[Cite as In re E.T., 2022-Ohio-3963.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
IN RE: : CASE NO. CA2022-07-011
E.T., et al. : OPINION
11/7/2022
:
:
:
:
APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. 18719; 18720; 18721
Kirsten Knight, for appellant.
David Fierst, for appellee.
Martin P. Votel, Preble County Prosecuting Attorney, and Sean Brinkman, Assistant
Prosecuting Attorney, for Preble County Children Services.
Jill E. Hittle, guardian ad litem.
M. POWELL, P.J.
{¶ 1} Appellant Mother appeals from the decision of the Preble County Juvenile
Court awarding permanent custody of her minor children to appellee Preble County
Department of Job and Family Services (PCDJFS). We find no merit in Mother's
Preble CA2022-07-011
assignment of error, so we affirm.
Factual and Procedural Background
{¶ 2} PCDJFS initially filed a dependency complaint in August 2019 and obtained
temporary custody of Mother's three minor children. That case was dismissed due to
statutory time constraints. In June 2021, PCDJFS refiled the complaint, along with a
request for permanent custody of the children. At Mother's request, and after she had
submitted an affidavit of indigency, the trial court appointed her counsel. The following
September, the trial court filed an entry stating that PCDJFS had decided to pursue only
temporary custody and terminating the appointment of Mother's counsel. The entry noted
that "[t]he parents may petition the Court for reappointment of counsel anytime during the
pendency of the case should they feel it is warranted. They will be required to submit a
current Affidavit of Indigency with their request."
{¶ 3} PCDJFS soon changed its mind on custody. On October 11, 2021, the
agency filed a motion for permanent custody of the children. The next day, the trial court
scheduled an initial hearing on the motion. The scheduling entry stated that the parents
have the right to counsel, including appointed counsel, and that the Juvenile Deputy Clerk
should be contacted to arrange for appointment. Later that month, Mother was served with
a summons, which also stated that she was entitled to court-appointed counsel.
{¶ 4} On November 9, the trial court held an initial permanent custody hearing. An
entry filed by the court a few days later stated that Mother had been present at the hearing,
that the court had notified her of her right to counsel and her right to be appointed counsel,
and that Mother had indicated that she understood. The entry further stated that Mother
had asked the court to appoint counsel for her and that the court had instructed her to
complete a financial affidavit and return it within seven days. The trial court did not hear
from Mother again for several months.
-2-
Preble CA2022-07-011
{¶ 5} In January 2022, a pretrial hearing was held, which Mother did not attend.
The following month, on February 14, a permanent custody dispositional hearing was held.
A couple of hours before the hearing, the court received a phone call from Mother's adult
daughter who said that Mother was on her way to an outpatient rehabilitation facility and
would not attend the hearing. After the trial court announced this at the start of the
dispositional hearing, Father moved for a continuance. The court declined to continue the
hearing.
{¶ 6} Two months after the dispositional hearing, the trial court received a letter
from Mother saying that she had been unable to attend the hearing because she was in the
hospital. Mother asserted in the letter that she should have proper representation by
counsel and should be part of the permanent custody decision. But it was not until June
14, four months after the hearing, that Mother finally submitted the required affidavit of
indigency.
{¶ 7} On June 17, 2022, the trial court granted PCDJFS's motion and awarded the
agency permanent custody of the children.
{¶ 8} Mother appealed.
II. Analysis
{¶ 9} The sole assignment of error alleges:
{¶ 10} THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO
PREBLE COUNTY CHILDREN'S SERVICES BECAUSE THE COURT FAILED TO
PROVIDE COUNSEL TO MOTHER FOR THE PROCEEDING.
{¶ 11} Mother argues that the trial court should have provided her with counsel for
the permanent custody proceeding.
{¶ 12} The "parent-child bond" is "extremely important and when the state attempts
to permanently terminate the relationship between a parent and child, the parent '"must be
-3-
Preble CA2022-07-011
afforded every procedural and substantive protection the law allows."'" In re R.K., 152 Ohio
St.3d 316, 2018-Ohio-23, ¶ 5, quoting In re Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In
re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991). Ohio law provides that "a parent has the
right to counsel at a permanent custody hearing, including the right to appointed counsel if
the parent is indigent." Id., citing R.C. 2151.352 and Juv.R. 4(A). But "the parent generally
must comply with certain procedures to secure counsel." In re M.S., 9th Dist. Summit No.
30164, 2022-Ohio-1579, ¶ 15. "When the parent is notified about the procedures for
obtaining court-appointed counsel but fails to comply with those requirements, the trial court
does not err in failing to appoint counsel." Id., citing In re Careuthers, 9th Dist. Summit No.
20272, 2001 WL 458681, *4 (May 2, 2001). See also In re P.H., 11th Dist. Trumbull No.
2018-T-0093, 2019-Ohio-418, ¶ 29 (concluding that "the [trial] court did not deny [the father]
counsel; [he] failed to accept counsel by not complying with the process by which counsel
is appointed"); In re T.N., 5th Dist. Delaware No. 19 CAF 02 0016, 2019-Ohio-2142, ¶ 20
("Appellant's failure to request counsel prior to November 15 after receiving several notices
of her right to do so, does not support her contention that her due process rights were
violated."); In re Ramsey Children, 102 Ohio App.3d 168, 170 (5th Dist.1995) (concluding
that the mother, who did not make contact with the public defender's office until her children
had been adjudicated, "was not denied her statutory right to counsel * * * but was notified
of her rights and did not pursue them").
{¶ 13} One of the requirements for obtaining appointed counsel is the submission of
an affidavit of indigency. In re E.T., 9th Dist. Summit No. 23017, 2006-Ohio-2413, ¶ 85
("Juvenile court procedures require that one who wishes appointed counsel must complete
an affidavit of indigency with the appropriate court employee."), citing R.C. 2151.314(D). It
follows, then, that if a parent has been notified of the indigency-affidavit requirement but
fails to timely comply, a court is not obligated to appoint counsel, and there is no denial of
-4-
Preble CA2022-07-011
the statutory right to counsel or denial of due process. In re M.S. at ¶ 15; In re T.F., 4th
Dist. Pickaway No. 07CA34, 2008-Ohio-1238; In re E.T. at ¶ 85 ("Where an individual has
been notified of the procedures to be followed in order to obtain appointed counsel, but fails
to make proper and timely application for counsel, as here, there is no denial of the effective
assistance of counsel."). For example, in In re Careuthers the mother contended that the
trial court had erred by holding an adjudicatory and then a dispositional hearing in the
absence of appointed counsel. "Juvenile court procedures," said the appellate court,
"require that one who wishes appointed counsel must complete an affidavit of indigency[.]"
In re Careuthers at *3, citing R.C. 2151.314(D). The mother had failed to submit an affidavit.
The record showed that before the hearings she had been notified of this requirement. She
had been served with a summons stating the procedures to obtain appointed counsel, and
a magistrate decision also stated the procedures. "Where the mother is notified of her
rights, but fails to pursue them," said the court, "she has not been denied her statutory right
to counsel." Id. at *4. "Therefore," the court concluded, "because [the mother] failed to
comply with the established procedures, the trial court was not required to appoint counsel
for her." Id. The case In re T.F. provides another relevant example. There, the father
contended that the trial court had denied him his due process rights by determining the
permanent custody action without his presence and without appointing counsel to represent
him. The record showed that the father had been served with the motion for permanent
custody and a notice of the hearing and that the summons stated how to obtain appointed
counsel. "Ohio courts hold," said the appellate court, "that where a parent is provided notice
of his or her 'right to counsel, but fails to pursue it, [the parent] has not been denied [the]
statutory right to counsel.'" In re T.F. at ¶ 15, quoting In re Williams, 10th Dist. Franklin No.
03AP-1007, 2003-Ohio-678, ¶ 13. The father had been provided notice of his right to
counsel during the proceedings, said the court, "but he never availed himself of that right."
-5-
Preble CA2022-07-011
Id. at ¶ 16. Therefore, the court concluded, the father "was not denied his due process right
to counsel." Id.
{¶ 14} In the present case, the record shows that Mother knew what she needed to
do to obtain court-appointed counsel. Most telling is that she had complied with the
procedures and had been appointed counsel earlier in the case. Even after her first
counsel's appointment was terminated, Mother was told directly and notified several times
of her right to appointed counsel and the procedures that she needed to follow to obtain
court-appointed counsel, including the submission of an affidavit of indigency. The first
notice came in the entry terminating the original appointment of counsel. Then, after
PCDJFS moved for permanent custody, and before the final permanent custody hearing,
Mother was notified several more times. The scheduling entry setting the date of the initial
permanent custody hearing stated that she had the right to be appointed counsel and stated
who she needed to contact to arrange for appointment. And the summons served on
Mother with the permanent custody motion stated that she was entitled to appointed
counsel. In addition, at the initial permanent custody hearing, the trial court told Mother
directly that she had the right to counsel for the proceeding and the right to be appointed
counsel. When Mother asked for an appointment, the court instructed her to submit an
indigency affidavit. As the trial court told it at the dispositional hearing:
On November 9th, the mother appeared. * * * I talked to her
about the need to ask for an attorney immediately if she wanted
one. We were clear that her previous attorney, because I
believe this was a refiled case on the more recent dependency,
technically terminated at the time of that and though that she
was entitled to an attorney on the motion for permanent custody,
again, that was November 9th. I do not believe that we had
seen mom since.
Yet, it was not until four months after the dispositional hearing that Mother finally got around
to filing her affidavit. By then, it was too late. Mother asserts that she did not understand
-6-
Preble CA2022-07-011
that she had to ask for an attorney a second time. But this assertion is plainly belied by the
record.
{¶ 15} As a final matter, though Mother does not expressly assign error to it, we
briefly consider the trial court's decision not to continue the dispositional hearing. A court
"may continue [a] case to enable a party to obtain counsel * * * or to be appointed counsel."
R.C. 2151.353; see also Juv.R. 23. The trial court's decision not to do so here was not an
abuse of discretion. See State v. Unger, 67 Ohio St.2d 65 (1981), syllabus ("The grant or
denial of a continuance is a matter that is entrusted to the broad, sound discretion of the
trial judge.").
{¶ 16} At the start of the dispositional hearing, Father moved for a continuance. In
response, PCDJFS pointed out that Mother had not requested a continuance and no
documentation had been submitted to the court, and argued that "it's her choice whether to
be here or to enter treatment at this time. And her choice not to be here is not a justification
to further set out this hearing." The trial court agreed with the agency:
* * * I'm not going to [grant a continuance] today because I just—
this has been pending. We had service in October. It is
February. * * *
But that's not even the reason, you know, I'm declining to
continue it. It's that it has been two-plus years. The kids need
some closure * * *.
* * * October to January was sufficient time to ask for an
attorney, and frankly it's just a situation we've got to do the best
we can do. And this is the best we can do.
{¶ 17} We note first that PCDJFS is right that Mother never sought a continuance of
the dispositional hearing. When her daughter called the trial court to say that Mother would
not be at the hearing, the daughter did not ask for a continuance. Nor may the telephone
call be construed as a request for a continuance, because the daughter is not an attorney
and may not take such legal action on Mother's behalf. See Cleveland Bar Assn. v.
-7-
Preble CA2022-07-011
CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, ¶ 22 (defining the
unauthorized practice of law). We recognize that Mother had a significant interest in being
represented at the hearing. But it was plainly her own fault that she wasn't. Furthermore,
Mother did not take the necessary steps to obtain representation for four months after the
hearing. We see no abuse of discretion with the trial court's decision to proceed with the
dispositional hearing.
III. Conclusion
{¶ 18} The trial court did not deny Mother her right to counsel; Mother failed to trigger
her right to appointed counsel by not complying with the appointment procedures. Mother
knew that she needed to file an affidavit of indigency to obtain appointed counsel, having
done so before and having been notified of the requirement numerous times. She did not
comply with this requirement until late in the permanent custody proceedings, making her
earlier lack of counsel her own fault. The sole assignment of error is overruled. The trial
court's judgment is affirmed.
HENDRICKSON and BYRNE, JJ., concur.
-8-