In re C.S., 2023 Ohio 3754

Background

JFS removed C.S. after a referral alleging the mother used drugs and police charged her with possession; child placed initially with relatives and then with father before being taken into JFS temporary custody.
The juvenile court adjudicated C.S. neglected and dependent and placed him in JFS temporary custody; JFS later moved for permanent custody.
At the April 21, 2023 permanent-custody hearing, counsel revealed the trial judge had previously represented the father (2014) and the mother (2019) in unrelated criminal matters; both parents requested recusal.
No party filed a disqualification affidavit with the Ohio Supreme Court under R.C. 2701.03; neither parent sought a continuance and the court proceeded after denying recusal under Jud.Cond.R. 2.11.
Evidence at the hearing showed both parents incarcerated, the child placed with foster parents who intended to adopt, and JFS’s permanent-custody motion granted.
On appeal the mother argued the judge should have been disqualified (appearance of impropriety), that the court applied the wrong legal standard (actual bias v. intolerable probability), and that denial of recusal deprived her of due process.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the judge should be disqualified for prior representation of the parents	Mother: prior representation creates appearance of impropriety and risk of bias	JFS: statutory disqualification procedure ( affidavit to Ohio Supreme Court ) not followed; issue raised late	Trial court found no basis for recusal after considering Jud.Cond.R. 2.11; appellate court lacks authority to pass on disqualification merits
Whether an appellate court can review or grant recusal	Mother: alleged judicial bias can be reviewed as a due-process matter	JFS: R.C. 2701.03 vests exclusive disqualification authority in Ohio Supreme Court; Beer/Osie limit appellate review	Appellate courts lack authority to disqualify judges or review recusal determinations; disqualification must follow R.C. 2701.03
Whether denial of recusal violated due process (structural error)	Mother: hearing before a judge who previously represented her was fundamentally unfair	JFS: record contains no evidence of actual bias; parents did not preserve a record of bias at hearing	No due-process violation found; bare allegations insufficient and record shows no hostile bias or deep-seated antagonism
Whether the trial court applied the wrong legal standard (actual bias v. probability of bias)	Mother: court applied an "actual conflict" standard instead of the proper probability-of-bias test	JFS: court applied Jud.Cond.R. 2.11 analysis and reasonably found impartiality	Appellate court rejected the claim; no reversible error in the recusal analysis and judgment affirmed

Key Cases Cited

State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588 (explaining exclusive disqualification authority and procedure)
Beer v. Griffith, 54 Ohio St.2d 440, 377 N.E.2d 775 (1978) (appellate courts lack authority to pass on trial-court disqualification)
In re Navarre, 156 Ohio St.3d 1208, 2019-Ohio-850, 124 N.E.3d 843 (statutory filing requirements govern recusal attempts)
Murchison v. Pennsylvania, 349 U.S. 133 (1955) (due process requires a fair tribunal)
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (extreme risk of actual bias violates due process)
Liteky v. United States, 510 U.S. 540 (1994) (opinions formed in prior proceedings do not alone prove bias absent deep-seated antagonism)
In re Disqualification of Blanchard, 150 Ohio St.3d 1260, 2017-Ohio-5543, 80 N.E.3d 504 (prior participation in related proceedings insufficient without more)
State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97 (definition and proof of judicial bias)
In re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23 (presumption of judge's impartiality)
In re Disqualification of Pokorny, 135 Ohio St.3d 1268, 2013-Ohio-915, 986 N.E.2d 993 (innuendo and speculation insufficient to show bias)