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9th District overturns Summit County child custody ruling
TRACEY BLAIR
Legal News Reporter
Published: December 17, 2021
The 9th District Court of Appeals has determined a Summit County Juvenile Court improperly terminated a woman’s parental rights and awarded permanent custody of the child to Children Services.
Appellant Mother and Father are the biological parents of J.S., now 12 years old. The parents were divorced but living together, along with J.S. and his half-sibling, another child of Father. Both children had previously been involved with the agency, but J.S. had been returned to Mother’s legal custody, while the half-sibling had been returned to Father’s legal custody.
Because Mother and Father had a history of opiate abuse and Mother had untreated mental health issues, the Summit County Children Services Board filed a complaint alleging the children were abused (endangered) and dependent children. Both children were removed and placed in the emergency temporary custody of the agency.
Mother was present for the first review hearing. Although she continued to use illegal drugs despite her participation in medically assisted treatment with suboxone and methadone, she was employed, had appropriate housing, and visited regularly with J.S.
By the first sunset hearing, Father had ceased participating in the case. Mother was present with her attorney. All participating parties agreed to return J.S. to Mother’s legal custody under the protective supervision of CSB.
At the next review hearing, the agency alleged Father had abandoned the child, that J.S. had been in the temporary custody of the agency in excess of 12 months during a consecutive 22-month period, and that permanent custody was in the best interest of the child.
The juvenile court found the agency had used reasonable efforts to finalize a permanency plan for the child, and it scheduled pretrial and permanent custody hearing dates. The juvenile court copied both Mother and her attorney on this order.
In a separate order, the juvenile court stated the permanent custody hearing would be conducted via Zoom. The order added that the link would be sent to attorneys of record to share with their clients, but that parties could request the link by emailing the court. This order was copied to Mother’s attorney but not to Mother personally.
There is no dispute that CSB properly served Mother with notice of the permanent custody hearing. At the pretrial which was attended only by attorneys involved in the case, the juvenile court granted the motion of attorney Michael George to withdraw as counsel for mother based upon her failure to maintain contact with him.
The juvenile court held a hearing on the agency’s motion for permanent custody. Mother was neither present nor represented by counsel at the hearing. After the hearing, the juvenile court terminated both parents’ parental rights and placed J.S. in the permanent custody of CSB.
On appeal, Mother’s newly appointed counsel argued the trial court committed plain error by allowing her original attorney to withdraw, and for denying Mother the right to be represented at the permanent custody hearing.
In her 3-0 opinion, 9th District Judge Lynne Callahan agreed.
“Because the juvenile court never made the requisite finding that Mother knowingly waived her right to counsel prior to allowing her attorney to withdraw, this court must reverse,” Judge Callahan stated. “We further reject CSB’s argument that this court is required to presume regularity in the absence of a transcript of the pretrial. This is not the case in which the appellant failed to request a transcript of the key proceedings, i.e., the pretrial. In fact, Mother requested preparation of the transcript from the pretrial. As any off-the-record discussion was not preserved for transcription, however, no record of the pretrial colloquy was created for this court’s review.
“In the absence of the requested transcript of any recording evidencing that the juvenile court had made the requisite finding during the pretrial prior to granting counsel’s motion to withdraw, the trial court should have made the necessary finding in its judgment entry. It did not. The juvenile court’s judgment instead granted counsel’s oral motion to withdraw without first making the required finding that Mother had effectively waived her right to counsel. Mother’s assignments of error are sustained.”
Ninth District judges Jennifer Hensal and Donna J. Carr concurred. The case is cited In re J.S., 2021-Ohio-4078.