In re L.R.D., 2019 Ohio 178

In April 2017 police found two minor children (R.D., age 8, and S.D., age 5) near hypodermic needles; parents were intoxicated and later convicted of child endangering. Children placed in CCDCFS temporary custody and placed with foster family.
Father has ~20 years of heroin addiction, additional methamphetamine addiction, prior schizophrenia diagnosis, and repeated incarcerations; he missed multiple drug/dual-diagnosis assessments and was incarcerated at trial.
Children exhibited educational and behavioral delays on entering foster care; both improved and bonded with foster family during ~358 days in agency custody.
CCDCFS investigated relatives; paternal grandmother had disqualifying criminal history, a great-uncle (R.D.) expressed willingness but had concerns (smoking in home, insufficient understanding of children’s needs) and was not approved.
Trial court found multiple R.C. 2151.414(E) factors (including failure to remedy conditions, chemical dependency, incarceration, prior neglect) and awarded permanent custody to CCDCFS; guardian ad litem and foster family supported permanency.
Father appealed, raising (1) ICWA noncompliance, (2) error in granting permanent custody instead of extending temporary custody or awarding relative legal custody, and (3) ineffective assistance of counsel. Court affirmed.

Issue	Father’s Argument	CCDCFS/State’s Argument	Held
Whether ICWA (25 U.S.C. §1912) required tribal notice before permanent custody hearing	Mother’s reported Native ancestry (grandfather Iroquois) created reason to know an Indian child was involved, so court should have notified tribe	Mother and Father denied tribal membership/registration for themselves; child not a member nor a biological child of a tribe member (grandparent only), so ICWA not triggered	ICWA not implicated: an “Indian child” must be a tribe member or eligible and a biological child of a member; grandchildren of a member do not qualify; no notice required
Whether permanent custody to CCDCFS was error / whether court should have extended temporary custody or given legal custody to relative	Father sought six-month extension and proposed legal custody to relative R.D. to permit reunification efforts	CCDCFS pointed to Father’s ongoing addiction, missed services, incarceration, and children’s need for permanency; relative R.D. unsuitable	Affirmed: clear-and-convincing evidence supported multiple R.C. 2151.414(E) factors and best-interest findings under R.C. 2151.414(D); extension unlikely to achieve reunification; R.D. unsuitable
Whether Father’s counsel was ineffective for failing to object on ICWA grounds	Counsel should have objected to proceed without tribal notice	ICWA did not apply, so failure to object was not deficient or prejudicial	No ineffective-assistance: no valid ICWA objection existed

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (Ohio 1954) (defines "clear and convincing" evidence standard)
In re William S., 75 Ohio St.3d 95 (Ohio 1996) (R.C. 2151.414(E) factor analysis and permanency standards)
In re C.C., 187 Ohio App.3d 365, 932 N.E.2d 360 (Ohio App. 2010) (one factor under R.C. 2151.414(E) is sufficient to support a finding a child cannot be placed with a parent)
Geouge v. Traylor, 808 S.E.2d 541 (Va. App. 2017) (party invoking ICWA bears burden to show applicability)
In re Trever I, 973 A.2d 752 (Me. 2009) (same: burden on proponent to establish ICWA applies)
People v. Diane N., 196 Ill.2d 181, 752 N.E.2d 1030 (Ill. 2001) (ICWA applicability principles; burden on party invoking the Act)