In re C.W.
2016 Ohio 3235
Ohio Ct. App.2016Background
- C.W., a child with severe congenital brain defects, was removed from mother Kelly Estep’s custody for neglect/malnutrition in Nov. 2013; Ashtabula County Children Services sought permanent custody after reunification efforts failed.
- Father Christopher Withrow has been incarcerated since Sept. 2011 (life sentence, parole possible after 30 years) and had no in-person contact with C.W. since that date.
- The agency served Withrow with the custody complaint and the motion for permanent custody by certified mail; the motion informed him of his statutory/constitutional right to appointed counsel and provided contact information to request an appointment.
- Six months passed between service of the permanent-custody motion and the May 14, 2015 evidentiary hearing; Withrow did not request counsel before or during the hearing.
- The juvenile court held the hearing (presented evidence of Withrow’s incarceration and child’s improved health in foster care) and later (Oct. 2015) entered judgment terminating Withrow’s parental rights; a letter from Withrow requesting appointed counsel was received by the clerk about four months after the hearing and one month before the judgment.
- Withrow appealed solely arguing the trial court violated due process by proceeding without appointing counsel for him; the court affirmed, finding no constitutional violation because Withrow failed to timely invoke his right to counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proceeding to a permanent-custody hearing without appointing counsel for an indigent, incarcerated parent violated due process | Withrow: hearing violated due process because court did not appoint counsel before the hearing | Children Services: Withrow received notice of right to appointed counsel and did not timely request appointment, so court had no obligation to appoint counsel | Court held no due process violation; parent must timely invoke the right to counsel and can waive it by inaction |
Key Cases Cited
- State ex rel. Heller v. Miller, 61 Ohio St.2d 6 (1980) (constitutional due-process/right-to-counsel principles require appointed counsel for indigent parents in involuntary termination actions in appropriate cases)
- Lassiter v. Dept. of Social Services of Durham Cty., 452 U.S. 18 (1981) (appointment of counsel in parental-termination cases is not automatically required by the Constitution; whether required depends on case-specific due-process balancing)