In Re C.C. Minor Children.

• Citation: 932 N.E.2d 360,187 Ohio App.3d 365
• Decision Date: 04 March 2010
• Docket Number: Nos. 94013, 94014.,s. 94013, 94014.
• Parties: In re C.C. et al., Minor Children. [Appeal by Father, B.C.]
• Court: United States Court of Appeals (Ohio)

187 Ohio App.3d 365

932 N.E.2d 360

In re C.C. et al., Minor Children.

[Appeal by Father, B.C.]

Nos. 94013, 94014.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided March 4, 2010.

COPYRIGHT MATERIAL OMITTED.

Timothy R. Sterkel, for appellant, B.C.

William D. Mason, Cuyahoga County Prosecuting Attorney, and James M. Price, Gina S. Lowe, and Cheryl Rice Lane, Assistant Prosecuting Attorneys, for appellee, Cuyahoga County Department of Children and Family Services.

Troy M. Hough, guardian ad litem.

MELODY J. STEWART, Judge.

{¶ 1} This appeal by appellant-father, B.C., consolidates for hearing and disposition separate appeals involving the court's decision to terminate his parental rights to his son, C.C., and daughter, Ci.C., and grant permanent custody of the children to the Cuyahoga County Department of Children and Family Services. The father argues that the court erred by granting the agency's motion for permanent custody because the agency failed to establish the statutory factors by clear and convincing evidence. We have expedited the hearing and disposition of these appeals as required by App.R. 11.2(C).

I

{¶ 2} The father first argues that the court erred by proceeding with the dispositional phase of the proceedings because it failed to give the Cherokee tribe notice of pending custody proceedings relating to the daughter as required by the Indian Child Welfare Act (“ICWA”), codified in Section 1912, Title 25, U.S.Code. ¹

{¶ 3} The ICWA was enacted to state “the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture * * *.” Section 1902, Title 25, U.S.Code. The act gives tribal authorities exclusive jurisdiction over any state relating to “any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe.” Section 1911(a), Title 25, U.S.Code. If an Indian child does not reside in or is not domiciled within the reservation of a tribe, custody proceedings may be initiated in a state court. Section 1911(b), Title 25, U.S.Code. However, “in the absence of good cause to the contrary, [the state court] shall transfer such proceeding to the jurisdiction of the tribe.” Id. Notice must be given to the tribe “[i]n any involuntary [child-custody] proceeding in a State court, where the court knows or has reason to know that an Indian child is involved.” Section 1912(a), Title 25, U.S.Code.

{¶ 4} In order to invoke the provisions of the ICWA, there must be a preliminary showing that a custody proceeding involves an “Indian child.” In re Jordan (Jan. 30, 2002), 9th Dist. Nos. 20773 and 20786, 2002 WL 121211. “Indian child” is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” Section 1903(4), Title 25, U.S.Code. The party who asserts the applicability of the ICWA bears the burden of proving that a child meets the statutory definition of an “Indian child.” Jordan, supra. To meet this burden, the party asserting the applicability of the ICWA must do more than raise the possibility that a child has Native American ancestry. In re B.S., 184 Ohio App.3d 463, 2009-Ohio-5497, 921 N.E.2d 320, at ¶ 63.

{¶ 5} The father offered no evidence to prove that the daughter was a member of an Indian tribe, nor did he offer proof that the daughter was the biological child of a member of an Indian tribe. During an initial hearing, the court asked the parents whether either child had any “American Indian heritage.” The father replied, “Great-grandmother.” The court asked whether the great-grandmother was a “member of a recognized tribe,” and the father replied, “Cherokee.”

{¶ 6} Regardless of whether the great-grandmother was a member of a Cherokee tribe, ² the father did not establish his own membership in a tribe. He thus failed to prove that the daughter was the biological child of a member of an Indian tribe, so she did not meet the statutory definition of an “Indian child.” It follows that the court had no duty to give any tribal government notice of the custody proceedings.

II

{¶ 7} The father next argues that the court erred by terminating his parental rights and granting permanent custody of the children to the agency. He maintains that the evidence showed that he fully complied with the agency's case plan and had been doing everything that had been required of him, so the court erred by granting the agency's motion for permanent custody.

A

{¶ 8} In order to terminate parental rights and grant permanent custody to the agency, the court must apply a two-prong test. First, the court must find by clear and convincing evidence one of the factors set forth in R.C. 2151.414(B)(1) through (4). Second, the court must determine, by clear and convincing evidence, that it is in the best interest of the child to terminate parental rights. R.C. 2151.414(B)(2). The court terminated parental rights by finding clear and convincing evidence that (1) the children had not been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period and the children could not be placed with either parent within a reasonable time or should not be placed with either parent, see R.C. 2151.414(B)(1)(a), and (2) permanent custody was in the best interest of the children. The father makes no argument that the court erred by finding permanent custody to be in the best interest of the children, so we limit our discussion to the issue whether the children could be placed with either parent within a reasonable time.

{¶ 9} When determining whether children can be placed with either parent within a reasonable period of time, the court must consider R.C. 2151.414(E). That section states that if the court determines at a hearing that one or more of the factors set forth in R.C. 2151.414(E) exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent.

{¶ 10} The court determined that the factors set forth in R.C. 2151.414(E)(1), (4), (11), and (14) existed. However, the existence of any one of these factors is sufficient to determine that the children cannot be placed with the father within a reasonable period of time. See In re William S. (1996), 75 Ohio St.3d 95, 99, 661 N.E.2d 738. We therefore focus, as does the agency, on the R.C. 2151.414(E)(1) factor:

{¶ 11} “(1) Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.”

{¶ 12} In In re Z.T., 8th Dist. No. 88009, 2007-Ohio-827, 2007 WL 613998, ¶ 44, we stated:

{¶ 13} “A R.C. 2151.414(E) determination that a child cannot or should not be placed with his parents within a reasonable time is a finding of fact. This conclusion necessarily flows from the use of the term ‘clear and convincing evidence’ as the standard to be applied by the court. Moreover, the determination itself is mandatory - if the court finds, as a matter of fact, that any one of the factors set forth exists, it ‘shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent * * *.’ We review this determination under the manifest weight of the evidence standard of review. A claim that a factual finding is against the manifest weight of the evidence requires us to examine the evidence and determine whether the trier of fact clearly lost its way. In re M.W., Cuyahoga App. No. 83390, 2005-Ohio-1302.”

B

{¶ 14} The agency's complaint for temporary custody, as amended, alleged that in 1990, while serving in the military, the father sexually abused two young biological sons from another relationship and served 30 months of a three-year sentence. The complaint alleged that the father did not appear to have remorse for his past behavior and behavioral assessments showed him at risk of reoffending.

{¶ 15} Although there were no specific allegations that the father had committed acts of sexual abuse against any of his children after his release from prison, the agency removed the father's stepdaughter from the home after she complained that when she was 11 to 12 years old, the father would wake her in the morning by rubbing her legs - an action that he continued to take even after she asked him to stop. A social worker testified that the stepdaughter had been sexually abused by another man when she was seven years old, and a psychiatrist who testified for the agency thought that the father's continued touching of the stepdaughter's legs showed a lack of “empathy or compassion” for her. When asked about the touching, the father claimed that he was not aware that his conduct bothered the stepdaughter. This sense of disassociation had apparently been longstanding. When asked to explain what prompted him to sexually abuse his other children in 1990, the father mentioned...