Submitted September 13, 2017
from the Court of Appeals for Franklin County, No. 16AP-575.
R. Venters, Franklin County Public Defender, and John W.
Keeling, Assistant Public Defender, for appellant.
J. McClaren, for appellee.
OF THE COURT
the state seeks to terminate a parent's parental rights,
the parent has the right to counsel. The parent cannot be
deprived of that right unless the court finds that the parent
has knowingly waived the right to counsel. Waiver of counsel
cannot be inferred from the unexplained failure of the parent
to appear at a hearing.
1} This court has previously likened the termination
of one's parental rights to the family-law equivalent of
the death penalty. See, e.g., In re D.A., 113 Ohio
St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 10; In
re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997).
Hence, it is critical that the rights of a parent who faces
the permanent termination of parental rights are
appropriately protected. One of those protective measures is
the right to be represented by an attorney "at all
stages of the proceedings." R.C. 2151.352. That did not
happen in this case, as the juvenile court allowed the
attorney for the mother, appellant, A.S., to withdraw from
the case at the start of a critical stage of the
proceedings-the permanent-custody hearing-because A.S. failed
to appear. The juvenile court proceeded with the hearing
without A.S. present and without an attorney representing her
and protecting her interests. These actions of the court
constituted reversible error.
and Procedural History
2} On July 11, 2016, the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile
Branch, was scheduled to conduct a permanent-custody hearing
at 10:00 a.m. regarding A.S.'s child, R.K., because
appellee, Franklin County Children Services
("FCCS"), had filed a motion for permanent custody.
The hearing in juvenile court commenced at 10:10 a.m., but
A.S. was not present. A discussion occurred on the record.
A.S.'s attorney stated that he had informed her about the
hearing but indicated that he did not know why she was
absent. The attorney then requested permission to withdraw as
counsel. The court granted that motion, and the
termination-of-parental-rights hearing continued without
A.S.'s presence and without her being represented by
counsel. The court did not question the attorney about
A.S.'s whereabouts but asked him to stay and remain in
the courtroom in the event that A.S. appeared so that the
attorney would be "available to be reappointed."
The attorney complied with that request, but he did not
participate in the hearing other than to reserve the right to
cross-examine witnesses in case A.S. appeared. A.S. did not
appear, and the court granted permanent custody to FCCS. A.S.
timely appealed to the Tenth District Court of Appeals.
3} In a split decision, the court of appeals upheld
the permanent-custody order, holding that the juvenile court
did not abuse its discretion in finding that A.S. implicitly
waived her right to counsel and also did not abuse its
discretion in permitting A.S.'s attorney to withdraw as
counsel. The dissenting judge would have reversed the
juvenile court's judgment and remanded the cause for a
new hearing. The dissenting judge acknowledged that the
record likely supported a finding that A.S. had waived her
right to be present at the hearing but stated that
"[t]he right of a parent to be represented is distinct
from the right of a parent to appear and be present for a
permanent custody hearing. The failure to exercise the right
to be present does not necessarily mean" that a parent
has intentionally relinquished or abandoned the parent's
right to counsel "or that her interests cannot be
effectively represented by counsel's participation in her
absence." 10th Dist. Franklin No. 16AP-575, ¶ 23
(Feb. 21, 2017) (Brunner, J., dissenting), citing State
v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 20. A.S. appealed to this court, and we accepted
jurisdiction. 149 Ohio St.3d 1405, 2017-Ohio-2822, 74 N.E.3d
4} A.S. has raised a single proposition of law for
this court's consideration. She asserts that she was
denied her right to counsel when the juvenile court permitted
her attorney to withdraw prior to the final hearing. She
contends that her absence from the courtroom did not equate
to a waiver of counsel on her part. She is right. A.S.
additionally claims that she was in a hospital being treated
for a medical emergency at the time of the final hearing and
that she attempted to contact the court but was unable to do
5} As previously mentioned, this court considers the
parent-child bond to be extremely important and when the
state attempts to permanently terminate the relationship
between a parent and child, the parent " 'must be
afforded every procedural and substantive protection the law
allows.' " In re Hayes, 79 Ohio St.3d at
48, 679 N.E.2d 680, quoting In re Smith, 77 Ohio
App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). The General
Assembly has specified that a parent has the right to counsel
at a permanent-custody hearing, including the right to
appointed counsel if the parent is indigent. R.C. 2151.352;
see also Juv.R. 4(A). Of course, the right to
counsel can be waived. Waiver is an " ' "
'intentional relinquishment or abandonment of a known
right.' " ' " Rogers at ¶ 20,
quoting State v. Quarterman,140 Ohio St.3d 464,
2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, ...