In re Y.E.F.

130 N.E.3d 1044

2019 Ohio 449

In the MATTER OF the ADOPTION OF: Y.E.F.

No. 18 CAF 09 0070

Court of Appeals of Ohio, Fifth District, Delaware County.

DATE OF JUDGMENT ENTRY: February 8, 2019

STACI K. THOMAS, Legal Aid of Columbus, 150 Oak Street, Marion, OH 43302, For Respondent-Appellant

DIRKEN WINKLER, Winkler Legal Services, 490 City Park Ave., Columbus, OH 3215, For Petitioners-Appellees

WILLIAM H. FRASER, Legal Aid of Columbus, 1108 City Park Ave., 2nd Fl., Columbus, OH 43206, For Respondent-Appellant

JUDGES: Hon. W. Scott Gwin, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.

OPINION

Gwin, P.J.

{¶1} Appellant appeals the August 27, 2018 judgment entry of the Delaware County Probate Court denying her request for appointment of counsel.

Facts & Procedural History

{¶2} Appellant E.S. is the biological mother ("Mother") of M.M.F and Y.E.F., both born on September 3, 2014. In May of 2015, appellees C.F. and D.F., the children's aunt and uncle, filed a complaint for the allocation of parental rights and responsibilities with the Delaware County Juvenile Court against appellant and R.H., the biological father ("Father") of the children. Appellees obtained temporary custody of the children. Subsequently, in September of 2016, appellant, R.H., and appellees entered into an agreed judgment entry in the Delaware County Juvenile Court. Pursuant to the agreement, appellees were granted legal custody of the children and appellant and Father would have parenting time with the children, as each could agree with appellees. The parties agreed neither appellant nor Father would be required to pay child support.

{¶3} On April 4, 2018, appellees filed a petition for adoption of minor for each M.M.F. and Y.E.F. with the Delaware County Probate Court. Appellees alleged in their petition that the consent of appellant and Father was not required because each parent has failed without justifiable cause to provide more than de minimis contact with the minors for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minors in the home of the petitioners and/or each parent failed without justifiable cause to provide for the maintenance and support of the minors as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minors in the home of petitioners.

{¶4} The trial court scheduled a hearing on the petitions filed by appellees for August 29, 2018. Appellant received her notice of hearing on the petitions for adoption on April 19, 2018 and Father received his notice on April 23, 2018. Father filed a written response opposing the adoption on May 2, 2018. On May 3, 2018, the trial court issued a judgment entry changing the hearing on August 29th to a consent-only hearing.

{¶5} On August 22, 2018, appellant filed an affidavit of indigency and request for appointment of counsel. Appellant asserts she is not able to afford to retain an attorney because her household gross income is below the federal poverty level. Further, that she needs an attorney to help her understand the procedures that apply, the rules of evidence, and the legal issues and possible defenses. Appellant states she would like to present her defenses, but does not know exactly how to proceed without an attorney to help her. Further, that she does not understand how to present evidence properly or cross-examine witnesses. Appellant argues due process and equal protection requires appointment of counsel. Appellant attached to her motion a 2006 decision by the Franklin County Probate Court finding indigent parents in contested adoption proceedings are entitled to appointed counsel.

{¶6} The trial court issued a judgment entry on August 27, 2018 denying appellant's request for appointment of counsel. The trial court applied the Mathews v. Eldrige test to appellant's claim that her due process rights would be violated without appointment of counsel and found, upon a balancing of the factors, that the process due to appellant does not include the appointment of counsel, especially since she will not lose her personal freedom if counsel is not appointed. The trial court further noted that appellant did not allege the denial of notice or the denial of the opportunity to be heard.

{¶7} As to appellant's argument that equal protection of the law requires her to have appointed counsel, the trial court cited the J.R.F. case and found the same reasoning as in J.R.F. applies in this case. Specifically, that appellant does not cite any decision from the Fifth District Court of Appeals or the Supreme Court in support of her position. The trial court also cited this Court's decision in I.M.M. and found the case law cited by appellant, a Franklin County Probate Court decision, is not mandatory authority in this case.

{¶8} The trial court held a hearing on August 29, 2018. The magistrate stated the purpose of the hearing was to consider whether the consents of appellant and Father are required for the adoption. At the start of the hearing, the magistrate informed appellant that her request for appointed counsel was denied. The magistrate then asked appellant, "are you prepared to proceed today," and appellant responded "Yes, Yes, Your Honor." The magistrate, appellees' attorney, and appellant discussed how a zero-sum child support order, as opposed to an order leaving the child support number blank, may affect the proceedings, and the magistrate determined it was necessary to obtain additional information such as the original agreed judgment entry that was filed and docketed with the juvenile court. The magistrate stated he would take testimony on the issue of support, but recognized he would not consider the testimony if, after the additional information was provided, there is found to be a zero support order.

{¶9} Appellees called appellant on cross-examination. Appellant testified to when she spoke to appellees and when she saw or sent gifts to the children. C.F. testified on direct examination. Appellant questioned C.F. on cross-examination. D.F. testified on direct examination. Appellant cross-examined D.F. At the conclusion of her cross-examination of D.F., appellant asked the magistrate, "When you asked me, would you like to continue, would that have been my time to ask for a continuance?" The magistrate responded, "Yes." Appellant stated the purpose of the continuance would be "to possibly get an attorney. Because I am not sure how court works. I have never been in trouble before * * * Because maybe I should get an attorney, because I don't know how to cross-examine. I'm not an attorney." Subsequently, D.F. testified on re-direct examination and appellees rested their case on the issue of consent.

{¶10} At the conclusion of the hearing, the trial court continued further hearing of the case to September 12, 2018. The trial court issued a judgment entry on August 30, 2018, stating that "because of the late hour of the day, and because further hearing is required to permit the mother the opportunity to present her case with regard to whether her consent is required for the adoptions, a further hearing is required." Mother filed her notice of appeal on September 10, 2018.

{¶11} Appellant appeals the August 27, 2018 judgment entry of the Delaware County Probate Court and assigns the following as error:

{¶12} "I. THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY FILED AUGUST 27, 2018, BY DENYING APPELLANT'S REQUEST FOR APPOINTED COUNSEL TO REPRESENT HER IN PROCEEDINGS ON THE PETITION TO TERMINATE HER PARENTAL RIGHTS BY ADOPTION OF HER CHILDREN."

Due Process

{¶13} Appellant first argues the trial court violated her right to due process under the Ohio and U.S. Constitutions by denying her request for appointed counsel. This Court has previously held that "there is no right to the appointment of counsel in the context of adoption." In the Matter of the Adoption of I.M.M. , 5th Dist. Ashland No. 16 COA 081, 2016-Ohio-5891, 2016 WL 5092511 ; In the Matter of the Adoption of J.L.M.-L. , 5th Dist. Muskingum No. CT2016-0030, 2017-Ohio-61, 2017 WL 90636, appeal not allowed by In re Adoption of J.L.M.-L. , 148 Ohio St.3d 1446, 2017-Ohio-1427, 72 N.E.3d 658.

{¶14} In our opinions, we cited to cases holding that a civil litigant does not have the right to appointed counsel because there is no state action in a privately-initiated adoption. Id. , citing In re Adoption of Drake , 12th Dist. Clermont No. CA2002-08-067, 2003-Ohio-510, 2003 WL 231298 (holding the state's action in removing a child from the home did not transform a later adoption petition into one involving state action); see also In the Matter of the Adoption of M.C. , 4th Dist. Jackson Nos. 11CA5, 11CA6, 2011-Ohio-6527, 2011 WL 6372834, appeal not allowed by In re Adoption of M.C. , 131 Ohio St.3d 1476, 2012-Ohio-896, 962 N.E.2d 805 (holding the Fourteenth Amendment provides protection against governmental, not private action, and a private party filed the adoption petition in the case); In the Matter of R.M.T. , 12th Dist. Warren No. CA2017-12-178, 2018-Ohio-1691 (finding no error in the denial of appointed counsel because the case was initiated by a step-parent seeking adoption of a child, not by the state); Angus v. Angus , 10th Dist. Franklin Nos. 14AP-22, 2014-Ohio-4225, 2014 WL 4748485, appeal not allowed by Angus v. Angus , 142 Ohio St.3d 1423, 2015-Ohio-1353, 28 N.E.3d 122 (holding that because the state was not the initiating party in the deprivation of parental rights, there is no statutory or constitutional right to counsel in a parentage dispute between individual parties).

{¶15} In this case, appellees received legal custody of the minor children via an agreed judgment entry between appellees, appellant, and Father after appellees, private parties, filed a complaint for the allocation of parental rights and responsibilities in juvenile court. Appellees, private parties, filed...