In re R.K. (Slip Opinion) , 2018 Ohio 23 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re R.K., Slip Opinion No. 2018-Ohio-23.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-23
IN RE R.K.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re R.K., Slip Opinion No. 2018-Ohio-23.]
Termination of parental rights—R.C. 2151.352—When the state seeks to terminate
a parent’s parental rights, the parent has the right to counsel—A parent
cannot be deprived of the right to counsel at a permanent-custody hearing
unless the juvenile court finds that the parent has knowingly waived the
right to counsel—A parent’s waiver of counsel cannot be inferred from the
unexplained failure of the parent to appear at a permanent-custody hearing.
(No. 2017-0433—Submitted September 13, 2017—Decided January 4, 2018.)
APPEAL from the Court of Appeals for Franklin County, No. 16AP-575.
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SYLLABUS OF THE COURT
When the state seeks to terminate a parent’s parental rights, the parent has the right
to counsel. The parent cannot be deprived of that right unless the court finds
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that the parent has knowingly waived the right to counsel. Waiver of
counsel cannot be inferred from the unexplained failure of the parent to
appear at a hearing.
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O’NEILL, J.
{¶ 1} This court has previously likened the termination of one’s parental
rights to the family-law equivalent of the death penalty. See, e.g., In re D.A., 113
Ohio St. 3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 10; In re Hayes, 79 Ohio St. 3d
46, 48, 679 N.E.2d 680 (1997). Hence, it is critical that the rights of a parent who
faces the permanent termination of parental rights are appropriately protected. One
of those protective measures is the right to be represented by an attorney “at all
stages of the proceedings.” R.C. 2151.352. That did not happen in this case, as the
juvenile court allowed the attorney for the mother, appellant, A.S., to withdraw
from the case at the start of a critical stage of the proceedings—the permanent-
custody hearing—because A.S. failed to appear. The juvenile court proceeded with
the hearing without A.S. present and without an attorney representing her and
protecting her interests. These actions of the court constituted reversible error.
Facts and Procedural History
{¶ 2} On July 11, 2016, the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch, was scheduled to conduct a
permanent-custody hearing at 10:00 a.m. regarding A.S.’s child, R.K., because
appellee, Franklin County Children Services (“FCCS”), had filed a motion for
permanent custody. The hearing in juvenile court commenced at 10:10 a.m., but
A.S. was not present. A discussion occurred on the record. A.S.’s attorney stated
that he had informed her about the hearing but indicated that he did not know why
she was absent. The attorney then requested permission to withdraw as counsel.
The court granted that motion, and the termination-of-parental-rights hearing
continued without A.S.’s presence and without her being represented by counsel.
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The court did not question the attorney about A.S.’s whereabouts but asked him to
stay and remain in the courtroom in the event that A.S. appeared so that the attorney
would be “available to be reappointed.” The attorney complied with that request,
but he did not participate in the hearing other than to reserve the right to cross-
examine witnesses in case A.S. appeared. A.S. did not appear, and the court granted
permanent custody to FCCS. A.S. timely appealed to the Tenth District Court of
Appeals.
{¶ 3} In a split decision, the court of appeals upheld the permanent-custody
order, holding that the juvenile court did not abuse its discretion in finding that A.S.
implicitly waived her right to counsel and also did not abuse its discretion in
permitting A.S.’s attorney to withdraw as counsel. The dissenting judge would
have reversed the juvenile court’s judgment and remanded the cause for a new
hearing. The dissenting judge acknowledged that the record likely supported a
finding that A.S. had waived her right to be present at the hearing but stated that
“[t]he right of a parent to be represented is distinct from the right of a parent to
appear and be present for a permanent custody hearing. The failure to exercise the
right to be present does not necessarily mean” that a parent has intentionally
relinquished or abandoned the parent’s right to counsel “or that her interests cannot
be effectively represented by counsel’s participation in her absence.” 10th Dist.
Franklin No. 16AP-575, ¶ 23 (Feb. 21, 2017) (Brunner, J., dissenting), citing State
v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 20. A.S.
appealed to this court, and we accepted jurisdiction. 149 Ohio St. 3d 1405, 2017-
Ohio-2822, 74 N.E.3d 464.
Analysis
{¶ 4} A.S. has raised a single proposition of law for this court’s
consideration. She asserts that she was denied her right to counsel when the
juvenile court permitted her attorney to withdraw prior to the final hearing. She
contends that her absence from the courtroom did not equate to a waiver of counsel
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on her part. She is right. A.S. additionally claims that she was in a hospital being
treated for a medical emergency at the time of the final hearing and that she
attempted to contact the court but was unable to do so.
{¶ 5} As previously mentioned, this court considers the parent-child bond
to be extremely important and when the state attempts to permanently terminate the
relationship between a parent and child, the parent “ ‘must be afforded every
procedural and substantive protection the law allows.’ ” In re Hayes, 79 Ohio St. 3d
at 48, 679 N.E.2d 680, quoting In re Smith, 77 Ohio App. 3d 1, 16, 601 N.E.2d 45
(6th Dist.1991). The General Assembly has specified that a parent has the right to
counsel at a permanent-custody hearing, including the right to appointed counsel if
the parent is indigent. R.C. 2151.352; see also Juv.R. 4(A). Of course, the right to
counsel can be waived. Waiver is an “ ‘ “ ‘intentional relinquishment or
abandonment of a known right.’ ” ’ ” Rogers at ¶ 20, quoting State v. Quarterman,
140 Ohio St. 3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting Unites States
v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993), quoting
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). That
did not happen in this case.
{¶ 6} The key question in this case is whether A.S. waived her right to
counsel when she did not appear at the final hearing. In In re Sadie R., 6th Dist.
Lucas No. L-04-1057, 2005-Ohio-325, the court held that in order to protect the
rights of a parent in this situation, a juvenile court must make two inquiries before
allowing the attorney for the parent to withdraw. “First, the court must ‘ascertain
that counsel’s attempts to communicate with and obtain the cooperation of the
client were reasonable,’ ” and “[s]econd, the court must verify that ‘the failure of
this communication resulted in the inability of counsel to ascertain the client’s
wishes.’ ” Id. at ¶ 36, quoting In re Savannah M., 6th Dist. Lucas No. L-03-1112,
2003-Ohio-5855, ¶ 45 (Singer, J., concurring).
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{¶ 7} In this case, the record shows that A.S. was sent notice of the final
hearing, that her attorney had informed her in a letter that she needed to appear, and
that she had “responded” to her attorney’s letter regarding the hearing. The attorney
also stated at the start of the hearing that he had informed her that if she did not
appear, the court would “probably go forward without her and that [he] would be
asking to withdraw.” However, the court made no inquiries into A.S.’s
whereabouts, why she was not present, the attorney’s past attorney-client
relationship with A.S., or the substance of her response to the attorney’s letter.
Instead, the court simply granted the attorney’s oral motion to immediately
withdraw, apparently without giving any consideration to whether A.S. had waived
her right to counsel. The juvenile court’s apparent stance was that a parent’s failure
to appear for a permanent-custody hearing automatically constitutes a waiver of
that parent’s right to counsel. We cannot condone that approach.
{¶ 8} Even though A.S. failed to appear in this instance, her counsel was
present and could have represented her interests during the hearing. The court did
not know why A.S. failed to appear. The failure could have been purposeful, but,
as demonstrated by the circumstances here, it also could have been due to an
emergency of some sort that prevented her appearance. We do not know the details,
in part because the court did not inquire into them. In any case, since counsel was
present and presumably was prepared to go forward, the better option would have
been to deny the attorney’s motion to withdraw and have him represent the interests
of A.S. to the best of his ability. The attorney had an obligation to protect the rights
of his client and to attempt to keep the state from permanently terminating her
parental rights. Likewise, the court had an obligation to make sure that her attorney
performed his obligation. We cannot say based upon this record that that happened.
It is possible that the attorney was not able to effectively represent A.S.’s interests
in her absence, but to assume that to be true when the juvenile court conducted no
inquiry would be inherently speculative. The denial of the right to counsel in this
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situation can occur only when due process has been complied with. In a case in
which we are asked to ratify the civil equivalent of the death penalty, we simply
cannot accept absence as acquiescence. In a capital-murder case, a court certainly
would not be permitted to proceed to judgment so casually without the presence of
the defendant and without the defendant’s being represented by counsel.
{¶ 9} For the foregoing reasons, we adopt A.S.’s proposition of law. We
hold that when the state seeks to terminate a parent’s parental rights, the parent has
the right to counsel. The parent cannot be deprived of that right unless the court
finds that the parent has knowingly waived the right to counsel. Waiver of counsel
cannot be inferred from the unexplained failure of the parent to appear at a hearing.
Conclusion
{¶ 10} Based on the foregoing analysis, we conclude that A.S. was
improperly denied her right to counsel. We reverse the judgment of the Tenth
District Court of Appeals and remand the case to the juvenile court for a new
permanent-custody hearing.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., concurs.
FRENCH, J., concurs in syllabus and judgment only, with an opinion joined
by KENNEDY, J.
FISCHER, J., concurs in judgment only.
O’DONNELL, J., dissents, with an opinion joined by DEWINE, J.
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FRENCH, J., concurring in syllabus and judgment only.
{¶ 11} I agree with the lead opinion that the trial court erred when it allowed
the attorney appointed to represent appellant, A.S., to withdraw from representing
her and then proceeded with a permanent-custody hearing when A.S. did not appear
for the hearing. I further agree with the lead opinion that the “key question” is
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whether A.S. waived her right to counsel, id. at ¶ 6, but I write separately because,
in my view, counsel’s attempts to communicate with A.S. and counsel’s ability to
ascertain A.S.’s wishes are not the only relevant factors in determining whether
A.S. waived her right to counsel.
{¶ 12} Like the lead opinion, I begin with the fundamental principle that the
right to raise a child is a basic and essential civil right. In re Hayes, 79 Ohio St. 3d
46, 48, 679 N.E.2d 680 (1997), citing In re Murray, 52 Ohio St. 3d 155, 157, 556
N.E.2d 1169 (1990). Proceedings to terminate parental rights must afford parents
“ ‘every procedural and substantive protection the law allows.’ ” Hayes at 48,
quoting In re Smith, 77 Ohio App. 3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). In Ohio,
those protections include the right to assistance of counsel and the right to appointed
counsel if a parent is indigent. See R.C. 2151.352; Juv.R. 4(A).
{¶ 13} A parent’s right to counsel in permanent-custody proceedings is not
absolute, however. In re B.M., 10th Dist. Franklin Nos. 09AP-60, 09AP-61, 09AP-
62, 09AP-63, and 09AP-64, 2009-Ohio-4846, ¶ 26. A parent may waive the right
to counsel, but the parent must do so voluntarily, knowingly, and intelligently. In
re Bowens, 11th Dist. Ashtabula Nos. 92-A-1711 and 92-A-1717, 1995 WL
803811, *2 (Nov. 9, 1995). In certain circumstances, Ohio courts have inferred
that parents facing termination of their parental rights have waived the right to
counsel when the circumstances indicate a waiver. See In re W.W.E., 2016-Ohio-
4552, 67 N.E.3d 159, ¶ 39 (10th Dist.) (collecting cases).
{¶ 14} Here, by proceeding with the permanent-custody hearing in A.S.’s
absence after allowing her attorney to withdraw, the trial court implicitly found that
A.S. waived her right to counsel. Citing In re Sadie R., 6th Dist. Lucas No. L-
04-1057, 2005-Ohio-325, ¶ 36, the lead opinion states that a juvenile court must
make two inquiries before allowing a parent’s attorney to withdraw: first, whether
counsel’s attempts to communicate with, and get the cooperation of, the client were
reasonable; and second, whether the client’s failure to communicate left counsel
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unable to ascertain the client’s wishes. Id. at ¶ 6. Those two inquires do not,
however, fully address whether a parent has waived his or her right to counsel.
{¶ 15} The issue that A.S. raises in her proposition of law is not the standard
for allowing an attorney to withdraw from representation at a permanent-custody
hearing but is the standard for finding that a parent has waived the right to counsel.
While those standards overlap, they are not identical. A.S.’s proposition of law
states that a parent cannot be deprived of the right to assistance of counsel unless
the parent has knowingly waived that right and that a parent’s unexplained absence
at the permanent-custody hearing, standing alone, is insufficient to infer the
knowing and intelligent waiver of the right to counsel. The lead opinion adopts
A.S.’s proposition of law as the syllabus of the court, and I agree with that statement
of law as far as it goes and therefore concur in the syllabus. But given the stakes in
a permanent-custody hearing, I think we can, and should, offer additional guidance
to lower courts and practitioners on the issues raised here.
{¶ 16} I would adopt—with some modification—the approach commonly
used by the Tenth District Court of Appeals in cases of this type. The Tenth District
has held that “where a parent ‘fails to maintain contact with counsel, fails to appear
for scheduled hearings despite receiving notice of such, and fails to cooperate with
counsel and the court, the court may infer that the parent has waived his or her right
to counsel and may grant counsel’s request to withdraw.’ ” In re Garcia, 10th Dist.
Franklin Nos. 03AP-874, 03AP-876, and 03AP-877, 2004 Ohio App. LEXIS 1069,
*6-7 (Mar. 16, 2004), quoting In re Rachal G., 6th Dist. Lucas No. L-02-1306,
2003-Ohio-1041, ¶ 14. But rather than requiring specific inquiries for determining
whether a court may infer that a parent has waived his or her right to counsel, the
Tenth District has held that a court must take into account the totality of the
circumstances, including the parent’s background, experience, and conduct.
Garcia at *7, citing Rachal G. at ¶ 14. I would add that the trial court should engage
in an on-the-record discussion of the factors indicating that a parent has waived the
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right to counsel. A finding, based on the totality of the circumstances, that the
parent waived the right to counsel is a necessary predicate for continuing with a
permanent-custody hearing after allowing the parent’s counsel to withdraw.
{¶ 17} Here, the trial court’s inquiry fell far short of these parameters. The
trial court did not consider A.S.’s background, experience or conduct throughout
this case. In fact, the trial court did not address the question of waiver at all; it did
not make a finding that A.S. explicitly waived her right to counsel, and it did not
expressly consider whether there were sufficient facts to warrant the inference that
A.S. had waived that right.
{¶ 18} The only discussion on the record was counsel’s statements that he
had informed A.S. of the permanent-custody hearing by a letter dated June 29,
2016, and that he had informed her that the court was likely to proceed in her
absence if she did not appear for the hearing and that he would ask to withdraw
should that happen. Counsel acknowledged that A.S. responded to his letter on July
5, 2016, but he did not proffer the substance of her response. He did not say whether
he knew A.S.’s wishes with respect to the motion for permanent custody, and he
made no assertion as to whether he could competently represent her in her absence.
Counsel’s statement that A.S. responded to his June 29, 2016 letter “[f]or the first
time” on July 5, 2016—within a week of his sending the letter and a week prior to
the permanent-custody hearing—does not demonstrate a lack of cooperation. With
the exception of a single review hearing in December 2014 when she was
incarcerated, the record reveals A.S.’s consistent appearances at hearings with
counsel. It also includes some reports of A.S.’s progress toward completing her
case plan and working toward reunification, despite stumbles with respect to her
addictions.
{¶ 19} Both the trial court and the Tenth District based their decisions solely
on A.S.’s absence from the permanent-custody hearing. The only reason for
allowing counsel to withdraw stated in the trial court’s judgment entry is that
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“mother failed to appear at hearing.” And the Tenth District majority found that
the trial court did not abuse its discretion because A.S. knew about the hearing date
but did not attend or advise her counsel or caseworker that she would not attend the
hearing. 10th Dist. Franklin No. 16AP-575, ¶ 17 (Feb. 21, 2017). But as the
syllabus here holds, a parent’s mere absence from a custody hearing is not enough
to warrant a finding that the parent has waived his or her right to counsel. Looking
to the totality of the circumstances, I conclude that the record does not support the
trial court’s implicit finding that A.S. waived her right to counsel.
{¶ 20} In the end, I agree with the lead opinion that the trial court erred in
allowing A.S.’s appointed attorney to withdraw from representation and in then
proceeding with the permanent-custody hearing without A.S. being present. I
therefore concur in reversing the judgment of the Tenth District.
KENNEDY, J., concurs in the foregoing opinion.
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O’DONNELL, J., dissenting.
{¶ 21} Respectfully, I dissent.
{¶ 22} The circumstances of this case suggest A.S. has waived her right to
counsel because she had received notice from her attorney advising of the date and
time of the permanent custody hearing, and a directive that she needed to be present
at the hearing and that if she failed to attend, the juvenile court would likely proceed
in her absence and counsel intended to ask the court for permission to withdraw.
{¶ 23} The law with respect to a parent waiving the right to counsel in
permanent custody proceedings and entitling counsel to seek to withdraw from
representation is well documented in Ohio.
{¶ 24} In In re C.H., 162 Ohio App. 3d 602, 2005-Ohio-4183, 834 N.E.2d
401 (3d Dist.), the Third District Court of Appeals articulated that a court may infer
that a parent has waived the right to counsel in a permanent custody proceeding and
grant counsel’s request to withdraw based on “ ‘the total circumstances of the
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individual case, including the background, experience and conduct of the parent.’ ”
Id. at ¶ 10, quoting In re Rachal G., 6th Dist. Lucas No. L-02-1306, 2003-Ohio-
1041, ¶ 14; see also In re A.S., 8th Dist. Cuyahoga Nos. 94098 and 94104, 2010-
Ohio-1441, ¶ 28; In re B.M., 10th Dist. Franklin Nos. 09AP-60, 09AP-61, 09AP-
62, 09AP-63, and 09AP-64, 2009-Ohio-4846, ¶ 26.
{¶ 25} Here, the majority suggests that the juvenile court determined that
A.S. had waived her right to counsel based solely on her failure to appear for the
permanent custody hearing. As the appellate court recognized, however, counsel
“indicated to the [juvenile] court that he had had prior difficulties communicating
with his client.” 10th Dist. Franklin No. 16AP-575, ¶ 16 (Feb. 21, 2017). The
record further reflects that A.S. had attended earlier court proceedings involving
this matter and knew of the permanent custody hearing date. In addition, counsel
for A.S. sent her a letter informing her of the time and nature of the proceedings,
that she needed to attend, and that if she failed to appear the trial court would likely
go forward without her and that he would request to withdraw. Despite receiving
that communication, A.S. failed to appear at the hearing and there is no evidence in
the record that she attempted to contact counsel or the court to explain why she was
unable to attend.
{¶ 26} For these reasons, I would conclude that R.K. waived her right to
counsel and affirm the judgment of the Tenth District Court of Appeals.
DEWINE, J., concurs in the foregoing opinion.
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Yeura R. Venters, Franklin County Public Defender, and John W. Keeling,
Assistant Public Defender, for appellant.
Robert J. McClaren, for appellee.
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