[Cite as In re W.C., 2013-Ohio-153.]



                                       IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           PREBLE COUNTY




IN THE MATTER OF:                                 :

        W.C.                                      :        CASE NO. CA2012-05-007

                                                  :              OPINION
                                                                  1/22/2013
                                                  :

                                                  :

                                                  :


              APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                              JUVENILE DIVISION
                                Case No. 16658



Jill Hittle, 112 North Barron Street, P.O. Box 58, Eaton, Ohio 45320, guardian ad litem

Andrea G. Ostrowski, 25 East Central Avenue, Suite 4, Springboro, Ohio 45066, for
appellant, T.C.

Martin P. Votel, Preble County Prosecuting Attorney, Valerie Sargent Eckert, 101 East Main
Street, Eaton, Ohio 45320, for appellee, Preble County Department of Job and Family
Services

Jane Schreyer, 100 West Main Street, Eaton, Ohio 45320, for C.C.



        HENDRICKSON, P.J.

                                                I. FACTS

        {¶ 1} Appellant, T.C., ("Father") appeals a decision of the Preble County Court of

Common Pleas, Juvenile Division, finding his daughter, W.C., abused and dependent and
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ordering temporary custody to the Preble County Department of Job and Family Services,

Children's Services Division ("the Agency"). For the reasons set forth below, we reverse the

decision of the juvenile court and remand this matter for further proceedings.

       {¶ 2} W.C. was removed from her parents' home on April 27, 2011, after she made

allegations that she had been sexually abused by Father. Following a shelter care hearing,

W.C. was placed in the Agency's temporary custody. On May 19, 2011, a complaint was

filed in the juvenile court alleging that W.C. was an abused and dependent child. Father and

C.C. ("Mother"), appearing with separate, court-appointed representation, denied the

allegations.

       {¶ 3} In September 2011, Father was indicted by the state on criminal charges

relating to his alleged sexual abuse of W.C. W.C.'s adjudicatory hearing was postponed until

after Father's criminal charges were resolved. Following a bench trial in February 2012,

Father was found guilty of various sexual offenses against W.C., including rape, sexual

battery, and gross sexual imposition, and he was sentenced to life in prison without the

possibility of parole.

       {¶ 4} On April 12, 2012, a full hearing on the abuse and dependency complaint was

held before the magistrate. At this hearing, Mother admitted that W.C. was an abused and

dependent child. Father, who had been conveyed to prison, was not present at the hearing,

but his court-appointed counsel appeared on his behalf. At the hearing, Father's counsel

made an oral request to withdraw as counsel of record, stating the following:

               * * * I would a, [sic] basically move the Court orally to withdraw
               as counsel of record for the [F]ather * * * in this, in these
               proceedings. Mainly because for one he's not here. He's in
               prison serving a life sentence as a result of acts alleged in this
               complaint as well as acts a [sic] alleged in a criminal matter.
               And I'm not comfortable really proceeding in his absence at this
               point. Especially when his criminal case is currently in the Court
               of Appeals. And a [sic] I just believe that a [sic] any, any further
               representation by me would only result in harm being done to my
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              client and/or a [sic] to his appellate case. Especially since I
              really don't have the authority to proceed in his absence at this
              point.

Without inquiring further, the magistrate granted Father's counsel's motion to withdraw.

Thereafter, the state moved for an entry of default judgment against Father, which was

granted by the magistrate. The magistrate subsequently found W.C. to be an abused and

dependent child.

       {¶ 5} After finding W.C. to be an abused and dependent child, the magistrate stated,

"I assume * * * that we want to proceed to disposition today and get this behind everybody."

The magistrate then proceeded with the dispositional hearing and ordered that W.C. would

remain in the temporary custody of the Agency. On April 13, 2012, the magistrate filed an

"Entry" that summarized her rulings from the April 12, 2012 hearing. The juvenile court

adopted the magistrate's decision that same day, in compliance with Juv.R. 40(D)(4)(e)(i),

and advised that "[t]he order shall be stayed upon the filing of an objection of either party

within 14 days of the filing date." A "Notice" was sent to the parties by the clerk's office with

the juvenile court's decision, and it stated, in relevant part, the following:

              You are hereby notified that on the 13th day of April, 2012, an
              entry was filed in the above case that is/may be an appealable
              order. Any Appeal must be filed promptly, and in any event, not
              later than 30 days after the file stamped date of the Adoption of
              the Magistrate's Order and Recommendation.

       {¶ 6} Father timely appealed the juvenile court's decision, raising three assignments

of error.

                                           II. ANALYSIS

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE TRIAL COURT'S FAILURE TO COMPLY WITH THE MANDATES OF

JUVENILE RULE 40(D)(3) WAS PREJUDICIAL TO APPELLANT'S RIGHTS AS A PARTY.

       {¶ 9} In his first assignment of error, Father argues that the juvenile court's failure to
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comply with the requirements of Juv.R. 40(D) prejudiced him. Father contends that because

the magistrate's decision did not comply with Juv.R. 40(D)(3)(a)(iii), he did not knowingly

waive his right to file objections to the magistrate's decision. Father therefore seeks to assign

as error on appeal the juvenile court's adoption of the magistrate's findings of fact and

conclusions of law and have this court review the merits of his second and third assignments

of error.

       {¶ 10} The state contends, however, that the magistrate's decision, "when read in para

materia" with the juvenile court's entry adopting the magistrate's decision and the clerk's

"Notice," were sufficient to inform Father that he needed to timely file objections to the

magistrate's findings or he otherwise waived review of the issues for purposes of appeal.

The state argues that all of Father's claims of error should be denied for waiver and the

merits of his assignments of error should not be addressed.

       {¶ 11} Pursuant to Juv.R. 40(D)(3)(a)(iii),

              [a] magistrate's decision shall be in writing, identified as a
              magistrate's decision in the caption, signed by the magistrate,
              filed with the clerk, and served on all parties or their attorneys no
              later than three days after the decision is filed. A magistrate's
              decision shall indicate conspicuously that a party shall not assign
              as error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii),
              unless the party timely and specifically objects to that factual
              finding or legal conclusion as required by Juv.R. 40(D)(3)(b).

(Emphasis added.)

       {¶ 12} Once a magistrate's decision is filed, a party has 14 days to file objections to

the decision, regardless of whether the trial court has adopted the decision during that time

period as permitted by Juv.R. 40(D)(4)(e)(i). Juv.R. 40 (D)(3)(b)(i). "Except for a claim of

plain error, a party shall not assign as error on appeal the court's adoption of any factual

finding or legal conclusion * * * unless the party has objected to that finding or conclusion as


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required by Juv.R. 40(D)(3)(b)."                 Juv.R. 40(D)(3)(b)(iv).        The waiver under Juv.R.

40(D)(3)(b)(iv) "embodies the long-recognized principle that the failure to draw the trial court's

attention to possible error, by objection or otherwise, when the error could have been

corrected, results in a waiver of the issue for purposes of appeal." In re L.G., 12th Dist. No.

CA2006-05-116, 2007-Ohio-591, ¶ 4.

        {¶ 13} However, if a magistrate's decision does not comply with Juv.R. 40(D)(3)(a)(iii),

then a party may assign as error on appeal the trial court's adoption of the magistrate's

findings of fact and conclusions of law. In re M.O., 4th Dist. No. 10CA3189, 2011-Ohio-2011,

¶ 5; In re A.W.C., 4th Dist. No. 09CA31, 2010-Ohio-3625, ¶ 18-19. In reaching this

determination, we are mindful of the fact that Civ.R. 53(D) and Juv.R. 40(D) are analogous.1

See In re A.W.C. at ¶ 18 (finding Juv.R. 40[D] to be analogous to those of Civ.R. 53[D]); In re

T.S., 9th Dist. No. 11CA0033-M, 2012-Ohio-858, ¶ 8. It is therefore appropriate to rely on

our case law examining similar provisions of Civ.R. 53(D).

        {¶ 14} In Chibinda v. Depositors Ins., 12th Dist. No. CA2010-09-254, 2011-Ohio-2597,

¶ 37, we found that a magistrate's failure to "indicate conspicuously" of the waiver contained

in Civ.R. 53(D)(3)(a)(iii) to be prejudicial. Similar to the "Notice" sent in the present case, in

Chibinda the magistrate's decision contained an attachment entitled "Notice of Receipt of

Entry," which warned the parties that "unless objections, in writing, stating the reason




1. Civ.R. 53(D)(3)(a)(iii) states, in relevant part, the following:

                 [a] magistrate's decision shall be in writing, identified as a magistrate's
                 decision in the caption, signed by the magistrate, filed with the clerk, and
                 served by the clerk on all parties * * *. A magistrate's decision shall indicate
                 conspicuously that a party shall not assign as error on appeal the court's
                 adoption of any factual finding or legal conclusion, whether or not specifically
                 designated as a finding of fact or conclusion of law under Civ.R.
                 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual
                 finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
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therefore are filed with the Court * * * within fourteen (14) days of the filing of the report, an

order will be made as recommended * * *." This court held that the "Notice of Receipt of

Entry" did not comply with the magistrate's duty to "indicate conspicuously" that a party

cannot assign as error on appeal the court's adoption of any factual finding or legal

conclusion unless the party timely and specifically objects to that factual finding or legal

conclusion as required by Civ.R. 53(D)(3)(b). Id. Because the magistrate failed to comply

with Civ.R. 53(D), this court ultimately concluded that Chibinda's failure to file objections to

the magistrate's decision did not preclude a review of his arguments on appeal.

       {¶ 15} We find the rationale expressed in Chibinda to be applicable to the present

case. As the magistrate failed to comply with Juv.R. 40(D)(3)(a)(iii), Father was unaware of

the strict waiver rule prescribed by Juv.R. 40(D)(3)(b)(iv) and the related time-limited

procedures for preserving objections to the magistrate's decision. See, e.g., In re M.O.,

2011-Ohio-2011 at ¶ 5-6. The juvenile court's entry and the clerk's "Notice" did not cure the

magistrate's failure to comply with Juv.R. 40(D)(3). Accordingly, we find that we are not

precluded from considering the merits of Father's assigned errors.

       {¶ 16} Father's first assignment of error is, therefore, sustained.

       {¶ 17} Assignment of Error No. 2:

       {¶ 18} THE TRIAL COURT'S PROCEEDINGS VIOLATED THE FATHER'S RIGHTS.

       {¶ 19} In his second assignment of error, Father argues that the juvenile court violated

his rights in two ways. First, Father argues that the juvenile court erred in holding the

adjudicatory hearing without his presence or the presence of his counsel. Father contends

that because he had "requested counsel and there [was] no behavior from which a waiver of

counsel [could] be inferred," the juvenile court erred in allowing his court-appointed counsel

to withdraw his representation on the day of the hearing and further erred in proceeding with

the adjudicatory hearing without appointing new counsel. Second, Father argues that the
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juvenile court erred in holding a dispositional hearing immediately after the adjudicatory

hearing without his consent. Father contends that because he had been served with the

complaint and had entered an appearance in the case, the juvenile court was required to

obtain his consent before proceeding with the dispositional hearing on the same day as the

adjudicatory hearing.

       {¶ 20} We have long recognized that "Juv.R. 4 and R.C. 2151.352 clearly provide

parents who are parties to juvenile proceedings with the right to be represented by counsel at

all stages of juvenile proceedings." Burton v. Caudill, 12th Dist. No. CA2009-12-047, 2010-

Ohio-4946, ¶ 32; In re Lander, 12th Dist. No. CA99-05-096, 2000 WL 819775, * 2 (June 26,

2000). Once appointed, an attorney "may withdraw only with the consent of the court upon

good cause shown." Juv.R. 4(F).

       {¶ 21} To determine whether there is good cause for the withdrawal of an attorney's

representation, the "attorney seeking to withdraw must appear before the juvenile court and

demonstrate that representation of the party's interest has become impossible because of an

inability to ascertain the party's wishes or to obtain cooperation." In re Walling, 1st Dist. No.

C-040745, 2005-Ohio-1558, ¶ 12. See also In re Tyler S., 6th Dist. No. L-04-1294, 2005-

Ohio-1225, ¶ 32. "A party's lack of cooperation or failure to communicate with counsel may

be good cause for withdrawal." In re Walling at ¶ 12. However, before the court can

determine whether the party's alleged uncooperativeness has made it unreasonably difficult

for counsel to represent his client effectively, the court must inquire into the source of the

uncooperativeness. In re M.L.R., 150 Ohio App.3d 39, 2002-Ohio-5958, ¶ 16 (8th Dist.).

       {¶ 22} In the present case, Father's counsel appeared at the adjudicatory hearing and

sought to withdraw his representation because Father was not present, he did not feel

comfortable proceeding in Father's absence, and he feared his further representation would

"only result in harm being done" to Father. The court, without inquiring into when counsel
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last had contact with Father, whether Father had requested counsel's withdrawal from the

case, whether Father had knowledge that counsel was intending to withdraw from the case,

or whether it had become impossible for counsel to ascertain Father's wishes or to obtain

Father's cooperation, granted counsel's motion to withdraw. The court's lack of inquiry into

the reason behind counsel's motion to withdraw was improper and prejudicial to Father.

There is no indication that Father wanted his attorney to withdraw or even had knowledge of

such withdrawal.

       {¶ 23} Even if we were to find no error in the juvenile court's decision to allow the

withdrawal of Father's counsel, we find that the court erred in allowing the April 12, 2012

adjudicatory hearing to take place without appointing Father new counsel or ensuring his

presence at the hearing. When the trial court grants a motion to withdraw by counsel for an

incarcerated parent, the trial court, as a means of safeguarding the parent's rights, should

either make arrangements for the incarcerated parent's participation in the proceeding or

ensure that the parent has new counsel appointed and present at the hearing. See In re

A.L.W., 11th Dist. Nos. 2011-P-0050, 2011-P-0051, 2011-P-0052, 2012-Ohio-1458, ¶ 51

("The court should have safeguarded [father's] rights as a biological parent, either by making

arrangements for his participation in the proceedings in some fashion, or by ensuring he had

counsel in place at the hearing"). To allow Father's counsel to withdraw from representation

on the day of the adjudicatory hearing, in his client's absence, perhaps without prior notice to

Father, without a demonstration to the court that Father had rendered it unreasonably difficult

for counsel to represent him, and without appointing new counsel or continuing the hearing to

obtain Father's participation in the proceeding was erroneous and prejudicial to Father. See,

e.g., In re M.L.R., 2002-Ohio-5958 at ¶ 21-22.

       {¶ 24} We further find the juvenile court's decision to hold the dispositional hearing the

same day as the adjudicatory hearing without obtaining Father's consent to be erroneous and
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prejudicial. Juv.R. 34(A) states that a "dispositional hearing may be held immediately after

the adjudicatory hearing if all parties were served prior to the adjudicatory hearing with all

documents required for the dispositional hearing and all parties consent to the dispositional

hearing being held immediately after the adjudicatory hearing." (Emphasis added.) Pursuant

to Juv.R. 2(Y), Father was a party to the action, and, as such, his consent was required

before the court could hold the adjudicatory and dispositional hearings on the same day.2

         {¶ 25} Although the state contends that any error in proceeding to disposition in this

case was harmless error as "appellant could offer nothing that would have resulted in a

different outcome than an order continuing temporary custody of the child with the Agency,"

we find otherwise. Had the dispositional hearing been set for another day, Father could have

provided the Agency or the court with the names of potential relatives with whom W.C. could

reside. While it is possible that none of Father's recommended relatives would be suitable or

willing to be W.C.'s custodian, Father was still entitled to participate in her placement.

         {¶ 26} Father's second assignment of error is, therefore, sustained. The juvenile

court's decision adjudicating W.C. abused and dependent and its dispositional order that

temporary custody remain with the Agency is hereby reversed and the matter remanded for

further proceedings consistent with this opinion.

         {¶ 27} Assignment of Error No. 3:

         {¶ 28} THE TRIAL COURT'S [sic] ERRED IN ITS DECISION TO GRANT A DEFAULT

JUDGMENT AGAINST THE FATHER.

         {¶ 29} In his third assignment of error, Father argues that the juvenile court erred

when it entered default judgment against him at the adjudicatory hearing. Father contends



2. "As used in these rules: * * * '[p]arty' means a child who is the subject of a juvenile court proceeding, the
child's spouse, if any, the child's parent or parents, or if the parent of a child is a child, the parent of that parent,
in appropriate cases, the child's custodian, guardian, or guardian ad litem, the state, and any other person
specifically designated by the court." Juv.R. 2(Y).
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that the Rules of Juvenile Procedure do not allow for default judgment and, further, that

default judgment was improper under Civ.R. 55(A).

        {¶ 30} Under the facts of this case, it is clear that default judgment should not have

been rendered against Father. Father had previously appeared before the court and entered

a denial to the allegations of abuse and dependency. It was only after the court erroneously

proceeded with the adjudicatory hearing—after allowing Father's counsel's same-day

withdrawal of representation—that the court found Father to be in default judgment. Neither

the Rules of Juvenile Procedure3 nor the Rules of Civil Procedure4 allow for default judgment

under these circumstances.

        {¶ 31} Father's third assignment of error is, therefore, sustained.                      The default

judgment rendered against Father is vacated, and the matter is remanded to the juvenile

court for further proceedings consistent with this opinion.

                                               III. CONCLUSION

        {¶ 32} Although Father has been convicted of sexual offenses against his child, he is

entitled to protection of his statutory rights and his constitutional right to due process. Our




3. Juv.R. 29(E) sets forth the procedure for proceeding when a party has entered a denial to allegations of
dependency, neglect, or abuse. The rule provides as follows:

                If a party denies the allegations, the court shall:

                (1) Direct the prosecuting attorney or another attorney-at-law to assist the
                court by presenting evidence in support of the allegations of a complaint;

                (2) Order the separation of witnesses, upon request of any party;

                (3) Take all testimony under oath or affirmation in either question-answer or
                narrative form; and

                (4) Determine the issues by * * * clear and convincing evidence in
                dependency, neglect, and abuse cases * * *.


4. Civ.R. 55(A) provides in relevant part that "[i]f the party against whom judgment by default is sought has
appeared in the action, he (or, if appearing by representative, his representative) shall be served with written
notice of the application for judgment at least seven days prior to the hearing on such application."
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sanctioning of the proceedings in this case would create a dangerous precedent that there is

no violation of a parent's right when the parent is neither present nor represented by counsel

at an adjudicatory or dispositional hearing. We are unwilling to do so in the present case.

Therefore, for the reasons set forth above, the judgment in this case is hereby reversed and

the matter is remanded to the juvenile court.


       RINGLAND and M. POWELL, JJ., concur.




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