[Cite as In re J.M.P. , 2017-Ohio-8126.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY

IN THE MATTER OF: : J.M.P., : Case No. 16CA702

: DECISION AND JUDGMENT ENTRY :

:

APPEARANCES: Anne S. Rubin, William H. Fraser, and Douglas L. Rogers, Athens, Ohio, for Appellant. Anthony Moraleja, Waverly, Ohio, for Appellee. Judith B. Goldstein, Columbus, Ohio, for Amici Curiae Family and Youth Law Center at Capital University Law School and the National Coalition for a Civil Right to Counsel. CIVIL CASE FROM COMMON PLEAS COURT, PROBATE DIVISION DATE JOURNALIZED: 9-29-17 Abele, J. {¶ 1} This is an appeal from a Vinton Count y Common Pleas Court, Probate Division, decision that denied a request to appoint counsel for B.L.G., respondent below and appellant herein, in the adoption proceeding involving appellant’s biological child. Appellant raises the following assignments of error:

FIRST ASSIGNMENT OF ERROR:

“A FATHER HAS A CONS TITUTIONALLY PROTECTED INTEREST IN COMPANIONSHIP, CARE, CUSTODY AND NURTURE OF HIS CHILD AGAINST THE POWER OF THE STATE IN ADOPTION PROCEEDINGS.”VINTON, 16CA702 2

SECOND ASSIGNMENT OF ERROR: “THE EQUAL PROTECTION CLAUSES REQUIRE OHIO PROBATE COURTS TO APPOINT COUNSEL FOR INDIGENT PARENTS IN ADOPTION PROCEEDINGS, SINCE OHIO STATUTES REQUIRE THE APPOINTMENT OF COUNSEL FOR INDIGENT PARENTS IN JUVENILE COURT PROCEEDINGS.”

THIRD ASSIGNMENT OF ERROR: “UNDER THE U.S. AND OHIO CONSTITUTIONS, DUE PROCESS REQUIRES THE PROBATE COURT IN AN ADOPTION PROCEEDING TO FOLLOW THE BALANCING TEST IN MATHEWS AND CODY AND, IN THIS CASE, APPOINT COUNSEL.”

FOURTH ASSIGNMENT OF ERROR:

“PROBATE COURTS IN OHIO HAVE THE AUTHORITY TO APPOINT COUNSEL FOR INDIGENT PARENTS.”

{¶ 2} On May 17, 2016, S.C.P. filed a petition to adopt his stepchild. The petition alleged that appellant’s consent is not required because he failed without justifiable cause to provide more than de minimis contact with the child for a period of at least one year immediately preceding the filing of the adoption petition or th e placement of the minor in S.C.P.’s home. Appellant filed a pro se objection to the petition. {¶ 3} Appellant subsequently reque sted the trial court to a ppoint counsel to represent him. Appellant asserted that he “need[s] an atto rney to help me present defenses and to protect my Constitutional right to have an on-going parent/child relationship with my [child].” OnVINTON, 16CA702 3 August 31, 2016, the court denied his motion. This appeal followed. 1

I {¶ 4} Initially, we observe that appellant’s thoroughly researched and well-written brief unfortunately does not designate pr oper assignments of error. Hi s “assignments of error” do not assign any error to the trial court’s ruling. See Painter and Dennis, Ohio Appellate Practice (2007 Ed.), Section 1.45 (stating that “the assignments of error * * * set forth the rulings of the

trial court * * * conte nded to be erroneous”); see also App. R. Rule 16 (1992 staff notes) (setting forth an example of a proper a ssignment of error as, “The tr ial court erred in overruling defendant-appellant’s motion for di rected verdict. (Tr. ____)”). Instead, appellant framed his assignments of error as propositi ons of law. While a proposition of law is appropriate in an appellate brief to the Ohio Supreme Court, an “assi gnment of error” is appr opriate in an appellate brief to an Ohio appellate court. See State v. Noling , 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶63 (O’Donnell, J., dissenting) (noting that “appellate courts consider assignments of error, while [the supreme] court considers propositi ons of law). The tw o are materially and substantively different”); App.R. 16(A)(3); S.Ct. R. P. 6(B)(1). Because appellant does not raise appropriate assignme nts of error, we would be within our discretion to simply disregard his arguments. Headings v. Ranco, Inc. , 3 rd Dist. Union No. 14–04–33, 2005–Ohio–1095, ¶6 (explaining that appella te court may disregard argument improperly pres ented as proposition of law); State v. Maxson , 66 Ohio App.3d 32, 36, 583 N.E.2d 402 (1 st Dist. 1990) (declining to address an appellant’s alleged error “[b]ecause the assignme nt is advanced as a proposition of

1 In In re J.B.B. , 4

th Dist. Scioto No. 09CA3335 (Mar. 2, 2010), we entered an order concluding that a trial court’s decision to deny a parent’s request to appoint counsel in an adopti on proceeding constitutes a final, appealable order.VINTON, 16CA702 4 law rather than as an assignment of error, [and] it does not comply with the Appellate Rules”); see also Eberhard Architects, L.L.C. v. Schottenstein, Zox & Dunn Co., L.P.A. , 8th Dist. Cuyahoga No. 102088, 2015-Ohio-2519, 2015 WL 3899367, ¶ 16 (stating that appellate court need not address argument if appellant fails to present it as an assignment of error in accordance with appellate rules). An appellate court may, however, “reach the merits of an argument if the assignments of error [are] ‘readily discernabl e’ from the propositions of law, and where the opposing party ha[s] responded as if the pr opositions were assignments of error.” Eberhard

Architects at ¶16, citing JPMorgan Chase Bank, N.A. v. Allton , 10th Dist. Franklin No. 14AP–228, 2014–Ohio–3742, ¶6–7; Carter–Jones Lumber Co v. Denune , 132 Ohio App.3d 430, 432, 725 N.W.2d 330 (10th Dist. 1999). {¶ 5} In the case at bar, we readily discern that appellant’s improperly-framed assignments of error challenge the trial court’s decision to de ny his request for appointed counsel. Furthermore, appellee has responded to appellant’s ch allenge as if he presented properly-framed assignments of error. We will, therefore, consider the “assignments of error” to the extent that they relate to the trial court’s alleged error in denying appellant’s request for appointed counsel.

II {¶ 6} Appellant’s “assignments of error” essentially assert that the trial court erred as a matter of law by denying his reque st for appointed counsel. Appe llant claims that the court’s failure to appoint counsel to re present him in the adoption pro ceeding involving his biological child violates both the equal pr otection and due process clauses of the United States and Ohio

constitutions.VINTON, 16CA702 5

A {¶ 7} We first point out that during the trial court proceedings, appellant did not specifically raise any of the arguments he now raises on appeal. Instead, his motion generally alleged that he is indigent and that the trial court must appoint counsel in order to protect his constitutional right to maintain the parent-child relationship. While we recognize that appellant

attached as an exhibit to his motion a Franklin County probate court deci sion that touches on the constitutional issues, appe llant did not expressly argue the c onstitutional issues in his motion. Thus, although appellant generally referenced the constitutiona l arguments that might be made, he did not argue them and explain how they appl y to his case. Under these circumstances, we believe appellant forfeited the right to raise the arguments he now raises for the first time on appeal. Independence v. Office of the Cuyahoga Cty. Executive , 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶30 (stating that “an appellant generally may not raise an argument on appeal that the appellant has not raised in the lower courts”); State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶21 (explaining that defendant forfeited his constitutional challenge by failing to raise it during trial court proceedings); Gibson v. Meadow Gold Dairy , 88 Ohio St.3d 201, 204, 724 N.E.2d 787 (2000) (concluding that party waived constitutional arguments for purposes of appeal when party failed to raise those arguments during trial court proceedings); State ex rel. Gutierrez v. Trumbull Cty. Bd. of

Elections , 65 Ohio St.3d 175, 177, 602 N.E.2d 622 (1992) (e xplaining that an appellant cannot “present * * * new arguments for the first time on appeal”); accord State ex rel. Jeffers v. Athens Cty. Commrs. , 4th Dist. Athens No. 15CA27, 2016-Ohio-8119, 2016 WL 7230928, fn.3 (stating that “[i]t is well-settled that failure to raise an argument in the trial court results in waiver of theVINTON, 16CA702 6 argument for purposes of appeal”); State v. Anderson , 4th Dist. Washington No. 15CA28, 2016-Ohio-2704, 2016 WL 1643247, ¶24 (explaining that “constitutional arguments not presented in the trial court are deemed to be waived and may not be raised for the first time on appeal”). We may, however, c onsider appellant’s arguments us ing a plain-error analysis. See Risner v. Ohio Dept. of Nat. Resources, Ohio Div. of Wildlife , 144 Ohio St.3d 278, 42 N.E.3d 718, 2015–Ohio–3731, 42 N.E.3d 718, ¶27 (stating that reviewing court ha s discretion to consider forfeited constitutional challenges); see also Hill v. Urbana , 79 Ohio St.3d 130, 133–34, 679 N.E.2d 1109 (1997), citing In re M.D. , 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus (stating that “[e]ven where [forfeiture] is clear, [a ppellate] court[s] reserve[] the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests i nvolved may warrant it’”); State v. Pyles , 7th Dist. Mahoning No. 13–MA–22, 2015–Ohio–5594, ¶82, quoting State v. Jones , 7th Dist. No. 06–MA–109, 2008–Ohio–1541, ¶65 (explaining that the plain erro r doctrine “‘is a wholly discretionary doctrine’”); DeVan v. Cuyahoga Cty. Bd. of Revision , 8th Dist. Cuyahoga No. 102945, 2015–Ohio–4279, ¶9 (noting that appe llate court retain s discretion to consider forfeited argument). {¶ 8} For the plain error doctrine to apply, the party claiming error must establish (1) that “‘an error, i.e., a deviation from a legal ru le’” occurred, (2) that th e error was “‘an “obvious” defect in the trial proceedings,’” and (3) that this obvious error affected substantial rights, i.e., the

error “‘must have affected the outcome of the trial.’” State v. Rogers , 143 Ohio St.3d 385, 2015–Ohio–2459, 38 N.E.3d 860, ¶22, quoting State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); Schade v. Carnegie Body Co. , 70 Ohio St.2d 207, 209, 436 N.E.2d 1001,VINTON, 16CA702 7 1003 (1982) (“A ‘plain error’ is obvious and pr ejudicial although neither objected to nor affirmatively waived which, if permitted, would have a material adverse affect on the character and public confidence in judicial proceedings.”). For an error to be “plain” or “obvious,” the error must be plain “under current law” “at the time of appellate consideration.” Johnson v.

United States , 520 U.S. 461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord Barnes , 94 Ohio St.3d at 27; State v. G.C. , 10 th Dist. Franklin No. 15AP-536, 2016-Ohio-717, ¶14. {¶ 9} The plain error doctrine is not, however, readily invoked in civil cases. Instead, an appellate court “must proceed with the utmost caution” when applying the plain error doctrine

in civil cases. Goldfuss v. Davidson , 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The Ohio Supreme Court has set a “very high standard ” for invoking the plain e rror doctrine in a civil

case. Perez v. Falls Financial, Inc. , 87 Ohio St.3d 371, 721 N.E.2d 47 (2000). Thus, “the doctrine is sharply limited to the extremely rare case involving exceptiona l circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss , 79 Ohio St.3d at 122; accord Gable v. Gates Mills , 103 Ohio St.3d 449, 2004–Ohio–5719, 816 N.E.2d 1049, ¶ 43. Moreover, a ppellate courts

“‘should be hesitant to decide [forfeited errors] for the reason th at justice is far better served

when it has the benefit of briefi ng, arguing, and lower court cons ideration before making a final

determination.’” Risner at ¶28, quoting Sizemore v. Smith , 6 Ohio St.3d 330, 332, 453 N.E.2d 632 (1983), fn. 2; accord Mark v. Mellott Mfg. Co., Inc. , 106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th Dist.1995) (“Litigants must not be per mitted to hold their arguments in reserve for appeal, thus evading the trial court process.”).VINTON, 16CA702 8 {¶ 10} In the case sub judice, we do not believe that the trial court plainly erred by failing to appoint counsel for appellant. Most pertinently, as we explai n below, we do not believe that any error that the court may have arguably ma de by failing to appoint counsel constitutes a “plain” or “obvious” error under current law.

B {¶ 11} “The right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law.” In re Adoption of Masa , 23 Ohio St.3d 163, 164, 492 N.E.2d 140 (1986), citing Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); accord Lassiter v. Durham Cty. Dept. of Social Servs. , 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), quoting Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) (explaining that “a parent’s desire for and right to ‘the companionship, care, custody, and management of his or he r children’ is an important interest”); In re C.F. , 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶28 (statin g that “[t]he right to parent one’s children is a fundamental right”). Indeed, “the upbringing of children [is] among [the] associational rights th[e United States Supreme] Court has ranked as ‘of basic importance in our society.’” M.L.B. v. S.L.J. , 519 U.S. 102, 116–17, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), quoting Boddie v. Connecticut , 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (citations omitted); accord In re B.C. , 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, 2014 WL 5285371, ¶17, citing M.L.B. , 519 U.S. at 116 (“A parent’s rela tionship with his or her child is among the ‘associational rights’ sheltered by the Fourteenth Amendment to the United States Constitution against unwarranted usurpation, di sregard, or disrespect by the state.”); Lehr v.

Robertson , 463 U.S. 248, 257–58, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), quoting Prince v.VINTON, 16CA702 9

Massachusetts , 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed.2d 645 (1944) (“‘[T]he custody, care and nurture of the child reside first in the pa rents, whose primary func tion and freedom include preparation for obligations the state can neither s upply nor hinder.’”). “‘[T ]he interest of parents in their relationship with their ch ildren is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.’” M.L.B. , 519 U.S. at 119, quoting Santosky , 455 U.S. at 774 (Rehnquist, J., dissentin g). Consequently, the parent-child relationship “‘undeniably warrant s deference and, absent a pow erful countervailing interest, protection.’” Lassiter , 452 U.S. at 27, quoting Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); M.L.B. , 519 U.S. at 116 (stating that the parent-child relationship deserves “shelter[] * * * against the State’s unw arranted usurpation, disr egard, or disrespect”). 2 {¶ 12} “‘[F]ew consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B. , 519 U.S. at 119, quoting Santosky , 455 U.S. at 787 (Rehnquist, J., dissenting). “[P]arental status termination is ‘irretrievabl[y] destructi[ve]’ of the most fundamental family re lationship” and permanently destroys “‘ all legal recognition of the parental relationship.’” Id. at 121, 127–28 quoting Santosky , 455 U.S. at 753, and Rivera , 483 U.S. at 580 107 S.Ct., at 3005. Thus, “‘state intervention to terminate [a parent-ch ild] relationship * * *

2 For purposes of this appeal only, we assume, without deciding , that a private adoption proceeding in probate court constitutes

state action. See M.L.B. , 519 U.S. at 116 and fn.8 (considering case as “involving the State’s authority to sever permanently a parent-child bond” and noting that “[a]lthough the termination proceeding in th is case was initiated by private parties as a prelude to an a doption petition, rather than by a state agency, the challenged state action remains essentially the same: M.L.B. resists the impositio n of an official decree extinguishing, as no power other than th e State can, her parent-c hild relationships”); State ex rel. Portage Cty. Welfare Dept. v. Summers , 38 Ohio St.2d 144, 151, 311 N.E.2d 6 (1974) (holding “that ad option is a function which requires the exercise of the judicial power which is constitutionally vested in the courts of this state”); see also State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587, 591-592, 639 N.E.2d 1189 (1994) (concluding that state-action requirement satisfied in case involving private placement adoption agency, which perf ormed “traditional governmental function”).VINTON, 16CA702 10 must be accomplished by procedures meeting th e requisites of the Due Process Clause.’” Lehr , 463 U.S. at 258, quoting Santosky , 455 U.S. at 752; accord In re Adoption of Zschach , 75 Ohio St.3d 648, 653, 665 N.E.2d 1070 (1996) (recognizing that adoption procedures, which terminate a parent’s fundamental right, mu st comply with due process); In re Adoption of Greer , 70 Ohio St.3d 293, 298, 638 N.E.2d 999 (1994) (determining that parent facing loss of parental rights through adoption entitled to ade quate notice and an opportunity to be heard). Additionally, “decrees forever terminating parental rights [fall] in the category of cases in which the State may not ‘bolt the door to equal justice.’” M.L.B. , 519 U.S. at 124, quoting Griffin v. Illinois , 351 U.S. 12, 24, 76 S.Ct. 585, 100 L.Ed.2d 891 (1956) (Frankf urter, J., concurring in judgment). {¶ 13} Cases involving the permanent termin ation of an “undeniably important” parent-child bond “demand[] * * * close consideration.” Id. at 116-117. Court thus should approach parental rights termination cases, which include adoption cases, “‘mindful of the gravity’ of the circumstances and the long-term impact on all the concerned parties.” In re Adoption of P.A.C. , 126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236, ¶6, quoting M.L.B. , 519 U.S. at 117; see In re Adoption of Greer , 70 Ohio St.3d 293, 298, 638 N.E.2d 999 (1994) (recognizing that adoption “terminates all pa rental rights of a natural parent”). {¶ 14} With these considerations in mind, we pr oceed to consider appellant’s argument that he has a constitutional right to appointed counsel in the adoption proceeding involving his biological child.

C {¶ 15} Appellant first asserts that denying him the right to appointed counsel in this adoption proceeding deprives him of the equal prot ection of the law. Appellant notes that R.C.VINTON, 16CA702 11 2151.352 affords appointed counsel to an indigent parent in an abuse, neglect, and dependency proceeding who faces parental rights terminati on, but that no similar provision affords appointed counsel to an indigent parent in an adopti on proceeding, who also faces parental rights termination. Appellant cl aims that the differing treatment of similarly-situated indigent parents in cases involving the fundamental right to parent a child violates the Equal Protection Clauses of

the United States and Ohio Constitutions. Howe ver, because appellant did not specifically request the trial court to consider the equal-protection implica tions of his request for appointed counsel, we must review a ppellant’s equal-protection ar gument for plain error. {¶ 16} The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution states: “No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Ohio’s Equal Protec tion Clause, Article I, Section 2 of the Ohio Constitution, provides: “All political power is inhere nt in the people. Government is instituted for their equal protection and benefit * * *.” “These two equal-protection provisions are functionally equivale nt and require the same analysis.” State v. Aalim , Slip Opinion, 2017-Ohio-2956, 2017 WL 2274997, ¶29, citing Eppley v. Tri–Valley Local School Dist. Bd. of

Edn. , 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶11. {¶ 17} The basic meaning of “equal protection of the laws” is that “all persons similarly

situated should be treated alike.” Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Lehr , 463 U.S. at 265 (“The concep t of equal justice under law requires the State to govern impartially.”). “Simply stated, the Equal Protection Clauses require

that individuals be treated in a manner similar to others in like circumstances.” McCrone v. Bank One Corp. , 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E .2d 1, ¶6. The equal-protectionVINTON, 16CA702 12 provisions do not, however, “‘deny to [the] State the power to treat different classes of persons in different ways.’” Eisenstadt v. Baird , 405 U.S. 438, 446–447, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), quoting Reed v. Reed , 404 U.S. 71, 75, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); accord State v. Noling , 149 Ohio St.3d 327, 2016-Ohio-8252, ¶12. Instead, the equal-protection provisions prohibit legislation that treats “simila r groups differently based on criteria that are unrelated to the purpose of the law.” Noling at ¶13, citing Johnson v. Robison , 415 U.S. 361, 374, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); Lehr , 463 U.S. at 265 (“The sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.”). {¶ 18} “The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.”

Cleburne , 473 U.S. at 440; accord Noling at ¶14. If, however, the cl assification involves either a suspect class or a fundamental right, it will be upheld only if the challenged classification is narrowly tailored to serve a compelling state interest. State v. Thompson , 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶13; e.g., Regents of Univ. of California v. Bakke , 438 U.S. 265, 357, 98 S.Ct. 2733, 2782, 57 L.Ed.2d 750 (1978); see Aalim at ¶31; Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶40 (recognizing parental rights as fundamental and employing strict scrutiny in substantive due process analysis). This standard of review places a heavy burden on the government to show that there is a compelling state interest for the regulation. Brown v. Entertainment Merchants Assn., 564 U.S. [786], 131 S.Ct. 2729, 2738, 180 L.Ed.2d 708 (2011). The rule must also be shown to be “the least restrictive means among available, effective alternatives” of furthering that interest. Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146VINTON, 16CA702 13 L.Ed.2d 865 (2000).

In re Judicial Campaign Complaint Against O’Toole , 141 Ohio St.3d 355, 2014-Ohio-4046, 24 N.E.3d 1114, ¶20. {¶ 19} In the case sub judice, we are unable to c onclude that the tria l court plainly erred by failing to determine that de nying appellant appointed counsel in this adoption proceeding deprives appellant of th e equal protection of the law. While we assume, arguendo, that the strict scrutiny standard applies, we do not find it plain or obvious that denying an indigent parent appointed counsel in an adoption proceeding depriv es the parent of the equal protection of the law. Appellant has not cited any decisions from this court, the Ohio Supreme Court, or the United States Supreme Court holdi ng that the different treatment among indigent parents in private adoption proceedings and in state-initia ted parental rights te rmination proceedings violates equal protection principles . Any error that the trial court might have made, therefore, is not a plain or obvious error under current law. 3 {¶ 20} Accordingly, based upon the foregoing reasons, we find a ppellant’s equal protection argument without merit.

D {¶ 21} Appellant next asserts that the trial court’s decision to deny him the right to

3 Although the state need not be made a party to the proceedings, we find it difficult to evaluate whether the state has a compelling state interest without allowing the state an opportunity to address the issue. See Ruble v. Ream , 4

th Dist. Washington No. 03CA14, 2003-Ohio-5969, ¶15 (noting that Atto rney General need not be notified of proceedings involving constitutionality of st ate law unless action originates as a declaratory judgment action under R.C. 2721.12, and thus, court ha s jurisdiction to consider cons titutionality of state law initiated in ordinary civil action).VINTON, 16CA702 14 appointed counsel deprives him of due process of law. 4 {¶ 22} The Due Process Clause contained in the Fourteenth Amendment to the United States Constitution states: “No State shall * * * deprive any person of life, liberty, or property, without due process of law * * *.” The Due Course of Law Clause in Article I, Section 16 of the Ohio Constitution provides: “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputa tion, shall have remedy by due c ourse of law, and shall have justice administered without denial or delay.” The two clauses provide equivale nt due process protections. State v. Aalim , Slip Opinion, 2017-Ohio-2956, 2017 WL 2274997, ¶15; State v.

Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, ¶11; Direct Plumbing Supply Co. v. Dayton , 138 Ohio St. 540, 544–545, 38 N.E.2d 70 (1941). {¶ 23} “Procedural due process imposes constr aints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process

Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). “‘[D]ue process’ has never been, and pe rhaps can never be, precisely defined.” Lassiter , 452 U.S. at 24. Instead, due process is “a flexible concept that varies depending on the importance attached to the interest at stake and the particular

circumstances under which the deprivation may occur.” Aalim at ¶22, citing Walters v. Natl.

4 Appellant does not raise a substantive due process argument. See, e.g., State ex rel. Cincinnati Enquirer v. Craig , 132 Ohio St.3d 68, 2012-Ohio-1999, 969 N.E.2d 243, 2012 WL 1648905, ¶ 14 (2012), quoting Kallstrom v. Columbus , 136 F.3d 1055, 1064 (6th Cir.1998) (explaining that “[w]here state action infringes upon a fundamental right, such action will be upheld under the subst antive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is n arrowly drawn to further that state interest.”).VINTON, 16CA702 15 Assn. of Radiation Survivors , 473 U.S. 305, 320, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). “Applying the Due Process Clause is therefore an uncertain enterprise which must discover what

‘fundamental fairness’ cons ists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.” Lassiter , 452 U.S. at 24–25; accord Aalim at ¶22; In re B.C. , 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶17, citing Santosky , 455 U.S. at 753–754 (“In the context of termination of pare ntal rights, due process requires that the state’s procedural safegu ards ensure that the termination proceeding is fundamentally fair.”). “The fundamental requirement[s] of due process [are notice and] the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Eldridge , 424 U.S. at 333, quoting Armstrong v. Manzo , 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965);

B.C. at ¶17. {¶ 24} Determining what process is due and whether a parental rights termination proceeding is fundamentally fa ir generally require s courts to consider three factors: First, the private interest that will be a ffected by the offici al action; second, the risk of an erroneous depriv ation of such interest thr ough the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, includi ng the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Eldridge , 424 U.S. at 335; accord Lassiter , 452 U.S. at 27; B.C. at ¶18. {¶ 25} An indigent person ordinarily does not have a due process right to appointed

counsel in a civil case. M.L.B. , 519 U.S. at 119; State ex rel. McQueen v. Cuyahoga Cty. Court of Common Pleas, Probate Division , 135 Ohio St.3d 291, 2013-Ohio-65, 986 N.E.2d 925, ¶9; State ex rel. Burnes v. Athens Cty. Clerk of Courts , 83 Ohio St.3d 523, 524, 700 N.E.2d 1260VINTON, 16CA702 16 (1998) (stating that “unlike crimin al litigation, there is no genera l right of counsel in civil litigation”); State ex rel. Jenkins v. Stern , 33 Ohio St.3d 108, 110, 515 N.E.2d 928, 930–31 (1987). Instead, an indigent Ohio citizen is en titled to appointed counsel in a civil case when counsel is statutorily- or constitutionally-mandated. State v. Bode , 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶13-15 and 19 (noting that juveniles have constitutional, due process right to counsel in delinquency proceed ings–which are civil proceedings–as well as statutory right); State ex rel. McQueen at ¶9 and 19 (concluding that plain language of statute required appointed counsel), citing State ex rel. Asberry v. Payne , 82 Ohio St.3d 44, 693 N.E.2d 794 (1998); see Liming v. Damos , 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, 28 (evaluating claimed due process right to counsel during purge hearing of contempt proceeding using Eldridge test). {¶ 26} The United States Supreme Court has not recognized a federal due process right to appointed counsel for indige nt parents in all parental ri ghts termination proceedings.

Lassiter , 452 U.S. at 31–32 (explaining that the Unite d States Constitution does not require “the appointment of counsel in every pare ntal termination proceeding”). In Lassiter , the Court initially noted that it generally recognized “an i ndigent’s right to appointed counsel * * * only where the litigant may lose his physical liberty if he lose s the litigation.” Id. at 25. Thus, “as a litigant’s interest in pe rsonal liberty diminishes, so does [t he litigant’s] right to appointed

counsel.” Id. at 26. The Lassiter court concluded an indigent litigant has a presumed “right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Id. at

26–27. {¶ 27} The court declined to impose a constituti onal requirement that requires appointedVINTON, 16CA702 17 counsel for an indigent parent in a parental rights termination pr oceeding and, instead, stated that trial courts must evaluate the facts and circumstances of each case in light of the three factors

identified in Eldridge : “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” Id. at 27; id. at 31–32; accord M.L.B. , 519 U.S. at 117 (recognizing that Lassiter adopted a “case-by-case” approach that a trial court should evaluate in the first instance) . Once the trial court balances the Eldridge factors, it then must weigh the net effect of those factors “against the presumption that there is a right to appointed counsel only where the i ndigent, if he is unsuccessful, may lose his pe rsonal freedom.”

Lassiter at 27. {¶ 28} The Lassiter court examined how the Eldridge factors generally applied to parental rights termination proceedings. In examining the private interest at stake, the court observed that “[a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is * * * a commanding one.” Id. The court determined that the state, which “has an urgent interest in the welfare of the child, * * * shares the parent’s interest in an accurate and just decision.” Id. The court thus found that “the St ate may share the i ndigent parent’s interest in the availability of appointed counsel.” Id. The court explained that “the State’s interest in the child’s welfare may perhaps best be served by a hearing in which both the parent and the State acting for the child are represen ted by counsel, without whom the contest of interests may become unwholesomely unequal.” Id. at 28. {¶ 29} The court concluded, however, that “[t]he State’s interests * * * clearly diverge from the parent’s insofar as the State wishes the termination deci sion to be made as economically as possible and thus wants to avoid both the expe nse of appointed counsel and the costs of theVINTON, 16CA702 18 lengthened proceedings his presence may cause.” Id . The court neverthe less did not believe that the State’s economic interest is “signi ficant enough to overcome” the parent’s private interest in maintaining the parent-child relationship. {¶ 30} The court next examined “the risk that a parent will be erroneously deprived of his or her child because the parent is not represented by counsel.” Id . The court reviewed the parental rights termination pro cedures involved in the matter and further noted that “the ultimate issues with which a termination hearing deals are not always simple, however commonplace they may be.” Id. at 30. The court found that “the comple xity of the proceeding and the incapacity of the uncounseled parent could be , but would not always be, great enough to make the risk of an erroneous deprivation of the parent’s rights insupportably high.” Id. at 31. {¶ 31} The Lassiter court did not, however, conclude that the balancing of the factors, weighed against the presumption that there is not a right to appointed counsel, shows that an indigent parent always has a due process right to counsel in a ll parental rights termination proceedings. Rather, the court explained: If, in a given case, the parent’s interests were at their strongest, the State’s interests were at their weakest, and the risks of error were at their peak, it could not be said that the [Mathews v.] Eldridge[, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ] factors did not overcome the pres umption against the right to appointed counsel, and that due process di d not therefore require the appointment of counsel. But since the Eldridge factors will not always be so distributed, and since “due process is not so rigid as to require that the significant interests in informality, flexibility and economy must always be sacrificed,” Gagnon v. Scarpelli , 411 U.S., at 788, 93 S.Ct., at 1762, neither can we say that the Constitution requires the appointment of c ounsel in every parental termination proceeding. We therefore adopt the standard found appropriate in Gagnon v. Scarpelli , and leave the decision whether due pr ocess calls for the appointment of counsel for indigent parents in termination proceedings to be answered in the first instance by the trial court, subject, of course, to a ppellate review. See, e. g., Wood v. Georgia , 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220.VINTON, 16CA702 19

Id. at 31–32. {¶ 32} The court further explained that because “‘[t]he facts and circumstances * * * are susceptible of almost infinite variation,’” “‘[i]t is neither po ssible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due pr ocess requirements.’” Id. at 32, quoting Scarpelli , 411 U.S. at 790. The court stated, howev er, that “[a] wise public policy” may be to provide indigent parents w ith appointed counsel in parental termination, as well as neglect and dependency, proceedings. Id. at 33-34. {¶ 33} The Lassiter court ultimately held that the unde rlying facts and circumstances

showed that the mother was not entitled to counsel in the proceeding to terminate her parental rights. The court observed that the mother showed little interest in rekindling a relationship with her child and that the presence of counsel would not have made a difference to the outcome of the proceedings. Id. at 32-33. {¶ 34} A year prior to Lassiter , the Ohio Supreme Court held that the United States and Ohio Constitutions’ due process and equal protection provisions require appointed counsel for indigent parents in state-initiated parental rights termination cases. State ex rel. Heller v.

Miller , 61 Ohio St.2d 6, 399 N.E.2d 66 (1980), paragra ph two of the syllabus (“[i]n actions instituted by the state to force the permanent, involuntary termination of parental rights, the United States and Ohio Constitutions’ guarantees of due process and equal protection of the law require that indigent parents be provided with counsel and a tr anscript at public expense for appeals as of right.”); In re Baby Girl Baxter , 17 Ohio St.3d 229, 232, 479 N.E.2d 257 (1985),VINTON, 16CA702 20 citing Heller (recognizing earlier holding “that the state mu st appoint counsel fo r indigent parents at parental termination proceedings”). The court has not, however, specifically incorporated the same requirement in priv ate adoption cases. In In re Adoption of Zschach , 75 Ohio St.3d 648, 653–54, 665 N.E.2d 1070 (1996), the court held that Oh io’s adoption procedures requiring notice and an opportunity to be heard “ad equately protect a [parent’s] c onstitutionally protected right.”

The Zschach court did not mention that appointed couns el in an adoption proceeding involving an indigent parent is constitutionally required. {¶ 35} This court previously rejected the noti on that a constitutional right to counsel exists in private adoption proceedings. In re Adoption of M.C. , 4 th Dist. Jackson Nos. 11CA5 and 11CA6, 2011-Ohio-6527, 2011 WL 6372834, ¶8-12. Other Ohio appella te courts have

concluded likewise. In re Adoption of I.M.M., 5th Dist. Ashland No. 16 COA 018, 2016–Ohio–5891, ¶17; Angus v. Angus , 10 th Dist. Franklin Nos. 14AP-22 and 14AP-159, 2014-Ohio-4225, 2014 WL 4748485, ¶19 (stating that ri ght to appointed counsel generally provided in juvenile and domestic court proceedings “when the st ate is the initiating and primary actor in a proceeding that will result in a termina tion of parental rights” and that “[t]here is no authority in Ohio for a right to counsel in a pr oceeding where the state is not the initiating entity and the parentage dispute merely reflects proceedings between individual parties”); In re Adoption of Drake, 12th Dist. No. CA2002–08–067, 2003–Ohio–510; see In re Adoption of

J.L.M-L. , 5th Dist. Muskingum No. CT-2016-0030, 2017-Ohio-61, 2017 WL 90636, ¶12, appeal not allowed, 148 Ohio St.3d 1446, 2017-Ohio -1427, 72 N.E.3d 658 (refusing to recognize

ineffective assistance of counsel claim in a doption context when no constitutional right to counsel in adoption proceedings).VINTON, 16CA702 21 {¶ 36} Additionally, appellant has not cited, and we are unaware of any, governing statute or rule that provides i ndigent parents with the right to appointed counsel in adoption proceedings between private parties. We recognize that R.C. 2151.352 allows for the appointment of counsel in mo st juvenile court proceedings . However, no similar statute authorizes the appointment of c ounsel in probate court proceedings , in general, or in adoption proceedings, in particular. 5 {¶ 37} Therefore, based upon the current state of the law, we do not find it obvious that an indigent parent possesses a c onstitutional due process or statut ory right to appointed counsel in every adoption proceeding. While application of the Lassiter factors might support a right to appointed counsel in some adoption proceedings, Lassiter made clear that tr ial courts should answer the question in the first instance based upon all of the facts and circ umstances in the case.

Lassiter , 452 U.S. at 31–32 (stating that “the decision whether due process calls for the appointment of counsel for indige nt parents in termination proceed ings [should] be answered in the first instance by the trial court, subject, of course, to appellate review”); accord M.L.B. , 519 U.S. at 117 (recognizing that Lassiter adopted a “case-by-case” approach that a trial court should evaluate in the first instance). {¶ 38} In the case at bar, appellant did not reque st the trial court to analyze appellant’s right to counsel using the Eldridge balancing factors and did not pr esent any argument how those

5 According to long-standing law, “[e]xclu sive jurisdiction over adoption proceedings is vested in the Probate Court.” In re Adoption of Biddle , 168 Ohio St. 209, 152 N.E.2d 105 (1958); accord State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas Court, Prob. Div. , Slip Opinion, 2016-Ohio-7382, 2016 WL 6123595, ¶24; In re Adoption of Pushcar , 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, ¶9; State ex rel. Portage Cty. Welfare Dept. v. Summers , 38 Ohio St.2d 144, 149, 311 N.E.2d 6 (1974).VINTON, 16CA702 22 factors apply to his situation. We therefore are limited to reviewing wh ether the trial court plainly erred by not concluding that the Eldridge factors support a finding that due process requires appointed counsel in this case. After our review, we are unable to state that the trial court obviously erred by failin g to conclude that the Eldridge factors support a ppellant’s claim that he is entitled to appointed couns el. We again point out that in Zschach , the Ohio Supreme Court considered a parent’s due process argument in the adopti on context and did not find that appointed counsel was necessary to satisfy due process. Admittedl y, the court did not explicitly discuss the right to appointed counsel, but th e court did find that Ohio’s existing adoption procedures comply with due process. {¶ 39} Moreover, applying the Eldridge factors to this case does not obviously lead to a conclusion that due process requi res appellant to ha ve appointed counsel in this adoption proceeding. While we find it obvious that appellant has a strong f undamental interest at stake in the adoption proceeding, we do not find it obvious that appellant’s in terest outweighs the remaining factors so as to balan ce in favor of a right to appointed counsel. For example, it is not clear whether this adoption proceeding carries a high risk of error if appellant is not provided counsel. Unlike permanent custody cas es, which the court considered in Lassiter , adoption cases may not be exceedingly complex, nor do they always involve expert medical or psychiatric testimony. See Lassiter , 452 U.S. at 30. Furthermore, pare nts involved in adoption proceedings may not be individuals “with little education, who have had uncommon difficulty in dealing with life,” and who are in the same type of distressed s ituations as parents involved in

state-initiated termin ation proceedings. Id. In the case at bar, it is not clear that the circumstances of the present adoption proceeding “may combine to overwhelm” appellant. Id.VINTON, 16CA702 23 Consequently, we are unable to conclude that the trial court plainly erred by failing to determine

that the Eldridge factors balance in favor of a ppointing counsel for appellant. 6 {¶ 40} As a final note, even if we agree with the principle that affording appointed counsel to an indigent parent in a privat e adoption proceeding is a “wise public policy,” see

Lassiter , 452 U.S. at 33, we are not a policy-making body. Instead, the Ohio General Assembly is the policy-making body in this state. Groch v. Gen. Motors Corp. , 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶212, quoting (“It is not th is court’s role to establish legislative policies”); Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶21, quoting State ex rel. Cincinnati Enquirer , 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶21 (explaining that “[a] fundamental prin ciple of the constitutiona l separation of powers among the three branches of government is that the legislative branch is ‘the ultimate arbiter of public policy’”); see SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC , 137 S.Ct. 954, 967, 197 L.Ed.2d 292 (2017) (stating that court “cannot overrule Congress’s judgment based on [its] own policy views”). Thus, while we recognize appellant’s and amici curiae’s policy arguments, we are not willing to create a policy when it is not obviously constitutionally required under the Ohio or United States Constitutions. Arbino at ¶113 (stating that “the General Assembly is re sponsible for * * * making policy decisions; [courts] are charged with evaluating the constitutionality of their choices”). {¶ 41} We also fully recognize that the Ohio Supreme Court is free to interpret the Ohio constitution’s due process provision so as to provide a right to appointed counsel in private

6 We point out that nothing appears to proh ibit the trial court from reconsidering appellant’s request for appointed counsel at some future point in the proceedings, if later factual developments show that the Eldridge factors tilt in favor of appointing counsel.VINTON, 16CA702 24 adoption proceedings. We, however, do not believe that the current state of the law would support our decision to interpret the Ohio constitution in this manner. {¶ 42} Accordingly, based upon the foregoing reas ons, we do not believe that the trial court erred by failing to conclude that appella nt possesses a due process right to appointed

counsel. {¶ 43} Consequently, we hereby ove rrule appellant’s four “a ssignments of error” and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.VINTON, 16CA702 25 Harsha, J., dissenting: {¶ 44} I respectfully dissent from the majority decision, which affirm s the trial court’s judgment denying the biological father’s right to counsel in this private adoption proceeding. I

conclude we should exercise our di scretion and address the merits of J.C.J.’s assignment of error without using the more restrictiv e plain-error standard of review . The Supreme Court of Ohio recently held in the context of an adoption case that “ ‘[w]hen an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, we may consider and resolve that implicit issue.’ ” In re Adoption of P.L.H. , __ Ohio St.3d __, 2017-Ohio-5824, __ N.E.3d __, ¶ 22, quoting Beveldere Condominium Unit Owners’ Assn. v. R.E. Roark Cos.,

Inc. , 67 Ohio St.3d 274, 279, 617 N.E.2d 1075 (1993). “Sta ted another way, ‘if we must resolve a legal issue that was not raised below in order to reach a legal issue that was raised, we will do

so.’ ” Id. , quoting Belvedere , 67 Ohio St.3d at 279. {¶ 45} The issue of whether the trial court prope rly denied J.C.J.’s right to appointed counsel necessarily encompasses hi s claims on appeal that the righ t is constitutionally protected. J.C.J. raised his constitutional right to maintain his parent-child relationship in his motion for appointed counsel and attached a probate court decision and a ppellate brief from another case raising equal-protection and due-process issues. Under these circumstances he did not forfeit or waive his right to raise these constitutional issues on appeal, so the merits are properly before us. Consequently, we should not apply th e stricter plain-e rror review here. {¶ 46} J.C.J. raises constitutional equal-protection issues that are potentially meritorious. For example, see generally 2 Haralambie, Handling Child Custody, Abuse and Adoption Cases , Section 14:3 (2016), which states that “[b]ecause a contested adoption incl udes as a component aVINTON, 16CA702 26 termination of parental rights, a parent generally has a right to appointed counsel in a contested adoption where such a right is granted in termination cases in that state”; see also In re Adoption of A.W.S. , 339 P.3d 414, ¶ 27 (Mont.2014), and cases cited th erein (“Courts that have considered the right to counsel for private termination proceedings on equal prot ection grounds have found that the right cannot be provided in state-initiate d termination proceedings but denied in private terminations”). Likewise , courts have held that due proce ss warrants the appointment of counsel in contested adoption cases. See, e.g., In re Adoption of J.E.V. , 141 A.3d 254 (N.J.2016) (due process requires the appointment of counsel for indigent pare nts in a contested adoption). {¶ 47} Here the trial court did not engage in the requisite balancing of interests required by Eldridge, 424 U.S.319, 96 S.Ct. 893, 47 L.Ed.2d 18 to resolve J.C.J’s constitutional claims. Instead it appears to apply a bla nket rule prohibiting the appointment of counsel in all contested private adoption cases. Therefore we should su stain the assignment of error and vacate the judgment of the trial c ourt with a remand for a full considera tion of J.C.J.’s right to appointed

counsel.VINTON, 16CA702 27

JUDGMENT ENTRY It is ordered that the judgment be affirm ed and that appellee recover of appellant

the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issu e out of this Court directing the Vinton County Common Pleas Court, Probate Division, to carry these judgments into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appe llate Procedure. McFarland, J.: Concurs in Judgment & Opinion Harsha, J.: Dissents with Dissenting Opinion

For the Court

BY: Peter B. Abele, JudgeVINTON, 16CA702 28

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this doc ument constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.