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In re J.B.

Court of Appeals of Ohio, Ninth District, Summit

May 9, 2018

IN RE J.B.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN-16-05-407

          SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

          N.B., Father.

          JOSEPH M. KERNAN, Guardian Ad Litem.

          DECISION AND JOURNAL ENTRY

          JENNIFER L. HENSAL JUDGE.

         {¶1} Appellant Mother appeals the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her child J.B., and placed the child in the permanent custody of Summit County Children Services Board ("CSB"). For the following reasons, this Court reverses and remands.

         I.

         {¶2} Mother is the biological mother of J.B. (d.o.b. 1/25/16). Paternity was established, but Father has never had contact with the child and did not participate in the proceedings below.

         {¶3} CSB received a referral after J.B. was born exhibiting signs of withdrawal and required the administration of morphine. The agency initiated a safety plan and established a voluntary case plan for Mother and the child. After concerns arose regarding Mother's sobriety and her ability to care for the child, CSB filed a complaint alleging that J.B. was a dependent child. The agency obtained an emergency order of temporary custody to a relative with an order of protective supervision by CSB.

         {¶4} Mother requested appointed counsel. After determining that Mother met the indigency requirements, the juvenile court appointed counsel to represent her.

         {¶5} As the case progressed, Mother stipulated to a finding that J.B. was dependent. When the relative caregiver could no longer provide care for the child, the juvenile court placed J.B. in the temporary custody of CSB. The juvenile court adopted the case plan as the order of the court. Mother was accepted into the Family Reunification through Recovery Court ("FRRC"). Upon Mother's request, and after demonstrating her qualification, the juvenile court appointed counsel to represent Mother in FRRC. Shortly thereafter, Mother was arrested on criminal charges. She was convicted of various crimes and sentenced to four years in prison. CSB filed a motion for permanent custody.

         {¶6} Mother appeared at the permanent custody hearing via video from prison. Her court appointed counsel was also present. Mother informed the court that she had just fired her appointed counsel and that she "would like to obtain adequate representation." The juvenile court informed Mother that she had the right to counsel and that the court had an obligation to appoint counsel for her. The juvenile court informed Mother that, if she did not want her previously appointed counsel to represent her, she had two choices: she could represent herself or hire her own attorney. It did not mention its ability to appoint substitute counsel. The court emphasized to Mother, however, that "you do not have the ability to fire [appointed counsel] and ask me to appoint someone else." Unprepared to represent herself, Mother requested a continuance of the hearing to allow her to hire her own attorney. The juvenile court continued the permanent custody hearing. In the interim, Mother filed pro se motions (1) to be present at the permanent custody hearing via video from prison, (2) for appointed counsel based on prior appointed counsel's delineated examples of inadequate representation, and (3) to continue the permanent custody hearing in anticipation of her judicial release from prison.

         {¶7} Mother again appeared for the permanent custody hearing via video from prison. The juvenile court acknowledged Mother's motions for a continuance and for appointed counsel. The court asserted that it had already denied Mother's motion for appointed counsel at the prior hearing. The juvenile court denied any further continuance after reminding Mother that it had told her at the prior hearing that she would be responsible for hiring her own attorney if ...


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