Angus v. Angus , 2014 Ohio 4225 ( 2014 )

[Cite as Angus v. Angus, 2014-Ohio-4225.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Sarah Angus, :
Plaintiff-Appellee, :
v. : Nos. 14AP-22
and 14AP-159
Larry Angus, Jr., : (C.P.C. No. 11DR-10-4018)
Defendant-Appellant. : (REGULAR CALENDAR)
D E C I S I O N
Rendered on September 25, 2014
Larry Angus, Jr., pro se.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
TYACK, J.
{¶ 1} Defendant-appellant, Larry Angus, Jr., appeals from two orders of the
Franklin County Court of Common Pleas, Division of Domestic Relations. In case No.
14AP-22, Mr. Angus appeals from the decree of divorce terminating his marriage to
plaintiff-appellee, Sarah Angus, now restored to her maiden name of Sarah Ice ("Ms.
Ice"); in case No. 14AP-159, Mr. Angus appeals from the trial court's subsequent order
denying some of his post-decree motions, principally concerning custody matters and the
magistrate's refusal to recuse herself from further proceedings. We have consolidated the
appeals for briefing and argument.
{¶ 2} Although the divorce decree and subsequent proceedings addressed the
usual array of matters connected with terminating a marriage, the only issues raised in
Nos. 14AP-159 and 14AP-22 2
the present appeals concern custody and parentage issues related to Ms. Ice's five
children.
{¶ 3} We begin with a brief review of the uncontested facts developed at trial
before the domestic relations court magistrate. Ms. Ice and Mr. Angus began dating in
2003, moved in together in 2004, and were married on June 20, 2007 in Franklin
County. Ms. Ice bore two children prior to the marriage: "Alexis" born in 2004 and
"Brian" born in 2006. In the early stages of her relationship with Mr. Angus, and thus
around the time of conception for Alexis, Ms. Ice maintained an intimate relationship
with another man, Keith Taylor. Mr. Angus, believing that he was the biological father of
Alexis, filed an affidavit indicating that he was the father.
{¶ 4} After the parties married and before their eventual separation, Ms. Ice bore
two more children: "Charles" in 2008 and "Danielle" in 2009. The parties' relationship
was a tempestuous one, marked by repeated separations in its latter stages. In 2013,
while still married, Ms. Ice gave birth to "Erica" as a result of a rekindled relationship with
Keith Taylor. While paternity for Alexis presents a disputed issue in the present appeal,
there is no dispute of the trial court's ultimate attribution of Erica's paternity to Mr.
Taylor.
{¶ 5} Ms. Ice filed for divorce on October 17, 2011, proceeding pro se, and
eventually filed an amended complaint after obtaining representation. The matter
proceeded to trial over three days in June 2013, with Ms. Ice represented by counsel and
Mr. Angus proceeding pro se. On September 30, 2013, the magistrate who heard the
evidence rendered a decision disposing of all issues in the divorce. Pertinent to the
present appeal, the magistrate addressed the paternity of Ms. Ice's five children and
allocated custody of all to Ms. Ice. The magistrate recommended various ongoing
restrictions upon Mr. Angus's conditions of visitation for the children who were
biologically linked to Mr. Angus.
{¶ 6} With respect to Alexis, the magistrate noted that DNA testing excluded Mr.
Angus as the father. Mr. Taylor had not submitted to DNA testing for purposes of
establishing Alexis's paternity. Ms. Ice had, at one time, maintained that Mr. Angus was
Alexis's father. By the trial date, Ms. Ice and Mr. Taylor maintained that Mr. Taylor was
in fact the father of Alexis. The magistrate noted that DNA testing excluded Mr. Angus as
Nos. 14AP-159 and 14AP-22 3
the male parent of Alexis and therefore deemed that the presumption of paternity based
on Mr. Angus's paternity affidavit was rebutted. As a result, Mr. Angus was disestablished
as the father of Alexis and the magistrate indicated that Mr. Taylor should be legally
established as the father of Alexis. Mr. Angus has standing to contest the termination of
his relationship with Alexis, but no standing to contest the issue of who is the male parent
once his parentage has been disproved.
{¶ 7} With respect to Brian, Charles, and Danielle, the magistrate determined that
Mr. Angus would maintain his previously established paternity. Mr. Angus made no
claim of paternity for the youngest child, Erica. Therefore, the magistrate indicated that
all parties agreed that Mr. Taylor should be established as her legal father.
{¶ 8} Mr. Angus filed objections to the magistrate's decision and the trial court
overruled them by decision rendered December 11, 2013. Mr. Angus then filed a series of
motions before the magistrate and trial court centering upon accusations of bias on the
part of the magistrate and/or judge. These accusations were heard before the judge on
February 12, 2014, and the judge declined to recuse herself. Mr. Angus then filed his
second notice of appeal on February 25, 2014.
{¶ 9} Mr. Angus brings the following 20 assignments of error in his two appeals:
[I.] Violation of U.S. Constitution. United States v. Sciuto, 521
F.2d 842 (7th Cir. 1996) ("The right to a tribunal free from
bias or prejudice is based, not on section 144, but on the Due
Process Clause.")
[II.] 28 U.S. Code § 455 – Disqualification of justice, judge, or
magistrate judge (a) Any justice, judge, or magistrate judge of
the United States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.
[III.] Due Process By Denying Defendant's Witness To Be
Seen One Kendrick Antwine
[IV.] OHIO CODE OF JUDICIAL CONDUCT
(Effective March 1, 2009; as amended January 1, 2013)
Canon 2 A judge shall perform the duties of judicial office
impartially, competently, and diligently.
RULE 2.2 Impartiality and Fairness
Nos. 14AP-159 and 14AP-22 4
[V.] OHIO CODE OF JUDICIAL CONDUCT
(Effective March 1, 2009; as amended January 1, 2013)
Rule 2.6 Bias, Prejudice, and Harassment
[VI.] OHIO CODE OF JUDICIAL CONDUCT
(Effective March 1, 2009; as amended January 1, 2013)
Rule 2.6 Ensuring the Right to be Heard
[VII.] Right To Parent, Fundamental Right To Parent
[VIII.] Ohio CODE OF JUDICIAL CONDUCT
(Effective March 1, 2009; as amended January 1, 2013)
Rule 3.3 Testifying as a Character Witness
[IX.] 2921.22 Failure to report a crime or knowledge of a
death or burn injury.
[X.] 2921.44 Dereliction of duty.
[XI.] 3113.31 Domestic violence definitions – hearings.
[XII.] 2903.211 Menacing by stalking.
[XIII.] 2151.031 Abused child defined.
[XIV.] 2919.22 Endangering children.
[XV.] R.c. 2151.03 (A)(2) And (6) Neglected Child
(Four Counts)
[XVI.] 2921.45 Interfering with civil rights.
[XVII.] Fundamental Right To Be Loved, Receive affection,
and Right To contact with the other parent
[XVIII.] Child's Right Free From Cruel And Unusual
Punishment
[XIX.] Route: Ohio Revised Code >> GENERAL
PROVISIONS >> Chapter 3: OFFICER; OATHS; BONDS
[XX.] U.S. Code > Title 18 > Part I > Chapter 13 > § 242
18 U.S. Code § 242 – Deprivation of rights under color of law.
Nos. 14AP-159 and 14AP-22 5
{¶ 10} Many of the above "assignments of error" really are not proper assignments
of error. Still we will address the issues presented. Mr. Angus's first, second, fourth, fifth,
sixth, eighth, ninth, tenth, nineteenth, and twentieth propositions treated as assignments
of error set forth above, collectively address various aspects of what Mr. Angus believes to
be persistently unfair treatment of him by the magistrate, judge, and guardian ad litem in
these proceedings. We have conducted a full review of the record in this matter, including
the various orders rendered by the court, the filings of the parties, and a partial transcript
available to us, and find no evidence of bias on the part of the court officers or any other
state participants in this action. Since the record comprehensively establishes the poor
relationship between Mr. Angus on the one hand and Ms. Ice and Mr. Taylor on the other,
it is clear that animosity has colored the proceedings. However, the actions and
pronouncements of the trial court in this case reveal nothing other than good-faith efforts
on the part of the court system to arrive at the best outcome possible for all parties,
especially the children. The case has resulted in an unsatisfactory outcome from Mr.
Angus's point of view; however, in domestic relations cases, an outcome which displeases
a party is not evidence of bias or prejudice, but is a result of a process that inevitably
imposes hard choices upon an adjudicatory body.
{¶ 11} Having found no evidence of bias, prejudice or delinquency on the part of
the magistrate and judge in the Franklin County Court of Common Pleas, Division of
Domestic Relations, we overrule Mr. Angus's first, second, fourth, fifth, sixth, eighth,
ninth, tenth, nineteenth, and twentieth propositions, treated as assignments of error.
{¶ 12} Mr. Angus's eleventh, twelfth, thirteenth, fourteenth, and fifteenth
propositions assert that the trial court's resolution of custody and parentage issues placed
the children at physical and emotional risk and that the court's decision in this respect is
against the weight of the evidence heard at trial. Mr. Angus specifically points to the fact
that the record contains evidence that Mr. Taylor was the object of a civil protection order
involving threats and physical acts towards a former girlfriend and the young child he
fathered. Mr. Angus asserts that the trial court unfairly ignored this information, which
was available to the guardian ad litem and expressed in the guardian ad litem's report,
and focused instead on a prior incident several years before in which Mr. Angus, while
watching his children, had contacted Franklin County Children's Services and requested
Nos. 14AP-159 and 14AP-22 6
assistance because he felt overwhelmed and feared that he would harm his own children.
Mr. Angus also points out that the guardian ad litem's report quoted statements from Ms.
Ice that she had never witnessed Mr. Angus mistreat their children. He also emphasizes
that the guardian reported on various difficulties experienced by school authorities in
dealing with Ms. Ice when addressing the children's educational needs.
{¶ 13} Mr. Angus also asserts that the trial court noted that both he and Ms. Ice
faced mental health challenges. Mr. Angus claims that the court considered only Mr.
Angus's challenges in this respect would be held against him. As a result, he feels the
court ignored Ms. Ice's history when granting her custody of the children. Mr. Angus
further protests that the court unfairly expressed reservations about his parenting ability
because Mr. Angus does not currently have either a driver's license or automobile, and
relies on public transportation or rides from friends in order to attend hearings and
supervised visitation with his children at the Buckeye Ranch.
{¶ 14} We find that the trial court's decision does not unfairly or improperly
disregard any of the evidence. The court carefully noted the array of positives and
negatives associated with each parent, and, as a domestic relations court often must,
made an attribution of parental rights that was governed by the best options before the
court, not the ideal options to which society might aspire. The court's conclusions do not
reflect an absolute prejudice against non-driving parents, persons facing some degree of
mental illness or challenge, or any absolute abdication in the face of unresolvable
animosity between the parties. These factors may weigh in the court's decision, but the
court would have been equally remiss in failing to consider them. In sum, we find that
the court's decision with respect to custody and parental rights is not against the manifest
weight of the evidence, and we overrule Mr. Angus's eleventh, twelfth, thirteenth,
fourteenth, and fifteenth propositions treated as assignments of error.
{¶ 15} Mr. Angus's third proposition asserts that he was deprived of due process
when not allowed to call a witness at trial. Mr. Angus's brief on appeal does not develop
the proposed testimony for the witness or present argument as to how his case was
prejudiced by the absence of this testimony. We accordingly overrule Mr. Angus's third
proposition, treated as an assignment of error.
Nos. 14AP-159 and 14AP-22 7
{¶ 16} Mr. Angus's seventh, sixteenth, seventeenth, and eighteenth propositions
focus on the deprivation of parental rights that resulted when the court disestablished Mr.
Angus's paternity for Alexis and established paternity for Mr. Taylor. Mr. Angus asserts
that termination of his parental rights and vesting of those rights in Mr. Taylor
constituted a loss of his fundamental right to parentage that entitled him to heightened
due process and effective representation by legal counsel throughout the course of
proceedings.
{¶ 17} Mr. Angus stresses that, as a result of his mistaken parentage affidavit, he
carried the legal status of father for Alexis from her birth through the recent
disestablishment of paternity. For a while, Ms. Ice declared Mr. Angus the father. That
coupled with his affidavit led to his name appearing on Alexis's birth certificate. Mr.
Angus executed an acknowledgement of paternity by affidavit under R.C. 3111.25. Such
an acknowledgement of paternity becomes final without ratification of a court when the
acknowledgement has been entered into the birth registry and a 60-day time period for
rescission under R.C. 3119.27 has passed. Mr. Angus further points out that in addition to
his being deemed the legal father, he acted as father in practice for Alexis prior to and
during the course of the marriage.
{¶ 18} Mr. Angus is correct when he points out that parents have a constitutionally
protected liberty interest in the care, custody, and management of their children. Troxel
v. Granville, 530 U.S. 57, 66 (2000); Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re
Murray, 52 Ohio St.3d 155, 157 (1990). The due process rights extended on the basis of
this fundamental right, however, do not (unlike proceedings carrying a risk of loss of
physical liberty) automatically mandate the appointment of counsel for an indigent
litigant. Lassiter v. Dept. of Social Servs. of Durham Cty. N. Carolina, 452 U.S. 18, 24-25
(1981); In re A.N.B., 12th Dist. No. CA2012-12-017, 2013-Ohio-2055. The procedural due
process to be afforded such a litigant, therefore, is assessed according to the facts and
posture of the case under the established three-part standard comprised of (1) the private
interest at stake, (2) the government interest, and (3) the risk of error. Lassiter at 27,
citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976); In re Babbs, 10th Dist. No. 03AP-
1011, 2004-Ohio-583.
Nos. 14AP-159 and 14AP-22 8
{¶ 19} Accordingly, Ohio's statutes governing juvenile and domestic court
proceedings provide a right to appointed counsel only for specifically defined proceedings,
generally when the state is the initiating and primary actor in a proceeding that will result
in a termination of parental rights. Most commonly, this reflects a permanent
commitment to custody initiated by a children's services agency. See, e.g., In re C.P., 10th
Dist. No. 09AP-823, 2010-Ohio-346, ¶ 14. This right to counsel is specifically delineated,
for juvenile court proceedings at R.C. 2151.352 and Juv.R. 4(A). Id. There is no authority
in Ohio for a right to counsel in a proceeding where the state is not the initiating entity
and the parentage dispute merely reflects proceedings between individual parties. See,
e.g., In re Adoption of M.C., 4th Dist. No. 11CA5, 2011-Ohio-6527.
{¶ 20} The domestic relations court had jurisdiction over the present proceedings
under R.C. 3111.06:
If an action for divorce, dissolution, or legal separation has
been filed in a court of common pleas, that court of common
pleas has original jurisdiction to determine if the parent and
child relationship exists between one or both of the parties
and any child alleged or presumed to be the child of one or
both of the parties.
This section and related sections of the code contain no provision for a right to legal
representation in such matters. Likewise, while the juvenile court has concurrent
jurisdiction pursuant to R.C. 2151.23(B)(2) "[t]o determine the paternity of any child
alleged to have been born out of wedlock pursuant to sections 3111.01 to 3111.18 of the
Revised Code," the right to counsel is explicitly excluded under that section from the
general right to counsel granted by R.C. 2151.352(A).
{¶ 21} Because the state was not the initiating party in the deprivation of parental
rights, and we find no statutory or constitutional right to counsel in the proceedings as
presented in this case, Mr. Angus's seventh, sixteenth, seventeenth, and eighteenth
propositions, treated as assignments of error, are overruled.
{¶ 22} In summary, Mr. Angus's 20 propositions treated as assignments of error
are overruled and the judgment of the Franklin County Court of Common Pleas, Division
of Domestic Relations, is affirmed.
Judgment affirmed.
Nos. 14AP-159 and 14AP-22 9
TYACK and BROWN, JJ., concur.
CONNOR, J., concurs in part and dissents in part.
CONNOR, J., concurring in part and dissenting in part.
{¶ 23} I concur with the majority's disposition of the greater part of this appeal, but
am unable to agree with the court's conclusion that Mr. Angus did not have a right to legal
representation for some aspects of the proceedings. While I agree with the majority's
conclusion that Ohio's statutory framework did not provide an express right to counsel in
this case, I dissent on the basis that such an examination of directly pertinent statutes is
not the end of the due process inquiry. I believe that a constitutional right to counsel to
protect the fundamental right of a parent to the custody and care of his or her children
extends to some cases in which the state has not initiated the parental deprivation.
{¶ 24} I begin by emphasizing that this case is not one in which the court is called
upon to legally allocate paternity for the first time, but instead one in which an established
father faced the loss of his legally long-established paternal status. It is undisputed that
Mr. Angus not only assumed the practical day-to-day role of father to Alexis, but held
uncontroverted legal status as the child's father for seven years or more. Mr. Angus's
name appeared on the birth certificate, the child bore his name, and he was eventually
married to the child's mother. He executed an acknowledgement of paternity under R.C.
3111.23, which was never rescinded and thus became a final and enforceable
determination of parentage, rather than a mere presumption of paternity under R.C.
3111.03. R.C. 3111.25; R.C. 3111.26; In re Guardianship of Elliott, 3d Dist No. 12-10-02,
2010-Ohio-5405.
{¶ 25} As acknowledged by the majority, the parental right to raise one's child is a
fundamental liberty interest protected by the due process clause of the Fourteenth
Amendment. Meyer v. Nebraska, 262 U.S. 390, 401 (1923); Santosky v. Kramer, 455
U.S. 745, 753 (1982); Stanley v. Illinois, 405 U.S. 645, 651 (1972). "[T]he interest of
parents in the care, custody, and control of their children * * * is perhaps the oldest of the
fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57,
65 (2000). While a parent's natural rights are limited by considerations arising out of the
ultimate welfare of the child, In re Cunningham, 59 Ohio St.2d 100, 106 (1979),
Nos. 14AP-159 and 14AP-22 10
termination of such parental rights are " 'the family law equivalent of the death penalty in
a criminal case.' " In re Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio
App.3d 1, 16 (6th Dist.1991). Parents in such cases must be afforded every procedural and
substantive protection the law allows. In re C.G., 10th Dist. No. 13AP-632, 2014-Ohio-
279, ¶ 28; In re D.C., 10th Dist. No. 08AP-1010, 2009-Ohio-2145, ¶ 8.
{¶ 26} While Lassiter v. Dept. of Social Servs. of Durham Cty. N. Carolina, 452
U.S. 18, 24-25 (1981) admittedly does not mandate a right to counsel in all parentage
actions, the Supreme Court just as clearly implied that such a right might arise in some
cases based upon a balancing of the due process factors of Mathews v. Eldridge, 424 U.S.
319 (1976):
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
Eldridge factors did not overcome the presumption against
the right to appointed counsel, and that due process did 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 counsel in every parental termination
proceeding. We therefore adopt the standard found
appropriate in Gagnon v. Scarpelli, and leave the decision
whether due process 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
appellate review. See, e. g., Wood v. Georgia, 450 U.S. 261,
101 S.Ct. 1097, 67 L.Ed.2d 220.
Lassiter at 31-32.
{¶ 27} In the absence of legal counsel for Mr. Angus, numerous legal issues were
never coherently raised before the trial court. For one, there is some question whether
parentage of Alexis was ever properly raised in this action via a motion for relief from
paternity under R.C. 3119.961, and thus whether the court considered the requisite
conditions and bars to relief under R.C. 3119.962. Secondly, an exclusionary DNA
sample, such as we have in the present case, is not dispositive in that it does not of itself
Nos. 14AP-159 and 14AP-22 11
compel a termination of parental rights. Innumerable cases under former Ohio law have
looked to the best interest of the child and denied petitions by fathers to terminate their
parental obligations, even where relief was sought based upon belated DNA refutation of
the father's supposed paternity. Even after the legislature modified applicable law to
reflect the widespread advances in reliable and affordable genetic testing, it saw fit to
include under R.C. 3119.962 various exceptions under the clarified standards for relief
from a prior paternity determination. There is thus no inevitable legal outcome in this
case that would somehow negate Mr. Angus's right to counsel.
{¶ 28} I also am concerned that the trial court was more than willing to
acknowledge the limitations upon Mr. Angus's parental abilities resulting from his mental
health issues, yet did not consider whether those same limitations made it improbable
that he could adequately defend his protected parental interests while proceeding pro se.
Under the Eldridge factors, this introduced a substantial probability of erroneous results
from the proceedings.
{¶ 29} In sum, I believe that the applicable controlling case law from the United
States Supreme Court and the Supreme Court of Ohio dictates an appointment of counsel
in the present case. I believe that Mr. Angus was not accorded a sufficient measure of due
process in keeping with the importance of his constitutionally protected rights as a parent
when the court terminated Mr. Angus's legal status as the father of Alexis and accorded
that status to Mr. Taylor. I respectfully dissent in part.
___________________