IN RE B.C.
Nos. 2013-1932 and 2014-0181
Supreme Court of Ohio
October 16, 2014
141 Ohio St.3d 55, 2014-Ohio-4558
Domestic relations—Parental rights—Due process does not require that parent be afforded delayed appeal from judgment terminating parental rights. Submitted May 28, 2014. APPEAL from and CERTIFIED by the Court of Appeals for Clark County, No. 2013-CA-72.
Due process does not require that a parent be afforded the right to file a delayed appeal from a judgment terminating parental rights.
LANZINGER, J.
{¶ 1} The issue in this appeal is whether due process requires that a parent whose parental rights have been terminated be afforded the right to a delayed appeal from the judgment of termination, comparable to the delayed appeal afforded to certain defendants by
Case Background
{¶ 2} On October 25, 2011, appellee, Family and Children Services of Clark County (FCSCC) was granted an ex parte order to remove B.C., d.o.b. 5/4/2010, from the care of his mother, the appellant. The complaint for temporary shelter care and temporary custody filed the next day contains the following allegations.1
{¶ 4} The court granted temporary shelter care to FCSCC, appointed a guardian ad litem (GAL) for B.C., and appointed an attorney to represent appellant. The GAL filed a report indicating that B.C. had been diagnosed at birth with Pierre Robin Syndrome, which may have caused some hearing loss. B.C. had not received any medical treatment since October 2010, was behind on his immunizations, and was delayed in his speech. Following a hearing, the juvenile court granted temporary custody to FCSCC in an order filed December 16, 2011.
{¶ 5} A case plan was established with the goal of reunification of mother and son. But when appellant continued to neglect her son, that goal changed to arranging an adoption, and on October 26, 2012, FCSCC filed a motion to modify temporary custody to permanent custody.
{¶ 6} Near this time, Steve and Susan Franko filed a motion to be made parties to the proceeding pursuant to
{¶ 7} The court held a hearing on FCSCCs motion for permanent custody in December 2012 and ordered mediation. According to the parties memorandum of understanding dated December 19, 2012, both biological parents opposed the Frankos motion to intervene. Appellant also stated that she agreed that B.C. should be placed in the permanent custody of FCSCC. The juvenile court denied the Frankos motion to intervene.
{¶ 8} On December 21, 2012, appellant appeared before the court and was found to have knowingly and voluntarily surrendered her parental rights and to have agreed that it was in B.C.s best interest that the motion for permanent custody be granted. Permanent custody was awarded to FCSCC on February 12, 2013.
{¶ 9} On August 23, 2013, B.C.s adoption by his foster family was finalized. Four days later, appellant filed a notice of appeal and a motion for leave to file a delayed appeal with the Second District Court of Appeals.
{¶ 10} The Second District noted that
{¶ 11} The Second District, however, granted appellants motion to certify a conflict, holding that its judgment conflicted with the judgment of the Fifth District in In re Westfall Children, 5th Dist. Stark No. 2006 CA 00196, 2006-Ohio-6717. We recognized that a conflict exists and accepted the following question certified to us for our review: Do the delayed appeal provisions of
Analysis
Time to File an Appeal
{¶ 12}
A party shall file the notice of appeal required by
App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period inRule 58(B) of the Ohio Rules of Civil Procedure .
{¶ 13}
{¶ 14}
(A) Motion by defendant for delayed appeal.
(1) After the expiration of the thirty day period provided by
App.R. 4(A) for the filing of a notice of appeal as of right, an appeal may be taken by a defendant with leave of the court to which the appeal is taken in the following classes of cases:(a) Criminal proceedings;
(b) Delinquency proceedings; and
(c) Serious youthful offender proceedings.
{¶ 15} A proceeding involving the termination of parental rights is not one of the types of cases for which delayed appeals are permitted under the appellate rule.
Due Process Rights
{¶ 16} Although neither
{¶ 17} A parents relationship with his or her child is among the associational rights sheltered by the
{¶ 18} Whether procedural due process has been satisfied generally requires consideration of three distinct factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
{¶ 19} With regard to the first factor, appellant has a significant private interest. The United States Supreme Court has stated that parents interest in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct 2054, 147 L.Ed.2d 49 (2000). We also have long held that parents who are suitable have a paramount right to the custody of their children. In re Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing Clark v. Bayer, 32 Ohio St. 299, 310 (1877); In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990). Permanent termination of parental rights has been described as the family law equivalent of the death penalty in a criminal case. In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54. Therefore, parents must be afforded every procedural and substantive protection the law allows. Id. In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997).
{¶ 20} But it is not only appellants private interest that we must consider. As we have previously noted, the natural rights of a parent are not absolute, but are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed. In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.1974). Ultimately, parental interests are subordinate to the childs interest when determining the appropriate resolution of a petition to terminate parental rights. Id. B.C.s private interest, at least initially, mirrors his mothers,
{¶ 21} The second Mathews factor evaluates the risk of erroneous deprivation of appellants interest under the current procedures and the probable value, if any, of additional or substitute procedural safeguards. Appellant appeared before the trial court and voluntarily surrendered all of her parental rights. The trial court held a hearing and made the statutory findings necessary to grant FCSCC permanent custody.2 Throughout this proceeding, appellant was represented by counsel and had a statutory right to appeal, which she did not exercise.
{¶ 22} Appellant now claims, however, that she received ineffective assistance of counsel because her attorney did not explain that she would retain some residual parental rights if the Frankos had been granted legal custody. But while the Frankos motion was pending, appellant opposed the motion and agreed that FCSCC should be granted permanent custody. Even if appellant had supported the Frankos motion to intervene, however, FCSCC vigorously opposed it. Nothing in the record indicates that the trial court erred in denying intervention. The trial court found that, although the Frankos are loving and well-
{¶ 23} The final Mathews factor is the governments interest, including the function involved and the fiscal or administrative burdens of providing additional or substitute procedural requirements, i.e., the delayed appeal. The governments interest is twofold. First, the state has an interest in minimizing fiscal and administrative costs. However, this interest does not override appellants significant private interest in the right to a relationship with her child. Second, the state has an interest in the function involved in these cases, i.e., the states role as parens patriae in promoting the welfare of the child. Santosky, 455 U.S. at 766.
{¶ 24} To allow delayed appeals for a parent whose parental rights have been terminated would inject further uncertainty into the process of placing the child in a permanent home and postpone resolution of custody, contrary to the childs best interest. Appellant suggested at oral argument that we judicially limit the ability to file for a delayed appeal to one year after the judgment terminating parental rights. But even a one-year extension is inconsistent with Ohios adoption laws. The expedited appeal process was designed to promote permanency and to alleviate the pervasive limbo of the foster-care system. See In re A.B., 110 Ohio St.3d 230, 2006-Ohio-4359, 852 N.E.2d 1187, ¶ 22, 33, 35-36. We are not persuaded that due process requires the additional delay that appellant espouses.
{¶ 25} Although appellant has a significant private interest, the second and third Mathews factors weigh against providing a delayed appeal to appellant in this case. Procedural safeguards already exist in parental-termination cases.
{¶ 26}
{¶ 27} In summation, statutory protections already ensure that a parent faced with termination of parental rights has the opportunity to participate in the proceedings fully, with notice, representation, and the remedy of an appeal. We therefore hold that Ohios current procedures comport with due process and that a delayed appeal is not constitutionally required to protect the parents interest.
Conclusion
{¶ 28} We answer the certified-conflict question in the negative and affirm the judgment of the Second District Court of Appeals.
Judgment affirmed.
OCONNOR, C.J., and PFEIFER, ODONNELL, KENNEDY, and FRENCH, JJ., concur.
ONEILL, J., dissents.
ONEILL, J., dissenting.
{¶ 29} This court has consistently held that the termination of parental rights is the family-law equivalent of the death penalty. See, e.g., In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 10; In re Hayes, 79 Ohio St.3d at 48. For whatever reason, there is always the possibility of a parent waking up after it is too late and finding no remedy, with the result often being a child languishing in the purgatory of foster care. Delayed appeals in criminal matters pursuant to
{¶ 31} The Supreme Court of Ohio can promulgate a rule authorizing the appellate court to grant a hearing on a delayed appeal where necessary. Surely society, and the judiciary, would be well served by a mechanism by which a competent court could revisit the case. Isnt this parent entitled to the same due process as a petty thief?
{¶ 32} I dissent.
D. Andrew Wilson, Clark County Prosecuting Attorney, and Andrew P. Pickering, Assistant Prosecuting Attorney, for appellee.
Linda Joanne Cushman, for appellant.
Robert J. McClaren, urging affirmance for amicus curiae, Public Children Services Association of Ohio.