State ex rel. Asberry v. Payne

[This opinion has been published in Ohio Official Reports at 

82 Ohio St.3d 44

.]




                   THE STATE EX REL. ASBERRY v. PAYNE, JUDGE.
              [Cite as State ex rel. Asberry v. Payne, 

1998-Ohio-596

.]
Mandamus to compel judge of common pleas court, juvenile division, to appoint
        counsel for relator in her juvenile court custody proceeding—Writ granted,
        when.
       (No. 97-1915—Submitted March 24, 1998—Decided May 20, 1998.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} In May 1984, Dale Spencer, Jr. (“Dale Jr.”) was born. The Lawrence
County Court of Common Pleas, Probate Division, took custody away from his
biological mother, Karen Wilson. From 1984 until March or May 1997, Dale Jr.
lived with relator, his maternal grandmother, Frances Asberry. In March or May
1997, Dale Jr. began living with his biological father, Dale Spencer, Sr.
(“Spencer”). According to Asberry, she supported Dale Jr. from his birth until
Spencer obtained custody of Dale Jr. by deception in 1997. Spencer and Dale Jr.,
however, claimed that Dale Jr. voluntarily left Asberry’s residence because he was
tired of her drinking, yelling, and swearing.
        {¶ 2} In April 1997, Spencer filed a complaint in the Lawrence County
Court of Common Pleas, Juvenile Division, requesting a judgment finding him to
be the natural father of Dale Jr. Wilson failed to respond to Spencer’s parentage
action. Asberry did not receive notice of the parentage proceeding. In June 1997,
respondent, Juvenile Division Judge David Payne, entered a judgment finding
Spencer to be the natural father of Dale Jr. and awarding Spencer continued custody
of Dale Jr.
        {¶ 3} Asberry subsequently filed her own pro se petition in the juvenile
court. She requested custody of Dale Jr. Asberry also requested the appointment
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of counsel because she was unable to afford to hire an attorney. Asberry’s sole
income is $489 in monthly Social Security benefits. Wilson agreed that placement
of Dale Jr. with Asberry would be in Dale Jr.’s best interest.
       {¶ 4} At a pretrial hearing in Asberry’s custody case, Asberry again
requested an appointed attorney. Judge Payne denied Asberry’s request by stating
the following:
       “In these kinds of cases we generally don’t appoint counsel. This isn’t
something * * * As we say, ‘Life or liberty at risk.’ It’s obviously a very important
case, important circumstances and situation, but it’s not one * * * where you have
specifically a right to a lawyer, and it’s not one obviously that you could be put in
jail or where there’s child support or something being put on your shoulders, and
therefore it’s not a case that we would routinely appoint counsel in.”
       {¶ 5} Asberry then contacted an attorney from the Southeastern Ohio Legal
Services Program concerning her right to counsel in the juvenile court proceeding.
On September 11, 1997, the attorney advised Judge Payne that if he did not appoint
an attorney to represent Asberry, he would file an action for an extraordinary writ
in this court. The attorney also requested a continuance of the juvenile court
proceeding pending the writ action, but Judge Payne informed him that he would
consider such a request only from Asberry or any attorney she hired to represent
her in the custody proceeding. The attorney stated that he was not representing
Asberry in her custody case.
       {¶ 6} Judge Payne proceeded to conduct the hearing on September 11. After
Asberry again requested an attorney and told the juvenile court that she was on
disability and could not afford an attorney, Judge Payne again refused to appoint
one because “[t]he court’s policy * * * is not to appoint counsel in a custody case
of this nature.” On the same date as the custody hearing, Asberry, through attorneys
from the Southeastern Ohio Legal Services Program and the Ohio State Legal
Services Association, filed this action for a writ of mandamus to compel Judge



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                                      January Term, 1998




Payne to appoint counsel for her in the custody proceeding. Following the issuance
of an alternative writ, Judge Payne issued an order designating Spencer as the legal
guardian and residential parent of Dale Jr.1 The parties filed evidence and briefs,
and the Ohio Legal Assistance Foundation, the Association for Children for
Enforcement of Support, Action Ohio, and the Ohio Domestic Violence Network
filed an amici curiae brief in support of Asberry.
         {¶ 7} The cause is now before this court for consideration of the merits of
the petition for a writ of mandamus.
                                     __________________
         Southeastern Ohio Legal Services Program, Gary M. Smith and Mark J.
Cardosi; Ohio State Legal Services Association and Thomas W. Weeks, for relator.
         J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Jeffrey M.
Smith, Assistant Prosecuting Attorney, for respondent.
         John S. Marshall, urging granting of the writ for amici curiae, the Ohio
Legal Assistance Foundation, the Association for Children for Enforcement of
Support, Action Ohio, and the Ohio Domestic Violence Network.
                                     __________________
         Per Curiam.
         {¶ 8} Asberry asserts in her sole proposition of law that she is entitled to a
writ of mandamus to compel the appointment of counsel for her in her juvenile
court custody proceeding. In order to be entitled to the writ, Asberry must establish
that she has a clear legal right to the appointment of counsel, that Judge Payne has
a clear legal duty to appoint counsel for her, and that she has no adequate remedy




1. Neither party asserts that this action is moot because of Judge Payne’s entry. Asberry still might
need counsel to effectively appeal Judge Payne’s ruling. In addition, this action raises an important
issue that is capable of repetition yet might evade review because a pro se litigant might not be fully
aware of his or her legal right to appointed counsel. Cf. Hughes v. Ohio Bur. of Motor Vehicles
(1997), 

79 Ohio St.3d 305, 307

, 

681 N.E.2d 430, 432

.




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in the ordinary course of law. See State ex rel. Howard v. Ferreri (1994), 

70 Ohio St.3d 587, 589

, 

639 N.E.2d 1189, 1192-1193

.
          {¶ 9} Although the United States Constitution does not require the
appointment of counsel to indigent parties to all juvenile court proceedings, “[a]
wise public policy * * * may require that higher standards be adopted than those
minimally tolerable under the Constitution.” Lassiter v. Durham Cty. Dept. of
Social Serv. (1981), 

452 U.S. 18, 33

, 

101 S.Ct. 2153, 2163

, 

68 L.Ed.2d 640, 654

.
Ohio, through R.C. 2151.352, provides a statutory right to appointed counsel that
goes beyond constitutional requirements. In re Mull (Mar. 24, 1997), Seneca App.
No. 13-96-38, unreported, at 5, 

1997 WL 155412

 (“This [R.C. 2151.352] statutory
right to appointment of counsel expands beyond the federal and state constitutional
requirements to afford the right to counsel at juvenile proceedings in general.”); In
re Kriak (1986), 

30 Ohio App.3d 83, 84

, 30 OBR 140, 140-141, 

506 N.E.2d 556, 557

. Asberry claims a clear legal right to the appointment of counsel in her custody
proceeding under R.C. 2151.352. Judge Payne counters that R.C. 2151.352 does
not afford indigent parties like Asberry the right to appointed counsel in custody
actions brought by private persons in juvenile court.
          {¶ 10} R.C. 2151.352 provides:
          “A child, his parents, custodian, or other person in loco parentis of such
child is entitled to representation by legal counsel at all stages of the proceedings
and if, as an indigent person, he is unable to employ counsel, to have counsel
provided for him pursuant to Chapter 120. of the Revised Code. If a party appears
without counsel, the court shall ascertain whether he knows of his right to counsel
and of his right to be provided with counsel if he is an indigent person. The court
may continue the case to enable a party to obtain counsel or to be represented by
the county public defender or the joint county public defender and shall provide
counsel upon request pursuant to Chapter 120. of the Revised Code.” (Emphasis
added.)



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                                January Term, 1998




       {¶ 11} Judge Payne initially contends that R.C. 2151.352 does not confer a
right to appointed counsel on Asberry because the phrase “pursuant to Chapter 120.
of the Revised Code” limits the right to appointed counsel to those cases specified
in R.C. 120.06(A). R.C. 120.06 provides for legal representation by county public
defenders of indigent adults and juveniles charged with the violation of state
statutes and municipal ordinances that could result in the loss of liberty. State ex
rel. Kura v. Sheward (1992), 

75 Ohio App.3d 244, 251

, 

598 N.E.2d 1340, 1345

.
For the following reasons, Payne’s contention is meritless.
       {¶ 12} First, statutory interpretation of R.C. 2151.352 does not support
Judge Payne’s assertion that the right to appointed counsel in R.C. 2151.352 is
limited by R.C. 120.06. The paramount consideration in construing statutes is
legislative intent. State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 

77 Ohio St.3d 338, 340

, 

673 N.E.2d 1351, 1353

. In determining legislative intent, we
must first review the language of the statutes in dispute. State ex rel. Herman v.
Klopfleisch (1995), 

72 Ohio St.3d 581, 584

, 

651 N.E.2d 995, 997

. To the extent
that R.C. 2151.352 and R.C. Chapter 120 both involve the right to counsel for
indigent persons, they involve the same subject matter and should be construed in
pari materia, giving full force and effect to both. State ex rel. Sinay v. Sodders
(1997), 

80 Ohio St.3d 224, 227

, 

685 N.E.2d 754, 758

. Applying these standards, it
is evident that the phrase “pursuant to Chapter 120. of the Revised Code” does not
limit the circumstances in which a person is entitled to appointed counsel under
R.C. 2151.352; it instead incorporates statutory procedures to provide appointed
counsel. Adoption of Judge Payne’s construction would render R.C. 2151.352
superfluous.
       {¶ 13} Second, interpretation of R.C. 2151.352 to restrict the right to
appointed counsel to the cases specified in R.C. 120.06 does not comport with our
statutory duty under R.C. 2151.01(D) to construe R.C. Chapter 2151 to ensure
parties a fair hearing at which their legal rights are recognized and enforced.




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       {¶ 14} Third, Judge Payne’s interpretation of R.C. 2151.352 conflicts with
precedent. In State ex rel. Butler v. Demis (1981), 

66 Ohio St.2d 123, 126-127

, 

20 O.O.3d 121, 123

, 

420 N.E.2d 116, 118-119

, this court expressly held that the right
to appointed counsel under R.C. 2151.352 is not limited to the proceedings
specified in R.C. 120.16(A):
       “Since R.C. 120.33 provides for the appointment by the court of private
counsel in only those proceedings which are specifically provided for in R.C.
120.16(A), the former section alone would not provide relators * * * with the right
to court-appointed counsel; neither relator is charged with a ‘serious offense’ or
involved in a proceeding which may result in the loss of liberty. R.C. 2151.352,
however, specifically makes all juvenile proceedings, in which a party is found to
be indigent, subject to the provisions of R.C. 120.33. Therefore, where a county
has adopted a resolution for appointment of private counsel, the indigent parents of
allegedly abused, neglected and dependent children have a right of representation
by private counsel pursuant to R.C. 120.33.” (Emphasis added.) See, also, Kriak,

30 Ohio App.3d at 84

, 30 OBR at 140-141, 

506 N.E.2d at 557

 (“R.C. 2151.352
establishes an indigent juvenile’s statutory right to the appointment of counsel in
all juvenile proceedings, regardless of whether commitment may result.”).
       {¶ 15} Therefore, under the plain language of R.C. 2151.352, indigent
children, parents, custodians, or other persons in loco parentis are entitled to
appointed counsel in all juvenile proceedings. Butler. This result is consistent with
the holdings of the Third, Fourth, Sixth, Ninth, and Twelfth Appellate Districts, as
well as the interpretation of the Attorney General. Mull; Lowry v. Lowry (1988),

48 Ohio App.3d 184, 188

, 

549 N.E.2d 176, 180

 (“Juv.R. 4[A] and R.C. 2151.352
guarantee the right to counsel for all indigent parties in juvenile court
proceedings.”); In re Ferguson (May 11, 1990), Lucas App. No. L-88-344,
unreported, at 2, 

1990 WL 61103

 (“R.C. 2151.352 and Juv.R. 4[A] provide that
every party to a juvenile proceeding shall have the right to be represented by



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                                January Term, 1998




counsel at all stages of the proceedings, and, if indigent, the right to appointed
counsel.”); Kriak; McKinney v. McClure (1995), 

102 Ohio App.3d 165, 167

, 

656 N.E.2d 1310, 1311

 (“The right to appointed counsel applies to all matters properly
before the juvenile court, including custody and visitation issues.”); 1984 Ohio
Atty. Gen. Ops. No. 84-023, at 2-73 (“The reference to R.C. Chapter 120 in R.C.
2151.352 is not a reference to the circumstances which give rise to the provision of
counsel, but rather, is a reference to the mechanisms for providing counsel.”); 1997
Ohio Atty. Gen. Ops. No. 97-040.
       {¶ 16} While Judge Payne cites a case from the Fifth Appellate District that
reached a contrary conclusion, that case is not persuasive and, in fact, has been
implicitly overruled by a subsequent case from that district. Cf. In re Johnson (Jan.
31, 1994), Stark App. No. CA 9273, unreported, 

1994 WL 45848

 (R.C. 2151.352
“provides for appointed counsel for any indigent party”), with In re Custody of
Stover (Sept. 9, 1993), Guernsey App. No. 92-CA-15, unreported, 

1993 WL 385313

; Fortney v. Hines (Oct. 31, 1990), Tuscarawas App. No. 90AP020018,
unreported, 

1990 WL 173358

; and Lindon v. Lindon (Dec. 21, 1989), Tuscarawas
App. No. 87AP070058, unreported, 

1989 WL 155730

.
       {¶ 17} Judge Payne also relies on a 1994 amendment to Juv.R. 4(A), which
provides that the rule “shall not be construed to provide for a right to appointed
counsel in cases in which that right is not otherwise provided for by constitution or
statute.” See, generally, Kurtz & Giannelli, Ohio Juvenile Law (1997) 208-210,
Section 20.3, discussing the genesis of the 1994 amendment. But Asberry’s right
to appointed counsel emanates from R.C. 2151.352, and the amendment to Juv.R.
4(A) does not abrogate that right.
       {¶ 18} Accordingly, Asberry has established a clear legal right to the
appointment of counsel in her juvenile court custody proceeding and a
corresponding clear legal duty on the part of Judge Payne to appoint counsel. Judge




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Payne concedes that Asberry is an indigent party to the custody proceeding who is
in loco parentis to Dale Jr.2
        {¶ 19} In addition, Asberry lacks an adequate remedy in the ordinary course
of law to challenge Judge Payne’s refusal to appoint her counsel. See State ex rel.
Cody v. Toner (1983), 

8 Ohio St.3d 22, 23

, 8 OBR 255, 256, 

456 N.E.2d 813, 814

(“[I]f relator must wait for an appeal to establish his alleged right to have court-
appointed counsel, he will be denied the opportunity to be legally represented
throughout the course of the adjudication and disposition of his case. Accordingly,
although relator may ultimately appeal an adverse decision rendered in the paternity
action, that remedy cannot be said to be ‘adequate under the circumstances.’ ”);
Butler, 

66 Ohio St.2d at 124

, 

20 O.O.3d at 122

, 

420 N.E.2d at 117

; cf. State ex rel.
Keenan v. Calabrese (1994), 

69 Ohio St.3d 176, 179

, 

631 N.E.2d 119, 122

; In re
Miller (1984), 

12 Ohio St.3d 40, 42

, 12 OBR 35, 36, 

465 N.E.2d 397, 399

. Here,
a pro se appeal by Asberry would not necessarily be complete, beneficial, and
speedy.    In fact, Judge Payne does not contend that any alternative remedy
precludes issuance of a writ here, instead agreeing that this court “must issue the
Writ of Mandamus if indigent litigants in private custody cases in juvenile court
are entitled under the rule or statute to an attorney paid for by public funds.” R.C.
2151.352 requires the appointment of counsel under these circumstances. Judge
Payne thus appears willing to vacate his order and proceed de novo with the custody
proceeding should a writ issue.
        {¶ 20} Based on the foregoing, Asberry has established her entitlement to
the requested writ. Accordingly, we grant a writ of mandamus to compel Judge
Payne to appoint counsel for Asberry in her custody proceeding.



2. A person in loco parentis assumes the same duties as a guardian or custodian, although not
through a legal proceeding. State v. Noggle (1993), 

67 Ohio St.3d 31, 33

, 

615 N.E.2d 1040, 1042

;
Evans v. Ohio State Univ. (1996), 

112 Ohio App.3d 724, 737

, 

680 N.E.2d 161, 169

. Asberry
assumed the duties of a custodian of Dale Jr. from 1984 until 1997.




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                            January Term, 1998




                                                        Writ granted.
      MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                           __________________




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