[Cite as In re C Children, 2023-Ohio-588.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: C CHILDREN : APPEAL NO. C-220532 TRIAL NO. F13-1783Z :
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: March 1, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Michelle Browning, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Roberta J. Barbanel, for Appellee Mother,
Victoria Link, for Guardian Ad Litem for the minor children,
Jeffrey J. Cutcher, for Appellant Legal Custodian. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} This case involves the right to counsel for a participant in a parental
termination of custody proceeding. When appellant maternal grandmother (“Legal
Custodian”) arrived without a lawyer at the permanent custody hearing seeking
custody of her grandchildren, the trial court took no measures to ensure that she was
knowingly, intelligently, and voluntarily waiving her right to counsel. Based on the
totality of the circumstances revealed by the record at hand, we cannot say that Legal
Custodian intentionally or implicitly waived her right to counsel. Accordingly, we
must reverse the trial court’s judgment and remand this matter for a new trial so that
she may be afforded her right to counsel.
I.
{¶2} The record in this case stretches back years. Legal Custodian initially
received custody of her grandchildren in October 2014. Several years later, citing
concern for the children, the Hamilton County Department of Job and Family
Services (“HCJFS”) obtained an emergency ex parte removal order in January 2020
to secure emergency custody of the children. The next day, the court appointed
Erika Dority as counsel for Legal Custodian for the interim custody hearing. After
HCJFS obtained interim custody, Ms. Dority filed a motion to withdraw as Legal
Custodian’s attorney, emphasizing that “[t]he client attorney relationship is
irrecoverabl[y] broken.” Shortly thereafter, the court appointed Michael Lanzillotta
as counsel for Legal Custodian.
{¶3} Due to a failure to complete a dispositional hearing within the requisite
time of the complaint filed by HCJFS, R.C. 2151.28(B)(3), in August 2020, HCJFS’s
initial complaint was dismissed without prejudice and subsequently refiled.
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Thereafter, the court again granted interim custody to HCJFS. Later in October, the
magistrate adjudged the children dependent at an adjudication and disposition
hearing. Also at this hearing, the court learned that Legal Custodian no longer wished
Mr. Lanzillotta to represent her. Although she indicated a plan to retain private
counsel, the court referred Legal Custodian to the public defender’s office for
assistance in procuring an attorney.
{¶4} Legal Custodian subsequently failed to attend a hearing in October
2020 where temporary custody was granted to HCJFS. Legal Custodian attended an
annual review hearing in December 2020, but without an attorney. In January 2021,
however, the court appointed Celia Weingartner counsel for Legal Custodian. After
further procedural wrangling, Legal Custodian instructed Ms. Weingartner to file a
motion to withdraw as counsel. Ms. Weingartner did so in April 2021, on behalf of
Legal Custodian, citing a “complete and total breakdown in the attorney-client
relationship.”
{¶5} Of the ensuing three hearings scheduled by the court (after withdrawal
of Ms. Weingartner), Legal Custodian only attended one of them, and without counsel.
The record does not disclose that the magistrate ever questioned her about whether
she wanted a lawyer or whether she intended to proceed pro se.
{¶6} Finally, we arrive at the permanent custody hearing in April 2022. Legal
Custodian arrived almost an hour late to the hearing, citing car trouble and claiming
that she had tried to call the court to provide notice of her delay. But the hearing had
already been delayed by 50 minutes in order to see if mother and father would attend,
so her tardiness did not really delay the proceedings.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Although Legal Custodian did not arrive with an attorney, she did bring
her (nonlawyer) friend, James Williams, who claimed to be her “power of attorney”
and who was working on securing funds for Legal Custodian to retain counsel. Based
on the context of the hearing as it unfolded, it appears that Legal Custodian believed
that Mr. Williams could, in effect, represent or at least assist her during the hearing.
But each time he attempted to do so, the court (properly) refused, reminding them
that Mr. Williams was not Legal Custodian’s attorney and thus could not function
effectively as counsel during the hearing.
{¶8} Frustrated by an inability to assist during the proceeding, Mr. Williams
indicated that he could secure the necessary funds to retain counsel for Legal
Custodian, so that she could proceed at a separate hearing with counsel. The
magistrate, however, declined this overture:
We got set the whole day. [Legal Custodian] was aware that we
had this whole day set. She should have had her attorney present
for today’s proceedings * * * [T]hese children have been held in
limbo for so long. We can’t continue to continue these
proceedings for that purpose * * * You had I think a couple of
attorneys that you fired that were public defender[s], so you had
ample opportunity to have representation.
{¶9} When Legal Custodian struggled to conduct a cross-examination again,
she requested that Mr. Williams speak on her behalf since he was her power of
attorney. The court refused again, emphasizing that “she is representing herself.” And
after Legal Custodian requested that she return with a lawyer, the magistrate again
refused: “[m]a’am, we are set to go to trial today. You’ve had more than ample
4 OHIO FIRST DISTRICT COURT OF APPEALS
opportunity to retain counsel to be present for today. That did not occur, so I’m not
going to continue the matter for you to get an attorney in here and kick this out
further.”
{¶10} After further struggles during cross-examination, the following dialogue
ensued:
The Court: We’ll give leeway because [Legal Custodian] is clearly struggling.
Legal Custodian: I am very hard struggling because I am under the
impression here that no matter what I say, it’s just going to be, you
know, viewed as – you know, I’m just not knowing what I am doing.
Obviously, that’s clear. That’s a no-brainer. I just need to get to the point
where the truth during all this comes, you know. I don’t know how to
ask questions. I’m not an attorney. I don’t have an attorney present.
The Court: You have fired several attorneys, ma’am, and we set this
knowing that we’re going to present this case. You had an opportunity
to be represented. You chose not to be.
Legal Custodian: That’s not true.
The Court: Okay. The truth is that you had attorneys that were
dismissed because you did not want them to represent you.
Legal Custodian: Because they did not do their job.
The Court: Well I’m going to do mine.
Legal Custodian: I know you are.
The Court: And my job is to let you ask questions.
Legal Custodian: Right.
The Court: On your own behalf. 5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Later in the hearing, Mr. Williams asked the court if he could make a
statement in support of Legal Custodian. The court informed the pair that Legal
Custodian could choose to call Mr. Williams as a witness, but the court could not allow
just anyone to stand up and make statements: “I understand that you’re not a trained
attorney and you don’t know what you are doing, but we are going to try to work with
you.”
{¶12} Legal Custodian eventually asked to directly examine Mr. Williams. Mr.
Williams attempted to read from a physical document that he prepared before the
court requested for the document to be shown to all the other attorneys. In the ensuing
argument where Mr. Williams requested to speak, the magistrate appreciated Legal
Custodian’s challenges:
Mr. Williams: Objection. Why can’t we speak now? It’s our turn. Have
the same respect that we showed everyone else.
The Court: Because – do you know what the real problem is, sir? She
[Legal Custodian] didn’t go to law school.
{¶13} After the custody hearing, the magistrate granted permanent custody of
the children to HCJFS in June 2022. Later, Legal Custodian secured a fourth attorney,
James Costin, and he filed an objection to the decision to award permanent custody to
HCJFS, citing the absence of any waiver of the right to counsel.
{¶14} In its denial of the objection, the trial court determined that, based on
the totality of the circumstances, Legal Custodian had waived her right to counsel
because: (1) she had fired three previous attorneys, (2) missed multiple hearings
leading to the permanent custody trial, (3) arrived late to the permanent custody trial,
6 OHIO FIRST DISTRICT COURT OF APPEALS
and (4) did not ask for a continuance or for counsel until the middle of cross-
examination of a witness. Legal Custodian appeals with a single assignment of error,
maintaining that the trial court erred by failing to conduct any inquiry regarding her
desire to proceed without counsel.1
II.
{¶15} “Parental termination cases have been likened to the family-law
equivalent of the death penalty in a criminal case.” In re M Children, 1st Dist.
Hamilton No. C-180564, 2019-Ohio-484, ¶ 13, citing In re R.K., 152 Ohio St.3d 316,
2018-Ohio-23, 95 N.E.3d 394, ¶ 1. “Hence, it is critical that the rights of a parent [or
guardian] who faces the permanent termination of parental rights are appropriately
protected.” In re R.K. at ¶ 1. To that end, R.C. 2151.352, titled “Right to counsel”
provides “[a] child, the child’s parents or custodian, or any other person in loco
parentis of the child is entitled to representation by legal counsel at all stages of the
proceedings under this chapter * * * If, as an indigent person, a party is unable to
employ counsel, the party is entitled to have counsel provided for the person.”
{¶16} But a parent’s or custodian’s right to counsel in a parental termination
action can be waived. In re M Children at ¶ 15, citing In re R.K at ¶ 5; In re W.W.E.,
2016-Ohio-4552, 67 N.E.3d 159, ¶ 36 (10th Dist.). For example, a parent or custodian
can expressly waive their right to counsel. “In determining whether a parent has
waived the right to counsel, courts have considered whether the waiver was knowingly,
1 Although the dissent frames the question as whether the trial court abused its discretion in denying a continuance, the trial court squarely held that a waiver of counsel occurred. Moreover, the appellant directly challenges the waiver of counsel conclusion, and that is all that appellees address in this appeal. In other words, no party advances the argument developed by the dissent. 7 OHIO FIRST DISTRICT COURT OF APPEALS
intelligently, and voluntarily made.” In re M Children at ¶ 15, citing In re W.W.E. at ¶
36.
{¶17} In addition to an express waiver of counsel, a parent’s or legal
custodian’s waiver of counsel may also 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 at ¶ 15,
quoting 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. The Supreme Court has cautioned, however, that “[w]aiver of counsel
cannot be inferred from the unexplained failure of the parent to appear at a hearing.”
In re R.K. at ¶ 9. In a totality of the circumstances review, we must consider all of the
particular facts of the case to ascertain whether an inferred waiver of counsel occurred.
{¶18} We review whether an individual appropriately waived their right to
counsel de novo. See State v. Smallwood, 6th Dist. Lucas No. L-19-1116, 2020-Ohio-
5556, ¶ 9 (“Whether a defendant knowingly, intelligently, and voluntarily waived the
right to counsel is an issue that we review de novo.”); State v. Lee, 2d Dist.
Montgomery No. 28125, 2020-Ohio-3987, ¶ 40 (“We conduct an independent review
to determine whether a defendant voluntarily, knowingly, and intelligently waived his
right to counsel based on the totality of the circumstances.”).
{¶19} As we consider the application of these standards, we turn to our recent
precedent in In re M Children, where we emphasized the need for the court to explore
whether the parent was voluntarily relinquishing her right to counsel: “it was error for
the [trial] court to find that mother had waived her right to counsel without engaging
in an inquiry to determine whether mother was in fact competent to do so and whether
8 OHIO FIRST DISTRICT COURT OF APPEALS
mother was knowingly, intelligently, and voluntarily waiving that right, even if by
inference from her conduct.” 1st Dist. Hamilton No. C-180564, 2019-Ohio-484, at ¶
23.
{¶20} During the custody proceeding in In re M Children, mother engaged
with three different court-appointed attorneys, firing or dismissing each of them
before eventually hiring private counsel. Id. at ¶ 4-10. Mother missed a motion
hearing during this time, id. at ¶ 5, and her final court-appointed attorney requested a
continuance on two separate occasions, asking for a guardian ad litem (“GAL”) to be
appointed due to mother’s inability to assist in a defense of her case. Id. at ¶ 7-8. While
granting a final continuance and appointing a GAL, the trial court also informed the
parties, “we’re going forward the next time, and [mother’s] rights are going to be
protected by [her court appointed counsel] or new counsel or the Guardian, but we
can’t just sit on this case * * * [Y]ou’re going to have to assist the folks in preparing a
defense, absent your assistance, I have to proceed with the case * * * I can’t just put
this case on hold.” Id. at ¶ 8.
{¶21} At the next hearing, appearing without her court-appointed attorney,
mother explained that she had paid for private counsel who instructed her to request
a continuance. Id. at ¶ 9. The court declined mother’s request and proceeded with the
hearing with mother representing herself. Id. at ¶ 10. Mother also represented herself
in the permanent custody hearing where custody was granted to HCJFS. Id. at ¶ 10-
11. The trial court summarized mother’s history with counsel, concluding in part that,
“[t]o grant the requested continuance would have delayed the matter more than two
times what [O.R.C. 2151.414(A)(2)] permits. The court finds, by her actions, [mother]
waived counsel.” Id. at ¶ 18.
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{¶22} This court reversed the trial court’s holding given “the magistrate’s
failure to address mother’s inferred waiver of counsel and her competency to proceed
on her own behalf prior to beginning the permanent-custody trial, particularly because
the court found that mother appeared to be incompetent and appointed a guardian ad
litem.” In re M Children, 1st Dist. Hamilton No. C-180564, 2019-Ohio-484, at ¶ 19.
And because mother declared that she was hiring a new attorney further “diminishes
a finding that mother had knowingly, voluntarily, and intelligently waived the right to
counsel.” Id. at ¶ 22.
{¶23} The In re M Children analysis comports with the balance of Ohio
authority: “when 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.” In re W.W.E., 2016-Ohio-
4552, 67 N.E.3d 159, at ¶ 36. “Courts have also inferred a waiver of the right to counsel
in a parental termination proceeding where the ‘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.” Id. at ¶ 39, quoting In re
G.S., 10th Dist. Franklin Nos. 10AP-734, 10AP-736, 10AP-737 and 10AP-738, 2011-
Ohio-2487, ¶ 7. Applying the “totality of the circumstances” standard, the Tenth
District determined that the trial court had sufficiently explained to the father the
perils of him proceeding pro se after he requested to release his attorney, thus
rendering father’s waiver of counsel knowing, intelligent, and voluntary. In re W.W.E.
at ¶ 47. “[T]he record reflects that [father] was voluntarily exercising his right to
discharge his appointed counsel as demonstrated by [father’s] repeated affirmative
10 OHIO FIRST DISTRICT COURT OF APPEALS
answers when asked whether it was his intention to proceed without representation.”
Id.
{¶24} Here, we see no indication, based on the totality of the circumstances,
that Legal Custodian knowingly, voluntarily, and intelligently waived her right to
counsel. On appeal, the GAL and HCJFS defend the trial court’s determination by
insisting that Legal Custodian fired three attorneys, missed multiple and significant
hearings leading up to the permanent custody trial, arrived late to the permanent
custody trial, failed to request a continuance or for counsel until the middle of cross-
examination of a witness, and knew how to obtain counsel through the public
defender’s office—as she had done before in the custody proceeding three times.
{¶25} We, however, view the record differently. First of all, the fact that
Legal Custodian arrived late to the hearing does not impact the calculus because the
hearing had already been delayed for independent reasons. Moreover, her missing
two hearings since the termination of her last lawyer certainly raises concerns, but
this does not weigh heavily in the direction of an implied waiver of counsel given
the guidance we have received from the Supreme Court. See In re R.K. 152 Ohio
St.3d 316, 2018-Ohio-23, 95 N.E.3d 394, at ¶ 9 (“Waiver of counsel cannot be inferred
from the unexplained failure of the parent to appear at a hearing.”); see also In re M
Children, 1st Dist. Hamilton No. C-180564, 2019-Ohio-484, at ¶ 5 (where mother also
failed to appear at a motion hearing).
{¶26} The operative facts that convince us, based on a totality of the
circumstances, that no waiver occurred include the following: (1) the magistrate
never endeavored to determine whether Legal Custodian knowingly, intelligently,
and voluntarily waived the right to counsel, see In re M Children at ¶ 19; (2) the
11 OHIO FIRST DISTRICT COURT OF APPEALS
magistrate did not ask her whether she intended to proceed without counsel at any
point, nor did they ever explain the risks of proceeding pro se; (3) she previously
had counsel and never indicated that she wished to proceed pro se, see id. at ¶ 22;
(4) she indicated that she desired counsel at the permanent custody hearing, which
“diminishes a finding that [Legal Custodian] had knowingly, voluntarily, and
intelligently waived the right to counsel,” see id.; (5) she believed (mistakenly) that
Mr. Williams could assist her in some type of representative capacity (in other
words, she knew she lacked the ability to conduct the hearing by herself); (6) she
did not have requisite sophistication or understanding of legal procedures to
adequately represent herself, as exhibited in her efforts to participate in the
permanent custody hearing; and (7) she obtained a lawyer immediately after the
permanent custody hearing who filed objections on her behalf.
{¶27} Finally, although Legal Custodian did fire three attorneys, a similar
situation arose in In re M Children. See id. at ¶ 4, 5, 9. Certainly, it can be probative
of a desire to proceed pro se if a party refuses to hire counsel, particularly if the
court has admonished the party about the risks of proceeding without counsel. On
this record, however, it seemed that Legal Custodian was not happy with the results
of counsel, rather than reflecting any desire to proceed pro se. That view is bolstered
by her request for counsel at the permanent custody hearing, and by the retention
of counsel to file her objections.
{¶28} That does not mean, of course, that parties are entitled to an unlimited
supply of counsel in such a manner that will derail the litigation at hand. We
understand that courts must be able to manage their dockets and may not be in a
position to indulge delays when a party does not act in a diligent fashion. However,
12 OHIO FIRST DISTRICT COURT OF APPEALS
the right to counsel is guaranteed by statute here, see R.C. 2151.352, and courts must
at least take modest measures, such as ensuring that an unrepresented parent or
custodian is proceeding attentively, before it can be said that their conduct amounts
to a waiver of counsel. Here, while the magistrate was aware that Legal Custodian
arrived without counsel and was not completely capable of defending her case, the
court then failed to “address [Legal Custodian’s] inferred waiver of counsel and her
competency to proceed on her own behalf,” see In re M Children, 1st Dist. Hamilton
No. C-180564, 2019-Ohio-484, at ¶ 19, and allowed the hearing to proceed forward
regardless.
{¶29} In this vein, In re W.W.E. is instructive on what may be a suitable course
of action in this circumstance. In W.W.E., the trial court effectively communicated to
father the full weight of his decision to proceed pro se before the commencement of
the permanent custody trial. In re W.W.E., 2016-Ohio-4552, 67 N.E.3d 159, at ¶ 47.
Father received sufficient notice of why he would be disadvantaged (given his lack of
a legal education), what legal counsel would be able to provide him, and that father’s
decision to proceed without legal counsel could not be recanted. Id. The court could
also raise these matters with an unrepresented party well in advance of the permanent
custody hearing where, as here, there was potential reason to believe that an individual
might be proceeding pro se.
* * *
{¶30} Based on a thorough review of the record, we conclude that Legal
Custodian did not waive counsel nor can we infer waiver of counsel based on the
totality of the circumstances. Thus, we sustain Legal Custodian’s assignment of error,
reverse the trial court’s judgment granting permanent custody of the children to 13 OHIO FIRST DISTRICT COURT OF APPEALS
HCJFS, and remand this cause for a new trial at which Legal Custodian is afforded the
right to counsel.
Judgment reversed and cause remanded. ZAYAS, P.J., concurs. WINKLER, J., dissents.
WINKLER, J., dissenting.
{¶31} In this permanent-custody case, the majority’s decision to reverse the
juvenile court’s judgment and order a new trial so that the legal custodian, maternal
grandmother (“grandmother”), can obtain private counsel ignores the juvenile court’s
authority to exercise its discretion under R.C. 2151.352 to deny a party a continuance
for purposes of obtaining counsel. The record shows that grandmother obtained and
fired three, separate appointed attorneys. Subsequently, grandmother failed to appear
before the court at the next three hearings, including failing to attend the final pretrial
hearing. Three months later, grandmother arrived late while the trial was already in
progress and requested a continuance to obtain private counsel. Because the juvenile
court did not abuse its discretion in denying grandmother’s request for a continuance
to obtain counsel, I dissent.
Case Background
{¶32} Grandmother received legal custody of A.C.1 and A.C.2 in 2014. The
Hamilton County Department of Job and Family Services (“HCJFS”) moved for
interim, temporary custody of A.C.1 and A.C.2 in January 2020 after grandmother had
been evicted from her home and lacked stable housing. As a result of grandmother’s
instability, the juvenile court found A.C.1 and A.C.2 dependent. HCJFS’s case-plan
services required grandmother to complete random drug screens. Grandmother
14 OHIO FIRST DISTRICT COURT OF APPEALS
completed three drug screens, which were positive for methamphetamines.
Grandmother also continued to struggle with housing. Neither biological parent
complied with the case-plan services, and the record reflects that both parents have
issues with substance abuse and obtaining stable housing.
{¶33} Grandmother had three, separate appointed attorneys represent her
prior to trial on HCJFS’s permanent-custody motion. Grandmother’s first counsel
withdrew at grandmother’s request in January 2020. Grandmother’s second counsel
withdrew in October 2020, also at grandmother’s request, after the juvenile court
adjudicated the children dependent. The magistrate referred grandmother to the
public defender’s office, but grandmother stated that she wanted to hire private
counsel. In February 2021, grandmother obtained her third appointed counsel.
Grandmother’s third counsel withdrew in July 2021, again, at grandmother’s behest.
{¶34} Grandmother failed to appear at the next court hearing in August 2021
on HCJFS’s motion to extend temporary custody. According to the magistrate’s entry,
grandmother had not been complying with case-plan services. HCJFS filed a motion
to modify temporary custody to permanent custody. At a hearing in December 2021,
the record indicates that grandmother did not appear before the court, but she
remained in the waiting room of the courthouse. In January 2022, the trial court held
a final pretrial hearing on HCJFS’s motion to modify temporary custody to permanent
custody, and grandmother did not appear. The magistrate ordered that all parties be
prepared to move forward at the scheduled trial date.
{¶35} In April 2022, the magistrate held the permanent-custody trial.
Grandmother appeared one hour after the scheduled trial time and without an
attorney. During the cross-examination of an HCJFS caseworker, grandmother
15 OHIO FIRST DISTRICT COURT OF APPEALS
requested a continuance to hire private counsel, which the magistrate denied. The
magistrate proceeded to find that permanent custody to HCJFS was in the best interest
of the children. Grandmother filed objections, arguing in part that the magistrate
denied grandmother’s request for a continuance and required her to proceed in the
permanent-custody trial without counsel. The juvenile court overruled grandmother’s
objections and adopted the magistrate’s decision.
{¶36} Grandmother appeals from the juvenile court’s judgment granting
permanent custody of the children to HCJFS by arguing, in a sole assignment of error,
that “the trial court erred by failing to conduct any inquiry regarding the legal
custodian’s desire to proceed without counsel.”
R.C. 2151.352
{¶37} The right to counsel in a juvenile-court proceeding is established in R.C.
2151.352. R.C. 2151.352 not only establishes the right to counsel for parties in a
juvenile-court proceeding, but it also establishes the power of the juvenile court to
consider, in its discretion, whether to continue a matter for a party to obtain counsel.
R.C. 2151.352 provides:
A child, the child’s parents or custodian, or any other person in
loco parentis of the child is entitled to representation by legal counsel at
all stages of the proceedings under this chapter or Chapter 2152. of the
Revised Code. If, as an indigent person, a party is unable to employ
counsel, the party is entitled to have counsel provided for the person * *
*. If 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 court 16 OHIO FIRST DISTRICT COURT OF APPEALS
may continue the case to enable a party to obtain counsel, to
be represented by the county public defender or the joint county public
defender, or to be appointed counsel upon request pursuant to Chapter
120. of the Revised Code.
(Emphasis added.)
{¶38} Grandmother’s assignment of error presupposes that a juvenile court
must conduct a colloquy with a party to obtain a “waiver” of counsel prior to allowing
that party to participate in proceedings pro se. By its plain language, R.C. 2151.352
permits a juvenile court, in its discretion, to conduct proceedings with a pro se party,
and nothing in R.C. 2151.352 or the law requires the juvenile court to obtain a “waiver”
of counsel from a pro se party in every instance prior to a court proceeding. Instead,
the real issue in this appeal is whether the juvenile court erred when it denied
grandmother’s request for a continuance of the permanent-custody trial, so that
grandmother could obtain private counsel. This court reviews the denial of a
continuance under an abuse-of-discretion standard. In re M.S., 1st Dist. Hamilton
Nos. C-220105 and C-220119, 2023-Ohio-431, ¶ 33.
{¶39} The record shows that grandmother obtained and fired three, separate
public defenders. Grandmother then failed to appear before the court at two
subsequent hearings. In November 2021, grandmother failed to attend the final
pretrial hearing, and the magistrate warned the parties in its entry that the parties
should be prepared to go forward with the scheduled trial. Meanwhile, grandmother
also failed to comply with case-plan services, including failing three of her drug
screenings. The day of trial, three months after the final pretrial hearing, grandmother
arrived an hour after the scheduled start time. During cross-examination of HCJFS’s
17 OHIO FIRST DISTRICT COURT OF APPEALS
witness, grandmother requested a continuance to hire private counsel. In sum, given
grandmother’s failure to abide by the case-plan services, her spotty attendance
throughout the proceedings, and her firing of three, separate attorneys, the juvenile
court did not abuse its discretion in denying grandmother’s day-of-trial request for a
continuance to obtain private counsel.
{¶40} The majority overlooks the authority of the juvenile court to consider,
in its discretion, whether to grant a continuance under R.C. 2151.352. In doing so, the
majority focuses exclusively on whether grandmother “waived” her right to counsel,
but this issue is a red herring based on grandmother’s erroneous view of the law that
R.C. 2151.352 requires a juvenile court, in all cases, to conduct a colloquy with a party
prior to permitting that party to proceed pro se. Obviously, grandmother did not waive
her right to counsel at trial because grandmother expressly requested a continuance
to obtain counsel. Again, the issue is whether grandmother was entitled to a
continuance of the permanent-custody trial to obtain private counsel under these
circumstances. She was not.
{¶41} The majority reasons that the magistrate should have conducted a
colloquy with grandmother at some point prior to trial so that grandmother could
appreciate the ramifications of proceeding pro se at the permanent-custody trial. The
majority’s reasoning is problematic, first, because the record does not contain
transcripts of any of the hearings prior to trial, and therefore, this court has no basis
to assume that the magistrate never warned grandmother about proceeding pro se.
Second, the majority’s decision fails to articulate when exactly a colloquy between the
magistrate and grandmother should have taken place in this case. After grandmother
fired her third attorney, grandmother failed to appear before the court at the next three
18 OHIO FIRST DISTRICT COURT OF APPEALS
hearings, including failing to attend the final pretrial hearing. Simply put, on this
record, the juvenile court had no notice of grandmother’s intent or lack thereof to
proceed pro se, nor could the juvenile court even predict whether grandmother
intended to participate in the permanent-custody proceedings at all. It makes little
sense that the magistrate would have conducted a colloquy with grandmother
regarding the dangers of proceeding pro se during the permanent-custody trial when
grandmother arrived late and objected to proceeding pro se by requesting a
continuance to hire private counsel.
{¶42} Finally, by reasoning that the juvenile court should have conducted a
colloquy with grandmother prior to trial, the majority appears to elevate
grandmother’s right to counsel to that of a juvenile in a delinquency case, where the
juvenile faces a loss of liberty, and where the juvenile must be present for the court
proceedings to move forward. See Juv.R. 3(B) (“If a child is facing the potential loss
of liberty, the child shall be informed on the record of the child’s right to counsel and
the disadvantages of self-representation.”); In re C.S., 115 Ohio St.3d 267, 2007-Ohio-
4919, 874 N.E.2d 1177 (articulating the obligations of a juvenile court in accepting a
juvenile’s waiver of counsel in a delinquency matter).
{¶43} In this case, the juvenile court was under no obligation pursuant to R.C.
2151.352 to continue the permanent-custody trial when grandmother showed up late
on the day of trial and requested a continuance to obtain private counsel. The
majority’s decision renders as meaningless the authority of the juvenile court to
consider, in its discretion, whether to grant a continuance under R.C. 2151.352.
Therefore, because I believe that the majority’s decision ignores the juvenile court’s
discretionary power under R.C. 2151.352 to deny a continuance, I respectfully dissent.
19 OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.