[Cite as In re Adoption of M.M.F., 2019-Ohio-448.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
IN THE MATTER OF                                     :       Hon. W. Scott Gwin, P.J.
THE ADOPTION OF:                                     :       Hon. Patricia A. Delaney, J.
M.M.F.                                               :       Hon. Craig R. Baldwin, J.
                                                     :
                                                     :
                                                     :       Case No. 18 CAF 09 0069
                                                     :
                                                     :
                                                     :       OPINION




CHARACTER OF PROCEEDING:                                 Appeal from the Delaware County Probate
                                                         Court, Case No. 1804 0364 PAD

JUDGMENT:                                                Affirmed



DATE OF JUDGMENT ENTRY:                                  February 8, 2019

APPEARANCES:

For Respondent-Appellant                                 For Respondent-Appellant

STACI K. THOMAS                                          WILLIAM H. FRASER
Legal Aid of Columbus                                    Legal Aid of Columbus
150 Oak Street                                           1108 City Park Ave., 2nd Fl.
Marion, OH 43302                                         Columbus, OH 43206

For: Petitioners-Appellees
DIRKEN WINKLER
Winkler Legal Services
490 City Park Ave.
Columbus, OH 3215
[Cite as In re Adoption of M.M.F., 2019-Ohio-448.]


Gwin, P.J.

        {¶1}    Appellant appeals the August 27, 2018 judgment entry of the Delaware

County Probate Court denying her request for appointment of counsel.

                                          Facts & Procedural History

        {¶2}    Appellant E.S. is the biological mother (“Mother”) of M.M.F and Y.E.F., both

born on September 3, 2014. In May of 2015, appellees C.F. and D.F., the children’s aunt

and uncle, filed a complaint for the allocation of parental rights and responsibilities with

the Delaware County Juvenile Court against appellant and R.H., the biological father

(“Father”) of the children.          Appellees obtained temporary custody of the children.

Subsequently, in September of 2016, appellant, R.H., and appellees entered into an

agreed judgment entry in the Delaware County Juvenile Court.              Pursuant to the

agreement, appellees were granted legal custody of the children and appellant and Father

would have parenting time with the children, as each could agree with appellees. The

parties agreed neither appellant nor Father would be required to pay child support.

        {¶3}    On April 4, 2018, appellees filed a petition for adoption of minor for each

M.M.F. and Y.E.F. with the Delaware County Probate Court. Appellees alleged in their

petition that the consent of appellant and Father was not required because each parent

has failed without justifiable cause to provide more than de minimis contact with the

minors for a period of at least one year immediately preceding the filing of the adoption

petition or the placement of the minors in the home of the petitioners and/or each parent

failed without justifiable cause to provide for the maintenance and support of the minors

as required by law or judicial decree for a period of at least one year immediately
Delaware County, Case No. 18 CAF 09 0069                                                  3


preceding the filing of the adoption petition or the placement of the minors in the home of

petitioners.

       {¶4}    The trial court scheduled a hearing on the petitions filed by appellees for

August 29, 2018. Appellant received her notice of hearing on the petitions for adoption

on April 19, 2018 and Father received his notice on April 23, 2018. Father filed a written

response opposing the adoption on May 2, 2018. On May 3, 2018, the trial court issued

a judgment entry changing the hearing on August 29th to a consent-only hearing.

       {¶5}    On August 22, 2018, appellant filed an affidavit of indigency and request for

appointment of counsel. Appellant asserts she is not able to afford to retain an attorney

because her household gross income is below the federal poverty level. Further, that she

needs an attorney to help her understand the procedures that apply, the rules of evidence,

and the legal issues and possible defenses. Appellant states she would like to present

her defenses, but does not know exactly how to proceed without an attorney to help her.

Further, that she does not understand how to present evidence properly or cross-examine

witnesses. Appellant argues due process and equal protection requires appointment of

counsel. Appellant attached to her motion a 2006 decision by the Franklin County

Probate Court finding indigent parents in contested adoption proceedings are entitled to

appointed counsel.

       {¶6}    The trial court issued a judgment entry on August 27, 2018 denying

appellant’s request for appointment of counsel. The trial court applied the Mathews v.

Eldrige test to appellant’s claim that her due process rights would be violated without

appointment of counsel and found, upon a balancing of the factors, that the process due

to appellant does not include the appointment of counsel, especially since she will not
Delaware County, Case No. 18 CAF 09 0069                                                      4


lose her personal freedom if counsel is not appointed. The trial court further noted that

appellant did not allege the denial of notice or the denial of the opportunity to be heard.

       {¶7}     As to appellant’s argument that equal protection of the law requires her to

have appointed counsel, the trial court cited the J.R.F. case and found the same

reasoning as in J.R.F. applies in this case. Specifically, that appellant does not cite any

decision from the Fifth District Court of Appeals or the Supreme Court in support of her

position. The trial court also cited this Court’s decision in I.M.M. and found the case law

cited by appellant, a Franklin County Probate Court decision, is not mandatory authority

in this case.

       {¶8}     The trial court held a hearing on August 29, 2018. The magistrate stated

the purpose of the hearing was to consider whether the consents of appellant and Father

are required for the adoption.      At the start of the hearing, the magistrate informed

appellant that her request for appointed counsel was denied. The magistrate then asked

appellant, “are you prepared to proceed today,” and appellant responded “Yes, Yes, Your

Honor.” The magistrate, appellees’ attorney, and appellant discussed how a zero-sum

child support order, as opposed to an order leaving the child support number blank, may

affect the proceedings, and the magistrate determined it was necessary to obtain

additional information such as the original agreed judgment entry that was filed and

docketed with the juvenile court. The magistrate stated he would take testimony on the

issue of support, but recognized he would not consider the testimony if, after the additional

information was provided, there is found to be a zero support order.

       {¶9}     Appellees called appellant on cross-examination. Appellant testified to

when she spoke to appellees and when she saw or sent gifts to the children. C.F. testified
Delaware County, Case No. 18 CAF 09 0069                                                 5


on direct examination. Appellant questioned C.F. on cross-examination. D.F. testified on

direct examination. Appellant cross-examined D.F. At the conclusion of her cross-

examination of D.F., appellant asked the magistrate, “When you asked me, would you

like to continue, would that have been my time to ask for a continuance?” The magistrate

responded, “Yes.” Appellant stated the purpose of the continuance would be “to possibly

get an attorney. Because I am not sure how court works. I have never been in trouble

before * * * Because maybe I should get an attorney, because I don’t know how to cross-

examine. I’m not an attorney.” Subsequently, D.F. testified on re-direct examination and

appellees rested their case on the issue of consent.

      {¶10} At the conclusion of the hearing, the trial court continued further hearing of

the case to September 12, 2018. The trial court issued a judgment entry on August 30,

2018, stating that “because of the late hour of the day, and because further hearing is

required to permit the mother the opportunity to present her case with regard to whether

her consent is required for the adoptions, a further hearing is required.” Mother filed her

notice of appeal on September 10, 2018.

      {¶11} Appellant appeals the August 27, 2018 judgment entry of the Delaware

County Probate Court and assigns the following as error:

      {¶12} “I. THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY FILED

AUGUST 27, 2018, BY DENYING APPELLANT’S REQUEST FOR APPOINTED

COUNSEL TO REPRESENT HER IN PROCEEDINGS ON THE PETITION TO

TERMINATE HER PARENTAL RIGHTS BY ADOPTION OF HER CHILDREN.”
Delaware County, Case No. 18 CAF 09 0069                                                    6

                                           Due Process

       {¶13} Appellant first argues the trial court violated her right to due process under

the Ohio and U.S. Constitutions by denying her request for appointed counsel. This Court

has previously held that “there is no right to the appointment of counsel in the context of

adoption.” In the Matter of the Adoption of I.M.M., 5th Dist. Ashland No. 16 COA 081,

2016-Ohio-5891; In the Matter of the Adoption of J.L.M.-L., 5th Dist. Muskingum No.

CT2016-0030, 2017-Ohio-61, appeal not allowed by In re Adoption of J.L.M.-L., 148 Ohio

St.3d 1446, 2017-Ohio-1427, 72 N.E.3d 658.

       {¶14} In our opinions, we cited to cases holding that a civil litigant does not have

the right to appointed counsel because there is no state action in a privately-initiated

adoption. Id., citing In re Adoption of Drake, 12th Dist. Clermont No. CA2002-08-067,

2003-Ohio-510 (holding the state’s action in removing a child from the home did not

transform a later adoption petition into one involving state action); see also In the Matter

of the Adoption of M.C., 4th Dist. Jackson Nos. 11CA5, 11CA6, 2011-Ohio-6527, appeal

not allowed by In re Adoption of M.C., 131 Ohio St.3d 1476, 2012-Ohio-896, 962 N.E.2d

805 (holding the Fourteenth Amendment provides protection against governmental, not

private action, and a private party filed the adoption petition in the case); In the Matter of

R.M.T., 12th Dist. Warren No. CA2017-12-178, 2018-Ohio-1691 (finding no error in the

denial of appointed counsel because the case was initiated by a step-parent seeking

adoption of a child, not by the state); Angus v. Angus, 10th Dist. Franklin Nos. 14AP-22,

14AP-159, 2014-Ohio-4225, appeal not allowed by Angus v. Angus, 142 Ohio St.3d 122,

2015-Ohio-1353, 28 N.E.3d 122 (holding that because the state was not the initiating
Delaware County, Case No. 18 CAF 09 0069                                                       7


party in the deprivation of parental rights, there is no statutory or constitutional right to

counsel in a parentage dispute between individual parties).

       {¶15} In this case, appellees received legal custody of the minor children via an

agreed judgment entry between appellees, appellant, and Father after appellees, private

parties, filed a complaint for the allocation of parental rights and responsibilities in juvenile

court. Appellees, private parties, filed petitions for adoption in this case. Thus, appellant’s

due process right were not violated.

       {¶16} Alternatively, we find the trial court did not err in weighing the Mathews v.

Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), factors in concluding

appellant’s due process rights were not violated. Pursuant to the test in Mathews, in order

to determine whether parental due process rights have been infringed, the court must

consider and weigh: (1) the private interest affected; (2) the risk of erroneous deprivation

and the probable value of additional safeguards; and (3) the governmental burden of

additional safeguards. Id. These factors are then balanced against the presumption that

there is a right to appointed counsel only where the indigent, if he or she is unsuccessful,

may lose his or her personal freedom. Id.; In the Matter of L.C.C., 10th Dist. Franklin No.

18AP-167, 2018-Ohio-4617; In the Matter of J.R.F., 4th Dist. Vinton No. 16CA701, 2017-

Ohio-8125, appeal not allowed by In re J.R.F., 151 Ohio St.3d 1515, 2018-Ohio-365, 90

N.E.3d 952 (2018).

       {¶17} Appellant has a strong fundamental interest at stake in the adoption

proceeding. However, the risk of an erroneous deprivation of those interests is minimal,

as the Ohio General Assembly has instituted Chapter 3107 of the Revised Code

containing procedures in an adoption case and the Ohio Supreme Court has previously
Delaware County, Case No. 18 CAF 09 0069                                                   8


stated the procedures currently in place under Ohio law adequately protect a biological

parents’ constitutionally protected rights. In re Adoption of Zschach, 75 Ohio St.3d 648,

665 N.E.2d 1070 (1996). The government’s burden would increase due to the fiscal and

administrative burdens of appointing counsel. There is no presumption of the right to

appointed counsel in this case because appellant will not lose her personal freedom or

physical liberty if she is unsuccessful.

       {¶18} This Court has previously held that, in lieu of appointing counsel, other, less-

burdensome procedural safeguards have been used to protect parental rights. In the

Matter of the Adoption of I.M.M., 5th Dist. Ashland No. 16 COA 081, 2016-Ohio-5891.

For example, the use of depositions, affidavits, and telephonic participation can be used

to satisfy due process in certain situations. Id. Further, we have held that when a parent

is present at a private adoption hearing and is able to meaningfully participate, the parent

is not denied due process. Id.

       {¶19} In this case, appellant had a meaningful opportunity to be heard in a

meaningful manner.      Appellant received notice of the hearing and appeared at the

hearing. At the beginning of the hearing, when the trial court informed appellant her

request for appointed counsel was denied, appellant confirmed to the trial court that she

was prepared to proceed. Appellant confirmed she received notice of the hearing and

understood that the purpose of the hearing was to determine whether her consent to the

adoption was required. Appellant testified under cross-examination. Appellant was able

to cross-examine both C.F. and D.F. The magistrate noted he needed more information

regarding the zero support order and informed the parties that while he would take

testimony on the issue of support, if a zero support order was entered, he would not
Delaware County, Case No. 18 CAF 09 0069                                                   9


consider the testimony in his decision. Prior to appellant presenting her case and when

appellant asked for a continuance to obtain counsel, the magistrate continued the

hearing. The issue of consent in this case involves the conflicting testimony of appellant

and appellees. Appellant was able to cross-examine both D.F. and C.F., and can provide

her own testimony and evidence when she presents her case.                The case is not

exceedingly complex and does not involve expert medical or psychiatric testimony. See

In the Matter of J.R.F., 4th Dist. Vinton No. 16CA701, 2017-Ohio-8125, appeal not

allowed by In re J.R.F., 151 Ohio St.3d 1515, 2018-Ohio-365, 90 N.E.3d 952 (2018).

       {¶20} Accordingly, we find the trial court did not err in finding appellant’s interest

did not outweigh the remaining factors considering the lack of presumption of the right to

appointed counsel because appellant will not lose her personal freedom or physical liberty

if she is unsuccessful.

                                         Equal Protection

       {¶21} Appellant next contends the trial court violated her right to equal protection

of the law guaranteed by the Fourteenth Amendment to the U.S. Constitution and Article

I, Section 2 of the Ohio Constitution in failing to appoint legal counsel to represent her in

the adoption proceedings. Appellant argues an indigent biological parent facing the loss

of parental rights in a contested private adoption in probate court is in the same position

as an indigent biological parent facing the loss of parental rights in an abuse, neglect, and

dependency case initiated by the state in juvenile court under R.C. 2151.353. Appellant

contends because R.C. 2151.353(C) requires appointment of legal counsel to indigent

parents, the Equal Protection Clause requires appointment of legal counsel, at the state’s

expense, to indigent parents in private adoption proceedings.
Delaware County, Case No. 18 CAF 09 0069                                                   10


       {¶22} As discussed above, this Court has previously held that there is no right to

the appointment of counsel in the context of adoption and cited, as part of our reasoning,

cases holding that because the state was not the initiating party in the deprivation of

parental rights, there is no constitutional right to counsel in a private adoption proceeding.

Similarly, we find no Equal Protection violation in this case because a private party filed

the adoption petition in this case. The Equal Protection Clause provides protection

against governmental, not private, action. Edmonson v. Leesville Concrete Co., 500 U.S.

614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (holding state action is a precondition of

invoking the equal protection clause).

       {¶23} Further, “equal protection of the laws” means that “all persons similarly

situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). An equal protection claim arises only in the

context of an unconstitutional classification made by a state, i.e. when similarly situated

individuals are treated differently. Conley v. Shearer, 64 Ohio St.3d 284, 288–289, 595

N.E.2d 862 (1992).

       {¶24} As we previously recognized in J.L.M.-L., adoption and permanent custody

are “distinct concepts under Ohio law” In re Adoption of J.L.M.-L., 148 Ohio St.3d 1446,

2017-Ohio-1427, 72 N.E.3d 658. The concepts of adoption and permanent custody are

each contained within different statutes with different purposes and each with different

tests involved before a court can grant them. Thus, biological parents in adoption actions

and permanent custody actions are not “similarly situated individuals [that] are treated

differently.”
Delaware County, Case No. 18 CAF 09 0069                                                11


       {¶25} Additionally, as stated by the Tenth and Fourth Districts, there are no cases

holding Ohio’s adoption laws violate equal protection because they treat similarly situated

parents in private adoption proceedings differently than parents in state-initiated child

custody proceedings with respect to the right of court-appointed counsel. In the Matter

of L.C.C., 10th Dist. Franklin No. 18AP-167, 2018-Ohio-4617; In the Matter of J.R.F., 4th

Dist. Vinton No. 16CA701, 2017-Ohio-8125, appeal not allowed by In re J.R.F., 151 Ohio

St.3d 1515, 2018-Ohio-365, 90 N.E.3d 952 (2018); In the Matter of J.M.P., 4th Dist. Vinton

No. 15CA702, 2017-Ohio-8126, appeal not allowed by In re J.M.P., 151 Ohio St.3d 1515,

2018-Ohio-365, 90 N.E.3d 953. The Ohio Supreme Court declined jurisdiction in both In

the Matter of J.R.F and In the Matter of J.M.P, and in both cases the appellants argued

an indigent natural parent respondent to an adoption petition has a constitutional right to

appointed counsel pursuant to the Due Process and Equal Protection Clauses.

                                    Probate Court Authority

       {¶26} In her last argument, appellant contends probate courts have the authority

to appoint counsel to represent indigent parents and that the Ohio Legislature cannot

direct Ohio courts to conduct adoption hearings and then require those courts conduct

those hearings in a way that violates Due Process or Equal Protection Clauses. Because

we determined, supra, that the trial court did not violate appellant’s right to due process

or equal protection, we also find this argument to be not well-taken.
Delaware County, Case No. 18 CAF 09 0069                                             12


       {¶27} Based on the foregoing, appellant’s assignment of error is overruled.

       {¶28} The August 27, 2018 judgment entry of the Delaware County Probate Court

is affirmed.


By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
