A Brewing Storm Over Proposed Changes to Juvenile Rule 3

Further Update: This rule went into effect July 1, 2012.

Update: Here is the rule that actually got sent to the General Assembly.  It’s a compromise, but I think it has a number of plusses.  Thanks to Kim Brooks Tandy of the Children’s Law Center for sending this over.

RULE 3.       Waiver of Rights

(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; may not be waived. 

 (2) when a serious youthful offender dispositional sentence has been requested; or

 (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.

 (C)      If a child is charged with a felony offense, the court shall not allow any waiver of counsel unless the child has met privately with an attorney to discuss 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.

 (E)      Other rights of a child may be waived with permission of the court.

                                              Staff Notes (July 1, 2012 Amendments)

 Ohio Revised Code §2151.352 establishes that juveniles have a right to counsel.

The amended rule is intended to implement a process for the mandates of the United State Supreme Court’s decision  In re Gault  (1967), 387 U.S. 1 and the Supreme Court of Ohio’s decision In re C.S. (2007), 115 Ohio St.3d 267, 2007-Ohio-4919, to ensure children have meaningful access to counsel and are able to make informed decisions about their legal representation.

  Under Juv.R. 3 as it existed prior to amendment, a child facing a mandatory or discretionary bindover to adult court could not waive counsel. The amended rule adds to this prohibition on waiver of counsel by including a child charged as a serious youthful offender pursuant to ORC §2152.13 as required by ORC §2152.13(C)(2).

Division (A)(3) of the amendment differentiates between a conflict between the child and parent, custodian or guardian and a disagreement. If the interests of child, parent, custodian, or guardian are adverse in the proceeding, a conflict exists and the child should be appointed counsel. If the parent, custodian, or guardian and the child disagree on the question of whether counsel is necessary for the child or if the right to counsel should be waived, counsel should be appointed.

  End of staff note.

Previous post:

A storm is brewing at the Supreme Court of Ohio over a proposed change to Juvenile Rule 3.  The proposal  is the product of six years of work by advocates who propose to bring the state’s appointment of counsel rule in line with the National Council of Juvenile and Family Court Judges Juvenile Delinquency Guidelines . 

Here’s the old rule:

Juvenile Rule 3. Waiver of Rights

A child’s right to be represented by counsel at a hearing conducted pursuant to Juv. R. 30 may not be waived.  Other rights of a child may be waived with the permission of the court.

 And here’s the proposed new one:

RULE 3.            Waiver of Rights

(A)       A child’s child has a non-waivable right to be represented by counsel in the following circumstances:

 (1) at a hearing conducted pursuant to Juv. R. 30; may not be waived. 

 (2) when a serious youthful offender dispositional sentence has been requested;

 (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)       Subject to division (C) of this rule, a child has a waivable right to be represented by counsel at all other stages of the proceedings with the permission of the court. If the child is facing the potential loss of liberty, the child shall be fully and effectively informed of the child’s right to counsel and the disadvantages of self-representation by an in-person consultation with an attorney, and counsel shall inform the court in writing that such a consultation has occurred. “Loss of liberty” as used in this rule is defined as commitment to a treatment facility, commitment to the Department of Youth Services or detention and/or incarceration in a detention facility as defined in R.C. 2152.26(B), (C), (D) and (F). This provision shall not apply to children who appear to be unruly or traffic offenders other than those subject to adjudication pursuant to R.C. 4511.19.

            (C)       Prior to allowing a child to waive counsel, the court shall inquire to determine if the child has met privately with the attorney and shall make findings at the commencement of the hearing pursuant to Juv. R. 29(B). If the child waives the right to counsel at the adjudicatory hearing, the child shall be offered counsel for the dispositional hearing, or a separate waiver of the right to counsel shall be obtained; however, the consultation required by division (B) of this rule shall not be required for hearings subsequent to the adjudicatory hearing.

            (D)       If the child is facing the potential loss of liberty, any waiver of counsel shall be made knowingly, intelligently, and voluntarily. 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. A parent, guardian, custodian, or other person may not waive the child’s right to counsel.

            (E)        Other rights of a child may be waived with permission of the court.

 Here’s the staff note to the proposed rule change:

 “Rule 3 has been completely rewritten and reorganized to conform to recommendations proposed by the Supreme Court Advisory Committee on Children, Families, and the Courts and the best practice recommendations from the National Council of Juvenile and Family Court Judges.

The rule is intended to implement a process for the mandates of the United States Supreme Court’s decision, In re Gault (1967), 387 U.S. 1 and the Supreme Court of Ohio’s decision In re C.S. (2007), 115 Ohio St.3d 267, 2007-Ohio-4919, to ensure children have meaningful access to counsel and are able to make informed decisions about their legal representation. It should be noted that “loss of liberty” does not mean house arrest or electronic monitoring for purposes of this rule.”

This change to the juvenile rule was one of a package of proposed amendments to the rules of juvenile procedure, civil procedure, appellate procedure, evidence, and criminal procedure. All proposed rule changes went through two rounds of public comments. Following the first comment period, the Court unanimously approved all proposed rule amendments for filing with the General Assembly and publication for a second comment period, except for the amendments to Juv. R. 3.  The vote on that was 4-3, with Justices O’Donnell, Cupp, and Lanzinger opposed. The second comment period ended March 6. Significant opposition to the amendment to Juvenile Rule 3 has now arisen from individual judges and judicial associations on the grounds that it is too cumbersome, too expensive, and would usurp the parental role. The Court has until May 1 to modify or withdraw any of the proposed rule amendments.  I’m told the Court will be voting on April 5 on the amendments to Juvenile Rule 3—perhaps limiting it to felonies only.  Or it could decide to pull the rule change altogether. Once all proposed  rule amendments are submitted to the General Assembly, it can only approve or disapprove them as a package. So there will need to be a resolution about this juvenile rule change before May 1.

Comments on this are welcomed.

 

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