Oral Argument Preview: Mother’s Right to Counsel at Permanent Custody Hearing. In re: R.K. (A.S., Appellant).

Read the analysis of the oral argument here.

On September 13, 2017, the Supreme Court of Ohio will hear oral argument in the case, In re: R.K. (A.S., Appellant), 2017-0433. At issue is the propriety of the trial court’s decision to let counsel for the mother withdraw after the mother failed to appear for the permanent custody hearing.

Case Background

In 2013, a child, R.K., was born to defendant, A.S., with drugs and alcohol in his system. This led Franklin County Children Services (FCCS) to become involved and obtain temporary custody of R.K. FCCS then placed R.K. in foster care. In 2015, FCCS filed a motion requesting permanent custody of R.K.  After several continuances, the hearing for this matter was ultimately held on July 11, 2016. A.S. failed to appear for the scheduled hearing.  At that hearing, A.S.’s lawyer gave no reason for his client’s failure to appear, and asked for leave to withdraw as counsel. The trial court granted the motion, but requested counsel to stay in the courtroom in case A.S. showed up late. Then a brief hearing was conducted with counsel present but not participating. At the end of the hearing, permanent custody was granted to FCCS.

On appeal, the Tenth District, in a 2-1 decision written by Judge Tyack, and joined by Judge Klatt, found that the trial court did not abuse its discretion in allowing A.S.’s lawyer to withdraw from the proceedings in her absence, and found that A.S.’s absence constituted an implicit waiver of the right to counsel under R.C. 2151.352 and Juv.R. 4(A). According to the Tenth District, when a parent fails to appear for a scheduled hearing and fails to cooperate with counsel and the court, the court may infer the parent has waived the right to counsel. Therefore, the court may grant counsel’s request to withdraw. The Tenth District affirmed the trial court’s decision to grant permanent custody of R.K. to FCCS. Judge Brunner dissented. She would find that a parent has the right to be represented by counsel unless the parent “intentionally relinquished or abandoned her right to counsel, either explicitly, or as evidenced by her conduct.” Here, she would require the trial judge to inquire further about the communications between the lawyer and the client.

 Votes to Accept the Case

Yes: Justices French, Kennedy, O’Neill, DeWine and Fischer

No: Chief Justice O’Connor and Justice O’Donnell

Key Statutes and Precedent

R.C. 2151.352 (Right to Counsel in Certain Juvenile Court Proceedings)

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.)

Juv.R. 4 (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.)

Prof. Cond. R. 1.16 (A lawyer may withdraw from a case when the client substantially fails to fulfill an obligation and has been given reasonable warning that the lawyer will withdraw if the obligation is not fulfilled.)

In re Miller, 12 Ohio St.3d 40 (1984) (Under the Ohio Constitution’s requirements of Due Process and Equal Protection, indigent persons must be afforded counsel for permanent custody hearings and appeals.)

Johnson v. United States, 520 U.S. 461 (1997) (A structural error is a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself, e.g., a total deprivation of the right to counsel, lack of an impartial trial judge, right to a public trial.)

In re Hayes, 79 Ohio St.3d 46 (1997) (Because the parent’s rights are deemed ‘paramount’ in permanent custody hearings, parents are to be afforded every procedural and substantive protection under the law.)

State v. Perry, 2004-Ohio-297 (Structural error may only be found in limited circumstances where a constitutional violation has occurred so as to fundamentally affect the structure of the trial.)

In re B.M., 2009-Ohio-4846 (10th Dist.)( Majority Opinion: When a parent fails to maintain contact with counsel and appear for scheduled hearings the court may infer waiver of the right to counsel after examining the totality of circumstances in the individual case.) (Concurring/Dissenting Opinion, by then Judge French: The record must demonstrate a clear lack of communication by the parent with counsel in order for the withdrawal of counsel to be proper. Without an on-the-record showing, lack of communication or cooperation waiver of counsel cannot be implied.)

A.S.’s Argument:

Permanent custody cases are among the most serious matters courts can decide because the parents, child(ren), and society all have a stake in their proper adjudication. Because of the importance of such cases the state has the burden to ensure the proceedings comply with standards of fairness and due process. Parents must be afforded every procedural and substantive protection the law allows. The law provides for the right of counsel and to appointed counsel in such cases. Thus the mother, A.S., in this case, had counsel and was entitled to counsel unless she waived that right as provided in R.C. 2151.352 and Juv.R. 4.

This case asks this court to set a legal standard for allowing counsel to withdraw when a client fails to appear at a permanent custody hearing. Mere failure to appear, without meaningful inquiry into the facts and circumstances surrounding the failure to appear, is not enough to find an implied waiver of counsel. In this case, the trial court improperly allowed counsel to withdraw solely because of A.S.’s unexplained failure to appear. There is nothing within the record that would allow the trial court to infer from the totality of the circumstances that A.S. had implicitly waived her right to counsel. A.S. was hospitalized and, although she failed to notify her attorney of the situation, she did notify her probation officer of the situation. However, even an intentional failure to appear for the hearing would not waive the right to counsel. Instead, this would merely waive the right to be present for the proceedings. Allowing counsel to withdraw in this case qualifies as both plain and structural error.

Counsel in this case told the court he had sent A.S. a letter informing her of the nature of the proceedings, the time and date of the proceedings, and that her failure to appear would result in his removing himself as her counsel in this matter. Counsel indicated that A.S. responded to his letter, but neglected to mention the contents of A.S.’s response. This, coupled with A.S.’s failure to appear, served as counsel’s basis for withdrawal. Counsel never claimed A.S. failed to communicate with him or that he did not know what A.S.’s interests were with respect to these proceedings.

This case essentially equates a failure to appear with waiver of the right to counsel. Other cases require an examination of other factors before finding the right to counsel has been waived. Courts in those cases have imposed a duty to make certain minimal inquiries before allowing the right to counsel to be waived. The fact that this court found the mere absence of A.S. to constitute waiver of the right to counsel is plain error.

Finally, structural error was present because the court allowed counsel to withdraw without making any further inquiry or findings. Structural error cannot be analyzed under the harmless error standard because it affects the fundamental framework of the trial itself rather than being an error at trial. As such, structural error does not require a showing that the outcome at trial would have been different. The deprivation of counsel was unquestionably structural error. The holding of the appeals court that A.S.’s absence was an implicit waiver of her right to counsel should be reversed.

Franklin County Child Services’ Argument

Even though a parent involved in a termination of parental rights proceeding is entitled by rule and by statute to representation by counsel, that right is not absolute, nor is there any constitutional right to appointed counsel in a permanent custody hearing. An indigent parent may waive the right to representation by counsel, in which case a court may properly grant a request by counsel to withdraw.  This Court should allow trial counsel to withdraw when the parent fails to appear for the trial after the trial court weighs and considers all the circumstances of the case.

To determine whether a parent has waived the right to counsel when the parent fails to appear for trial, the court should take into account the circumstances of the individual case, including the background, experience and conduct of the parent. Where a parent fails to maintain contact with counsel, fails to appear for scheduled hearings despite receiving notice of those hearings, and fails to cooperate with counsel and the court, the court may infer that the parent has waived the right to counsel and may grant counsel’s request to withdraw.

The facts of this case demonstrate that the trial court did not abuse its discretion by allowing A.S.’s counsel to withdraw. A.S. not only failed to appear for trial, but also failed to communicate her wishes to her lawyer prior to trial which could then be accurately articulated to the trial court. The totality of the circumstances supports the trial court’s finding that A.S. waived the right to counsel.

Finally, there is no structural error present in this case. To qualify for structural error consideration, the right in question must be absolute. There is no such absolute right present in this or any permanent custody case. There is no showing that the outcome of the case would be substantially different had counsel not withdrawn. At trial, FCCS presented evidence, including testimony from the guardian ad litem appointed for R.K., which showed the best interest of the child would be to allow R.K. to be permanently entrusted into the custody of FCCS and remain in the care of the foster parents currently caring for him. These facts indicate A.S. could not have prevailed even if her lawyer had not withdrawn. Therefore, the Supreme Court should affirm the ruling of the Tenth District.

A.S.’s Proposed Proposition of Law

In a proceeding where the state is attempting to terminate the parental rights between a mother and her child, the mother has a right to counsel and she cannot be deprived of this right, unless the court finds that the mother has knowingly waived her rights to counsel. Waiver of counsel cannot be inferred from the unexplained failure of the mother to appear at the hearing.

FCCS’s Proposed Counter Proposition of Law

In a permanent custody proceeding the right to counsel is not absolute and a parent can be found to have waived that right, in which case a court in its discretion may grant a request to withdraw by counsel. Waiver of counsel can be inferred after a consideration of the circumstances of the case when a parent fails to appear for scheduled hearings.

Student Contributor: Paul Taske

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