In re R.K.

• Citation: 2018 Ohio 23,95 N.E.3d 394,152 Ohio St.3d 316
• Decision Date: 04 January 2018
• Docket Number: No. 2017–0433,2017–0433
• Parties: IN RE R.K.
• Court: Ohio Supreme Court

152 Ohio St.3d 316
95 N.E.3d 394
2018 Ohio 23

IN RE R.K.

No. 2017–0433

Supreme Court of Ohio.

Submitted September 13, 2017
Decided January 04, 2018

Yeura R. Venters, Franklin County Public Defender, and John W. Keeling, Assistant Public Defender, Columbus, for appellant.

Robert J. McClaren, Kenton, for appellee.

O'Neill, J.

152 Ohio St.3d 317

{¶ 1} This court has previously likened the termination of one's parental rights to the family-law equivalent of the death penalty. See, e.g. , In re D.A. , 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 10 ; In re Hayes , 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). Hence, it is critical that the rights of a parent who faces the permanent termination of parental rights are appropriately protected. One of those protective measures is the right to be represented by an attorney "at all stages of the proceedings." R.C. 2151.352. That did not happen in this case. Instead, the juvenile court allowed the attorney for the mother, appellant, A.S., to withdraw from the case at the start of a critical stage of the proceedings—the permanent-custody hearing—because A.S. failed to appear. The juvenile court proceeded with the hearing without A.S. present and without an attorney representing her and protecting her interests. These actions of the court constituted reversible error.

Facts and Procedural History

{¶ 2} On July 11, 2016, the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, was scheduled to conduct a permanent-custody hearing at 10:00 a.m. regarding A.S.'s child, R.K., because appellee, Franklin County Children Services ("FCCS"), had filed a motion for permanent custody. The hearing in juvenile court commenced at 10:10 a.m., but A.S. was not present. A discussion occurred on the record. A.S.'s attorney stated that he had informed her about the hearing but indicated that he did not know why she was absent. The attorney then requested permission to withdraw as counsel. The court granted that motion, and the termination-of-parental-rights hearing continued without A.S.'s presence and without her being represented by counsel. The court did not question the attorney about A.S.'s whereabouts but asked him to stay and remain in the courtroom in the event that A.S. appeared so that the attorney would be "available to be reappointed." The attorney complied with that request, but he did not participate in the hearing other than to reserve the right to cross-examine witnesses in case A.S. appeared. A.S. did not appear, and the court granted permanent custody to FCCS. A.S. timely appealed to the Tenth District Court of Appeals.

152 Ohio St.3d 318

{¶ 3} In a split decision, the court of appeals upheld the permanent-custody order, holding that the juvenile court did not abuse its discretion in finding that A.S. implicitly waived her right to counsel and

95 N.E.3d 397

also did not abuse its discretion in permitting A.S.'s attorney to withdraw as counsel. The dissenting judge would have reversed the juvenile court's judgment and remanded the cause for a new hearing. The dissenting judge acknowledged that the record likely supported a finding that A.S. had waived her right to be present at the hearing but stated that "[t]he right of a parent to be represented is distinct from the right of a parent to appear and be present for a permanent custody hearing. The failure to exercise the right to be present does not necessarily mean" that a parent has intentionally relinquished or abandoned the parent's right to counsel "or that her interests cannot be effectively represented by counsel's participation in her absence." 10th Dist. Franklin No. 16AP–575, ¶ 23 (Feb. 21, 2017) (Brunner, J., dissenting), citing State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 20. A.S. appealed to this court, and we accepted jurisdiction. 149 Ohio St.3d 1405, 2017–Ohio–2822, 74 N.E.3d 464.

Analysis

{¶ 4} A.S. has raised a single proposition of law for this court's consideration. She asserts that she was denied her right to counsel when the juvenile court permitted her attorney to withdraw prior to the final hearing. She contends that her absence from the courtroom did not equate to a waiver of counsel on her part. She is right. A.S. additionally claims that she was in a hospital being treated for a medical emergency at the time of the final hearing and that she attempted to contact the court but was unable to do so.

{¶ 5} As previously mentioned, this court considers the parent-child bond to be extremely important and when the state attempts to permanently terminate the relationship between a parent and child, the parent " ‘must be afforded every procedural and substantive protection the law allows.’ " In re Hayes , 79 Ohio St.3d at 48, 679 N.E.2d 680, quoting In re Smith , 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). The General Assembly has specified that a parent has the right to counsel at a permanent-custody hearing, including the right to appointed counsel if the parent is indigent. R.C. 2151.352 ; see also Juv.R. 4(A). Of course, the right to counsel can be waived. Waiver is an " ‘ " ‘intentional relinquishment or abandonment of a known right.’ " ' " Rogers at ¶ 20, quoting State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), quoting Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). That did not happen in this case.

{¶ 6} The key question in this case is whether A.S. waived her right to counsel when she did not appear at the final hearing. In

152 Ohio St.3d 319

In re Sadie R. , 6th Dist. Lucas No. L-04-1057, 2005-Ohio-325, 2005 WL 195489, the court held that in order to protect the rights of a parent in this situation, a juvenile court must make two inquiries before allowing the attorney for the parent to withdraw. "First, the court must ‘ascertain that counsel's attempts to communicate with and obtain the cooperation of the client were reasonable,’ " and "[s]econd, the court must verify that ‘the failure of this communication resulted in the inability of counsel to ascertain the client's wishes.’ " Id. at ¶ 36, quoting In re Savannah M. , 6th Dist. Lucas No. L-03-1112, 2003-Ohio-5855, ¶ 45, 2003 WL 22462478 (Singer, J., concurring).

{¶ 7} In this case, the record shows that A.S. was sent notice of the final hearing, that her attorney had informed her in a letter that she needed to appear, and that she had "responded" to her attorney's letter regarding the hearing. The attorney

95 N.E.3d 398

also stated at the start of the hearing that he had informed her that if she did not appear, the court would "probably go forward without her and that [he] would be asking to withdraw." However, the court made no inquiries into A.S.'s whereabouts, why she was not present, the attorney's past attorney-client relationship with A.S., or the substance of her response to the attorney's letter. Instead, the court simply granted the attorney's oral motion to immediately withdraw, apparently without giving any consideration to whether A.S. had waived her right to counsel. The juvenile court's apparent stance was that a parent's failure to appear for a permanent-custody hearing automatically constitutes a waiver of that parent's right to counsel. We cannot condone that approach.

{¶ 8} Even though A.S. failed to appear in this instance, her counsel was present and could have represented her interests during the hearing. The court did not know why A.S. failed to appear. The failure could have been purposeful, but, as demonstrated by the circumstances here, it also could have been due to an emergency of some sort that prevented her appearance. We do not know the details, in part because the court did not inquire into them. In any case, since counsel was present and presumably was prepared to go forward, the better option would have been to deny the attorney's motion to withdraw and have him represent the interests of A.S. to the best of his ability....