[Cite as In re A.P., 2014-Ohio-5244.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


In the Matter of:                                :
                                                                   No. 14AP-23
A.P.,                                            :          (C.P.C. No. 12JU11-15205)

[P.R.,                                           :         (REGULAR CALENDAR)

                 Appellant].                     :




                                         D E C I S I O N

                                   Rendered on November 25, 2014


                 Sharon Carney-Packard, Guardian ad Litem for A.P.

                 Varner Law Office, and Carrie M. Varner, for appellant.

                 Jennifer M. Riley, for appellee Franklin County Children
                 Services.

                  APPEAL from the Franklin County Court of Common Pleas,
                      Division of Domestic Relations, Juvenile Branch

KLATT, J.
         {¶ 1} Appellant, P.R., appeals a judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch, that awarded legal
custody of P.R.'s son, A.P., to A.P.'s maternal grandmother, P.F.           For the following
reasons, we affirm.
         {¶ 2} P.R. is the mother of A.P., who was born on December 27, 2007. A.P. is
severely autistic. In March 2012, Franklin County Children Services ("FCCS") removed
A.P. from his P.R.'s care due to her poor mental health. P.R. had been charged with child
endangerment after hitting her daughter, but the Franklin County Municipal Court ruled
that she was not competent to stand trial and committed her to a psychiatric hospital.
No. 14AP-23                                                                                2

Based on these circumstances, the trial court found that A.P. was a dependent child, and it
granted temporary custody of A.P. to FCCS.
       {¶ 3} On February 6, 2013, FCCS moved for a court order terminating its
temporary custody and granting legal custody of A.P. to P.F. P.R. opposed that motion.
The matter proceeded to a trial before a magistrate. In her decision, the magistrate found
that P.F., who had been caring for A.P. while he was in FCCS' temporary custody, had
done an excellent job providing for A.P.'s extensive and complicated needs. P.R., on the
other hand, had failed to offer any evidence that she could handle raising A.P., particularly
given that P.R.'s mental health issues, which include paranoia, put her at odds with those
who would help her. The magistrate concluded that it was in A.P.'s best interest to remain
in P.F.'s care, and thus, she recommended that the trial court grant FCCS' motion.
       {¶ 4} In an interim order dated October 7, 2013, the trial court adopted the
magistrate's decision. P.R. then objected to the magistrate's decision. Both of P.R.'s
objections challenged findings of fact in the magistrate's decision.
       {¶ 5} In addition to filing objections, P.R. moved for an order directing that the
trial transcript be prepared at public expense due to her indigency. P.R. supplemented
her motion with an affidavit of indigency, in which she stated that her monthly income
was $2,482.58.
       {¶ 6} The trial court denied P.R.'s motion for a transcript at public expense. The
trial court granted P.R. a continuance to obtain the transcript, but P.R. failed to file one.
In a judgment dated January 9, 2014, the trial court dismissed P.R.'s objections, ruling
that, due to the lack of a transcript, it had to presume that the magistrate correctly
interpreted the facts.
       {¶ 7} P.R. now appeals from the January 9, 2014 judgment, and she assigns the
following error:
              THE LOWER COURT COMMITTED ERROR WHEN THE
              TRIAL JUDGE DENIED APPELLANT, AN INDIGENT
              MOTHER, THE RIGHT TO A TRANSCRIPT AT STATE
              EXPENSE[.]
No. 14AP-23                                                                                 3

          {¶ 8} By her sole assignment of error, P.R. argues that, due to her indigency, she
has a constitutional right to a transcript at public expense.1 We disagree.
          {¶ 9} The issue before this court is whether the United States Constitution and/or
Ohio Constitution require the state to pay for and provide a transcript to an indigent
parent when, in an action instituted by the state, a magistrate recommends granting legal
custody of a child to someone other than a parent. Unfortunately, no federal or Ohio
court has addressed this precise issue. However, both federal and Ohio courts have
addressed an indigent parent's right to a transcript, as well as appointed counsel, in the
context of permanent termination of parental rights. Therefore, we turn to that precedent
for illumination.
          {¶ 10} In State ex rel. Heller v. Miller, 61 Ohio St.2d 6 (1980), the Supreme Court
of Ohio examined whether an indigent parent had a right to appointed counsel and a
transcript at public expense in an appeal of an order terminating parental rights. The
court stated that such a right could only exist under the constitutional guarantees of due
process and equal protection of law found in the Fourteenth Amendment to the United
States Constitution, and in Article I, Sections 1, 2, 16, and 19 of the Ohio Constitution. Id.
at 8. After reviewing precedent elucidating these constitutional provisions, the court
concluded that:
                  the right of personal choice in family matters, including the
                  right to live as a family unit, is a fundamental due process
                  right. Cases involving the involuntary, permanent termination
                  of parental rights are unique. In these cases, the parents are
                  in the position of protecting this fundamental due process
                  right for both themselves and the child. Failure to give
                  indigent parents an effective right of appeal when other
                  parents are given such a right impinges on both their own and
                  the child's fundamental interests under the equal protection
                  and due process clauses.

Id. at 13. Thus, the Supreme Court of Ohio held that, "[i]n 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



1
    For purposes of the following discussion, we will presume that P.R. is indigent.
No. 14AP-23                                                                               4

indigent parents be provided with counsel and a transcript at public expense for appeals
as of right." Id. at paragraph two of the syllabus.
       {¶ 11} Approximately one year after the Supreme Court of Ohio issued Heller, the
United States Supreme Court decided Lassiter v. Dept. of Social Servs., 452 U.S. 18
(1981). In Lassiter, the Supreme Court considered whether the Due Process Clause of the
Fourteenth Amendment entitled an indigent parent to the assistance of counsel in
parental status termination proceedings. The court reviewed its precedent regarding the
right to appointed counsel. From that precedent, the court drew the presumption that an
indigent litigant has a right to appointed counsel only when, if he loses, he may be
deprived of his physical liberty. Id. at 26-27. The court then applied the three factors set
forth in Mathews v. Eldridge, 424 U.S. 319 (1976), to the situation where a parent's rights
are terminated and considered whether the net weight of those factors rebutted the
presumption that there is no right to appointed counsel in the absence of a potential
deprivation of physical liberty. In the end, the court concluded that no definitive answer
existed. The court held that whether due process required the appointment of counsel to
indigent parents depended on the exigencies of each particular case. Lassiter at 31-32.
       {¶ 12} The Supreme Court of Ohio discussed Lassiter in a 1984 case that addressed
whether an indigent parent had a constitutional right to counsel at all meaningful stages
of parental neglect proceedings. In re Miller, 12 Ohio St.3d 40 (1984). The court
recognized that, in light of Lassiter, it had overstated the scope of the protections of the
United States Constitution in Heller. Turning to the question at bar, the court held that
"[t]here is no constitutional requirement that appellant be afforded counsel at temporary
custody proceedings." Miller at 41; accord In re Moore, 9th Dist. No. 19217 (Dec. 15,
1999) (holding no constitutional error occurred where the trial court failed to appoint
counsel to a mother before granting legal custody of the children to their grandmother);
In re Hitchcock, 120 Ohio App.3d 88, 101 (8th Dist.1996) (stating that constitutional
protections "are given only where an award of permanent custody is being considered
because, under permanent custody, all of the parent's rights to his or her child are
terminated").
       {¶ 13} The next case relevant to our analysis is M.L.B. v. S.L.J., 519 U.S. 102
(1996).   There, the United States Supreme Court considered whether a state could
No. 14AP-23                                                                                5

condition appeals from trial court decrees terminating parental rights on the affected
parent's ability to pay record preparation fees. The fee at issue arose from a state statute
and procedural rule, both of which mandated that the appellant pay the cost of a
transcript if the appellant intended to challenge a finding or conclusion as unsupported by
or contrary to the evidence.
       {¶ 14} After reviewing its decisions concerning access to judicial processes, the
Supreme Court concluded that, in such cases, due process and equal protection principles
converge. "The equal protection concern relates to the legitimacy of fencing out would-be
appellants based solely on their inability to pay core costs," while "[t]he due process
concern hones in on the essential fairness of the state-ordered proceedings anterior to
adverse state action." Id. at 120.
       {¶ 15} To determine the constitutionality of a restriction on access to judicial
processes, a court must "inspect the character and intensity of the individual interest at
stake, on the one hand, and the State's justification for its exaction, on the other." Id. at
120-21. Ordinarily, courts only examine fee requirements for rationality. Id. at 123. In
such ordinary cases, "[t]he State's need for revenue to offset costs * * * satisfies the
rationality requirement." Id. However, in three categories of cases, fee requirements
must fall. One of those categories consists of cases in which a court forever terminates
parental rights. Id. at 124.
       {¶ 16} As a final matter, the Supreme Court emphasized that striking down fees in
parental termination cases would not "open floodgates" to the abolishment of fees in all
domestic relations matters. The court stated:
              [W]e have repeatedly noticed what sets parental status
              termination decrees apart from mine run civil actions, even
              from other domestic relations matters such as divorce,
              paternity, and child custody. * * * To recapitulate, termination
              decrees "wor[k] a unique kind of deprivation." Lassiter, 452
              U.S., at 27, 101 S.Ct., at 2160. In contrast to matters
              modifiable at the parties' will or based on changed
              circumstances, termination adjudications involve the
              awesome authority of the State "to destroy permanently all
              legal recognition of the parental relationship." Rivera [v.
              Minnich], 483 U.S. [574], 580 [(1984)].

Id. at 127-28.
No. 14AP-23                                                                                  6

       {¶ 17} In the precedent we have set forth above, the determinative factor is the
permanent termination of the parent-child relationship.              The total, irreversible
elimination of parental rights triggers constitutional protection and entitles an indigent
parent to waiver of fees and/or assistance of appointed counsel. Any lesser court action—
such as the denial of temporary custody over the child—does not.
       {¶ 18} The case at bar does not involve the termination of parental rights. Here,
the trial court granted legal custody to P.F. Unlike a grant of permanent custody, the
grant of legal custody does not terminate the parent-child relationship. A parent who
loses legal custody of a child retains certain residual parental rights, privileges, and
responsibilities, as well as the right to request return of legal custody in the future. R.C.
2151.011(B)(21); R.C. 2151.353(F)(2); In re L.D., 10th Dist. No. 12AP-985, 2013-Ohio-
3214, ¶ 7; In re D.H., 10th Dist. No. 11AP-761, 2012-Ohio-2272, ¶ 8.
       {¶ 19} Because this case does not involve the termination of parental rights, we
must apply the rational-basis test to determine whether the United States and Ohio
Constitutions require the provision of a transcript to P.R. due to her indigency. M.L.B. at
123. The state's need to protect the public coffers justifies its refusal to supply transcripts
of dispositional proceedings to indigent parents where legal custody is at issue. See id.
Accordingly, the trial court did not deprive P.R. of any constitutional right when it denied
her request for a transcript at public expense.
       {¶ 20} For the foregoing reasons, we overrule P.R.'s sole assignment of error, and
we affirm the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile Branch.
                                                                         Judgment affirmed.

                      CONNOR and LUPER SCHUSTER, JJ., concur.
