Ohio 5th Dist. joins the 6th in recognizing RTC for minor DV respondents

Two Ohio appellate courts have found a due process right to counsel for a juvenile respondents in protective order proceedings.

First, in 2010, in In re D.L., the Sixth District Court of Appeals of Ohio found a due process right to appointed counsel for respondent juveniles in civil protection order proceedings. 937 N.E.2d 1042 (Ohio Ct. App. 2010).  In the case, a parent (on behalf of his son) sought a civil protection order against another juvenile (who was quasi-“represented” by his parent), and the protection order was granted by an Ohio court of common pleas in a hearing in which neither side had counsel.  The court of appeals reversed, finding a due process right to appointed counsel for respondent juveniles, although it did not specify under which constitution.  It first noted that being subjected to a civil protection order is not a criminal offense, and so there is ordinarily no due process protection, but that certain civil proceedings do create a right to counsel in Ohio, such as civil contempt.  Furthermore, the court noted that “in all other cases dealing with children as parties, due process demands that a minor child receive appointed counsel or a guardian to represent him or her: delinquency actions, termination-of-parental-rights cases, and divorce actions when the child’s welfare demands protection.”

The court in In re D.L. concluded that it was aberrant to deny juveniles appointed counsel in civil protection hearings that “may lead to criminal sanctions” (this was a reference either to the court noting earlier that the violation of a civil protection order is a criminal violation, or to the magistrate in the case telling the juvenile that the prosecutor might use evidence from the hearing to file criminal charges).  The court also concluded that the juvenile had not waived his right to counsel, and that “[a]ppellant’s young age alone would indicate that he should have been appointed counsel.”  Curiously, the opinion did not mention Lassiter or the presumption against appointed counsel, or even Mathews, nor did it clarify whether its holding was based on the state or federal constitution (or both).

Of relevance to D.L. is the fact that there is an extremely broad right to counsel in all proceedings in Ohio juvenile courts. See Ohio Stat. § 2151.352.  Because the proceeding at issue in In re D.L. was not in the juvenile court, but rather the court of common pleas, the court could not simply rely on the statute. 937 N.E.2d at 1042.  Instead, the court noted that Ohio HB 10, which went into effect on June 17, 2010 (but was not in effect at the time of Leone) gives juvenile courts the exclusive jurisdiction to issue protection orders against juveniles and creates R.C. § 2151.34, which governs juvenile protection order proceedings. 937 N.E.2d at 1045, n.2.  Ohio Revised Code § 2151.34(O), however, states that “[t]he court, in its discretion, may determine if the respondent is entitled to court-appointed counsel in a proceeding under this section” (emphasis added).  The court did not make note of the fact that its finding of a right to counsel conflicts with the discretionary nature of the new statute, nor the fact that § 2151.352 states children have a right to counsel under all proceedings in juvenile court except those specifically excepted in § 2151.352 (none of which are protection orders).

Then in 2024, the Sixth District applied D.L. to find a right to counsel for a juvenile respondent in a protective order matter. See Beall v. B.A., No. 2023 AP 12 0062, 2024 WL 4215730 (Ohio Ct. App. Sept. 17, 2024) (unpublished). In Beall, the court agreed with the appellant that “the trial court erred as a matter of law when it failed to inquire as to B.A.’s lack of counsel and whether he expressly waived his right to counsel.”  Because a constitutional violation was alleged, the court used a de novo standard of review, rejecting appellee’s contention that the harmless error standard applies.