In re L.L., 110030

2021 Ohio 1959

IN RE L.L. A Minor Child

[Appeal by Father]

No. 110030

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

June 10, 2021

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division

Case No. AD 18907610

Appearances:

Timothy R. Sterkel, for appellant.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony R. Beery, Assistant Prosecuting Attorney, for appellee.

MICHELLE J. SHEEHAN, J.:

{¶ 1} Appellant father ("father") appeals from a judgment of the juvenile court granting permanent custody of his child L.L. to the Cuyahoga County Department of Children and Family Services (hereafter "CCDCFS" or "agency"). On appeal, he raises the following two assignments of error for our review:

I. The trial court committed error when it proceeded with the permanent custody hearing without complying with 25 U.S.C. 1912.

II. The trial court committed error when it terminated Appellant's parental rights and granted permanent custody to CCDCFS.

{¶ 2} Our review reflects the juvenile court complied with the requirement of 25 U.S.C. 1912, the Indian Child Welfare Act ("ICWA"), and clear and convincing evidence supports the trial court's decision granting permanent custody of L.L. to the agency. Accordingly, we affirm the juvenile court's decision.

Procedural Background

{¶ 3} On June 14, 2018, the agency filed a complaint alleging L.L., born in July 2017, was abused and dependent and the agency sought temporary custody of L.L. The complaint alleged that, on May 21, 2018, L.L. suffered second-degree burns on his right leg, resulting in blistering and that L.L.'s mother ("mother"), who was the child's primary caregiver, could not offer a plausible explanation for the cause of the injury. Mother also delayed obtaining medical treatment for the child. The complaint alleged that mother had an aggravated arson conviction in 2014 and was incarcerated for the offense. Due to her incarceration, she did not have custody of her three other older children. The complaint also alleged father "had access to the child near the time that the child suffered the burn" but could not provide an explanation for the injury and that father did not have stable housing in which to provide for the child.

{¶ 4} On September 24, 2018, the trial court journalized a judgment entry, stating that mother and father stipulated to a finding of neglect and dependency and L.L. was committed to the temporary custody of the agency.

GAL's Reports

{¶ 5} L.L.'s guardian ad litem ("GAL") Michael Murphy filed two reports in this case. The first report was filed on March 26, 2019, before the agency moved for permanent custody. The report indicated that, after L.L. was removed from the home, he was originally placed with his maternal grandmother in Columbus but was currently being cared for by his maternal grandfather and his girlfriend in Euclid. Mother was 24 years old and has three other older children, all under the age of seven, and a fifth child, P.L., was born in February 2019. Mother was convicted of aggravated arson and served two years in prison. She suffered from bipolar disorder but had not participated in necessary mental health service, and she did not have custody of any of her other children. L.L. was well cared for by maternal grandfather and his girlfriend. He was healthy and his needs were met. The GAL believed that it was in the child's best interest for him to remain in the current placement.

{¶ 6} On August 8, 2019, the agency filed a motion for permanent custody. Before the permanent custody hearing, the GAL filed his final report on May 27, 2020, recommending that the agency be granted permanent custody of L.L. The GAL reported that maternal grandfather and his girlfriend each owned a home and both homes were appropriate for L.L. {¶ 7} As to father, the GAL noted that father is interested in the custody of L.L. and has recently obtained an apartment with his brother. The GAL was unable to visit their apartment however due to the COVID-19 pandemic, but had seen pictures of the apartment, and it appeared to be clean and appropriate. While the GAL observed father to be interacting well with L.L., the agency had related to him that father did not make progress on his case plan at the time and he had problems with maintaining stable housing.

{¶ 8} Although the GAL was pleased with father's regular visitations and positive interaction with L.L., he found it imperative that L.L. have permanency in his life but father was not ready to take care of L.L. on a daily basis. The GAL recommended a grant of permanent custody to the agency and it was his hope that L.L.'s maternal grandfather would be ultimately granted custody and that the grandfather would be able to facilitate the parents' visits with L.L.

Trial Testimony

{¶ 9} Mother stipulated to the grant of permanent custody of L.L. to the agency, and the trial court held a permanent custody hearing on August 21, 2020.¹ Tiffany Mahoney, the social work assigned to this case, and GAL Michael Murphy testified at the hearing.

{¶ 10} Mahoney testified that L.L. was in the agency's custody since 2018. Mother has three older children, in addition to L.L. and the baby, P.L., and all three older children were in the custody of Franklin County Children and Family Services. Father's case plan required him to address the issues of mental health, substance abuse, and housing. In December 2019, he tested positive for marijuana and admitted to using the drug. He completed a drug screen for the agency in January 2020 but has not been tested for drugs since then despite the agency's repeated requests. In June 2020, he was discharged from both the mental health and substance abuse services by the provider due to his lack of participation.

{¶ 11} Mahoney also testified that at the beginning of this custody matter, father had been staying in an apartment with two other individuals but moved out at the start of the COVID-19 pandemic. In July 2020, father indicated he had returned to the apartment, which was his last known address. Mahoney testified that she had visited the apartment and found it inappropriate for L.L. to reside there. The gas was turned off in the residence, and as a result, the agency had to hold visitations outside father's home.

{¶ 12} As for visitations, father did regularly attend weekly supervised visitations until the COVID-19 pandemic. Since then, father was able to maintain contact with L.L.'s care provider himself and visit with L.L. Although the social worker had no concerns with father's interaction with the child — she observed a positive bond and attachment between the two — the agency did not find father able to meet the child's needs as a primary caregiver, as he failed to engage in the mentalhealth and substance abuse services and his housing situation remained inconsistent. In addition, father could not provide documentation of consistent employment and had never been the full-time caregiver for L.L.

{¶ 13} Mahoney testified that L.L. has been well cared for by his maternal grandfather and his wife² and he was "very well attached and bonded to" both of them. Maternal grandfather has expressed a willingness and desire to adopt L.L. Both maternal grandfather and his wife have indicated they would be willing to continue to facilitate contact and visitation between L.L. and both father and mother.

{¶ 14} GAL Michael Murphy testified that he recommended permanent custody due to L.L.'s need for permanency. He stated that as a GAL, he always wants to see the children reunited with their family, but sometimes it is not possible. In this case, he stood by the recommendation he made in his report for permanent custody.

ICWA

{¶ 15} In the first assignment of error, father argues that the trial court erred in proceeding with the permanent custody hearing without complying with the requirement of ICWA.

{¶ 16} In 1978, Congress enacted ICWA "for the protection and preservation of Indian tribes and * * * Indian children who are members of or are eligible formembership in an Indian tribe * * *." 25 U.S.C. 1901(2) and (3). ICWA applies to pending court proceedings, including custody cases, "where the court knows or has reason to know that an Indian child is involved * * *." 25 U.S.C. 1912(a).

{¶ 17} To invoke ICWA, "there must be a preliminary showing that a custody proceeding involves an 'Indian child.'" In re N.H., 8th Dist. Cuyahoga No. 103574, 2016-Ohio-1547, ¶ 12. "[T]he party invoking the ICWA bears the burden of establishing that the IWCA is implicated." In re L.R.D., 2019-Ohio-178, 128 N.E.3d 926, ¶ 20 (8th Dist.)

{¶ 18} The record in this case reflects that, on July 10, 2018, the trial court held a hearing on the agency's complaint. At the beginning of the hearing, the court asked mother and father: "I am required to ask under federal law, do either of you have any Native American ancestry?" Both mother and father answered "no."

{¶ 19} On August 3, 2018, the court held another hearing, in which both mother and father agreed to a grant of temporary custody to the agency. Again, both mother and father were asked if they have any Native American ancestry and both of them answered negatively. The court made a specific finding at this hearing that there is no evidence of any Native American ancestry for L.L.

{¶ 20} In a judgment journalized on September 24, 2018, the court stated "[t]he court finds that the child is not a member of a federally recognized Indian tribe, is not eligible for membership in a federally recognized Indian tribe as the biological child of a member of a federally recognized tribe, and is not in the custody of an Indian custodian."

{¶ 21} On April 2, 2019, the court held a hearing over the agency's motion for an extension of temporary custody. The court asked again if father has Native American ancestry, and he answered "no."

{¶ 22} On appeal, father argues the trial court did not comply...