By Christopher Zoukis

The Ohio Supreme Court has upheld a lower court ruling that an imprisoned mother's sister was not a suitable placement for the mother's sheltered child because she was poor.

Brittany J. gave birth to A.J. in July 2014 while imprisoned on a five year sentence for robbery. A.J. was declared neglected and in need of shelter due to Brittany's incarceration. The Crawford County, Ohio Department of Job and Family Services ("the agency") gained custody of A.J. and proceeded to evaluate possible placement of the child.

A.J.'s reputed father, Brian, and his mother Brittany attempted to engage in a reunification plan, but Brian failed to comply with the plan in almost every respect. As a result, the agency abandoned reunification efforts, instituted proceedings to terminate parental rights, and moved for permanent custody of the child.

In an effort to find suitable placement for A.J., the agency investigated Jody J., a maternal aunt. However, because she had been charged with child endangerment in 2002, the agency deemed her unsuitable. The agency also cited Jody's lack of income at the time of her home study in its determination.

The trial court ultimately terminated Brittany and Brian's parental rights, refused Jody's application, and awarded permanent custody to the agency. Brittany appealed, arguing that the court should have placed A.J. with Jody.

The Ohio Supreme Court began its analysis by examining the statutory framework governing the placement of sheltered children in the state. The court noted that the charge of child endangerment made against Jody should not have precluded placement, because the statute prohibiting placement in such situations specifically alluded to a conviction of child endangerment, and included an exclusion for any convictions 10 years or older. Since Jody was charged, but not convicted, and more than 10 years had passed, the charge of child endangerment was not enough to preclude placement with her.

Regardless, however, the court found that Ohio law gives the agency almost total discretion in approving placements, with the best interest of the child the overriding mandate. Moreover, the court refused to agree with Brittany's argument that the agency must act in good faith when making placement decisions.

"[T]o the extent the proposition of law asserts that the agency must act in good faith, we note that the plain language of Ohio Admin. Code 5101:2-42-18 does not use those words," wrote the court.

With total discretion and no requirement to act in good faith, it is not surprising that the court upheld the agency's refusal to place A.J. with his aunt. Even a statutory requirement that the placement be "the least restrictive, most family-like setting available to meet the child's emotional and physical needs," was not enough for the court to interfere with the agency's discretion to deny placement with Jody as a result of her financial situation.

"Here, the record indicates that Jody's lack of income excluded her as a relative substitute caregiver for A.J.," wrote the court. "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."

Perhaps Jody was out earning an income to support A.J., who remained in foster care as a result of the decision.

Case:  In re A.J., Slip Opinion No. 2016-Ohio-8196.

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