The involuntary and permanent termination of parental rights has been equated to “‘the family law equivalent of the death penalty,’” and as such, indigent parents in custody proceedings are equipped with certain constitutional rights, such as the right to counsel.
But what rights do indigent parents have in matters that deal with temporary or non-permanent termination of parental rights? A key case that may have helped Ohio courts and families navigating the difficult task of deciding custody disputes will go unheard.
On February 25, 2026, the Ohio Supreme Court denied hearing In re A.B., a case that raises unsettled constitutional questions about due process rights for indigent parents fighting to regain custody of their children.
Justice Patrick Fischer, joined by Justice Jennifer Brunner, dissented from the majority of the Court, noting that the State’s highest court should take the opportunity to clarify the important constitutional issues that were raised in the mother’s appeal.
The Case
In February 2021, Miami County Children’s Services filed a dependency claim regarding A.B. in the Miami County Common Pleas Court, Juvenile Division. The court adjudicated A.B. as dependent in May of that year.
Less than a year later, in January 2022, Miami County Children’s Services moved to award legal custody to A.B.’s maternal grandparents, and the court granted the motion, awarding legal custody to the grandparents under R.C. 2151.353(A)(3). At that time, A.B.’s mother (“Mother”) did not file objections to the magistrate’s decisions and did not appeal the court’s decisions.
In September 2024, Mother filed a pro se motion in the juvenile court seeking to terminate the disposition. In December 2024, she requested transcripts from the dependency matter at the State’s expense and requested a continuance to retain counsel. The trial court denied Mother’s request for the transcripts due to a pending motion for custody, which the court deemed a “civil matter.”
The custody motion proceeded to trial, despite Mother being unrepresented. In February 2025, the magistrate denied Mother’s custody motion. Mother filed objections to the magistrate’s decision with the juvenile court, but the court overruled the objections on the basis that Mother had failed to file a transcript and that it was limited to the magistrate’s conclusions of law.
Mother appealed to the Second District Court of Appeals in May 2025, and at the same time, requested transcripts. The Second District denied her motion for the transcripts, noting that an appellate court cannot consider transcripts not filed in the trial court.
Subsequently, Mother twice filed motions requesting appointment of counsel for her appeal, but the motions were denied. The Second District reasoned that under R.C. 2151.352, an indigent person is not entitled to appointed counsel in R.C. 2151.23(A)(2) civil matters, and stated that, “[a]bsent state involvement and the permanent, involuntary termination of parental rights, appellant does not have a constitutional right to appointed counsel for this appeal.”
Unsurprisingly, the Second District, after declining to appoint counsel for the indigent mother and leaving her to act pro se, denied Mother’s assignments of error due in part to her inability to make the transcripts part of the appellate record.
Mother then filed a discretionary appeal pro se to the Ohio Supreme Court, arguing that her case “presents constitutional issues concerning fundamental parental rights and due process.”
Fischer’s Dissent
Justice Fischer’s dissent focuses on two main issues raised in Mother’s case: 1) whether custody modification proceedings in dependency cases fall under R.C. 2151.353, entitling parents to counsel, or under R.C. 2151.23(A)(2), which denies the right to counsel in civil matters; and 2) whether due process requires transcripts at the state’s expense in non-termination dependency cases.
Fischer would have accepted jurisdiction over Mother’s case based on the “important constitutional issues raised,” and the “concerns of the appellate courts,” noting the Ohio Supreme Court’s duty to “consider and clarify these issues.”
Mother argues that an indigent parent such as herself is entitled to appointed counsel and to transcripts at the State’s expense in a dependency action in which she seeks to modify a disposition of legal custody.
R.C. 2151.352 gives indigent parents a right to appointed counsel, except in certain situations where the juvenile court exercises exclusive jurisdiction, such as those under R.C. 2151.23(A)(2) which are characterized as “civil matter[s].”
The Second District found that Mother’s claim for custody fell into the exception under R.C. 2151.23(A)(2) and therefore did not see it fit to provide Mother with appointed counsel. However, Mother argues that her claim arises under R.C. 2151.353, not R.C. 2151.23(A)(2), and that she should therefore be provided counsel.
Fischer notes that Mother’s position on this issue, “that R.C. 2151.23(A)(2) does not apply to custody motions in dependency cases arising under R.C. 2151.353, is supported by at least one appellate court case: In re S.L.”
In that case, the Sixth District determined that a father’s motion to modify the trial court’s disposition order was improperly characterized by the trial court as a civil matter under R.C. 2151.23(A)(2). The Sixth District concluded that the father’s motions arose under R.C. 2151.353(F)(2), which entitled him to appointed counsel.
Fischer noted that the Sixth District’s case which recognized a parent’s right “to appointed counsel for custody-modification motions, seems at odds with the decision of the Second District in this case, which denied Mother’s repeated requests for appointed counsel in her appeal from the denial of her custody modification motion.”
At the heart of this issue is a broader question: How far do constitutional protections extend when a parent loses custody of a child but not parental status? The dependency-based custody modification action in this matter presents a legal grey area that ought to be clarified. Though the matters may be termed “civil,” and fit into the exception wherein parents are not provided a right to counsel, the matters all originate from state intervention and involve fundamental family interests that are deserving of protections.
As for the issue of whether or not a parent is entitled to transcripts at the state’s expense for a dependency matter, Justice Fischer notes that “appellate courts have struggled” with this precise issue.
Justice Fischer cites two appellate court decisions dealing with the same issue to demonstrate that Ohio courts need guidance on how to resolve this issue. In In re A.P., the Tenth District articulated that “[u]nfortunately, no federal or Ohio court has addressed this precise issue.” And in a Twelfth District case, In re E.J., the court noted that, while not necessarily a constitutional right, “it may have been better practice in this case to allow [m]other to obtain a transcript at the state’s expense.”
Justice Fischer makes it clear that Ohio courts need guidance on how to navigate the issue of whether indigent parents have the right to transcripts at the state’s expense in dependency actions that do not involve the termination of parental rights.
In this case, Mother could not afford the $1,237.50 in transcript fees, and without the transcript, the trial and appellate courts were limited in their review, leading the appellate court to ultimately overrule Mother’s objections, due in part to the lack of a transcript.
As seen in this matter, transcripts are essential to the outcome of an appeal. Without them, the court is limited in its review. If an indigent parent cannot afford transcripts and the state declines to provide them, the right to appeal may exist in theory but not in practice. The Second District’s ruling in this matter may ultimately bar indigent parents from any meaningful appellate review of their case, according to Justice Fischer’s dissent.
Justice Fischer further warned that by declining review of this matter, the Court leaves unresolved the issue of whether indigent parents who lose custody of their child in dependency cases are entitled to the basic tools necessary to meaningfully challenge the custody determinations.
On March 5, 2026, Mother submitted a Motion for Reconsideration with the Ohio Supreme Court, once again attempting to represent herself in her battle for custody of her child.
Ohio Court Watch will continue to monitor this case, and update accordingly.