¶1 dissenting.
¶2 {¶ 71} As I find merit in each of Kenton’s assignments of error, I would reverse and remand. Kenton was denied his due process rights when the trial court failed to advise him of the effect of entering the stipulations. His counsel was ineffective for allowing the stipulations to be made.
¶3 {¶ 72} First, I disagree with the majority that Juv.R. 29(D) was inapplicable to this case. The motion for permanent custody filed by GCDJFS was, in effect, a new complaint. Consequently, the hearing in the trial court on it was both adjudicatory, and dispositional. The stipulations entered at the October 16, 2008 hearing were in the nature of admissions. Consequently, the trial court was bound by the dictates of Juv.R. 29(D) at this permanent custody hearing. See e.g. In re C.P., 8th Dist. No. 91393, 2008-Ohio-4700, 2008 WL 4263317, at ¶ 10-11, 18-24. See also In re Foresha/Kinkel Children, 5th Dist. No.2003CA00364, 2004-Ohio-578, 2004 WL 237987, at ¶ 5-15 (stipulation entered by father to terminate his parental rights complied with Juv.R. 29(D)).
¶4 {¶ 73} As the Court of Appeals for the Eighth Appellate District recently noted:
¶5 {¶ 74} “When a constitutional right is involved, as is the case here, the law requires strict compliance, and the failure of the trial court to advise a parent of a constitutional right is, per se, prejudicial. In re Onion, 128 Ohio App.3d 498 [715 N.E.2d 604]. This court has held that when a constitutional right is involved, such as in cases involving termination of parental rights, a trial court’s failure to comply with Juv.R. 29(D) has been found to constitute plain error. In re A.C., 160 Ohio App.3d 457, 2005-Ohio-1742, 827 N.E.2d 824, at ¶ 24.
¶6 {¶ 75} “As recently stated by this court in In re L.C., Cuyahoga App. No. 90390, 2008-Ohio-917 [2008 WL 597617], ‘Juv.R. 29(D) places an affirmative duty upon the Juvenile Court. Prior to accepting a parent’s admission, the Juvenile Court must personally address the parent appearing before the court and determine that the parent, and not merely the attorney, understands the nature *621 of the allegations and the consequences of entering the admission. The trial court is required to make careful inquiries in order to ensure that the party’s admission is voluntary, intelligent, and knowing.’ Id. at ¶ 23.
¶7 {¶ 76} “A trial court’s failure to substantially comply with Juv.R. 29(D) ‘constitutes prejudicial error that requires a reversal of the adjudication in order to permit the party to plead anew. We review whether a court has substantially complied with Juv.R. 29(D) de novo.’ In re L.C. at ¶ 24.
¶8 {¶ 77} “In re M.C., Cuyahoga App. Nos. 85054 and 85108, 2005-Ohio-1968, 2005 WL 977832, this court reversed an adjudication of neglect and an award of permanent custody when the trial court failed to inform the parent and grandparent that by entering an admission under Juv.R. 29, they were admitting to the truth of the allegations in the amended complaint and to a finding of neglect and that they were giving up rights that applied to the adjudicatory hearing.
¶9 {¶78} “In the case sub judice, as in In re M.C., the trial court failed to personally address S.F. and inform him that by entering admissions, he was admitting to the truth of the allegations in the amended complaint and to the respective adjudicatory findings. In fact, the court, in a manner similar to that of the one in In re Beechler, 115 Ohio App.3d, 567, 571 [685 N.E.2d 1257], (dealing with a review of Juv.R. 29 explanation of rights in the context of a delinquency case) focused on the responses of the attorney rather than the actual party giving up his or her rights.
¶10 {¶ 79} “ ‘This rule places an affirmative duty upon the juvenile court. Prior to accepting an admission, the juvenile court must personally address the actual party before the court and determine that that party, and not merely the attorney, understands the nature of the allegations and the consequences of entering the admission. Furthermore, the test for the accused delinquent’s understanding of the charges is subjective, rather than objective, in that it is not sufficient that a hypothetical reasonable party would understand. The person actually before the court must do so.’ Id. at [571, 685 N.E.2d 1257].
¶11 {¶ 80} “Most critically, the trial court failed to inform S.F. that he was giving up rights that applied not only to the adjudicatory and dispositional hearing, but more importantly, to the final dispositional hearing, resulting in termination of his parental rights. …
¶12 {¶ 81} “ …
¶13 {¶ 82} “ …
¶14 {¶ 83} “S.F. was not told that by entering into the admissions that the trial court would not only make a determination with respect to the adjudicatory status of the children and temporary custody, but that those findings could be used against S.F. at a later time if the agency sought permanent custody of the *622 children, which is exactly what happened when S.F. relapsed and experienced difficulties stemming from the relapse.” In re H.F., 176 Ohio App.3d 106, 2008-Ohio-1627, 890 N.E.2d 341, at ¶ 35-41, reversed on other grounds and cause remanded by In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607.
¶15 {¶ 84} In this case, Kenton was never advised of the rights he was waiving by entering the stipulations. The trial court addressed his attorney, not him. In the alleged “colloquy” relied upon by the majority, the trial court merely inquired of Kenton whether he understood that by entering the stipulations, he might waive the right to a further hearing, and what would be a good day to schedule a hearing if he chose to voluntarily surrender his rights. This was grossly insufficient.
¶16 {¶ 85} And even if Juv.R. 34(1) is applied, the colloquy between the trial court and Kenton in this case was insufficient. This is made clear by one of the cases cited by the majority, In re L.D., 8th Dist. No. 81397, 2003-Ohio-2471, 2003 WL 21101101. In that case, the Eighth District did hold that a full Juv.R. 29 colloquy was not required at a permanent custody hearing. Id. at ¶ 9. However, the trial court engaged in a lengthy discussion, on the record, with appellant and her attorney, discussing fully the rights she was waiving. Id. at ¶ 4. Indeed, on appeal, she conceded that “ ‘the trial court [did] an excellent job of reviewing [her] rights that she [was] waiving and the meaning and significance thereof before accepting her consent to the agency’s motion for permanent custody.” Id. at ¶ 5.
¶17 {¶ 86} In this case, Kenton was not advised of any of his rights. This was plain error and prejudicial error. Kenton was deprived of his due process rights.
¶18 {¶ 87} Further, the majority’s opinion, as issued today, conflicts with the balance of authority from the Eighth District Court of Appeals, as set forth in In re C.P. and In re H.F., as well as that from the Fifth District Court of Appeals, In re Foresha/Kinkel Children.
¶19 {¶ 88} I further disagree with the majority’s conclusion that Kenton’s counsel was not ineffective. Each prong of the Strickland test is clearly met. See Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
¶20 {¶ 89} The first prong of Strickland is met: the performance of Kenton’s trial counsel was objectively unreasonable. The termination of parental rights is the civil equivalent of the death penalty: it is difficult to imagine effective counsel, in a capital case, allowing his or her client to be tried solely by stipulation, without the cross-examination of witnesses, or any testing of the state’s case. Further, she did not object to the trial court’s failure to engage in an effective colloquy with Kenton regarding the rights he waived by entering the stipulations.
¶21*623 {¶ 90} The second prong of the Strickland test is met: “essential due process rights cannot simply be waived away.” In re Roque, 11th Dist. No.2005-T-0138, 2006-Ohio-7007, 2006 WL 3833860, at ¶ 13, citing In re Salsgiver, 11th Dist No. 2002-G-2477, 2003-Ohio-1206, 2003 WL 1193784, at ¶ 29. By allowing her client’s most precious right — that of raising his daughters — to depend solely on stipulated evidence, Kenton’s counsel did waive his due process rights. “A decision based on clear and convincing evidence requires overwhelming facts … In re Williams, 11th Dist. Nos. 2003-G-2498 and 2003-G-2499, 2003-Ohio-3550, 2003 WL 21517986, at ¶ 45. In this case, the record as created by the stipulations was sufficient to reach this high plateau. But by failing to assert Kenton’s due process rights, by failing to examine witnesses and to cross-examine the state’s witnesses, and by depriving the trial court of the chance to see their demeanor, trial counsel, in effect, undermined the credibility of the record. Consequently, “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052, 80 L.Ed.2d 674.
¶22 {¶ 91} Finding merit in each assignment of error, I must respectfully dissent.