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In re T.C.K.

Court of Appeals of Ohio, Fourth District

August 12, 2013

IN THE MATTER OF: T.C.K.

Amanda Keys, St. Marys, West Virginia, Pro Se Appellant.

DECISION AND JUDGMENT ENTRY

Marie Hoover, Judge

(¶ 1} Amanda Keys, the natural mother of T.C.K., appeals the trial court's decision that awarded legal custody of her child to April King, the child's paternal aunt. Appellant, appearing pro se, does not set forth assignments of error in accordance with the Appellate Rules. We have attempted to discern some cognizable assignments of error from the litany of Juvenile Rules that appellant cites. None of the cognizable assignments of error have merit. Accordingly, we overrule appellant's assignments of error; and we affirm the trial court's judgment.

I. FACTS

(¶ 2} On or about November 24, 2009, the trial court adjudicated T.C.K. a dependent child and ordered the child to remain in appellant Amanda Key's legal custody under the protective supervision of Washington County Children Services's (WCCS). On April 16, 2010, the court terminated the order of protective supervision and placed the child in appellant's legal custody.

(¶ 3} On April 26, 2012, April King, the child's paternal aunt, filed a petition for custody of the child.

(¶ 4} The court subsequently appointed a guardian ad litem for the child. The guardian ad litem recommended that the court award King legal custody of the child.

(¶ 5} On December 14, 2012, the trial court determined that awarding King legal custody of the child would serve the child's best interests. In reaching its decision, the court set forth the following facts:

[T.C.K.] is a 5 ½ year old boy currently in the temporary custody of his paternal aunt, April King. Ms. King filed for custody on April 26, 2012, and this Court granted her temporary custody on April 27, 2012. At the time of her filing, Ms. King had physical custody of [the child] for at least a week after she picked the child up for an overnight visit and the parents never came back for him.
This was not the first time that [the child] had lived with his aunt. He lived with her from August 23, 2007, to April 11, 2009, due to both parents being charged with and later convicted of felony charges in West Virginia relating to the manufacturing of methamphetamine. West Virginia Children Services as a result of the charges placed [the child] with Ms. King. Rodney King [the child's father] served approximately 2 years in prison on that charge and [appellant] served 120 days in the county jail along with 5 years community control. After Mr. King's release from prison, the parents reconciled and [the child] returned to their home in Newport, Ohio. The family resided in Newport, Ohio from April 2009 until June of 2012. During this time the child moved back and forth between Ms. King, the paternal grandparents and his parents. Between Christmas 2011 and April 2012, when Ms. King obtained temporary custody, the child resided with Ms. King a majority of the time.
The parents over the years failed to keep the child's shots current. He hadn't been to his pediatrician for 3 years prior to Ms. King obtaining temporary custody. They also failed to provide proper dental care for him. He had a cavity that they neglected for 6 months to have filled which caused him pain when eating. Ms. King has brought all shots current and had his cavity filled.
Accordingly, [sic] to the testimony of family, neighbors and their landlord, the parents fought regularly. They could be heard yelling and screaming at each other all hours of the day. The children were generally present during these fights. Some of the fights involved physical violence between the parents.
In May 2012 the utilities to the parents' home were disconnected and in June they were evicted. After being evicted, the parents and the other two children lived in tents during June and July 2012 in West Virginia, before moving into a house in West Virginia. [The child] visited his parents during the time they lived in the tents. During one of the visits on July 21, 2012, the child was injured during a fight between his parents. His father was hitting his mother and when he stepped between them his father hit him in the head. The child reported this to Ms. King who immediately took him to the hospital because he was complaining of headaches. West Virginia Children Services was contacted and an investigation was undertaken. As a result of their investigation, [the child's] two half brothers were removed from the custody of their mother, Amanda Keys by West Virginia authorities and placed in foster care on August 1, 2012. [The child] was not removed since he was in the temporary custody of April King and they were satisfied with his placement since they had placed him with Ms. King back in 2007 to 2009 when the parents went to jail and prison on the drug charge. The worker testified that if [the child] were returned to his parents by this Court that they would immediately file for emergency removal of him. The removal of the two boys by West Virginia was as a result of concerns of domestic violence, physical and verbal abuse of all 3 children, and drug usage by both parents in the presence of the children. As of this date, [the child's] half brothers still remain in foster care in West Virginia.
At the time of the child's placement in the temporary custody of April King in April 2012 his behavior was terrible. He was a very violent and angry child. He was afraid his parents would return and take him away. He was scared by the thought of going with them. He would hit and cuss at people and talk about sex. He knew more about sex than a 5 year old should. Ms. King placed him in counseling. He sees a counselor one time per week and is now on Adderall. His behavior as a result of the counseling is much better now, although he still has some anger issues.
According to the child's guardian ad litem's testimony in Court and in his report, the child is scared by the thought of going back to his parents and told the guardian ad litem they are mean. He told the guardian ad litem that he desires to live with his aunt and stated that he would run away if he were returned to his parents.
The guardian ad litem believes it would be in the best interest of [the child] to be placed in the legal custody of his paternal aunt given all the issues with his parents and the fact that he is bonded with April King and she can provide a stable environment for the child.

(¶ 6} The court determined that the parents are unsuitable and that placing the child in the parents' custody would not be in the child's best interests. The court concluded that awarding King legal custody of the child would serve his best interests. The court thus awarded King legal custody. Appellant timely appealed the trial court's judgment.

II. ASSIGNMENTS OF ERROR

(¶ 7} Appellant has not raised any assignments of error that comply with the appellate rules. Instead, she lists eleven Juvenile Rules preceded by "Trial Court er [sic]" or "Receiving agency er [sic]." We ordinarily afford considerable leniency to pro se litigants and do not necessarily hold them to the same standards as attorneys. E.g., State v. Ritchie, 4th Dist. No. 10CA20, 2011–Ohio–164, ¶5; Robb v. Smallwood, 165 Ohio App.3d 385, 2005–Ohio–5863, 846 N.E.2d 878, ¶5 (4th Dist.); Whittington v. Kudlapur, 4th Dist. No. 01CA1, 2001–Ohio–2525. However, we will not "conjure up questions never squarely asked or construct full-blown claims from convoluted reasoning." State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 206, 614 N.E.2d 827 (1992). We will consider a pro se litigant's appellant's brief so long as it "contains at least some cognizable assignment of error." Robb at ¶ 5; accord Coleman v. Davis, 4th Dist. No. 10CA5, 2011–Ohio–506, ¶14 (considering pro se litigant's brief when it contains "some semblance of compliance" with appellate rules of practice and procedure).

(¶ 8} In the case sub judice, we are tempted to dismiss this appeal based upon appellant's failure to comply with the appellate rules and to identify any cognizable assignment of error. Appellant's listing of a variety of Juvenile Rules does not tell us precisely how she believes the trial court erred when applying the rules. However, we have liberally construed appellant's brief and believe some assignments of error can be surmised. We explain and discuss each one below.

III. ANALYSIS

A. LACK OF TRANSCRIPT

(¶ 9} Before considering appellant's assignments of error, we first note that the record does not contain a transcript of the custody hearing. Although appellant requested a transcript of the proceedings, the court reporter filed an affidavit in which he alleged that he could not transcribe the proceedings due to a malfunction in the recording.

(¶ 10} App.R. 9(C) specifies the procedure an appellant may follow when a transcript is unavailable: "If no recording of the proceedings was made, if a transcript is unavailable, or if a recording was made but is no longer available for transcription, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection." In Knapp v. Edwards Laboratories, the court set forth the consequences of failing to provide a transcript or a statement of the evidence: "When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

(¶ 11} In the case at bar, without a transcript of the custody hearing or a statement of the evidence, our review of appellant's assignments of error is limited. Absent an adequate record of the facts, testimony, and evidentiary matters necessary to support appellant's assignments of error, we have nothing to pass upon and are left with no choice but to presume the validity of the proceedings and affirm trial court's judgment.

B. Juv. R. 3

(¶ 12} Appellant contends that the trial court erred when applying Juv.R. 3(A)(1)(3), (B), and (D). Juv.R. 3 reads, in relevant part:

(A) A child's right to be represented by counsel may not be waived in the following circumstances:
(1) at a hearing conducted pursuant to Juv.R. 30; * * * *
(3) when there is a conflict or disagreement between the child and the parent, guardian, or custodian; or if the parent, guardian, or custodian requests that the child be removed from the home.
(B) If a child is facing the potential loss of liberty, the child shall be informed on the record of the child's right to counsel and the disadvantages of self-representation. * * * *
(D) Any waiver of the right to counsel shall be made in open court, recorded, and in writing. In determining whether a child has knowingly, intelligently, and voluntarily waived the right to counsel, the court shall look to the totality of the circumstances including, but not limited to: the child's age; intelligence; education; background and experience generally and in the court system specifically; the child's emotional stability; and the complexity of the proceedings. The Court shall ensure that a child consults with a parent, custodian, guardian, or guardian ad litem, before any waiver of counsel. However, no parent, guardian, custodian, or other person may waive the child's right to counsel.

(¶ 13} In the case at bar, appellant may be arguing that the trial court erred by permitting the child to waive counsel or she may be arguing that the trial court erred by determining that the child validly waived counsel. We reject both of these arguments.

(¶ 14} First, appellant does not have standing to appeal any error that may have occurred with respect to the child's waiver of counsel. As this court recognized in In re Moody, 4th Dist. No. 00CA5 (June 28, 2001): "'An appealing party may complain of an error committed against a non-appealing party when the error is prejudicial to the rights of the appellant.'" Id., quoting In re Smith, 77 Ohio App.3d 1, 13, 601 N.E.2d 45 (1991) (citations omitted). Thus, a parent has standing to appeal an error committed against a child when the parent and the child seek the same outcome, i.e., reunification of the family. When a parent and child seek the same outcome, then an error "that is prejudicial to the children's interests in that outcome is similarly prejudicial to the parents' interests." Id.; accord In re S.S., 10th Dist. Nos. 12AP–322 and 12AP–323, 2012-Ohio-4794, ¶26 ("Parents have standing to appeal an error committed against their children only if the error is prejudicial to the parents' rights."); In re B.L., 10th Dist. No. 04AP– 1108, 2005–Ohio–1151, ¶ 44.

(¶ 15} In the case at bar, the trial court's decision makes clear that appellant and the child did not seek the same outcome. The trial court found that the child does not want to be placed in appellant's legal custody. On the other hand, appellant wishes to have the child returned to her legal custody. Because appellant and the child did not seek the same outcome, their interests are not aligned such that an error prejudicial to the child also prejudiced appellant. In re Johnson, 10th Dist. Nos. 03AP-1264 and 03AP-1265. 2004-Ohio-3886, ¶13 (concluding that parent lacked standing to raise error relating to deprivation of counsel to children when children wished to be adopted and thus interests not aligned). Consequently, appellant lacks standing to raise an error relating to the child's waiver of counsel.

(¶ 16} Additionally, even if appellant has standing to assert this error, appellant never raised any issue relating to the child's right to or waiver of counsel during the trial court proceedings. "Ordinarily, errors which arise during the course of a trial, which are not brought to the attention of the court by objection or otherwise, are waived and may not be raised upon appeal." Stores Realty Co. v. City of Cleveland, Bd. of Bldg. Standards and Bldg. Appeals, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975), citing Snyder v. Standford, 15 Ohio St.2d 31, 238 N.E.2d 563 (1968), and Oney v. Needham, 6 Ohio St.2d 154, 216 N.E.2d 625 (1966). An appellate court may recognize an error that an appellant waived only if it constitutes plain error. E.g., In re Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d 694 (1998). Courts should exercise extreme caution when invoking the plain error doctrine, especially in civil cases. The Ohio Supreme Court has admonished courts to limit applying the plain error doctrine to cases "involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process * * *." Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997).

(¶ 17} The case at bar does not involve exceptional circumstances and any error regarding the child's waiver of counsel did not seriously affect the basic fairness, integrity, or public reputation of the judicial process. Accordingly, based upon the foregoing reasons, we overrule this assignment of error.

C. Juv. R. 4

(¶ 18} Appellant next asserts that the trial court erred when applying Juv.R. 4(A), (B)(4), (B)(5), (B)(7), and (B)(8). Those provisions state:

(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 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.
(B) Guardian ad litem; when appointed
The court shall appoint a guardian ad litem to protect the interests of a child or incompetent adult in a juvenile court proceeding when * * *
(4)The court believes that the parent of the child is not capable of representing the best interest of the child.
(5)Any proceeding involves allegations of abuse or neglect, voluntary surrender of permanent custody, or termination of parental rights as soon as possible after the commencement of such proceeding.
(6)There is an agreement for the voluntary surrender of temporary custody that is made in accordance with section 5103.15 of the Revised Code, and thereafter there is a request for extension of the voluntary agreement.
(7)The proceeding is a removal action.
(8) Appointment is otherwise necessary to meet the requirements of a fair hearing.

(¶ 19} We first observe that the court appointed a guardian ad litem for the child. Thus, we summarily reject any argument that the trial court erred by failing to appoint a guardian ad litem for the child.

(¶ 20} It is not clear whether appellant is asserting that the trial court erred by failing to appoint a guardian ad litem to represent her. To the extent that she is making this assertion, she waived any error by failing to request the court to appoint a guardian ad litem. Additionally, based upon the extremely limited record before this court, we cannot state that the court committed plain error by failing to appoint a guardian ad litem for appellant.

(¶ 21} To the extent appellant asserts that the trial court erred by failing to appoint counsel to represent her or the child, neither appellant nor the child has a right to appointed counsel in a private custody matter between a parent and a non-parent and in which the state does not seek a termination of parental rights.

(¶ 22} Juv.R. 4(A) states that "[e]very party shall have the right to be represented by counsel and every child, parent, custodian, or other person in loco parentis the right to appointed counsel if indigent." However, the rule further states that it does not create a "right to appointed counsel in cases in which that right is not otherwise provided for by constitution or statute."

(¶ 23} R.C. 2151.352 governs the right to counsel in juvenile proceedings and provides, in relevant part:

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) * * * of section 2151.23 of the Revised Code.

(Emphasis added).

(¶ 24} In the case sub judice, the juvenile court exercised jurisdiction pursuant to R.C. 2151.23(A)(2). That section grants a juvenile court exclusive original jurisdiction "to determine the custody of any child not a ward of another court of this state." Because the court exercised jurisdiction under R.C. 2151.23(A)(2), the civil-matter exception specified in R.C. 2151.352 applies. Thus, neither appellant nor the child has a right to appointed counsel. In re D.H., 10th Dist. No. 11AP-761, 2012-Ohio-2272, ¶12 (observing that parent not entitled to appointed counsel when court proceeding concerned legal custody of children who are not wards of another court of this state); In re D.J.M., 11th Dist. No. 2011-L-022, 2011-Ohio-6836, ¶35 (finding that father not entitled to appointed counsel in proceeding brought under R.C. 2151.23(A)(2)); In re M.E.H., 4thDist. No. 08CA4, 2008-Ohio-3563, ¶12 (same).

(¶ 25} Accordingly, based upon the foregoing reasons, we overrule this assignment of error.

D. Juv.R. 6

(¶ 26} Next, appellant contends that the trial court erred when applying "Juv.R. 6(B)(C)(E)(2)(3)(G)(H)(J)." Juv.R. 6(C), (E)(2), (E)(3), (G), (H), and (J) are nonexistent. Juv.R. 6(B) states:

(B) Probable cause hearing
When a child is taken into custody pursuant to an ex parte emergency order pursuant to division (A)(3)(g) or (A)(4) of this rule, a probable cause hearing shall be held before the end of the next business day after the day on which the order is issued but not later than seventy-two hours after the issuance of the emergency order. (¶ 27} Appellant's apparent argument is that the trial court erred by failing to hold a probable cause hearing in accordance with Juv.R. 6(B). Juv.R. 6(B) requires a probable cause hearing "[w]hen a child is taken into custody pursuant to an ex parte emergency order pursuant to division (A)(3)(g) or (A)(4)." Those two provisions state: (A) A child may be taken into custody:
(3) by a law enforcement officer or duly authorized officer of the court when any of the following conditions exist:
(g) A juvenile judge or designated magistrate has found that there is probable cause to believe any of the conditions set forth in division (A)(3)(a), (b), or (c) of this rule are present, has found that reasonable efforts have been made to notify the child's parents, guardian ad litem or custodian that the child may be placed into shelter care, except where notification would jeopardize the physical or emotional safety of the child or result in the child's removal from the court's jurisdiction, and has ordered ex parte, by telephone or otherwise, the taking of the child into custody.
(4) By the judge or designated magistrate ex parte pending the outcome of the adjudicatory and dispositional hearing in an abuse, neglect, or dependency proceeding, where it appears to the court that the best interest and welfare of the child require the immediate issuance of a shelter care order.

(¶ 28} The case at bar arose from King's filing of a petition for legal custody. When she filed the petition, she requested the court to award her temporary custody of the child, which the court did. Nothing in the record indicates that a law enforcement officer or duly authorized officer of the court removed the child from appellant's custody. Instead, according to the trial court's decision, the child already had been staying with King and the parents failed to contact King or pick up the child when scheduled. Consequently, we do not find Juv.R. 6(B) applicable to the facts in the case sub judice.

(¶ 29} Even if Juv.R. 6(B) applies, appellant has not identified how the failure to hold a probable cause hearing within the specified time prejudiced the outcome of the case. Thus, any error that the trial court may have committed is harmless error that we may disregard. Civ.R. 61.

(¶ 30} Accordingly, based upon the foregoing reasons, we overrule this assignment of error.

E. Juv.R. 17

(¶ 31} Appellant asserts that the trial court erred when applying "Juv.R. 17(D)(1)(2)(3)(a)(b)(c)(d)(4)(5)(E)(1)(2)(G)." Those provisions state: (D) Protection of persons subject to subpoenas

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.
(2)(a) A person commanded to produce under division (A)(1)(b)(ii), (iii), or (iv) of this rule is not required to appear in person at the place of production or inspection unless commanded to attend and give testimony at a trial, hearing, proceeding, or deposition.
(b) Subject to division (E)(2) of this rule, a person commanded to produce under division (A)(1)(b)(ii), (iii), or (iv) of this rule may serve upon the party or attorney designated in the subpoena written objections to production. The objections must be served within fourteen days after service of the subpoena or before the time specified for compliance if that time is less than fourteen days after service. If objection is made, the party serving the subpoena shall not be entitled to production except pursuant to an order of the court that issued the subpoena. If objection has been made, the party serving the subpoena, upon notice to the person commanded to produce, may move at any time for an order to compel the production. An order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the production commanded.
(3) On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions, ...

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