In re R.M.

[Cite as In re R.M., 2017-Ohio-4325.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

IN RE: R.M. :
:
: C.A. CASE NO. 27318
:
: T.C. NO. 2013-6460
:
: (Civil Appeal from Common
: Pleas Court, Juvenile Division)
:
:
...........

OPINION

Rendered on the ___16th ___ day of _____June_____, 2017.

...........

MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Appellee

JOYCE M. DEITERING, Atty. Reg. No. 0005776, 8801 N. Main Street, Suite 200, Dayton,
Ohio 45415
Attorney for Appellant

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the October 28, 2016 Notice of Appeal of

I.M. (“Father”). Father appeals from the October 21, 2016 “Decision and Judgment

Concerning the Objections to the Decision of the Magistrate,” which overruled his
 -2-

objections to the Magistrate’s Decision and granted permanent custody of Father’s son,

R.M., who was born in 2013, to Montgomery County Department of Job and Family

Services – Children Services Division (“MCCS”). We hereby affirm the judgment of the

trial court.

{¶ 2} MCCS filed a “Dependency Complaint” and a “Motion and Affidavit for Interim

Temporary Custody at an ex parte Proceeding” in the juvenile court on September 16,

2013, alleging that R.M. was born by C-section at 32 weeks gestation, due to his mother,

R.B. (“Mother”) having severe pre-eclampsia. According to the complaint, R.M. weighed

3 pounds, 5.8 ounces at birth, and he was put on a ventilator with brain and kidney

problems. The complaint alleged that Mother did not realize she was pregnant until she

was six months into the pregnancy and did not receive prenatal care. The complaint

further provides that Father has been abusive to Mother, and that there are concerns

“both parents have alcohol abuse issues.” The complaint provides that Mother has two

older children who live with a relative in Kentucky due to Mother’s alcohol abuse.

According to the complaint, the family is from Nepal, without family resources, and they

do not speak English. The complaint further provides that Mother was discharged from

the hospital, and that R.M. remains in the NICU. According to the complaint, a

caseworker, with an interpreter, visited Mother and Father in their home, and they had no

baby supplies, furniture or a bed for themselves or any source of income, and they

reportedly were living on unknown savings. The complaint provides that Mother and

Father struggle with connecting with resources due to their language barrier and lack of

support.

{¶ 3} According to the complaint, R.M. had two bilateral brain hemorrhages and
 -3-

was on oxygen for a time, and he had a feeding tube while hospitalized. The complaint

provides that Mother and Father have visited R.M. in the hospital “sporadically,” with

several days between visits. It further provides that the hospital is preparing to discharge

R.M. The complaint provides that the agency has concerns about the parents’ ability to

meet R.M.’s special needs, and it notes that at a meeting with hospital staff on September

12, 2013, both parents threatened to harm or kill themselves if they are not permitted to

take R.M. home with them. Finally, the complaint provides that Mother may be married

to a man who remains in Nepal, and that Father is also married to someone else who

lives in Nepal. The court issued an “Order of Temporary Custody ex Parte” on the same

date the complaint was filed.

{¶ 4} After a shelter care hearing on September 20, 2013, a “Magistrate’s Order

of Interim Custody” was issued 10 days later. It provides that Mother and Father have

substance abuse issues and do not have appropriate supplies in their home for R.M. It

provides that MCCS has concerns that R.M.’s medical issues may be the result of

Mother’s consumption of alcohol during her pregnancy. The order provides that interim

temporary custody to MCCS is in R.M.’s best interest.

{¶ 5} A hearing on the complaint was scheduled for November 15, 2013, and on

that date, the “Report of the Guardian Ad Litem” (“G.A.L.”) was filed. It provides that the

G.A.L. recommends that the juvenile court grant temporary custody to MCCS. On

December 5, 2013, the “Magistrate’s Decision and Judge’s Order of Disposition of

Temporary Custody” was filed. The Magistrate determined the allegations in the

complaint to be true and declared R.M. a dependent child.

{¶ 6} On August 3, 2014, MCCS filed a “Motion and Affidavit for a First Extension
 -4-

of Temporary Custody to MCCS.” The affidavit of Shelly Aggarwal provides that Mother

and Father are making progress on their case plan objectives, and that they are both

employed at a restaurant full time, each making $800.00 per month. According to the

affidavit, both parents completed the Council for Alcohol and Drug Abuse Services

therapy for substance abuse, both parents deny current use of alcohol, and both

completed parenting classes. Aggarwal averred that Mother and Father were living rent

free in an apartment provided by their employer, and they still need to obtain independent

housing. The affidavit provides that MCCS was providing assistance in locating housing

and utilities. According to Aggarwal, both parents visit with R.M. at MCCS on

Wednesdays from 1:00 - 4:00 p.m., unless they are unable to leave work. Aggarwal

averred that Mother and Father make every effort to attend the visits, and that they are

“very loving and nurturing” to R.M., bringing age appropriate snacks and toys to share

with him. The affidavit provides that both parents are attentive to R.M. and spend most of

the visits playing and talking with him.

{¶ 7} On October 22, 2014, the “Magistrate’s Decision and Judge’s Order Granting

a First Extension of Temporary Custody” was filed. It provides that Mother and Father

made progress on their case plan objectives “but they still need to obtain and maintain

independent, safe and appropriate hous[ing] that is not provide[d] by their employer.”

The Magistrate found that a first extension of temporary custody to MCCS is in R.M.’s

best interest.

{¶ 8} On January 30, 2015, and February 3, 2015, MCCS sought a second

extension of temporary custody. The supporting affidavit of Shelly Aggarwal provides

that in December 2014, “the parents called MCCS and stated that they had moved to
 -5-

Virginia to live with a relative and look for work. The parents did state that they intended

to return to the Dayton area in two months. MCCS has attempted to make contact with

the family via phone however the phone number was disconnected.” The affidavit

provides that the family “still needs to obtain independent housing and a source of

income.” On February 13, 2015, Aggarwal filed Affidavits for Service by Posting,

averring that Mother’s and Father’s whereabouts were unknown.

{¶ 9} On April 15, 2015 a “Magistrate’s Decision and Judge’s Order Granting a

Second Extension of Temporary Custody” was filed. It provides that Mother and Father

have left the State of Ohio, their whereabouts are unknown, and that based on the

credible testimony presented in court, a second extension of temporary custody is in

R.M.’s best interest.

{¶ 10} A “Motion and Affidavit for Commitment to the Permanent Custody of

MCCS” was filed on July 22, 2015. Aggarwal’s affidavit provides at the end of December

2014, “the parents stopped coming to visitation when they moved out of state.” Aggarwal

averred that Mother and Father are “reporting that they have obtained housing and

benefits through Human Services in Rochester[,] New York. In addition [Father] has

obtained part-time employment. Since December 2014, MCCS made several attempts

to get in touch with the parents. MCCS did not have a working phone number for the

parents.” According to the affidavit, when “MCCS did speak to the parents in January

2015, the parents were asked to make monthly contact with MCCS but the parents did

not. In July 2015, MCCS was again able to make contact with the parents by phone.

With the assistance of an interpreter, MCCS did arrange a meeting with the parents that

would take place on the phone.” Aggarwal averred that when “the phone conversation
 -6-

took place the parents did tell MCCS that they had housing, benefits, income, and were

not * * * drinking alcohol. The [p]arents did e-mail MCCS proof of housing, income, and

benefits.” According to Aggarwal, in July 2015, MCCS “made the request that New York

complete an interstate home study to determine if the parents’ home was appropriate for

the child. The child continues to do well in care. The child attends speech therapy

weekly at Dayton Children’s and receives HMG/PACE service bi-weekly to help with his

socialization. The child is not school age.” The affidavit provides that no “relatives are

able, willing and appropriate to care for the child.” The affidavit further provides,

“[b]ecause the parents are unfit/unable to care for the child, it is in the best interest of the

child for the Court to commit the child to the permanent custody of MCCS.”

{¶ 11} On September 22, 2015, a “Motion to Transfer Foster Care” was filed by

counsel for Father. It provides in part that Father “hereby moves this Court for an Order

transferring the child’s foster care provider to someone residing in or near Rochester,

New York, because both parents do not have the financial resources to travel to Dayton,

Ohio for visits with the child and cannot obtain employment in or near Dayton, Ohio.”

The motion provides that “[b]oth parents now reside by economic necessity in New York

where they have suitable housing and employment.” An “Amended Motion and Affidavit

for Commitment to the Permanent Custody of MCCS” was filed on September 24, 2015.

A “Notice of Hearing” for November 9, 2015 was issued on September 29, 2015.

{¶ 12} At the start of the hearing on November 9, 2015, counsel for Father

indicated that his “Motion to Transfer Foster Care” was pending, and that he sent a copy

of the motion and the notice of hearing to Father via ordinary mail, and that the mail was

not returned as undeliverable. He stated, “My client has not appeared this morning, at
 -7-

least as of now 10:00 a.m. an hour past the Notice date and time. The question initially

is whether it’s ethical for me to proceed on the Motion at all by perhaps calling the

caseworker on cross or whether it is inappropriate for me to do anything.” The Magistrate

responded, “I guess, I would want to hear some testimony from the caseworker.”

{¶ 13} Counsel for Father called Aggarwal as if on cross examination. She stated

that she has been involved with R.M. and his parents since September of 2013. When

asked how compliant the parents were with their visitation schedule with R.M., Aggarwal

stated that ,”[i]n general, they would come to visitation. However, they would leave their

work to come to visits. And they worked at an Indian restaurant at the time. So, if their

employer said, hey, we’re going to be really busy today or there’s going to be a large party

[sic]. Then they would not come to the visitation.” She stated that “there were times

where there would be weeks would pass and they wouldn’t come to visitation. But they

would tell us because it was their employer would not allow them to leave work [sic]. But

when there was not an issue with work according to the parents, then they would come

to visitation.”

{¶ 14} Aggarwal stated that “around December 2014 they had been coming

regularly, weekly” to visit R.M., and then they stopped coming, and she stated that “we

assumed that it was because they were busy at work.” She stated that “several maybe

a couple maybe two to four weeks had passed and they hadn’t come,” and the Father

then “called me and said that he was in Georgia1. They had gone to Georgia and that

they would be back in two months to get [R.M.].” She stated that she received the call

1
We note that in MCCS’ motions seeking a second extension of custody, Aggarwal
averred that Father advised her that the family had moved to Virginia.
 -8-

from Father in January 2015, and “then when I attempted to call him in February that

number was no longer valid and I didn’t have a way of contacting them.”

{¶ 15} When asked if she subsequently learned that Mother and Father had

relocated to Rochester, New York, Aggarwal responded as follows:

A. Prior to them moving to Rochester I had received a call from, she

said she was a family friend and then she said she was an aunt. So she

identified herself as an aunt. But said she was a family friend [sic]. She

said the family was living in New Jersey. So, she had given me her contact

information to make contact with the family. So, when I had called back

because I had to get an interpreter to do the conversation, I was unable to

actually reach the parents. So, the next month approximately, I would say

around April of 2015 I received an email from a gentleman named Bhawani

Bhujel from Rochester Rehabilitation. And he said that he was their case

manager and he was working with them to obtain benefits and services in

the community.

{¶ 16} Aggarwal stated that she asked Bhujel for a Release of Information from

both parents, and that he “said okay.” She stated that she did not hear from him again

in April or May. Aggarwal testified that “that was around the time that the Agency needed

to do their filing. So, I made a last attempt to make another contact with him * * * around

June of 2015” to obtain the Releases of Information. She stated that she received the

Releases near the end of June 2015, and she “set up a phone conference with an

interpreter along with the parents for the first week of July of 2015.” On that phone

conference, Aggarwal stated that Mother and Father told her they were living in
 -9-

Rochester, that Mother was pregnant and due in July or August 2015, that Father was

working part-time, and that they “had received benefits in regards to housing. They were

receiving housing through Rochester. Food stamps and some cash assistance.”

Aggarwal stated that she confirmed this with documentation from their case manager who

“emailed me those documents.”

{¶ 17} Aggarwal testified that during the phone call she reminded Mother and

Father that they had not seen R.M. “since December and that it was important for them

to see their child. I told them we would be willing to work around their schedule. If they

needed assistance with bus [sic], the Agency would assist with that. We also talked

about even phone calls or Face Time, and they said they would do it.” According to

Aggarwal, “they said they needed time to get it set up, needed time to get it arranged.

And I did not hear anything after that in regards to visits.” Aggarwal stated that when she

spoke to Father in July, he told her that he could not come visit because of Mother’s

pregnancy and approaching due date. She stated that every month she contacted

Bhujel, “but I didn’t hear anything back from him either until I saw the parents at the last

court date.” (The record reflects that Mother and Father attended an Annual

Review/Permanency Planning hearing held on August 17, 2015).

{¶ 18} The following exchange occurred:

Q. Do you recall having a telephone discussion with me about the

possibility of transferring foster care to a family living in or near Rochester,

New York, where these financially limited parents reside?

A. Yes.

Q. And is it the policy of your employer that we don’t transfer foster
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care to another city and state that you’ll need to file a motion to pursue that

issue? [sic]

A. After speaking to my supervisor and manager I was instructed

that it would be [in] the best interest of the child to keep him in the foster

home that he’s been in for the past two years and receiving services. So,

at that time I was instructed by the Agency would not be in agreement to

transferring the child to New York. [sic]

***

Q. Is there a network or system that enables your employer to

communicate with its counterparts and other cities and states to identify * *

* the availability of foster families in those other locations to substitute for a

local foster family?

A. We have the ability to contact other county children services and

make contact with them, yes.

Q. In this case it was a policy decision that we’re not going to do

that, correct?

A. Correct.

Q. Would you agree these parents in this case have limited financial

resources to travel?

A. When I saw them last, he was working. He had an income.

They * * * were receiving over $600.00 in food stamps. Their housing was

being paid for it was approximately [$]575.[00]. So, he did have in my

opinion, he had the income to come to see the child. He had told me he
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was off on the weekends from work. So that time I had explained to him

that the Agency can assist him in bus fare to come and see the child.

Q. When the parents lived here, they did reasonably exercise their

visits, correct?

A. Yes.

Q. These parents are from what country?

A. They’re originally from Bhutan.

***

Q. Was it your understanding that the parents moved to New York

out of economic necessity?

A. Yes, that’s what they reported.

Q. Do you have any reason to dispute the truth of those

representations?

A. No.

Q. Were you able to confirm that they do have suitable housing and

employment in New York?

A. Yes.

Q. Foster care providers do exist in Rochester, New York, is that a

fair statement.

A. To the best of my knowledge, yes.

Q. And if the child were to be placed with a foster care provider in

Rochester, New York, it would be financially, practically easier for these

parents to visit with child, is that a fair statement?
 -12-

A. - - Umm - - it would be more convenient for the parents because

the child would be closer. However, the Agency has been willing to pay

for their bus fare to come to visit the child.

{¶ 19} In the course of direct examination by counsel for MCCS, Aggarwal stated

that she explained to Mother and Father at the August court hearing that they needed to

visit R.M., and that she was willing to organize in person visits as well as over the phone

visitation. She stated that it was the parent’s responsibility to contact her to arrange

visitation. Aggarwal stated that R.M.’s current placement is appropriate for him and that

all of his needs are being met there. She stated that he is bonded to the foster parents

“very much,” and that it is in R.M.’s best interest for him to remain there, since he has

been there since birth, and it is “really the only family that he’s known. They provide his

basic needs. And his special needs especially his speech delays and speech therapy

as well as his Help Me Grow Program.”

{¶ 20} The G.A.L. provided the following recommendation to the Magistrate:

* * * With respect to the Motion that is pending before the Court, as

we have heard recently from Ms. Aggarwal and as I’ve indicated in the

report that I’ve filed [sic]. [R.M.] has had the benefit of a continuity of care

provided by foster care providers here since * * * almost since birth, I think

he was placed with Mr. and Mrs. [C.] a month after his birth. But because

of that continuity of care, his needs have been met, he is doing well in their

care and he has come to rely upon care being provided to him by Mr. and

Mrs. [C]. It would be this guardian’s recommendation that the Motion be

denied on the bases of that, your Honor.
 -13-

{¶ 21} The Magistrate then overruled Father’s “Motion to Transfer Foster Care,”

noting that “[t]his decision is being made in the best interest of the child, as the child has

had his primary needs met in the last few years by this current foster placement and he

needs continuity of care.”

{¶ 22} After a recess, counsel for Father indicated that he has had no contact with

Father since the last hearing in August, although Father did call “one afternoon while I

was out of the office about a month ago.” Counsel for Father indicated that he returned

the call the next day and left a voice message “and there’s just been nothing since.”

{¶ 23} Aggarwal then resumed the stand and in response to questions by counsel

for MCCS, she identified R.M.’s birth certificate and “the paternity establishment” for

Father. She stated that R.M. went from the hospital into foster care due to concerns

about domestic violence between the parents, concerns about Mother’s drinking, and

concerns about “the family having the proper items they needed for the baby.”

Regarding Father’s case plan, Aggarwal testified that she explained the objectives to him

in the presence of an interpreter. Aggarwal stated that Father’s case plan objectives

were to “obtain and maintain housing, verifiable income, complete parenting class, * * *

follow all recommendations, complete a Crisis Care Assessment and follow

recommendations. And provide financial and emotional support to [R.M.] and visitation

for [R.M.].” She stated that she met with Father monthly through December 2014.

{¶ 24} Aggarwal stated that she provided housing referrals to Father. She stated

that she received verification that Father was employed at the end of June 2015, and that

when she spoke to him in August he confirmed that he was employed. Aggarwal stated

that she saw paystubs through August. When Father was in Montgomery County,
 -14-

Aggarwal stated that he was employed at an Indian restaurant and that she “had made a

referral for a family support worker to assist him and locate employment through the Job

Center to apply for benefits, for cash assistance, food stamps, medical assistance.” She

stated that Father followed through with the referrals, that he competed parenting classes,

namely Celebrating Families, “around February, March of 2014.” Aggarwal stated that

she referred Father to Crisis Care Assessment in September, October of 2013, based on

a concern that Father was drinking too much, and that he completed the program. She

stated that the “hospital also had a concern that dad may have been coming to the

hospital after he had been drinking.”

{¶ 25} When asked about Father’s visitation case plan objective, Aggarwal

testified that at the court hearing in August 2015, she “attempted to set up a visitation for

the family whether it was before court or after court and court was I believe at 1:30 that

day. * * * And they said they could come to the Agency at 12:00. They would visit him

from 12 to 1:00 before court. They arrived at the Agency at 12:50 so they saw the child

for about 10 to 15 minutes before court that day.” She stated that “[s]ince then, they

haven’t seen him.” Aggarwal stated that prior to that, there had been an eight-month

lapse in visitation.

{¶ 26} Aggarwal stated that when she first received the case, Mother and Father

were visiting with R.M. twice a week, and “the visits were going great. We never had

concerns, they were very appropriate. They were very affectionate towards him. They

would bring toys and food for him.” She stated that as the parents’ work schedules

changed, “our visits had gone from two days to one day because that worked better for

them with their employment.” She stated that the parents visited “from 12 to 3 [or] 12 to 4
 -15-

because that worked better for their schedule.” Aggarwal stated that the parents did not

take advantage of her offer for bus tickets when they were in New York. When asked if

the parents explained why they had not visited in such a long time, Aggarwal replied that

“they said they had just moved to New York and they were getting established. They

were working. They were just busy getting benefits and * * * establishing themselves in

New York. And plus the mother * * * was pregnant so, she didn’t want to travel too much.”

Aggarwal testified that she “explained to the parents to let me know when they would

want to do the phone conversations that way,” and that either through her or MCCS “we

would have an interpreter to guide that, facilitate that via the phone. But I was never told

a time or date that they would like to do that.” Aggarwal stated that Mother and Father

told her that “they had friends * * * there that had cell phones and that they would be able

to do the Facebook, Face Time.” She stated that they never had contact with the child

through either medium.

{¶ 27} Aggarwal stated that R.M. has been in the same foster home for over two

years, and that he is “doing great. He is very bonded with both foster parents. They

also have two other foster children in the home. So, he’s very bonded to the boy and girl

in the home. He’s very playful. He’s just doing great.” Aggarwal stated that R.M. has

special needs, and that he is in speech therapy once a week and is involved “with Help

Me Grow Pace biweekly.” When asked to describe R.M.’s relationship with his foster

parents, Aggarwal stated that when R.M. “falls or he needs something, he goes to them.

He’s very playful with them. He hugs them. They’re very loving towards him. They’ve

never even used respite since they’ve had him. They take him on trips where they go,

on vacations, on church retreats, he’s always with them.” Aggarwal stated that R.M.’s
 -16-

foster parents love him and would like to adopt him. She stated that Mother and Father

did not provide the names of any family members willing to adopt R.M.

{¶ 28} Finally, the following exchange occurred:

Q. In summation why is reunification with the mother and the father

no longer possible in his case?

A. Because they have not had contact, really had any contact with

[R.M.] for almost a year now. When he did see them for about ten, fifteen

minutes in August, he was so upset. He just kept on crying and screaming

and trying to run out of the room. And since I’ve been working with the

child, I’ve never seen those behaviors. He was running to me, he was

running to the interpreter. So, he just wasn’t comfortable with the family.

Even when the family came to see him for the ten minutes they didn’t, they

weren’t very affectionate towards him * * * at all. And so, it was kind of an

awkward meeting when they saw him. So, he doesn’t really have a bond

with them. He doesn’t know them at all. He’s been in his current home

for two years. They’re able to provide his basic needs. They take care of

his special needs. And he’s happy and well taken care of here.

Q. So, it’s fair to say with the extended gaps in visitation * * * that

this child does not have a family relation with neither the mother nor the

father?

A. Correct.

Q. And why does the Agency believe it’s in the best interest to grant

permanent custody at this time?
 -17-

A. So, the child can have stability. He can have permanency. He

can continue getting his services. Continue to remain in the same home.

And just give him that ability knowing that is where he’s going to remain.

Q. If permanent custody was granted today what would be the plan

for this child?

A. The plan would be to transfer this case to adoptions and start the

adoption process with the current foster family.

{¶ 29} In response to questions from counsel for Father, Aggarwal stated that

Father completed his housing objective, his employment objective, his parenting class

objective, his assessment objective at Crisis Care, and that while he was engaged in

visitation before he and Mother relocated in December of 2014, he did not complete the

visitation objective. Aggarwal acknowledged that Mother and Father did not have a

vehicle, and she stated that she did not send them money for transportation or purchase

a bus ticket for them “because they never made contact with me to tell me when they

would be coming or when they would like to come.” She stated that Monroe County

Children Services in New York conducted a home study and approved the parents’

residence. She stated that during the time when Father visited R.M. in Dayton, the visits

went well and he was bonded to the child. She stated that she advised Father that

MCCS would pay for his bus ticket, and that he told her that he did not work on the

weekends. She stated, “when he told me that he was off on the weekends, I said, well,

why don’t you start coming on the weekends * * * for the visits, we’ll set up the

transportation and he said * * * that he would get back to me over the visitation.”

Aggarwal stated that “the bus comes here from Rochester and there would be enough
 -18-

time for him to visit his son and he could return back to Rochester for work on Monday.”

{¶ 30} In response to questions from counsel for MCCS, Aggarwal stated that

Mother and Father did not provide for R.M.’s emotional needs for the past year. She

stated that the parents had her contact information as well as that of their interpreter, and

that they knew how to reach her and the interpreter. At the conclusion of the hearing, the

G.A.L. recommended that MCCS be granted permanent custody of R.M.

{¶ 31} On January 26, 2016, a “Magistrate’s Decision and Judge’s Order Granting

the Motion for Permanent Custody” was issued. It provides that MCCS provided case

management services, substitute foster care, and information referral services, and “the

parents have failed to respond to the above services because they are unable to

demonstrate parenting skills and they left the State of Ohio in December 2014.” The

Magistrate noted that no relatives are willing and able to care for R.M., and that he has

been in foster care 12 or more months out of the last 22 months. The Magistrate noted

that Father has “visited the child one time since December 2014.” The Magistrate found

that Father’s “case plan objectives and progress on those objectives are as follows: (1)

Legal father was to obtain appropriate housing and income prior to leaving the State of

Ohio in December 2014. This objective is not complete. (2) Legal father was to complete

parenting classes. The legal father completed parenting classes through Celebrating

Families. This objective is complete. (3) Legal father was to complete a Drug and

Alcohol Assessment and was referred to CADAS and he completed substance abuse

treatment. This objective is complete.” The Magistrate noted that the “mother and

father have abandoned the child,” and that there “is a reasonable expectation of

adoption.” According to the Magistrate, “mother and father have not demonstrated the
 -19-

ability to parent the child or to provide for the basic needs of the child.”

{¶ 32} The Magistrate further found that the “mother and father have failed to utilize

psychiatric, psychological and other social and rehabilitative services and material

resources that were made available to them for the purpose of changing parental conduct

to allow them to resume or maintain parental duties.” The Magistrate found that “[t]he

mother and father were referred to English Second Language Classes which would assist

them in obtaining stable income and housing; however, the mother and father failed to

follow through with that referral and instead left the State of Ohio.” The Magistrate noted

that the parents’ “departure from the State of Ohio prevented them from providing an

adequate, permanent home for the child in Montgomery County,” and that they “have

demonstrated a lack of commitment toward the child by failing to support, visit, or

communicate with the child when able to do so or by other actions showing an

unwillingness to parent the child.”

{¶ 33} The Magistrate found that R.M. is “thriving in his current foster placement,”

and that the foster parents want to adopt him. The Magistrate further found that “the

child is not sufficiently mature to assist counsel in this case.” The Magistrate determined

that the “custodial history in this case dictates permanent custody being granted as the

child has been in foster care since he was born.”

{¶ 34} Father filed objections on February 5, 2016, along with a request to

supplement them upon receipt of the transcript. On June 24, 2016 a “Memorandum in

Support of Objections” was filed. It provides that the “parents had been regularly visiting

with the child, but visitation stopped when the parents moved out of state at the end of

December, 2014. Other than the cessation of visits, both parents had substantially
 -20-

complied with their respective case plans.” The memorandum provides that “the parents

were brought from the country of Bhutan to the United States as refugees on behalf of an

agency.” It provides that they “had difficulty adapting to a community where no one

spoke their language and there was no opportunity to be with other members of their

culture” in Dayton. Counsel for Father asserted that the parents moved to New York for

“better job opportunities and the ability to interact with other members of their culture,”

and that for financial reasons, “it became challenging for the parents to maintain visits

here” with R.M. The memorandum provides that “[b]y economic necessity, the parents

were residing in New York where they had suitable housing and employment.” It further

provides that “[b]ased on agency policy, Children’s Services refused to consider

transferring foster care to Rochester, New York in an effort to reunify the child with the

parents.” Counsel for Father asserted that “[t]his is a most unfortunate policy when the

Agency concedes that it has the ability to communicate with other county children’s

services agencies in other states and make arrangements.”

{¶ 35} Counsel for Father asserted as follows:

So, in this case, Montgomery County Children’s Services confirmed

that the parents of the child had suitable housing and employment in New

York, acknowledged that there are counterpart agencies available for them

to communicate with, that foster care providers do exist in Rochester, New

York, and that transferring the child to a foster care provider in New York

would be financially and practically easier for these parents to visit and

reunify with their child. In this case, The Agency refused to consider this

option, simply stating that it could provide bus fare and if the parents don’t
 -21-

come visit here, then we’re not willing to do anything else. That is troubling.

{¶ 36} Counsel for Father noted that the Magistrate orally denied Father’s motion

to transfer foster care at the November 9, 2015 hearing. Counsel for Father asserted as

follows:

The caseworker testified that father had a housing objective which

was completed. He had an employment objective which was completed.

He had a parenting class objective which was completed. He had an

assessment objective which was completed. Prior to the family relocating

in December, 2014, father was engaged in visits. And he was engaged

with the PACE or Help me Grow program. Thus, until the time of the move,

the father had met or was in compliance with all of his case plan objectives.

***

After the family moved to Rochester, New York, the Agency offered

bus fare, but never sent the parents money and never actually purchased

any tickets for transportation.

Montgomery County Children’s Services contacted Monroe County

Children’s Services in the State of New York. The residence of the parents

was approved. Employment was confirmed.

These parents, who suffered persecution, were brought to the United

States from the Kingdom of Bhutan, a country located in the Himalayan

Mountains in Asia which has long maintained a policy of strict isolationism,

both culturally and economically. Only in the last few decades have

foreigners even been allowed to visit this country. Obviously, our culture
 -22-

and our government procedures and policies were alien to these parents.

The unwillingness of [MCCS] to facilitate the child being transferred to foster

care near where these parents had some opportunity to flourish in our

country is unreasonably sad and wrong.

***

When this case began, the child was placed in foster care,

presumably pursuant to Chapter 5103 of the Ohio Revised Code which

begins with numerous sections relating to foster care givers. Interestingly,

that same chapter includes the Interstate Compact on the Placement of

Children, § 5103.02 et seq. of the Ohio Revised Code. It is respectfully

submitted that a blanket “policy” on not considering a transfer of a child in

foster care to another state where the parents reside and work violates the

spirit if not the verbiage of the Interstate Compact on the Placement of

Children.

{¶ 37} Counsel for Father directed the juvenile court’s attention to In re Secrest,

2d Dist. Montgomery No. 19377, 2002-Ohio-7096 and asserted that MCCS “has

apparently not changed its policies and is still failing to make reasonable efforts to reunite

families when parents relocate to other states. The facts in this case are more compelling

than in Seacrest and should require a remand to the Agency to make full use of the

Interstate Compact before seeking permanent custody.”

{¶ 38} “MCCS’ Reply to Supplemental Objections” was filed on July 8, 2016.

MCCS asserted that R.M. has been in Agency custody for more than 12 of 22 months,

and “the issue is no longer whether or not reunification with the parent will take place
 -23-

within a reasonable time.” MCCS asserted that R.M. is abandoned, and that permanent

custody in his best interest.

{¶ 39} In overruling Father’s objections, the juvenile court noted that “MCCS

believes that reunification is not possible because the parents have had no contact with

the child for quite some time. When the child did see the parents in August he was very

upset and kept trying to run out of the room.” It was significant to the court that R.M.

“does not know the parents and does not have a bond with them.” The court noted that

“MCCS recognized that the parents’ inability to speak, read, or write English created a

language barrier between the parents and MCCS,” and that MCCS referred them to

English language classes, but that “neither Mother nor Father ever took advantage of

those classes.” Regarding Father’s motion to transfer foster care, the court noted that

“MCCS acknowledges that there are foster homes in New York, and if the child lived

closer to the parents it would be easier for the parents to visit with the child, however,

MCCS was willing to provide the parents with transportation to visit with the child and

parents effectively refused.”

{¶ 40} The court determined as follows:

Taking into consideration parents’ lack of economic resources and

communication skills, as well as their physical location, MCCS offered both

parents numerous options to connect with the child. Options offered to

Mother and Father included transportation for personal visits with the child

at MCCS’ expense to video phone calls that would have required minimal

effort from the parents. The parents chose to move to Georgia, then New

Jersey, and then New York, while leaving their child behind and failing to
 -24-

make any effort to maintain contact with their child. Because of the

extreme length of separation brought about by the parents’ actions, the child

sadly no longer even recognizes his parents.

Given the circumstances, this Court finds that it is not in the child’s

best interest to remove him from the only family and home he has ever

known to live with a new foster family in New York or his long absent

parents.

{¶ 41} The court found that R.M. “has been in Agency custody for over twelve

months of a consecutive twenty-two month period,” and that it is in his best interest for

MCCS to receive permanent custody.

{¶ 42} Father asserts one assignment of error herein as follows:

WHETHER THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S OBJECTION TO THE REPORT AND

RECOMMENDATION OF THE MAGISTRATE GRANTING PERMANENT

CUSTODY TO MCCS WHEN THE AGENCY FAILED TO MAKE A

REASONABLE ATTEMPT TO REUNIFY THE FAMILY BY REFUSING TO

TRANSFER THE CASE PURSUANT TO THE INTERSTATE COMPACT.

{¶ 43} Father directs our attention to Secrest and asserts that “MCCS ignored the

fact that Appellant had difficulty traveling to Ohio to be with his child, that attainment of

the goals of the case plan may be enhanced by a transfer, and that a transfer may be a

viable option in this case. Accordingly, as in Secrest, the record in this matter does not

support a finding that MCCS made the required reasonable attempt to reunify the family.”

{¶ 44} As this Court recently noted:
 -25-

“R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency.”

(Citation omitted.) In re S.J., 2d Dist. Montgomery No. 25550, 2013–Ohio–

2935, ¶ 14. Specifically, the court must find by clear and convincing

evidence that: “(1) granting permanent custody of the child to the agency is

in the best interest of the child; and (2) either the child (a) cannot be placed

with either parent within a reasonable period of time or should not be placed

with either parent if any one of the factors in R.C. 2151.414(E) are present;

(b) is abandoned; (c) is orphaned and no relatives are able to take

permanent custody of the child; or (d) has been in the temporary custody of

one or more public or private children services agencies for twelve or more

months of a consecutive twenty-two month period.” Id., citing In re K.M., 8th

Dist. Cuyahoga No. 98545, 2012–Ohio–6010, ¶ 8, and R.C.

2151.414(B)(1).

In re J.P., 2d Dist. Montgomery No. 27093, 2016-Ohio-5351, ¶ 36.

{¶ 45} Father’s arguments are addressed to MCCS’ efforts toward reunification

and the agency’s failure to transfer foster care to New York. As this Court noted in In re

A.D., 2d Dist. Miami No. 2007 CA 23, 2008-Ohio-2070, ¶ 7:

“R.C. 2151.412 requires the agency to prepare and maintain a case

plan for children in temporary custody with the goal ‘[t]o eliminate with all

due speed the need for the out-of-home placement so that the child can

safely return home.’ [”] (Emphasis added.) In re C.F., 113 Ohio St.3d 79,

2007-Ohio-1104, 862 N.E.2d 816, at ¶ 29, quoting R.C. 2151.412.
 -26-

However, R.C. 2151.419, which requires the trial court to determine whether

the agency made “reasonable efforts to prevent the removal of the child

from the child’s home, to eliminate the continued removal of the child from

the child’s home, or to make it possible for the child to return safely home,”

does not apply to a hearing on a motion for permanent custody filed under

R.C. 2151.413. In re C.F. at ¶ 43. Moreover, “the procedures in R.C.

2151.414 do not mandate that the court make a determination whether

reasonable efforts have been made in every R.C. 2151.413 motion for

permanent custody.” Id. at ¶ 42, 862 N.E.2d 816. Nevertheless, the

agency must establish that it made such efforts prior to the termination of

parental rights.

{¶ 46} In Secrest, upon which Father relies, this Court determined that MCCS

failed to make reasonable efforts to reunify mother and her daughter, reversed the

permanent custody award to MCCS, and remanded the matter for further proceedings.

MCCS became involved with mother in June of 1999, and in February of 2000, the agency

sought temporary custody of her three children.2 Id., ¶ 3, 8. This Court noted the following

facts:

In September, 2000 [mother] moved to Pennsylvania and married.

She contacted a social worker in her county regarding transferring the

children to Pennsylvania. MCCS was informed by a Pennsylvania social

worker that [mother’s] home was “nice” and “clean.” The record further

show[ed] that [mother’s] husband is employed, and that [mother] is

2
The appeal in Secrest pertained solely to one of mother’s daughters.
 -27-

financially able to stay at home, where she cares for a child born of her new

marriage, and for her grandchildren.

MCCS refused to transfer the case, instead requesting [mother] to

return to Ohio and complete her case plan. MCCS caseworker Tracie

Hughes indicated that the case was not transferred because [mother] did

not complete her case plan. Specifically, Hughes complained that

[mother] failed to attend most of the children’s various appointments and

visitations and failed to obtain a parenting and psychological assessment.

However, Hughes admits that MCCS did not make a referral for the

assessment until February, 2001. Additionally, Hughes was unable to

produce documentation indicating that [mother] was timely informed of the

children’s appointments. The record also indicates that [mother] was

unable to travel to Ohio for some of the appointments and visits due to her

pregnancy. Hughes also noted that MCCS recognized that the children in

their temporary custody were bonded to [mother].

Id., ¶ 6-7.

{¶ 47} On November 29, 2000, MCCS sought permanent custody, and after

hearings were held in April and October, the magistrate awarded permanent custody of

two of the children to MCCS, and the third was placed in a permanent planned living

arrangement. Id., ¶ 8. [Mother’s] objections to the magistrate’s decision were

overruled. Id.

{¶ 48} With regard to the reunification requirement, this Court noted as follows:

* * * “Reasonable efforts are described as being a good faith effort
 -28-

which is ‘an honest, purposeful effort, free of malice and the desire to

defraud or to seek an unconscionable advantage.’ [”] In re Cranford (July

24, 1998), Montgomery App. Nos. 17085 and 17105, citing In re Weaver

(1992), 79 Ohio App.3d 59, 606 N.E.2d 1000. “The issue is not whether

CSB could have done more, but whether it did enough to satisfy the

‘reasonableness’ standard under the statute.” [Citation omitted].

Id., ¶ 13.

{¶ 49} This Court, in reversing the matter for further proceedings, provided the

following rationale:

* * * In this case, it is undisputed that upon moving to Pennsylvania,

[mother] did not attend the majority of the children's appointments, and did

not have any regular visitation or telephone contact with them. However, it

is also clear that [mother] made an effort to have the children, and the case,

transferred to Pennsylvania. She even went so far as to put MCCS in

contact with a social worker from her county of residence regarding the

transfer. Additionally, while it is not clear from the record how far away

[mother] lived in Pennsylvania, her counsel asserted at oral argument that

she live[d] far enough away from Dayton to make it difficult to drive here on

a regular basis, and the agency's counsel did not contradict this assertion.

From our review of the record, we conclude that, despite [mother’s]

request, MCCS made a decision not to transfer the case, because [mother]

had not completed the case plan set by MCCS. Specifically, Hughes stated

that the case was not transferred “because [mother] had not attended
 -29-

medical, school and counseling appointments other than two or three * * *

[a]nd, we had not seen a consistency that would show us that she would

continue to do these things if the children were relocated.”

The record does not demonstrate that Pennsylvania would not

accept a transfer of the case. Furthermore, it appears that a transfer would

be possible under the Interstate Compact on the Placement of Children.

See, R.C. 2151.39 and R.C. 5103.20. We conclude from our review of the

record that MCCS did not seriously consider the possibility of transferring

the case, and did not pursue that option. Instead, it appears that MCCS

determined that because [mother] had failed to travel to Ohio to comply with

the case plan, it would not attempt to seek any alternative avenues aimed

at reunification. In adopting that approach, MCCS ignored the fact that

[mother] had difficulty traveling to Ohio to be with her children, that

attainment of the goals of the case plan may be enhanced by a transfer,

and that a transfer may be a viable option in this case.

Id., ¶ 17-19.

{¶ 50} We conclude that Secrest is distinguishable from the matter herein. We

initially note that the social worker in Secrest indicated that mother’s children were bonded

to her while in temporary custody, whereas herein, Aggarwal testified, and the juvenile

court found, that R.M. does not know his parents at all and does not have a bond with

them. While Father asserts that MCCS refused to transfer foster care simply based on

agency “policy,” Aggarwal testified that her supervisor instructed her “that it would be in

the best interest of the child to keep him in the foster home that he’s been in for the past
 -30-

two years and receiving services.”

{¶ 51} As noted above, R.M. went into foster care in late September 2013, and

unlike the Secrest mother, who apparently sought the transfer of foster care at the time

of her move to Pennsylvania, Father’s motion to transfer was filed on September 22,

2015, after the parents had been out of state for nine months, and after the agency sought

permanent custody after two extensions of temporary custody.

{¶ 52} Aggarwal testified that in January 2015, the parents advised her that they

had moved out of state. According to Aggarwal, she asked the parents at that time to

make monthly contact, but the agency subsequently lost contact with the parents when

their phone was disconnected. At that time, the parents’ whereabouts were unknown.

Aggarwal testified that she then was provided with contact information for the parents

from an “aunt,” or family friend, who reported the parents were in New Jersey. When

Aggarwal attempted to reach the parents with an interpreter, however, she was unable to

do so. In April of 2015, Aggarwal testified that she received an email from Bhujel, and that

she requested he obtain a release of information from the parents. She stated that she

did not hear from Bhujel again in April or May. MCCS did not have contact with the

parents again until July 2015, at which time Aggarwal again advised Father of the

imperative need to visit with R.M. She offered bus fare, and suggested phone calls and

Face Time as appropriate means to make contact. According to Aggarwal, while the

parents indicated that they had access to cell phones and would follow up, they failed to

do so. Aggarwal stated that she contacted Bhujel each month without hearing back from

him. Aggarwal next saw the parents at the August 17, 2015 hearing, at which time she

again advised them of the importance of visiting R.M., and again offered to organize in-
 -31-

person visits as well as telephone visitation. She testified that she believed at that time

Father “had the income to come to see the child,” as well as time on the weekends to do

so. Aggarwal testified that the parents arrived late to the August 2015 hearing and were

only able to visit with R.M. for 10 or 15 minutes. She testified that the parents were not

affectionate towards R.M., and that at that time he was crying, screaming, and trying to

run out of the room, behaviors she had not previously observed in R.M. Aggarwal

testified that after the eight-month lapse in visitation, R.M. did not know his parents or

have any bond with them.

{¶ 53} According to Aggarwal, the parents had her contact information as well as

that of their interpreter and knew how to reach her and the interpreter. She stated that it

was the parents’ responsibility to arrange visitation. At the time of the November 9,

2015 hearing on the “Motion to Transfer Foster Care,” counsel for Father indicated that

he had not had contact with Father since the August 2015 hearing.

{¶ 54} Finally, Aggarwal testified that R.M. was “doing great” in foster care, and

that he has a strong bond with his foster parents and the other children in the home. She

stated that it is the only home he has ever known. Aggarwal stated that his basic and

special needs are being met there, and that he is included in vacations and church

retreats. She stated that his foster parents are loving and supportive of him, and that they

want to adopt him.

{¶ 55} Given the comprehensive efforts demonstrated by MCCS to provide

services, referrals and visitation opportunities to Father, given Father’s inability to

maintain a bond with R.M. and support him in the nine months leading up to Father’s

motion to transfer, despite being repeatedly advised of the importance to do so, and
 -32-

given Aggarwal’s testimony that R.M. was thriving in foster care, we conclude that the

juvenile court did not err in adopting the magistrate’s decision overruling Father’s “Motion

to Transfer Foster Care.” Accordingly, Father’s assigned error is overruled. For the

foregoing reasons, the judgment of the juvenile court is affirmed.

. . . . . . . . . . . . ..

HALL, P.J. and TUCKER, J., concur.

Copies mailed to:

Meagan D. Woodall
Joyce M. Deitering
Ann Ratcliff, Guardian Ad Litem
Hon. Anthony Capizzi