In re C.S. ( 2023 )

[Cite as In re C.S., 2023-Ohio-3754.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
IN THE MATTER OF: :
C.S., : CASE
NO. 23CA12
Adjudicated Neglected :
and Dependent Child.
DECISION & JUDGMENT
ENTRY
:
________________________________________________________________
APPEARANCES:
Steven H. Eckstein, Washington Court House, Ohio, for Appellant.
Dana E. Gilliland, Jackson, Ohio, for Appellee.
________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED:10-6-23
ABELE, J.
{¶1} This is an appeal from a Jackson County Common Pleas
Court, Juvenile Division, judgment that granted Jackson County
Job and Family Services, appellee herein, permanent custody of
four-year-old C.S.
{¶2} Appellant, the child’s biological mother, raises the
following assignment of error:
“THE TRIAL COURT ERRED IN DENYING THE
MOTHER-APPELLANT’S MOTION FOR
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DISQUALIFICATION THEREBY DENYING HER THE DUE
PROCESS RIGHTS REQUIRED UNDER THE UNITED
STATES AND OHIO CONSTITUTIONS.”
{¶3} On December 8, 2021, appellee filed a complaint that
alleged C.S. is an abused, neglected, and dependent child and
requested temporary custody. The complaint alleged that on
October 4, 2021, appellee received a referral that appellant had
been using drugs. The next day, a caseworker visited
appellant’s home and found it to be in disarray. On appellant’s
bed appeared “a plate with a white powdery substance crushed up
in a line and a tube on it.” Appellant stated “that the powder
was her Suboxone/Subutex and she was getting ready to take it
when” the caseworker arrived.
{¶4} The caseworker contacted the Wellston Police
Department to report that she had discovered a white, powdery
substance inside appellant’s home. Police investigated and
charged appellant with drug possession and drug-paraphernalia
possession. Appellant agreed to place the child with
appellant’s mother pursuant to a safety plan. About one month
later, appellant asked appellee to place the child with the
child’s father. Appellee later approved the father as a
placement for the child.
{¶5} On December 5, 2021, the father notified a caseworker
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that appellant had removed the child from his home. Caseworkers
could not locate appellant, but she did return the child to the
father. On January 3, 2022, appellee filed a motion for a
temporary-custody predispositional order. Appellee asserted
that the father allowed appellant to remove the child from his
care and the parents are avoiding contact with the agency
caseworkers. The court subsequently entered an emergency,
interim order that placed the child in appellee’s temporary
custody.
{¶6} On February 1, 2022, the trial court adjudicated the
child a neglected and dependent child and continued temporary
custody.1 Approximately one month later, the court entered a
dispositional order that placed the child in appellee’s
temporary custody.
{¶7} On January 3, 2023, appellee requested the court
modify the disposition to permanent custody. Appellee alleged
that the child has been in its permanent custody for 12 or more
months of a consecutive 22-month period, the child cannot be
placed with either parent within a reasonable time or should not
be placed with either parent, and permanent custody is in the
1
Appellee agreed to dismiss the abuse allegation.
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child’s best interest.
{¶8} On April 21, 2023, the trial court held a hearing to
consider appellee’s permanent-custody motion. At the start of
the hearing, the father’s counsel indicated that the father
recently realized that the judge previously represented the
father in a 2015 criminal case and appellant in a 2019 case.
The father thus asked the judge to recuse himself and to request
another judge be appointed.
{¶9} The judge explained that he did not recall
representing either parent, but he did check the records after
the father’s counsel raised the issue and confirmed that he had
represented the father in a 2014 case and appellant in a 2019
case. The judge then allowed the parties to address the matter.
{¶10} Appellee’s counsel pointed out that to disqualify a
judge, a party must file a disqualification affidavit with the
Ohio Supreme Court at least seven days before the proceeding.
Appellee noted that the father did not file a disqualification
affidavit. Appellee further argued that, even if the court
considered the issue, the father could have raised the issue at
an earlier point in the proceedings. Appellee also argued that
the previous cases are not relevant to the permanent-custody
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proceedings.
{¶11} Appellant’s counsel stated that appellant joined in
the father’s disqualification request on the basis of the
appearance of impropriety. Counsel indicated that appellant’s
“main concern would be that you’d have some knowledge of her
former, like prior to this case, uh, that could be negative in
your mind.”
{¶12} The trial court then discussed Jud.Cond.R. 2.11 on the
record and explained its reasoning process. The court stated
that it did not recall the facts of the earlier cases and, after
a review of the entire rule, the court indicated it did not
believe that it would be unable to act without bias or
prejudice. The court stated that it has been, and would
continue to be, impartial. Thus, the court found no basis for
recusal.
{¶13} The trial court then recited the case history and
asked appellee’s counsel whether she was prepared to proceed
with the permanent-custody hearing. Appellee’s counsel
responded affirmatively, and further stated that the court must
decide the permanent-custody motion within 120 days of its
filing (January 3, 2023) and 12 days remain. Counsel also
pointed out that neither father nor appellant asked for a
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continuance with respect to the disqualification motions. At
that point, the judge interjected and asked both the father’s
and appellant’s counsel whether either wished “to request a
continuance, on behalf of your client based on the issue of
disqualification.” The parents’ counsel stated that they did
not. The court thus proceeded with the permanent-custody
hearing.
{¶14} The evidence adduced at the hearing shows that both
parents are incarcerated and neither will be available to care
for the child for several years. Moreover, the child currently
resides with a foster family who meets all of his needs. The
foster parents also intend to adopt if the court grants appellee
permanent custody.
{¶15} On April 28, 2023, the trial court granted appellee’s
motion for permanent custody of the child. In its decision, the
court noted that both parents had requested the trial-court
judge to recuse himself because he previously had represented
the parents in separate criminal proceedings. The court
observed that it had considered Jud.Cond.R. 2.11 and discussed
the matter on the record with the parties and their counsel, but
it “could not identify any applicable grounds for recusal, after
consideration of each section of the rule with opportunity for
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all parties to be heard on the issue of recusal.” The court
further pointed out that none of the parties sought to use
evidence from previous cases during the permanent-custody
hearing. The court thus denied the parents’ recusal request.
{¶16} The trial court found that the child has been in
appellee’s temporary custody for 12 or more months of a
consecutive 22-month period. The court further noted that the
mother recently entered guilty pleas to two counts of conspiracy
to commit murder and that the father entered guilty pleas to two
counts of voluntary manslaughter. The court reported that, at
the time of its decision, the parents had yet to be sentenced
and are facing, at a minimum, three years in prison.
{¶17} The trial court also determined that placing the child
in appellee’s permanent custody is in the child’s best interest.
The court noted that the foster parents meet all of the child’s
needs and are interested in adopting the child. The court thus
granted appellee permanent custody of the child. This appeal
followed.
{¶18} In her sole assignment of error, appellant asserts
that the trial court erred by denying her disqualification
motion. She contends that the trial judge’s refusal to recuse
deprived her of her due-process rights under the state and
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federal constitutions. Appellant further claims that the court
structurally erred by applying the wrong legal standard when
evaluating her disqualification motion. She alleges that “the
trial court applied an actual conflict standard to her motion to
disqualify instead of an intolerable probability of actual
bias.”
{¶19} Appellant recognizes that litigants seeking to
disqualify a judge must file a disqualification affidavit with
the Ohio Supreme Court, and further acknowledges that
intermediate appellate courts lack authority to disqualify
trial-court judges, but contends that intermediate appellate
courts can address arguments that a trial-court judge’s bias
violated a litigant’s right to a fundamentally fair proceeding.
{¶20} Initially, we note, and both parties recognize, that
this court does not have the authority to disqualify a judge
presiding over a permanent-custody hearing or any other
proceeding. R.C. 2701.03 governs the process that a party must
follow when seeking to disqualify a judge:
(A) If a judge of the court of common pleas
allegedly is interested in a proceeding pending before
the court, allegedly is related to or has a bias or
prejudice for or against a party to a proceeding pending
before the court or a party's counsel, or allegedly
otherwise is disqualified to preside in a proceeding
pending before the court, any party to the proceeding or
the party's counsel may file an affidavit of
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disqualification with the clerk of the supreme court in
accordance with division (B) of this section.
(B) An affidavit of disqualification filed under
section 2101.39, 2501.13, 2701.031, or 2743.041 of the
Revised Code or division (A) of this section shall be
filed with the clerk of the supreme court not less than
seven calendar days before the day on which the next
hearing in the proceeding is scheduled and shall include
all of the following:
(1) The specific allegations on which the claim of
interest, bias, prejudice, or disqualification is based
and the facts to support each of those allegations or,
in relation to an affidavit filed against a judge of a
court of appeals, a specific allegation that the judge
presided in the lower court in the same proceeding and
the facts to support that allegation;
(2) The jurat of a notary public or another person
authorized to administer oaths or affirmations;
(3) A certificate indicating that a copy of the
affidavit has been served on the probate judge, judge of
a court of appeals, judge of a court of common pleas,
judge of a municipal or county court, or judge of the
court of claims against whom the affidavit is filed and
on all other parties or their counsel;
(4) The date of the next scheduled hearing in the
proceeding or, if there is no hearing scheduled, a
statement that there is no hearing scheduled.
* * * *
{¶21} Thus, the statute requires a party who seeks to
disqualify a judge to file a disqualification affidavit with the
Ohio Supreme Court. Furthermore, the Ohio Constitution “vests
exclusive authority to pass on disqualification matters in the
chief justice or her designee.” State v. Osie, 140 Ohio St.3d
131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 62, citing Beer v.
Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978).
Consequently, “any attempt to obtain a judge’s recusal must be
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made in consideration of the filing requirements of R.C. 2701.03
and other principles underlying” the disqualification process.
In re Navarre, 156 Ohio St.3d 1208, 2019-Ohio-850, 124 N.E.3d
843, ¶ 5.
{¶22} For these reasons, intermediate appellate courts lack
the “authority to pass upon disqualification or to void the
judgment of the trial court upon that basis.” Beer, 54 Ohio
St.2d at 442; accord Citibank, N.A. v. Hine, 2019-Ohio-464, 130
N.E.3d 924, ¶ 126 (4th Dist.). Likewise, appellate courts lack
jurisdiction to review a trial court’s decision regarding a
disqualification or recusal motion. State ex rel. Hough v.
Saffold, 131 Ohio St.3d 54, 2012-Ohio-28, 960 N.E.2d 451, ¶ 2;
State v. Light, 2023-Ohio-1187, 212 N.E.3d 1025, ¶ 58 (11th
Dist.); Brown v. Schmidt, 4th Dist. Ross No. 15CA3523, 2016-
Ohio-2864, ¶ 18. Accordingly, we lack authority to review the
merits of the trial court’s decision regarding appellant’s
disqualification motion.
{¶23} Appellant nevertheless contends that a permanent-
custody hearing before a biased judge constitutes a structural
error that violates her due-process right to a fundamentally
fair proceeding. We point out, however, that at no point during
the permanent-custody hearing did appellant argue that the trial
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court acted in a biased manner. Instead, she limited her
argument to asserting that the trial-court judge should have
determined, before the hearing began, that the prior
representation created an appearance of impropriety. Although
we question whether appellant properly preserved this
structural-error argument, we nonetheless will consider it.
{¶24} “A fair trial in a fair tribunal is a basic
requirement of due process.” In re Murchison, 349 U.S. 133,
136, 75 S.Ct. 623, 99 L.Ed. 942 (1955); accord Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 876, 129 S.Ct. 2252, 173 L.Ed.2d
1208 (2009). For purposes of the due-process guarantee,
fairness “requires the absence of actual bias in the trial of
cases” and “a system of law [that] endeavor[s] to prevent even
the probability of unfairness.” Murchison, 349 U.S. at 136.
Thus, a “trial before a biased judge is fundamentally unfair and
denies a defendant due process of law.” State v. LaMar, 95 Ohio
St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, 34, citing Rose v.
Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986);
Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 64
L.Ed.2d 182 (1980) (“the Due Process Clause entitles a person to
an impartial and disinterested tribunal in both civil and
criminal cases”). Accordingly, appellate courts may review
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judicial-bias claims that allegedly violate a litigant’s due-
process rights. State v. Loudermilk, 2017-Ohio-7378, 96 N.E.3d
1037, ¶ 19 (1st Dist.); King v. Divoky, 9th Dist. Summit No. CV
29769, 2021-Ohio-1712, ¶ 45; In re A.H., 8th Dist. Cuyahoga No.
108107, 2019-Ohio-4063, ¶ 65, fn. 10 (because permanent-custody
proceedings must be fundamentally fair to comply with due
process, parents are entitled to a permanent-custody hearing
free from judicial bias and prejudice).
Judicial bias has been described as “a hostile
feeling or spirit of ill will or undue friendship or
favoritism toward one of the litigants or his attorney,
with the formation of a fixed anticipatory judgment on
the part of the judge, as contradistinguished from an
open state of mind which will be governed by the law and
the facts.”
State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d
97, ¶ 47, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St.
463, 58 O.O. 315, 132 N.E.2d 191 (1956), paragraph four of the
syllabus; accord Culp v. Olukoga, 2013-Ohio-5211, 3 N.E.3d 724,
¶ 55 (4th Dist.). Judges are “presumed to follow the law and
not to be biased, and the appearance of bias or prejudice must
be compelling to overcome these presumptions.” In re
Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489,
798 N.E.2d 23, ¶ 5. Consequently, “[a]llegations that are based
solely on innuendo and speculation are insufficient to establish
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bias or prejudice.” In re Disqualification of Pokorny, 135 Ohio
St.3d 1268, 2013-Ohio-915, 986 N.E.2d 993, ¶ 6. Moreover,
opinions that a judge forms based upon “prior proceedings” do
not demonstrate bias “unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible.” Liteky v. United States, 510 U.S. 540, 555, 114
S.Ct. 1147, 127 L.Ed. 2d 474 (1994); accord State v. Dean, 127
Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 49. We
additionally observe that “‘[b]ias against a party is difficult
to question unless the judge specifically verbalizes personal
bias or prejudice toward a party.’” Culp v. Olukoga, 2013-Ohio-
5211, 3 N.E.3d 724, ¶ 55 (4th Dist.), quoting Frank Novak &
Sons, Inc. v. Brantley, Inc., 8th Dist. Cuyahoga No. 77823, 2001
WL 303716 (Mar. 29, 2001).
{¶25} In the case sub judice, appellant did not cite any
part of the permanent-custody-hearing transcript to suggest the
trial-court judge harbored hostile feelings or ill will towards
her or any other party. Instead, appellant rests her argument
upon bare allegations that the judge’s previous representation
renders the judge unable to act in a fundamentally fair manner
when conducting the permanent-custody hearing and ruling on
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appellee’s motion. However, bare allegations of bias are
insufficient to establish a due-process violation. King v.
Divoky, 9th Dist. Summit No. CV 29769, 2021-Ohio-1712, ¶ 49;
Ramsey v. Ramsey, 10th Dist. Franklin No. 13AP-840, 2014-Ohio-
1921, ¶ 72; see In re Disqualification of Blanchard, 150 Ohio
St.3d 1260, 2017-Ohio-5543, 80 N.E.3d 504, ¶ 5 (“parents’
general and nonspecific claim” that judge who presided over
parents’ drug-court hearings and permanent-custody proceeding
“‘heard numerous prejudicial facts’ about them in drug-court
hearings” was not sufficient “to overcome the presumption of the
judge’s impartiality”). Furthermore, appellant did not point to
anything in the record to establish that the judge’s previous
representation caused him to develop “deep-seated favoritism or
antagonism that would make fair judgment impossible.” Liteky,
510 U.S. at 555; see generally Blanchard at ¶ 4 (“the fact that
the same judge presides over a parent’s dependency case and her
drug-court hearings does not, without more, mandate the judge’s
disqualification from one of those matters”).
{¶26} We, therefore, after our review, do not agree with
appellant that the permanent-custody proceeding was
fundamentally unfair. Accordingly, based upon the foregoing
reasons, we overrule appellant’s sole assignment of error and
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affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JACKSON, 23CA12
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JUDGMENT ENTRY
It is ordered that the appeal be affirmed and that appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Jackson County Common Pleas Court, Juvenile
Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.