OH Court of Appeals strengthens parents’ right to counsel in termination of parental rights matters

The Ohio Tenth District Court of Appeals recently held that parents are deprived of the right to counsel in termination of parental rights cases when courts fail to engage in waiver analyses or permit withdrawal without engaging in a waiver analysis. In the matter of J.A.S., No. 22AP-2, No. 22AP-3, No. 22AP-4, 2023 WL 2417775 (Ohio Ct. App. Mar. 9, 2023) (unpublished).  In doing so, it relied on the Ohio Supreme Court’s plurality decision in In re R.K., 95 N.E.3d 394 (Ohio 2018).

In J.A.S., a mother’s parental rights were severed in hearings for which she was absent and unrepresented by counsel.  Although the trial court timely appointed counsel for the mother in the initial proceedings, it excused mother’s counsel at a later hearing on a re-filed petition and failed to appoint a new attorney.  Before excusing the attorney, the trial court asked only whether counsel was having a difficult time contacting the mother and interpreted the attorney’s refusal to accept service on the mother’s behalf as a withdrawal.  The appellate court emphasized the fundamental nature of the parent-child relationship and stated in its decision, “When the state seeks to exercise its authority to terminate parental rights, “parents ‘must be afforded every procedural and substantive protection the law allows.’” (internal citations omitted).  The Court concluded that such a “limited exchange is insufficient to find a parent has waived their right to counsel.”  It reasoned, “After 16 refilings over more than two years with the same appointed counsel, mother could reasonably rely on having appointed counsel to represent her for the duration of the proceedings related to the children.”