[Cite as In re L.E. v. State, 2011-Ohio-578.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
IN THE MATTER OF: L.E.                          :   Julie A. Edwards, P.J.
                                                :   Sheila G. Farmer, J.
         Juvenile Delinquent-Appellant          :   John W. Wise, J.
                                                :
-vs-                                            :   Case No. 2010CA00083
                                                :
                                                :
THE STATE OF OHIO                               :   OPINION

                          Plaintiff-Appellee




CHARACTER OF PROCEEDING:                             Criminal Appeal from Stark County
                                                     Court of Common, Juvenile Court
                                                     Division, Pleas Case Nos.
                                                     2010JCR00010 & 2010JCR00119

JUDGMENT:                                            Reversed

DATE OF JUDGMENT ENTRY:                              February 7, 2011

APPEARANCES:

For Mother-Appellant                                 For Plaintiff-Appellee

CANDACE KIM-KNOX                                     JOHN D. FERRERO
137 South Main Street, Ste. #300                     Prosecuting Attorney
Akron, Ohio 44308                                    Stark County, Ohio

                                                     BY: RENEE M. WATSON
                                                     Assistant Prosecuting Attorney
                                                     Appellate Section
                                                     110 Central Plaza, South, Ste. #510
                                                     Canton, Ohio 44702-0049
[Cite as In re L.E. v. State, 2011-Ohio-578.]


Edwards, P.J.

        {¶1}     Appellant, Lori Eshelman, appeals a judgment of the Stark County

Common Pleas Court, Juvenile Division awarding legal custody of her son, L.E., to his

paternal grandmother. Appellee is the State of Ohio.

                                     STATEMENT OF FACTS AND CASE

        {¶2}     On January 5, 2010, Canton police filed a complaint in the Stark County

Juvenile Court alleging that L.E., who was sixteen years old at the time, was a

delinquent child by reason of committing domestic violence. Appellant was the victim.

Because L.E. had a previous domestic violence adjudication, the crime was a fourth

degree felony.

        {¶3}     L.E. pleaded not true to the complaint at his arraignment and was

remanded to the Multi-County Juvenile Attention Center pending pre-trial.

        {¶4}     Appellant entered a plea of true to domestic violence on January 11, 2010.

Appellant was present at the hearing, at which the court ordered L.E. to be released to

her custody the following morning.              L.E. continued on probation.   A psychological

evaluation was ordered, and he was ordered to comply with previous orders of good

behavior.

        {¶5}     A new complaint was filed against L.E. on January 21, 2010, alleging

violation of a prior court order for failing to follow appellant’s direction. L.E. pleaded not

true and was again remanded to the Multi-County Juvenile Attention Center because it

was determined that continuation in the home was contrary to his welfare.

        {¶6}     The court held a pre-trial hearing on the violation of a prior court order

complaint on January 25. The court did not want L.E. to remain in the attention center
Stark County App. Case No. 2010CA00083                                                   3


until disposition on February 17, 2010.      A worker for Multisystemic Therapy (MST)

indicated at the hearing that she had been working with L.E. and appellant for three and

a half months. She was willing to continue to work with the family but had difficulty

getting appellant to consistently follow through with program directives. She indicated

that she was willing to continue to work with the family and would work with the

grandparents. L.E.’s paternal grandmother agreed to help, and the court released L.E.

to his paternal grandmother pending the February 17th hearing.

      {¶7}     On February 17, the court had not yet received a completed psychological

evaluation, and the hearing was continued to March 11, 2010. The court ordered that

L.E. remain placed with his paternal grandmother until probation/MST felt a move was

appropriate.

      {¶8}     On March 11, 2010, L.E. entered a plea of true to violation of a prior court

order. Discussion was held on the record concerning the joint efforts of probation and

MST to reunite appellant with L.E.       At the time of the hearing, L.E. lived with his

grandmother during the week and with appellant on weekends.             The MST worker

indicated to the court that she hoped to “flip” what was happening, and have L.E. with

appellant Monday through Friday and with his grandmother on the weekends. L.E.

expressed a desire to temporarily remain with his grandmother, and L.E’s attorney

argued for a gradual reunification between L.E. and appellant. Appellant disagreed and

told the court she believed separation should be a worst-case scenario, and she and

L.E. should work through their differences as a family rather than be separated. The

State expressed a desire to see the family reunited at some point but believed L.E.

should remain out of the home for a period of time.
Stark County App. Case No. 2010CA00083                                                   4


       {¶9}   The court issued a judgment granting the paternal grandmother legal

custody of L.E. Appellant assigns two errors on appeal:

       {¶10} “I. THE JUVENILE COURT ERRED AS A MATTER OF LAW BY

GRANTING LEGAL CUSTODY OF THE CHILD TO THE PATERNAL GRANDMOTHER

WITHOUT COMPLIANCE WITH MANDATORY STATUTORY AND PROCEDURAL

REQUIREMENTS.

       {¶11} “II. THE JUVENILE COURT ERRED AS A MATTER OF LAW WHEN IT

ALLOWED APPELLANT TO REPRESENT HERSELF WITHOUT MAKING THE

APPROPRIATE FINDINGS ON THE RECORD AND/OR HOLDING A HEARING TO

DETERMINE       WHETHER        APPELLANT       UNDERSTOOD         HER     RIGHTS      AND

INTELLIGENTLY       RELINQUISHED        THE     RIGHT     TO   REPRESENTATION          BY

COMPETENT COUNSEL AND/OR BY NOT HAVING THE WAIVER OF COUNSEL IN

WRITING.”

                                                I

       {¶12} The state argues that this is not a final, appealable order because it is a

grant of legal custody not permanent custody. The state cites this court’s opinion in In

the matter of A.K. and J.D., Tuscarawas App. No. 2009AP050025, 2009-Ohio-5342, in

which this Court recognized that legal custody does not divest parents of residual

parental rights, privileges and responsibilities and a parent may petition the court for a

modification of custody. However, in that case we did not dismiss the appeal for want of

a final, appealable order, but instead addressed the assignments of error on the merits.

We find the order appealed from in this case is a final, appealable order as it vests legal

custody of L.E. in the paternal grandmother, and appellant would be required to file a
Stark County App. Case No. 2010CA00083                                                    5


motion for modification of custody in order to change the order. While the parties may

all have contemplated a future reunification between appellant and L.E., the court’s

judgment does divest appellant of custody of the child.

       {¶13} R.C. 2152.19(A)(1) sets forth the dispositional alternatives available to a

juvenile court upon a finding of delinquency:

       {¶14} “(A) If a child is adjudicated a delinquent child, the court may make any of

the following orders of disposition, in addition to any other disposition authorized or

required by this chapter:

       {¶15} “(1) Any order that is authorized by section 2151.353 of the Revised Code

for the care and protection of an abused, neglected, or dependent child;”

       {¶16} R.C. 2151.353(A)(3) provides for an award of custody to a non-parent:

       {¶17} “(A) If a child is adjudicated an abused, neglected, or dependent child, the

court may make any of the following orders of disposition:

       {¶18} “(3) Award legal custody of the child to either parent or to any other person

who, prior to the dispositional hearing, files a motion requesting legal custody of the

child or is identified as a proposed legal custodian in a complaint or motion filed prior to

the dispositional hearing by any party to the proceedings. A person identified in a

complaint or motion filed by a party to the proceedings as a proposed legal custodian

shall be awarded legal custody of the child only if the person identified signs a

statement of understanding for legal custody that contains at least the following

provisions:
Stark County App. Case No. 2010CA00083                                                    6


         {¶19} “(a) That it is the intent of the person to become the legal custodian of the

child and the person is able to assume legal responsibility for the care and supervision

of the child;

         {¶20} “(b) That the person understands that legal custody of the child in question

is intended to be permanent in nature and that the person will be responsible as the

custodian for the child until the child reaches the age of majority. Responsibility as

custodian for the child shall continue beyond the age of majority if, at the time the child

reaches the age of majority, the child is pursuing a diploma granted by the board of

education or other governing authority, successful completion of the curriculum of any

high school, successful completion of an individualized education program developed

for the student by any high school, or an age and schooling certificate. Responsibility

beyond the age of majority shall terminate when the child ceases to continuously pursue

such an education, completes such an education, or is excused from such an education

under standards adopted by the state board of education, whichever occurs first.

         {¶21} “(c) That the parents of the child have residual parental rights, privileges,

and responsibilities, including, but not limited to, the privilege of reasonable visitation,

consent to adoption, the privilege to determine the child's religious affiliation, and the

responsibility for support;

         {¶22} “(d) That the person understands that the person must be present in court

for the dispositional hearing in order to affirm the person's intention to become legal

custodian, to affirm that the person understands the effect of the custodianship before

the court, and to answer any questions that the court or any parties to the case may

have.”
Stark County App. Case No. 2010CA00083                                                 7


      {¶23} In the instant case, the court did not comply with R.C. 2151.353(A)(3) in

awarding custody to the paternal grandmother. There was no motion, written or oral,

before the court to grant custody to the grandmother. To this point, all parties involved

appeared to contemplate a continuing arrangement with placement with grandmother

while appellant and L.E. worked toward reunification. Because a change of custody

was not placed squarely before the court by way of a motion or request, appellant had

no notice that she could lose custody of L.E. at the March 11, 2010, hearing, nor did she

have an opportunity to be heard on the custody issue.

      {¶24} Appellee argues any error in noncompliance with R.C. 2151.353 was

cured. Appellee cites to this court’s opinion in Allen v. Pingue, Delaware App. No.

02CAF06028, 2002-Ohio-5555, in which this Court found that while R.C. 2151.353 was

not followed in awarding custody to a grandmother, such error was not fatal where the

appellant was aware of all potential custodians and had received adequate notice of the

trial court’s intention to review the custody issue.      However, in the instant case,

appellant did not receive adequate notice that custody was at issue. All parties who

addressed the issue at the hearing, including the State, addressed placement as

opposed to custody, with everyone contemplating a return of L.E. to his home with

appellant at some point. Unlike Allen, supra, this is not a case where custody was

squarely at issue and the only question on appeal was the selection of the particular

custodian.

      {¶25} The first assignment of error is sustained.
Stark County App. Case No. 2010CA00083                                                         8


                                                   II

       {¶26} In her second assignment of error, appellant argues that she was entitled

to be represented by counsel at the custody hearing. The State argues that her right to

counsel is not absolute, and it is not clear that she was entitled to appointed counsel.

       {¶27} R. C. 2151.352 provides:

       {¶28} “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. If, as an indigent

person, a party is unable to employ counsel, the party is entitled to have counsel

provided for the person pursuant to Chapter 120. of the Revised Code except in civil

matters in which the juvenile court is exercising jurisdiction pursuant to division (A)(2),

(3), (9), (10), (11), (12), or (13); (B)(2), (3), (4), (5), or (6); (C); (D); or (F)(1) or (2) of

section 2151.23 of the Revised Code. If a party appears without counsel, the court shall

ascertain whether the party knows of the party's right to counsel and of the party's right

to be provided with counsel if the party is an indigent person. The court may continue

the case to enable a party to obtain counsel, to be represented by the county public

defender or the joint county public defender, or to be appointed counsel upon request

pursuant to Chapter 120. of the Revised Code. Counsel must be provided for a child not

represented by the child's parent, guardian, or custodian. If the interests of two or more

such parties conflict, separate counsel shall be provided for each of them.”

       {¶29} Similarly, Juv. R. 4 provides:

       {¶30} “(A) Assistance of counsel. Every party shall have the right to be

represented by counsel and every child, parent, custodian, or other person in loco
Stark County App. Case No. 2010CA00083                                                    9


parentis the right to appointed counsel if indigent. These rights shall arise when a

person becomes a party to a juvenile court proceeding. When the complaint alleges that

a child is an abused child, the court must appoint an attorney to represent the interests

of the child. This rule shall not be construed to provide for a right to appointed counsel

in cases in which that right is not otherwise provided for by constitution or statute.”

       {¶31} While appellant may or may not have been entitled to appointed counsel,

she was entitled to be represented by counsel at a proceeding in which custody of her

child was at issue. As noted in assignment of error one above, appellant did not have

adequate notice that custody of the child was at issue at the dispositional hearing. The

court did not advise her that she was entitled to representation at the hearing.

       {¶32} The second assignment of error is sustained.
Stark County App. Case No. 2010CA00083                                             10


       {¶33} The judgment of the Stark County Juvenile Court awarding legal custody

of L.E. to Monica Eshelman is reversed. This cause is remanded to that court for a new

dispositional hearing.



By: Edwards, P.J.

Farmer, J. and

Wise, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                             JUDGES

JAE/r1203
[Cite as In re L.E. v. State, 2011-Ohio-578.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


IN THE MATTER OF: L.E.                             :
                                                   :
             Juvenile Delinquent-Appellant         :
                                                   :
                                                   :
-vs-                                               :       JUDGMENT ENTRY
                                                   :
THE STATE OF OHIO                                  :
                                                   :
                              Plaintiff-Appellee   :       CASE NO. 2010CA00083




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas, Juvenile Division, is reversed.

Costs assessed to appellee.




                                                       _________________________________


                                                       _________________________________


                                                       _________________________________

                                                                    JUDGES
