2019 Ohio 1345
Ohio Ct. App.2019Background
- A.G., born June 23, 2014, is an enrolled Indian child (Ponca Tribe); CCDCFS took emergency custody in May 2015 after parents attempted to sell the child and related criminal convictions.
- Multiple complaints led to an adjudication of abuse/neglect (April 14, 2016) and temporary custody to CCDCFS (May 16, 2016); the agency worked with the Ponca Tribe throughout.
- Parents had case plans: Mother largely failed to engage; Father completed some services (parenting, Fatherhood Initiative) but did not complete substance-abuse treatment, tested positive for cocaine/marijuana, was inconsistent with drug screens, and lacked stable housing or financial support for the child.
- Child was placed with foster parents together with siblings and was bonded to them; a maternal aunt (Ponca-affiliated) was willing to care for the children.
- At the June 2018 permanent-custody hearing the agency sought permanent custody; the guardian ad litem and agency witness recommended permanent custody; an ICWA-qualified expert (L. Samaniego) testified and would not place the child with the parents.
- The juvenile court denied father's request for legal/unsupervised custody, terminated both parents’ rights, and granted permanent custody to CCDCFS; father appealed.
Issues
| Issue | Father’s Argument | Agency/Opposing Argument | Held |
|---|---|---|---|
| Whether ICWA notice to the tribe complied with 25 U.S.C. §1912(a) and deprived the court of jurisdiction | Service to Ponca Tribe was not by registered mail and proof of service was not in record; thus ICWA notice defective | Agency sent certified/registered notice, worked with the tribe from case inception, and tribe had actual notice | Court found record showed sufficient compliance/actual notice; ICWA notice defects did not divest subject-matter jurisdiction; assignment overruled |
| Whether court made required 25 U.S.C. §1912(f) finding beyond a reasonable doubt via qualified expert testimony that continued parental custody would likely cause serious harm | Expert’s testimony (ICWA witness) was insufficiently specific to prove likelihood of serious emotional/physical harm | Testimony of the ICWA expert plus social worker and case evidence (three years in care, incomplete case plans, substance abuse, lack of stability) aggregated to meet the statute | Court held the combined evidence (expert + lay testimony) satisfied §1912(f) beyond a reasonable doubt; assignment overruled |
| Whether trial court failed to adopt the agency case plan as required by R.C. 2151.412(E) | Magistrate’s and trial-court entries did not properly adopt/approve the case plan | The magistrate and trial-court journal entries expressly approved and adopted the case plan (May 16, 2016 and later entries) | Court found the record showed the case plan was approved and adopted; assignment overruled |
Key Cases Cited
- People ex rel. M.V. v. Dist. Ct., 432 P.3d 628 (Colo. App. 2018) (ICWA notice regs and remedies; notice defects do not automatically deprive state court of jurisdiction)
- In re Morris, 815 N.W.2d 62 (Mich. 2012) (discussing ICWA notice and jurisdiction)
- E.A. v. Div. of Family & Youth Servs., 46 P.3d 986 (Alaska 2002) (§1912(f) finding may be satisfied by expert or aggregated lay and expert testimony)
- Demetria H. v. State, 433 P.3d 1064 (Alaska 2018) (aggregation of lay and expert testimony can establish §1912(f) requirement)