Case Preview: How Far Does the Statutory Obligation of Reunification Go for Children’s Services Agencies? In the Matter of: A.J. Adjudged Neglected Child.

Update: On December 20, 2016, the Supreme Court of Ohio, by a vote of 5-2, held that the children services agency properly followed the rules in refusing to place A.J. in substitute care with a relative. See, In re A.J., 2016-Ohio-0353

On August 16, 2016, the Supreme Court of Ohio was to hear oral argument in the case of In the Matter of: A.J. Adjudged Neglected Child, but both the mother and the agency have now waived oral argument, so the case has been submitted on the briefs. The child’s father failed to submit a brief, so he was already precluded from arguing. At issue in this case is whether the county protective agency involved failed to make a good faith effort at a reunification plan in making its determination that the maternal great-aunt was unsuitable for temporary custody of the neglected child. What follows is an analysis of the arguments of the parties.

Case Background

On July 22, 2014, A.J., the child at issue in this case, was born to the appellant, Brittany Johnson, who was incarcerated for unrelated felony offenses at the time. The Crawford County Department of Job and Family Services (CCDJFS) received temporary custody of A.J., for foster care or relative placement.

In August of 2014, the parties stipulated to Johnson’s incarceration, and the trial court found A.J. to be a neglected child. The disposition phase of the proceedings was bifurcated to allow the alleged father of A.J., Bruce Schultow, to participate in a paternity test which confirmed that he was the biological father. As Schultow was a resident of Pennsylvania, CCDJFS requested an interstate home study via the Interstate Compact, which was conducted by Jewish Social Services. Schultow had been in jail in Pennsylvania until August 3, 2014, and upon his release had reported five different address changes. He never demonstrated proof of stable residency. He never visited with A.J. or appeared at any hearings.

CCDJFS attempted to evaluate some of Johnson’s relatives as a temporary caregiver for A.J. After the home-studies, none of the maternal relatives were given approval for a placement by the CCDJFS. Pertinent to this appeal, Johnson’s great-aunt Jody Johnson, a licensed teacher, was denied approval because of a prior neglect case from 2002 in which she was charged with child endangerment for leaving a child unattended in a car, but for which the record never showed any conviction. Jody Johnson was also found to lack an adequate income.

In January of 2015, unsatisfied with Schultow’s progress in the home- study, CCDJFS terminated the Interstate Compact, and filed a motion for permanent custody of A.J. The Guardian Ad Litem representing A.J. recommended that custody be given to CCDJFS. The final custody hearing was held in May of 2015, and the trial court terminated the parental rights of both Johnson and Schultow, and granted permanent custody of A.J. to CCDJFS.

Johnson appealed, and in a unanimous decision authored by Judge Richard Rogers, joined by Judges Stephen Shaw and John Willamowski, the Third District affirmed the trial court’s findings and grant of permanent custody to CCDJFS. The appeals court found a sufficient basis for the trial court’s finding of clear and convincing evidence to terminate parental rights.

Key Precedent

R.C. 2151.03(A)(2) (A neglected child is defined as any child “who lacks adequate parental care because of the faults or habits of the child’s parents, guardian, or custodian.”)

A.C. 5101:2-42-05 (Selection of a placement setting for the child)

(A) (Children’s Services Agencies “shall explore both maternal and paternal relatives regarding their willingness and ability to assume temporary custody or guardianship of the child.”)

(B) (When a suitable relative placement is not available or impossible, then the Children’s Services Agency can “explore placement with a suitable nonrelative who has a relationship with the child.”)

(E)(1) (In selecting the home that is consistent with the best interests of the child, the agency will consider the “least restrictive” setting.)

(F)(1)-(3) (A suitable relative is less restrictive than that of a suitable nonrelative, which is less restrictive than a foster home.)

A.C. 5101:2-42-18 (Children’s Services’ approval of placements with substitute caregivers)

(B)(2) (For any potential caregiver or adult in the household, a search of the statewide automated child welfare information system (SACWIS) must be completed per A.C. 5101:2-33-22.)

(B)(4) (The agency must “Provide the prospective caregiver with known information regarding educational, medical, child care, and special needs of the child including information on how to access support services to meet the needs of the child”)

(B)(5)(a)-(e) (Agency must also provide information regarding financial assistance programs and other childcare support services.)

(G) (Children’s Services Agencies “may deny the placement if the relative or nonrelative had his or her parental rights involuntarily terminated.”)

(H) (Placement shall not be approved if an adult residing in the home has “been convicted of or pleaded guilty to any offense listed in paragraph (I)(1) of this rule.”)

(I)(1)(lists disqualifying offenses)

In re Willis, 2002-Ohio-4942 (3rd Dist.) (“It is a firmly established principal of law that a parent has a fundamental right to care for and have custody of his or her child. . . [T]he right of parents to raise their children, coupled with the concomitant right of children to be raised by their parents, may not be interfered with unless the parent is unfit.”)

In re Weaver, 79 Ohio App.3d 59 (1992) (“[A] good faith effort to implement a reunification plan means an honest, purposeful effort, free of malice and the design to defraud or to seek an unconscionable advantage. . . A lack of good faith effort is defined as importing a dishonest purpose, conscious wrongdoing or breach of a known duty based on some ulterior motive or ill will in the nature of fraud.”)

In re T.S., 2015-Ohio-1184 (3rd Dist.) (“Agencies have an affirmative duty to diligently pursue efforts to achieve the goals in the case plan.”)

Johnson’s Argument

CCDJFS’s refusal to grant temporary custody to Jody Johnson, her great-aunt, was a failure of the agency’s obligation to act in good faith in seeking reunification between Johnson and A.J. Such a decision infringed upon Johnson’s most basic right– to parent her own child. Ohio courts have consistently held in cases such as In re Willis, that “the termination of parental rights is an alternative of last resort. . . [P]arents must be afforded every procedural and substantive protection the law allows.”

The requirement of good faith in achieving reunification efforts is a heavy burden, which Johnson believed was best described by the Twelfth District in In re Weaver as “an honest, purposeful effort, free of malice and the design to defraud or to seek an unconscionable advantage.” CCDJFS failed to meet this threshold when it blatantly denied Jody Johnson—a willing and able maternal relative—the opportunity to have temporary custody of A.J. until Johnson herself could resume her role as the child’s mother.  Under A.C. 5101-2-42-05(A)-(F), CCDJFS had a statutory duty to place the child with Jody Johnson, who would have provided the “least restrictive, most family-like setting available” for temporary placement.

While A.C. 5101-2-42-18 lists crimes (of which the party has been convicted or pled guilty to) and other factors that could preclude placement, none of them apply to Jody Johnson. The rationale given by CCDJFS—lack of income and a substantiated child endangerment case from over a decade ago—is not in line with the text or the spirit of the relevant sections of the Administrative Code. Furthermore, the utter lack of investigation into the thirteen-year-old allegation is also indicative of the CCDJFS failing to exercise good faith efforts.

The incident that the agency alleged was solely sufficient for denial of placement (1) never resulted in a conviction, and (2) never resulted in the termination of Jody Johnson’s parental rights. Therefore, under A.C. 5101:2-42-18, by automatically excluding Johnson’s great-aunt Jody as a suitable placement for A.J., CCDJFS did not act in good faith or in the best interest of the child pursuant to the statutory obligations overseeing substitute child placement. Additionally, CCDJFS’ failure to reinitiate a home-study with Schultow is further evidence of a breach of the agency’s duty to make a good faith effort towards reunification.

The alternative argument offered by CCDJFS, that Jody Johnson’s financial situation was also a sufficient ground for denying custody, is not only unsupported by the law, it is contrary to the duty created by A.C. 5101:2-42-18(B)(4)-(5) on agencies like CCDJFS. CCDJFS had a responsibility to inform and offer financial assistance and support services to a “prospective caregiver” like Jody Johnson.

This court must hold CCDJFS accountable to its statutory obligations, and adopt Johnson’s proposed proposition of law.

CCDJFS’s Argument

CCDJFS complied with the statutory and administrative obligations throughout its involvement in this case. All of A.J.’s proposed maternal relatives were unsuitable for an approved placement,  including Jody Johnson, whose prior history with child services coupled with a lack of income were a sufficient basis for denying placement with her. Even though these relatives were willing caregivers, they were not able ones (as the law requires). CCDJFS was equally justified in denying placement with Schultow, as he failed to contact A.J. during his home-study, and was unable to provide a stable home environment. Since the agency could not place A.J. with a maternal or paternal relative, foster care was the remaining and least restrictive option.

Contrary to Johnson’s assertions, either Jody Johnson’s prior neglect case, despite the age of that case, or her lack of income were sufficient to rule her out as temporary custodian of A.J.

More importantly, the Administrative Code does not require multiple factors to find a relative unsuitable for placement. Only one factor is necessary, which CCDJFS met in determining that Johnson’s maternal relatives were not appropriate for a placement. The agency did not act in bad faith when rejecting maternal relatives for placement.

A parent does have a fundamental right to raise his or her child. Termination of parental rights is an extraordinary measure, and because of this parents should be afforded every procedural and substantive protection under the law. But Jody Johnson is not A.J.’s parent. A.J.’s mother and father have had their day in court, and their rights were terminated in the best interests of A.J. after CCDJFS made a reasonable good faith effort at reunification.

Johnson’s Proposed Proposition of Law No. 1

Absent proof of conviction of one of the charges specified in A.C. 5101:2-42-18, a children services agency does not act in “good faith”/ ignores the mandates of A.C. 5101:2-42-05 when it refuses to place a minor child in substitute care with a relative based solely upon allegations that are in excess of ten (10) years old.

Votes to Accept Case:

Yes: Justices Pfeifer, O’Donnell, French, Kennedy and O’Neill

No: Chief Justice O’Connor and Justice Lanzinger

Student Contributor: Jefferson Kisor

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