In re C.J.
| Decision Date | 13 March 2018 |
| Docket Number | No. 16AP–891,Nos. 17AP–162,17AP–191,16AP–891,s. 17AP–162 |
| Parties | In the MATTER OF: [C.J., JR., B.F., Appellant]. In the Matter of: [C.J., Jr., P.G., Appellant]. |
| Court | Ohio Court of Appeals |
On brief: Goldwater Institute, and Aditya Dynar; Wegman, Hessler & Venderburg, and Christopher A. Holecek, Cleveland, for Guardian ad litem B.F. Argued: Aditya Dynar.
On brief: Bricker & Eckler LLP, Jennifer A. Flint, Columbus, and S. Courter Shimeall, Columbus; Gila River Indian Community and Thomas L. Murphy, for appellee Gila River Indian Community. Argued: Jennifer A. Flint and Thomas L. Murphy.
On brief: Yeura Venters, Public Defender, and Timothy E. Pierce, Columbus, for appellee Father. Argued: Timothy E. Pierce.
On brief: Giorgianni Law LLC and Paul Giorgianni, Columbus, for appellant Mother. Argued: Paul Giorgianni.
On brief: Michael DeWine, Attorney General, Eric E. Murphy, Columbus, and Michael J. Handershot, for Amicus Curiae Attorney General. Argued: Michael J. Handershot.
On brief: Law Office of Jeffrey M. Gamso and Jeffrey M. Gamso, Cleveland, for Amici Curiae National Congress of American Indians and National Indian Child Welfare Association.
DECISION
{¶ 1} These consolidated appeals from decisions and judgment entries of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, present this court with a troubling procedural scenario. At the heart of this controversy is a five-year-old child, C.J., Jr., currently living with his foster parents, who have been caring for him since he was two years old. For the reasons that follow, we reverse and remand for further proceedings in accordance with this decision.
{¶ 2} C.J., Jr. is an Ohio citizen, born in Ohio on July 16, 2012 to C.J., Sr. and S.R., also Ohio citizens.1 C.J., Jr. is currently living in an Ohio foster home with Ohio foster parents (N.B. and S.B.), with whom he is bonded, and where he was placed by an Ohio governmental agency, Franklin County Children Services ("FCCS").
{¶ 3} On January 8, 2015, FCCS filed a complaint in case No. 15JU–232 alleging that C.J., Jr. was a neglected, abused, and dependent child. After a preliminary hearing, the abuse count was dismissed, and the case proceeded on allegations of neglect and dependency. A guardian ad litem ("GAL") was appointed on January 9, 2015. The GAL recommended that temporary custody of C.J., Jr. be taken and that custody should be granted to FCCS. C.J., Jr. was placed in the home of foster parents N.B. and S.B. where he remains to this day.
{¶ 4} Ohio Adm.Code 5101:2–53–03 requires the public children services agency to inquire whether a child or a family member of the child is a member or eligible for membership in an Indian tribe. At FCCS's initial contact with the family, C.J., Sr. stated he may have Pima Native American heritage. After researching federally recognized tribes, Permanent Family Solutions Network ("PFSN"), an agency contracted by FCCS to provide the same services mandated by FCCS, was unable to locate a Pima tribe. PFSN therefore sent a notice of proceedings to the Bureau of Indian Affairs ("BIA") and the United States Department of the Interior Midwest Regional Office ("Interior") on March 10, 2015 as required by Ohio Adm.Code 5101:2–53–01(E). The notice was sent to the BIA in Minnesota but erroneously listed the mother as the parent with Indian heritage. However, the Indian Child Welfare Act ("ICWA") ancestry chart was attached to the notice, and it was filled out with the information provided by the father, C.J., Sr. Service was perfected on the BIA on March 17, 2015, and service was perfected on the Interior on March 16, 2015.
{¶ 5} FCCS has represented to this court that:
After researching the federally recognized tribes, Pima was not located. Therefore, the ICWA filing and notifications happened on March 10, 2015 to the US Department Bureau of Indian Affairs and the US Department of the Interior Midwest Regional Office.
(Feb. 10, 2017 Memo. of Law Regarding FCCS Compliance with ICWA at 2–3); See Ohio Adm.Code 5101:2–53–03(E).
{¶ 6} On March 19, 2015, the Interior responded to PFSN that the notice of proceedings was insufficient and requested further information. PFSN took no further action.
{¶ 7} On March 27, 2015, the GAL recommended a temporary court commitment to FCCS as being in C.J., Jr.'s best interest while the parents were given the opportunity to work a case plan. The parents remained homeless, unemployed, and continued to struggle with addiction, but maintained a commitment to visitation with C.J., Jr.
{¶ 8} R.C. 2151.413(D)(1) states that if a child has been in the temporary custody of a public children services agency for 12 or more months of a consecutive 22–month period, the agency must file a motion for permanent custody. On May 5, 2016, FCCS filed a Motion for Permanent Court Commitment ("PCC"), and the GAL filed a report on June 1, 2016 recommending PCC. A hearing was scheduled for June 8, 2016. The parents failed to appear, and a continuance was granted over the objection of FCCS and the GAL.
{¶ 9} The Gila River Indian Community ("GRIC") was brought into the case in July 2016 when the mother's attorney contacted Gila River Tribal Social Services informing them of the PCC motion. C.J., Sr. had indicated to FCCS that he was a Pima Indian, and the GRIC asserted he was an enrolled member of that community.2 The GRIC is composed of Pima and Maricopa Indians. It is a federally recognized Indian tribe with a reservation in southern Arizona.
{¶ 10} FCCS served GRIC with the motion for PCC on July 11, 2016.
{¶ 11} On July 19, 2016, the GAL moved to terminate temporary court commitment ("TCC") to FCCS and to grant legal custody to the foster parents, N.B. and S.B. In support of the motion, the GAL wrote:
(July 19, 2016 Mot. for Alternative Disposition at 2–3.)
{¶ 12} GRIC filed a motion to intervene on July 22, 2016, and a motion for a change of jurisdiction to the Gila River Indian Community's Children's Court in Sacaton, Arizona ("tribal court") on September 14, 2016.3 GRIC asserted that because C.J., Sr. was an enrolled member of GRIC, C.J., Jr. was eligible for enrollment with GRIC, and therefore C.J., Jr. was an "Indian child" for purposes of the ICWA. 25 U.S.C. 1903(4).4 At a subsequent hearing before the magistrate, the attorney for mother, the attorney for father, and the GAL all agreed that C.J., Jr. was an Indian child.
{¶ 13} The mother, S.R., through counsel, filed an objection to the transfer of jurisdiction on September 22, 2016. The GAL also filed an objection to the transfer of jurisdiction on September 22, 2016.
{¶ 14} On October 4, 2016, the magistrate dismissed the motion for PCC at the request of the movant, FCCS.
{¶ 15} The matter was set for an evidentiary hearing on November 2, 2016, and neither parent was present. The magistrate heard opening statements concerning the issues of transfer of jurisdiction and whether placement with the tribe was appropriate.
{¶ 16} The attorney for FCCS represented that the family did not make any representations that the father was a member of GRIC. Rather, father indicated that he was Pima. Therefore, notification was sent to the BIA in the Interior along with the ancestry chart indicating the father's heritage was Pima.
{¶ 17} The attorney for the father represented to the court that C.J., Sr. was eligible or potentially eligible for no-cost housing on the reservation if he were to move there, and that he could be put on a waiting list for a program on the reservation where the reservation would build a home for its members. The attorney further represented that the community earned income from its various casinos and that C.J., Sr. was entitled to a share of that and had received checks from there. Also, the attorney represented that the house where it was proposed C.J., Jr. be placed had acreage and some horses.
{¶ 18} The GAL represented that jurisdiction should remain with the court in Ohio based on the mother's objection under 25 U.S.C. 1911, and the GAL's objection on grounds of forum non conveniens. The GAL also argued that under 25 U.S.C. 1915(b), the child should be placed in the least restrictive setting which most approximates a family and in which his special needs may be met, and is within a reasonable proximity to his home. Also, the GAL argued that the court could make a good cause determination to deviate from the placement preferences listed in the statute based on the request of the biological parent or the child if he is of sufficient age, the extraordinary physical or emotional needs of the child as established by the testimony of a qualified expert witness, and the unavailability of suitable families after a diligent search. The GAL also cited...
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LAWYERING THE INDIAN CHILD WELFARE ACT.
...T., 199 A.3d 221, 229 n.12 (Me. 2019) (noting denial of transfer in an ICWA case is an appealable interlocutory order); In re C.J., Jr., 108 N.E.3d 677, 690-91 (Ohio Ct. App. 2018) (noting complex procedural history of appeals from multiple parties arising out of order transferring case to ......