Update: On January 4, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“Is that the rule you want from this court—if you don’t show up you are deemed to have waived counsel in the most important court proceeding in your life?”

Justice O’Neill, to the Children’s Services Lawyer

On September 13, 2017, the Supreme Court of Ohio heard oral argument in the case, In re: R.K. (A.S., Appellant), 2017-0433. At issue is the propriety of the trial court’s decision to let counsel for the mother withdraw after the mother failed to appear for the permanent custody hearing.

Case Background

In 2013, a child, R.K., was born to defendant, A.S., with drugs and alcohol in his system. This led Franklin County Children Services (FCCS) to become involved and obtain temporary custody of R.K. FCCS then placed R.K. in foster care. In 2015, FCCS filed a motion requesting permanent custody of R.K.  After several continuances, the hearing for this matter was ultimately held on July 11, 2016. A.S. failed to appear for the scheduled hearing.  At that hearing, A.S.’s lawyer gave no reason for his client’s failure to appear, and asked for leave to withdraw as counsel. The trial court granted the motion, but requested counsel to stay in the courtroom in case A.S. showed up late. Then a brief hearing was conducted with counsel present but not participating. At the end of the hearing, permanent custody was granted to FCCS.

On appeal, the Tenth District, in a 2-1 decision written by Judge Tyack, and joined by Judge Klatt, found that the trial court did not abuse its discretion in allowing A.S.’s lawyer to withdraw from the proceedings in her absence, and found that A.S.’s absence constituted an implicit waiver of the right to counsel under R.C. 2151.352 and Juv.R. 4(A). According to the Tenth District, when a parent fails to appear for a scheduled hearing and fails to cooperate with counsel and the court, the court may infer the parent has waived the right to counsel. Therefore, the court may grant counsel’s request to withdraw. The Tenth District affirmed the trial court’s decision to grant permanent custody of R.K. to FCCS. Judge Brunner dissented. She would find that a parent has the right to be represented by counsel unless the parent “intentionally relinquished or abandoned her right to counsel, either explicitly, or as evidenced by her conduct.” Here, she would require the trial judge to inquire further about the communications between the lawyer and the client.

Read the oral argument preview of the case here.

Key Precedent

R.C. 2151.352 (Right to Counsel in Certain Juvenile Court Proceedings)

A child, the child’s parents or custodian, or any other person in loco parentis of the child is entitled to representation by legal counsel at all stages of the proceedings under this chapter or Chapter 2152 of the Revised Code.)

Juv.R. 4 (Every party shall have the right to be represented by counsel and every child, parent, custodian, or other person in loco parentis the right to appointed counsel if indigent.)

Prof. Cond. R. 1.16 (A lawyer may withdraw from a case when the client substantially fails to fulfill an obligation and has been given reasonable warning that the lawyer will withdraw if the obligation is not fulfilled.)

In re Miller, 12 Ohio St.3d 40 (1984) (Under the Ohio Constitution’s requirements of Due Process and Equal Protection, indigent persons must be afforded counsel for permanent custody hearings and appeals.)

Johnson v. United States, 520 U.S. 461 (1997) (A structural error is a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself, e.g., a total deprivation of the right to counsel, lack of an impartial trial judge, right to a public trial.)

In re Hayes, 79 Ohio St.3d 46 (1997) (Because the parent’s rights are deemed ‘paramount’ in permanent custody hearings, parents are to be afforded every procedural and substantive protection under the law.)

State v. Perry, 2004-Ohio-297 (Structural error may only be found in limited circumstances where a constitutional violation has occurred so as to fundamentally affect the structure of the trial.)

In re B.M., 2009-Ohio-4846 (10^th Dist.)( Majority Opinion: When a parent fails to maintain contact with counsel and appear for scheduled hearings the court may infer waiver of the right to counsel after examining the totality of circumstances in the individual case.) (Concurring/Dissenting Opinion, by then Judge French: The record must demonstrate a clear lack of communication by the parent with counsel in order for the withdrawal of counsel to be proper, and the record must show that the mother’s absence made it impossible for counsel to represent her. Without an on-the-record showing, lack of communication or cooperation waiver of counsel cannot be implied.)

At Oral Argument

Arguing Counsel

John W. Keeling, Office of Franklin County Public Defender, for Appellant Mother, A.S.

Robert J. McLauren, Office of Franklin County Children’s Services, for Appellee Franklin County Children’s Services

Mother’s Argument

Under Ohio law, parents have the right to appointed counsel when the state is attempting to permanently terminate their parental rights to their children. This case presents the issue of the proper legal standard to apply to a waiver of this right to counsel when the parent fails to appear at the trial. Ohio courts have applied different standards in these cases. Some have held the failure of the client to appear must be considered with all the circumstances of the case before waiver of the right to counsel can be inferred. Other courts have gone farther and imposed a duty on the trial court to make specific inquiries and findings before inferring a waiver of counsel when the client does not appear. This case represents the lowest standard of waiver seen in any Ohio court. The standard of waiver in this case was essentially the client failed to appear, and that was enough to allow the attorney to withdraw.

The only thing the mother’s lawyer did at the hearing was tell the court he had written his client a letter advising her of the court date, and that if she did not appear, the court would probably go forward without her, and that he would seek leave to withdraw. He said his client responded to this letter. There is no indication that she failed to cooperate, or that she did not want him to represent her in this termination proceeding. The judge made no attempt at any inquiry about what the client wanted. The minimum standard here should be what Justice French wrote in her separate opinion in In Re B.M. when she was on the Tenth District Court of Appeals.

A client not being present must not be equated with waiver of counsel. Counsel has an ongoing duty of representation. A lawyer must still represent his or her client to the best of that lawyer’s ability. There is absolutely no evidence in this record that the mother failed to communicate or cooperate with counsel in this case. The mother in this case is entitled to another permanent custody hearing in which she is properly represented.

Franklin County Children’s Services Argument

Due to the mother’s lack of communication and lack of cooperation with her lawyer, and her failure to attend the hearing, the trial court did not abuse its discretion in granting trial counsel’s request to withdraw. Counsel gave a statement discussing his challenges with cooperation and communication. By not appearing and not cooperating and communicating properly with her lawyer, the mother waived counsel implicitly.

While the mother claims on appeal that she was in the hospital at the time, and had informed her probation officer that she could not make the hearing, no one knew that at the time. There is nothing in the record to support that. Had the mother been cooperating with her lawyer, he would have asked for a continuance and tried to make sure she was at the hearing.

Even if the trial had gone forward without the mother, it would have had the same outcome. No subpoenas were issued and the testimony would have been the same. So if there is error here it is harmless.

In this case the mother had notice of this hearing date, and personally signed the last continuance entry with the date of this hearing. If a person know the hearing date and doesn’t attend the hearing, that shows a lack of interest in the proceeding.

What Was On Their Minds

Communication and Cooperation

Hadn’t there been difficulty with the client and the attorney relationship, asked Justice O’Donnell? Didn’t the appeals court find the lawyer had difficulty with communication? He went on to comment that the appellate court said there was an implicit waiver because the client had received a letter, was told the lawyer intended to withdraw if she did not appear, and she acknowledged receipt of the letter, and then she wasn’t there. (Mother’s lawyer pushed back on this.) Did the mother ever contact counsel after the hearing was over?

What’s the level of communication and cooperation that is the bare minimum to guard against waiver, asked Chief Justice O’Connor?

What Happened at the Trial Court

Did the mother’s lawyer stay in the courtroom, asked Chief Justice O’Connor? Was there any rationale for that, to stay in the courtroom? At what point was the waiver declared and the lawyer was released of his responsibility? Was the attorney asked about communication and cooperation? Was the probation officer there? (answer:no)

Last year this court wrote that “when reviewing a waiver of right to counsel in the context of a permanent termination of parental rights, courts in Ohio must examine whether the waiver was knowingly, intelligently, and voluntarily made,” commented Justice Fischer. Where in the record does it show knowing, intelligent, and voluntary?

Counsel’s Responsibility

Counsel didn’t need his client there to proceed as her attorney, did he, asked Chief Justice O’Connor?

What is a trial attorney to do when he or she appears before a tribunal without a client, asked Justice O’Donnell? Can counsel not ask to withdraw?

Why did the lawyer withdraw, asked Justice O’Neill?

Trial counsel never asked for a continuance, asked Justice Fischer?

Level of Inquiry From the Trial Court

What should the court write to provide guidance to the trial courts in this kind of a situation, asked Justice French? Later, she commented that the difficulty she was having was how little was known because of the lack of any inquiry, such as do you know where you client is; are you able to go forward?

Mother’s Actions

Was the mother in the hospital that day, asked Justice O’Neill? Would it not have been helpful had the trial court asked?

Did the mother timely contact her probation officer with regard to the hearing, asked Chief Justice O’Connor? So she thinks she is doing what she needs to do by contacting her probation officer? Didn’t she say she contacted someone at the court to let them know she was in the hospital? Did anyone ask about any of this? She did show up for the hearings that were continued? Other than the last one, were there any others where she didn’t appear?

Does the record reflect any visitation or communication between the mother and the child, asked Justice O’Donnell?

Prejudice

Had the mother been present, would anything have been different, asked Justice DeWine? Was there any prejudice here? What kind of standard should the court apply? Are we looking at plain error? Structural error? Harmless error? Assuming we think the judge should have done more before he allowed counsel to withdraw, where do we go from there?

Due Process

Any right to counsel is just statutory here, not Constitutional, isn’t it, asked Justice DeWine? Hasn’t the U.S. Supreme Court held that there is not a right to counsel in every parental termination case?

Justice O’Neill commented that although he may be in a minority, he had written that “termination of parental rights is the civil equivalent to a capital punishment case.” Mother’s counsel replied that he was aware of that quote.

What would be the downside of just saying to the trial courts in this situation, you need to have an on-the-record discussion with counsel about past communication with the client, whether counsel could go forward without the client, what is the downside of just requiring that, asked Justice French?

If we affirm this case is the Supreme Court of Ohio now saying that in a permanent custody hearing when you are about to lose your children, if you don’t show up you are deemed to have waived your right to counsel, mused Justice O’Neill. Is that what we can write from this fact pattern?

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a win for the mother. There seemed to be little doubt, except to Justice O’Donnell, that what happened here was woefully inadequate, both by the mother’s counsel and the trial court, especially with such a crucial matter as a permanent custody hearing. And it sounds like the mother tried, although the record apparently doesn’t sound like it substantiates much.

Justices O’Neill, French, Fischer, and Chief Justice O’Connor certainly seem ready to go with the mother and order another hearing. Justice DeWine seems to agree that what happened was inadequate, but may find a lack of prejudice.  I think the court is going to adopt then Judge French’s position in In Re BM (when the mother’s lawyer said he liked that test, she smiled and agreed) which is essentially that the record must demonstrate a clear lack of communication by the parent with counsel in order for the withdrawal of counsel to be proper, and must show that the mother’s absence made it impossible for counsel to represent her. Without an on-the-record showing, lack of communication or cooperation waiver of counsel cannot be implied. The record in this case fell far short of that.

To Student Contributor Paul Taske

This looks like a win for the appellant. During appellant’s argument only Justice O’Donnell seemed averse to the arguments presented. Justice French seemed to sympathize with the plight of the mother and appreciated the praise for her decision in In re B.M. Appellee, almost right out of the gate, was peppered by questions. Chief Justice O’Connor and Justice O’Neill seemed particularly troubled by the idea that failing to appear for a hearing would result in waiver of counsel. It seems likely that this unease will sway a majority of the court to grant a new trial and possibly institute the standard articulated by then-judge French in In re B.M.