[Cite as In re A.P., 2014-Ohio-5244.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

In the Matter of: : 

 No. 14AP-23 

A.P., : (C.P.C. No. 12JU11-15205)

[P.R., : (REGULAR CALENDAR) 

 Appellant]. : 

 

D E C I S I O N 

Rendered on November 25, 2014 

 

Sharon Carney-Packard, Guardian ad Litem for A.P. 

Varner Law Office, and Carrie M. Varner, for appellant. 

Jennifer M. Riley, for appellee Franklin County Children 

Services. 

 

APPEAL from the Franklin County Court of Common Pleas, 

Division of Domestic Relations, Juvenile Branch 

KLATT, J. 

{¶ 1} Appellant, P.R., appeals a judgment of the Franklin County Court of 

Common Pleas, Division of Domestic Relations, Juvenile Branch, that awarded legal 

custody of P.R.'s son, A.P., to A.P.'s maternal grandmother, P.F. For the following 

reasons, we affirm. 

{¶ 2} P.R. is the mother of A.P., who was born on December 27, 2007. A.P. is 

severely autistic. In March 2012, Franklin County Children Services ("FCCS") removed 

A.P. from his P.R.'s care due to her poor mental health. P.R. had been charged with child 

endangerment after hitting her daughter, but the Franklin County Municipal Court ruled 

that she was not competent to stand trial and committed her to a psychiatric hospital. 
No. 14AP-23 2 

Based on these circumstances, the trial court found that A.P. was a dependent child, and it 

granted temporary custody of A.P. to FCCS. 

{¶ 3} On February 6, 2013, FCCS moved for a court order terminating its 

temporary custody and granting legal custody of A.P. to P.F. P.R. opposed that motion. 

The matter proceeded to a trial before a magistrate. In her decision, the magistrate found 

that P.F., who had been caring for A.P. while he was in FCCS' temporary custody, had 

done an excellent job providing for A.P.'s extensive and complicated needs. P.R., on the 

other hand, had failed to offer any evidence that she could handle raising A.P., particularly 

given that P.R.'s mental health issues, which include paranoia, put her at odds with those 

who would help her. The magistrate concluded that it was in A.P.'s best interest to remain 

in P.F.'s care, and thus, she recommended that the trial court grant FCCS' motion. 

{¶ 4} In an interim order dated October 7, 2013, the trial court adopted the 

magistrate's decision. P.R. then objected to the magistrate's decision. Both of P.R.'s 

objections challenged findings of fact in the magistrate's decision. 

{¶ 5} In addition to filing objections, P.R. moved for an order directing that the 

trial transcript be prepared at public expense due to her indigency. P.R. supplemented 

her motion with an affidavit of indigency, in which she stated that her monthly income 

was $2,482.58. 

{¶ 6} The trial court denied P.R.'s motion for a transcript at public expense. The 

trial court granted P.R. a continuance to obtain the transcript, but P.R. failed to file one. 

In a judgment dated January 9, 2014, the trial court dismissed P.R.'s objections, ruling 

that, due to the lack of a transcript, it had to presume that the magistrate correctly 

interpreted the facts. 

{¶ 7} P.R. now appeals from the January 9, 2014 judgment, and she assigns the 

following error: 

THE LOWER COURT COMMITTED ERROR WHEN THE 

TRIAL JUDGE DENIED APPELLANT, AN INDIGENT 

MOTHER, THE RIGHT TO A TRANSCRIPT AT STATE 

EXPENSE[.] 
No. 14AP-23 3 

{¶ 8} By her sole assignment of error, P.R. argues that, due to her indigency, she 

has a constitutional right to a transcript at public expense.1 We disagree. 

{¶ 9} The issue before this court is whether the United States Constitution and/or 

Ohio Constitution require the state to pay for and provide a transcript to an indigent 

parent when, in an action instituted by the state, a magistrate recommends granting legal 

custody of a child to someone other than a parent. Unfortunately, no federal or Ohio 

court has addressed this precise issue. However, both federal and Ohio courts have 

addressed an indigent parent's right to a transcript, as well as appointed counsel, in the 

context of permanent termination of parental rights. Therefore, we turn to that precedent 

for illumination. 

{¶ 10} In State ex rel. Heller v. Miller, 61 Ohio St.2d 6 (1980), the Supreme Court 

of Ohio examined whether an indigent parent had a right to appointed counsel and a 

transcript at public expense in an appeal of an order terminating parental rights. The 

court stated that such a right could only exist under the constitutional guarantees of due 

process and equal protection of law found in the Fourteenth Amendment to the United 

States Constitution, and in Article I, Sections 1, 2, 16, and 19 of the Ohio Constitution. Id.

at 8. After reviewing precedent elucidating these constitutional provisions, the court 

concluded that: 

the right of personal choice in family matters, including the 

right to live as a family unit, is a fundamental due process 

right. Cases involving the involuntary, permanent termination 

of parental rights are unique. In these cases, the parents are 

in the position of protecting this fundamental due process 

right for both themselves and the child. Failure to give 

indigent parents an effective right of appeal when other 

parents are given such a right impinges on both their own and 

the child's fundamental interests under the equal protection 

and due process clauses. 

Id. at 13. Thus, the Supreme Court of Ohio held that, "[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 

 

1

 For purposes of the following discussion, we will presume that P.R. is indigent. 
No. 14AP-23 4 

indigent parents be provided with counsel and a transcript at public expense for appeals 

as of right." Id. at paragraph two of the syllabus. 

{¶ 11} Approximately one year after the Supreme Court of Ohio issued Heller, the 

United States Supreme Court decided Lassiter v. Dept. of Social Servs., 452 U.S. 18 

(1981). In Lassiter, the Supreme Court considered whether the Due Process Clause of the 

Fourteenth Amendment entitled an indigent parent to the assistance of counsel in 

parental status termination proceedings. The court reviewed its precedent regarding the 

right to appointed counsel. From that precedent, the court drew the presumption that an 

indigent litigant has a right to appointed counsel only when, if he loses, he may be 

deprived of his physical liberty. Id. at 26-27. The court then applied the three factors set 

forth in Mathews v. Eldridge, 424 U.S. 319 (1976), to the situation where a parent's rights 

are terminated and considered whether the net weight of those factors rebutted the 

presumption that there is no right to appointed counsel in the absence of a potential 

deprivation of physical liberty. In the end, the court concluded that no definitive answer 

existed. The court held that whether due process required the appointment of counsel to 

indigent parents depended on the exigencies of each particular case. Lassiter at 31-32. 

{¶ 12} The Supreme Court of Ohio discussed Lassiter in a 1984 case that addressed 

whether an indigent parent had a constitutional right to counsel at all meaningful stages 

of parental neglect proceedings. In re Miller, 12 Ohio St.3d 40 (1984). The court 

recognized that, in light of Lassiter, it had overstated the scope of the protections of the 

United States Constitution in Heller. Turning to the question at bar, the court held that 

"[t]here is no constitutional requirement that appellant be afforded counsel at temporary 

custody proceedings." Miller at 41; accord In re Moore, 9th Dist. No. 19217 (Dec. 15, 

1999) (holding no constitutional error occurred where the trial court failed to appoint 

counsel to a mother before granting legal custody of the children to their grandmother); 

In re Hitchcock, 120 Ohio App.3d 88, 101 (8th Dist.1996) (stating that constitutional 

protections "are given only where an award of permanent custody is being considered 

because, under permanent custody, all of the parent's rights to his or her child are 

terminated"). 

{¶ 13} The next case relevant to our analysis is M.L.B. v. S.L.J., 519 U.S. 102 

(1996). There, the United States Supreme Court considered whether a state could 
No. 14AP-23 5 

condition appeals from trial court decrees terminating parental rights on the affected 

parent's ability to pay record preparation fees. The fee at issue arose from a state statute 

and procedural rule, both of which mandated that the appellant pay the cost of a 

transcript if the appellant intended to challenge a finding or conclusion as unsupported by 

or contrary to the evidence. 

{¶ 14} After reviewing its decisions concerning access to judicial processes, the 

Supreme Court concluded that, in such cases, due process and equal protection principles 

converge. "The equal protection concern relates to the legitimacy of fencing out would-be 

appellants based solely on their inability to pay core costs," while "[t]he due process 

concern hones in on the essential fairness of the state-ordered proceedings anterior to 

adverse state action." Id. at 120. 

{¶ 15} To determine the constitutionality of a restriction on access to judicial 

processes, a court must "inspect the character and intensity of the individual interest at 

stake, on the one hand, and the State's justification for its exaction, on the other." Id. at 

120-21. Ordinarily, courts only examine fee requirements for rationality. Id. at 123. In 

such ordinary cases, "[t]he State's need for revenue to offset costs * * * satisfies the 

rationality requirement." Id. However, in three categories of cases, fee requirements 

must fall. One of those categories consists of cases in which a court forever terminates 

parental rights. Id. at 124. 

{¶ 16} As a final matter, the Supreme Court emphasized that striking down fees in 

parental termination cases would not "open floodgates" to the abolishment of fees in all 

domestic relations matters. The court stated: 

[W]e have repeatedly noticed what sets parental status 

termination decrees apart from mine run civil actions, even 

from other domestic relations matters such as divorce, 

paternity, and child custody. * * * To recapitulate, termination 

decrees "wor[k] a unique kind of deprivation." Lassiter, 452 

U.S., at 27, 101 S.Ct., at 2160. In contrast to matters 

modifiable at the parties' will or based on changed 

circumstances, termination adjudications involve the 

awesome authority of the State "to destroy permanently all 

legal recognition of the parental relationship." Rivera [v. 

Minnich], 483 U.S. [574], 580 [(1984)]. 

Id. at 127-28. 
No. 14AP-23 6 

{¶ 17} In the precedent we have set forth above, the determinative factor is the 

permanent termination of the parent-child relationship. The total, irreversible 

elimination of parental rights triggers constitutional protection and entitles an indigent 

parent to waiver of fees and/or assistance of appointed counsel. Any lesser court action—

such as the denial of temporary custody over the child—does not. 

{¶ 18} The case at bar does not involve the termination of parental rights. Here, 

the trial court granted legal custody to P.F. Unlike a grant of permanent custody, the 

grant of legal custody does not terminate the parent-child relationship. A parent who 

loses legal custody of a child retains certain residual parental rights, privileges, and 

responsibilities, as well as the right to request return of legal custody in the future. R.C. 

2151.011(B)(21); R.C. 2151.353(F)(2); In re L.D., 10th Dist. No. 12AP-985, 2013-Ohio3214, ¶ 7; In re D.H., 10th Dist. No. 11AP-761, 2012-Ohio-2272, ¶ 8. 

{¶ 19} Because this case does not involve the termination of parental rights, we 

must apply the rational-basis test to determine whether the United States and Ohio 

Constitutions require the provision of a transcript to P.R. due to her indigency. M.L.B. at 

123. The state's need to protect the public coffers justifies its refusal to supply transcripts 

of dispositional proceedings to indigent parents where legal custody is at issue. See id. 

Accordingly, the trial court did not deprive P.R. of any constitutional right when it denied 

her request for a transcript at public expense. 

{¶ 20} For the foregoing reasons, we overrule P.R.'s sole assignment of error, and 

we affirm the judgment of the Franklin County Court of Common Pleas, Division of 

Domestic Relations, Juvenile Branch. 

Judgment affirmed.

CONNOR and LUPER SCHUSTER, JJ., concur.