[Cite as In re B.W., 2018-Ohio-4544.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

IN RE: B.W.                                            C.A. No.   18AP0034



                                                       APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
                                                       COURT OF COMMON PLEAS
                                                       COUNTY OF WAYNE, OHIO
                                                       CASE No.   2016 JUVC 000375

                                 DECISION AND JOURNAL ENTRY

Dated: November 13, 2018



        SCHAFER, Presiding Judge.

        {¶1}    Appellant, R.W. (“Father”), appeals from a judgment of the Wayne County Court

of Common Pleas, Juvenile Division, that terminated his parental rights and placed his minor

child in the permanent custody of Wayne County Children Services Board (“CSB”). This Court

affirms.

                                                  I.

        {¶2}    Father is the biological father of B.W., born March 19, 2012. The child’s mother

did not appeal from the trial court’s judgment.

        {¶3}    On March 29, 2016, CSB filed a complaint, alleging that B.W., who already had

multiple medical problems and had begun having seizures at school, was a neglected and

dependent child because the parents were not meeting the child’s medical needs. The child was

later adjudicated dependent and initially remained in the home of his parents under an order of

protective supervision.
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       {¶4}    During the trial court proceedings, CSB became aware of domestic violence and

drug use in the home, so B.W. was removed and placed in the temporary custody of CSB. For

the remainder of the case, neither parent substantially complied with the reunification

requirements of the case plan. On February 21, 2018, CSB moved for permanent custody of

B.W.

       {¶5}    At the time of the hearing, Father was incarcerated for a conviction of felony

domestic violence but was transferred to the court for the hearing. Before the presentation of

evidence, Father stipulated to the permanent custody motion.         Prior to accepting Father’s

stipulation, the trial judge questioned Father about whether he was voluntarily, intelligently, and

knowingly waiving his parental rights. After a hearing on CSB’s evidence against mother, the

trial court terminated both parents’ rights and placed B.W. in the permanent custody of CSB.

Father appeals and raises one assignment of error.

                                                II.

                                      Assignment of Error

       The trial court erred by relying upon a stipulation to permanent custody
       signed by [Father] as when the trial court conducted its inquiry concerning
       the repercussions of that stipulation [Father’s] responses showed he was not
       in full understanding of the consequences of his waiver.

       {¶6}    Father does not assign error to the merits of the trial court’s permanent custody

decision but instead asserts that the trial court erred in accepting his relinquishment of parental

rights. He cites to selected excerpts from the record and asserts that the trial court should not

have accepted his agreement to permanent custody because he had expressed “uncertainty” and a

“clear lack of understanding” about the rights that he was waiving. A thorough review of the

record, however, reveals that Father voluntarily, intelligently, and knowingly relinquished his

parental rights to B.W.
                                                 3


       {¶7}    “[T]here is no legislative guidance on the requirements for a voluntary surrender

of parental rights in juvenile court where the child has been adjudicated neglected or dependent.”

In re B.Y., 9th Dist. Wayne No. 16AP0071, 2017-Ohio-833, ¶ 10. Nevertheless, because parents

have a constitutional right to raise their children, “due process requires that a parent’s surrender

of parental rights must reflect fundamental fairness, be made with full knowledge of the parent’s

rights and the consequences that will follow, and be knowing, intelligent, and voluntary.” Id. at

¶ 14. To satisfy this standard, a parent’s relinquishment of parental rights must include “a

‘meaningful dialogue’ between the trial judge and [parent] to ensure that [the parent] understood

the rights and the consequences involved in such a decision[.]” Id. at ¶ 26, quoting In re

Terrence-Jamison, 162 Ohio App. 3d 229, 2005-Ohio-3600, ¶ 89 (6th Dist.).

       {¶8}    At the commencement of the hearing, Father’s trial counsel informed the trial

court that he had discussed the permanent custody motion with Father and that Father had

expressed a desire to waive his right to contest the motion. Trial counsel further informed the

court that Father understood that he could not properly care for the child, that the foster parents

were willing and able to do so, and that the foster parents were willing to allow Father to

maintain contact with B.W. “as long as he is doing what he needs to do to maintain sobriety and

be appropriate and maintain an appropriate relationship with [B.W.].” Counsel informed the

court that those were the reasons that Father was waiving his rights.

       {¶9}    Father and his trial counsel stepped outside the courtroom to discuss the matter

further and for Father to complete and sign a PARENTAL STIPULATION TO PERMANENT

CUSTODY form. Although Father signed the form, he did not fully complete it. Notably, he

did not initial the part of the form in which he would have indicated that his waiver of rights was

voluntary because he “couldn’t bring [himself] to sign any of that.”
                                                  4


       {¶10} After Father and trial counsel returned to the courtroom, the trial court conducted

a colloquy with Father before accepting his stipulation to the permanent custody motion. The

trial court questioned Father in detail about each of the rights that he was waiving, whether he

understood those rights, and whether his waiver was completely voluntary. Although Father

answered two of the court’s questions with remarks that were not responsive to the questions, the

trial court delved into those remarks further to ascertain that Father was not confused,

intoxicated, mentally impaired, or otherwise under any disability that prevented him from

voluntarily waiving his rights. Father also repeatedly stated that no one had promised him

anything in exchange for his waiver of rights.

       {¶11} While the trial judge questioned Father about the rights that he was waiving,

Father explained that he knew that he could not provide B.W. with a suitable home, that the child

had special needs, and that he understood that the child was being well cared for by the foster

parents. Father noted that he would like to maintain contact with B.W. but, pursuant to further

questioning by the trial court, he expressed his understanding that an arrangement for continuing

contact would be entirely at the discretion of B.W.’s foster family, that the trial court had no

authority to enforce any such agreement, and that Father would lose all legal rights as the parent

of B.W. Father answered, “Right, right, I understand that.”

       {¶12} The record reveals that the trial court conducted a meaningful dialogue with

Father, which fully supported the trial court’s decision to accept Father’s stipulation to

permanent custody. Father’s statements on the record do not suggest that he was confused or

misled but instead demonstrate that Father executed a voluntary, intelligent, and knowing waiver

of his parental rights in this case. Father’s assignment of error is overruled.
                                                 5


                                                III.

       {¶13} Father’s assignment of error is overruled. The judgment of the Wayne County

Court of Common Pleas, Juvenile Division, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT




HENSAL, J.
CONCURS.
                                                    6


CARR, J.
DISSENTING.

       {¶14} I cannot agree with the majority that Father executed a knowing and intelligent

waiver of his parental rights in this case. Prior to Father speaking to the trial judge, his counsel

explained that the foster parents were willing to allow continued contact between Father and

B.W. and that was one of the reasons that Father had agreed to surrender his parental rights.

During her colloquy with Father, the trial judge continued to refer to the foster parents and

emphasized that any continued contact would be at their discretion. The evidence at the hearing

would later reveal, however, that the foster parents did not plan to adopt B.W., but there is

nothing in the record to suggest that Father was aware of that fact. Although Father may have

understood that the trial court could not enforce his agreement with the foster parents, there is

nothing in the record to suggest that he understood that any agreement with the foster family

would end if and when B.W. is placed with another family. Because the record demonstrates

that Father may have been confused about his ability to have ongoing contact with his child, I

would reverse the trial court’s judgment insofar as it accepted Father’s stipulation to permanent

custody. For that reason, I respectfully dissent.


APPEARANCES:

MICHELLE FINK, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.

KARIN WIEST, Guardian ad Litem.
