2006 Ohio 4537 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 2} Appellant is the biological mother of Gaje' Young ("the minor child"), born November 28, 2005.1 The minor child tested positive for cocaine at birth. Appellant admitted to using cocaine one week prior to the birth of the minor child.
{¶ 3} On November 29, 2005, appellee, Ashtabula County Children Services Board, obtained ex parte custody of the minor child, alleging he was abused.2 Appellee filed a complaint for temporary custody on November 30, 2005. That same day, the juvenile court appointed the Ashtabula County Public Defender to represent appellant. The following day, December 1, 2005, at the emergency shelter care hearing, the juvenile court granted appellee temporary custody of the minor child and appointed a guardian ad litem for the child.
{¶ 4} On December 7, 2005, pursuant to R.C.
{¶ 5} On December 12, 2005, the court held a hearing, at which appellant appeared with her attorney. The court found that appellant signed a permanent surrender of the minor child, and further found the minor child to be abused.3 On December 14, 2005, the juvenile court judge approved appellant's permanent surrender, finding it to be in the minor child's best interests.
{¶ 6} On March 23, 2006, appellant filed a motion to revoke her voluntary surrender of parental rights. The juvenile court held a hearing on the matter on April 18, 2005.
{¶ 7} In his opening statement, appellant's counsel made it clear that appellant was not alleging that, "any fraud or neglect or undo influence over her regarding her signing of these papers" had occurred. Further, he stated that appellant, "basically, has indicated to me that she has changed her mind" regarding the surrender.
{¶ 8} At the hearing, the juvenile court questioned appellant under oath. The judge asked appellant, "what has transpired that has lead you to this motion[?]" Appellant responded, "I think I made a huge mistake. I said something I can't live. The decision I made. I'd rather see him come home to me than to be adopted out. There was some mistakes — I don't plan to parent any more kids. I had my tubes tied. I am his mother. He has a brother. I'm trying to get myself together. I just would like to see my boys together."
{¶ 9} On April 20, 2006, the juvenile court denied appellant's motion to revoke her permanent surrender. It is from this judgment that appellant filed her timely notice of appeal, raising the following sole assignment of error:
{¶ 10} "The juvenile court erred in not permitting appellant to withdraw her surrender of parental rights."
{¶ 11} In her assignment of error, appellant essentially argues that her permanent surrender should have been revoked because she had a right to have her appointed counsel present when she signed it. She contends that because, "[t]he termination of parental rights is `the family law equivalent of the death penalty[,]'" citing In re Sheffey, 11th Dist. No. 2005-A-0063,
{¶ 12} R.C.
{¶ 13} "A private child placing agency or public children services agency that seeks permanent custody of a child pursuant to division (B)(1) of this section shall file a request with the juvenile court of the county in which the child has a residence or legal settlement for approval of the agency's permanent surrender agreement with the parents, guardian, or other persons having custody of the child. Not later than fourteen business days after the request is filed, the juvenile court shall determine whether the permanent surrender agreement is in the best interest of the child. The court may approve the permanent surrender agreement if it determines that the agreement is in the best interest of the child and, in the case of an agreement between a parent and an agency, the requirements of section
{¶ 14} In Kozak v. Lutheran Children's Aid Soc. (1955),
{¶ 15} "[u]nder Section
{¶ 16} The Supreme Court reaffirmed its holding in Kozak inIn re Miller (1980),
{¶ 17} Under R.C.
{¶ 18} In the case sub judice, appellant does not allege any fraud, misrepresentation, or undue influence in her motion to revoke her permanent surrender. She stated that she simply made a mistake. Unfortunately, appellant's change of heart is not one of the reasons in which a parent may withdraw her permanent surrender.
{¶ 19} Further, appellant's contention that her permanent surrender is invalid because she signed it when her attorney was not present is without merit.
{¶ 20} Juv.R. 4(A) provides that: "[e]very party shall have the right to be represented by counsel and every child, parent, custodian, or other person in loco parentis the right to appointed counsel if indigent. These rights shall arise when a person becomes a party to a juvenile court proceeding. When the complaint alleges that a child is an abused child, the court must appoint an attorney to represent the interests of the child. This rule shall not be construed to provide for a right to appointed counsel in cases in which that right is not otherwise provided for by constitution or statute."
{¶ 21} R.C.
{¶ 22} These rules ensure that indigent persons are represented by counsel during juvenile court proceedings, which are adversarial proceedings. Here, on November 30, 2005, prior to the shelter care hearing, the juvenile court appointed the Ashtabula County Public Defender to represent appellant in the juvenile court proceeding. Seven days later, appellant voluntarily executed a permanent surrender of the minor child to appellee pursuant to R.C.
{¶ 23} "R.C.
{¶ 24} Furthermore, parents have the additional safeguard of having such surrender to a public agency approved by the juvenile court. In re Black (Nov. 20, 1996), 3d Dist. No. 4-96-17, 1996 Ohio App. LEXIS 5536, at 6. "An agreement by a parent with the welfare department for permanent surrender of a child prior to consent of the juvenile court is not only revocable by the parent prior to consent of the juvenile court, but such revocation also operates to dissolve the offer to surrender." In re Williams
(1982),
{¶ 25} The foregoing authority, statutory framework, and Rules of Juvenile Procedure appear to control the outcome here, i.e., the attendance of a parent's counsel is not mandated during discussions leading to a temporary or permanent surrender of custody. Although it would seem that the fibers of common sense and due process dictate that the better procedure would be to undertake efforts to alert a parent's attorney that such discussions are about to occur, we concede that this is not the case.
{¶ 26} There is nothing in the record to suggest that appellee did not properly comply with R.C.
{¶ 27} Appellant has not alleged that because her attorney was not present at the time she signed the permanent surrender, that appellee committed fraud, misrepresented anything to her, or unduly influenced her. She changed her mind three months after the juvenile court approved of the permanent surrender. Unfortunately, under R.C.
{¶ 28} Accordingly, appellant's sole assignment of error lacks merit. The judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, is affirmed.
Rice, J., concurs, O'Neill, J., dissents with Dissenting Opinion.
Dissenting Opinion
{¶ 29} I respectfully dissent, because appellant's right to counsel has been rendered meaningless by the majority opinion.
{¶ 30} If appellant's right to counsel means anything, it means that she has a right to confer with her counsel at every significant stage of the proceeding. After all, R.C.
{¶ 31} In this case, the most significant act performed by appellant was when she signed the voluntary surrender of rights form at the social worker's office. She did this without her counsel being present. She now faces the consequences of signing that form without her counsel present, and the judicial system is willing to ratify that uncounselled act. I believe this is fundamentally wrong and that she should be given another chance to review that form, this time with her counsel present. As this court recently stated:
{¶ 32} "[W]hen the state initiates a permanent custody proceeding, parents must be provided with fundamentally fair procedures in accordance with the due process provisions under the
{¶ 33} The fact that appellant appeared in court five days later and acknowledged that she had signed the voluntary surrender of rights form is of no consequence, in my opinion. She had a right to counsel at the critical time she was making a decision whether to give up her children, and the fact that she acknowledged signing the form five days later does not correct that wrong that has occurred. She had a right, at the time of making this important decision, to make a knowing and informed choice and have the consequences of her act explained to her.6 If her counsel was not present at that time, then, by definition, her choice was not knowing and informed.
{¶ 34} All parties agree that there should be adequate safeguards to ensure that a mother who is signing away her rights to her children is making a knowing and informed decision to do so. Appellee has recognized as much, because it made appellant sign a form that says she has a right to confer with her counsel, but that, if she declines to do so, she is permanently surrendering all her rights to parent her children. Knowing that the right to counsel is important and knowing that appellant was represented by counsel, it is not too much to ask that the social worker contact appellant's attorney before she proceeds to have the mother sign the most important form she will ever sign in her lifetime. As a matter of conscience and fundamental fairness, I am disturbed that the judicial system can sanction this kind of procedure that renders appellant's right to counsel meaningless.7
{¶ 35} Just as the United States Supreme Court in Wong Sunv. United States8 excluded an illegally obtained statement as the "fruit of the poisonous tree,"9 so too, in this case, I would nullify the permanent surrender form signed by appellant, and would reverse and remand this matter to the juvenile court to allow appellant to consider the permanent surrender form, with her counsel present when she does so.