traumatic stress disorder, but acknowledged he suffers from anxiety. Father
conceded he had a history of marijuana use, but denied ever using methamphetamines.
He stated he had not used alcohol since 2012, and denied telling LAPP during his 2017
drug and alcohol assessment he used alcohol on a weekly basis.
{¶31} The magistrate issued a decision on September 25, 2020, recommending
Father’s parental rights be terminated and permanent custody of the Child be granted to
LCJFS. The magistrate found, “As to [Father], his biggest impediment to placement at
the start was his residence in North Carolina. * * * this continued residence and the
absence of an approved I.C.P.C. home study remains the only real impediment in his
efforts to reunify with [the Child].” Id. at 5.
{¶32} Father filed objections to the Magistrate’s Decision on October 9, 2020.
LCJFS filed its response thereto on October 20, 2020. Via Judgment Entry filed October
29, 2020, the trial court overruled Father’s objections, and approved and adopted the
magistrate’s decision as order of the court.
Licking County, Case No. 2020 CA 00072 13
{¶33} It is from this judgment entry Father appeals, raising the following
assignments of error:
I. THE TRIAL COURT’S DECISION GRANTING PERMANENT
CUSTODY OF [THE CHILD] TO LCJFS IS NOT SUPPORTED BY CLEAR
AND CONVINCING EVIDENCE. LCJFS DID NOT PROVE THAT [THE
CHILD] CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT-
FATHER AND DID NOT PROVE THAT GRANTING THE PERMANENT
CUSTODY MOTION WAS IN THE CHILD’S BEST INTEREST. R. AT 107;
126.
II. LCJFS FAILED TO MAKE REASONABLE EFFORTS IN
REUNIFYING THE CHILD BECAUSE IT REFUSED TO CONDUCT AN
INTERSTATE COMPACT STUDY OF THE APPELLANT’S HOME IN
NORTH CAROLINA. R. 107; 126.
{¶34} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
II
{¶35} We elect to address Father’s second assignment of error first. Therein,
Father asserts LCJFS failed to make reasonable efforts in reunifying Father and the Child
because LCJFS refused to initiate an I.C.P.C. home study.
{¶36} Prior to an award of permanent custody to a public children services
agency, the trial court must determine whether the agency has made “reasonable efforts
Licking County, Case No. 2020 CA 00072 14
to prevent the removal of the child from the child's home, to eliminate the continued
removal of the child from the child's home, or to make it possible for the child to return
safely home.” R.C. 2151.419(A)(1).
{¶37} Although R.C. Chapter 2151 does not define “reasonable efforts,” courts
construe the term to mean “ ‘[t]he state's efforts to resolve the threat to the child before
removing the child or to permit the child to return home after the threat is removed[.]’ ” In
re T.B.-W., 9th Dist. Summit No. 27544, 2015-Ohio-992, ¶ 15, quoting In re C.F., 113
Ohio St.3d 73, 2017-Ohio-1104, ¶ 28, quoting Will L. Crossley, Defining Reasonable
Efforts: Demystifying the State's Burden Under Federal Child Protection Legislation, 12
B.U.Pub.Int.L.J. 259, 260 (2003). “In a reasonable efforts determination, the issue is not
whether the agency could have done more, but whether it did enough to satisfy the
reasonableness standard under the statute.” In re C.M., 9th Dist. Summit No. 24380,
2009-Ohio-943, ¶ 21 (Citation omitted).
{¶38} The Interstate Compact on the Placement of Children is a contract among
member states and U.S. territories authorizing them to work together to ensure children
who are placed across state lines for foster care or adoption receive adequate protection
and support services. See, R.C. 5103.20, Article I, Section (A)-(C). Article V of the
I.C.P.C. provides, “Prior to sending, bringing, or causing a child to be sent or brought into
a receiving state, the public child placing agency shall provide a written request for
assessment to the receiving state.” Id., Sec. (A). In addition, “[u]pon receipt of a request
from the public child welfare agency of the sending state, the receiving state shall initiate
an assessment of the proposed placement to determine its safety and suitability.” Id.,Licking County, Case No. 2020 CA 00072 15
Sec. (D). We note the statute appears to place the responsibility for requesting the
assessment on the public child placing agency, not on the parent.
{¶39} The parties direct this Court’s attention to three decisions which address the
I.C.P.C. and whether a children services agency used reasonable efforts to reunify the
parent and the child: In re Secrest, 2d Dist. Montgomery No. 19377, 2002-Ohio-7096; In
re: R.M., 2nd Dist. Montgomery No. 27318, 92 N.E.3d 382, 2017-Ohio-4325; and Matter
of G.O., 5th Dist. Licking No. 2019CA0037, 2019-Ohio-4547. While these decisions are
factually distinguishable from the matter before us, we, nonetheless, find them instructive.
We review each in turn.
{¶40} In In re Secrest, supra, the Second District Court of Appeals reversed the
trial court’s grant of permanent custody, holding the Montgomery County Children's
Services (“MCCS”) failed to make a reasonable effort to reunify Mother and her daughter.2
Id. at ¶¶20, 27.
{¶41} In April, 2000, the trial court adjudicated Mother’s children to be dependent
and awarded temporary custody to MCCS. Id. at ¶5. Pursuant to the case plan, Mother
was required to attend all medical, counseling, and educational appointments for the child
and to complete both a “parenting and psychological assessment.” Id. In September,
2000, Mother moved to Pennsylvania and married. Id. at ¶6. She contacted a social
worker in her county regarding transferring the children to Pennsylvania. Id. A
Pennsylvania social worker informed MCCS Mother's home in Pennsylvania was “nice”
and “clean.” Id. Mother's husband was employed and Mother was financially able to stay
2 Although there were three children subject to MCCS’s complaint, the appeal addressed only one child.
Licking County, Case No. 2020 CA 00072 16
at home. Id. MCCS refused to transfer the case, instead requesting Mother to return to
Ohio and complete her case plan. Id. at ¶7.
{¶42} MCCS filed motions for permanent custody of the children on November 29,
2000. Id. at ¶8. Following hearings in April and October, 2001, the magistrate
recommended permanent custody of two of the children be awarded to MCCS. Id. The
magistrate recommended the third child be placed in a permanent planned living
arrangement. Id. Mother filed objections to the magistrate's decision, which the trial court
overruled. Id.
{¶43} On appeal, Mother argued “the trial court erred in granting permanent
custody to MCCS because the agency failed to make a reasonable attempt to reunify the
family.” Id. at ¶11. The Second District Court of Appeals found the record did not
demonstrate Pennsylvania would not have accepted the transfer of the case, and it
appeared a transfer would be possible under the I.C.P.C. Id. at ¶19. The Court noted
“MCCS did not seriously consider the possibility of transferring the case, and did not
pursue that option. Instead, it appears that MCCS determined that because [Mother] had
failed to travel to Ohio to comply with the case plan, it would not attempt to seek any
alternative avenues aimed at reunification.” Id. The Court concluded, “by failing to give
serious consideration to this possibility [of transferring the case to Pennsylvania], MCCS
failed to make a reasonable effort to reunify the family,” and the record did not support
the trial court’s finding MCCS made a reasonable attempt to reunify the family. Id. at ¶
20.
Licking County, Case No. 2020 CA 00072 17
{¶44} Next, in In re: R.M., supra, the Second District Court of Appeals found the
trial court properly determined transferring foster care of the child, who had special needs,
closer to Father's residence in New York was not in the child's best interest. Id. at ¶55.
{¶45} R.M. was born in September, 2013, at 32 gestational weeks. The newborn
had brain and kidney problems, was on a ventilator, and had a feeding tube. Id. at ¶2.
R.M. was placed in the custody of MCCS following his discharge from the hospital. Id.
Parents were making progress on their case plan objectives and temporary custody was
extended. Id. at ¶6. In December, 2014, Parents contacted MCCS and advised they had
moved out of state to live with a relative and look for work.3 Id. at ¶8. Parents stated they
intended to return to Ohio in two months. Id. When MCCS’s subsequent attempts to
contact Parents were unsuccessful, the Agency moved for a second extension, indicating
Parents’ whereabouts were unknown. Id. at ¶8-9. MCCS moved for permanent custody
on July 22, 2015. Id. at ¶10. In the affidavit in support, MCCS averred phone contact was
finally made with Parents in July, 2015; Parents were living in New York; and Parents
provided MCCS with proof of housing, income, and benefits. Id. MCCS requested New
York complete an interstate home study to determine if Parents' home was appropriate
for R.M. Id.
{¶46} Counsel for Father filed a Motion to Transfer Foster Care on September 22,
2015. Id. at ¶11. MCCS filed an amended motion for permanent custody on September
24, 2015. Id. The trial court scheduled a hearing on the motion for November 9, 2015.
Id. Father did not appear at the hearing on the motion for permanent custody. Id. at ¶12.
3 There was confusion as to whether Parents moved to Virginia or Georgia.
Licking County, Case No. 2020 CA 00072 18
{¶47} At the hearing on the motion for permanent custody, evidence was
presented relative to Father’s motion to transfer foster care. The magistrate overruled
the motion, noting “[t]his decision is being made in the best interest of the child, as the
child has had his primary needs met in the last few years by this current foster placement
and he needs continuity of care.” Id. at ¶ 21. The magistrate continued with evidence
relative to the permanent custody portion of the hearing, and ultimately recommended
permanent custody be granted to MCCS. Id. at ¶ 31. Father filed objections to the
magistrate’s decision, which the trial court overruled. Id. at ¶¶ 34, 39.
{¶48} On appeal, Father argued the trial court erred in granting permanent
custody to MCCS as the agency failed to make reasonable efforts to reunify the family by
refusing to transfer the case. Id. at ¶ 42. Father relied upon Secrest, supra, in support
of his position. Id. at ¶46. The Court distinguished Secrest, noting the mother therein
was bonded with her children unlike R.M., who did know his parents and did not have a
bond with them. Id. at ¶50. The child had been placed in foster care in September 2013,
when he was one month old. Id. at ¶ 51. Unlike the Secrest mother, who sought the
transfer of her children at the time of her move to Pennsylvania, Father did not file his
motion to transfer until September 22, 2015, after the parents had been out of state for
nine months, and after MCCS sought permanent custody following two extensions of
temporary custody. Id.
{¶49} In overruling Father’s assignment of error, the Second District noted the
comprehensive efforts demonstrated by MCCS to provide services; Father's inability to
maintain a bond with R.M. and support the child in the nine months leading up to Father's
Licking County, Case No. 2020 CA 00072 19
motion to transfer, despite being repeatedly advised of the importance to do so; and the
testimony R.M. was thriving in foster care. Id. at ¶55.
{¶50} Third, in Matter of G.O., supra, this Court determined the Licking County
Department of Jobs and Family Services made reasonable efforts to reunite Mother with
her child despite LCJFS’s failure to request an I.C.P.C. home study from the state of
California, where Mother was residing. This Court specifically found the failure of LCJFS
to initiate an I.C.P.C. home study was harmless as the outcome would not have changed
given the facts of the case. Id. at ¶45.
{¶51} G.O. was a child with special needs. Id. at ¶13. Grandfather was given
legal custody of G.O. in 2009, when the child was a year old, due to Mother’s alcohol and
drug abuse. Id. at ¶2. In December 2009, Mother moved to California. Id. at ¶6. Mother
did not seek transfer at the time she moved to California. Id. at ¶48. In 2017, when
Grandfather was no longer able to care for G.O., LCJFS filed a complaint alleging G.O.
was a dependent child. Id. at ¶3. The trial court found G.O. to be a dependent child. Id.
Mother did not appear for the adjudicatory hearing. On July 13, 2018, LCJFS filed a
Motion for Permanent Custody. Id. at ¶4. At that point, Mother had not seen G.O. since
a short visit in 2013. Id. at ¶6. Mother filed a motion for legal custody or, in the alternative,
an extension of time to continue working on her case plan on October 1, 2018. Id. at ¶4.
{¶52} Mother did not begin engaging in her case plan services until after LCJFS
filed the motion for permanent custody. Id. at 18. Mother never sought custody or
visitation of G.O. in the Licking County Court of Common Pleas, Juvenile Division, at any
time prior to the filing of the motion for permanent custody. Id. at ¶46.
Licking County, Case No. 2020 CA 00072 20
{¶53} The magistrate issued a decision on March 13, 2019, recommending
permanent custody of G.O. be granted to LCJFS. Id. at ¶22. On the same day, Mother
filed a motion to commence an I.C.P.C., requesting the trial court order LCJFS to
commence and cooperate with the receiving state, California, for potential placement of
G.O. with Mother. Id. at ¶24. The trial court denied the motion as untimely as such was
filed after permanent custody had been granted, adding an I.C.P.C. is not required if the
Agency does not plan to place the child out-of-state. Id. at ¶25.
{¶54} On appeal, Mother argued, inter alia, LCJFS failed to make reasonable
efforts to reunify the family because it refused to conduct an I.C.P.C. study of Mother’s
home in California. Id. at ¶29. Mother relied upon Secrest, supra, in support of her
position. Id. at ¶48.
{¶55} This Court found Secrest, supra, was distinguishable, noting there was no
evidence presented to establish California would have accepted a transfer of the case.
Id. Further, there was no evidence G.O. was bonded to Mother. Id. After Mother lost
custody in 2009, she moved to California in 2010, and had no face-to-face or telephone
contact with G.O. Id. at ¶49. Unlike the mother in Secrest, supra, Mother did not seek
transfer at the time she moved to California.
{¶56} This Court concluded the trial court’s finding LCJFS made reasonable
efforts at reunification was supported by clear and convincing evidence. Id. at ¶57. We
further noted, “[a]lthough LCJFS could have made a referral for an ICPC, the record
establishes by clear and convincing evidence that Appellant-mother could not manage
the complex and special needs of G.O.” Id.
Licking County, Case No. 2020 CA 00072 21
{¶57} We now address the matter before this Court in light of these decisions.
Unlike the parents in In re: Secrest, supra, In re: R.M., supra, and In re: G.O., supra,Father engaged in his case plan services and, despite living in another state, attended all
scheduled visitation with the Child. The Child was happy to see Father and gravitated
towards him at visitation. Father’s visits with the Child “go really well.” July 6, 2020 Tr.
at 28. Father is appropriate and engaged. Although the Child appears happy to see
Father, Inboden would not go so far to say the Child is bonded with Father. The GAL,
however, did acknowledge the Child was bonded with Father.
{¶58} In his September 25, 2020 decision, the magistrate found:
The biggest issue for [Father] is there is no home study from North
Carolina for [Father]. Ms. Inboden testified that at one point in 2018, she
contacted [Father] and asked if she could speak with his brother about the
case. She then spoke with the brother, who was hesitant when Ms. Inboden
asked about having a study done of his home. He indicated he would call
Ms. Inboden back and he never did. Ms. Inboden testified that shortly after
this call, she received a call from [Father], who was very upset about her
speaking with his brother about the case and the home study. Given all of
this, Ms. Inboden and Children Services did not initiate a request for a home
study under the Interstate Compact for the Placement of Children. * * * As
to [Father], his biggest impediment to placement at the start was his
residence in North Carolina. * * * this continued residence and the absence
Licking County, Case No. 2020 CA 00072 22
of an approved I.C.P.C. home study remain the only real impediment in his
efforts to reunify with [the Child].
* * * the undersigned was highly persuaded by the testimony of Mr.
Sidner, when he described how the decision filed in the summer of 2019 on
the siblings case provided a blue print for [Father] to seek an I.C.P.C. home
study in order to pursue reunification. [Father] did nothing to pursue a home
study until the first day of this hearing had ended. This was two years after
[the Child] had been placed in care. As the undersigned wrote in the
decision regarding that motion for an I.C.P.C. home study, such a home
study would delay this case for months. This case began on July 2, 2018,
so it is already beyond the two-year mark, due in no small part to the
COVID-19 pandemic. [Father] waited too long by asking in 2020 to do what
Ms. Inboden had tried to start in 2018.
Id. at 4-6.
{¶59} The magistrate made it abundantly clear, the “biggest impediment to
placement” of the Child with Father was the lack of an approved I.C.P.C. home study.
Father advised LCJFS he was living in North Carolina with his brother in June, 2018, at
the start of the case. Although unclear as to when, Father’s attorney advised Inboden
Father’s brother was interested in being considered as a potential placement option for
the Child. Inboden made a single attempt to speak with Father’s brother in September,
2019. When questioned about why she did not inquire further, Inboden explained she
“wanted to know that that individual is invested and they’re motivated to want to reunify
Licking County, Case No. 2020 CA 00072 23
with that individual on their own without me having to constantly pursue it.” Tr. Vol. III at
174. (Emphasis added). Inboden conceded she never initiated an I.C.P.C. Likewise,
McCullough made no attempt at all to contact Father’s brother or initiate a home study.
{¶60} The burden is on LCJFS to make reasonable efforts to reunify the family.
The burden is not on Father. Yet, the trial court and LCJFS shifted the burden to Father.
Although Father may not have made a formal request for an I.C.P.C. home study until
after the permanent custody hearing commenced, his actions from the beginning of the
case revealed his desire to be reunified with the Child.
{¶61} We do not intend by this Opinion to require North Carolina to approve
Father’s home. However, we find, by failing to consider this possibility, LCJFS failed to
make a reasonable effort to reunify the Child with Father. We conclude the record before
us does not support the trial court’s finding LCJFS made a reasonable attempt to reunify
Father and the Child.
{¶62} Father’s second assignment of error is sustained.
I
{¶63} In light of our disposition of Father’s second assignment of error, we find his
first assignment of error to be premature.
Licking County, Case No. 2020 CA 00072 24
{¶64} The judgment of the Licking County Court of Common Pleas, Juvenile
Division, is vacated and the matter remanded in order for LCJFS to initiate an I.C.P.C.
home study with the appropriate agency in the state of North Carolina.
By: Hoffman, J.
Delaney, J. and
Wise, Earle, J. concur