       [Cite as In re M Children, 2019-Ohio-484.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




IN RE: THE M CHILDREN                           :   APPEAL NO. C-180564
                                                    TRIAL NO. F12-0001X

                                                :      O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 13, 2019




Jeffrey J. Cutcher, for Appellant Mother,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Lee Slocum, Assistant
Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family
Services,

Raymond T. Faller, Hamilton County Public Defender, and Robert Adam Hardin,
Assistant Public Defender, Guardian ad Litem for N.M. and A.M.
                        OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, JUDGE.

       {¶1}   Mother has appealed from the trial court’s entry granting permanent

custody of her children N.M. and A.M. to the Hamilton County Department of Job

and Family Services (“HCJFS”).

       {¶2}   In three assignments of error, mother argues that the trial court erred

by failing to conduct a sufficient inquiry into her waiver of counsel; that the trial

court erred by allowing counsel to withdraw absent compliance with Loc.Juv.R.

12(D) and absent any request by counsel to withdraw; and that the trial court erred

by allowing counsel to withdraw absent an inquiry into the communication between

counsel and mother.

       {¶3}   Because, under the unique facts of this case, the trial court failed to

conduct a sufficient inquiry to determine whether mother had the necessary

competence to waive her right to counsel, and failed to determine whether mother

had in fact knowingly, voluntarily, and intelligently elected to waive that right, we

reverse its judgment.

                                 Factual Background


       {¶4}   In October 2015, HCJFS filed a complaint seeking temporary custody

of N.M. and A.M. Scott Hoberg was appointed by the court to serve as mother’s

counsel, which he did until February 17, 2016, when James Whitfield entered an

appearance as counsel for mother. N.M. and A.M. were adjudicated dependent, and

in January 2017, a juvenile court magistrate granted temporary custody of the

children to HCJFS.




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        {¶5}   At a motion hearing on May 26, 2017, mother and Whitfield asked the

magistrate to note in an entry that mother desired alternate counsel. The matter was

continued at mother’s request until July 6, 2017, in order for her to obtain new

counsel. The magistrate conducted a motion hearing on July 6, 2017, but mother

failed to appear and no attorney entered an appearance on her behalf.

        {¶6}   In August 2017, HCJFS filed a motion to modify temporary custody to

permanent custody. Erika Dority was appointed to serve as mother’s counsel. A

pretrial hearing took place on October 10, 2017. In an order summarizing that

hearing, the magistrate continued the matter until November 21, 2017, and stated

that:

        [Mother] informed Ms. Dority she had retained counsel but did not

        provide a name. Ms. Dority requested the matter be set for a pre-trial

        for appearance of counsel. This matter, instead, is set for trial. If

        [mother] does not participate in preparing for trial, the court will look

        with favor upon Ms. Dority’s future request to be withdrawn.           If

        counsel is retained, retained counsel must be prepared to go forward

        on the trial date.

        {¶7}   When the parties appeared before the court on November 21, 2017, for

trial, Dority requested another continuance after informing the court that mother

was vacillating between proceeding with retained counsel and appointed counsel,

and that mother had only recently informed Dority of potential witnesses. The

magistrate granted the requested continuance over the objections of HCJFS and the

children’s guardian ad litem.




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       {¶8}   At the next hearing on January 29, 2018, Dority asked the court to

appoint a guardian ad litem for mother because mother had been unable to assist

Dority in preparing a defense and had requested that Dority engage in actions that

Dority deemed unethical and frivolous. The magistrate granted Dority’s request and

again continued the matter, stating “[n]ow I’ll caution [mother] that we’re going

forward the next time, and her rights are going to be protected by Ms. Dority or new

counsel or the Guardian, but we can’t just sit on this case.” The magistrate further

informed mother that “[y]ou’re going to have to assist the folks in preparing a

defense, absent your assistance, I have to proceed with the case. So if you show up

the next time and there hasn’t been ample communication with Ms. Dority, perhaps

you’ll have better luck with this other attorney, an attorney guardian ad litem, but I

can’t just put this case on hold.”    He explained to mother that she would “be

approached by another attorney that will seek information from you. But if [sic] that

doesn’t reduce or eliminate your obligation to use Ms. Dority to your best effect so

that you can have adequate representation.” Robyn Cambron was appointed as

mother’s guardian ad litem.

       {¶9}   The parties next appeared before the court on April 26, 2018. Outside

mother’s presence, Dority told the magistrate that mother had “fired” her on April 9,

and that she had not communicated with mother since that date and was not

prepared for trial. Cambron stated that mother had paid a private attorney—Patrick

Mulligan—to represent her, and that Mulligan had instructed mother to request a

continuance. HCJFS and the children’s guardian ad litem objected to the case being

continued.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} The magistrate conveyed these pretrial discussions to mother. Mother

initially stated that Dority’s statements were not true, explaining that she had not

spoken to Dority in over a month and that Dority would not answer her phone or do

her job. But mother then conceded that she had “fired” Dority, stating, “I fired her

and went yesterday and paid for a new attorney, because I feel like this is my—you

know, this is my life.” The magistrate declined to continue the matter, stating,

“We’re going to proceed today. We will permit Ms. Dority to withdraw, at your

request, and we’ll find out what remedies Mr. Mulligan can pursue on your behalf

once he enters an appearance.” The case then proceeded to trial on HCJFS’s motion

for permanent custody. Mother represented herself. And the guardian ad litem also

participated.

       {¶11} The magistrate granted permanent custody of N.M. and A.M. to

HCJFS. The trial court overruled mother’s objections to the magistrate’s decision

and adopted the decision as its own.

                                  Waiver of Counsel


       {¶12} In her first assignment of error, mother argues that the trial court

erred by failing to conduct a sufficient inquiry regarding her waiver of counsel.

       {¶13} Parental termination cases have been likened to the family-law

equivalent of the death penalty in a criminal case. In re R.K., 152 Ohio St.3d 316,

2018-Ohio-23, 95 N.E.3d 394, ¶ 1. Consequently, “it is critical that the rights of a

parent who faces the permanent termination of parental rights are appropriately

protected.” Id. To ensure protection of these rights, parents have a statutory right to

counsel in parental-termination cases pursuant to R.C. 2151.352 and Juv.R. 4. Id.; In

re W.W.E., 2016-Ohio-4552, 67 N.E.3d 159, ¶ 25-26 (10th Dist.).



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       {¶14} R.C. 2151.352 provides that “[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(A) similarly provides that “[e]very 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.”

       {¶15} A parent can waive the right to counsel in a parental-termination

action. In re R.K. at ¶ 5; In re W.W.E. at ¶ 36. In determining whether a parent has

waived the right to counsel, courts have considered whether the waiver was

knowingly, intelligently, and voluntarily made.      In re W.W.E. at ¶ 36.      Several

appellate districts have held that a parent’s waiver of counsel in a parental-

termination proceeding may be inferred. These courts have inferred a waiver of the

right to counsel where “the total circumstances of the individual case, including the

background, experience and conduct of the parent” indicate that the parent has

waived the right to counsel. In re Rachal G., 6th Dist. Lucas No. L-02-1306, 2003-

Ohio-1041, ¶ 14; In re W.W.E. at ¶ 39; In re A.S., 8th Dist. Cuyahoga Nos. 94098 and

94104, 2010-Ohio-1441, ¶ 27. Inferred waivers have been found in circumstances

where a parent has repeatedly failed to communicate with counsel or attend

scheduled hearings. See In re A.S. at ¶ 30.

       {¶16} This court has not previously addressed whether a parent’s waiver of

counsel in a parental-termination proceeding can be inferred.         And we are not

required to make such a determination in this case because, based on the unique




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                     OHIO FIRST DISTRICT COURT OF APPEALS



circumstances before us, particularly the finding of mother to be seemingly

incompetent, we find neither an express nor an inferred waiver of counsel by mother.

       {¶17} As to an express waiver, prior to beginning the permanent-custody

trial, the magistrate failed to engage mother in any kind of colloquy to determine

whether she wanted to waive her right to counsel. Rather, after being told by mother

that she had fired Dority and retained other counsel who was unable to attend the

hearing, the magistrate allowed Dority to withdraw. He then denied a continuance

for mother to secure the presence of her reportedly newly retained counsel, and

conducted the permanent-custody trial, with mother proceeding pro se, without

making any finding regarding mother’s waiver of counsel and without determining

whether mother knowingly, voluntarily, and intelligently waived her right. In fact,

mother’s indication that she had retained counsel indicates she had not expressly

waived her right to counsel.

       {¶18} As to an inferred waiver, in his subsequent decision granting

permanent custody of the children to HCJFS, the magistrate summarized mother’s

history with counsel and found that mother’s waiver of counsel could be inferred

based on the circumstances and history of the case. He held that:

       [Mother] has a fundamental liberty right at issue and therefore the

       court must make what efforts it can to protect her right to counsel. If,

       as alleged in the dependency complaint, [mother] was making choices

       that put her own safety at risk, the court must make some allowances

       for poor choices. Ohio Revised Code 2151.414(A)(2) directs the court

       to proceed on a hearing of this nature within one hundred and twenty

       days of the filing of the action. To grant the requested continuance




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         would have delayed the matter more than two times what the statute

         permits. The court finds, by her actions, [mother] waived counsel.

         {¶19} While under different circumstances a waiver might be inferred, under

these facts, no waiver could be inferred. We are troubled by the magistrate’s failure

to address mother’s inferred waiver of counsel and her competency to proceed on her

own behalf prior to beginning the permanent-custody trial, particularly because the

court found that mother appeared to be incompetent and appointed a guardian ad

litem.    In addition, Dority represented that mother was unable, as opposed to

unwilling, to assist in preparing a defense. This served not only as a basis for her

withdrawal as counsel, but also for the appointment of a guardian ad litem for

mother.

         {¶20} R.C. 2151.281(C) provides that “[i]n any proceeding concerning an

alleged or adjudicated delinquent, unruly, abused, neglected, or dependent child in

which the parent appears to be mentally incompetent or is under eighteen years of

age, the court shall appoint a guardian ad litem to protect the interest of that parent.”

By appointing a guardian ad litem to protect mother’s interests, the magistrate

necessarily determined that mother appeared to be mentally incompetent. But he

then allowed this seemingly incompetent person to “fire” her attorney, allowed

counsel for the mentally incompetent mother to withdraw, and required mother to

proceed pro se. Even with the prior delays and prior conduct of mother, a waiver

under such circumstances cannot be inferred, without more.

         {¶21} The record also indicates that the magistrate did not accurately

disclose to mother the specific role of the guardian ad litem, which is to protect

mother’s best interest, and not necessarily to advocate mother’s wishes. See In re




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Baby Girl Baxter, 17 Ohio St.3d 229, 232, 479 N.E.2d 257 (1985) (differentiating the

roles of an attorney and a guardian ad litem, and holding that “[t]he role of guardian

ad litem is to investigate the ward’s situation and then to ask the court to do what the

guardian feels is in the ward’s best interest. The role of the attorney is to zealously

represent his client within the bounds of the law.”); In re K.J.D., 10th Dist. Franklin

Nos. 12AP-652 and 12AP-653, 2013-Ohio-610, ¶ 47. When granting a continuance so

that the guardian could be appointed, the magistrate stated to mother, “Now I’ll

caution [mother] that we’re going forward the next time, and her rights are going to

be protected by Ms. Dority or new counsel or the Guardian, but we can’t just sit on

this case.”   It was inaccurate for the magistrate to equate the role of mother’s

guardian ad litem with that of her counsel. Because mother’s guardian ad litem was

present for the permanent-custody trial, mother could have believed that the

guardian was acting as her counsel, not just as her guardian.

       {¶22} Further undermining the magistrate’s determination that a waiver of

counsel could be inferred was mother’s declaration that she had already retained a

new attorney.    Such action by mother diminishes a finding that mother had

knowingly, voluntarily and intelligently waived the right to counsel based on her

conduct. And we note that at least one of the reasons the magistrate appointed a

guardian ad litem was because mother failed to cooperate with her attorney. If such

conduct indicates she is incompetent, it cannot then serve as a basis to find that

mother knowingly waived counsel.

       {¶23} We understand and share the magistrate’s concerns regarding

mother’s history with changing counsel and the amount of time the children had

been in the custody of HCJFS. But under the unique facts of this case, where the trial




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                      OHIO FIRST DISTRICT COURT OF APPEALS



court had found mother to be seemingly incompetent and appointed a guardian ad

litem for her, and where mother had informed the court that she had retained a new

attorney, we hold that it was error for the court to find that mother had waived her

right to counsel without engaging in an inquiry to determine whether mother was in

fact competent to do so and whether mother was knowingly, intelligently, and

voluntarily waiving that right, even if by inference from her conduct.

       {¶24} Mother’s first assignment of error is sustained. The second and third

assignments of error are rendered moot by our resolution of the first assignment of

error, and we decline to address them.

                                       Conclusion


       {¶25} Because the magistrate failed to engage in a sufficient colloquy to

determine if mother was competent to waive the right to counsel and whether

mother had knowingly, intelligently, and voluntarily waived that right, we reverse the

trial court’s judgment granting permanent custody of N.M. and A.M. to HCJFS. This

cause is remanded for further proceedings consistent with the law and this opinion.

                                               Judgment reversed and cause remanded.



MOCK, P.J., and HENDON, J., concur.

SYLVIA S. HENDON, retired, from the First Appellate District, sitting by assignment.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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