State ex rel. Heller v. Miller

• Decision Date: 02 January 1980
• Docket Number: No. 79-161,79-161
• Citation: 61 Ohio St.2d 6,399 N.E.2d 66
• Parties: , 15 O.O.3d 3 The STATE ex rel. HELLER et al. v. MILLER, Judge et al.
• Court: Ohio Supreme Court

Page 6

61 Ohio St.2d 6

399 N.E.2d 66, 15 O.O.3d 3

The STATE ex rel. HELLER et al. v. MILLER, Judge et al.

No. 79-161.

Supreme Court of Ohio.

Jan. 2, 1980.

Syllabus by the Court

1. In order to grant a writ of mandamus, the court must find that relator has a clear legal right to the relief prayed for, that respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. (State ex rel. Harris v. Rhodes 54 Ohio St.2d 41, 374 N.E.2d 641.)

2. In actions instituted by the state to force the permanent, involuntary termination of parental rights, the United States and Ohio Constitutions' guarantees of due process and equal protection of the law require that indigent parents be provided with counsel and a transcript at public expense for appeals as of right.

Statement of the Case.

Earl and Karen Heller, relators herein, are the natural parents of Johnny Steven Heller, born January 15, 1976. Shortly after Johnny's birth, the Hancock County Children's Services Board filed a complaint in the Court of Common Pleas of Hancock County, Juvenile Division, seeking permanent custody of the child because he allegedly lacked proper care and support due to the physical condition of both the mother and father. Pursuant to R.C. 2151.352 and 120.33, the court determined that the Hellers were indigent and appointed counsel to represent them. On October 23, 1978, the court issued an order which permanently terminated Earl and Karen Heller's parental rights to Johnny.

On November 16, 1978, relators filed a notice of appeal in the trial court. This appeal is still pending before the Court of Appeals. On December 24, 1978, relators filed a motion seeking appointment of counsel and a transcript of the proceedings at public expense in the trial court and, on December 26, 1978, they filed a similar motion in the Court of Appeals.

Respondent Judge Allan H. Davis of the trial court overruled the motion on December 26, 1978, finding that the court lacked jurisdiction over the proceedings because the case was before the Court of Appeals. Respondents Judges Edgar J. Miller and J. Thomas Guernsey of the Court of Appeals overruled the motion for want of authority.

On April 5, 1979, relators filed an amended complaint in mandamus asking this court to issue a writ compelling respondent judges to appoint counsel and cause a transcript of the proceedings in the trial court to issue at public expense.

Robin M. Kennedy, Toledo, for relators.

J. Stanley Needles, Pros. Atty., for respondents.

CELEBREZZE, Chief Justice.

In order for a writ of mandamus to issue, this court must find that relator has a clear legal right to the relief prayed for, that respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 42, 374 N.E.2d 641.

No plain and adequate remedy at law is available to relators in the case at bar. Relators cannot effectively appeal without a transcript and counsel. If relators continue their appeal Pro se, without benefit of a transcript, any appeal will be ineffectively presented. As was stated in State ex rel. Tulley v. Brown (1972), 29 Ohio St.2d 235, 237, 281 N.E.2d 187, the relator need not follow a suicidal course under the "ordinary course of the law" doctrine.

The rights of relators are based on their asserted indigency. The Court of Appeals refused to determine whether the relators were indigent. The trial court made its ruling on jurisdictional grounds, never reaching the issue of indigency. The stipulated facts clearly show that the Hellers are indigent. Both are unemployed and together they receive a total of $365 per month in social security benefits. They own no realty or substantial personal property, have basic monthly living expenses of $276, and are $250 in debt. If indigency creates a duty on the part of a judge to order appointment of counsel and a transcript at public expense, then Earl and Karen Heller have a clear legal right to such relief.

The right to appointed counsel and a transcript can only exist under the constitutional guarantees of due process and equal protection of the law found in the Fourteenth Amendment to the United States Constitution, and in Sections 1, 2, 16 and 19 of Article I of the Ohio Constitution. We look to federal case law to delineate the right of relators under both the state and federal provisions. The Ohio Constitution's guarantees in these matters are substantially equivalent to the United States Constitution's guarantees. The phrase in Section 2 of Article I that " * * * (g)overnment is instituted for their (the people's) equal protection and benefit" is essentially identical to the Fourteenth Amendment's equal protection clause. Kinney v. Kaiser Aluminum & Chemical Corp. (1975), 41 Ohio St.2d 120, 123, 322 N.E.2d 880. Section 16 of Article I guarantees that " * * * every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law * * *." When read in conjunction with Sections 1, 2 and 19, Section 16 is the equivalent to the Fourteenth Amendment's due process clause. Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540, 38 N.E.2d 70; Akron v. Chapman (1953), 160 Ohio St. 382, 116 N.E.2d 697. As a consequence, decisions of the United States Supreme Court can be utilized to give meaning to the guarantees of Article I of the Ohio Constitution.

The United States Supreme Court has recognized the existence of a fundamental, privacy-oriented right of personal choice in family matters under the due process clause. The development of this right began in Meyer v. Nebraska (1923), 262 U.S. 390, 43 S.Ct. 625, 626, 67 L.Ed. 1042 where the court, in defining the liberty guaranteed under the due process clause, at page 399, stated:

"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration, and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

The Meyer definition of liberty has led to cases declaring unconstitutional a statute prohibiting the use of contraceptives (Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510), and statutes making all abortions, except those to save the life of the mother, illegal (Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 785, 35 L.Ed.2d 147). In Roe and Griswold the right to make decisions about the family was viewed as a fundamental right under the due process clause.

The fundamental right of personal choice in family matters has been expanded to include the right of family members to live together. In Moore v. East Cleveland (1977), 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 a zoning ordinance which prevented a woman from living with her grandchild was ruled to be unconstitutional because it infringed on family matters. Moore was distinguished from Village of Belle Terre v. Boraas (1974), 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797, where the court upheld a zoning ordinance which severely limited housing arrangements entered into by unrelated people, but not housing arrangements between related people. The basis of the distinction was the family unit. The ordinance in Moore infringed on the family unit, but the ordinance in Boraas did not. As a consequence, the court in Moore did not give the deference usually accorded to zoning ordinances in finding the ordinance to be unconstitutional. The fundamental right which has emerged from Meyer clearly centers around the family and encompasses the right to maintain the family unit.

Within this fundamental right of personal choice in family matters is the right of a parent to his or her natural children. In Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, a statute, which made an unwed father's children, upon the mother's death, wards of the state, without any showing of unfitness on the father's part, was held, at page 651, 92 S.Ct. at page 1212, to be unconstitutionally defective because "(t)he private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. (448), 458, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring)."

In Smith v. Organization of Foster Families (1977), 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 the court went so far as to recognize some family rights for foster parents. It is clear from these cases that a parent and a child have substantial, protected rights in their family relationship under the due process clause.

Of course, where the parents are unfit the state may permanently terminate parental rights. The question before this court is whether the procedural safeguards of a transcript and counsel for an appeal as of right are required under the Ohio and United States Constitutions.

The United States Supreme Court has given rather significant procedural guarantees in criminal cases, including the right to counsel and a transcript at public expense for appeals as of right. The right to a transcript for indigents was established in Griffin v. Illinois (1956), 351 U.S. 12,...