[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re A.J., Slip Opinion No.
2016-Ohio-8196.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-8196
IN RE A.J.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re A.J., Slip Opinion No. 2016-Ohio-8196.]
Juvenile procedure—Ohio Adm.Code 5101:2-42-05—Ohio Adm.Code 5101:2-42-
18—Substitute-care placement—Exclusion of a relative as a substitute
caregiver.
(No. 2016-0353—Submitted August 16, 2016—Decided December 20, 2016.)
APPEAL from the Court of Appeals for Crawford County,
No. 3-15-12, 2016-Ohio-248.
_____________________
O’CONNOR, C.J.
{¶ 1} In this appeal, we are asked to determine whether a children-services
agency followed Ohio Adm.Code 5101:2-42-05 and 5101:2-42-18, which set forth
conditions for the placement of a child with a suitable relative in a substitute-care
setting. The plain language of the administrative code provisions does not support
SUPREME COURT OF OHIO
the interpretation proposed by appellant, Brittany J. Accordingly, we affirm the
judgment of the Third District Court of Appeals.
RELEVANT BACKGROUND
{¶ 2} Brittany gave birth to A.J. in July 2014 while serving the first month
of a nearly five-year prison sentence for robbery in violation of R.C. 2911.02(A)(2)
and drug possession in violation of R.C. 2925.11(C)(1). Appellee Crawford
County Department of Job and Family Services (“agency”) filed a complaint
alleging that A.J. was a neglected child pursuant to R.C. 2151.03(A)(2) because of
Brittany’s incarceration. The agency’s complaint requested permanent custody of
A.J.
{¶ 3} Following a shelter-care hearing, the juvenile court committed A.J. to
the temporary custody of the agency, pending further hearings. The court ordered
the agency to “evaluate the homes of available relative placements” with whom the
agency could place the child. The court scheduled an adjudication hearing for
August 18, 2014.
{¶ 4} Prior to the adjudication hearing, A.J.’s maternal grandmother and
maternal great-grandmother moved to intervene and seek temporary custody of A.J.
The agency opposed the motion because the grandmother had been involved with
the agency several times and Brittany had not requested placement with the
grandmother and the great-grandmother had failed a home-study evaluation.
{¶ 5} On August 18, 2014, the court held an adjudication hearing and
concluded that A.J. was a neglected child pursuant to R.C. 2151.03(A)(2). Among
those present at the hearing were court-appointed counsel for A.J.’s reputed father,
Brian, court-appointed counsel for Brittany, and counsel for A.J.’s maternal
grandmother and maternal great-grandmother. Neither the mother nor the reputed
father were present.
{¶ 6} At the parties’ request, the court postponed the disposition portion of
the hearing to allow the agency time to investigate possible placement with Brian.
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January Term, 2017
The court continued the previous order granting temporary custody of A.J. to the
agency. The court also denied the grandmothers’ motion to intervene.
{¶ 7} On October 10, 2014, the court held the disposition hearing. Present
at the hearing were representatives of the agency, the assistant prosecuting attorney,
court-appointed counsel for Brittany, court-appointed counsel for Brian, counsel
for the grandmothers, and a guardian ad litem to represent A.J.’s interests. The
agency withdrew its request for permanent custody based on indications from
Brittany and Brian that they intended to fully cooperate with the agency’s efforts to
pursue reunification of A.J. with Brian. But the parties agreed that A.J. be formally
committed to the agency’s temporary custody. The court ordered reasonable
visitation arrangements be permitted between A.J. and Brian and adopted the
agency’s case plan with a stated goal of reunifying A.J. with Brian.
{¶ 8} On January 22, 2015, the agency filed its semiannual administrative
review (“SAR”). The SAR stated that the agency’s goal was reunification of A.J.
with Brian but that insufficient progress had been made toward that goal.
Specifically, the report noted that Brian’s housing had not been verified, his income
was unknown, and he had failed to visit A.J. The SAR also stated that the agency
had checked relatives whose names were provided by Brittany, but none were
considered to be an appropriate placement. According to the SAR, A.J.’s foster
placement was a safe and stable environment that met all of the child’s needs. The
court approved and adopted the findings in the SAR on January 28, 2015.
{¶ 9} The next day, the agency moved for permanent custody. The motion
stated that the father had failed to cooperate with completing the case plan
objectives and that it had evaluated “all other possible placements” but had
determined them to be unavailable or unsuitable. The court scheduled a hearing for
April 2015 and issued Brittany and Brian summonses and notices of termination of
parental rights.
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SUPREME COURT OF OHIO
{¶ 10} Before the hearing on the motion, the judge received ex parte
correspondence from Brittany asking why placement of A.J. with a maternal aunt,
Jody J., had been denied. Brittany or her mother filed a pro se response to the
motion for permanent custody that stated that Jody had been told she was approved
for placement of A.J. and that accused the agency and court of “secret dealings.”
{¶ 11} Brittany also contacted the court asking that counsel be appointed.
The court then appointed substitute counsel on March 26, 2015. Brittany later
requested new substitute counsel on the grounds that the second appointed counsel
was biased against her and was not willing to advocate for her.
{¶ 12} After a continuance requested by the agency, the court held the
permanent-custody hearing on May 26, 2015. In attendance were a representative
of the agency, the assistant county prosecutor, court-appointed counsel for Brittany,
court-appointed counsel for Brian, and the guardian ad litem, who had filed a report
stating that granting permanent custody in the agency was in A.J.’s best interests.
Brian was not present and his counsel was not able to explain the reason for the
absence. Brittany was not present because she was incarcerated.
{¶ 13} As a preliminary matter, the court inquired about Brittany’s request
for substitute counsel. After discussion with the parties present, the judge declined
to appoint new substitute counsel.
{¶ 14} Susan Bauer, the agency’s foster-care and adoption coordinator,
testified that Jody had been charged with child endangering in 2002 and that that
conduct excluded her as a foster placement. Bauer also testified that the second
reason the agency denied placement of A.J. with Jody was because, at the time of
Jody’s home study, she did not have any income.
{¶ 15} At the conclusion of the hearing, the trial court granted permanent
custody to the agency. In a written opinion issued on June 23, 2015, the court set
forth its findings of fact and conclusions of law and ordered A.J. committed to the
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January Term, 2017
permanent custody of the agency for appropriate adoptive placement. The court
terminated the parental rights of Brittany and Brian.
{¶ 16} On appeal, Brittany argued that the agency did not make a good-faith
effort to reunify the parent and the child, because A.J. could have been placed with
Brian or Jody, and that the trial court’s decision was not supported by clear and
convincing evidence. The Third District Court of Appeals affirmed. The appellate
court concluded that the testimony presented at the permanent-custody hearing
established an appropriate basis for rejecting Jody as a relative caregiver.
{¶ 17} We accepted Brittany’s discretionary appeal to review the following
proposition:
Absent proof of conviction of one of the charges specified in
O.A.C. 5101:2-42-18, a children services agency does not act in
“good faith”/ignores the mandates of O.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.
See 145 Ohio St.3d 1443,
2016-Ohio-1596,
48 N.E.3d 583.
{¶ 18} The proposition before us relates only to the agency’s decision not
to place A.J. in Jody’s care as a substitute caregiver. We are not asked to review
the agency’s conclusion not to place A.J. with Brian and to terminate his parental
rights. We are also not asked to review the court’s decision to terminate Brittany’s
parental rights and grant permanent custody to the agency. We limit our discussion
and holding to the narrow issue before us.
ANALYSIS
{¶ 19} We apply the same rules of construction to interpreting
administrative regulations as we do to interpreting statutory provisions. McFee v.
Nursing Care Mgmt. of Am., Inc., 126 Ohio St.3d 183,
2010-Ohio-2744, 931
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SUPREME COURT OF OHIO
N.E.2d 1069, ¶ 27. Thus, we give the words of the administrative rules their plain
and ordinary meaning to discern the intent of the rule. State ex rel. Brilliant Elec.
Sign Co. v. Indus. Comm., 57 Ohio St.2d 51, 54,
386 N.E.2d 1107 (1979).
{¶ 20} Ohio Adm.Code 5101:2-42-18 identifies a number of factors that
could disqualify a relative or nonrelative from being named a substitute caregiver.
For example, if the relative or nonrelative has been convicted of or pleaded guilty
to certain offenses enumerated in the rules, the agency “shall not approve”
placement unless conditions set forth in the rules apply. Ohio Adm.Code 5101:2-
42-18(H). One of those conditions is that ten years has passed from the time the
person was fully discharged from prison or probation. Ohio Adm.Code 5101:2-42-
18(H).
{¶ 21} A conviction of or plea of guilty to child endangering under R.C.
2919.22 is one of the enumerated offenses that precludes placement. Ohio
Adm.Code 5101:2-42-18(I). But based on Bauer’s hearing testimony, the charge
did not exclude placement with Jody because nothing in the record established that
she had been convicted of or pleaded guilty to the offense, and over ten years had
elapsed since she was charged. In fact, Bauer testified that the case, which
originated in Richland County, was ultimately closed. Thus, Brittany is correct that
the plain language of the rule requires proof of a conviction or guilty plea. And had
the trial court relied solely on Bauer’s testimony that Jody had been charged with
endangering a child, we might accept the argument that she should not have been
excluded from being named a substitute caregiver.
{¶ 22} However, Ohio Adm.Code 5101:2-42-18 requires the agency to
adhere to additional procedures before placing a child with a relative substitute
caregiver. For example, the agency must “[a]ssess the prospective caregiver’s
ability and willingness to provide care and supervision of the child and to provide
a safe and appropriate placement for the child.” Ohio Adm.Code 5101:2-42-
18(B)(6). Bauer testified that another reason the agency denied placement of A.J.
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January Term, 2017
with Jody was because, at the time of Jody’s home study, she did not have any
income. Thus, contrary to what the proposition asserts, the allegation of child
endangering was not the sole basis for the agency’s decision.
{¶ 23} Additionally, to the extent the proposition of law asserts that the
agency must act in good faith, we note that the plain language of Ohio Adm.Code
5101:2-42-18 does not use those words. Prior to 1989, the statute governing a
motion for permanent custody, R.C. 2151.414, required a juvenile court to find that
the agency had made a good faith effort to implement the agency’s reunification
plan. But the statute was changed to require that an agency make reasonable efforts
to implement a reunification plan. Am.Sub.S.B. No. 89, 142 Ohio Laws, Part I,
198, 238-242. See In re Lacy, 12th Dist. Butler No. CA93-06-101, 994 WL 372231.
We decline to read language into the rules that the General Assembly removed from
the corresponding statutes.
{¶ 24} Pursuant to the plain language of the rules, placement of the child
with a substitute caregiver is in the agency’s discretion based on an assessment of
the child’s best interest. Ohio Adm.Code 5101:2-42-18(A). In fact, a substitute
care setting must be “consistent with the best interest and special needs of the
child.” Ohio Adm.Code 5101:2-42-05(E).
{¶ 25} Particularly relevant here is that the substitute-care setting must be
“the least restrictive, most family-like setting available to meet the child’s
emotional and physical needs” and must “provide a safe environment for the child.”
Ohio Adm.Code 5101:2-42-05(E)(1) and (5). Although the rules define the home
of a suitable relative as the least restrictive setting for a substitute-care setting while
an agency has temporary custody, a foster home is on the list of least restrictive
placements if there is no suitable relative or nonrelative with whom to place the
child. Ohio Adm.Code 5101:2-42-05(F). Thus, Jody’s suitability was a key
determination for the agency while it had temporary custody of A.J.
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SUPREME COURT OF OHIO
{¶ 26} Here, the record indicates that Jody’s lack of income excluded her
as a relative substitute caregiver for A.J. Jody was not present at the dispositional
hearing in October 2014 or at the permanent-custody hearing in January 2015 to
contest the agency’s determination and the record does not reveal why she was
absent. Nor is there any indication in the record that Brittany or Jody objected to
the agency’s reunification plan to place A.J. with Brian or that Jody moved for
permanent custody of A.J. or objected to reunifying A.J. with Brian.
{¶ 27} Although Brittany’s proposition addresses substitute-care placement
rather than the trial court’s permanent-custody determination, a trial court’s
decision in a custody proceeding is subject to reversal only upon a showing of abuse
of discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 417,
674 N.E.2d 1159 (1997).
Given the narrow scope of the appeal, and the record before us, we cannot say that
the trial court abused its discretion in not finding error in the agency’s decision to
deny Jody as a substitute caregiver when the agency had temporary custody of A.J.
CONCLUSION
{¶ 28} For the foregoing reasons, we affirm the judgment of the court of
appeals.
Judgment affirmed.
PFEIFER, LANZINGER, FRENCH, and O’NEILL, JJ., concur.
O’DONNELL, J., dissents, with an opinion joined by KENNEDY, J.
_________________
O’DONNELL, J., dissenting.
{¶ 29} Respectfully, I dissent.
{¶ 30} In my view, the Crawford County Department of Job and Family
Services (“agency”) did not comply with Ohio Adm.Code 5101:2-42-05(E)(1) by
selecting a substitute care setting that “[i]s considered the least restrictive, most
family-like setting available to meet the child’s emotional and physical needs.”
“The home of a suitable relative” is the least restrictive setting, Ohio Adm.Code
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January Term, 2017
5101:2-42-05(F)(1), and here, in my view, the agency failed to show that Jody J.,
the great aunt of A.J., is an unsuitable relative.
{¶ 31} The agency based its finding of unsuitability on an allegation of child
endangering that was more than a decade old and on Jody’s lack of income at the
time of her home study. The majority correctly concludes the child endangering
charge did not preclude placement with Jody (see Ohio Adm.Code 5101:2-42-
18(H)), but finds “the record indicates that Jody’s lack of income excluded her as a
relative substitute caregiver for A.J.” Majority opinion at ¶ 26.
{¶ 32} Here, however, the majority failed to consider that Ohio Adm.Code
5101:2-42-18 contemplates that a relative may be suitable to care for a child but
may require financial or other assistance. Division (B)(4) of the regulation
mandates that prior to placing a child with a relative substitute caregiver, the agency
shall “[p]rovide 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.” In
addition, division (B)(5) mandates that prior to placement, the agency provide the
prospective caregiver with information on how to apply for Ohio Works First child-only financial assistance and Medicaid coverage and for certification as a foster
caregiver and information on the requirements for foster caregiver certification, the
difference in payment between an Ohio Works First child-only payment and the
foster care per diem, and any difference in eligibility for supportive services.
{¶ 33} This record is silent about whether the agency gave this information
to Jody, and it contains no information about her assets or employment history or
prospects aside from the fact that she may have a teaching license. The only
information in the record about Jody’s financial situation is that she had no income
at the time the agency conducted the home study. That fact, standing alone, does
not demonstrate Jody is unsuitable to care for A.J.
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{¶ 34} Accordingly, the record does not demonstrate that the agency
complied with Ohio Adm.Code 5101:2-42-05(E)(1), and thus, the court of appeals
erroneously concluded that the testimony presented at the permanent custody
hearing “established an appropriate basis for rejecting [Jody] as a relative
caregiver.” 3rd Dist. Crawford No. 3-15-12, 2016-Ohio-248, ¶ 42. Therefore, I
would reverse the judgment of the court of appeals, vacate the judgment of the trial
court granting permanent custody to the agency, and instruct the trial court to order
a new home study where the agency can evidence its compliance with Ohio
Adm.Code 5101:2-42-05(E)(1) and make an appropriate placement consistent with
the Ohio Administrative Code.
KENNEDY, J., concurs in the foregoing opinion.
_________________
Starkey and Stoll, Ltd., and Geoffrey L. Stoll, for appellant.
Matthew Crall, Crawford County Prosecuting Attorney, and Michael J.
Wiener, Assistant Prosecuting Attorney, for appellee Crawford County Job and
Family Services.
_________________
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