2022 Ohio 579
Ohio Ct. App.2022Background
- Jan. 13, 2020: Ashtabula County Child Services filed for temporary custody of M.M.; court later found M.M. had been abused.
- Apr. 19, 2020: Court granted temporary custody to Child Services and placed M.M. with the father.
- Nov. 23, 2020: Appellant (mother) voluntarily discharged her attorney and filed a notice stating she would act pro se and did not want a public defender appointed.
- Mar. 8, 2021: At a scheduled custody hearing the mother appeared pro se; the court did not advise her of her statutory right to counsel or to appointed counsel if indigent.
- The magistrate terminated Child Services’ temporary custody and granted permanent custody to the father; the magistrate orally granted continuing visitation with a supervisor but the journal entry did not reflect visitation or appointment of a supervisor.
- The mother appealed, raising (1) failure to inform her of right to counsel and (2) the judgment entry’s failure to reflect the oral visitation order.
Issues
| Issue | Mother’s Argument | Father’s/State’s Argument | Held |
|---|---|---|---|
| Whether the juvenile court erred by not informing mother of her right to counsel and to appointed counsel if indigent | Court violated R.C. 2151.352 and Juv. R. 4(A) by failing to inform mother at the March hearing; this is reversible error | Mother had expressly waived counsel in her Nov. 23 notice stating she would proceed pro se and did not want a public defender; court had ascertained her knowledge | Court acknowledged the statutory notice error but found an express waiver in mother’s November notice; alternatively, the court had ascertained she knew her rights—first assignment overruled |
| Whether the journal entry should be remanded/ corrected because it failed to reflect the magistrate’s oral visitation order | Requests remand for a nunc pro tunc entry to include visitation and supervisor appointment | Trial court subsequently issued an order reflecting visitation during the appeal; issue rendered moot | Court held the issue moot because the trial court corrected the visitation order on appeal |
Key Cases Cited
- In re W.W.E., 67 N.E.3d 159 (Ohio Ct. App. 2016) (discussing when waiver of the right to counsel may be inferred from the totality of circumstances and the effect of an express waiver)