In re M/W Children, 032019 OHCA1, C-180623

Docket Nº:C-180623
Opinion Judge:ZAYAS, JUDGE.
Attorney:Roger Kirk, for Appellant Mother, Raymond T. Faller, Hamilton County Public Defender, and Allison McWhorter, Assistant Public Defender, Guardian ad Litem for Children, Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patrick Stapp, Assistant Prosecuting Attorney, for Appellee Hamilton ...
Judge Panel:Mock, P.J., and Myers, J., concur.
Case Date:March 20, 2019
Court:Court of Appeals of Ohio



No. C-180623

Court of Appeals of Ohio, First District, Hamilton

March 20, 2019

Appeal From: Hamilton County Juvenile Court Trial No. F15-2147X

Roger Kirk, for Appellant Mother,

Raymond T. Faller, Hamilton County Public Defender, and Allison McWhorter, Assistant Public Defender, Guardian ad Litem for Children,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patrick Stapp, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services.



{¶1} Mother appeals from the judgment of the Hamilton County Juvenile Court adopting the magistrate's decision and granting permanent custody of her three minor children, D.M., L.W., and L.M. (collectively "the children"), to the Hamilton County Department of Job and Family Services ("HCJFS"). Because the juvenile court erred in denying mother's request to testify, we reverse.

I. The Children Are Adjudicated Dependent

{¶2} Mother gave birth to the children before reaching her 18th birthday. D.M. was born in 2014, L.W. in 2015, and L.M. in 2016. The children share the same father.

{¶3} In September 2015, mother was 16 years old when her second child, L.W., was born prematurely. The child also tested positive for marijuana. Mother was unable to account for her older child D.M.'s whereabouts except to note that he was staying with an uncle. Thus HCJFS filed a motion for interim temporary custody and a complaint for temporary custody of D.M. and L.W. in the Hamilton County Juvenile Court. The magistrate granted interim custody of the children to HCJFS. She also appointed counsel for mother, counsel for father, and a guardian ad litem ("GAL") for the children.

{¶4} Mother appeared at the January 8, 2016 adjudicatory hearing. Father did not. After hearing argument on stipulated facts surrounding L.W.'s birth and mother's not knowing the address of the uncle with whom D.M. was living, the magistrate found that clear and convincing evidence established that D.M. and L.W. were dependent. HCJFS was granted temporary custody over them. Mother did not appeal from these orders.

{¶5} HCJFS devoted resources to remediating the problems facing the children and to ensuring their ability to return to the care of their mother or father. Mother was provided with case management, supervised visitations, diagnostic assessments of function ("DAFs"), therapeutic services, and parenting education. Mother participated inconsistently in these services.

{¶6} Upon her birth in June 2016, L.M. was also placed in the interim custody of HCJFS. She was placed in care with her siblings. At an October 6, 2016 hearing, the magistrate found that the issues that had led to the children's removal from mother's care had not yet been remediated. L.M. was adjudicated dependent and ultimately she was committed to the temporary custody of HCJFS. Mother did not appeal from these orders.

{¶7} On January 9, 2017, a second magistrate granted HCJFS's first motion to extend temporary custody over the children. She also granted HCJFS temporary custody over L.M. On March 14, 2017, the magistrate found that mother had completed a DAF that recommended individual therapy, toxicology screenings, and parenting education at Beech Acres. On April 14, 2017, the magistrate granted a second and final extension of temporary custody.

II. HCJFS's Motion for Permanent Custody

{¶8} On May 23, 2017, HCJFS ultimately moved to modify temporary custody to grant permanent custody of the children to HCJFS. On September 28, 2017, a third magistrate set a trial date for HCJFS's motion for permanent custody. Trial was scheduled for January 4 and 12, 2018.

{¶9} On the first day of trial, mother was in attendance with her counsel. The magistrate noted that discovery documents had only recently been distributed to the parties and, with the agreement of all parties except the GAL, continued the matter. The magistrate set new trial dates of March 14 and 21, 2018.

{¶10} Eight days later, father's appointed counsel moved to withdraw. He had represented father in every court proceeding since September 2015. In his motion, counsel stated that father no longer wished to work with him. Following a January 30, 2018 hearing on the motion, the magistrate permitted counsel to withdraw. She noted that father was "considering" representing himself. Nonetheless, the magistrate advised father to contact the Hamilton County Public Defender's Office to arrange for a new attorney, and reminded him that trial dates had been set for HCJFS's permanent-custody motion.

{¶11} On March 6, 2018, eight days before the trial was scheduled to begin, father's newly retained counsel made her first appearance in the proceeding. Six days later, retained counsel also moved to withdraw. She stated that father now planned to represent himself. Counsel also informed the magistrate that she had told father that the custody trial was to commence on March 14.

{¶12} Mother and her counsel were present in court on the March 14, 2018 trial date. Father appeared without counsel. But contrary to his stated intention to proceed pro se, father now requested that counsel be appointed to represent him prior to the custody hearing. The magistrate, noting that father had "made steps" to obtain counsel through the public defender's office, continued the matter until counsel could be appointed and be ready for trial.

{¶13} One week later, new counsel was appointed to represent father. Father's third counsel was present when the magistrate reset the commencement of the trial for June 5, 2018. The second date of trial was ultimately set for June 22, 2018.

III. The Custody Hearings

{¶14} At the beginning of the June 5, 2018 custody hearing, the magistrate noted that neither father nor mother was present. Mother's counsel stated that he had kept mother...

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