In re Adoption of A.K.H.

2025 Ohio 1922

• Court: Ohio Court of Appeals
• Decided: May 27, 2025
• Docket: 25CA005; 25CA006
• Status: Published

Opinion

[Cite as In re Adoption of A.K.H., 2025-Ohio-1922.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

In the Matter of the Adoption of: : JUDGES: A.K.H. (D.O.B.: 07/14/2018) : Hon. Andrew J. King, P.J. S.R.H. (D.O.B.: 12/08/2019) : Hon. Robert G. Montgomery, J. : Hon. David M. Gormley, J. : : : Case Nos. : 25CA005 : 25CA006 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas of Coshocton County, Probate Division, Case Nos. 20245009, 20245010

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: May 27, 2025

APPEARANCES:

For Adopters – Appellees For Mother – Appellant

Stacy J. Jewell Richard D. Hixson 9 South Third Street 3808 James Court, Suite 2 Newark, Ohio 43055 Zanesville, Ohio 43701 Gormley, J.

{¶1} Appellant mother challenges the judgment of the Coshocton County

Probate Court in an adoption case involving two of her children. She contends that the

trial court abused its discretion by denying her motion to continue an adoption hearing

and that the judge violated her constitutional right to counsel by refusing to appoint an

attorney to represent her at that hearing. Finding that mother did not knowingly,

voluntarily, and intelligently waive her right to counsel, we reverse and remand for

proceedings consistent with this opinion.

The Basic Facts

{¶2} Mother is the biological parent of A.K.H. and S.R.H (the “Children”). The

Children were placed in the physical custody of B.H. and R.H. (the “Adopters”) in April

2021, and the Adopters were granted legal custody of the Children in September 2021.

The children have lived with the Adopters since the physical-custody placement in April

2021. Mother last visited the Children in June 2021, when A.K.H. was two years old and

S.R.H. was one year old.

{¶3} In November 2024, the Adopters filed petitions to adopt the Children, and

the trial court scheduled an adoption hearing for January 2025. The day before that

hearing was scheduled to take place, mother — alleging that she had not received proper

notice of the hearing — requested that the hearing be continued and asked for the

appointment of an attorney to represent her.

{¶4} The trial judge denied the continuance request and, even though mother

was not present, proceeded with the adoption hearing. The judge did not address mother’s request for counsel. The judge, concluding that mother’s consent was not

required, granted the Adopter’s petition to adopt the Children. Mother now appeals.

The Trial Court Violated Mother’s Right to Counsel

{¶5} In her first assignment of error, mother argues that her constitutional right

to counsel was violated when the trial judge failed to appoint an attorney to represent her.

We agree.

{¶6} The Supreme Court of Ohio has recognized that “[i]ndigent parents are

entitled to counsel in adoption proceedings in probate court.” Matter of Adoption of Y.E.F.,

2020-Ohio-6785, syllabus. The Court first noted that, under R.C. 2151.352, indigent

parents who face a loss of parental rights are entitled to counsel in juvenile-court

permanent-custody proceedings. Id. at ¶ 1. Before Y.E.F., that right did not, however,

extend to indigent parents who faced a loss of parental rights in probate-court adoption

proceedings. Id. The Court concluded in Y.E.F. that this disparate treatment violated the

Equal Protection Clauses of the U.S. and the Ohio Constitutions, and the Court extended

the right to counsel to indigent parents in adoption cases. Id. at ¶ 33.

{¶7} In the context of permanent-custody proceedings, a parent who is entitled

to appointed counsel may waive his or her right to an attorney. In re W.W.E., 2016-Ohio-

4552, ¶ 36 (10th Dist.). “[W]hen reviewing a waiver of the right to counsel in the context

of a permanent termination of parental rights, courts in Ohio have examined whether the

waiver was knowingly, intelligently, and voluntarily made.” Id. See also In re Hayes, 2002

WL 819216, *2 (5th Dist.) (“The trial court must take all reasonable steps to accord

participants with legal representation, and to assure itself that if the parties refuse

representation, they do so in a knowing, voluntary, and intelligent manner.”). {¶8} A parent can expressly or implicitly waive the right to counsel. See In re C

Children, 2023-Ohio-588, ¶ 17 (1st Dist.). Waiver of counsel can be inferred “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 M

Children, 2019-Ohio-484, ¶ 15 (1st Dist.), quoting In re Rachal G., 2003-Ohio-1041, ¶ 14

(6th Dist.). A waiver of counsel may, for example, be found “where a parent fails to

maintain contact with counsel, fails to appear for scheduled hearings despite receiving

notice of such, and fails to cooperate with counsel and the court.” Rachal G. at ¶ 14. A

parent’s waiver of counsel cannot, however, “be inferred from the unexplained failure of

the parent to appear at a hearing.” In re R.K., 2018-Ohio-23, syllabus. Whether an

individual waived his or her right to counsel is reviewed without deference to the trial

court’s findings. In re C Children at ¶ 18.

{¶9} The totality of the circumstances surrounding the adoption hearing do not

indicate to us that mother waived her right to counsel. She unambiguously requested the

assistance of an attorney before the hearing was scheduled to begin, and she made her

request at a time when she had not previously had access to legal assistance. We also

see no evidence in the record — because mother’s request for counsel was not

addressed — that the trial court gave “any consideration to whether [mother] had waived

her right to counsel.” In re R.K. at ¶ 7.

{¶10} To be sure, a notice was sent to mother informing her that she had the right

to counsel. That notice stated that she was required, if she wanted to have an attorney

appointed on her behalf, to contact the court upon her receipt of the notice. Though the

parties dispute when mother received that notice, her failure to request an attorney at the time that she allegedly received the notice — approximately three weeks before the

hearing — would not, without more, constitute a knowing, intelligent, or voluntary waiver

of her right to counsel. See Matter of D.T.B., 2021-Ohio-1023, ¶ 5, 37 (4th Dist.) (trial

judge committed reversable error in denying a parent’s request for counsel made only

moments before adoption hearing was scheduled to begin).

{¶11} We conclude, based on the record before us, that mother did not waive her

right to be represented by an attorney in the adoption proceedings. Mother’s first

assignment of error is sustained. Because we sustain her first assignment of error, we

see no need to address her argument about the denial of her request for a continuance

of the adoption hearing. {¶12} The judgment of the trial court is reversed, and this case is remanded for

further proceedings consistent with this opinion.

By: Gormley, J.

King, P.J. and

Montgomery, J. concur.