In re L.C.C.
| Decision Date | 15 November 2018 |
| Docket Number | No. 18AP-167,18AP-167 |
| Citation | 114 N.E.3d 448,2018 Ohio 4617 |
| Parties | In the MATTER OF: L.C.C., (A.N.O., Appellant). |
| Court | Ohio Court of Appeals |
On brief: Anzelmo Law, and James A. Anzelmo, Columbus, for appellant. Argued: James A. Anzelmo.
On brief: DeSanto & McNicols, and Debra J. DeSanto, for appellee. Argued: Debra J. DeSanto.
On brief: Douglas J. Althauser, for amici curiae Family and Youth Law Center at Capital University Law School and National Coalition for A Civil Right to Counsel.
DECISION
{¶ 1} Respondent-appellant, A.N.O., appeals from a judgment of the Franklin County Court of Common Pleas, Probate Division, granting the petition filed by petitioner-appellee, T.C., seeking the adoption of L.C.C., appellant's biological son. For the reasons that follow, we affirm.
{¶ 2} On December 12, 2012, appellant gave birth to L.C.C. The identity of the biological father is unknown. On January 3, 2013, Franklin County Children Services ("FCCS") was informed that appellant had tested positive for oxycodone on seven occasions during her pregnancy and twice for marijuana and that she continued to use illegal drugs while breastfeeding.
{¶ 3} On February 25, 2013, FCCS filed a neglect and dependency complaint, pursuant to R.C. 2151.03(A)(2) and 2151.04(C), in the Franklin County Juvenile Court. Due to appellant's indigence, counsel was appointed to represent appellant in the juvenile court proceedings. In April 2013, FCCS removed L.C.C. from appellant's care and placed him with appellant's mother. Three weeks later, on May 3, 2013, FCCS removed L.C.C. from appellant's mother and placed him with appellee and appellee's husband. Appellee is appellant's maternal aunt. The stated reason FCCS removed L.C.C. from appellant's mother was a "failure to thrive." (Feb. 9, 2017 Tr. at 8.)
{¶ 4} On May 9, 2013, the Franklin County Juvenile Court determined that L.C.C. was a "dependent minor pursuant to section 2151 of the Ohio Revised Code" and awarded temporary custody of L.C.C. to FCCS. (Oct. 5, 2017 Juvenile Court Decision and Entry.) L.C.C. was approximately four and one-half months old when appellee obtained custody. L.C.C. has remained in appellee's care since that time.
{¶ 5} In late 2013 or early 2014, appellant traveled to Florida to enter a drug treatment program. She returned briefly in February 2014 for a hearing in the juvenile court case. On October 7, 2014, the juvenile court issued an order, pursuant to R.C. 2151.42(B), awarding legal custody of L.C.C. to appellee and appellee's husband. Appellant did not object to the court's ruling, and she went back to Florida. Appellant has admitted that she did not complete the Florida drug treatment program and continued to use illegal drugs.
{¶ 6} In December 2015, a Franklin County Grand Jury indicted appellant for heroin possession, a felony of the third degree. On July 27, 2016, appellee filed her petition for adoption, pursuant to R.C. 3107.05, in the Franklin County Probate Court. Appellant received notice of the petition while at the Franklin County jail. On October 14, 2016, appellee filed an amended petition. Appellant filed her pro se objection to the amended petition on November 10, 2016. On receipt of appellant's objection, the probate court sent appellant a letter advising her to speak with an attorney regarding her parental rights.
{¶ 7} On February 9, 2017, a magistrate conducted a hearing, pursuant to R.C. 3107.07(A), to determine whether appellant's consent to the adoption was required. Appellant attended the hearing via telephone from the Franklin County Sheriff's Office, without the benefit of legal counsel. On February 21, 2017, the magistrate issued a decision wherein the magistrate found, by clear and convincing evidence, that appellant failed without justifiable cause to provide more than de minimis maintenance and support to L.C.C. for a period of one year immediately preceding the filing of the adoption petition. Accordingly, the magistrate recommended the court conclude that appellant's consent to the adoption was not required and proceed to a determination whether granting the adoption petition would be in the best interest of L.C.C. Appellant did not file an objection to the magistrate's decision.
{¶ 8} On May 18, 2017, the magistrate held an evidentiary hearing to determine whether, pursuant to R.C. 3107.161, granting the adoption petition would be in the best interest of L.C.C. Appellant appeared at the hearing pro se. As a result of the hearing, the magistrate issued a decision on May 25, 2017 recommending the court deny the petition for adoption. The magistrate found appellant proved, by clear and convincing evidence, adoption by appellee was not in L.C.C.'s best interest.
{¶ 9} Appellee filed objections to the magistrate's decision accompanied by a transcript of the proceedings before the magistrate. Appellant filed a response and her own supplemental objections on August 15, 2017. On October 11, 2017, the court held a hearing on the objections. At the start of the proceeding, the trial court addressed appellant regarding her legal representation, whereon the following exchange took place:
{¶ 10} As a result of the hearing, the court continued the matter for 60 days to allow appellant additional time to obtain legal counsel and to prepare. Following an unsuccessful mediation, the court held an evidentiary hearing on February 6, 2018 to determine whether adoption was in the best interest of L.C.C. At the hearing, the court heard additional testimony from the parties and from the Guardian ad Litem ("GAL"), Stacey L. Beck, who testified by way of deposition.
{¶ 11} Prior to hearing testimony, the court made the following comments regarding appellant's pro se status:
I will say one thing. It's – I hate to see a situation where we have litigants without attorneys. It complicates things a little bit. So what I'm going to do is – is I'm going to – I'm going to afford – this is a best-interest hearing, and so as long as it's relevant, I'm going to afford her a pretty wide latitude. If it's something that she's – that's permissible for her to ask, you, as a good lawyer, are probably going to object if it's not phrased the right way. The fact that she doesn't have an attorney, I'll probably afford her a pretty wide latitude in being able to ask questions. I don't think that it's going to affect our proceedings and so just to move it along.
{¶ 12} On March 6, 2018, the trial court issued a decision sustaining appellee's objections to the magistrate's decision and granting the petition for adoption. In making its findings, the trial court considered the evidence admitted at the hearing before the magistrate and the additional evidence submitted at the February 6, 2018 evidentiary hearing. In reaching its conclusions, the trial court independently analyzed the relevant factors set forth in R.C. 3107.161(B) in making the best-interest determination. The trial court concluded that appellee "has proven by clear and convincing evidence that the child's adoption to [appellee] would be in the child's best interests." (Mar. 6, 2018 Decision at 22.)
{¶ 13} Appellant timely appealed to this court from the trial court's decision.
{¶ 14} Appellant assigns the following as trial court error:
{¶ 15} Appellate courts "generally review a trial court's adoption, denial or modification of a magistrate's decision for an abuse of discretion." Brunetto v. Curtis , 10th Dist. No. 10AP-799, 2011-Ohio-1610, 2011 WL 1225580, ¶ 10. However, where the appeal from the trial court's action on a magistrate's decision presents only a question of law, the standard of review is de novo. Id.
{¶ 16} In her first assignment of error, appellant argues the trial court violated her rights to equal protection of the law guaranteed by the Fourteenth Amendment to the U.S. Constitution and Article I, Section 2 of the Ohio Constitution in failing to appoint legal...
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