​​​The Ohio Supreme Court is being asked to hear a case regarding the appeal of administrative findings by JFS regarding administrative dispositional findings.
 
This appeal presents a question of first impression to this Honorable Court, namely whether the rule established in Pryor v. Director of Ohio Department of Job & Family Services, 148 Ohio St. 3d 1, 2016-Ohio-2908, that an administrative Agency must strictly comply with the procedural requirements governing issuance of its decision before the time for appeal runs, is satisfied where the Agency decision states: Pursuant to the Ohio Administrative Code Section 5101:2-33-20(H), the decision of the PCSA [Public Children’s Services Agency] regarding the report disposition appeal is final and not subject to state hearing review under sections 5101 .35 of the Revised. Code nor subject to judicial review pursuant to the authority cited above. And the appellant is told by the Agency and its counsel that: “It is clear that O.A.C. §5101:2-33-20 prohibits appellant from seeking review of this decision by way of administrative appeal.” See p. 5 of Appellees November 20, 2020 Brief in Alexis Bogan v. Mahoning County Children Services, Case No. 2020-cv-406. The regulatory framework cited above relates to decisions of Ohio county Departments of Children’s Services (hereinafter “Children’s Services”) in connection with resolution of allegations of physical abuse of a child. The reason this is a case of great general interest is because the current appeal notification given 4 under O.A.C. 5101 et. seq. is misleading and does not provide appropriate notice of appellate rights. The history of this action is proof.
 
Here, the Agency gave express misinformation to Appellant that an administrative appeal of the Agency decision was prohibited and unavailable. The appellate Court’s decision that this appeal is time-barred, ignored the fact that the Agency misled Ms. Bogan concerning her appellate rights and has yet to comply with Ohio law concerning Ms. Bogan’s right to appeal. In this connection, the Ohio Supreme Court has stated in relation to administrative appeals in Pryor v. Dir. Ohio Dept. of Job and Family Services, 148 Ohio St. 3d 2016-Ohio-2907the following: When a statute confers a right to appeal, the appeal can be perfected only in the mode the statute prescribes. Zier v. Bur. of Unemp. Comp., 151 Ohio St. 123, 84 N.E.2d 746 (1949), paragraph one of the syllabus. Compliance with the specific and mandatory requirements governing the filing of a notice of appeal "is essential to invoke jurisdiction of the Court of Common Pleas." Id. at paragraph two of the syllabus. Id. The Pryor Court also stated: We have consistently held that an administrative agency must strictly comply with the procedural requirements governing the issuance of its decision before the time for appeal begins to run. In Proctor v. Giles, 61 Ohio St.2d 211, 400 N.E.2d 393 (1980), we held that compliance by the Unemployment Compensation Board of Review with the procedural requirements of former R.C. 4141.28(0) was a necessary 10 precondition to the running of the 30-day period to appeal. In Sun Refining & Marketing Co. v. Brennan, 31 Ohio St.3d 306, 511 N.E.2d 112 (1987), we concluded that an agency must comply with the procedural requirements in R.C. 119.09 before the 15-day appeal period begins to run. Id. At 308-309, citing Proctor. Id. Here the Agency not only failed to comply with the procedural requirements governing appeal, at no time did the Agency ever advise Ms. Bogan that contrary to the Agency’s statement in its decision concerning judicial review, Ms. Bogan had a right to appeal under R.C. 2506.01, et seq. The Ohio Supreme Court has stated an Agency must strictly comply with the procedural requirements governing issuance of its decision before the time for appeal begins to run. Under this rule, the time for Ms. Bogan’s appeal still has not begun to run because not only did the Agency fail to comply by not advising Ms. Bogan of her appellate rights, the Agency here did just the opposite. The Agency told Ms. Bogan, she had no right to appeal. In this case Ms. Bogan’s right to Due Process of Law has been gravely injured. First, due to privacy issues, Ms. Bogan was denied all medical records related to the qlleged injuries, she was permanently barred from employment with children and told she had no appellate rights.

Recently the Ohio Revised Code was Revised to allow children to remain in their foster homes instead of with Kinship placement, that could be strangers to the children.   This could ultimately give foster parents more rights involving dependency cases. 

Title 21 | Courts-Probate-Juvenile
Chapter 2151 | Juvenile Court

 Ohio Rev Code § 2151.4118 (2020)Effective: September 30, 2021

A court may issue an order that determines, with respect to a child described in section 2151.4116 of the Revised Code who is not receiving care in the home of a kinship caregiver, that the continuation of the child's current placement is in the child's best interest and that intensive efforts to identify and engage an appropriate and willing kinship caregiver for the child are unnecessary if the court makes the findings in section 2151.4119 of the Revised Code.
Last updated August 6, 2021 at 2:51 PM

Section 2151.4119 | Findings supporting court determination.

 A court may issue an order under section 2151.4118 of the Revised Code if it finds all of the following:

(A) The child has been living in a stable home environment with the child's current caregivers for the past twelve consecutive months.
(B) The current caregivers have expressed interest in providing permanency for the child.
(C) The removal of the child from the current caregivers would be detrimental to the child's emotional well-being.
Last updated September 15, 2021 at 6:12 PM


Legislative text:   https://search-prod.lis.state.oh.us/solarapi/v1/general_assembly_134/bills/hb289/IN/00/hb289_00_IN?format=pdf

What does this mean if your child is in foster care?  That if they are in a foster placement 

OPINION      Best interests of child should rule in custody arrangements
Kathleen C. King
Opinion contributor
Published January 13, 2022

View Comments 

In a Jan. 9 op-ed, Teresa Harlow recently suggested that Ohio law encourages unfair custody arrangements because the starting place is not a 50-50 division between the parents ("Ohio law encourages lopsided, unfair custody arrangements"). The fairness, however, should belong primarily to the child.
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Children remain in the formative years of development and did not decide to be born, belong to this family, or to get a divorce. Ohio law focuses on the best interests of the child. This is where the focus should be.
Both parents usually love their children equally, but parents may have different ways of showing that love. Some are better at earning money so that the child has the advantage of living well enough. Others are stronger with interacting more directly with the child.

I was a magistrate in Hamilton County Domestic Relations Court for nearly 29 years. The Ohio Judicial College and the Cincinnati Bar Association provided seminars involving the developmental stages of children and other visitation issues. Many years ago, the court formed a committee to develop a starting place for parenting time depending on the age of the child. The schedule was only a starting place because parents have different work schedules and capabilities, and all children are not the same.

Babies need a very definite primary caretaker. Shuffling them back and forth on an equal basis puts them at risk for separation anxiety and insecurities long into adulthood. Would a 50-50 parenting division work for a child who is disorganized and suffers from ADHD? My experience from the bench says "generally not." 

Such children being transferred from one household to another often lose track of clothing, school work and extracurricular activities. A teacher might notice that the child has his homework completed every other week or that the child will wear the same clothing three days in a row every other week. If one of the parents works ungodly hours in order to provide food and shelter or material advantages, that hard-working individual may have to hand the child over to neighbors, babysitters, or grandparents until after the children are in bed. Sometimes they might leave the child unattended.

It is best if the parents can agree on a parenting schedule without court involvement. Conflict resolution specialists like Ms. Harlow can offer the community a tremendous service by helping parents figure out a reasonable parenting time schedule. They may agree that a shared parenting plan works. In the event the parents can't agree, it becomes the court's job to handle the situation.

The Ohio law appropriately requires that both parents be viewed equally before the court as it relates to parental rights and responsibilities. Neither gender is to have an advantage. Ohio statutes also rightly demands the court focus on the child's best interests.

In determining the best interests of the children, the court must consider all relevant factors, including, but not limited to:

• The wishes of the child's parents regarding the child's care;
• The wishes and concerns of the child, if expressed to the court;
• The child's interaction and interrelationship with parents, siblings, and other persons who could affect the child's best interest;
• The child's adjustment to the child's home, school, and community;
• The mental and physical health of all persons involved in the situation;
• The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
• Whether either parent has failed to make all child support payments, including arrearages;
• Whether either parent or any member of the household of either parent previously acted in an inappropriate manner that could cause negatively affect a child;
• Whether either parent has established a residence, or is planning to establish a residence, outside this state. https://codes.ohio.gov/ohio-revised-code/section-3109.04.

​I may quarrel with a few of the nuances in Ohio's statutes regarding custody. Basically, though, Ohio has it right. The best interests of the child should rule.

Kathleen C. King was a magistrate in Hamilton County Domestic Relations Court for approximately 29 years and is now of counsel with The Farrish Law Firm.

JFS contacted you that they would like you to agree to a Safety Plan.  What should I do?

THERE ARE THREE TYPES OF SAFETY PLANS:

Voluntary In-Home:
This is implemented on the JFS 01409 CAPMIS Safety Plan.

Voluntary Out-Of-Home:
This is implemented on the JFS 01409 CAPMIS Safety Plan.

Legally Authorized Out-Of-Home:
This child is legally removed from the home and temporary custody is given to the PCSA or relative/kin.
The JFS 01409 Safety Plan is not required to be completed. The court complaint and motions will provide
the justification of how this safety response will immediately protect the child.

Although not the intent, these safety plans could go on for years, with little third party oversite.

The benefits of agreeing to a safety plan is to avoid JFS taking custody of the child/dren.   This is a reasonable effort that JFS must attempt prior to filing for custody. However, for JFS to gain custody they would first need to prove that the child would be at risk of harm if JFS did not step in and take custody.  If they can't meet the burden, than their motion will be denied. ​​

SHOULD YOU COOPERATE WITH JFS?  

It depends on the circumstances.  If the allegation involves significant harm to your child yes.   However, cooperation is voluntary, but they could argue that your failure to cooperate showed a lack of protective capacity.

If you ask that JFS speak to you only with your attorney present, they will cease any further communication, but they could also choose to seek legal custody.

If JFS has not taken legal action, they will not appoint you an attorney or a Guardian ad Litem for the child. 

A SAFETY PLAN IS VOLUNTARY 

You can discontinue the safety plan at any time.  You may change placement providers or ask that the safety plan be terminated.  The agency may or may not file for custody if the determine the risk still exists.  

WHAT TO EXPECT ON A SAFETY PLAN

There will be certain rules in place, depending on whether the safety plan is an in or out of home plan.  This may require supervision of persons with the children.  

They will ask you for names of persons who could be listed on the safety plan.  More than one person may be named as safety plan providers.   

They may ask you to participate in assessments and follow those recommendations.   This is part of a case plan.  You should make sure you understand what is expected to terminate the safety plan.  

JFS cannot supervise visits, so if supervised visits are required, they will need to be conducted by the safety plan provider or other approved persons.

SHOULD I BE A SAFETY PLAN PROVIDER?

If you choose to be a safety plan provider, make sure you and the parents under stand the rules.  Failure to comply with the safety plan could prevent you from continuing as a placement provider if JFS seeks custody.

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