BEALL v. B.A., Defendant-Appellant (2024)

OPINION

{¶ 1} Defendant-Appellant B.A. appeals the judgment of the Tuscarawas County Juvenile Court granting a civil protection order requested by Joshua Beall on behalf of his daughter, S.B. We reverse the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On November 21, 2023, Appellant, B.A., appeared before the Tuscarawas County Court of Common Pleas Juvenile Division as respondent in a juvenile civil protection order complaint filed by Appellee, on behalf of his daughter, S.B. The complaint sought a civil protection order against B.A., then 17-years-old, for allegedly physically and verbally attacking and threatening S.B., then 16-years-old. A hearing was conducted before Judge Wilgus. Appellant appeared with his parents and without counsel. The court did not inquire regarding B.A.'s lack of counsel nor if he wished to proceed pro se. It did not explain that if it granted the civil protection order and B.A. violated that order, that it could lead to a delinquency complaint. B.A.'s parents do not speak English. They were provided with an interpreter but did not speak during the hearing. Appellee and his daughter appeared and were represented by counsel.

{¶ 3} Testimony from S.B. indicated B.A. had assaulted her and threatened her life. B.A. cross-examined S.B. and made a statement on his own behalf indicating that S.B. had also been physically violent with him. It was determined that B.A. and S.B. attended the same high school. S.B. had stopped attending in person and was instead attending online because she feared B.A. S.B. desired to begin attending school in person again.

{¶ 4} At the conclusion of the hearing, the trial court granted Appellee's Petition for Juvenile Civil Protection Order. Among other conditions, the trial court prohibited B.A. from attending the same high school as S.B.

{¶ 5} B.A. filed an appeal and the matter is now before this court for consideration. He raises three assignments of error as follow:

I.

{¶ 6} “THE TRIAL COURT DEPRIVED APPELLANT OF HIS RIGHT TO COUNSEL AS AFFORDED BY OHIO AND FEDERAL LAW.”

II

{¶ 7} “THE MOVING PARTY FAILED TO PRESENT ANY EVIDENCE THAT A “FAMILY OR HOUSEHOLD RELATIONSHIP” EXISTED BETWEEN THE PARTIES PURSUANT TO R.C. 3113.31(A)(3). THE TRIAL COURT ACCORDINGLY COMMITTED PREJUDICIAL ERROR AS A MATTER OF LAW IN ISSUING A DOMESTIC VIOLENCE CIVIL PROTECTION ORDER WHEN THE PETITIONER WAS NOT A “HOUSEHOLD OR FAMILY MEMBER” OF RESPONDENT, A REQUIRED ELEMENT BY LAW OF A DOMESTIC VIOLENCE PROTECTION ORDER. AS SUCH, THE TRIAL COURT'S CIVIL PROTECTION ORDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

III

{¶ 8} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ISSUING A VIOLENCE PROTECTION ORDER THAT PREVENTED APPELLANT FROM ATTENDING PUBLIC SCHOOL IN VIOLATION OF HIS CONSTITUTIONALLY PROTECTED RIGHT TO PUBLIC EDUCATION IN VIOLATION OF HIS RIGHTS UNDER R.C. 3301.121(B)(1)(b) AND UNDER THE FEDERAL AND OHIO CONSTITUTIONS. THE TRIAL COURT FURTHER FAILED TO PROVIDE DUE PROCESS TO APPELLANT'S PARENTS WHEN THE TRIAL COURT EFFECTIVELY EXPELLED APPELLANT FROM PUBLIC SCHOOL WITHOUT NOTICE OR A FAIR OPPORTUNITY TO BE HEARD.”

I

{¶ 9} In his first assignment of error, B.A. argues 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. We agree.

{¶ 10} We first note that appellee suggests we review this assignment of error under a harmless error standard of review. But B.A. argues he was deprived of his constitutional right to counsel. An appellate court uses a de novo standard of review to assess errors based upon violations of constitutional law.

{¶ 11} While juvenile proceedings are civil in nature, due process protections, including the right to counsel, still apply. In re Anderson, 92 Ohio St.3d 63, 66, 748 N.E.2d 67 (2001); In re Gault, 387 U.S. 1, 31-58, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In the instant matter, the trial court never explained B.A.'s right to counsel and B.A. never expressly waived his right to counsel.

{¶ 12} In re D.L., 189 Ohio App.3d 154, 2010-Ohio-1888, 937 N.E.2d 1042 (6th Dist.) also involved a civil protection order complaint between juveniles. In that matter the focus was the unauthorized practice of law by the parents of the juveniles involved. However, the court also discussed whether due process protections were required in a civil protection order proceeding. The court noted that while the granting of a civil protection order “is not the equivalent of finding that the person against whom the order is granted has committed a criminal offense,” any violation of that order is a crime which can include criminal penalties. Therefore, “the constitutional protections afforded to a defendant during proceedings involving the violation of a protection order are not available to a defendant in the initial proceeding that created the protection order.” Id. at ¶ 20 citing Toledo v. Lyphout, 2009-Ohio-4596, 2009 WL 2855714 (6th Dist.)

{¶ 13} However, the court further noted that certain civil proceedings, such as a contempt of court charge, do invoke a defendant's due process right to counsel and 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. Even in juvenile court proceedings, which are civil actions, due process protections still apply.” In re D.L. ¶¶ 21-22, citing In re S.B., 121 Ohio St.3d 279, 2009-Ohio-507, 903 N.E.2d 1175 ¶ 10. The D.L. court noted that “a juvenile defendant in a civil protection order proceeding which may lead to criminal violations should have the same due process protections that would be provided in the juvenile court.” Id. at ¶ 22. The court ultimately held “that the advice of counsel is warranted and necessary to protect a juvenile respondent in a civil-protection-order proceeding.” Id. at ¶ 26. We agree.

{¶ 14} A juvenile may nonetheless waive his constitutional right to counsel. That waiver is subject to a totality-of-the-circumstances standard of review that examines whether the trial court considered “the age, intelligence, and education of the juvenile; the juvenile's background and experience generally and in the court system specifically; the presence or absence of the juvenile's parent, guardian, or custodian; the language used by the court in describing the juvenile's rights; the juvenile's conduct; the juvenile's emotional stability; and the complexity of the proceedings.” In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177 at paragraph 4 of the syllabus.

{¶ 15} The record in this matter reflects that the trial court made no inquiry whatsoever as to B.A.'s lack of counsel, whether he desired appointed counsel, or whether he desired to proceed pro se. Because there was no inquiry, there can be no valid waiver. We therefore conclude that the trial court erred in proceeding without inquiring or appointing counsel to protect B.A.'s due process rights and granting an order of protection against an unrepresented juvenile.

{¶ 16} The first assignment of error is sustained. Accordingly, the remaining three assignments of error are rendered moot.

{¶ 17} The judgment of the Tuscarawas County Court of Common Pleas Juvenile Division is reversed.

King, J.

Wise, P.J. and Baldwin, J. concur.