In re A.C.

[Cite as In re A.C., 

.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 102351




                                    IN RE: A.C., ET AL.

                                         Minor Children

                                        [Appeal By P.B., Father]




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                  Case Nos. AD 13908673, AD 13908674, and AD 13908675

        BEFORE: S. Gallagher, J., E.A. Gallagher, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: September 10, 2015
ATTORNEY FOR APPELLANT

Jonathan N. Garver
4403 St. Clair Avenue
Cleveland, OH 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Anthony R. Beery
Assistant Prosecuting Attorney
Cuyahoga County Division of
  Children and Family Services
4261 Fulton Parkway
Cleveland, OH 44144

ATTORNEY FOR CHILDREN

John M. Stryker
Stryker Law Co., Ltd.
20006 Detroit Road, Suite 310
Rocky River, OH 44116

Also listed:

GUARDIAN AD LITEM

Martin J. Keenan
Buckeye Legal Center
11510 Buckeye Road
Cleveland, OH 44104
SEAN C. GALLAGHER, J.:

       {¶1} Appellant P.B. appeals the termination of his parental rights and the award of

permanent custody of his three children to the Cuyahoga County Department of Children

and Family Services (“CCDCFS”).

       {¶2} Under his first assignment of error, appellant complains that the trial court

erred by accepting his stipulation to permanent custody without first advising him that he

would be waiving his right to remain silent.

       {¶3} Juv.R. 29(D) governs the procedure for accepting an admission during an

adjudicatory hearing and provides, in relevant part:

       The court … shall not accept an admission without addressing the party
       personally and determining both of the following:

       (1) The party is making the admission voluntarily with understanding of
       the nature of the allegations and the consequences of the admission;

       (2) The party understands that by entering an admission the party is
       waiving the right to challenge the witnesses and evidence against the party,
       to remain silent, and to introduce evidence at the adjudicatory hearing.

(Emphasis added.)

       {¶4} The record reflects that during the dispositional hearing, the court was

informed that appellant wished to waive his trial rights and stipulate to a judgment of

permanent custody. Although the trial court conducted a colloquy with appellant and
advised him of certain rights, the trial court did not advise appellant that he would be

waiving his right to remain silent before accepting his stipulation.

       {¶5} Although CCDCFS contends that Juv.R. 29(D) only applies to adjudicatory

hearings and not to dispositional hearings, it has been held that a trial court must comply

with Juv.R. 29(D) when accepting a party’s stipulation to permanent custody. In re:

Rock Children, 5th Dist. Stark No. 2004CA00358, 

; see also In re:

C.P., 8th Dist. Cuyahoga No. 91393, 

; In re:

Foresha/Kinkel Children, 5th Dist. Stark No. 2003CA00364, 

, ¶ 5-15.

“‘In a case where parental rights are permanently terminated, it is of utmost importance

that the parties fully understand their rights and that any waiver is made with full

knowledge of those rights and the consequences which will follow.’”           In re: Rock

Children at ¶ 17, quoting Elmer v. Lucas Cty. Children Servs. Bd., 

, 

 (6th Dist.1987).

       {¶6} Nonetheless, CCDCFS concedes, and a review of the record reflects, that the

trial court also did not advise appellant at the adjudicatory hearing that, by entering an

admission, he would be waiving his right to remain silent as required by Juv.R. 29(D)(2).

Therefore, the state concedes that appellant’s admission to the complaint cannot be

considered knowingly and voluntarily entered and that reversible error occurred. See In

re: A.A., 8th Dist. Cuyahoga No. 85002, 

.

       {¶7} Upon review, we conclude that the trial court erred when it accepted

appellant’s admission and that his stipulation was invalid. We reverse the trial court’s
termination of appellant’s parental rights and the grant of permanent custody of the three

children to CCDCFS. The matter is remanded for further proceedings. The remaining

assignments of error are moot.

       {¶8} Judgment reversed; case remanded.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR