2019 Ohio 890
Ohio Ct. App.2019Background
- C.B., born 2006 and adopted by his mother in 2007, became parentless when his mother died in October 2017; no legal father was identified.
- Grandmother filed for legal custody and obtained ex parte interim temporary custody on October 25, 2017; Sister and Kerry Borger later intervened seeking custody.
- A guardian ad litem recommended custody to Borger. A hearing before a magistrate was held June 4, 2018; Grandmother did not appear in person but her counsel did.
- At the June 4 hearing Grandmother’s counsel told the magistrate that Grandmother wished to withdraw her motion for legal custody; counsel was then excused and the remaining parties agreed to grant legal custody to Kerry and Julie Borger.
- Grandmother later objected, claiming she never authorized withdrawal and that the magistrate should have continued the hearing; the juvenile court overruled objections and adopted the magistrate’s decision granting custody to the Borgers.
Issues
| Issue | Grandmother's Argument | Borgers' / Court's Position | Held |
|---|---|---|---|
| Whether the court abused its discretion by dismissing Grandmother’s custody motion when she was absent | Counsel lacked authority to withdraw; hearing should have been continued; no written withdrawal filed | Counsel appeared, represented Grandmother, orally withdrew the motion on the record; remaining parties agreed; no continuance requested | No abuse of discretion; withdrawal effective and custody award affirmed |
| Whether the court should have continued the hearing sua sponte because Grandmother was absent | Court had a duty to continue to protect Grandmother’s rights | Grandmother received notice, had counsel present who did not request a continuance, and offered no explanation for absence | No plain error; sua sponte continuance not required |
| Whether an attorney’s oral representation withdrawing a client’s motion is effective absent explicit written authorization | Grandmother says she did not tell counsel to withdraw and thus counsel lacked authority | Acts of an attorney within scope of authority are attributable to client; presumption that appearing counsel has authority | Court presumed counsel had authority; grandmother failed to rebut presumption |
| Whether an oral motion to withdraw is permissible without a written motion | Grandmother emphasized no written motion was filed | Juvenile Rule allows oral motions made during a hearing; withdrawal was made on the record | Oral withdrawal permitted; no procedural defect |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (defines abuse of discretion standard)
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (Ohio 1997) (plain-error doctrine in civil cases requires exceptional circumstances)