2021 Ohio 524
Ohio Ct. App.2021Background
- FCCS filed dependency complaints in May 2018 and obtained temporary custody after the mother entered VPS agreements and periods of homelessness; FCCS moved for permanent custody on January 4, 2019. Children at the permanent-custody hearing were ages 9, 6, 5, and 4.
- At an early hearing the mother identified "Cherokee" heritage but answered "no" when asked if she was a tribal member; the magistrate did not complete the full ICWA inquiry required by 25 C.F.R. 23.107 and other participants were not asked.
- The permanent custody hearing was held December 2, 2019; the mother did not appear, her counsel requested a same-day continuance which the juvenile court denied, and the court admitted testimony from the guardian ad litem (GAL) and FCCS caseworker.
- The GAL had minimal contact with the children (first meeting shortly before his July 2019 report), missed opportunities to observe visits, did not thoroughly review/obtain medical or educational records, and the juvenile court expressly noted deficiencies in his investigation.
- The juvenile court granted permanent custody to FCCS (January 22, 2020). On appeal the court: (1) affirmed denial of the continuance and admission of the GAL’s testimony; (2) sustained the ICWA-assignment of error because the court failed to make the inquiry required by 25 C.F.R. 23.107; (3) vacated the permanent-custody judgments and remanded for prompt, proper ICWA inquiry and issuance of dispositional orders; the permanent-custody merits determination was left unaddressed as premature.
Issues
| Issue | Appellant's Argument | FCCS's Argument | Held |
|---|---|---|---|
| Denial of same-day continuance / mother absent | Denial violated due process and right to be present for termination proceedings | Mother failed to appear despite notice; continuance would unduly delay an 11-month-old motion and inconvenience parties | No abuse of discretion; denial affirmed (Unger factors balanced against moving the docket) |
| Admission of GAL testimony | GAL’s investigation was so deficient that admission was plain error and prejudicial | GAL may testify; parents and children had counsel; court may consider but is not bound by GAL report | No plain error; testimony admitted though court noted GAL’s deficiencies |
| ICWA compliance / whether children are Indian children | Mother’s Cherokee heritage triggers ICWA protections; court erred in concluding ICWA did not apply | Mother denied tribal membership at on-the-record inquiry; agency found no need to notify tribes | Reversed as to ICWA: inquiry under 25 C.F.R. 23.107 was inadequate; sustained error; remand for prompt, proper ICWA inquiry and tribe notice; judgments vacated pending disposition |
| Sufficiency / clear-and-convincing evidence for permanent custody | FCCS failed to prove statutory elements for termination by clear and convincing evidence | Record supports inability to reunify and children’s best interest in permanent custody | Moot/ premature on appeal because case remanded for ICWA inquiry; court did not decide merits |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (heightened due-process protection required before terminating parental rights)
- Stanley v. Illinois, 405 U.S. 645 (parental rights are fundamental liberty interest)
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (purpose and scope of ICWA)
- Ungar v. Sarafite, 376 U.S. 575 (no mechanical test for continuance decisions; review circumstances)
- State v. Unger, 67 Ohio St.2d 65 (factors for continuance balancing under Ohio law)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse-of-discretion standard)
- In re Hayes, 79 Ohio St.3d 46 (need for full procedural protections when terminating parental rights)
- In re C.F., 113 Ohio St.3d 73 (state authority to intervene to protect children)