In re of A.G. , 2024 Ohio 2136 ( 2024 )

[Cite as In re of A.G., 2024-Ohio-2136.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
No. 23AP-55
[A.G., : (C.P.C. No. 19JU-4406)
B.G., Mother, : (REGULAR CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on June 4, 2024
On brief: Yeura R. Venters, Public Defender, and Timothy E.
Pierce, for appellant. Argued: Timothy E. Pierce.
On brief: Robert J. McClaren, for appellee, Franklin County
Children Services. Argued: Robert J. McClaren.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
MENTEL, P.J.
{¶ 1} Appellant, B.G., mother of A.G., appeals the judgment of the Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch (“juvenile court”)
granting the motion for permanent custody of A.G. filed by Franklin County Children
Services (“FCCS”). For the following reasons, we reverse and remand this matter to the
juvenile court.
I. Factual and Procedural Background
{¶ 2} On April 11, 2019, FCCS filed a complaint in the juvenile court alleging that
A.G. was a neglected child under R.C. 2151.03(A)(2) and a dependent child under R.C.
2151.04(C). FCCS stated that it had received a report that B.G. had brought A.G. to the
emergency room at Nationwide Children’s Hospital because she had blood in her urine,
stool, and vomit. A.G. had been hospitalized twice before for similar reasons. B.G. alleged
that her daughter had “been having episodes of not breathing at home.” (Apr. 11, 2019
No. 23AP-55 2
Compl. at 1.) However, hospital personnel believed that B.G. was “fabricating” her
daughter’s symptoms. They had concerns that B.G.’s insufficient bottle feeding of A.G. put
her “at risk for malnutrition” and her “weight [was not] progressing appropriately.” Id.FCCS alleged that B.G. could not financially support her daughter and suffered from
“significant mental health issues” that remained untreated. Id. at 2. B.G. had reported that
she was a victim of human trafficking, having been abducted, transported to Colorado, and
kept in a basement until she escaped and returned to live with her father in Columbus. Id.
FCCS claimed that B.G. had not followed through with a number of services the agency had
provided or referred her to. Id. The complaint alleged that B.G. and her father had been
evicted several days before, and that he had physically assaulted B.G in front of A.G. Id.
Citing B.G.’s “inability to provide for the basic needs” of her daughter, FCCS sought an order
of temporary custody. Id.
{¶ 3} At the temporary custody hearing, the magistrate asked B.G. if she had “any
Indian in your background, American Indian in your background?” (Apr. 12, 2019 Tr. at
4.) B.G. replied: “I don’t think so.” Id. In the order granting the motion for temporary
custody, the magistrate noted, “No ICWA,” with apparent reference to the Indian Child
Welfare Act (“ICWA”), 25 U.S.C. 1901 et seq. (Apr. 12, 2019 Mag.’s Order at 1.)
{¶ 4} The magistrate held a hearing on the complaint on July 9, 2019, at which time
FCCS requested dismissal of the charge of neglect and stated that the dependency charge
was uncontested. (Aug. 26, 2019 Mag.’s Decision at 1.) B.G. did not appear at the hearing.
Id. Finding the “facts as alleged in the complaint” to be “uncontested,” the magistrate found
A.G. to be a dependent child under R.C. 2151.04(C), terminated the original temporary
custody order, and committed A.G. to temporary court custody under R.C. 2151.353(A)(2).
Id. at 1-2. The magistrate also adopted the case plan as an order of the court and ordered
B.G. to complete it, along with parenting classes. Id. at 2. The juvenile court adopted the
magistrate’s decision and entered it as a judgment of the court. (Aug. 26, 2019 Jgmt.
Entry.)
{¶ 5} Eleven months later, the magistrate extended the order of temporary court
custody and adopted FCCS’s amended case plan. (July 28, 2020 Mag.’s Decision at 1.)
No. 23AP-55 3
B.G.’s attorney attended the hearing, but she did not. Id. The juvenile court adopted this
order as a judgment of the court. (July 28, 2020 Jgmt. Entry.)
{¶ 6} In a court review of A.G.’s placement entered on September 29, 2020, the
juvenile court concluded that FCCS had “made reasonable efforts to finalize permanency
planning” for A.G under R.C. 2151.417. (Sept. 29, 2010 Findings of Fact and Conclusions
of Law at 1.) The juvenile court found that A.G. had been in the custody of FCCS since
April 12, 2019, and that the agency had asked B.G. to visit her “on a consistent basis.” Id.
FCCS had also asked her to submit to random drug testing and a mental health assessment.
Id. However, B.G. had “not visited the child since May 2019” because she had “moved out
of state and has not returned.” Id. B.G. had “not completed any case plan services”
developed by FCCS. Id.
{¶ 7} The same day, FCCS filed a motion for permanent custody. In support of the
motion, FCCS stated that A.G. had been in foster care since the first temporary custody
order on April 12, 2019, where she was “doing well.” (Sept. 29, 2020 Mot. for Permanent
Custody at 4.) FCCS alleged that B.G. had not submitted to a mental health assessment or
participated in any drug screens, and had “not engaged in any case plan services
whatsoever.” Id. at 5. According to the agency, B.G. had “moved to Colorado in January
2020,” did not visit A.G., and was “not working on her case plan objectives toward
reunification.” Id. FCCS had never had contact with A.G.’s father. Id. FCCS argued that
B.G.’s abandonment of A.G., her refusal to complete the case plan, and the fifteen months
that A.G. had been in the agency’s custody all demonstrated that granting permanent
custody to it was in A.G.’s best interest. Id. at 6-7.
{¶ 8} A hearing on the motion for permanent custody was originally scheduled for
January 12, 2012. (Oct. 5, 2020 Notice of Hearing.) However, the hearing was continued
multiple times. At first, the continuances occurred because B.G. could not be served, and
her attorney accepted service of the motion on her behalf. (Jan. 13, 2021 Mot. for
Continuance & Entry; Feb. 24, 2021 Mot. for Continuance & Entry.) The hearing was
subsequently continued five times because B.G. was either unwell enough to travel from
Colorado to Ohio for the proceeding, or was “unavailable.” (Aug. 25, 2021 Mot. for
Continuance & Entry; Nov. 4, 2021 Mot. for Continuance & Entry; Apr. 6, 2022 Mot. for
No. 23AP-55 4
Continuance & Entry; Apr. 25, 2022 Mot. for Continuance & Entry; May 13, 2022 Mot. for
Continuance & Entry.) On November 7, 2022, the juvenile court finally commenced a
three-day trial on the motion for permanent custody.1
{¶ 9} FCCS called Juanita Ramsey as witness, a caseworker and child protection
specialist who became involved with the case when A.G. was hospitalized. She testified
about the case plan requirements, which included: completing a parenting class, a mental
health assessment, and random drug tests, as well as obtaining stable housing and
“verifiable income in order to take care of the child.” (Nov. 7, 2022 Tr. at 38.) On cross-
examination, Ms. Ramsey was shown a document stating that B.G. had completed a
parenting class on October 15, 2019. (Nov. 8, 2022 Tr. at 24.)
{¶ 10} The case plan also required B.G. to meet with Ms. Ramsey “at least once every
30 days,” and she was allowed to visit A.G. “at least” on a weekly basis. (Nov. 7, 2022 Tr. at
39.) Ms. Ramsey offered B.G. bus passes and rides to the drug testing facility, “but she
refused.” Id. at 44. B.G. did not complete any drug testing. Id. She subsequently moved to
Lima, Bowling Green, Tulsa, Seattle, and Colorado. Id. at 42. Ms. Ramsey attempted to
refer B.G. to drug testing in Colorado, including transportation to complete it, but she
refused to go. Id. at 44-45. B.G. did send a lease agreement for the Colorado apartment,
but refused to let Ms. Ramsey see the home over video chats when asked. Id. at 46-47.
After giving birth to A.G. and leaving Ohio, B.G. had three additional children. Id. at 46.
Ms. Ramsey sent B.G. a physical copy of the case plan, but it was returned through the mail.
Id. at 49. Their contact was “very sporadic,” as B.G. would often not respond to Ms.
Ramsey’s texts or emails asking to set up video chats. Id. at 48-49.
{¶ 11} When B.G. was still in Ohio, she was to have weekly visits with A.G., but only
participated in one in-person visit there. Id. at 50-51. Ms. Ramsey observed one virtual
visit between B.G. and A.G. in December of 2020, during which A.G. refused to call B.G.
“mom.” Id. at 52-53. Ms. Ramsey worked on the case from April 2019 until 2021, during
which time she observed two video visits between B.G. and A.G. (Nov. 8, 2022 Tr. at 42.)
1 B.G. did not travel from Colorado to attend the trial. Court was delayed the first day for several hours to
give her the opportunity to participate via Zoom, but it is not apparent from the transcript when or if she
logged on that day. (See Nov. 7, 2022 Tr. at 3-18.)
No. 23AP-55 5
{¶ 12} Ms. Ramsey testified that A.G. and her foster mother have “a very unique
bond,” describing A.G. as an openly affectionate child who “would tell her [foster mother]
how much she loved her all the time” and “giver her hugs” during Ms. Ramsey’s visits.
(Nov. 7, 2022 Tr. at 57.) A.G.’s foster mother at first “consistently stated that she would like
to see” A.G. return to B.G. because she “felt really bad” for B.G. Id. Ms. Ramsey opined
that the passage of time and the lack of communication from B.G. changed the foster
mother’s feelings, who wanted what was best for A.G. Id.
{¶ 13} FCCS also called Grace Davis, the caseworker who took over for Ms. Ramsey
after she left her position. Ms. Davis reviewed the case plan with B.G. on October 25, 2021.
(Nov. 8, 2022 Tr. at 60.) The agency was never able to locate A.G.’s putative father. Id. at
61. Like Ms. Ramsey, Ms. Davis testified that B.G. refused to take a drug test. Id. at 64.
B.G. “claimed to have completed a mental health assessment” at an organization in
Colorado, but Ms. Davis “never was provided with a copy of that assessment.” Id. at 65.
She did receive a copy of B.G.’s Colorado apartment lease and “documentation for roughly
$700 of income a month.” Id. at 68. B.G. claimed to have pulmonary embolism and blood
clots, but did not provide a medical release when Ms. Davis asked for one. Id. at 69. B.G.
blamed her physical condition, which she claimed required her to have a “medical caregiver
to ensure that she remained conscious,” on her inability to travel and participate in the case.
Id. at 70. However, she did not provide any medical documentation of this requirement to
Ms. Davis. Id.
{¶ 14} Ms. Davis observed “three to four” virtual visitations between B.G. and A.G.
Id. at 74. A.G. “didn’t really interact” with B.G. during the hourlong visits, two of which
B.G. stopped after 30-45 minutes. Id. A.G. “never referred” to B.G. as her mother during
the visits. Id. at 75. Ms. Davis observed A.G. as “very bonded” with her foster mother during
her observational visits. Id. at 77.
{¶ 15} FCCS also called Lisa Blackford, the caseworker assigned to A.G.’s case. She
discussed the case plan twice with B.G., and then again in “numerous emails.” Id. at 106.
Ms. Blackford communicated to B.G. that “the most important thing” was that she complete
the mental health assessment and treatment, but B.G. “would not discuss it any further.”
No. 23AP-55 6
Id. at 107. Like the other caseworkers, she testified that B.G. never completed any drug
testing. Id. at 108.
{¶ 16} Ms. Blackford testified that she had examined the parenting class certificate
presented during Ms. Ramsey’s cross-examination and had concerns about its validity
because it was a “self-referral,” which required verification. Id. at 109. When she asked
B.G. for information about the provider, B.G. responded that she had already provided the
information and did not say where the class had taken place. Id. at 109-10.
{¶ 17} According to Ms. Blackford, she and B.G. communicated by email “two to
three times a month.” Id. at 110. Ms. Blackford obtained approval for B.G. to fly to
Columbus to attend court hearings, as well as her medical caregiver: “I said we would
purchase * * * flights for whoever was necessary and provide lodging, money for food
assistance, in order for her to be able to attend the hearings.” Id. at 111. She made the offer
“[a]t least twice, with one flight being purchased that [was] not used.” Id. B.G.’s
explanation was that she was unable to travel because of her medical conditions. Id.
{¶ 18} In late 2021, FCCS attempted to initiate a remote home study via the
Interstate Compact on the Placement of Children (“ICPC”), but the receiving agency in
Colorado “would not initiate the request due to case plan compliance.” Id. at 113-14.
According to Ms. Blackford, 80 percent of the case plan would have to have been completed
for the out-of-state agency to accept the request. Id.
{¶ 19} Ms. Blackford described the online visitation between B.G. and A.G. as
inconsistent. Id. at 115. Although B.G. was offered weekly visits, “[o]ne month she might
attend one, next month she might attend two.” Id. During the case, there were “gaps of
three to four months without logging in.” Id. The visits that Ms. Blackford observed were
“very short.” Id. B.G. “did not say a lot” to A.G. or the foster mother, “and then it would
end” after 20 to 25 minutes. Id. at 115-16. After observing A.G. during four in-home visits,
Ms. Blackford described the child as bonded and attached to her foster mother. Id.
{¶ 20} Foster mother, M.L., also testified. FCCS had placed A.G. in her home in
April of 2019. Id. at 133. Ms. Ramsey asked M.L. to set up weekly video visits between B.G.
and A.G. in September of 2020. Id. at 134-35. M.L. described B.G.’s attendance of the visits
as “sporadic.” Id. at 136. Since 2021, there had been three 30-day periods of no visits by
No. 23AP-55 7
B.G. Id. at 142. According to M.L., there had “only been six calls in the last year.” Id. B.G.
did not inform M.L. when she would not be participating in the scheduled visits. Id.
{¶ 21} M.L. described “a lack of engagement” during the visits. Id. B.G. mainly
directed her questions about A.G. to M.L. Id. A.G. “wouldn’t respond” to questions from
B.G., and it was up to M.L. “to guide [A.G.] to try and respond and answer her questions.”
Id. at 142-43. A.G. never addressed B.G. or appeared to know who she was. Id. at 143.
{¶ 22} M.L. testified that A.G. had turned four the week before trial. Id. at 145. She
attends Head Start during the day, after which she helps M.L. cook dinner. Id. at 145-46.
After dinner, A.G. has playtime before bed. Id. at 146. A.G. also attends gym and swim
classes. Id. M.L. stated that she and A.G. are “really bonded.” Id. A.G. shares her emotions
with M.L., whether she is sad, excited, or proud of an accomplishment. Id. In addition,
A.G. is “incredibly close” with all of M.L.’s family. Id. M.L.’s parents attend A.G.’s gym and
swim classes, as well as eat dinner with them “several times a week.” Id. at 146-47. A.G.’s
best friend is M.L.’s five-year-old niece. Id. at 147. M.L. stated that she “[a]bsolutely” would
be interested in adopting A.G. Id. at 148. If that happened, M.L. “wouldn’t deny [B.G.] any
contact or being able to reach out to [A.G.] at any time.” Id. at 150.
{¶ 23} The final witness was Scott Sidner, A.G.’s guardian ad litem. He testified that
he had recently communicated with B.G. via Zoom and had been able to email her. Id. at
167. Mr. Sidner had observed B.G. over Zoom and seen her other three children, one of
which was an infant. Id. at 168. B.G. provided him with information about her medical
conditions, including complications from a C-section. Id. at 168-69. She also showed her
home to him over the video call, which appeared to be “a rectangular shaped townhome” of
modest size. Id. at 169. The home was furnished, including a “bunkbed combination” with
a third bed for A.G. in the children’s bedroom. Id. at 171. The kitchen had food in the
refrigerator and the apartment had a laundry room. Id. at 170. B.G. told Mr. Sidner that
she lived alone with two girls and a baby, and that her fiancé had his own apartment. Id. at
172.
{¶ 24} Mr. Sidner believed that he had observed somewhere between eight to twelve
visits, but only one between B.G. and A.G. Id. at 175-76. He described their interaction as
“appropriate.” B.G. mainly talked about “doctor visits” and herself, but “to her credit she
No. 23AP-55 8
was trying to interact with” A.G. by asking her what she was playing. Id. at 177-78. A.G.
did not initiate conversation with B.G. Id. at 178.
{¶ 25} Mr. Sidner was able to observe A.G. at Head Start, where she played with
other children and worked on numbers. Id. at 179-80. A.G.’s teacher reported that “she
does well with everything.” Mr. Sidner also visited the foster home multiple times, both
over video and in person. Id. at 181-82. He described the relationship between M.L. and
A.G. as “loving,” “very bonded,” and “respectful.” Id. at 182. Although A.G. was “very
bright,” she was only four and did not understand the permanent custody proceeding. Id.
at 183. He asked her privately who she would like to live with “forever,” and “she said she
wats to live with mommy,” meaning M.L. Id. Mr. Sidner believed that it was in her best
interest to grant FCCS’s motion for permanent custody. Id. at 182-83.
{¶ 26} The juvenile court granted the motion on December 30, 2022. In its decision,
it discussed FCCS’s reasonable efforts at reunification at length and determined that they
were adequate. However, its discussion omitted any mention of the statutory basis for
making the determination. (See Dec. 30, 2022 Decision & Jgmt. Entry at 6-8.)
{¶ 27} B.G. appealed and asserts the following assignments of error:
[I.] The lower court’s decision terminating Mother-Appellant’s
right to parent her child [A.G.] in 19JU-4406 was not founded
on sufficient evidence and ran against the manifest weight of
the evidence.
[II.] The lower court plainly erred when it terminated Mother-
Appellant’s constitutional and statutory right to parent her
child [A.G.] without determining the county children service
agency proved by clear and convincing evidence that the agency
had engaged in reasonable efforts to prevent the removal of
[A.G.] from Mother-Appellant, eliminate the continued
removal of [A.G.] from Mother-Appellant, or make it possible
for [A.G.] to return safely home to Mother Appellant.
[III.] The lower court plainly erred when it failed to comply
with the Indian Child Welfare Act (ICWA) in the proceedings
below.
II. Standard of Review
{¶ 28} Our review of the second and third assignments of error involve questions of
law, which we review de novo. E.g., Ohio v. Towns, 170 Ohio St.3d 50, 2022-Ohio-3632,
No. 23AP-55 9
¶ 9. And although appellate review of a judgment awarding permanent custody is affirmed
unless it is against the manifest weight of the evidence, for the reasons discussed below, we
will not reach the first assignment of error and review the juvenile court’s decision at this
time because of the necessity of remand. E.g., In re A.L., 10th Dist. No. 15AP-1040, 2016-
Ohio-3189, ¶ 18 (stating standard of review in permanent custody cases).
III. Second Assignment of Error
{¶ 29} We begin with the second assignment of error, in which B.G. challenges the
reasonable efforts determination of the juvenile court. B.G. argues that the juvenile court
“erred when it ruled the agency had demonstrated reasonable efforts for reunification
between Mother and child.” (Brief of Appellant at 47.) Anticipating that FCCS “will argue
the reasonable efforts determination was not required,” she explains as follows why she
believes this position to be “incorrect.” Id. FCCS filed the motion for permanent custody
under R.C. 2151.413, and “R.C. 2151.413(D)(3)(b) indicates the agency shall not file a PCC
motion if the agency (when required) has not complied with R.C. 2151.419,” the statute
governing how the court determines if a children services agency has made reasonable
efforts at reunification. Id. “R.C. 2151.419(A)(1) references instances where reasonable
efforts must be demonstrated, including permanent custody hearings per R.C.
2151.353(A)(4),” she asserts. Id. Thus, B.G. believes that the juvenile court properly
addressed the reasonable efforts determination, although she disagrees with its conclusion.
{¶ 30} To the extent that B.G.’s argument implies that FCCS was precluded from
filing a motion for permanent custody under R.C. 2151.413(D)(3)(b), we must clarify that
this was not the case. That provision states: “An agency shall not file a motion for
permanent custody under division (D)(1) or (2) of this section if any of” a number of factors
apply, including the following: “If reasonable efforts to return the child to the child’s home
are required under section 2151.419 of the Revised Code, the agency has not provided the
services required by the case plan to the parents of the child or the child to ensure the safe
return of the child to the child’s home.” R.C. 2151.413(D)(3)(b).
{¶ 31} Here, the juvenile court made multiple determinations that the agency had
engaged in reasonable efforts at reunification during the pendency of the case. (See Apr. 12,
2019 Findings of Fact & Conclusions of Law (citing B.G.’s refusal of services offered when
No. 23AP-55 10
determining FCCS had “made reasonable efforts to prevent the continued removal” of
A.G.); July 28, 2020 Jgmt. Entry (finding that “[r]easonable efforts [had] been made to
finalize the permanency plan in effect for the child” when granting motion to extend
temporary custody under R.C. 2151.415(D)(1)); Sept. 29, 2020 Findings of Fact &
Conclusions of Law (concluding that FCCS had “made reasonable efforts to finalize
permanency planning” for A.G when conducting placement review under R.C. 2151.417).)
In addition, when adjudicating A.G. a dependent child, the magistrate determined that
“reasonable efforts [had] been made to prevent or eliminate the need for removal of [A.G.]
from the child’s own home.” (Aug. 26, 2019 Mag.’s Decision at 1.) B.G. did not appeal from
the juvenile court’s judgment adopting the dependency adjudication with this finding,
which was a final appealable order. In re Murray, 52 Ohio St.3d 155 (1990), syllabus
(holding that “[a]n adjudication by a juvenile court that a child is * * * ‘dependent’ as
defined in R.C. Chapter 2151 followed by a disposition awarding temporary custody to a
public children services agency pursuant to R.C. 2151.353 (A)(2) constitutes a ‘final order’
* * * and is appealable to the court of appeals”). Because the juvenile court complied with
its duty under R.C. 2151.419 to make reasonable efforts determinations at successive
dispositional proceedings as this case progressed, R.C. 2151.413(D)(3)(b) did not prohibit
FCCS from filing the motion for permanent custody.
{¶ 32} We also emphasize that B.G.’s assertion that “R.C. 2151.419(A)(1) references
instances where reasonable efforts must be demonstrated, including permanent custody
hearings per R.C. 2151.353(A)(4),” is incorrect. (Brief of Appellant at 47.) While R.C.
2151.419(A)(1) does enumerate the proceedings in which a juvenile court must make a
reasonable efforts determination, the provision does not include or “reference” permanent
custody proceedings, which are governed by R.C. 2151.413 and 2151.414:
Except as provided in division (A)(2) of this section, at any
hearing held pursuant to section 2151.28, division (E)
of section 2151.31, or section 2151.314, 2151.33, or 2151.353 of
the Revised Code at which the court removes a child from the
child’s home or continues the removal of a child from the
child’s home, the court shall determine whether the public
children services agency or private child placing agency that
filed the complaint in the case, removed the child from home,
has custody of the child, or will be given custody of the child has
No. 23AP-55 11
made reasonable efforts to prevent the removal of the child
from the child’s home, to eliminate the continued removal of
the child from the child’s home, or to make it possible for the
child to return safely home.
R.C. 2151.419(A)(1).
{¶ 33} The sections listed in R.C. 2151.419(A)(1) “involve adjudicatory, emergency,
detention, and temporary-disposition hearings, and dispositional hearings for abused,
neglected, or dependent children, all of which occur prior to a decision transferring
permanent custody to the state.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 41.
“Because this statute makes no reference to a hearing on a permanent custody motion, it
does not apply to motions for permanent custody brought pursuant to R.C. 2151.413, or to
hearings held on such motions pursuant to R.C. 2151.414.” In re A.P., 10th Dist. No. 23AP-
253, 2024-Ohio-741, ¶ 58. The Supreme Court of Ohio has stated unequivocally that “R.C.
2151.419(A)(1) does not apply in a hearing on a motion for permanent custody filed
pursuant to R.C. 2151.413.” In re C.F. at ¶ 43. The court recognizes only the following
exception: “If the agency has not established that reasonable efforts have been made prior
to the hearing on a motion for permanent custody, then it must demonstrate such efforts
at that time.” Id. This exception does not apply here because, as discussed, the juvenile
court addressed the reasonable efforts on multiple occasions before FCCS filed the motion
for permanent custody.
{¶ 34} Among the five types of hearings listed where a juvenile court must make a
reasonable efforts determination, R.C. 2151.419(A)(1) identifies R.C. 2151.353, an
adjudication of a child as abused, neglected, or dependent. The latter statute lists six types
of dispositional orders that “the court may make” after adjudicating a child as abused,
neglected, or dependent. R.C. 2151.353. One of the six, as stated in R.C. 2151.353(A)(4), is
a permanent custody determination under R.C. 2151.414. This reference to a permanent
custody proceeding has no relevance to a reasonable efforts determination. Because R.C.
2151.419(A)(1) does not include any subsection of R.C. 2151.353,one cannot be shoehorned
into the reasonable efforts statute without contradicting its text and the holding of In re
C.F.
No. 23AP-55 12
{¶ 35} B.G. also asserts that the juvenile court failed to “make a determination that
the agency is not required to make reasonable efforts” at reunification, as required by R.C.
2151.419(A)(2), when the parent has abandoned the child under R.C. 2151.419(A)(2)(d).
Because the juvenile court discussed reasonable efforts at length in its decision, but did not
expressly determine that they were not required, B.G. believes that “FCCS was not relieved
of its burden of establishing reasonable efforts.” (Brief of Appellant at 49.) In other words,
her position is that the court’s failure to state that no reasonable efforts determination was
required actually created an obligation for FCCS to prove them again at the permanent
custody hearing.
{¶ 36} This argument invokes R.C. 2151.419(A)(2), which provides that if one of a
series of enumerated conditions apply, “the court shall make a determination that the
agency is not required to make reasonable efforts to prevent the removal of the child from
the child’s home, eliminate the continued removal of the child from the child’s home, and
return the child to the child’s home * * * .” Relevant here is the condition under R.C.
2151.419(A)(2)(d), when “[t]he parent from whom the child was removed has abandoned
the child.” The juvenile court found that B.G. abandoned A.G. (Dec. 30, 2022 Decision &
Jgmt. Entry at 13-14.)
{¶ 37} An obligation that a children services agency again prove reasonable efforts
at the permanent custody hearing does not independently arise because a juvenile court
fails to “make [the] determination that the agency is not required to make reasonable
efforts” required by R.C. 2151.419(A)(2). Such an obligation would exist if the statutory text
stated that “the court shall make a determination whether the agency is not required to
make reasonable efforts to prevent the removal of the child from the child’s home,” for
example, and the juvenile court then stated that the agency was required to again prove
reasonable efforts. But such language only appears in R.C. 2151.419(A)(1), and that
provision, as explained, does not apply. See R.C. 2151.419(A)(1) (stating “the court shall
determine whether the public children services agency * * * has made reasonable efforts”).
In this case, the juvenile court addressed reasonable efforts at length, but did not state that
no such determination was required, in spite of the mandatory language of R.C.
2151.419(A)(2) that it say so. For the sake of clarity, it should have made this statement.
No. 23AP-55 13
Its reasonable efforts discussion was undoubtedly a well-intentioned attempt at
thoroughness, and the omission of the language required by R.C. 2151.419(A)(2) created
confusion about what law guided its discussion. However, the omission cannot be
interpreted as creating an obligation that does not otherwise appear in R.C. 2151.419(A)(2).
{¶ 38} This situation occurred in In re A.P., 10th Dist. No. 23AP-253, 2024-Ohio-
741, in which we affirmed the juvenile court’s judgment terminating a mother’s parental
rights under R.C. 2151.414. On appeal, she argued that FCCS had “failed to make
reasonable and diligent efforts to reunify the family,” as required by R.C. 2151.419(A)(1). In
re A.P at ¶ 57. However, the exception under R.C. 2151.419(A)(2)(e) applied because her
parental rights of the child’s siblings had been previously involuntarily terminated. Id. at
¶ 60. “Thus, the trial court was not required to make a finding, in the context of this
[Permanent Custody Commitment] proceeding, that FCCS had exercised reasonable efforts
to return” the child to her. Id. at ¶ 61. In that case, as here, the juvenile court “nevertheless
made extensive findings regarding the efforts made by FCCS to reunite” them, although it
was not required to. Id. at ¶ 62.
{¶ 39} Even if the juvenile court were required to make the reasonable efforts
determination, B.G.’s arguments alleging that it erred are unpersuasive. First, she argues
that FCCS failed to engage in reasonable efforts at reunification because the agency “did
not use intensive efforts to identify and engage an appropriate and willing kinship caregiver
pursuant to R.C. 2151.4117.” (Brief of Appellant at 51-52.) However, “a public children
services agency has no statutory duty to make ‘reasonable efforts’ to place the child with an
extended family member before it can obtain permanent custody of the child.” In re M.O.,
4th Dist. No. 10CA3189, 2011-Ohio-2011, ¶ 16. See also In re Warren, 5th Dist. No.
2007CA00054, 2007-Ohio-5703, ¶ 23, (stating that the “duty to use reasonable efforts
applies only to efforts to avoid removal of a child from her home or to reunify the child with
her family, following removal,” as there is “no statutory duty to make reasonable efforts to
place a child with relatives although relative placement is to be investigated”).
{¶ 40} In addition, the assertion that FCCS “failed to arrange video visitations” until
September 2020, even though it had obtained temporary custody of A.G. in April of the
year before, is inconsistent with the record. (Brief of Appellant at 52.) Ms. Ramsey, the
No. 23AP-55 14
caseworker from April 2019 until 2021, testified that she made repeated attempts to see
“what day and time worked” for B.G. for video visits. (Nov. 7, 2022 Tr. at 52.) But “the day
and times ended up changing because for whatever reason, [B.G.] wasn’t participating in
them or she would forget about them or the time didn’t work.” Id. Although the juvenile
court did not have to engage in a determination of FCCS’s reasonable efforts at
reunification, if it had been required to do so, its final assessment of their adequacy would
not have been erroneous. The second assignment of error is overruled.
IV. Third Assignment of Error
{¶ 41} In the third assignment of error, B.G. argues that the juvenile court erred
when it failed to comply with 25 C.F.R. 23.107(a), the implementing regulation of ICWA,
which requires a juvenile court to ask each participant at the permanent custody hearing
about the possible Native American heritage of the child. (Brief of Appellant at 52-53.) The
only ICWA inquiry in the record occurred at the April 12, 2019 temporary custody hearing,
she asserts, but never thereafter. Id. at 54. Based on our holding in In re D.E., 10th Dist.
No. 20AP-83, 2021-Ohio-524, B.G. argues that remand for the juvenile court to conduct
the inquiry is required. Id. at 55.
{¶ 42} In order to address the “alarmingly high percentage of Indian families [that]
are broken up by the removal, often unwarranted, of their children from them by nontribal
public and private agencies” and remedy the placement of an “alarmingly high percentage
of such children * * * in non-Indian foster and adoptive homes,” Congress passed ICWA in
1978. 25 U.S.C. 1901(4). ICWA “aims to keep Indian children connected to Indian
families.” Haaland v. Brackeen, 599 U.S. 255, 143 S.Ct. 1609, 1623 (2023). To accomplish
this goal, ICWA requires that “[i]n any State court proceeding for the foster care placement
of, or termination of parental rights to, an Indian child not domiciled or residing within the
reservation of the Indian child’s tribe, the court, in the absence of good cause to the
contrary, shall transfer such proceeding to the jurisdiction of the tribe” if the tribe or
parents so request. 25 U.S.C. 1911(b). 25 C.F.R. 23.107(a) provides a procedure for state
courts to determine whether ICWA applies:
State courts must ask each participant in an emergency or
voluntary or involuntary child-custody proceeding whether the
participant knows or has reason to know that the child is an
No. 23AP-55 15
Indian child. The inquiry is made at the commencement of the
proceeding and all responses should be on the record. State
courts must instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.
{¶ 43} Once the state court “knows or has reason to know that an Indian child is
involved, the party seeking the foster care placement of, or termination of parental rights
to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe
* * * of the pending proceedings and of their right of intervention.” 25 U.S.C. 1912(a).
{¶ 44} We have previously emphasized that “[t]he importance of a proper ICWA
inquiry cannot be overstated” because the failure to comply with its notice provisions may
result in invalidation of the juvenile court’s custody determination under 25 U.S.C. 1914.
In re D.E. at ¶ 61. See also Adm.Code 5101:2-53-02(A) (“Failure to identify Indian children
can nullify court proceedings that have not been conducted in accordance with ICWA.”).
“The collateral consequences of not making a proper inquiry are potentially severe and
could cause significant disruption for children and families affected by the same beyond
termination of a permanent custody case.” In re D.E. at ¶ 61.
{¶ 45} In In re D.E., the mother was asked about potential Native American
background at the temporary custody hearing and she indicated that she had Cherokee
heritage, but she later answered the question in the negative at the permanent custody
hearing. Id. at ¶ 56-59. The attorney for FCCS briefly addressed the issue, but the juvenile
court failed to ask any other participant if they knew or had reason to know the child was
an Indian child. Id. at ¶ 59. We noted that “it is not possible to determine whether ICWA
applies or does not apply if the proper inquiry pursuant to 25 C.F.R. 23.107 is not made.”
Id. at ¶ 60.
Without proper inquiry, pursuant to 25 C.F.R. 23.107, the
juvenile court cannot determine if it knows or has reason to
know if the children are Indian children as defined in 25 U.S.C.
1903. Without making such “knows or has reason to know”
determination, the juvenile court cannot determine if the
notice of right of intervention to relevant tribe(s) applies. 25
U.S.C. 1912(a).
Id. at ¶ 67.
No. 23AP-55 16
{¶ 46} Accordingly, we remanded the case to the juvenile court for it to “promptly”
conduct the inquiry required by 25 C.F.R. 107. Id. at ¶ 68. See also In re R.G., 8th Dist. No.
104434, 2016-Ohio-7897, ¶ 18 (reversing and remanding for the juvenile court to conduct
the ICWA inquiry where “[t]hroughout the pendency of the case the trial court had ample
opportunities to address the applicability of the ICWA * * * but such inquiry was never
made”).2
{¶ 47} Other than the magistrate’s sole question directed at B.G. at the temporary
custody hearing, there is no indication in the record that the juvenile court made any
inquiry of any participant in any proceeding that 25 C.F.R. 107 requires. (Apr. 12, 2019 Tr.
at 4.) Because the juvenile court must comply with the regulation, we sustain the third
assignment of error and remand this case to the juvenile court for it to conduct the ICWA
inquiry in accordance with the procedure stated in 25 C.F.R. 107.
V. First Assignment of Error
{¶ 48} In the first assignment of error, B.G. challenges the juvenile court’s decision
to grant the motion for permanent custody. She argues that the decision was based on
insufficient evidence and was against the manifest weight of the evidence. As in In re D.E.,
however, because this case must be remanded for the juvenile court to comply with its
obligation under 23 C.F.R. 107, we decline to reach these issues until the inquiry is
complete. In re D.E. at ¶ 93 (holding that because of the necessary remand “for the juvenile
court to make a proper ICWA inquiry, it is premature to address appellant’s arguments
regarding the weight of the evidence” and overruling assignment of error as moot), citing
Columbus v. Phillips, 10th Dist. No. 15AP-408, 2015-Ohio-5088, ¶ 46, and In re Kangas,
11th Dist. No. 2006-A-0010, 2006-Ohio-3433, ¶ 56 (stating that “[i]t is premature to
address an argument regarding the weight of the evidence when additional evidence may
be presented to the trial court on remand”). Accordingly, the first assignment of error is
overruled as “premature and moot.” In re D.E. at ¶ 94.
2 25 C.F.R. 107 was not effective until December 12, 2016, after the permanent custody hearing in In re R.G
was held. 81 Fed.Reg. 38778; In re R.G., 8th Dist. No. 104434, 2016-Ohio-7897 at ¶ 12 (stating that “the
time of trial [was] April 2016”). It is notable that even without the guidance of the specific procedure the
regulation provides, the Eighth District Court of Appeals recognized the importance of conducting an ICWA
inquiry based solely on the notice and transfer of jurisdiction provisions under 25 U.S.C. 1911 and 1912. See
In re R.G. at ¶ 15-18.
No. 23AP-55 17
VI. Conclusion
{¶ 49} Having sustained the third assignment of error, overruled the second
assignment of error, and overruled the first assignment of error as premature and moot, we
reverse the judgment of the Franklin County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch, and remand this cause for further proceedings consistent with
this decision.
Judgment reversed;
cause remanded with instructions.
BEATTY BLUNT and LELAND, JJ., concur.
_________________