“In a case in which we are asked to ratify the civil equivalent of the death penalty, we simply cannot accept absence as acquiesce.”

Justice O’Neill, lead opinion.

On January 4, 2018, the Supreme Court of Ohio handed down a merit decision in In re R.K., 2018-Ohio-23. In the lead opinion, written by Justice O’Neill and joined in full only by Chief Justice O’Connor, the court held that when the state seeks to terminate parental rights, the parent has the right to counsel, and cannot be deprived of that right unless it has been knowingly waived. Such a waiver cannot be inferred merely by the unexplained failure of the parent to appear at a hearing.  Justice French concurred in the syllabus and judgment only, with an opinion joined by Justice Kennedy.  Justice Fischer concurred in judgment only.  Justice O’Donnell dissented, joined by Justice DeWine.  The case was argued September 13, 2017.

Case Background

Franklin County Children’s Services (“FCCS”) sought permanent custody of R.K. A permanent-custody hearing was scheduled the morning of July 11, 2016 in the Franklin County Juvenile Court.  A.S., who is R.K.’s mother, was not present when the hearing started. Her lawyer stated that he had told A.S. about the hearing, and did not know why she wasn’t there. The lawyer sought leave to withdraw as counsel, which was granted, although the judge asked the lawyer to remain in the courtroom in case A.S. appeared, and the lawyer could be available for reappointment.  The lawyer agreed to do so, but did not participate in the hearing except to reserve the right to cross-examine witnesses if A.S. appeared.  A.S. did not appear, and the hearing continued without her, and without her being represented by counsel. The court granted permanent custody of R.K. to FCCS. A.S. appealed. In a split decision, the Tenth District affirmed.

Read the oral argument here and the analysis 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.)

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.)

In re Sadie R., 2005-Ohio-325 (6th Dist.) (Before allowing a parent’s attorney to withdraw, the court must make two inquiries: first, were counsel’s attempts to communicate with, and obtain the cooperation of, the parent reasonable; and second, was the client’s lack of communication with the attorney so lacking as to prevent counsel from ascertaining the parent’s wishes.)

In re C.H., 2005-Ohio-4183 (10^th Dist.) (The court is permitted to infer that a parent has waived his or her right to counsel and may grant counsel’s request to withdraw. However, before the court ascertains whether waiver is present, the court must take into account the totality of the circumstances of a given case. Some factors to consider include the background, experience, and conduct of the parent.)

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. Without an on-the-record showing lack of communication or cooperation waiver of counsel cannot be implied.)

Merit Decision

Analysis

Although this is a fractured opinion, with only the Chief joining the lead opinion in full, Justices French and Kennedy also agree that the trial court erred when it allowed the lawyer for A.S. to withdraw and then proceed with a permanent custody hearing without A.S. being present. And there are five votes in support of the judgment, which is to reverse the appeals court and send the case back to the juvenile court for a new permanent custody hearing. The syllabus (an increasingly rare occurrence) sums it all up.  See below.

Lead Opinion

When an opinion begins with the quote (which Justice O’Neill also mentioned at oral argument) that “this court has previously likened the termination of one’s parental rights to the family-law equivalent of the death penalty,” things aren’t going to go well for the state.

Some fundamentals. A parent has a statutory right to counsel at a permanent-custody hearing, including appointed counsel if the parent is indigent. That right can be waived. O’Neill sees the key question in the case as whether A.S. waived her right to counsel when she did not appear at the final hearing.  A.S. claimed she was in a hospital for an emergency at the time of the final hearing, and that she tried to contact the court, but could not.

What’s in the Record?

A.S. was sent notice of the final hearing, her lawyer told her by letter she had to appear, and she “responded” to the letter. At the hearing the lawyer told the court that he had told his client that if she did not appear the court would probably go forward without her, and he would ask to withdraw.

Court’s Inadequacy at the Hearing

The court did not inquiry as to A.S.’s whereabouts, why she was not present, her past relationship with her lawyer, or the substance of her response to her lawyer about the hearing.

“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,” wrote O’Neill.

“Absence is Not Acquiescence”

The better option under the circumstances presented here would have been to deny the motion to withdraw, and have the lawyer represent his client’s interests as best he could, given his obligation to protect the rights of his client. That did not happen. Neither the court nor A.S.’s lawyer performed their obligations appropriately.

Bottom Line

A.S. was improperly denied her right to counsel. The Court of Appeals is reversed and the case remanded to the juvenile court for a new permanent custody hearing.

Case Syllabus

When the state seeks to terminate a parent’s parental rights, the parent has the right to counsel. The parent cannot be deprived of that right unless the court finds that the parent has knowingly waived the right to counsel. Waiver of counsel cannot be inferred from the unexplained failure of the parent to appear at a hearing.

Justice French’s Position

Justice French’s position is very similar to the one she took in the dissenting portion of her opinion in In re B.M.

While French agreed that the trial court erred in allowing the attorney to withdraw and to proceed with the hearing when A.S. did not appear, and also agreed that the key question was whether A.S. had waived her right to counsel, she would find that counsel’s ability to ascertain his client’s wishes and attempts to communicate with her are not the only relevant factors in determining whether A.S. had waived her right to counsel.

While French agrees that a court may infer a waiver of counsel when a parent fails to maintain contact with counsel, fails to appear at hearings despite receiving notice of those hearings, and fails to cooperate with the court and counsel, she approves the approach taken in the Tenth District (her old court) requiring the court to take into account the totality of the circumstances in determining waiver, including the parent’s background, experience, and conduct. The court should have an on-the-record discussion of these factors.

“Here, the trial court’s inquiry fell far short of these parameters. The trial court did not consider A.S.’s background, experience or conduct throughout this case. In fact, the trial court did not address the question of waiver at all; it did not make a finding that A.S. explicitly waived her right to counsel, and it did not expressly consider whether there were sufficient facts to warrant the inference that A.S. had waived that right,” French wrote.

What was lacking here was the substance of A.S.’s response to her lawyer about the hearing, whether he knew her wishes with respect to the permanent-custody hearing, or whether he could competently represent her in her absence.  Further, the lawyer’s statement that A.S. responded to his letter about the permanent-custody hearing within a week of sending it does not demonstrate a lack of cooperation. In fact, except for a single review hearing when A.S. was in jail, A.S. appeared regularly at all hearings, with counsel.  The record also showed some progress in working toward reunification.

In short, French faults the trial court and the appeals court majority for basing their decisions solely on A.S.’s absence from the permanent-custody hearing. “Looking to the totality of the circumstances, I conclude that the record does not support the trial court’s implicit finding that A.S. waived her right to counsel, French wrote.”

Justice Kennedy joined this opinion.

Justice O’Donnell’s Dissent

To Justice O’Donnell, the circumstances of the case demonstrated that A.S. waived her right to counsel.  She got notice of the permanent-custody hearing and a directive that she had to be present and if she failed to attend, the court would likely go forward without her, and her lawyer would ask for permission to withdraw. Despite this, she did not appear or attempt to contact the court or her lawyer as to why she couldn’t be there.  End of story. Justice DeWine agreed.

Concluding Observations

Student Contributor Paul Taske and I both correctly called this for the mother, A.S.

Here’s what I wrote after argument:

“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.”