In re J.R.F.

Decision Date29 September 2017
Docket NumberCase No. 16CA701
Citation2017 Ohio 8125
PartiesIN THE MATTER OF: J.R.F.
CourtOhio Court of Appeals

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Anne S. Rubin, William H. Fraser, and Douglas L. Rogers, Athens, Ohio, for Appellant.

Lori L. Silcott-Ousley, Wellston, Ohio, for Appellee.

Judith B. Goldstein, Columbus, Ohio, for Amici Curiae Family and Youth Law Center at Capital University Law School and the National Coalition for a Civil Right to Counsel.

CIVIL CASE FROM COMMON PLEAS COURT, PROBATE DIVISION

Abele, J.

{¶ 1} This is an appeal from a Vinton County Common Pleas Court, Probate Division, decision that denied a request to appoint counsel for J.C.J., respondent below and appellant herein, in the adoption proceeding involving appellant's biological child. Appellant raises the following assignments of error:

FIRST ASSIGNMENT OF ERROR:
"A FATHER HAS A CONSTITUTIONALLY PROTECTED INTEREST IN COMPANIONSHIP, CARE, CUSTODY AND NURTURE OF HIS CHILD AGAINST THE POWER OF THE STATE IN ADOPTION PROCEEDINGS."
SECOND ASSIGNMENT OF ERROR:
"THE EQUAL PROTECTION CLAUSES REQUIRE OHIO PROBATE COURTS TO APPOINT COUNSEL FOR INDIGENT PARENTS IN ADOPTION PROCEEDINGS, SINCE OHIO STATUTES REQUIRE THE APPOINTMENT OF COUNSEL FOR INDIGENT PARENTS IN JUVENILE COURT PROCEEDINGS."
THIRD ASSIGNMENT OF ERROR:
"UNDER THE U.S. AND OHIO CONSTITUTIONS, DUE PROCESS REQUIRES THE PROBATE COURT IN AN ADOPTION PROCEEDING TO FOLLOW THE BALANCING TEST IN MATHEWS AND CODY AND, IN THIS CASE, APPOINT COUNSEL."1
FOURTH ASSIGNMENT OF ERROR:
"PROBATE COURTS IN OHIO HAVE THE AUTHORITY TO APPOINT COUNSEL FOR INDIGENT PARENTS."

{¶ 2} On May 24, 2016, R.J.F. filed a petition to adopt his stepchild. The petition alleged that appellant's consent is not required because he failed, without justifiable cause, to provide for the maintenance and support of the child as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minor in R.J.F.'s home. Appellant filed a pro se objection to the petition.

{¶ 3} Appellant subsequently requested the trial court to appoint counsel to represent him. Appellant asserted that he "need[s] an attorney to help me present defenses and to protect my Constitutional right to have an on-going parent/child relationship with my daughter * * * ." On August 16, 2016, the court denied his motion. This appeal followed.2

I

{¶ 4} Initially, we observe that appellant's thoroughly researched and well-written brief unfortunately does not designate proper assignments of error. His "assignments of error" do not assign any error to the trial court's ruling. See Painter and Dennis, Ohio Appellate Practice (2007 Ed.), Section 1.45 (stating that "the assignments of error * * * set forth the rulings of the trial court * * * contended to be erroneous"); see also App. R. Rule 16 (1992 staff notes) (setting forth an example of a proper assignment of error as, "The trial court erred in overruling defendant-appellant's motion for directed verdict. (Tr. ___)"). Instead, appellant framed his assignments of error as propositions of law. While a proposition of law is appropriate in an appellate brief to the Ohio Supreme Court, an "assignment of error" is appropriate in an appellate brief to an Ohio appellate court. See State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶63 (O'Donnell, J., dissenting) (noting that "appellate courts consider assignments of error, while [the supreme] court considers propositions of law). The two are materially and substantively different"); App.R. 16(A)(3); S.Ct. R.P. 6(B)(1). Because appellant does not raise appropriate assignments of error, we would be within our discretion to simply disregard his arguments. Headings v. Ranco, Inc., 3rd Dist. Union No. 14-04-33, 2005-Ohio-1095, ¶6 (explaining that appellate court may disregard argument improperly presented as proposition of law); State v. Maxson, 66 Ohio App.3d 32, 36, 583 N.E.2d 402 (1st Dist. 1990) (declining to address an appellant's alleged error "[b]ecause the assignment is advanced as a proposition of law rather than as an assignment of error, [and] it does not comply with the Appellate Rules"); see also Eberhard Architects, L.L.C. v. Schottenstein, Zox & Dunn Co., L.P.A., 8th Dist. Cuyahoga No. 102088, 2015-Ohio-2519, 2015 WL 3899367, ¶16 (stating that appellate court need not address argument if appellant fails to present it as an assignment of error in accordance with appellate rules). An appellate court may, however, "reach the merits of an argument if the assignments of error [are] 'readily discernable' from the propositions of law, and where the opposing party ha[s] responded as if the propositions were assignments of error." Eberhard Architects at ¶16, citing JPMorgan Chase Bank, N.A. v. Allton, 10th Dist. Franklin No. 14AP-228, 2014-Ohio-3742, ¶6-7; Carter-Jones Lumber Co v. Denune, 132 Ohio App.3d 430, 432, 725 N.W.2d 330 (10th Dist. 1999).

{¶ 5} In the case at bar, we readily discern that appellant's improperly-framed assignments of error challenge the trial court's decision to deny his request for appointed counsel. Furthermore, appellee has responded to appellant's challenge as if he presented properly-framed assignments of error. We will, therefore, consider the "assignments of error" to the extent that they relate to the trial court's alleged error in denying appellant's request for appointed counsel.

II

{¶ 6} Appellant's "assignments of error" essentially assert that the trial court erred as a matter of law by denying his request for appointed counsel. Appellant claims that the court's failure to appoint counsel to represent him in the adoption proceeding involving his biological child violates both the equal protection and due process clauses of the United States and Ohio constitutions.

A

{¶ 7} We first point out that during the trial court proceedings, appellant did not specifically raise any of the arguments he now raises on appeal. Instead, his motion generally alleged that he is indigent and that the trial court must appoint counsel in order to protect his constitutional right to maintain the parent-child relationship. While we recognize that appellant attached as exhibits to his motion a Franklin County probate court decision and an appellate brief filed in a different case that both touch on the constitutional issues, appellant did not expressly argue the constitutional issues in his motion. Thus, although appellant generally referenced the constitutional arguments that might be made, he did not argue them and explain how they apply to his case. Under these circumstances, we believe appellant forfeited the right to raise the arguments he now raises for the first time on appeal. Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶30 (stating that "an appellant generally may not raise an argument on appeal that the appellant has not raised in the lower courts"); State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶21 (explaining that defendant forfeited his constitutional challenge by failing to raise it during trial court proceedings); Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201, 204, 724 N.E.2d 787 (2000) (concluding that party waived constitutional arguments for purposes of appeal when party failed to raise those arguments during trial court proceedings); State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections, 65 Ohio St.3d 175, 177, 602 N.E.2d 622 (1992) (explaining that an appellant cannot "present * * * new arguments for the first time on appeal"); accord State ex rel. Jeffers v. Athens Cty. Commrs., 4th Dist. Athens No. 15CA27, 2016-Ohio-8119, 2016 WL 7230928, fn.3 (stating that "[i]t is well-settled that failure to raise an argument in the trial court results in waiver of the argument for purposes of appeal"); State v. Anderson, 4th Dist. Washington No. 15CA28, 2016-Ohio-2704, 2016 WL 1643247, ¶24 (explaining that "constitutional arguments not presented in the trial court are deemed to be waived and may not be raised for the first time on appeal"). We may, however, consider appellant's arguments using a plain-error analysis. See Risner v. Ohio Dept. of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 42 N.E.3d 718, 2015-Ohio-3731, 42 N.E.3d 718, ¶27 (stating that reviewing court has discretion to consider forfeited constitutional challenges); see also Hill v. Urbana, 79 Ohio St.3d 130, 133-34, 679 N.E.2d 1109 (1997), citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus (stating that "[e]ven where [forfeiture] is clear, [appellate] court[s] reserve[] the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it'"); State v. Pyles, 7th Dist. Mahoning No. 13-MA-22, 2015-Ohio-5594, ¶82, quoting State v. Jones, 7th Dist. No. 06-MA-109, 2008-Ohio-1541, ¶65 (explaining that the plain error doctrine "'is a wholly discretionary doctrine'"); DeVan v. Cuyahoga Cty. Bd. of Revision, 8th Dist. Cuyahoga No. 102945, 2015-Ohio-4279, ¶9 (noting that appellate court retains discretion to consider forfeited argument).

{¶ 8} For the plain error doctrine to apply, the party claiming error must establish (1) that "'an error, i.e., a deviation from a legal rule'" occurred, (2) that the error was "'an "obvious" defect in the trial proceedings,'" and (3) that this obvious error affected substantial rights, i.e., the error "'must have affected the outcome of the trial.'" State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d 1001, 1003 (1982) ("A 'plain error' is obvious and prejudicial although neither objected to nor affirmatively waived which, if permitted, would have a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT