[Cite as Insani v. Federici, 2011-Ohio-6322.]




             IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

MARK INSANI                                               :

        Plaintiff-Appellee                                :            C.A. CASE NO. 2010 CA 79

v.                                                        :            T.C. NO.   40005

JAMES A. FEDERICI                                         :            (Civil appeal from Common
                                                                       Pleas Court, Juvenile Division)
        Defendant-Appellant                               :

                                                          :

                                                ..........

                                                OPINION

                          Rendered on the           9th       day of        December      , 2011.

                                                ..........

FRANK M. PAYSON, Atty. Reg. No. 0055165, 120 West Second Street, Suite 400,
Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

ROBERT K. HENDRIX, Atty. Reg. No. 0037351, 87 S. Progress Drive, Xenia, Ohio
45385
      Attorney for Defendant-Appellant

                                                ..........

FROELICH, J.

        {¶ 1} James A. Federici, also known as Alex Federici, appeals from a judgment

of the Greene County Court of Common Pleas, Juvenile Division, which granted a
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juvenile civil protection order against him to Mark, Diane, and Lindsay Insani.

       {¶ 2} In 2010, Alex Federici and Lindsay Insani (who were both under the age of

eighteen) attended Beavercreek High School together and dated one another. Mark

and Diane Insani are Lindsay’s parents. In September 2010, Alex’s parents became

concerned because he was sneaking out of the house at night; they feared he might be

using drugs, and he was having trouble at school. Federici’s parents discussed these

concerns with Lindsay’s parents. Lindsay’s parents suspected that Alex was visiting

Lindsay at night, and they caught him climbing in Lindsay’s bedroom window on

September 18 at 3:00 a.m. Mark Insani confronted Alex, and an unpleasant encounter

ensued.

       {¶ 3} Although the Insanis did not want to press charges against Alex, they did

call the police to document the incident. Both sets of parents encouraged Alex and

Lindsay to take a break from their relationship to work on “sorting things out.” In early

October, two more incidents occurred between Alex and Lindsay. In the first incident,

Alex insisted on talking with Lindsay at school, although a staff member apparently

attempted to prevent him from doing so; in the second incident, Alex called Lindsay’s

name from outside her home and left some papers on her windowsill. The Insanis

again called the police.

       {¶ 4} On October 11, 2010, the Insanis filed a petition for a juvenile civil

protection order against Alex (Greene Co. C.P. No. 40005).            A few days later, the

Federicis filed a petition for a juvenile protection order against Lindsay (Greene Co.

C.P. No. 40009), claiming that she had continued to contact Alex after she had filed her

petition for a protection order, which made it difficult for Alex to avoid contact with her.
                                                                                        3

       {¶ 5} The court scheduled both petitions for a hearing on November 4, 2010.

Mark, Diane, and Lindsay Insani attended the hearing and were represented by

counsel. Alex’s parents, James and Karen Federici, also attended the hearing, but

neither they nor Alex were represented by counsel. Alex did not attend the hearing.

       {¶ 6} Following the hearing, the trial court granted the Insanis’ petition for a

juvenile civil protection order.   The order prohibited Alex from “committing acts of

abuse or threats of abuse” against Lindsay or her parents. Among other things, the

order also required Alex to stay away from the Insanis’ home and Lindsay’s driving

school, to avoid having any contact with them, to stay twenty feet away from Lindsay at

school, and to avoid the use or possession of alcohol or illegal drugs. The trial court

denied the Federicis’ request for a protection order.

       {¶ 7} Alex raises two assignments of error on appeal.

       {¶ 8} The first assignment of error states:

       {¶ 9} “THE TRIAL COURT ERRED AND VIOLATED APPELLANT’S SIXTH

AMENDMENT RIGHT TO COUNSEL BY FAILING TO DETERMINE WHETHER

APPELLANT WAIVED HIS RIGHT TO COUNSEL.”

       {¶ 10} Alex claims that his rights were violated because he was not represented

by counsel and because the trial court did not inquire as to his reasons for or

understanding of his waiver of his right to counsel.

       {¶ 11} Generally, 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 in the juvenile court; if, as an indigent person, a party is unable to employ

counsel, the party is entitled to have counsel provided for him. R.C. 2151.352. “If a
                                                                                                       4

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. *** 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.”                      (emphasis added).

R.C. 2151.352.         Moreover, the right to due process applies in juvenile court

proceedings. In re Anderson (2001), 92 Ohio St.3d 63, 66, 2001-Ohio-131.1

       {¶ 12} In order to determine whether a juvenile has validly waived his right to

counsel, courts must consider the totality of the circumstances. Id. at ¶108. Relevant

factors include the age, intelligence, and education of the juvenile; the juvenile’s

background and experience generally and in the court system specifically; the presence

or absence of the juvenile’s parent, guardian, or custodian; the language used by the

court in describing the juvenile’s rights; the juvenile’s conduct; the juvenile’s emotional

stability; and the complexity of the proceedings. Id. The degree to which the juvenile’s

parent is capable of assisting and willing to assist the juvenile in the waiver analysis is

also a factor.     In re J.F., 178 Ohio App.3d 702, 2008-Ohio-4325, ¶91.                        When the

record does not show that a parent advised the juvenile prior to proceeding without

counsel, a waiver of counsel is invalid. Id.

       {¶ 13} In this case, the trial court’s notice to James, Karen and Alex Federici of


          1
            The notion that a juvenile has a right to an attorney to defend against a petition for a juvenile
  civil protection order differs from how such a case would be treated for an adult; because the
  determination of whether to grant a protection order is civil and is “not the equivalent of finding that the
  person against whom the order is granted has committed a criminal offense,” an adult respondent is
  not entitled to representation. See Rieger v. Rieger, 165 Ohio App.3d 454, 2006-Ohio-482, ¶ 9; State
  ex rel. Jenkins v. Stern (1987), 33 Ohio St.3d 108, 110; R.C. 2903.214.
                                                                                  5

the hearing stated: “You are hereby notified that every party has a right to be

represented by an attorney. If you wish to have legal representation, you must arrange

to hire an attorney.”    When Alex’s parents appeared at the hearing, they were

unrepresented by counsel, and Alex was not present. The court did not inquire, on

the record, as to the reason for Alex’s absence or his representation at the hearing by

only his parents.

      {¶ 14} On appeal, Alex contends that the trial court violated his right to counsel

by not inquiring as to whether he had knowingly waived his right to counsel.          We

disagree. Because Alex failed to appear at the hearing, the trial court was unable to

question him about his rights. Under these circumstances, the court was not required

to delay the proceedings to make such an inquiry. And questioning Alex’s parents with

respect to this issue would have been futile, because the court could not have

reasonably relied on their representations as to Alex’s understanding of or desire to

waive his rights.   See In re C.H. 162 Ohio App.3d 602, 2005-Ohio-4183, ¶10 (“To

ascertain whether a waiver may be inferred, the court must take into account the total

circumstances of the individual case, including the background, experience and

conduct” of the party who asserts a right to counsel in juvenile proceedings.).

      {¶ 15} Alex also argues that his right to counsel was violated by his parents’

representation of him at the hearing. He asserts that his parents could not have acted

as the counsel to which he was entitled, because doing so would have amounted to the

unauthorized practice of law.    However, our review of the hearing transcript makes

clear that Alex’s parents did not act or attempt to act as legal counsel for Alex. They

were named on the petition themselves, and their involvement was aimed primarily at
                                                                                     6

bolstering their own petition for a juvenile protection order. (They testified that Lindsay

continued to contact Alex, making it difficult for him to avoid contact with her.)

Moreover, the record does not contain any suggestion that the trial court viewed the

parents’ role as one of counsel for Alex.

       {¶ 16} Alex cannot complain of the absence of counsel when he failed to appear

before the juvenile court.

       {¶ 17} The first assignment of error is overruled.

       {¶ 18} The second assignment of error states:

       {¶ 19} “THE TRIAL COURT’S DECISION TO GRANT A PROTECTION ORDER

BELOW WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶ 20} Alex contends that the Insanis “offered no competent, credible evidence”

that they were fearful of him.

       {¶ 21} To obtain a juvenile civil protection order under R.C. 2151.34(C)(2), the

petitioner must allege in the petition that the respondent engaged in a violation of one of

the offenses listed in the statute, must provide a description of the nature and extent of

the violation, and must request relief under this section. Menacing is one of the listed

offenses and the one upon which the Insanis relied. Menacing is defined as “knowingly

caus[ing] another to believe that the offender will cause physical harm to the person or

property of the other person, the other person’s unborn, or a member of the other

person’s immediate family.” R.C. 2903.22(A).

       {¶ 22} The petitioner’s burden of proof in obtaining a juvenile civil protection

order and the standard for reviewing such orders come from analogous case law

addressing adult civil protection orders.      In re E.P., Cuyahoga App. No. 96602,
                                                                                    7

2011-Ohio-5829, ¶14. With respect to domestic violence civil protection orders, the

Ohio Supreme Court has held that “the trial court must find the petitioner has shown by

a preponderance of the evidence that petitioner or petitioner’s family or household

members are in danger of domestic violence. R.C. 3113.31(D).” Felton v. Felton, 79

Ohio St.3d 34, 1997-Ohio-302, paragraph two of the syllabus.

       {¶ 23} Like the statute in Felton, R.C. 2151.34 simply requires proof by a

preponderance of the evidence that, if the juvenile civil protection order is not granted,

the petitioner is in danger of one of the enumerated offenses in R.C. 2151.34(C)(2). In

re E.P. at ¶16.

       {¶ 24} “When assessing whether a protection order should have been issued, ***

‘the resolution of that question depends on whether the petitioner has shown by a

preponderance of the evidence that the petitioner *** was entitled to relief.’

Abuhamda-Sliman v. Sliman, 161 Ohio App.3d 541, 2005-Ohio-2836, ***, ¶9, citing

Felton at paragraph two of the syllabus.     Accordingly, whether the protection order

should have been issued at all (i.e., whether the petitioner met his or her burden by a

preponderance of the evidence) is essentially a manifest weight of the evidence review.

 Rauser v. Ghaster, [Cuyahoga App.] No. 92699, 2009-Ohio-5698, ¶12, citing Caban v.

Ransome, [Mahoning App.] No. 08MA36, 2009-Ohio-1034, ¶7. Judgments supported

by competent, credible evidence going to all the essential elements of the claim will not

be reversed on appeal as being against the manifest weight of the evidence.

Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, *** ¶3. See, also,

Young v. Young, [Greene App.] No.2005-CA-19, 2006-Ohio-978, ¶22 ***.”               Id. at

¶17-18.
                                                                                    8

       {¶ 25} At the hearing, Mark Insani testified that, when he confronted Alex after

Alex had climbed into Lindsay’s window, he asked Alex to sit so they could talk, and

Alex refused.        Mark Insani testified that Alex was “very threatening” and “very

belligerent.” Mark also testified that Alex was bigger and taller than Mark, and that

Alex’s hands were clenched into fists. According to Mark, Alex insisted that he could

see Lindsay any time he wanted, and Mark could not stop him.                  During this

confrontation, Alex was within “5 inches” of Mark’s face. Mark testified that he felt

threatened and fearful for his own safety, as well as that of his wife and daughter. He

also stated that they ”saw a side of Alex that [they] had never seen before,” which

partially motivated their call to the police. The Insanis called the police twice about

Alex’s behavior.

       {¶ 26} Mark also testified that there had been an incident at school where Alex

had been very confrontational with Lindsay and had disregarded school authorities; he

did not recount the specifics of this incident.    Mark stated that he was particularly

concerned by Alex’s defiance of all authorities, including his parents, the police, and

school officials.

       {¶ 27} Beavercreek Police Officer Eric Grile testified that, after responding twice

to the Insanis’ house for complaints related to Alex, he talked with a Beavercreek High

School Resource Officer about Alex’s behavior at school. Grile confirmed that there

had been an         incident at school in which Alex came into Lindsay’s classroom and

insisted on speaking with Lindsay. A staff member told him to leave, but he twice

refused to do so. Alex was disciplined at school for this incident. The school principal

also testified about this incident and stated that Lindsay reported being afraid to come
                                                                                      9

to school.

      {¶ 28} Barbara Fryman, the director of Greene County Juvenile Court’s diversion

program,

      {¶ 29} through which she worked with Lindsay and Alex, testified that Lindsay

reported feeling intimidated by Alex, but denied that he had physically abused her.

      {¶ 30} The Insanis presented evidence from which the trial court could have

concluded, by a preponderance of the evidence, that if a juvenile civil protection order

were not granted, the Insanis were in danger of physical harm.          The trial court’s

conclusion was not against the manifest weight of the evidence.

      The second assignment of error is overruled.

      The judgment of the trial court will be affirmed.

                                      ..........

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Frank M. Payson
Robert K. Hendrix
Hon. Robert W. Hutcheson
