On May 11, 2022, the Supreme Court of Ohio will hear oral argument in In Re J.H., et al. A Minor Child (Appeal by A.H., Mother), 2021-0533. At issue in this case is whether a juvenile court improperly denied a pro se, indigent mother instituting child reunification proceedings her right to appointed counsel and whether the court failed to properly inquire into her waiver of that right.

Case Background

Mother has two children: K.M. and J.H. Although K.M. previously lived with Mother, J.H. has never lived with her, nor have the brothers ever lived together. Both children have lived with other relatives for most of their lives. In 2015, Mother filed a motion requesting the juvenile court to place the children in her custody or, alternatively, be granted additional visitation rights. Mother requested an attorney but was instead appointed a guardian ad litem (“GAL”). That initial GAL withdrew citing conflicts of interest, and a new GAL was appointed. The court again did not appoint independent counsel, either for Mother or the children. For four years, Mother’s claims were heard before a magistrate of the juvenile court. Throughout this process, Mother’s rights as to her children were continuously litigated, denied, and/or modified.

Relevant to this appeal is an October 2019 hearing before the magistrate. In her pro se request for the October 2019 hearing, Mother did not request an attorney as she had on other occasions. Mother and her GAL were both present at the hearing, and the magistrate did not appoint her counsel. After this hearing, the magistrate further amended Mother’s visitation rights and obligations as to child J.H. Mother filed objections to the magistrate’s decision but the juvenile court overruled the objections and affirmed the decision. Mother then appealed the juvenile court’s decision to the Eighth District arguing that it was plain error to fail to secure a waiver of the right to counsel and to fail to ensure Mother received due process and a fair hearing. Mother did not file the transcript of the October 2019 proceedings on appeal.

The Appeal

In a 2-1 decision, the Eighth District Court of Appeals affirmed the lower courts’ decisions. The majority opinion was authored by Larry A. Jones, Sr. and joined by Judge Lisa B. Forbes. Judge Mary Eileen Kilbane dissented.

Although Mother raises issues with the entire juvenile proceedings, this appeal is narrowly concerned with the failure to appoint counsel argument. Yet, Mother did not raise that issue with the trial court and thus, she is subject to a plain error standard of review. Appellate review is further constrained because Mother did not provide the transcript from the October 2019 hearing. Therefore, the court cannot assess the accuracy of Mother’s claims that she requested counsel at the hearing, that she thought her GAL was operating as her attorney, or that the magistrate failed to inquire into her competency. When no transcript is provided, appellate courts presume regularity of the proceedings.

In dissent, Judge Kilbane argued that the record reflected Mother’s request for trial counsel and she would reverse and remand for the appointment of counsel. Mother appealed.

Key Statutes and Precedent

Ohio Constitution, Article I, Section 16 (“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”)

Ohio Juvenile Rule 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. These rights shall arise when a person becomes a party to a juvenile court proceeding. This rule shall not be construed to provide for a right to appointed counsel in cases in which that right is not otherwise provided for by constitution or statute.”)

R.C. 2151.352 (A child or the child’s parents [. . .] is entitled to representation by legal counsel at all stages of the proceedings [. . .] and if, as an indigent person, any such person is unable to employ counsel, to have counsel provided for the person pursuant to Chapter 120 of the Revised Code. If a party appears without counsel, the court shall ascertain whether the party knows of the party’s right to counsel and of the party’s right to be provided with counsel if the party is an indigent person. The court may continue the case to enable a party to obtain counsel or to be represented by the county public defender or the joint county public defender and shall provide counsel upon request pursuant to Chapter 120. of the Revised Code.)

Mathews v. Eldridge, 424 U.S. 319 (1976) (procedural due process is satisfied when: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.)

State ex rel. Heller v. Miller, 61 Ohio St.2d 6 (1980) (“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.”)

Tibbitts v. Tibbitts, 2011-Ohio-5280 (8^th Dist.) (“It is the appellant’s duty to file a transcript for appellate review. In the absence of a transcript, we must presume regularity at the trial court proceedings.”)

In re M. Children, 2019-Ohio-484 (1^st Dist.) (reversing juvenile court decision because magistrate failed to adequately determine if mother was competent to waive right to counsel.)

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices Brunner, Donnelly, Fischer, and Stewart

No: Justices DeWine and Kennedy

Mother’s First Proposition of Law Accepted for Review

Hearings where a change of custody and visitation are at issue a parent does not need to show prejudice by pointing to the transcript of the proceedings to support a reversal on appeal when the juvenile court fails to appoint legal counsel when required by law that very fact itself demonstrates plain error on the record.

Mother’s Second Proposition of Law Accepted for Review

An Appellate Court errs when it fails to find the trial court committed plain errors, and omissions in failing to secure a waiver in open court showing that the parent’s right to counsel was knowingly, voluntarily and intelligently entered, as well as ensuring the parent received due process of law and a fair and adequate hearing.

Mother’s Argument

Pro se litigants pose serious efficiency, effectiveness, and logistical concerns for Ohio’s judicial system. The impacts of these concerns are borne by judges, court personnel, attorneys, opposing parties, and have a disproportionate impact on poor and minority Ohioans. Failure to appoint counsel, especially for an indigent parent such as Mother, not only deprives her of statutory and constitutional due process protections, but also further exacerbates these issues. For two reasons, this Court should reverse the Eighth District’s opinion.

First, although Mother was appointed a GAL, simply appointing a GAL is not enough. What is even more concerning is that Mother’s repeated requests for appointed counsel were ignored. Instead, the juvenile court required her to proceed pro se and assumed she had waived her right to counsel. However, there is a high bar to waiving counsel, it needs to be done knowingly and intelligently. The juvenile court never made that inquiry in this case. Thus, the juvenile court failed to fulfil its mandatory duties under Ohio law. Moreover, this Court has long noted that the Ohio and Federal Constitutions require that indigent parents be provided counsel and a transcript at public expense. This right attaches in the initial proceedings and continues on appeal. And the record is clear that Mother was not afforded this right either. In sum, the juvenile court improperly assumed that Mother knew of her rights and never engaged in the required discussion with her about whether her waiver was done knowingly and voluntarily.

Second, because the magistrate failed to engage Mother in these crucial processes, her due process rights were violated. At a minimum, due process requires procedural safeguards to ensure the proceeding is fundamentally fair. And Mother has a significant private interest at stake in this case—the care and control of her children. In fact, this is one of the most fundamental liberty interests. If Mother would have had the representation of effective counsel that she requested, many, if not all, of the procedural errors made in this case would not have occurred. The plain error standard is satisfied because Mother was not engaged about her right to counsel, it is unclear that she understood she was waiving that right and was deprived due process and a fair hearing.

Mother has come a long way in improving herself and is ready to be more involved with her children’s lives. Had Mother been appointed counsel, she would have been much further along in the reunification process. To remedy these errors, this Court should reverse and remand the case.

Student Contributor: Brandon Bryer