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In re J.B.

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

IN RE: J.B., ET AL. Minor Children [Appeal by Father, J.B.]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 15911454 and AD 16903039

          ATTORNEY FOR APPELLANT Britta M. Barthol

          ATTORNEYS FOR APPELLEES For C.C.D.C.F.S. Michael C. O'Malley Cuyahoga County Prosecutor Joseph C. Young Assistant County Prosecutor, For K.B. Mark Stanton Cuyahoga County Public Defender Sara E. Klosterman Assistant Public Defender, Guardian Ad Litem for Children Christopher R. Lenahan.

          BEFORE: Kilbane, J., E.A. Gallagher, A.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, J.

         {¶1} Appellant, J.B. ("Father"), appeals from the juvenile court's order granting permanent custody of his children, two sons _ J.B. and M.B., to the Cuyahoga County Department of Children and Family Services ("CCDCFS" or "the agency"). For the reasons set forth below, we affirm.

         {¶2} In August 2015, the CCDCFS filed a complaint alleging that 18-month-old J.B. was a neglected child and requesting emergency temporary custody. In the complaint, the CCDCFS alleged that Mother and Father left J.B. "in the care of inappropriate care givers." Specifically, Cleveland police found J.B. in the care of two unrelated adults who were "nonresponsive due to using the illegal drug K2." The agency's complaint also alleged that both Mother and Father have substance abuse problems and lack stable housing.

         {¶3} At the emergency temporary custody hearing in August 2015, the magistrate asked the CCDCFS social worker (the "social worker") about the possibility of J.B. having Native American ancestry in order to determine whether the Indian Child Welfare Act applied. Mother and Father were both present at the hearing. The magistrate questioned:

THE COURT: Do you know if the [child has] any Native American ancestry at this time?
[THE SOCIAL WORKER]: At this time, no, I don't know.

         The record reflects that neither parent objected to the social worker's negative response regarding the possibility that their child had Native American ancestry.

         {¶4} At the conclusion of the hearing, the trial court found that J.B. had no Native American ancestry and granted temporary emergency custody of J.B. to the agency.

         {¶5} In November 2015, the agency amended its complaint for neglect and temporary custody. At a hearing later that same month, Mother and Father both admitted they left J.B. in the care of "two non-relatives who were under the influence of the illegal drug K2." Mother and Father also admitted that they each had substance abuse issues and were currently unable to provide stable housing for J.B. Father also admitted that he had been convicted of both domestic violence and unlawful sexual conduct with a minor.

         {¶6} In February 2016, M.B. was born. The agency took custody of M.B. at the time of his birth because the issues that led to the removal of his older sibling, J.B., were unresolved; specifically, Mother and Father's ongoing substance abuse and mental health issues and their continued inability to care for and to provide a suitable home for both children. At the emergency temporary custody hearing for M.B., at which neither Mother nor Father were present, the magistrate asked the social worker:

THE COURT: And do you know if there's any Native American ancestry with the child?
[THE SOCIAL WORKER]: There is not.

         {¶7} The trial court found that M.B. had "no Native American ancestry, " and further found probable cause justifying removal of M.B. from the home. The trial court granted temporary custody of M.B. to the agency.

         {¶8} In January 2017, the agency moved for permanent custody of both children. After conducting multiple hearings, the trial court scheduled the matter for a bench trial on the motion for permanent custody in May 2017. On the day of trial, neither Mother nor Father appeared. Father's trial counsel moved the court for a continuance since Father "couldn't be [present] because of work." The trial court denied this request, noting that Mother and Father had failed to appear for previous hearings, including a previously scheduled trial date. The trial court also found the reason for Father's request did not justify a continuance under the juvenile court's local rules.

         {¶9} Father's counsel also moved the trial court to extend temporary custody rather than modifying temporary custody to permanent custody, explaining that Father had been incarcerated for a period of time and, as a result, had been unable to work on case plan services. Counsel further explained that Father was now employed and was beginning to work on his case plan services.

         {¶10} At the permanent custody trial, the social worker testified that both Mother and Father had been referred to various case planning services in an effort to assist them in addressing the issues that led to the removal of J.B. and M.B.; specifically, their substance abuse and mental health issues as well as their lack of stable housing. The social worker further testified that Father did not substantially complete his case plan, noting that, although he completed parenting classes, he had not obtained housing appropriate for the children. The social worker further noted that Father only partially completed a mental health assessment and failed to participate in a substance abuse assessment.

         {¶11} The social worker explained that Father, a registered sex offender, was incarcerated from June 2016 to December 2016, related to a domestic violence conviction. She further explained that "since December, since dad got out of jail he has visited the children twice in the community setting, " and, at the time of trial in May 2017, Father had last visited the children in early February 2017. The social worker noted that at that time, Father lived out of town in a nearby county and she had offered to take J.B. and M.B. there to visit him once a month. She testified that when she called him to confirm this visit he made threats to her "that bad things were going to happen, that this was all the agency's fault." She felt it was not safe to take the children or herself for the visit, but that Father's weekly visits in Cleveland remained scheduled. The social worker further testified that she felt it was in the children's best interest to be placed in the permanent custody of the CCDCFS.

         {¶12} At the conclusion of the agency's case in chief, the trial court noted that the children's guardian ad litem had written a report recommending it was in the children's best interest to award permanent custody to the agency. The guardian ad litem was then subject to a brief cross-examination by Father's trial counsel.

         {¶13} In June 2017, the trial court journalized its findings that permanent custody to the agency was in the best interest of the children, terminating all parental rights of Father and Mother as to J.B. and M.B.

         {¶14} Father now appeals, raising the following three assignments of error for our review:

         Assignment of Error One

         The trial court erred when it held a permanent custody hearing without complying with [the Indian Child Welfare Act, ] 25 U.S.C. 1912.

         Assignment of Error Two

         The trial court denied [Father] due process of law when it proceed without his presence at the permanent custody hearing.

         Assignment ...


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