Lead Opinion
{¶ 1} Forty years after the Supreme Court’s watershed ruling in In re Gault (1967),
Relevant Background
{¶ 2} Appellant, C.S., was brought before the Juvenile Division of the Licking County Court of Common Pleas on August 9, 2005. At that time, he was almost 14 years old.
A. The Incidents
{¶ 3} C.S.’s appearance in court was for purposes of two cases. The first, No. A2005-0616, charged C.S. with two counts of grand theft, felonies of the fourth degree if committed by an adult. The second, No. A2004-0329, alleged that C.S. had violated conditions of his probation, which had been imposed in an earlier, unrelated assault case.
B. The Hearing
{¶ 5} At some point prior to an initial hearing held on August 9, 2005, C.S. and his mother received the common pleas court’s notice and order to appear. The document, entitled “Order to Appear and Explanation of Rights,” sets forth seven pages of information.
{¶ 6} Included on the first page of the document is a section captioned “Your Right to an Attorney.” That section clearly states that “[y]ou have the right to be represented by an attorney at all stages of this proceeding” and that an attorney will be appointed if “you cannot afford an attorney and you qualify under State guidelines.”
{¶ 7} The document further states, “You should contact the Clerk’s Office seven (7) days in advance of your scheduled hearing and the Clerk will advise you how to apply for a Court-appointed attorney.” Given that C.S. does not appear to have been taken into custody until August 7 or August 8 and that his hearing was held on August 9, he could not have complied with that notice provision.
{¶ 8} On the page that follows, after a section that sets forth “Your Rights in Court,” the papers contain a section entitled “Waiver of Attorney.” That section states, “The undersigned have read the instructions concerning our right to an attorney and the right to a Court-appointed attorney, if applicable. Knowing and understanding these rights, we hereby waive our right to be represented by an attorney or Court-appointed attorney. We further understand that we can be represented by an attorney in the future simply by advising the Court of our intention to do so.” Ms. S. and C.S. signed the lines designated for “parent” and “juvenile” in that section.
{¶ 9} At the hearing, the magistrate stated in open court that he had “two sets of rights papers” — an apparent reference to the notice to appear and its explanation of rights. The magistrate verified that C.S. had received the papers, read
{¶ 10} The magistrate also inquired of C.S. and his mother as follows:
{¶ 11} “THE COURT: Do you understand that you have the right to be represented by an attorney at today’s hearing?
{¶ 12} “C.S.: Yes, sir.
{¶ 13} “THE COURT: If you cannot afford an attorney and you qualify under state guidelines, I will appoint an attorney to represent you. Do you understand that?
{¶ 14} “C.S.: Yes, sir.
{¶ 15} “THE COURT: Do you wish to go forward with today’s hearing without an attorney?
{¶ 16} “C.S.: Yes, sir.
{¶ 17} “THE COURT: Ms. S., do you agree with C.S.’s decision today to go forward without an attorney?
{¶ 18} “MS. S.: Yes, sir.”
{¶ 19} The magistrate then explained the charges against appellant, including the degree of the offenses charged. After each offense was stated, the magistrate asked C.S. whether he understood the charge. Each time, C.S. answered that he did.
{¶ 20} After each affirmative response, the magistrate asked whether C.S. admitted or denied the charge. C.S. admitted every charge. The magistrate then continued:
{¶ 21} “THE COURT: If you admit these charges today, C.S., that’s basically the same as pleading guilty. Do you understand that?
{¶ 22} “C.S.: Yes, sir.
{¶ 23} “THE COURT: As a result then we would not have an adjudicatory hearing or trial in either of these eases. Do you understand that?
{¶ 24} “C.S.: Yes, sir.
{¶ 25} “THE COURT: Instead we would proceed directly to disposition, that is, for me to decide what punishment or conditions if any that should be imposed upon you. Do you understand that?
{¶ 26} “C.S.: Yes, sir.
{¶ 27} “THE COURT: By entering that plea you will be — well, first of all, that disposition in your case in A2005-0616 could include a commitment to the custody of the Ohio Department of Youth Services for a minimum period of six months or*271 twelve months and a maximum period not to exceed age twenty-one. Do you understand that?
{¶ 28} “C.S.: Yes, sir.
{¶ 29} “THE COURT: Do you understand what the Ohio Department of Youth Services is?
{¶ 30} “C.S.: Yes, sir.
{¶ 31} “THE COURT: What is it?
{¶ 32} “C.S.: Juvenile prison, sir.
{¶ 33} “THE COURT: That’s correct. By entering that plea of admit you will be waiving or giving up certain Constitutionally guaranteed rights that you would otherwise enjoy. Among the rights that you will be giving up is the right to remain silent. Do you understand that?
{¶ 34} “C.S.: Yes, sir.
{¶ 35} “THE COURT: You will also be giving up the right to call witnesses and to present evidence in your defense. Do you understand that?
{¶ 36} “C.S.: Yes, sir.
{¶ 37} “THE COURT: And you’ll be giving up the right to question and to cross-examine prosecution witnesses. Do you understand that?
{¶ 38} “C.S.: Yes, sir.
{¶ 39} “THE COURT: Ordinarily, C.S., the State of Ohio would be required to prove these cases against you beyond a reasonable doubt. If you enter a plea of admit, however, the State of Ohio will not have to prove anything at all. Do you understand that?
{¶ 40} “C.S.: Yes, sir.
{¶ 41} “THE COURT: Have there been any promises or threats of any sort to cause you to enter these pleas?
{¶ 42} “C.S.: No, sir.
{¶ 43} “THE COURT: Ms. S., do you agree with C.S.’s decision today to enter pleas of admission to these charges?
{¶ 44} “MS. S.: Yes, sir.
{¶ 45} “THE COURT: Then, C.S., I’ll accept the pleas of admission. Is there any statement about this situation that you wish to make?
{¶ 46} “C.S.: No, sir.
{¶ 47} “THE COURT: Have you talked with your mother since you got arrested?
{¶ 48} “C.S.: No, sir.
*272 {¶ 49} “THE COURT: Ms. S., did you have an opportunity to read the police report?
{¶ 50} “MS. S.: No, sir.
{¶ 51} “THE COURT: I think it’s safe to say, Ms. S. and C.S. * * * — it’s safe to assume that there will be more * * * felony charges coming. I — I don’t know when. It’ll — it’s going to be in the jurisdiction of Perry County. They’ll transfer those cases up here so we’ll deal with them, but in terms of the filing the complaints, it’ll be the Perry County Prosecutor that has to file those complaints. But we’ll cross that bridge when we come to it. I just wanted you to know that because of the burglaries, the firearm thefts, the discharging of the firearm, animal cruelty, underage consumption, drug — felony drug possession charges— what else? What am I missing? That’s probably it. Underage alcohol, possession of marijuana, possession of cocaine, burglary, animal cruelty, theft of a firearm. That pretty much covers it, doesn’t it?
{¶ 52} “C.S.: Yes sir. B and E, sir.
{¶ 53} “THE COURT: And the B and E. Well, burglary. It’ll be a burglary because it’s a home. Did you do — oh, well, the trailer, was it — someone living in that trailer too?
{¶ 54} “C.S.: It — it was a camper, sir.
{¶ 55} “THE COURT: Okay. So that’d probably be a B and E so you’d get a B and E and a burglary. So all together, once those all get filed, you’re probably looking at another three years on top of that once you add all those together. So that — that’ll be coming at some time, Ms. S. A regular crime spree. Steals two cars. Basically totals them both. Shoots a cow. Shoots a horse. Steals a gun. Breaks into a house. Smokes dope. Has sex with an adult woman. Alcohol. Cocaine. Hope it was worth it. Ms. S., is there anything that you wish to say?
{¶ 56} “MS. S.: No, sir.
{¶ 57} “THE COURT: Do you know what I think, C.S., is the biggest injustice in this whole situation? Do you know?
{¶ 58} “C.S.: No, sir.
{¶ 59} “THE COURT: Well, I’ll tell you what I think is the biggest injustice in the whole situation. The biggest injustice * * * is that I can only give you a year in prison. Based on what you’ve done over the past week, you ought to stay in prison until you’re twenty-one years of age in my opinion, but I can’t do that. To me, that’s wrong. That’s a disservice to every other taxpaying, law-abiding citizen of the state of Ohio that I can’t lock you up [until you turn] twenty-one based on what you’ve been doing for the past week. The biggest injustice in this case is that I can only give you a year in prison. * * * [T]he way this commitment works is I’m going to commit you to [DYS] today for a minimum of a*273 year. Okay. But at the end of that year, however, that doesn’t mean you automatically get out. The end of that year means simply that your case goes before the review authority to decide whether or not you should get out on parole. They don’t have to let you out. So based on the nature of the offense, based on the opinion of our probation director * * * and based on your conduct in [DYS], it’s entirely possible that you will do more than a year. But the only thing that I can guarantee that you’ll do is a year. * * * So you’re lboking at another two and a half years on top of that once those charges are filed by Perry County. C.S., based upon your pleas of admission and the facts contained in the report in A2004-0329, I’ll adjudicate you a probation violator as alleged in the motion. I’ll order that you be released unsuccessfully in that — in that and all other cases. I’ll order that you be released from probation unsuccessfully in all cases. Do you understand that?
{¶ 60} “C.S.: Yes, sir.
{¶ 61} “THE COURT: In A2005-0616, based upon your pleas of admission and the facts contained in the report, I’ll adjudicate you delinquent on both counts. * * * On both counts, I’ll order you committed to the custody of the Ohio Department of Youth Services for a minimum period of six months and a maximum period not to exceed your twenty-first birthday. I’ll order that those two counts run consecutive to each other for an initial minimum commitment of twelve months. And * * * the Department of Youth Services is to ensure that [C.S.’s older brother] and C.S. are not in the same facility. I know that was your plan. Your plan was that they be in — you were — you were anxious to be arrested on these felonies so that you could go to [DYS] and be with your brother again. You’re going to [DYS] but I’ll ensure you’re not in the same facility.”
{¶ 62} C.S. and his mother were informed of their right to object to the magistrate’s decision, see Juv.R. 40, and acknowledged receipt of the magistrate’s decision. They waived objections and consented to the magistrate’s decision.
{¶ 63} After the trial court accepted the magistrate’s decision, C.S. appealed on various grounds. One of those claims is pertinent here. C.S. argued that the trial court violated his rights to counsel and due process as those rights are conferred by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Sections 10 and 16, Article I of the Ohio Constitution, R.C. 2151.32, and Juv.R. 4 and 29.
{¶ 64} After the court of appeals rejected that claim of error, we accepted C.S.’s discretionary appeal, In re C.S.,
Analysis
{¶ 65} Our analysis here must be placed in the context of the juvenile courts, which occupy a unique place in our legal system.
{¶ 66} Juvenile courts are legislative creations, see In re Agler (1969),
{¶ 67} Not surprisingly then, the juvenile courts adopted proceedings that were less formal and more inquisitorial than adversarial, In re T.R.,
{¶ 68} Considered “a monument to the enlightened conviction that wayward boys may become good men,” In re Agler (1969),
{¶ 69} By midcentury, it was clear that the juvenile courts not only had the authority to impose significant penalties but that they frequently did so. Amid increasing disaffection with juvenile courts and some of their judges during the 1960s and 1970s, see, e.g., McKeiver v. Pennsylvania (1971),
{¶ 70} By that era, the Supreme Court recognized that a juvenile could “receive[] the worst of both worlds” in the juvenile court system by being provided “neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” Kent,
{¶ 71} Although the court had recognized a due process interest in juvenile court proceedings as early as 1948, see Haley v. Ohio (1948),
{¶ 72} Gault approvingly quoted the report of the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (1967) 86-86, which recommended that counsel be appointed to juveniles “ ‘as a matter of course’ ” and observed that “ ‘[t]he most informal and well-intentioned of judicial proceedings are technical; few adults without legal training can influence or even understand them.’ ”
{¶ 73} In the wake of Gault and its progeny, we also found that “numerous constitutional safeguards normally reserved for criminal prosecutions are equally
{¶ 74} As a result of those cases, juveniles secured more of the rights afforded to adults, and juvenile court proceedings became more formal. Hanning,
{¶ 75} Despite the inherent tension in the juvenile court system between the goals of juvenile rehabilitation and protection of society, the Supreme Court has suggested that the system should remain. “[0]ur decisions in recent years have recognized that there is a gap between the originally benign conception of the system and its realities. * * * That the system has fallen short of the high expectations of its sponsors [however] in no way detracts from the broad social benefits sought or from those benefits that can survive constitutional scrutiny.” Breed,
{¶ 76} For example, although we often characterize juvenile proceedings as civil rather than criminal, Cope v. Campbell (1964),
{¶ 77} Given the state’s valid interests in enforcing its criminal laws against juveniles and, in at least some cases, in requesting that the juvenile court impose significant penalties in their dispositions, we must also remain cognizant of the nature of the juvenile’s right to representation by counsel.
{¶ 78} In declaring that the juvenile facing commitment to an institution has a right to counsel “ ‘at every step in the proceedings against him,’ ” In re Gault,
{¶ 79} Indeed, it was the understanding of the right to due process that drove the court’s holdings in Kent, Gault, and Winship. Those cases make clear that the right to counsel in a juvenile case flows to the juvenile through the Due Process Clause of the Fourteenth Amendment, not the Sixth Amendment. Gault,
{¶ 80} Because the juvenile’s right to counsel is predicated on due process, it is malleable rather than rigid. As the Supreme Court has explained, “For all its consequence, ‘due process’ has never been, and perhaps can never be, precisely defined. * * * [D]ue process ‘is not a technical conception with a fixed content unrelated to time, place and circumstances.’ Cafeteria [& Restaurant ] Workers [Union] v. McElroy [1961],
{¶ 82} The fact that the right to counsel in a juvenile case arises from due process does not diminish its importance. A juvenile typically lacks sufficient maturity and good judgment to make good decisions consistently and sufficiently foresee the consequences of his actions. See, e.g., Roper v. Simmons (2005),
{¶ 83} Given the importance of counsel in juvenile proceedings, the General Assembly codified a juvenile’s constitutional right to appointed counsel in the wake of Gault. Indeed, through R.C. 2151.352, the legislature provided a statutory right to appointed counsel that goes beyond constitutional requirements. In re Williams,
{¶ 84} Former R.C. 2151.352 provided that a child “is entitled to representation by legal counsel at all stages of the proceedings * * * and if, as an indigent person, any such person is unable to employ counsel, to have counsel provided for the person.” The statute mandated that “[i]f a party appears without counsel, the court shall ascertain whether the party knows of the party’s right to counsel and of the party’s right to be provided with counsel if the party is an indigent person.” The statute further provides, “Counsel must be provided for a child not represented by the child’s parent, guardian, or custodian. If the interests of two or more such parties conflict, separate counsel shall be provided for each of them.” Am.Sub.S.B. No. 179, 148 Ohio Laws, Part IV, 9519, effective January 1, 2002. (The current version is substantively similar; the last three quoted sentences are exactly the same.)
{¶ 85} We have also incorporated constitutional safeguards in our rules of procedure. According to Juv.R. 4(A), “[e]very party shall have the right to be
{¶ 86} C.S. avers that the fifth sentence of R.C. 2151.352 (the fourth of former R.C. 21512.352) — -which states that “[cjounsel must be provided for a child not represented by the child’s parent, guardian, or custodian” — offends his constitutional right to counsel. The crux of C.S.’s claim is that the statute implicitly, and improperly, permits a child’s parent (or guardian or custodian) to substitute for an attorney in juvenile court proceedings. He argues that the juvenile’s right to counsel “as provided by the Sixth Amendment to the United States Constitution and Section Ten, Article One of the Ohio Constitution is fundamental” and cannot be satisfied by any “representation” by the child’s parent. He also contends that the statute cannot be construed as creating a nonwaiveable right to counsel and that the fifth sentence must therefore be severed from the statute.
{¶ 87} C.S.’s theory of the statute’s unconstitutionality entails a binary analysis. The first prong of his contention is that the statute requires that counsel must be appointed for the juvenile and that the right cannot be waived if the child is not represented by a parent, guardian, or custodian. The second prong of the attack asserts that the statute therefore conflicts with Juv.R. 3, which provides that the “rights of a child * * * may be waived.” He argues that this perceived conflict — between a right that cannot be waived per R.C. 2151.352 and a right that can be waived per Juv.R. 3 — has led to divergent results in the courts, some of which have found that a parent, custodian, or guardian, rather than an attorney, can represent the juvenile.
{¶ 88} In reading the statute, we must consider the definition of “represent,” giving effect to the usual, normal, and customary meaning of the word, R.C. 1.42, and being faithful to the language of and legislative intent behind the statute, State v. S.R. (1992),
{¶ 89} Taken alone, the ordinary use of the word “represent” does not necessarily shed light on its intended meaning in this context. At the time the statute was enacted, as now, the word “represent” had myriad meanings: “[t]o act for,” “[t]o stand in the place of,” Ballantine’s Law Dictionary (3d Ed.1969) 1095, or “to exhibit; to expose before the eyes,” or “to stand in his place; to supply his place; to act as his substitute,” Black’s Law Dictionary (4th Ed.1968)
{¶ 90} As C.S. acknowledges in his brief, “the General Assembly’s intent in enacting [the fifth sentence of the statute] was to protect the parties’ due process rights in juvenile court in accordance with the then-recently issued decision, In re Gault [1967],
{¶ 91} In enacting this statute, we presume, the General Assembly was mindful of the common law. Cf. Meyer v. Holley (2003),
{¶ 92} Moreover, at the time it enacted R.C. 2151.352, the Ohio legislature was well aware that this court has the exclusive authority to regulate, control, and define the practice of law, including prohibitions on lay representation, see In re Unauthorized Practice of Law in Cuyahoga Cty. (1963),
{¶ 94} But that conclusion does not mean that we do not recognize the important role that a parent plays in the juvenile court process. In Gault, the court quoted a portion of the President’s Crime Commission’s Report: “ ‘The presence of an independent legal representative of the child, or of his parent, is the keystone of the whole structure of guarantees that a minimum system of procedural justice requires.’ ” (Emphasis added.)
{¶ 95} We believe that the fifth sentence of the statute reflects the General Assembly’s understanding that Gault held that the juvenile may waive his rights, including his right to counsel, see Gault,
{¶ 96} There, the court of appeals found that the provision meant that “[i]f a child appears before the court who is not represented by the child’s parent, guardian, or custodian, then the trial court ‘must’ provide counsel. Only if the child has some adult to advise him may the child knowingly and voluntarily waive his right to counsel. That construction of the statute serves an apparent purpose of assuring that a child’s waiver of the right to counsel is knowing and voluntary, and it reconciles the quoted provisions, giving meaning to each.” Id. at ¶ 25. The Second District’s approach is consistent with the holdings of other states’ appellate courts in cases interpreting similar statutory language. In re D.S. (N.D.1978),
{¶ 97} We are also persuaded by the reasoning of the Supreme Court of Connecticut in its rejection of the notion of nonwaiver. As that court noted, “a per se rule of nonwaivability might actually frustrate a principal goal of juvenile law of encouraging children to accept responsibility for their transgressions and take an active role in their rehabilitation. * * * Without minimizing the significance of this inevitable tension [between the juvenile courts’ roles of protecting society and nurturing and rehabilitating juveniles], we are persuaded that allowing a child to make an informed and deliberate choice about legal representation, if properly supervised by the trial court, can advance both the goal of control and that of treatment. * * * To mandate the presence of counsel * * * might serve to reduce the child’s own sense of involvement and might enhance his perception of his own role as merely that of spectator. * * * [W]e believe that the waiver of counsel decision, in itself, can be a significant rehabilitative moment for the child.” (Emphasis sic.) In re Manuel R. (1988),
{¶ 98} We hold that the word “represent” in the fifth sentence of R.C. 2151.352 means to counsel or advise the juvenile in a delinquency proceeding. We further hold that in a delinquency proceeding, a juvenile may waive his constitutional right to counsel, subject to certain standards articulated below, if he is counseled and advised by his parent, custodian, or guardian. If the juvenile is not counseled by his parent, guardian, or custodian and has not consulted with an attorney, he may not waive his right to counsel.
{¶ 99} In a delinquency case, a judge, acting as parens patriae, has the inherent authority to appoint counsel for the juvenile to determine whether he should waive his rights. We decline, however, to require a judge to do so in each case.
{¶ 100} In light of the sixth sentence of R.C. 2151.352, we hold that a judge must appoint counsel for a juvenile if there is a conflict between the juvenile and
{¶ 101} Our holdings here comport with similar decisions in other state courts that have addressed this issue, with Juv.R. 3 (which expressly countenances waiver) and with the precepts of Gault, which were concerned with the fundamental fairness of juvenile proceeding for all parties concerned, including the juvenile, his parents, and the state.
{¶ 102} In rendering our decision, we reinforce the vital role a parent can play in a delinquency proceeding.
{¶ 103} “The law’s concept of the family rests on the presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” Parham v. J.R. (1979),
{¶ 104} Having determined that the right to counsel may be waived, we must determine the indicia of a valid waiver.
{¶ 105} In holding that the constitutional right to counsel may be waived by a juvenile, we apply the definition of waiver used in State v. Foster — an “intentional relinquishment or abandonment of a known right.”
{¶ 106} An effective waiver of the right to counsel by a juvenile must be voluntary, knowing, and intelligent. State v. Gibson (1976),
{¶ 107} In the discharge of that duty, the judge is to engage in a meaningful dialogue with the juvenile. Instead of relying solely on a prescribed formula or script for engaging a juvenile during the consideration of the waiver, see Iowa v. Tovar (2004),
{¶ 108} We agree with the Supreme Court of Nebraska’s recent holding that a totality-of-the-circumstances analysis is the proper test to be used in ascertaining whether there has been a valid waiver of counsel by a juvenile. In re Dalton S. (2007),
{¶ 109} In cases such as this one, in which a juvenile is charged with a serious offense, the waiver of the right to counsel must be made in open court, recorded, and in writing. Cf. State v. Brooke,
{¶ 110} Though it is not dispositive, a key factor in the totality of the circumstances is the degree to which the juvenile’s parent is capable of assisting and willing to assist the juvenile in the waiver analysis. See Huff v. K.P. (N.D.1981),
{¶ 112} As many Ohio courts of appeals recognize, “An admission in a juvenile proceeding, pursuant to Juv.R. 29, is analogous to a guilty plea made by an adult pursuant to Crim.R. 11 in that both require that a trial court personally address the defendant on the record with respect to the issues set forth in the rules.” In re Smith, Union App. No. 14-05-33,
{¶ 113} We hold that in a juvenile delinquency case, the preferred practice is strict compliance with Juv.R. 29(D). We further hold, however, that if the trial court substantially complies with Juv.R. 29(D) in accepting an admission by a juvenile, the plea will be deemed voluntary absent a showing of prejudice by the juvenile or a showing that the totality of the circumstances does not support a
{¶ 114} We believe that our holdings here reflect and reinforce the constitutional right to counsel that flows properly to the juvenile in a delinquency case, while being true to the General Assembly’s intent in enacting R.C. 2151.352.
{¶ 115} Taken together, R.C. 2151.352 and Juv.R. 29 serve as meaningful guideposts by which the juvenile courts’ judges must determine whether the due process rights from which the right to counsel arises have been satisfied in a given case. In so holding, we remain faithful to the historical goals and aspirational ideals that gave rise to Ohio’s juvenile courts while recognizing the modern realities in which those courts must function.
{¶ 116} We now turn to the facts of this case.
{¶ 117} Although the magistrate secured representations from C.S. and his mother that they had signed the “rights papers,” the record is not clear as to the knowingness of the waiver and the intelligent relinquishment of rights. At the time C.S. waived his rights, with his mother’s assent, there were clear portents of additional, significant charges that would have been felony offenses had they been committed by an adult. In fact, after C.S. had waived counsel, the magistrate specifically mentioned the possibility that additional felony charges could be forthcoming.
{¶ 118} There is ample evidence in the record to suggest that from the time C.S. first spoke to police until he waived his right to counsel in the courtroom, his focus was on being committed so that he could be close to his older brother, who had previously been committed to the custody of the Department of Youth Services. His rationale for the admission cannot be said to be intelligent, as evidenced by the judge’s conclusion that the two youths should not be housed together.
{¶ 119} An important aspect of our consideration in this case is our concern that there was not any meaningful advice rendered to C.S. in his decision to waive counsel. We acknowledge that an inference can be drawn that this family, through its past dealings with the juvenile courts, may have had an understanding of the process in which C.S. was engaged. But we are not satisfied that there was a sufficient showing that Ms. S. was in a position to render any meaningful advice to her son in this case.
{¶ 120} Ms. S. had not spoken -with her son since his arrest, and she had not had an opportunity to read the police report detailing his prodigious criminal activity before agreeing that he should waive his right to legal counsel. The magistrate did not ask about those facts until after he had secured the waiver of
{¶ 121} Ms. S.’s only inquiry during the hearing related not to the evidence against her son, to the controlling law, or to her son’s rights. Rather, like her son, she was focused on whether C.S. could be placed in the same facility in which his brother was housed. Her focus on the place of confinement was not based on the services available to her son in a particular facility but, rather, on a pragmatic concern: her means of transportation were limited, and it would be easier for her to visit her children if they were in the same institution.
{¶ 122} In the circumstances before us, we are not persuaded that the waiver of counsel was valid. We thus vacate the court of appeals’ judgment to the extent that it held that there was a sufficient showing of a valid waiver of counsel, and we remand the cause to the juvenile court. In so doing, we do not intimate any opinion on the disposition rendered by the magistrate.
{¶ 123} We recognize that this case presents one of the difficult ones for a juvenile court. Despite his youth, C.S. has a significant history of alcohol and drug abuse, violence, and other behaviors that are destructive both to himself and to the community. He is on a collision course with tragedy. The magistrate’s clear frustration with C.S., and with the limits of the juvenile court system, is understandable, as is a significant period of incarceration. See McKeiver,
Judgment reversed and cause remanded.
Notes
. The United States Supreme Court recently held that parents may act pro se when prosecuting claims arising from the Individuals with Disabilities Education Act (“IDEA”), Section 1400 et seq., Title 20, U.S.Code. Winkelman v. Parma City School Dist. (2007), — U.S. —,
. To the extent that our courts of appeals have found that parents can adequately represent their children in a legal sense in delinquency proceedings, see, e.g., In re Estes, Washington App. No. 04CA11,
. In essence, the fifth sentence of R.C. 2151.352 is an “independent advice/interested adult” standard that we have declined to adopt, absent legislative action, in other circumstances. See, e.g., In re Watson (1989),
. In some cases, a parent’s failure to advocate for her child may arise from misguided Solomonic wisdom, see, e.g., In re Johnston (2001),
Dissenting Opinion
dissenting.
{¶ 124} I concur with the analysis offered by Justice Lanzinger in her well-reasoned dissent. The majority opinion here correctly sets forth that the case
{¶ 125} The majority opinion, I think, invades the province of a parent’s role in raising his or her child. In rearing a child, parents are called upon to make all important decisions regarding their child’s growth and development. Those decisions have significant repercussions in every aspect of that child’s life— enrollment in school, provision of medical and dental care, participation in athletic or other activities, religious affiliation, and a host of other relevant and meaningful issues involving medical, moral, social, legal, and other decision-making.
{¶ 126} Nothing in the record before us suggests incompetence or failure of this mother to act in the best interests of her child in this instance. The majority’s overemphasis on the mother’s desire to have her two children housed in a single penal facility leads to an improper outcome here. For these reasons, I concur with the opinion of Justice Lanzinger.
Dissenting Opinion
dissenting.
{¶ 127} I would affirm the judgment of the Licking County Court of Appeals with respect to its holding that there was a sufficient showing of the valid waiver of counsel in this case.
{¶ 128} The record reveals that C.S. acknowledged reading and signing a form that included the statement “You have the right to be represented by an attorney at all stages of this proceeding” and informed him that an attorney will be appointed if “you cannot afford an attorney and you qualify under State guidelines.” The waiver of attorney that C.S. and his mother signed stated, “The undersigned have read the instructions concerning our right to an attorney and the right to a Court-appointed attorney, if applicable. Knowing and understanding these rights, we hereby waive our right to be represented by an attorney or Court-appointed attorney. We further understand that we can be represented by an attorney in the future simply by advising the Court of our intention to do so.” During a colloquy with the magistrate regarding his rights, C.S. answered “yes” to the question “Do you understand that?” at least nine times. The magistrate in juvenile court determined that a valid waiver of counsel was made in accepting the plea.
{¶ 129} Despite this record of the proceedings, the majority holds that the waiver of counsel was invalid because C.S.’s mother was not “in a position to
{¶ 130} The words that the majority focuses on are “Counsel must be provided for a child not represented by the child’s parent, guardian, or custodian.” R.C. 2151.352 is a statute that relates to all juvenile proceedings, not simply delinquency adjudications. The sentence merely explains that counsel must be available (i.e., be provided) at a juvenile proceeding if a child’s parent, guardian, or custodian is not. There is no question that a juvenile is entitled to representation by legal counsel at all stages of juvenile proceedings. R.C. 2151.352; Juv.R. 4(A). As the majority rightly observes, a juvenile’s right to counsel is not the same as the right to be “represented” by a parent, guardian, or custodian. Yet by creating a new requirement that a parent offer “meaningful advice” before a child may waive the right to counsel, the majority seems to consider parental and attorney advice to be equal, at least on the issue of waiver.
{¶ 131} The juvenile rules allow waiver of counsel in juvenile proceedings with consent of the court. Juv.R. 3. At the beginning of an adjudicatory hearing, the juvenile court shall “[ijnform unrepresented parties of their right to counsel and determine if those parties are waiving their right to counsel”; “[ajppoint counsel for any unrepresented party under Juv.R. 4(A) who does not waive the right to counsel”; and “[ijnform any unrepresented party who waives the right to counsel of the right: to obtain counsel at any stage of the proceedings, to remain silent, to offer evidence, to cross-examine witnesses, and, upon request, to have a record of all proceedings made, at public expense if indigent.” Juv.R. 29(B)(3) through (5).
{¶ 132} Before permitting a waiver of counsel, the court has a duty to make an inquiry to determine that the waiver is of “a fully known right” and is voluntarily, knowingly, and intelligently made. In re Gault (1967),
{¶ 133} I agree that the totality of circumstances should be considered to ascertain the validity of the waiver but disagree with the majority’s emphasis on C.S.’s mother’s intent. “Meaningful advice” from a parent was not required for a valid waiver until now, and any assistance that C.S.’s mother offered him would have been considered part of the totality of the circumstances the court would
{¶ 134} C.S.’s mother’s motivation in having her two children placed in the same facility should not invalidate C.S.’s waiver when, as the record shows, he waived his right to counsel and admitted to the charges against him after a colloquy with the judge that occurred in open court.
{¶ 135} I agree with the court of appeals that “[t]he record reflects that appellant’s admission to the charges was given knowingly, intelligently, and voluntarily and that the trial court obtained a valid waiver of Appellant’s right to counsel.” 2006-0hio-1920, ¶ 59. I therefore respectfully dissent.