In re E.C.
{¶ 1} Appellant, D.C. (“mother“), appeals the juvenile court‘s judgment granting permanent custody of her children, E.C. (d.o.b. May 20, 2009), A.C. (d.o.b. October 3, 2010), and Al.C. (d.o.b. October 20, 2012), to appellee, Cuyahoga County
1. The CCDCFS has failed to show that a grant of permanent custody would be in the best interest of the child and that the child cannot or should not be placed with a parent within a reasonable period of time.
2. The Court erred in its finding there is no known Native American Ancestry.
3. [CCDCFS] did not meet its burden under ICWA by failing to treat the children as Indian Children.
{¶ 2} Finding no merit to mother‘s assignments of error, we affirm the juvenile court‘s judgment.
I. Factual and Procedural Background
{¶ 3} CCDCFS received emergency temporary custody of the children on May 21, 2018, pursuant to an ex parte telephonic order, and placed them with their aunt, who was married to mother‘s brother (“aunt“).
{¶ 4} On May 22, 2018, CCDCFS filed a complaint for neglect, dependency, and temporary custody to CCDCFS, and simultaneously filed a motion for predispositional temporary custody. In the complaint, CCDCFS alleged that mother had issues with mental health, anger management, and substance abuse that prevented her from caring for the children. CCDCFS further alleged that the home in which mother and the children were residing was unsanitary, inappropriate, and unstable, that mother was not properly maintaining the children‘s hygiene, that mother slept during much of the day leaving Al.C. unattended, and that mother and the children‘s father (“father“) had engaged in domestic violence in the children‘s
{¶ 5} The court held a hearing on May 22, 2018, upon CCDCFS‘s motion for predispositional temporary custody. At the hearing, mother denied the allegations in the complaint and objected to a finding of probable cause. After hearing testimony, the court found probable cause for the children‘s removal and granted CCDCFS‘s motion for predispositional temporary custody.
{¶ 6} In June 2018, CCDCFS filed mother‘s case plan with the juvenile court. The goal of the case plan was for the children to be reunified with mother. Under the case plan, mother‘s goals included the following: (1) obtain stable and safe housing, (2) ensure that the children‘s basic needs were met on a regular basis, (3) undergo a psychological evaluation and actively participate and complete any treatment recommendation, (4) complete a drug and alcohol assessment and follow all recommendations, (5) maintain sobriety for at least six months before reunification with the children, and (6) complete a parenting program approved by a social worker.
{¶ 7} The court appointed a guardian ad litem (“GAL“) for the children. On August 9, 2018, the GAL filed a report and recommendation. The report explained that mother had been estranged from her family for ten years, but when father was incarcerated, she moved back to Ohio and moved in with her mother (“grandmother“). The report states that a “conflict arose” between mother and
{¶ 8} At an adjudication hearing on August 13, 2018, mother stipulated to the allegations in the amended complaint, which removed neglect. The amended complaint alleged that mother was held in a psychiatric unit in December 2017, was often verbally aggressive toward grandmother, and while at grandmother‘s house she punched and shattered a window while Al.C. was in the home. CCDCFS alleged that mother needed to engage in a substance-abuse assessment, find appropriate housing, and maintain Al.C.‘s hygiene. CCDCFS further alleged that mother left the
{¶ 9} The juvenile court held a dispositional hearing on August 15, 2018, where mother agreed that the children should be placed in the temporary custody of CCDCFS. The juvenile court awarded CCDCFS temporary custody of the children, found that they were not members of a federally recognized Indian tribe, and found that their continued residence or return to mother‘s home was contrary to their best interest. The magistrate‘s dispositional order was approved and adopted by the juvenile court on September 4, 2018.
{¶ 10} In November 2018, CCDCFS conducted a semiannual review (“SAR“). According to the SAR, mother was living with a friend, no home visit had been completed, and mother declined to work with the recommended resources to obtain her own housing. Regarding mental health, mother declined to seek the recommended services. CCDCFS noted that mother voluntarily hospitalized herself overnight for self-injurious behavior in December 2017, and she was diagnosed with major, severe, and recurrent depression and post-traumatic stress disorder. Mother completed a psychological evaluation through the juvenile court diagnostic clinic, which reported that mother was guarded and evasive, chose not to amend her diagnoses, and recommended that mother engage in therapy and complete an assessment to determine if she should receive medication. As to substance abuse,
{¶ 11} CCDCFS conducted another SAR in May 2019. Regarding housing, mother was living with her boyfriend but was not on the lease. As to mental health and substance abuse, mother had not engaged in the recommended therapy. Mother did not complete the requested drug screens in December, January, February, March, or April. Regarding parenting, mother was engaging in the supportive visitation program and was appropriate with the children. CCDCFS recommended that the children‘s aunt and her husband in Florida should receive legal custody of the children.
{¶ 12} On May 21, 2019, CCDCFS filed a motion to modify temporary custody of the children to permanent custody. CCDCFS alleged that the children could not be placed with either parent within a reasonable time or should not be placed with either parent, and that at least one of the factors under
{¶ 13} The juvenile court held a dispositional review hearing on July 29, 2019, and considered testimony presented by the child protection specialist from CCDCFS assigned to the case. The juvenile court found that mother had not made significant progress on her case plan, that CCDCFS had made reasonable efforts to finalize the permanency plan of reunification with mother, and that a continued extension of CCDCFS‘s temporary custody pending the hearing on CCDCFS‘s motion for permanent custody was in the children‘s best interest. The magistrate‘s dispositional order was approved and adopted by the juvenile court on August 14, 2019.
{¶ 14} On September 16, 2019, mother filed a motion to terminate temporary custody of the children to CCDCFS and to grant legal custody to her brother (uncle). Mother stated that the children had been residing with uncle since June 2019 and were happy there, and that uncle was willing to assume custody of the children and could provide for their basic needs.
{¶ 15} On September 23, 2019, the GAL filed a report and recommendation in advance of trial. The GAL explained that uncle was willing to care for the children on a short-term basis, but uncle felt that it was in the children‘s best interest for them to live with aunt and her husband in Florida. The GAL reported that aunt and
{¶ 16} In November 2019, CCDCFS conducted another SAR. As to housing, mother was still living with her boyfriend, and she was not included on a lease or deed but mother‘s boyfriend reported that mother and the children were welcome in his home. Regarding mental health, mother engaged with Recovery Resources. Recovery Resources did not have any recommendations for mother‘s mental health, but mother did not disclose her prior psychological evaluations and recommendations to Recovery Resources. As to substance abuse, mother completed a drug assessment in May 2019 through Recovery Resources and tested positive for marijuana. On June 4, 2019, mother started outpatient treatment, where she was to attend 20 sessions. During outpatient treatment, the counselor reported that mother would often be on her phone and pull the hood of her sweatshirt over her head. On June 25, 2019, mother was discharged from outpatient therapy because she was testing positive during drug screens and was not participating in groups. In May 2019, mother tested positive for cocaine and marijuana. In June 2019, mother
A. Hearing on Permanent Custody
{¶ 17} On December 17, 2019, the juvenile court conducted a trial on CCDCFS‘s permanent custody motion and mother‘s motion for legal custody to uncle. Present at the hearing were mother, mother‘s attorney, uncle, uncle‘s partner, the children‘s GAL, the CCDCFS child protection specialist, and CCDCFS‘s attorney. At the time of the hearing, E.C. was ten years old, A.C. was nine years old, and Al.C. was seven years old.
{¶ 18} The attorney for CCDCFS told the court that father had been incarcerated throughout the case, that mother had not substantially complied with her case plan, and that the children could not and should not be placed with either parent within a reasonable amount of time. CCDCFS requested that the court grant CCDCFS permanent custody and place the children with aunt and her husband in Florida. Mother‘s attorney told the court that the children had been doing well living with uncle and that legal custody of the children should go to him.
{¶ 19} The CCDCFS child protection specialist assigned to the children‘s case reviewed why CCDCFS originally obtained temporary custody of the children. She testified that the permanency plan for the children was reunification with mother, and a case plan was created to facilitate reunification. Father was not involved in the case plan because he was incarcerated. The children were engaging
{¶ 20} As to housing and income, the child protection specialist testified that mother had been residing with her boyfriend for approximately the last year and that in September 2019, her boyfriend “deeded” his house to mother. She testified that the house was appropriate for the children. Mother had reported to the child protection specialist that she was working at Rascal House and that she had been working throughout most of the case. Mother had not provided monetary support to the children during the case but brought food for them during some of their visits.
{¶ 21} With respect to mental health, the child protection specialist testified that CCDCFS had referred mother to mental health services throughout the entirety of the case but that mother had only recently begun to engage with these services. In June 2018, mother completed a mental health assessment through Catholic Charities but did not “follow through.” In June 2019, mother completed a psychological evaluation through the juvenile court clinic. The child protection specialist testified that throughout this case mother denied that she had any issues with mental health or substance abuse. But the child protection specialist testified that mother sought out her current mental health provider because it was closer to where she was living.
{¶ 22} The child protection specialist explained that mother had only recently begun to engage in substance abuse services. In June 2019, mother went to Recovery Resources but did not successfully complete their services, and in September 2019, she re-engaged in the services. The child protection specialist requested random drug screens of mother, on average once a month, and mother had submitted to five or six screens. The child protection specialist testified that mother‘s first negative drug screen was on October 1, 2019, so mother had demonstrated her sobriety for the two months before the permanent custody hearing. CCDCFS was still concerned about mother‘s substance use because she had not completed a program.
{¶ 23} The child protection specialist testified that CCDCFS‘s temporary custody should not be further extended because mother had not complied with her case plan services. She testified that permanent custody to CCDCFS would be in the best interest of the children because it would provide them with permanency and a safe and stable home environment.
{¶ 24} The child protection specialist explained that if CCDCFS were to receive permanent custody of the children, the permanency plan for the children would be for aunt and her husband in Florida to adopt them. Aunt‘s husband is mother‘s brother and uncle‘s twin. Throughout the case, the children had been placed with aunt, who had moved to Ohio from Florida to care for the children. Aunt initially stayed with uncle but later moved into her own place in Columbia Station with the children and cared for them there. In June 2019, aunt needed to move back
{¶ 25} Uncle testified that the children had been placed with him since June 2019, that they were doing very well, and that they were enrolled in school. He said that E.C. was enrolled in an IEP course for math and science, but otherwise the children were doing very well in their classes. They had missed only a few days of school when they were sick, and Al.C. was a classroom helper. Uncle explained that he had attended a few of mother‘s visits with the children at his house, and the children seemed to have a good bond with mother. The children generally looked forward to mother‘s weekly visits. Uncle testified that he had concerns about the children reunifying with mother because of “her past history” with drug use.
{¶ 26} Uncle testified that he had personally “gone back and forth” on whether he would accept legal custody of the children. He explained that, “on
{¶ 27} Uncle‘s partner testified that he lived with uncle and the children, that the children were happy, healthy, and excelling in school, and that he and uncle loved the children very much. He said that he and uncle requested a counselor for the children because A.C. and Al.C. “bicker” with each other. The counselor came to their home, met with the children separately and with uncle and uncle‘s partner, and had overall been helpful. Uncle‘s partner testified that mother had been “great” during her weekly visits and had never visited while intoxicated or while smelling of marijuana. He described aunt and her husband as “military people” and that he and aunt had differing opinions on how to raise the children and the children‘s level of contact with mother. Uncle‘s partner said that aunt would prevent mother from
{¶ 28} The children‘s GAL recommended that permanent custody be granted to CCDCFS for all three children and that the children be placed with aunt and her husband in Florida. She testified that she asked the children on four different occasions with whom they wanted to live, and E.C. and A.C. consistently responded that they wanted to live with aunt. Al.C. was not sure where she wanted to live.
{¶ 29} The GAL also testified that when she first visited uncle, he seemed reluctant to care for the children long term. She explained that he and his partner loved the children, were taking very good care of them, and wanted to help maintain a relationship between mother and the children. She also testified that aunt loved the children and also took very good care of them. The GAL observed that aunt and her husband were reluctant to accept legal custody because they wanted to take the children to church, and mother did not want the children to attend church. But the GAL said that she visited uncle one Sunday and the children and uncle had just arrived home from church.
B. The Juvenile Court‘s Decision
{¶ 30} On December 23, 2019, the juvenile court granted CCDCFS permanent custody of the children. The court found that granting CCDCFS
{¶ 31} With respect to the factors under
R.C. 2151.414(E)(1) , mother failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside of her home;
R.C. 2151.414(E)(2) , mother has a chronic mental illness and chemical dependency that is so severe that it makes her unable to provide an adequate permanent home within one year after the court holds the hearing in this matter;
R.C. 2151.414(E)(4) , mother has demonstrated a lack of commitment toward the children by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide for an adequate permanent home for the child; and
R.C. 2151.414(E)(14) , mother is unable to prevent the children from suffering emotional or mental neglect.
{¶ 32} With respect to the best-interest factors, the juvenile court considered the GAL‘s recommendation and that the children had been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period.
{¶ 33} In the same opinion that was journalized on December 26, 2019, December 31, 2019, and January 3, 2020, the juvenile court denied mother‘s motion for uncle to have legal custody of the children.
{¶ 34} Mother appeals the juvenile court‘s December 23, 2019 judgment that was journalized on December 26, 2019, December 31, 2019, and January 3, 2020.
II. Permanent Custody Determination
{¶ 35} The juvenile court‘s December 23, 2019 judgment both denied mother‘s motion for uncle to have legal custody of the children, and granted permanent custody of the children to CCDCFS. The grant of permanent custody to CCDCFS terminates a parent‘s rights forever, while the grant of legal custody of the children to someone else allows a parent to retain “residual parental rights, privileges, and responsibilities, including, but not limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child‘s religious affiliation, and the responsibility for support[.]”
{¶ 36} In her first assignment of error, mother argues that the juvenile court erred in granting CCDCFS permanent custody of the children because CCDCFS failed to show that permanent custody would be in the children‘s best interest and that the children cannot or should not be placed with either parent within a reasonable period of time.
{¶ 37} Parents have a basic and fundamental interest in the care, custody, and management of their children. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28. Parental rights, however, are not absolute, and a parent‘s natural rights are always subject to the ultimate welfare of the child. In re K.M., 10th Dist. Franklin Nos. 15AP-64 and 15AP-66, 2015-Ohio-4682, ¶ 15, citing In re Cunningham, 59 Ohio St.2d 100, 391 N.E.2d 1034 (1979).
{¶ 38} The termination of parental rights is governed by
(a) [T]he child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents [In making this determination, the juvenile court must consider the factors set forth in
R.C. 2151.414(E) ];(b) The child is abandoned;
(c) The child is orphaned and no relatives are able to take permanent custody of the child;
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period[;] or
(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
{¶ 39} The second prong requires the court to find, also by clear and convincing evidence, that granting permanent custody of the child to the agency is in the best interest of the child.
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child[;]
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period[;]
(d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) apply in relation to the parents and child.
{¶ 40} An appellate court will not reverse a juvenile court‘s decision awarding permanent custody to an agency if the judgment is supported by clear and convincing evidence. In re J.M-R., 8th Dist. Cuyahoga No. 98902, 2013-Ohio-1560, ¶ 28. “Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). A reviewing court is required to examine the record to determine
A. The First Prong – Cannot or Should Not Be Placed with Mother
{¶ 41} In her first assignment of error, mother challenges the juvenile court‘s finding that the children could not be placed with her within a reasonable time or should not be placed with her.1 She argues that CCDCFS failed to provide clear and convincing evidence of the
{¶ 42}
(1) has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child‘s home[;]
(2) [has] [c]hronic mental illness * * * or chemical dependency * * * that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing[;] * * *
(4) has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so[;] * * * or
(14) for any reason is unwilling to * * * prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.
{¶ 43} In its journal entry awarding permanent custody to CCDCFS, the trial court found
{¶ 44} Regarding
{¶ 46} As to mother‘s chemical dependency, the record shows that mother had a moderate cannabis use disorder and failed to comply with her case plan. Mother contends that CCDCFS failed to show that her marijuana use interfered with
{¶ 47} Regarding
{¶ 48} Because we need to find that clear and convincing evidence supported only one of the
B. The Second Prong – Best Interest
{¶ 49} In her first assignment of error, mother argues that CCDCFS failed to show that the grant of permanent custody to CCDCFS would be in the children‘s best interest. Her arguments center around the
{¶ 50} The trial court needs to find only one of the
{¶ 51} The record clearly and convincingly supports the trial court‘s finding pursuant to
{¶ 52} Although mother does not specifically raise this argument, we find that the record clearly and convincingly supports that permanent custody of the children to CCDCFS was in their best interest over legal custody with uncle. The child protection specialist testified that if CCDCFS were to obtain permanent custody of the children, their plan would be for aunt and her husband in Florida to adopt the children. Testimony at the permanent custody hearing showed that the children had a strong bond with aunt, and the GAL testified that E.C. and A.C. consistently reported that they wanted to live with aunt and her husband in Florida. The record reflects that aunt and her husband have housing, income, time, experience, and the desire to raise the children. While the record shows that uncle and his partner clearly love the children and have taken very good care of them, even uncle ultimately agreed that it would be in the children‘s best interest to live with aunt and her husband.
{¶ 53} After review, we find there was clear and convincing evidence to support the trial court‘s finding that it was in the children‘s best interest to be placed in the permanent custody of CCDCFS. Accordingly, we overrule mother‘s first assignment of error.
III. Native American Ancestry
{¶ 54} In her second assignment of error, mother argues that the juvenile court erred in finding the children have no known Native American ancestry. In her
{¶ 55} We must review mother‘s second and third assignments of error under a plain error standard of review. In May 2018, the juvenile court included in its judgment entry that the children were not members of a federally recognized Indian tribe and were not eligible for membership in a federally recognized Indian tribe. Mother did not challenge this finding or ever raise the issue with the juvenile court before this appeal. As such, she has waived all but plain error. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). Plain errors are those that prejudice the appellant and that ‘“are clearly apparent on the face of the record.“’ Wells Fargo Bank, N.A. v. Lundeen, 8th Dist. Cuyahoga No. 107184, 2020-Ohio-28, ¶ 12, quoting Macintosh Farms Community Assn. v. Baker, 8th Dist. Cuyahoga No. 102820, 2015-Ohio-5263, ¶ 8. A “failure to timely advise a trial court of possible error, by objection or otherwise, results in a waiver of the issue for purposes of appeal” except in “those extremely rare cases where exceptional circumstances require [the plain error] application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings.” Goldfuss at 121. Courts reviewing civil cases for plain error “must
{¶ 56} Mother argues that the juvenile court did not satisfy its burden under ICWA to determine whether the children were Indian children. She contends that since mother responded that the children have Native American ancestry, the juvenile court had the burden to investigate further to determine if the children met the definition of “Indian children.” She argues that nobody asked the child protection specialists if they talked with the children‘s family to inquire about Native American ancestry and that nobody explained to mother the significance of Native American ancestry.
{¶ 57} Mother also contends that since CCDCFS did not know whether the children were members of a Native American tribe, CCDCFS should have treated the children like Indian children. In support of her argument, she points to
{¶ 58} In 1978, Congress enacted ICWA to address the ‘“wholesale separation of Indian children from their families.“’ Guidelines at 5, quoting 2 H.R. Rep. No. 95-1386, at 9 (1978). Congress found that
an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.
{¶ 59} This court has explained the applicability of ICWA as follows:
The ICWA provides exclusive jurisdiction to an Indian tribe over child custody proceedings in situations where the Native American child resides or is domiciled within its reservation.
25 U.S.C. 1911(a) . Under the act, when an Indian child does not reside on a reservation, child custody proceedings may be initiated in a state court.25 U.S.C. 1911(b) . The act gives the subject Indian child‘s tribe the right to intervene in any state court proceeding involving foster care placement or the termination of parental rights.25 U.S.C. 1911(c) . The act imposes a duty on state courts in involuntary custody proceedings “where the court knows or has reason to know that an Indian child is involved,” to have the applicable children‘s services agency notify the Indian child‘s tribe of the proceedings and its right to intervene.25 U.S.C. 1912 .
In re J.B., 8th Dist. Cuyahoga No. 106045, 2018-Ohio-1201, ¶ 17.
{¶ 61} The party “asserting the applicability of the ICWA” has the burden to show that the child satisfies ICWA‘s definition of an “Indian child.” In re J.B. at ¶ 19. To meet this burden, the party “must do more than raise the possibility that a child has [N]ative American ancestry.” Id.
{¶ 62} Under ICWA, state courts have a duty to ask the participants in a child custody proceeding whether they know or have reason to know that the child is an Indian child, and must do so “at the commencement of the proceeding.”
{¶ 63} Here, the juvenile court asked mother at the May 22, 2018 emergency custody hearing whether there is any Native American ancestry in her or father‘s ancestry. Mother responded, “yes.” The juvenile court then asked mother if the
{¶ 64} In support of her argument that the juvenile court should have done more to determine whether the children were Indian children, mother cites Section 23.107(b) of the regulations implementing ICWA:
(b) If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an “Indian child,” the court must:
(1) Confirm, by way of a report, declaration, or testimony included in the record that the agency or other party used due diligence to identify and work with all of the Tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership); and
(2) Treat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an “Indian child” in this part.
{¶ 66} Regardless,
(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child;
(2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child;
(3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child;
(4) The court is informed that the domicile or residence of the child, the child‘s parent, or the child‘s Indian custodian is on a reservation or in an Alaska Native village;
(5) The court is informed that the child is or has been a ward of a Tribal court; or
(6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe.
{¶ 67} Native American ancestry alone does not meet any of the factors of
{¶ 68} Moreover, mother (not CCDCFS) had the burden to show that the children met the statutory definition of “Indian children” because mother is the party asserting the applicability of ICWA. In re J.B., 8th Dist. Cuyahoga No. 106045, 2018-Ohio-1201, at ¶ 19. Mother did not show that the children met the statutory definition of “Indian children.” Therefore, ICWA did not apply to this proceeding. As such, whether CCDCFS met ICWA‘s beyond-a-reasonable-doubt standard to terminate parental rights is irrelevant.
{¶ 69} Accordingly, the juvenile court did not err in finding that the children have no Native American ancestry that would render the children eligible for tribe membership, and CCDCFS was not obligated to treat the children as Indian children under ICWA. We therefore overrule mother‘s second and third assignments of error.
{¶ 70} Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
The juvenile court did not err in granting permanent custody of the children to the Cuyahoga County Division of Children and Family Services because the children cannot be placed with either parent within a reasonable time or should not be placed with either parent, and permanent custody was in the children‘s best interest. The juvenile court did not err in finding that the children have no known Native American ancestry that would render them eligible for tribe membership. The agency was not obligated to treat the children as Indian children under the Indian Child Welfare Act.