In re Y.E.F.

• Citation: 171 N.E.3d 302,163 Ohio St.3d 521
• Decision Date: 22 December 2020
• Docket Number: 2019-0421,Nos. 2019-0420,s. 2019-0420
• Court: United States State Supreme Court of Ohio
• Parties: In the MATTER OF the ADOPTION OF Y.E.F. In the Matter of the Adoption of M.M.F.

163 Ohio St.3d 521

171 N.E.3d 302

In the MATTER OF the ADOPTION OF Y.E.F.

In the Matter of the Adoption of M.M.F.

Nos. 2019-0420

2019-0421

Supreme Court of Ohio.

Submitted January 28, 2020

Decided December 22, 2020

Welch Legal Services, L.L.C., and Porter R. Welch, Dublin, for appellees.

Staci K. Thomas, Legal Aid Society of Columbus; and James M. Daniels, Chillicothe, and Matthew P. Waigand, Southeastern Ohio Legal Services, for appellant.

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Stephen P. Carney, Deputy Solicitor General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.

Legal Aid Society of Cleveland, Katherine Hollingsworth, Thomas Mlakar, and Joseph Tomino; McDonald Hopkins, L.L.C., R. Jeffrey Pollock, and Amy Wojnarwsky, Cleveland; Legal Aid of Western Ohio, Inc., Lucinda Weller, Toledo, Frank Catanzariti, Springfield, Cara Williams, and Sarvani Nicolosi; Advocates for Basic Legal Equality, Inc., and Heather Hall ; Legal Aid Society of Southwest Ohio, L.L.C., and John Schrider; Community Legal Aid Services, Inc., and Jennifer van Dulmen, urging reversal for amicus curiae Legal Aid Society of Cleveland, Legal Aid of Western Ohio, Inc., Legal Aid Society of Southwest Ohio, L.L.C., Advocates for Basic Legal Equality, Inc., Community Legal Aid Services, Inc., National Coalition for a Civil Right to Counsel, and National Association of Counsel for Children.

Donnelly, J. {¶ 1} Although indigent parents faced with losing parental rights in a custody proceeding in juvenile court are entitled to appointed counsel, indigent parents faced with losing parental rights in an adoption proceeding in probate court are not entitled to appointed counsel. Appellant, E.S., argues that this disparate treatment is a violation of the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Ohio Constitution. We agree.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} E.S. is the mother of twin boys, Y.E.F. and M.M.F. In April 2015, when the boys were under a year old, their father, R.H., fled their home to avoid apprehension for federal criminal charges. With no funds, because R.H. had allegedly emptied their bank account, E.S. asked R.H.'s sister, C.F., and C.F.'s husband, D.F., to care for her sons while she sought shelter for herself and her daughter. E.S. contends that the arrangement with C.F. and D.F. was supposed to be temporary. But in May 2015, C.F. filed a complaint in juvenile court for allocation of parental rights.

{¶ 3} C.F. was awarded temporary custody, and then, based on an agreed judgment entry dated September 9, 2016, C.F. and D.F. were granted final custody. The entry set E.S.'s and R.H.'s child-support obligations at zero. E.S. received visitation rights, but only at the discretion of C.F. and D.F., who denied her visitation requests based on their belief that E.S. had a substance-abuse problem and could not provide a safe environment at her home for the boys.

{¶ 4} In April 2018, C.F. and D.F. filed petitions in the Delaware County Probate Court to adopt Y.E.F. and M.M.F., alleging that the consent of E.S. and R.H. was not required because neither parent had had more than de minimus contact with the boys nor provided financial support in the year preceding the filing of the adoption petitions. On August 22, 2018, E.S. filed a request for appointed counsel and attached a letter from the Legal Aid Society of Columbus raising equal-protection and due-process arguments in support of her request. The court denied E.S.'s request on August 27 and instead confirmed that it would proceed with a previously scheduled hearing on August 29 to determine whether E.S.'s consent to the boys' adoption was necessary.

{¶ 5} At the hearing, E.S. struggled to understand the process. After her own testimony (elicited through cross-examination by C.F. and D.F.'s attorney) and that of C.F. and D.F., E.S. vocalized her realization that she was in over her head, stating, "I didn't know that this would be a whole cross-examination and the whole thing would take place. Because maybe I should get an attorney, because I don't know how to cross-examine." The magistrate disregarded her request and the hearing proceeded. At the conclusion of the hearing, the probate court continued the case for further hearing, which it set for September 12, 2018. On September 10, E.S. appealed the court's August 27 denial of her request for appointed counsel.

{¶ 6} The Fifth District Court of Appeals affirmed, concluding that equal-protection and due-process guarantees are inapplicable to requests for appointed counsel in adoption cases brought by private petitioners. We granted E.S.'s discretionary appeals, 155 Ohio St.3d 1467, 2019-Ohio-2100, 122 N.E.3d 1298, and 155 Ohio St.3d 1467, 2019-Ohio-2100, 122 N.E.3d 1297, and consolidated the cases for review, 156 Ohio St.3d 1401, 2019-Ohio-2126, 123 N.E.3d 1023, and 156 Ohio St.3d 1401, 2019-Ohio-2126, 123 N.E.3d 1022.

II. ANALYSIS

A. R.C. 2505.02(B)(2)

{¶ 7} After oral argument, this court sua sponte requested that the attorney general file an amicus brief addressing, among other issues, whether the probate court's denial of E.S.'s request for appointment of counsel constituted a final, appealable order. 157 Ohio St.3d 1409, 2019-Ohio-3749, 131 N.E.3d 87 ; 157 Ohio St.3d 1409, 2019-Ohio-3749, 131 N.E.3d 88. Accordingly, we will address that issue first.

{¶ 8} Pursuant to R.C. 2505.02(B)(2), an order is a final, appealable order when it "affects a substantial right made in a special proceeding." Adoption proceedings are "special proceeding[s]," see In re Adoption of Greer , 70 Ohio St.3d 293, 297, 638 N.E.2d 999 (1994), a point that the attorney general concedes in his amicus curiae brief urging affirmance of the Fifth District's judgment. Thus, the question that remains for purposes of resolving this issue is whether E.S.'s claim that she has a right to counsel in these adoption proceedings involves a substantial right. We conclude that it does. See Wilhelm-Kissinger v. Kissinger , 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 8-11 (observing that we had previously held that orders disqualifying counsel were immediately appealable), citing Russell v. Mercy Hosp. , 15 Ohio St.3d 37, 39, 472 N.E.2d 695 (1984) ; State v. Chambliss , 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, syllabus.

{¶ 9} Moreover, E.S. has a "fundamental liberty interest" in parenting her children, grounded in the Fourteenth Amendment to the United States Constitution. Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ; see In re Murray , 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990). This fundamental liberty interest is also a substantial right under R.C. 2505.02(B)(2). See R.C. 2505.02(A)(1) (defining "substantial right" as "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect"); see also Thomasson v. Thomasson , 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 13, 21. The entire adoption proceeding is aimed at determining whether E.S. can continue to have a role in the lives of her children.

{¶ 10} In Guccione v. Hustler Magazine, Inc ., 17 Ohio St.3d 88, 89, 477 N.E.2d 630 (1985), we held that "an order denying permission for out-of-state counsel (otherwise competent) to represent a litigant is a final appealable order." We reasoned that effective review of the denial after the case reached completion in the trial court would not be possible because "[t]he burden on that party at the end of the case to show that he was prejudiced would in effect be an ‘insurmountable burden.’ " Id. at 90, 477 N.E.2d 630, quoting Armstrong v. McAlpin , 625 F.2d 433, 441 (2d Cir.1980). This case is potentially worse because, without adequate funds for an attorney, E.S. is left to protect a fundamental right without any counsel, not merely without her preferred counsel.

{¶ 11} Without counsel, E.S.'s acknowledged inability to understand the process and to properly cross-examine and her likely inability to properly preserve issues for appeal, among other limitations common among nonattorneys, will render effective appellate review unlikely, perhaps even impossible. See State ex rel. Asberry v. Payne , 82 Ohio St.3d 44, 49, 693 N.E.2d 794 (1998) (recognizing that a party "lack[ed] an adequate remedy in the ordinary course of law to challenge [the lower court's] refusal to appoint her counsel").

{¶ 12} We conclude that the denial of E.S.'s request for appointed counsel affects a substantial right in a special proceeding. Accordingly, the trial court's order denying E.S.'s request for appointed counsel is a final, appealable order pursuant to R.C. 2505.02(B)(2).

B. R.C. 2151.352

{¶ 13} 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 * * *." We have stated that R.C. 2151.352 means that indigent parents "are entitled to appointed counsel in all juvenile proceedings," which includes custody proceedings. Asberry at 48, 693 N.E.2d 794 ; see also In re R.K ., 152 Ohio St.3d 316, 2018-Ohio-23, 95 N.E.3d 394, ¶ 5 ("a parent has the right to counsel at a permanent-custody hearing, including the right to appointed counsel if the parent is indigent"), citing R.C. 2151.352.

{¶ 14} Indigent parents in adoption proceedings in probate court, governed by R.C. Chapter 3107, are not statutorily entitled to appointed counsel. Although this court used broad language in In re Baby Girl Baxter , 17 Ohio St.3d 229, 232, 479 N.E.2d 257 (1985), stating, " R.C. 2151.352 and Juv.R. 4(A) provide for the appointment of counsel in cases...