Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Sept. 11, 2019

State of Ohio v. Michael Madison, Case no. 2016-1006
Cuyahoga County Common Pleas Court

Nationwide Mutual Fire Insurance Company v. Barbara Pusser et al., Case no. 2018-1137
Seventh District Court of Appeals (Mahoning County)

Columbus Bar Association v. Natalie J. Bahan, Case no. 2019-0219
Logan County

In the Matter of the Adoption of Y.E.F. and In the Matter of the Adoption of M.M.F., Case nos. 2019-0420 and 2019-0421
Fifth District Court of Appeals (Delaware County)

Serial Killer Attacks Jury Selection in Appeal of Death Sentence

State of Ohio v. Michael Madison, Case no. 2016-1006
Cuyahoga County Common Pleas Court

Michael Madison of East Cleveland was convicted of the 2012 and 2013 murders of three women and the disposal of their bodies in garbage bags. Madison challenges aspects of the trial and his death sentence in his automatic appeal to the Ohio Supreme Court.

Police Discover First Body
An employee of East Cleveland Cable contacted police on July 19, 2013, because of a lingering stench and hundreds of flies coming from one of the garages shared by the company and residents of the building where the cable company was located. The East Cleveland Police Department responded.

Officers discovered a large garbage bag next to a car that Madison parked in his shared garage. The bag contained a dead body, later identified as 18-year-old high school student Shirellda Terry. Her parents had reported her missing nine days earlier when she didn’t return home from her summer job.

Police tried unsuccessfully to reach Madison that day, but eventually found him at his mother’s house. Following his arrest, Madison, 35, made statements that led police to search for more bodies in the areas near his apartment.

Detectives discovered a body in a nearby field and another in the basement of an abandoned house close to Madison’s apartment. Both were wrapped in multiple layers of garbage bags, and the bodies were positioned and bound in a similar manner to Terry’s. The body found in the field was identified as Shetisha Sheeley, 28, and the body from the house was Angela Deskins, 38.

Indictments Handed Down in Deaths of Three Women
A Cuyahoga County grand jury indicted Madison in July 2013 on 14 counts, including aggravated murder, kidnapping, rape, and abuse of a corpse. The murder counts included specifications that allowed for a death sentence. In March 2016, Madison waived his right to a jury on a weapons charge and on specifications alleging he was a sexually violent predator, was a repeat violent offender, and had a prior conviction. A jury considered the remaining counts.

In May 2016, the jury found Madison guilty of all counts it considered. In the trial’s mitigating phase, three expert witnesses testified for the defense, and one testified for the state. Following the testimony, the jury recommended a death sentence.

The court imposed the death penalty as well as 50 years to life in prison on the non-capital counts. In the court’s separate consideration of the weapons charge and certain specifications, it found Madison guilty.

In his automatic appeal to the Ohio Supreme Court, Madison raises 20 legal issues to support his arguments for a new trial or a new sentencing hearing.

Madison Focuses Arguments on Selection of Jurors
Madison devotes nearly 80 pages of his brief to assertions contesting the selection and exclusion of jurors for his trial. The brief argues that, given there was little question that Madison was involved in the murders, it was key to identify jurors who would consider mitigating factors and be open to all possible sentences, including those other than death.

A defendant may request that a court remove a prospective juror for cause if the juror would automatically vote for the death penalty irrespective of the facts, the trial court’s instructions, or the required weighing of the aggravating and mitigating circumstances, Madison maintains, He cites the U.S. Supreme Court ruling in Morgan v. Illinois (1992), which states:

“[A] State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”

Madison contends that the trial court restricted him from adequately questioning several potential jurors about whether a death sentence would be the only sentence the juror would consider based on a summary of the crimes. He maintains that the court instead relied on superficial questions about whether jurors would follow the law despite their beliefs. The trial court also blocked questions involving the concept that jurors determine individually, based on their own morality, whether a particular fact is mitigating, Madison states.

He maintains that at least nine potential jurors were ineligible to serve because of their views on considering sentences other than death in this type of case or because of their views minimizing the relevance of mitigation in the case. He asserts that he was forced to use his peremptory challenges to keep six of these jurors off the jury, but three others remained on the panel. When the death penalty is imposed, the seating of merely one juror holding such restrictive perspectives means the death sentence must be overturned, he states.

In contrast, Madison notes, the court dismissed three other jurors at the state’s request because they were opposed to the death penalty. Their views, however, didn’t impair their ability to serve as jurors, he argues. Despite their opposition or reluctance to impose the death penalty, these jurors – like the ones allowed on jury who were biased toward imposing death – said they would weigh the aggravating and mitigating factors as required by law, Madison maintains. He adds that the court also unconstitutionally removed jurors who held religious beliefs against the death penalty.  

Madison concludes that the trial court used an unfair double standard that favored seating jurors biased toward the death sentence.

Trial Court’s Limits on Questioning of Potential Jurors Were Proper, State Maintains
The Cuyahoga County Prosecutor’s Office counters that Madison wasn’t barred from asking questions to determine whether a prospective juror was biased. The prosecutor acknowledges that Morgan permits a defendant to explore during voir dire whether a potential juror is predisposed to impose death, because a juror who is unwilling to consider mitigating factors isn’t following the law. However, the potential jurors in this case had a basic understanding of the case from the indictment and the jury questionnaire, and Madison’s approach went too far by asking them “emotionally-laden, highly fact specific, legally inaccurate questions,” the prosecutor argues.

The prosecutor also maintains that Madison’s statements to jurors about considering mercy and any discussion of mitigating circumstances specific to this case were properly limited by the trial court. Overall, the trial court allowed enough questioning of the potential jurors to decide which ones weren’t suitable, constitutionally, to sit on the jury in a death penalty case, the office argues.

The nine jurors Madison references each said they could put their personal beliefs aside, so the trial court didn’t need to remove them for cause based on bias, the prosecutor states. The office contends that Madison picked selectively from the transcripts of the jury questioning and that these jurors made clear at other times in their responses that they wouldn’t automatically vote for a death sentence regardless of the circumstances.

As for the three jurors Madison identified who were excused for cause, the prosecutor maintains that they either held firm during questioning to their jury questionnaire answer that they would never impose the death penalty or they refused to follow the law without first hearing the evidence. Their removal was within the trial court’s discretion, the prosecutor states.

A 1986 U.S. Supreme Court decision (Lockhart v. McCree) offers direction about jurors who oppose the death penalty because of their religious beliefs, the prosecutor states. Jurors can’t be excluded because they are part of a distinctive group, such as those based on race, sex, or heritage. However, the prosecutor counters, groups with shared attitudes, such as religious beliefs, can be excluded because that attitude is within the individual’s control. Because these beliefs would prevent or substantially impair them from following the law in this case, the court can remove these jurors, the office reasons.

Madison Contends that Critical Expert Testimony Wasn’t Allowed
During the mitigation phase of the trial, Dr. Mark Cunningham, a forensic psychologist, presented testimony for the defense. He discussed Madison’s toxic upbringing with his mother and the men brought into Madison’s life. Madison, whose father was absent, was subjected to ongoing physical abuse by his mother and some of these men – abuse that in certain instances was documented by children services agencies. Cunningham also discussed additional negative family influences, Madison’s frequent moves during his childhood, and a family history of substance use and psychological disorders.

Madison contests the trial court’s decision to restrict Cunningham’s presentation about research describing the ways that adverse factors in childhood, and the lack of protective factors such as positive role models or clear standards for behavior, impair or limit a person’s ability to make good choices. His brief notes that state law requires a jury to consider information presented by the defendant about his or her history, character, and background as well as “any other factors that are relevant to the issue of whether the person shall be sentenced to death.”

Cunningham’s testimony on these points wouldn’t have involved legal opinions or conclusions, but instead would reflect his expertise in these areas and the rulings of the U.S. Supreme Court in certain capital cases, Madison maintains. He contends that a reasonable probability exists that at least one juror would have viewed this additional evidence as significant enough to impose a life, rather than a death, sentence.

State Indicates that Psychologist Was Given Much Leeway in Presentation
The prosecutor responds that Cunningham improperly tried to instruct the jurors how to weigh the mitigating factors against the aggravating circumstances in this case. In the prosecutor’s view, part of Cunningham’s testimony was to focus on “moral culpability,” but that concept isn’t related to mitigating factors and the trial court correctly restricted such statements. While Cunningham could comment on how certain risk factors affected Madison’s life, he couldn’t conclude that those factors made Madison less culpable, the prosecutor argues.

The state maintains that Cunningham told the jury that Madison’s psychology, as formed by factors beyond his control, compromised his free will. This was a “backdoor attempt” to argue a defense of diminished capacity, which was inappropriate at that phase, the prosecutor contends.

The office also disputes that Cunningham was thwarted from explaining adverse developmental factors and the scientific connection between these factors and choice. Cunningham testified at length about this topic, and the court stopped further commentary when it determined the testimony already had been established and was repetitive, the prosecutor states.

Additional Issues Raised in Appeal
Among Madison’s other claims:

  • He alleges misconduct by the prosecutor during jury selection and the trial
  • He contests the admission of the video and audio of Madison’s multi-day interrogation without adequate redactions
  • He challenges the introduction of several statements, including one referencing Cleveland serial killer Anthony Sowell, by Madison and two women who knew him.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Michael Madison: Timothy Sweeney, 216.241.5003

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Christopher Schroeder, 216.443.7733

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Is Insurance Provision that Policy ‘May’ or ‘Could’ Be Voided for Misstatements Sufficient Notice to Insured?

Nationwide Mutual Fire Insurance Company v. Barbara Pusser et al., Case no. 2018-1137
Seventh District Court of Appeals (Mahoning County)


  • Does an insurance policy sufficiently warn the insured of the consequences of a misstatement that is a “warranty” when the policy states that it “may be held void ab initio,” or back to the date of inception, for such misstatements?
  • Is an insurer required to void a policy and return an insured’s premium before filing for declaratory judgment in court?

Diane Lapaze applied for an automobile insurance policy with Nationwide Mutual Fire Insurance Company in March 2011. At the time, Lapaze’s sister, Barbara Pusser, was living with her. As part of the application, Lapaze listed herself as the only household member of driving age. Nationwide issued her the policy.

Lapaze was diagnosed in 2012 with dementia. On Aug. 13, 2012, Pusser, who didn’t have a driver’s license, was driving Lapaze’s car in Youngstown when she struck and killed Robert D. Boak, who was walking along the road. Dennis Lehman was the driver of another vehicle involved in the accident.

In February 2014, Nationwide filed a complaint for declaratory judgment in Mahoning County Common Pleas Court against Pusser; Lapaze’s legal guardian (Thomas Kane); Robert Boak, who is the administrator of the deceased Boak’s estate; and Lehman. The insurer argued it didn’t owe liability coverage to any of the defendants because Lapaze made false statements in her insurance application.

Policy Was Void Back to Its Inception, Trial Court Concludes
Nationwide and Boak’s estate each filed motions for summary judgment. In March 2017, the court denied the request from Boak’s estate and granted summary judgment to Nationwide. The court stated that the policy was “void ab initio,” or back to its beginning, because of Lapaze’s breach of “warranties” regarding the disclosure of all drivers and operators in the household. Nationwide, then, wasn’t obligated to provide coverage.

Boak’s estate appealed to the Seventh District Court of Appeals, which reversed the trial court decision. The Seventh District concluded that the insurance policy used the words “may” and “could” in the relevant provisions, which didn’t clearly and unambiguously indicate that an insured’s misstatements would void the policy back to the date it was issued (void ab initio). The appeals court also determined that, according to the policy, it wasn’t cancelled because Nationwide didn’t return Lapaze’s premium. Summary judgment was granted to the estate.

Nationwide appealed to the Ohio Supreme Court, which agreed to accept the case. The Ohio Insurance Institute filed an amicus curiae brief supporting Nationwide, while the Ohio Association for Justice and a Cleveland law firm submitted separate amicus briefs in support of the positions advocated by Boak’s estate.

Supreme Court Precedent in Insurance Arena
In Allstate v. Boggs (1971), the Ohio Supreme Court noted the difference between a “representation” and a “warranty” in insurance: “A representation is a statement made prior to the issuance of the policy which tends to cause the insurer to assume the risk. A warranty is a statement, description or undertaking by the insured of a material fact ….”

A misstatement in a “representation” is grounds for the insurer to cancel the insurance policy from that point forward, but can’t be used to avoid liability in an accident, according to Boggs. A misstatement that is a “warranty” makes the policy void back to its inception, so the insurer has no liability and doesn’t have to provide coverage. If the insurer wants an insured’s misstatement to void the policy back to the date it began, the policy must state that clearly and unambiguously, the Supreme Court ruled.

Insurance Policy Language
The Nationwide insurance application that Lapaze submitted included a section for the applicant to list “all household members of driving age and non-resident operators.”

Her Nationwide insurance policy stated:

“The application for this policy is incorporated herein and made a part of this policy. … The policyholder agrees that the statements in the Declarations and the application for this policy are his or her agreements, representations and warranties. The policyholder agrees that this policy is issued in reliance upon the truth of such representations and warranties. If it is determined that any warranty made by the policyholder is incorrect, this policy may be held void ab initio, or void back to the date of inception, upon return of the policyholder’s premium. Warranties which, if incorrect, could void the policy from the beginning are:
(1)        registered owner of the vehicle;
(2)        all drivers and other operators in the household;
(3)        use of the insured vehicle; …”

Insurance Policy Language
The Nationwide insurance application that Lapaze submitted included a section for the applicant to list “all household members of driving age and non-resident operators.”

Her Nationwide insurance policy stated:

“The application for this policy is incorporated herein and made a part of this policy. … The policyholder agrees that the statements in the Declarations and the application for this policy are his or her agreements, representations and warranties. The policyholder agrees that this policy is issued in reliance upon the truth of such representations and warranties. If it is determined that any warranty made by the policyholder is incorrect, this policy may be held void ab initio, or void back to the date of inception, upon return of the policyholder’s premium. Warranties which, if incorrect, could void the policy from the beginning are:
(1)        registered owner of the vehicle;
(2)        all drivers and other operators in the household;
(3)        use of the insured vehicle; …”

Insurer Argues Boggs Requirements Met
Because the policy made the application part of the policy, and the language stated that misstatements that were warranties could void the policy back to the date it began, Nationwide maintains that the requirements of Boggs were met. Lapaze didn’t report “all drivers and other operators in the household,” so Nationwide was entitled to void the policy back to its start date, the insurer argues.

Nationwide contends that several Ohio appellate courts have determined that may/could language in an insurance policy meets Boggs’ requirements by sufficiently putting the insured on notice of the consequences of certain misstatements.

“The use of ‘may’ rather than ‘shall’ is a distinction without a difference in this context,” the company’s brief states.

The use of “may” and “could” in insurance policies in this context is appropriate because only misstatements that are material to the insured event will void a policy back to its start date, Nationwide argues. If insurers were required to use “shall,” they would have to void every policy when the insured makes a misstatement regardless of whether the misstatement is material, and that interpretation harms insureds and doesn’t advance any public policy goals, Nationwide states.

In addition, if the Seventh District’s decision is upheld, insurers would have to cover incidents despite misstatements by insureds – a situation that would encourage insurance fraud and crime, the insurer maintains.

Estate Contends that Policy Language Was Ambiguous
Boak’s estate responds that a statement about “all drivers and other operators in the household” was listed as a warranty in Nationwide’s policy. However, identifying “household members of driving age” in the application wasn’t one of the nine categories of warranties listed in the policy. Based on the warranty regarding “all drivers and other operators in the household,” Boak’s estate maintains that Lapaze didn’t make a misstatement because she was the only driver and operator in the household because Pusser didn’t have a driver’s license.

Boak’s estate also contends that the policy didn’t “clearly and unambiguously” warn the insured that certain misstatements would void the policy back to its start date because it uses conditional “could” and “may” language. Under Boggs, the policy must unmistakably state that the policy would be void back to its inception, the estate indicates.

Boggs drew a bright line between misstatements that could void a policy back to its start date and misstatements that allowed insurers to cancel policies going forward, the estate states. But, the estate argues, Nationwide is trying “to blur the line” by stating that the may/could language means the company has the option to cancel the policy back to its inception because a “void ab initio” contract is treated as if it never existed. The estate maintains that the policy can’t be both a contract void back to the beginning and one that’s canceled from the accident date.

Rejecting Nationwide’s argument regarding its need to determine whether a misstatement is material to the accident or event before deciding whether to void a policy, the estate counters that warranties are presumed to be material. The estate also argues that the distinction between “may” and “shall” isn’t meaningless, and Nationwide could have drafted a policy in accordance with Boggs but chose not to.

Parties Disagree about Premium Refund
In its second key argument, Nationwide contests the Seventh District’s ruling that, based on the policy language, the insurer couldn’t void the policy because the insurer didn’t return Lapaze’s premium to her first. The insurer argues that it’s entitled by statute to file a declaratory action in court to sort out the parties' rights and responsibilities. The approach helps dispose of uncertain or disputed cases more quickly and conclusively, the insurer states. And the alternative produces absurd results, the insurer maintains, such as an insurer that refunds the premium, files an action in court, and wins, then must demand the premium back from the insured.

Boak’s estate states that it’s simply reading the plain language of Lapaze’s policy, which requires the insurer to refund the premium before voiding the policy. In addition, state law offers a specific process for cancelling auto policies for fraud, concealment, or misrepresentation by the insured that mandates the refund of premiums before cancellation is permitted, the estate argues. Because Nationwide hasn’t issued a refund, the estate contends, the policy isn’t terminated.

Amicus Briefs Set Out Additional Points
The Ohio Insurance Institute argues that the Seventh District’s decision in this case would “create new costly barriers” for insurers trying to make insured persons accountable for lies made to obtain insurance.

The law firm Rutter & Russin, which represents policyholders in lawsuits against insurance companies, believes Nationwide could solve this problem simply by changing its policy language rather than “expect[ing] this Court to rescue it from itself.”

The Ohio Association for Justice maintains that Lapaze didn’t lie on her application because Pusser hadn’t driven in more than a decade and wasn’t a driver, operator, or user of the vehicle at the time. Pusser began driving when Lapaze became ill, the association states. It also maintains that the may/could language fails to meet the Boggs requirement of being clear and unambiguous.

Certain Parties Can’t Argue
Neither Pusser, Lapaze’s guardian, nor Lehman will participate in oral arguments before the Supreme Court because none of them submitted merit briefs.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Nationwide Mutual Fire Insurance Company: Michael Carpenter, 614.365.4100

Representing the Estate of Robert D. Boak: Timothy Cunning, 330.953.2045

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Lawyer Challenges Suspension for Soliciting Business from Jailed Murder Suspect

Columbus Bar Association v. Natalie J. Bahan, Case no. 2019-0219
Logan County

A Logan County lawyer faces suspension for attempting to establish a client relationship with a woman charged with murdering her husband because attorney disciplinary investigators believe the lawyer was motivated by the financial gain that could come from a high-profile case.

The Board of Professional Conduct recommends that the Ohio Supreme Court suspend Natalie J. Bahan for six months with the entire suspension stayed on the condition that she commit no further misconduct. Bahan objects to the recommendation, arguing she didn’t violate any of the rules governing the conduct of Ohio lawyers, and that her purpose for visiting the jail was to make sure the accused woman knew her legal rights.

The Columbus Bar Association filed a complaint against Bahan with the board, after determining that Bahan was visiting Rosalie N. Kennedy, a woman she didn’t know, in jail not to simply advise her of her legal rights, but to entice Kennedy into hiring her. The bar association claims the action violates the rule that bars lawyers from seeking employment from a potential client if the lawyer’s significant motive is for “pecuniary gain.”

News of Case Prompts Jailhouse Visit
In March 2017, Kennedy was arrested for the murder of her husband, Gary Kennedy, and was incarcerated in the Logan County jail. A day later, Bahan learned from local media reports of the arrest and discussed the case with a fellow Logan County lawyer, Sheila Minnich. Minnich told a board hearing panel that Bahan was interested in the case and told Minnich she was going to visit Kennedy in jail to make sure she was legally protected. Bahan also told Minnich that she wanted the experience of representing a client with a murder charge.

Before going to see Kennedy, Bahan spoke with Marc Triplett, an experienced criminal defense attorney who was qualified to be court-appointed lawyer for suspects charged with murder who couldn’t afford an attorney. Bahan and Triplett discussed the case, and Triplett told Bahan he saw nothing wrong with Bahan talking to Kennedy for the purpose of assuring her rights were protected.

Bahan visited Kennedy and told her she needed an attorney and to consider whether she could afford a lawyer. She explained to Kennedy how lawyers are appointed to indigent defendants. Two days after the initial visit, Bahan returned to the jail and presented a fee agreement, estimating it would cost Kennedy about $50,000 for representation. Bahan didn’t have the experience to be appointed by the court to represent a suspect in a murder trial, and she had discussed assisting Triplett if he were to represent Kennedy. That way, Bahan could gain experience. However, the fee agreement only listed her and no other attorney as the one who would represent Kennedy.

Lawyer Assesses Suspect’s Financial Status
After her second meeting in jail with Kennedy, Bahan went to Kennedy’s home to inspect the murder scene and meet with Kennedy’s two adult daughters. She discussed with the daughters the possibility of her being hired to represent their mother and talked about the proposed fee. Bahan asked about Kennedy’s assets, in part to evaluate whether she was eligible for a court-appointed lawyer, but also to see what resources were available to pay a fee in the range of $30,000 to $50,000.

Triplett wasn’t available to represent Kennedy, and when Bahan made a third visit to see Kennedy in jail, Kennedy told her she had made arrangements to hire another lawyer. Bahan testified that Kennedy thanked her for her help and told Bahan to send her a bill. Bahan sent a lengthy text message to one of Kennedy’s daughters and stated that there was nothing more she could do at the moment, but she hoped she would “get paid for what I did.” She sent a bill for $1,400 to the Kennedy’s house.

Kennedy’s daughter confirmed she received the bill, but didn’t pay it. Bahan said she didn’t pursue the matter.

Suspect Convicted, Complaint Registered
In December 2017, Kennedy was convicted of murder and sentenced to 15 years to life in prison.

The Columbus Bar Association filed a complaint against Bahan for violating the rule regarding solicitation of a client in-person when the solicitation is primarily motivated by financial gain. The board found Bahan violated the rule and recommended a fully stayed six-month suspension.

Bahan objects, arguing she didn’t violate the rule, and if she did, it was not intentional and that no harm came from it. She argues a public reprimand is the appropriate sanction.

In her brief, Bahan notes that Triplett, and another experienced criminal defense attorney, Perry Parsons, both met with Bahan before she made the first visit, and both attorneys said they saw nothing wrong with a visit to discuss her legal rights.

Bahan said she was motivated by gaining experience and improving her trial skills. She denied that she went because she was motivated by the money, and maintains that she shouldn’t be charged with breaking the rule.

Bahan said she saw how Kennedy was portrayed in the media, and she was motivated by the serious problems the woman was facing. The lawyer maintains the bar association wasn’t able to meet the standard that proved by clear and convincing evidence that Bahan broke the rules.

Lawyer’s Version of Events Not Credible, Bar Association Maintains
The bar association asserts that Bahan’s version of the events isn’t credible and that it was clear she approached Kennedy in order to represent her and advance her career by participating in a high-profile murder case.

The bar association notes that while Triplett and Parsons testified that they saw nothing wrong with Bahan going to the jail to discuss Kennedy’s legal rights, neither was told about Bahan presenting Kennedy with a fee agreement. Neither offered an opinion as to whether they would agree it would have been appropriate to visit if they knew that Bahan was seeking to represent Kennedy.

The bar association also notes that Bahan inquired about whether Kennedy could sell property to pay her attorney fee, should she be hired, and asked to be paid for the work she did, even if she didn’t attempt to collect it. The bar association argues that even if Bahan was somewhat motivated to visit Kennedy to discuss her legal rights, that doesn’t exclude the possibility that she was significantly motivated by her future potential to earn more money by representing murder suspects. The group urges the Court to adopt the board’s findings and issue a fully stayed suspension for Bahan.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Columbus Bar Association: Colleen Briscoe, 614.224.4149

Representing Natalie J. Bahan: Dennis McNamara, 614.464.2770

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Do Indigent Parents Have Right to Attorney in Adoption Cases?

In the Matter of the Adoption of Y.E.F. and In the Matter of the Adoption of M.M.F., Case nos. 2019-0420 and 2019-0421
Fifth District Court of Appeals (Delaware County)


  • Given that an indigent individual has a right to counsel when a juvenile court is considering taking away parental rights, does the lack of a right to an attorney when the parent is facing termination of parental rights through adoption in probate court violate the parent’s constitutional right to equal protection under the law?
  • Did the probate court’s denial to appoint an attorney to an indigent parent who was unable to represent herself adequately in this adoption case violate the parent’s due process rights?

A woman identified as E.S. is the biological mother of twins, Y.E.F. and M.M.F., born in September 2014. E.S. states in her brief to the Ohio Supreme Court that because of actions by the twins’ father, R.H., she asked the twins’ aunt and uncle to care for them while she and her daughter found other shelter.

In May 2015, the aunt and uncle (identified as C.F. and D.F.) filed a complaint against the parents in Delaware County Juvenile Court for custody of the twins. The court eventually gave the aunt and uncle permanent custody of the twins.

Three years later, the aunt and uncle made a formal request in Delaware County Probate Court to adopt the twins. The relatives, who had a lawyer, argued that neither parent’s consent was required for the adoptions because, in the prior year, the parents had minimal contact with the twins and failed without justification to provide financial support for the children.

Mother Asks for Attorney
E.S. submitted a request to the probate court in August 2018 to have an attorney appointed to her case, and she included an affidavit of indigency, which stated that her gross monthly income from a part-time job was $969.65. The court declined her request and scheduled a hearing, where E.S. represented herself. At one point, E.S. asked the magistrate if she should have asked for a continuance earlier to hire a lawyer instead of initially telling the court that she was ready to move forward with the hearing. The magistrate granted a continuance, and E.S. appealed the denial of counsel to the Fifth District Court of Appeals.

Appeals Court Draws Distinctions Between Custody and Adoption Cases
The Fifth District upheld the probate court’s decision. For equal protection to apply, the biological parents in these types of cases must be similarly situated individuals who are treated differently. Although there is a right to counsel in permanent custody cases in juvenile court, the Fifth District stated in its opinion that adoption cases are different from permanent custody cases because they are governed by “different statutes with different purposes and each with different tests before a court can grant them.” Given those differences, biological parents aren’t similarly situated in juvenile and probate courts, so there is no equal protection violation, the court ruled.

In addition, this case involves a private adoption. The Fifth District stated that, in its earlier rulings, the court determined that no right to counsel exists in adoption matters. Also, the equal protection clauses of the U.S. and Ohio constitutions offer protection against government, not private, actions, the court maintained. Because this was a private adoption sought by the twins’ aunt and uncle, the court ruled that E.S. had no constitutional right to counsel.

Fifth District Rejects Due Process Arguments
The private nature of the adoption also means E.S.’s right to due process wasn’t infringed upon because no state actor was involved in the adoption, the Fifth District reasoned. The court also applied a three-part test from the U.S. Supreme Court’s decision in Mathews v. Eldridge (1976) for determining whether the due process rights of parents are violated. Based on Mathews, a court must consider and weigh these factors:

  • private interest affected
  • risk of erroneous deprivation of the interest, and the probable value of additional safeguards
  • burden on the government from additional safeguards.

The Fifth District stated that a court then balances these factors “against the presumption that there is a right to appointed counsel only where the indigent, if he or she is unsuccessful, may lose his or her personal freedom.”

Acknowledging that E.S. has a fundamental interest at stake in the adoption, the appeals court concluded that the possibility of the erroneous deprivation of her interest was minimal because state law includes adoption procedures and the Ohio Supreme Court ruled in 1996 (In re Adoption of Zschach) that the laws adequately protect a biological parent’s constitutional rights. As for the burden on the state, the court found that fiscal and administrative costs would increase by appointing counsel in adoption cases. Also, E.S. wouldn’t lose her personal freedom or physical liberty if her children are adopted, the court stated.

The Fifth District added that E.S. had a meaningful opportunity to be heard in a meaningful manner, she received notice, she testified, she was able to cross-examine the aunt and uncle, and the case wasn’t “exceedingly complex.”

E.S. appealed the ruling to the Ohio Supreme Court, which agree to consider the issues. The appeal involves two cases – one for each child. The Supreme Court consolidated the cases for briefing and oral argument.

Mother Maintains that Parents Face Same Grave Outcomes in Either Court
E.S. points to M.L.B. v. S.L.J., a 1996 U.S. Supreme Court decision in which the court determined that adoption proceedings are state actions entitled to constitutional protections, including equal protection under the law and due process. The Ohio Supreme Court also has determined that adoption is a “function of the state” exercised exclusively by state courts, E.S. states. She cites several examples, such as the state’s role in licensing and maintaining a registry of those who evaluate potential adopting parents, the state’s oversight of an abuse and neglect registry, the state health department’s system of adoption certificates, and the significant role of state’s probate courts in handling adoption matters.

She notes that her equal protection claim is aimed at the probate court, which denied her request for a lawyer, and at the state law that fails to offer attorneys to indigent parents facing the loss of a child in an adoption, not toward the aunt’s and the uncle’s actions to initiate an adoption. Parents in juvenile and probate courts clearly are similarly situated, she maintains.

Because the equal protection claim involves legislative policies about a fundamental right (parental rights), the case must be reviewed under “strict scrutiny” standards, meaning the legislature’s policy choices don’t receive deference and aren’t presumed to be constitutional, E.S.’s brief states. To be constitutional, the differences in treatment must be necessary and narrowly tailored to serve a compelling state interest.

E.S. argues the state has no compelling interest to ensure a right to counsel for biological parents facing termination of their parental rights in juvenile court but then deny that right for parents facing the same consequence in an adoption proceeding in probate court. Although the Fifth District noted differences in the relevant statutes, E.S. identifies numerous overlapping aspects – such as the law’s purpose to provide stability to and protect the best interests of children, the determination of the extent to which parents have stayed engaged with their children, the possibility of successful reunification, the child’s relationship with family members, and the parent’s health and criminal record. The appeals court also pointed out the different juvenile and probate court processes for considering termination of parental rights, but E.S. stresses those distinctions are merely technical while the fundamental right to maintain a parent-child relationship in either court is the same.

She adds that other state supreme courts – Montana, Oregon, Illinois – determined such minimal differences are insufficient reason to deny appointed counsel in probate adoption proceedings.

Right to Attorney in Adoption Cases Is Essential, Mother States
If the Court considers the due process challenge, E.S. applies the Mathews test and arrives at a different result. First, a parent’s interest in retaining parental rights is “commanding,” E.S. notes.

On the second factor – the risk of depriving the parent’s interest – she contests the Fifth District’s view of the 1996 Zschach decision about the state’s adoption laws, explaining that the Court found the rights of fathers in those circumstances were protected by the state’s adoption laws. The case wasn’t about a parent’s right to counsel but instead about a putative father’s right to contest an adoption, she argues.

In response to the appeals court’s points about her interactions while representing herself, E.S.’s brief shares details from the court’s hearing. E.S. didn’t offer arguments about the validity of two different juvenile court orders. When asked if she understood the discussion about whether the juvenile court had set her child support obligation to zero – a critical issue for determining what support she was required to provide – E.S. said, “It’s all legal terms to me” and “There’s a lot of things I’m not sure of, Your Honor.” She also focused her cross-examination of her relatives on issues that occurred before the timeframe the court would take into consideration.

“[T]he risk of erroneous deprivation is measured not by whether an unrepresented party was able to participate at some level, but by what additional development of her position might have been possible with representation,” the brief argues. “The key question in analyzing the risk of error is whether someone knowledgeable of the litigant's rights and skilled in the art of advocacy could make a determinative difference, using skills a nonlawyer is unlikely to possess.”

E.S. also states that the government’s fiscal and administrative burdens associated with appointing counsel to indigent parents in adoption cases “is insufficient to overcome the commanding interests of a parent in preserving parental bonds.”

Legal Aid, Children’s, and National Groups Support Right to Attorney in Adoption Cases
The following organizations joined together to file an amicus curiae brief supporting E.S.’s positions:

  • Advocates for Basic Legal Equality
  • Community Legal Aid Services
  • Legal Aid of Western Ohio Inc.
  • Legal Aid Society of Cleveland
  • Legal Aid Society of Southwest Ohio
  • National Association of Counsel for Children
  • National Coalition for a Civil Right to Counsel

Children’s Aunt and Uncle Can’t Argue Before Court
C.F. and D.F, the twins’ aunt and uncle, didn’t file a merit brief in this matter and will not be permitted to participate in oral argument.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2019-0420 and 2019-0241).

Representing E.S. from the Ohio State Legal Services Association: William Fraser, 614.737.0156

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