[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. : 

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C.A. CASE NO. 27318 

T.C. NO. 2013-6460 

(Civil Appeal from Common 

 Pleas Court, Juvenile Division) 

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O P I N I O N 

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 

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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 
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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 
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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 
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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 
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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 
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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 
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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. 
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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 
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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? 
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 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. 
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{¶ 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, 
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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 
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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 
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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? 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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: 
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 “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. 
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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. 
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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 
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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 
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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 
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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-
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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 
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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