Right to counsel

In In re D.L., 189 Ohio App. 3d 154, 937 N.E.2d 1042 (Ohio Ct. App. 6th Dist. 2010), a court addressed the right to counsel in certain protective order proceedings. 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 and found a due process right to appointed counsel for respondent juveniles in the civil protection order proceedings (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 § 2151.352. 189 Ohio App. 3d, 154, 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. R.C. § 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).