[Cite as In re A.N.B., 2013-Ohio-2055.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          PREBLE COUNTY




IN THE MATTER OF THE ADOPTION                   :
OF A.N.B., et al.,                                      CASE NO. CA2012-12-017
                                                :
                                                               OPINION
                                                :               5/17/2013

                                                :



              APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                              PROBATE DIVISION
                               Case No. 20124001


Kathleen Lance, Alderson Federal Prison Camp, Box A, Glen Ray Road, Alderson, West
Virginia 24910, appellant, pro se

Augustus L. Ross, III, 1614 U.S. 35 East, P.O. Box 576, Eaton, Ohio 45320, for appellee



        RINGLAND, J.

        {¶ 1} Appellant, the biological mother of two children, appeals a decision of the

Preble County Court of Common Pleas, Probate Division, finding her consent to the adoption

of her children by their stepmother was not required.

        {¶ 2} Appellant, the divorced mother of two daughters, is incarcerated at a federal

prison in Alderson, West Virginia. The children's father is remarried and has custody of the

children. On February 10, 2012, the stepmother filed a petition to adopt the children. The

petition alleged that appellant's consent to the adoption was not necessary because

appellant failed to contact or to provide support for the children in the year preceding the
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adoption petition. Appellant was given notice of the petition and objected in writing, alleging

that she had tried to contact the children numerous times, but was prevented from doing so

by her ex-husband.

       {¶ 3} Appellant, who is also remarried, filed a request to have her husband attend the

hearing in her place, on the basis that he is her spouse and a witness on her behalf.

Appellant also requested to appear at the hearing by telephone in order to participate in the

hearing. The court denied both requests.

       {¶ 4} The probate court determined appellant's consent was not necessary and

granted the stepmother's petition to adopt the children. Appellant appealed the court's

decision, arguing that she paid support for the children until she was incarcerated and that

she has attempted contact with the children, but her ex-husband and the stepmother

prevented any contact.

       {¶ 5} This court reversed the trial court's decision on the basis that the transcript of

the hearing did not contain any evidence to support the stepmother's allegations that

appellant's consent was not required. In re A.N.B., 12th Dist. No. CA2012-04-006, 2012-

Ohio-3880. On remand, the probate court was instructed to "hold a hearing on the record in

which both the petitioner and appellant are given the opportunity to present evidence and

testimony." Id. at ¶ 12.

       {¶ 6} On remand, the probate court set a hearing date for October 5, 2012.

Appellant filed a request to continue the hearing in order to allow time to arrange an

appearance by phone. Attached to the request was a memo explaining that a phone call

could be arranged with the institution, either by contacting the prison counselor in charge of

phone calls, or issuing a ruling that appellant must appear by phone on an assigned date.

The court reset the hearing date for November 2, 2012, and granted the mother's request to

appear by phone conference, ordering that the prison counselor must initiate the phone call.
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       {¶ 7} Appellant wrote a letter to the clerk of courts, requesting information on the

exact nature of the hearing in order to prepare. She inquired if there would be a trial and

testimony by the parties. The court responded to this letter, stating that the hearing

scheduled for November 2, 2012 was to take testimony required to establish the information

in the adoption petition. The court stated that it would "be taking evidence either in the form

of testimony or exhibits from parties present." The court further indicated that it intended to

establish phone contact with appellant on the date of the hearing, however, sworn testimony

would not be taken over the phone.

       {¶ 8} On October 26, 2012, appellant filed a motion to appear by video conference in

order to protect her rights as the biological mother. She requested the court to issue a writ to

the prison for a video conference. On the same date, appellant also requested that the court

appoint counsel to represent her in order to protect her rights as a parent. The court denied

both motions. The court indicated that there is no constitutional or statutory right to counsel.

With respect to the request for a video conference, the court stated that it had "no

responsibility to go to any lengths to have the biological mother appear" and that nothing in

this court's remand required it. The court stated "[a]ny party to an action can appear and

offer evidence.    [Mother's] inability to appear is due to her incarceration.        By being

incarcerated she has lost certain of her rights and freedom. One of those rights is the

freedom to move about."

       {¶ 9} Appellant also filed a motion to continue the hearing on the basis that the prison

counselor responsible for legal phone calls informed her that he is not available on the date

the court set for the hearing. The court denied the motion, stating that the hearing had been

scheduled since October 2, 2012. The court stated that the mother had no right to appear by

phone and it was allowing the phone call "as a courtesy."

       {¶ 10} On November 5, 2012, the court issued a decision finding the mother's consent
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was not necessary and granting the stepmother's petition for adoption. The court's decision

stated that "the biological mother was scheduled to be present by phone conference but was

unable to complete the call." The court indicated that the stepmother and father were sworn

and both were examined on the record by the court and by the stepmother's attorney. The

court found that appellant's consent was not required because she failed to contact the

children and failed to support them. The court concluded that the adoption was in the best

interest of the children and granted the stepmother's petition.

       {¶ 11} Appellant now appeals the court's decision. In her pro se brief, appellant does

not list specific assignments of error, but instead lists three issues for our review. First,

appellant argues that the court denied her due process right to be heard at the hearing.

Second, appellant argues that the court denied her equal protection rights and treated her

differently than a parent who is not incarcerated. Finally, appellant argues that her attempts

to work with the court to exercise her rights were dismissed. Because these issues are

related, we construe appellant's brief as raising a single assignment of error alleging that her

due process rights were violated at the adoption hearing.

       {¶ 12} The Fourteenth Amendment to the United States Constitution provides that

state governments may not deprive any person of life, liberty or property without due process

of law. Likewise, Article I, Section 16 of the Ohio Constitution guarantees "due course of

law," which is virtually identical to the due process clause of the United States Constitution.

In re Hua, 62 Ohio St.2d 227, 230 (1980). Due process requires that a deprivation of life,

liberty or property be preceded by notice and an opportunity for hearing appropriate to the

nature of the case. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487

(1985).

       {¶ 13} "It is well-recognized that the right to raise a child is an 'essential' and 'basic'

civil right." In re Hayes, 70 Ohio St.3d 46, 48 (1997), citing In re Murray (1990), 52 Ohio
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St.3d 155, 156. The right of a parent to the custody of his or her child is one of the oldest

fundamental liberty interests recognized by American courts. Troxel v. Granville, 530 U.S.

57, 65-66, 120 S.Ct. 2054 (2000). "It is well-recognized that the right to raise a child is an

'essential' and 'basic' civil right." In re Hayes, 70 Ohio St.3d 46, 48 (1997), citing Murray at

156.

       {¶ 14} Because a parent has a fundamental liberty interest in the custody of his or her

child, this important legal right is protected by law, and thus, comes within the purview of a

substantial right. Murray at 158. Permanent termination of parental rights has been

described as the "family law equivalent of the death penalty in a criminal case and therefore,

parents "must be afforded every procedural and substantive protection the law allows."

Hayes at 48.

       {¶ 15} Accordingly, the relationship between a parent and a child is a constitutionally

protected liberty interest for which due process applies. In re Adoption of Zschach, 75 Ohio

St.3d 648, 653 (1996). Due process affords a natural parent the right to notice and an

opportunity to be heard before his or her parental rights are terminated by adoption. Id.;

State ex rel. Smith v. Smith, 75 Ohio St.3d 418, 421 (1996); In re Adoption of Greer, 70 Ohio

St.3d 293, 2978 (1994).

       {¶ 16} Therefore, appellant had a due process right to participate in the adoption

hearing in a "meaningful manner." Our focus now centers on what process was due in this

case, given appellant's incarceration, the rights involved and the circumstances of the case.

       {¶ 17} The basic consideration of due process is whether the person had the

opportunity to be heard at a meaningful time and in a meaningful manner. Matthews v.

Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893 (1976); In re J.M., 12th Dist. No. CA2008-01-004,

2008-Ohio-6763. Due process of law "implies in its most comprehensive sense, the right of

the person affected * * * to be heard, by testimony or otherwise, and to have the right of
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controverting, by proof, every material fact which bears on the question of the right involved."

Williams v. Dollison, 62 Ohio St.2d 297 (1980).

       {¶ 18} The concept of due process "is flexible and calls for such procedural

protections as the particular situation demands." Matthews at 334. The United States

Supreme Court has described the complexity of determining what process is due in a given

situation:

              For all its consequence, "due process" has never been, and
              perhaps can never be, precisely defined. "[U]nlike some legal
              rules," * * * due process "is not a technical conception with a
              fixed content unrelated to time, place and circumstances."
              Rather, the phrase expresses the requirement of "fundamental
              fairness," a requirement whose meaning can be as opaque as its
              importance is lofty. Applying the Due Process Clause is
              therefore an uncertain enterprise which must discover what
              "fundamental fairness" consists of in a particular situation by first
              considering any relevant precedents and then by assessing the
              several interests that are at stake.

Lassiter v. Dept. of Social Services of Durham Cty., N. C., 452 U.S. 18, 24-25, 101 S.Ct.

2153, 2158 (1981), internal citation omitted.

       {¶ 19} In considering whether parental due process rights have been infringed, courts

generally apply the test set forth by the United States Supreme Court in Matthews v.

Eldridge. See e.g., In re Sprague, 113 Ohio App.3d 274 (12th Dist. 1996); In re C.M., 9th

Dist. CA Nos. 23606, 23608, 23609, 2007-Ohio-3999. Under this test, courts 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. Matthews at 335.

       {¶ 20} The first factor, the private interest affected, involves the parental right to care

and custody of children. Sprague at 276-77. As discussed above, this interest has been

established as an important, fundamental right. Id.

       {¶ 21} Next, we must consider the risk of erroneous deprivation and the probable
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value of additional safeguards. An assessment of this risk and the value of additional

safeguards in essence requires a consideration of the strength of the parent's case. C.M. at

¶ 16. To establish that a biological parent's consent is not required to an adoption, the

petitioner must establish that the parent failed to contact or failed to support the child in the

one year preceding the petition. In re Adoption of Bovett, 33 Ohio St.3d 102 (1987),

paragraph one of the syllabus.

       {¶ 22} If the petitioner meets this burden, the parent's consent will still be required if

the parent establishes justification for the failure to contact and/or support. Id. at paragraph

two of the syllabus. Significant interference or discouragement of communication by the

custodial parent can amount to justifiable cause for the failure to communicate. In re

Holcomb, 18 Ohio St.3d 361 (1985), paragraph four of the syllabus. In certain cases, an

incarcerated parent may also be able to establish that the failure to support was justified.

See In re D.B., 7th Dist. No 11 BE 11, 2011-Ohio-4755.

       {¶ 23} In this case, appellant argued in various filings that she was prohibited from

contact with her children by her ex-husband and the stepmother. She also alleged that she

paid child support until she was incarcerated. She also indicated that she desired her

husband to be a witness on her behalf. While issues of credibility are for the trier of fact to

determine, appellant alleges a factual basis, which if established by evidence and believed,

could render her consent to the adoption necessary.

       {¶ 24} Finally, we consider the governmental burden of additional safeguards.

Consideration of this factor requires us to view what procedures were available to protect

appellant's rights.

       {¶ 25} We begin by noting that while an incarcerated individual does not have an

absolute right to appear in a civil case in which she is a party, that same parent has a

fundamental parental right with regards to her children. Sprague, 113 Ohio App.3d at 276.
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Generally, there is no due process violation when an incarcerated parent does not appear at

a parental rights termination hearing, as long as the parent has alternate means of

participating. See In re Adoption of Rogers, 11th Dist. No. 2002-T-0171, 2003-Ohio-1424

(although incarcerated parent was not present at hearing, parent's attorney was present and

an affidavit executed by the parent was admitted into evidence); see also In re S.F.T., 12th

Dist. Case Nos. CA2010-02-043, CA2010-02-044, CA2010-02-045, CA2010-02-046, 2010-

Ohio-3706 (no due process violation where incarcerated parent was not present at

permanent custody hearing, by was represented by counsel and any testimony parent

wished to present was available by deposition).

       {¶ 26} Clearly, the burden of the cost and safety issues involved in transferring

appellant from West Virginia to Ohio for the hearing is considerable. Moreover, there is

unanimity among the states that a parent incarcerated in one state has no right to be

transferred into another state for a parental rights termination hearing, as long as the parent

is able to participate in an alternate manner. See Procedural Due Process Rights of

Incarcerated Parents in Termination of Parental Rights Proceedings: A Fifty State Analysis,

30 J. Fam. L. 757, 1991.

       {¶ 27} With regard to the appointment of counsel as a procedural safeguard, the

United States Supreme Court has determined that there is no constitutional right to counsel

in proceedings to terminate parental rights. Lassiter, 452 U.S. at 26-27. In the context of

adoption, this court has held that there is no right to the appointment of counsel. In re

Adoption of Drake, 12th Dist. No. CA2002-08-067, 2003-Ohio-510. While the appointment of

counsel is not a requirement, we note that this does not foreclose appointment in a case

where no other procedural safeguard is available and therefore appointment of counsel is

necessary to protect a parent's fundamental rights. See Lassiter at 2162; In re Fernandez,

399 N.W. 2d 459 (Mich. Ct. App. 1986); In re C.A.D. for Adoption of G.M.R., 192 P.3d 508
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(Colo. Ct. App. 2008).

       {¶ 28} In lieu of appointing counsel or transporting an incarcerated parent to a hearing,

other, less-burdensome procedural safeguards may be available to protect parental rights in

termination proceedings. See e.g. In the Interest of L.V., 482 N.W2d 250, 258 (citing several

methods of providing due process). For example, the use of depositions has been used as a

means to satisfy due process in certain situations. In re Lisbon, 5th Dist. No. 2003CA00318,

2004-Ohio-126 (court issued entry permitting incarcerated mother's testimony to be secured

by deposition and/or any alternate method available to the parties).

       {¶ 29} Likewise, the use of affidavits is available to protect a parent's right to be heard.

See In re adoption of Rogers, 11th Dist. No. 2002-T-0171, 2003-Ohio-1424. Finally,

telephonic participation is an alternative that requires less governmental burden while

affording a measure of due process to a parent. See In re A.M., 2012- ME 118, 55 A.3d 463,

¶ 22 (listing alternate means an incarcerated parent may use to participate in hearing).

       {¶ 30} We now turn to the facts of the case before us to determine if appellant's due

process rights were violated at the hearing. We begin by noting that appellant attempted to

protect her rights throughout the pendency of this case by requesting to participate in the

hearing and by indicating that she had evidence of justification for the failure to communicate

and support. She contested the petition, filed a brief in support of her position, and filed

several motions asking the court to allow her to protect her parental rights in different ways.

See A.M., at 463, (no due process violation where parent failed to request alternate means of

participation and failed to indicate what evidence she wished to offer by her presence or

testimony).

       {¶ 31} Our review of the record indicates that appellant was foreclosed from

participating in the hearing in any manner which allowed her to submit evidence and

testimony. Appellant was not represented by counsel, was not present at the hearing and
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was not able to present testimony or evidence, rendering her unable to participate at the

hearing in any meaningful manner.

       {¶ 32} As mentioned above, the court stated that any party present could submit

testimony and evidence, but due to her incarceration, appellant was not able to be present at

the hearing. The court indicated appellant's participation by telephone, had it occurred, was

only "as a courtesy" and that sworn testimony would not be taken over the phone. We find

that the facts of this case differ from many of the cases cited above, in that although the court

was not required to grant appellant's motion for counsel or other motions, appellant was not

given an alternative manner of protecting her rights. Although appellant was unable to

appear physically, she was not represented by counsel and despite several requests to

participate, was not given an alternative method to offer evidence and participate in the

hearing.

       {¶ 33} Accordingly, we must find that appellant was not afforded due process at the

hearing. We remand this case to the trial court to hold a new hearing in which appellant is

afforded some manner of meaningful participation in the hearing. This participation must

offer appellant a process by which she is able to protect her parental rights by allowing her to

present testimony and offer evidence on the alleged failure to contact and support the

children and her justification for the failure to do so. What procedures the court choses to

allow appellant to participate are within its discretion, provided appellant's due process rights

are protected by a meaningful opportunity to participate in the hearing.

       {¶ 34} Judgment reversed and remanded.


       HENDRICKSON, P.J., and PIPER, J., concur.




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