Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE: J.B., ET AL. Minor Children [Appeal by Father, J.B.]
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.
BEFORE: Kilbane, J., E.A. Gallagher, A.J., and S. Gallagher,
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, J.
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.
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
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.
record reflects that neither parent objected to the social
worker's negative response regarding the possibility that
their child had Native American ancestry.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Father now appeals, raising the following three assignments
of error for our review:
of Error One
trial court erred when it held a permanent custody hearing
without complying with [the Indian Child Welfare Act, ] 25
of Error Two
trial court denied [Father] due process of law when it
proceed without his presence at the permanent custody