Supreme Court of Ohio strengthens parental right to counsel

In In re R.K., a mother’s appointed attorney requested to withdraw after the mother failed to appear for the final hearing (apparently due to some medical issue) despite being notified of it by her attorney. 95 N.E.3d 394 (Ohio 2018).  The trial court granted the attorney’s permission to withdraw based on her failure to appear and then terminated the mother’s parental rights, and the Court of Appeals affirmed.

The Supreme Court of Ohio issued a plurality decision.  The main opinion first pointed to the parent’s statutory right to counsel (it did not address the unanswered question about whether its pre-Lassiter decision recognizing a constitutional right to counsel is still good law).  It then stated:

[A] juvenile court must make two inquiries before allowing the attorney for the parent to withdraw.  First, the court must ascertain that counsel’s attempts to communicate with and obtain the cooperation of the client were reasonable, and [s]econd, the court must verify that the failure of this communication resulted in the inability of counsel to ascertain the client’s wishes … [The trial] court made no inquiries into A.S.’s whereabouts, why she was not present, the attorney’s past attorney-client relationship with A.S., or the substance of her response to the attorney’s letter. Instead, the court simply granted the attorney’s oral motion to immediately withdraw, apparently without giving any consideration to whether A.S. had waived her right to counsel. The juvenile court’s apparent stance was that a parent’s failure to appear for a permanent-custody hearing automatically constitutes a waiver of that parent’s right to counsel. We cannot condone that approach … Since counsel was present and presumably was prepared to go forward, the better option would have been to deny the attorney’s motion to withdraw and have him represent the interests of A.S. to the best of his ability.  The attorney had an obligation to protect the rights of his client and to attempt to keep the state from permanently terminating her parental rights … In a case in which we are asked to ratify the civil equivalent of the death penalty, we simply cannot accept absence as acquiescence.  We hold that when the state seeks to terminate a parent’s parental rights, the parent has the right to counsel.  The parent cannot be deprived of that right unless the court finds that the parent has knowingly waived the right to counsel.  Waiver of counsel cannot be inferred from the unexplained failure of the parent to appear at a hearing.

R.K., 95 N.E.3d at 397-20.  This main opinion garned 2 votes, and then there was a concurring opinion that garned another 2 votes; the last 3 votes were a concurrence in judgment only and a 2-vote dissent.  The 2-vote concurrence agreed with the bolded language above, but then noted that the question of whether a parent waived their right to counsel is a slightly different question than whether counsel should be permitted to withdraw.  The concurrence then opted for a different waiver test than the two-prong test described above:

I would adopt—with some modification—the approach commonly used by the Tenth District Court of Appeals in cases of this type. The Tenth District has held that “where a parent ‘fails to maintain contact with counsel, fails to appear for scheduled hearings despite receiving notice of such, and fails to cooperate with counsel and the court, the court may infer that the parent has waived his or her right to counsel and may grant counsel’s request to withdraw.’” … But rather than requiring specific inquiries for determining whether a court may infer that a parent has waived his or her right to counsel, the Tenth District has held that a court must take into account the totality of the circumstances, including the parent’s background, experience, and conduct.  I would add that the trial court should engage in an on-the-record discussion of the factors indicating that a parent has waived the right to counsel.  A finding, based on the totality of the circumstances, that the parent waived the right to counsel is a necessary predicate for continuing with a permanent-custody hearing after allowing the parent’s counsel to withdraw.

R.K., 95 N.E.3d at 400.