In re K.R. , 2018 Ohio 1316 ( 2018 )

[Cite as In re K.R., 2018-Ohio-1316.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
IN RE: K.R. C.A. No. 17AP0037
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
CASE No. 2016 JUV-C 0832
DECISION AND JOURNAL ENTRY
Dated: April 6, 2018
CARR, Judge.
{¶1} Appellant Mother appeals the judgment of the Wayne County Court of Common
Pleas, Juvenile Division, that terminated her parental rights and awarded permanent custody of
the child, K.R., to appellee Wayne County Children Services Board (“CSB”). This Court
reverses and remands.
I.
{¶2} Mother is the biological mother of K.R. (d.o.b. 12/15/06). Father is deceased.
Based on concerns of drug use and domestic violence in the home, as well as Mother’s live-in
boyfriend exposing the child to criminal activity, CSB filed a complaint alleging that K.R. was
dependent. Mother immediately sought and obtained appointed counsel.
{¶3} At the adjudicatory hearing, Mother stipulated to a finding that K.R. was a
dependent child. After the dispositional hearing and by agreement of the parties, the child was
placed in the temporary custody of CSB, and the juvenile court adopted the case plan as the order
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of the court. Mother appeared at the separate adjudicatory and dispositional hearings with
counsel.
{¶4} Two months later, Mother failed to appear for a review hearing. The judgment
entry, however, noted that Mother was continuing to attend visits with the child. The juvenile
court ordered Mother to contact the caseworker weekly due to concerns that CSB was not able to
communicate with her. Mother failed to do so. Based on Mother’s failure to comply with
certain case plan requirements, CSB moved to suspend Mother’s visitations and for the
appointment of a guardian ad litem. The juvenile court appointed a guardian ad litem and
scheduled the visitation issue for hearing. Mother did not appear for the pretrial, and her
attorney requested a continuance. Although the juvenile court continued the hearing on the
motion to suspend Mother’s visitation, it nevertheless suspended her visitation in the interim
based on Mother’s failure to attend any visits during the past month. Someone at the pretrial
reported a new address for Mother. At a subsequent hearing, Mother’s attorney reported that
Mother was then homeless, but that he was communicating with her via email.
{¶5} Mother appeared at the next review hearing. She provided the court with her new
contact information. The juvenile court maintained both the order of temporary custody to CSB
and the suspension of Mother’s visitation. Ten months after filing its complaint, CSB filed a
motion for permanent custody. Later, Mother failed to appear at the annual review hearing, at
which time the juvenile court noted she had not yet been served for the permanent custody
hearing. CSB filed a praecipe for service of summons of the permanent custody hearing on
Mother by publication, based on the caseworker’s averment that she was unaware of a current
accurate address for Mother. Service by publication was perfected.
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{¶6} The matter proceeded to permanent custody hearing. Mother did not appear.
Prior to the commencement of the hearing, Mother’s attorney moved to withdraw, stating in
response to inquiry by the court that he had not had contact with Mother during the past month,
that he had not had an opportunity to speak with her about the permanent custody motion, and
that he did not know her wishes relative to the permanent custody motion. The juvenile court
allowed Mother’s attorney to withdraw, and the hearing proceeded in the absence of both Mother
and counsel to represent her. At the conclusion of the hearing, the juvenile court granted CSB’s
motion for permanent custody and terminated Mother’s parental rights. Mother filed a timely
appeal, raising one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND DENIED MOTHER DUE PROCESS AND
HER CONSTITUTIONAL AND STATUTORY RIGHTS WHEN IT
OVERRULED A REQUEST FOR A CONTINUANCE OF THE PERMANENT
CUSTODY TRIAL AND THEN GRANTING MOTHER’S ATTORNEY’S
MOTION TO WITHDRAW, WITHOUT MOTHER EVER WAIVING HER
RIGHT TO COUNSEL.
{¶7} Mother argues that, after denying her motion to continue, the juvenile court erred
when it implicitly found that Mother had waived her right to representation of counsel at the
permanent custody hearing and allowed her attorney to withdraw.
{¶8} Both Mother and CSB assert that a recent opinion by the Supreme Court of Ohio
is controlling authority. In In re R.K., Slip Opinion No. 2018-Ohio-23, the high court addressed
a situation where the mother failed to appear for the permanent custody hearing, and the juvenile
court permitted her attorney to withdraw immediately prior to the commencement of the hearing.
Id. at ¶ 2. The appellate court, in a split decision, affirmed the permanent custody judgment, and
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concluded that the juvenile court did not abuse its discretion by allowing the mother’s counsel to
withdraw. Id. at ¶ 3; In re R.K., 10th Dist. Franklin No. 16AP-575, ¶ 17-18 (Feb. 21, 2017).
{¶9} In a split decision, the Supreme Court reversed. Two justices joined the two
justice majority, concurring solely in the syllabus, which states:
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 the
hearing.
In re R.K., 2018-Ohio-23, at syllabus.
{¶10} In the matter below involving K.R., the juvenile court was, therefore, required to
make a finding that Mother knowingly waived her right to counsel before allowing appointed
counsel to withdraw and proceeding to a permanent custody hearing without representation. The
lower court failed to make such a finding. Accordingly, this Court is compelled to reverse.
{¶11} Admittedly, the juvenile court in this case did not have the benefit of any
guidance by the Supreme Court, as the high court had not yet decided In re R.K. Nevertheless,
while this Court takes no position on the remainder of the high court’s opinion given the multiple
discussions therein, we are required to accept the syllabus as the law. For that reason, Mother’s
assignment of error is sustained.
III.
{¶12} Mother’s sole assignment of error is sustained, The judgment of the Wayne
County Court of Common Pleas, Juvenile Division, is reversed and the cause remanded for
further proceedings consistent with this opinion.
Judgment reversed,
and cause remanded.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
TEODOSIO, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
JAMES W. ARMSTRONG, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and JOSHUA A. NEWTON, Assistant Prosecuting
Attorney, for Appellee.
KARIN WIEST, Guardian ad Litem.