In re B.W. , 2019 Ohio 5078 ( 2019 )

[Cite as In re B.W., 2019-Ohio-5078.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
Hon. W. Scott Gwin, P. J.
IN THE MATTER OF: Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
B.W. Case No. 2019 CA 0068
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 2016
DEP 0135
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 6, 2019
APPEARANCES:
For Appellee RCCS For Appellant Mother
EDITH GILLILAND DARIN AVERY
731 Scholl Road 105 Sturges Avenue
Mansfield, Ohio 44907 Mansfield, Ohio 44903
Richland County, Case No. 2019 CA 0068 2
Wise, J.
{¶1} Appellant Amanda W. appeals the decision of the Richland County Court of
Common Pleas, Juvenile Division, which denied her request for the re-issuance of the
judgment entry ordering her minor child B.W. into the legal custody of a paternal relative
of the child. Appellee herein is Richland County Children Services (“RCCS”). The child’s
father is James W., who is not a participant in the present appeal.
{¶2} The relevant procedural facts leading to this appeal are as follows.1
{¶3} Appellant is the mother of the minor child B.W., age five. On October 31,
2016 Appellee RCCS filed a complaint in the Richland County Juvenile Court, alleging
B.W. to be dependent under R.C. 2151.04. The agency’s concerns included the parents'
substance abuse issues and lack of financial stability. Trial counsel for appellant was
appointed on November 16, 2016.
{¶4} The trial court subsequently granted RCCS protective supervision.
However, in March 2017, pursuant to a motion for an expedited placement decision, the
trial court placed B.W. with an out-of-state paternal relative, L.W.
{¶5} On March 23, 2018, RCCS filed a request for legal custody of B.W. to be
granted to L.W., the aforesaid relative. Via a magistrate’s decision issued on October 11,
2018, legal custody of B.W. was granted to L.W. Objections were thereafter filed;
however, on March 27, 2019, the trial court approved and adopted the magistrate’s
decision, with certain modifications not pertinent to the present appeal.
1 The trial court record as transmitted to us is not complete. It consists of a full docket
printout and just the trial court filings after May 29, 2019. As such, we are herein relying
on these documents and the history of the case as presented in the parties’ briefs.
Richland County, Case No. 2019 CA 0068 3
{¶6} On April 22, 2019, twenty-six days after the judgment entry ordering legal
custody of B.W. to L.W., the trial court reappointed appellant’s trial counsel.
{¶7} On May 15, 2019, appellant’s said trial counsel filed a notice of appeal in
the trial court. That case was assigned appellate number 2019CA0041. However, at
said counsel’s request, the trial court ordered her withdrawn as appellant’s counsel on
June 20, 2019.
{¶8} In the meantime, on May 20, 2019, the trial court appointed appellant’s
present counsel for purposes of an appeal.
{¶9} On July 5, 2019, appellant, via her present counsel, filed a motion asking
the trial court to refile its March 27, 2019 judgment entry granting legal custody of B.W.
to L.W.2
{¶10} On July 12, 2019, the trial court issued a judgment entry denying appellant’s
request to refile the legal custody judgment entry.
{¶11} On July 16, 2019, appellant filed a notice of appeal.3 She herein raises the
following sole Assignment of Error:
{¶12} “I. THE COURT ERRED IN REFUSING TO REFILE ITS MARCH 27, 2019
JUDGMENT ENTRY THAT WOULD PROVIDE MOTHER AN OPPORTUNITY TO FILE
HER APPEAL.”
2 The child’s father, via his trial counsel, had filed a similar motion on June 11, 2019.
The trial court denied the father’s motion on June 21, 2019. His appeal was dismissed by
this Court on August 7, 2019, as being untimely filed.
3 At the time of her notice of appeal, appellant’s first appeal (2019CA0041) was still
pending in this Court. We dismissed that appeal on August 7, 2019.
Richland County, Case No. 2019 CA 0068 4
I.
{¶13} In her sole Assignment of Error, appellant contends the court erred in
refusing to “refile” its March 27, 2019 judgment entry granting legal custody of B.W. to a
relative. We disagree.
{¶14} Appellant’s present argument is essentially founded upon the basic parental
right to counsel in Chapter 2151 proceedings. As appellant duly notes, R.C. 2151.352
states in pertinent part:
A child, the child's parents or custodian, or any other person in loco
parentis of the child is entitled to representation by legal counsel at all
stages of the proceedings under this chapter or Chapter 2152. of the
Revised Code. If, as an indigent person, a party is unable to employ
counsel, the party is entitled to have counsel provided for the person
pursuant to Chapter 120. of the Revised Code except in civil matters in
which the juvenile court is exercising jurisdiction pursuant to division (A)(2),
(3), (9), (10), (11), (12), or (13); (B)(2), (3), (4), (5), or (6); (C); (D); or (F)(1)
or (2) of section 2151.23 of the Revised Code. If a party appears without
counsel, the court shall ascertain whether the party knows of the party's
right to counsel and of the party's right to be provided with counsel if the
party is an indigent person. ***.
{¶15} In addition, Juv.R. 4(A) states, in pertinent part: “Every party shall have the
right to be represented by counsel and every child, parent, custodian, or other person in
loco parentis the right to appointed counsel if indigent. These rights shall arise when a
person becomes a party to a juvenile court proceeding. ***.”
Richland County, Case No. 2019 CA 0068 5
{¶16} However, in Ohio, there is a general inapplicability of ineffective assistance
of counsel claims in civil litigation. See Brunner Firm Co., L.P.A. v. Bussard, 10th Dist.
Franklin No. 07AP-867, 2008-Ohio-4684, ¶ 31. As an exception, we have recognized
“ineffective assistance” claims in permanent custody appeals. See, e.g., In re Utt
Children, 5th Dist. Stark No. 2003CA00196, 2003–Ohio–4576. Accord Jones v. Lucas
County Children Services Board, 46 Ohio App. 3d 85, 546 N.E.2d 471 (6th Dist.1988).
But we have not expanded the doctrine of ineffective assistance of counsel beyond
criminal cases and those involving permanent custody, i.e., the permanent termination
of parental rights. See In re Logwood, 5th Dist. Guernsey No. 2004–CA–38, 2005–Ohio–
3639, ¶ 26.
{¶17} In the case sub judice, appellant primarily directs us to State v. Gover, 71
Ohio St. 3d 577, 580, 645 N.E.2d 1246, 1249 (1995). In that case, after the defendant,
Anthony Gover had been convicted of aggravated robbery in 1991, the Hamilton County
Court of Common Pleas failed to inform his appointed appellate counsel of the fact of his
appointment. In 1992, Gover, acting pro se, attempted several times to obtain leave for
a delayed appeal, which the First District Court of Appeals denied. In 1994, Gover, with
the assistance of the State Public Defender’s Office, filed a motion for reconsideration of
the judgment entry overruling his first motion for a delayed appeal. Gover also requested
in the alternative a reopening of his appeal due to the ineffectiveness of appellate
counsel pursuant to App.R. 26(B). These motions were denied by the First District Court
of Appeals.
{¶18} Gover then appealed to the Ohio Supreme Court, which ultimately
determined that his “proper remedy [was] to file a petition for postconviction relief under
Richland County, Case No. 2019 CA 0068 6
R.C. 2953.21.” Id. at 580. The Supreme Court further concluded that should Gover
pursue such postconviction relief and demonstrate a denial of his right to counsel, “[t]he
appropriate avenue of relief *** is for the trial court to reenter the judgment against the
defendant, with the result of reinstating the time within which the defendant may timely
file a notice of appeal pursuant to App.R. 4(A).” Id. at 581.
{¶19} Appellant presently urges that Gover would thus permit the trial court in the
instant case to “restart [her] appellate clock” by reissuing the March 27, 2019 custody
order, and she maintains it was error not to do so upon her request. Appellant’s Brief at
10.
{¶20} However, we find no basis to extend the Gover decision beyond the criminal
context in which it was decided. Unlike Mr. Gover, appellant is not afforded the statutory
right to pursue postconviction relief (see R.C. 2953.21(A)(1)(a)), and this case does not
involve the permanent loss of her parental rights such that an “ineffective assistance”
analysis is in any way warranted. Logwood, supra. Moreover, even if this case had
resulted in the termination of appellant’s parental rights, no delayed appeal mechanism
is available (see In re B.C., 141 Ohio St. 3d 55, 58, 2014-Ohio-4558, 21 N.E.3d 308);
thus, the jurisdiction of this Court could have only been invoked by a timely-filed notice
of appeal.
{¶21} We hold the trial court did not err in refusing to refile or reissue its March
27, 2019 judgment entry concerning legal custody of B.W. Appellant's sole Assignment
of Error is therefore overruled.
Richland County, Case No. 2019 CA 0068 7
{¶22} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Richland County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/d 1118