IN RE: THE M CHILDREN
APPEAL NO. C-180564
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 13, 2019
[Cite as In re M Children, 2019-Ohio-484.]
MYERS, JUDGE.
TRIAL NO. F12-0001X; OPINION; Appeal From: Hamilton County Juvenile Court; Judgment Appealed From Is: Reversed and Cause Remanded
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Lee Slocum, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Robert Adam Hardin, Assistant Public Defender, Guardian ad Litem for N.M. and A.M.
{1} Mother has appealed from the trial court‘s entry granting permanent custody of her children N.M. and A.M. to the Hamilton County Department of Job and Family Services (“HCJFS”).
{2} In three assignments of error, mother argues that the trial court erred by failing tо conduct a sufficient inquiry into her waiver of counsel; that the trial court erred by allowing counsel to withdraw absent compliance with
{3} Because, under the unique facts of this case, the trial court failed to conduct a sufficient inquiry to determine whether mother had the necessary competence to waive her right to counsel, and failed to determine whether mother had in fact knowingly, voluntarily, and intelligently elected to waive that right, we reverse its judgment.
Factual Background
{4} In October 2015, HCJFS filed a complaint seeking temporary custody of N.M. and A.M. Scott Hoberg was appointed by the court to serve as mother‘s counsel, which he did until February 17, 2016, when James Whitfield entered an appearance as counsel for mother. N.M. and A.M. were adjudicated dependent, and in January 2017, a juvenile court magistrate granted temporary custody of the children to HCJFS.
{6} In August 2017, HCJFS filed a motion to modify temporary custody to permanent custody. Erika Dority was appоinted to serve as mother‘s counsel. A pretrial hearing took place on October 10, 2017. In an order summarizing that hearing, the magistrate continued the matter until November 21, 2017, and stated that:
[Mother] informed Ms. Dority she had retained counsel but did not provide a name. Ms. Dority requested the matter be set for а pre-trial for appearance of counsel. This matter, instead, is set for trial. If [mother] does not participate in preparing for trial, the court will look with favor upon Ms. Dority‘s future request to be withdrawn. If counsel is retained, retained counsel must be prepared to go forward on the trial date.
{7} When the parties appeared before the court on November 21, 2017, for trial, Dority requested another continuance after informing the court that mother was vacillating between proceeding with retained counsel and appointed counsel, and that mother had only recently informed Dority of potential witnesses. The magistrate granted the requested continuance over the objections of HCJFS and the children‘s guardian ad litem.
{9} The parties next appeared before the court on April 26, 2018. Outside mother‘s presence, Dority told the magistrate that mother had “fired” her on April 9, and that she had not communicated with mother since that date and was not prepared for trial. Cambron stated that mother had paid a private attorney—Patrick Mulligan—to represent her, and that Mulligan had instructed mother to request a continuance. HCJFS and the children‘s guardian ad litem objected to the case being continued.
{11} The magistratе granted permanent custody of N.M. and A.M. to HCJFS. The trial court overruled mother‘s objections to the magistrate‘s decision and adopted the decision as its own.
Waiver of Counsel
{12} In her first assignment of error, mother argues that the trial court erred by failing to conduct a sufficient inquiry regarding her waiver of counsel.
{13} Parental termination cases have been likened to the family-law equivalent of the death penalty in a criminal case. In re R.K., 152 Ohio St.3d 316, 2018-Ohio-23, 95 N.E.3d 394, ¶ 1. Consequently, “it is critical that the rights of a parent who faces the permanent termination of parental rights are appropriately protected.” Id. To ensure рrotection of these rights, parents have a statutory right to counsel in parental-termination cases pursuant to
{15} A parent can waive the right to counsel in a parental-termination action. In re R.K. at ¶ 5; In re W.W.E. at ¶ 36. In determining whether a parent has waived the right to counsel, courts have considered whether the waiver wаs knowingly, intelligently, and voluntarily made. In re W.W.E. at ¶ 36. Several appellate districts have held that a parent‘s waiver of counsel in a parental-termination proceeding may be inferred. These courts have inferred a waiver of the right to counsel where “the total circumstances of the individual case, including the background, experience and conduct of the parent” indicate that the parent has waived the right to counsel. In re Rachal G., 6th Dist. Lucas No. L-02-1306, 2003-Ohio-1041, ¶ 14; In re W.W.E. at ¶ 39; In re A.S., 8th Dist. Cuyahoga Nos. 94098 and 94104, 2010-Ohio-1441, ¶ 27. Inferred waivers have been found in circumstances where a parent has repeatedly failed to communicate with cоunsel or attend scheduled hearings. See In re A.S. at ¶ 30.
{16} This court has not previously addressed whether a parent‘s waiver of counsel in a parental-termination proceeding can be inferred. And we are not required to make such a determination in this case because, based on the unique
{17} As to an express waiver, prior to beginning the permanent-custody trial, the magistrate failed to engage mother in any kind of colloquy to determine whether she wanted to waive her right to counsel. Rather, after being told by mother that she had fired Dority and retained other counsel who was unable to attend the hearing, the magistrate allowed Dority to withdraw. He then denied a continuance for mother to secure the presence of her reportedly newly retained counsel, and conducted the permanent-custody trial, with mother proceeding pro se, without making any finding regarding mother‘s waiver of counsel and without determining whether mother knowingly, voluntarily, and intelligently waived her right. In fact, mother‘s indication that she had retained counsel indicates she had not expressly waived her right to counsel.
{18} As to an inferred waiver, in his subsequent decision granting permanent custody of the children to HCJFS, the magistrate summarized mother‘s history with counsel and found that mother‘s waiver of counsel could be inferred based on the circumstances and histоry of the case. He held that:
[Mother] has a fundamental liberty right at issue and therefore the court must make what efforts it can to protect her right to counsel. If, as alleged in the dependency complaint, [mother] was making choices that put her own safety at risk, the court must make some allowances for poor choices.
Ohio Revised Code 2151.414(A)(2) directs the court to proceed on a hearing of this nature within one hundred and twenty days of the filing of the action. To grant the requested continuance
{19} While under different circumstances a waiver might be inferred, under these facts, no waiver could be inferred. We are troubled by the magistrate‘s failure to address mother‘s inferred waiver of counsel and her competency to proceed on her own behalf рrior to beginning the permanent-custody trial, particularly because the court found that mother appeared to be incompetent and appointed a guardian ad litem. In addition, Dority represented that mother was unable, as opposed to unwilling, to assist in preparing a defense. This served not only as a basis for her withdrawal as counsel, but also for the appointment of a guardian ad litem for mother.
{20}
{21} The record also indicates that the magistrate did not accurately disclose to mother the specific role of the guardian ad litem, which is to protect mother‘s best interest, and not necessarily to advocate mother‘s wishes. See In re Baby Girl Baxter, 17 Ohio St.3d 229, 232, 479 N.E.2d 257 (1985)
{22} Further undermining the magistrate‘s determination that a waiver of counsel could be inferred was mother‘s declaration that she had already retained a new attorney. Such action by mother diminishes a finding that mother had knowingly, voluntarily and intelligently waived the right to counsel based on her conduct. And we note that at least one of the reasons the magistrate appointed a guardian ad litem was because mother failed to cooperate with her attorney. If such conduct indicates she is incompetent, it cannot then serve as a basis to find that mother knowingly waived counsel.
{23} We understand and share the magistrate‘s concerns regarding mother‘s history with changing counsel and the amount of time the children had been in the custody of HCJFS. But under the unique facts of this case, where the trial
{24} Mother‘s first assignment of error is sustained. The second and third assignments of error are rendered moot by our resolution of the first assignment of error, and we decline to address them.
Conclusion
{25} Because the magistrate failed to engage in a sufficient colloquy to determine if mother was competent to waive the right to counsel and whether mother had knowingly, intelligently, and voluntarily waived that right, we reverse the trial court‘s judgment granting permanent custody of N.M. and A.M. to HCJFS. This cause is remanded for further proceedings consistent with the law and this opinion.
Judgment reversed and cause remanded.
MOCK, P.J., and HENDON, J., concur.
SYLVIA S. HENDON, retired, from the First Appellate District, sitting by assignment.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
MYERS
JUDGE