Indigent Parents’ Rights to Appointed Counsel and State-Funded Transcripts in Dependency Custody-Modification Proceedings (Unresolved)
1. Introduction
In In re A.B. (02/25/2026 Case Announcements #2, 2026-Ohio-617), the Supreme Court of Ohio declined to accept a discretionary jurisdictional appeal arising from a juvenile dependency matter in Miami County. The appellant, a pro se and indigent mother, sought review of lower-court rulings denying her (1) appointed counsel and (2) transcripts at the state’s expense while she attempted to modify a prior legal-custody disposition that had placed her child, A.B., with the maternal grandparents.
The key legal issues—framed most clearly in Justice Fischer’s dissent (joined by Justice Brunner)—were statutory and constitutional: whether a parent moving to modify or terminate a dependency dispositional order under R.C. 2151.353(F)(2) is excluded from the right to counsel by the R.C. 2151.23(A)(2) “civil custody” carve-out referenced in R.C. 2151.352, and whether due process requires state-funded transcripts in dependency proceedings that do not terminate parental rights.
2. Summary of the Opinion
The court announced: “APPEALS NOT ACCEPTED FOR REVIEW” in In re A.B., and denied the appellant’s request for oral argument. Justice DeWine would have denied the oral-argument request as moot.
Justice Fischer dissented, urging the court to accept jurisdiction because the appeal raised important, unsettled constitutional questions involving fundamental parental rights and due process—specifically, access to appointed counsel and transcripts for indigent parents seeking modification of legal custody in a dependency case.
3. Analysis
A. Precedents Cited
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In re S.L., 2019-Ohio-815:
Justice Fischer treated In re S.L. as the most direct authority supporting the mother’s statutory argument. There, the Sixth District held that a parent’s post-disposition motions (seeking changes to parental access) were motions to modify a dispositional order issued under R.C. 2151.353(A)(3) and thus arose under R.C. 2151.353(F)(2). On that view, the parent was entitled to appointed counsel under R.C. 2151.352, because the R.C. 2151.23(A)(2) exception for “civil” custody matters did not apply where the court’s involvement stemmed from an abuse/neglect/dependency adjudication.
The dissent emphasized In re S.L.’s rejection of characterizing such proceedings as merely “a civil matter between two private parties” and its conclusion that R.C. 2151.23(A)(2) does not govern custody proceedings following an abuse, dependency, or neglect finding. This case was used to illustrate a potential inter-district conflict with the Second District’s approach in In re A.B..
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In re A.P., 2014-Ohio-5244:
Justice Fischer cited In re A.P. to show that the transcript-at-state-expense issue remains unsettled. The Tenth District framed the question as whether federal or Ohio constitutional due process requires the state to pay for a transcript for an indigent parent when, in a state-initiated dependency action, a magistrate recommends awarding legal custody to a non-parent. Notably, In re A.P. observed: “Unfortunately, no federal or Ohio court has addressed this precise issue.” The dissent relied on this to argue that Supreme Court review would fill a doctrinal gap.
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In re E.J., 2015-Ohio-731:
The dissent cited In re E.J. as an example of a court declining to recognize a constitutional right to a state-funded transcript in a dependency disposition that did not terminate parental rights—while also acknowledging that providing the transcript might have been “better practice.” Justice Fischer invoked this tension to argue that appellate courts are signaling uncertainty and policy concern even when denying relief.
B. Legal Reasoning
Although the Supreme Court did not issue a merits opinion, the dissent’s reasoning is structured around two connected access-to-justice problems in dependency custody-modification litigation: (1) counsel and (2) the record necessary for meaningful review.
1) Appointed counsel: R.C. 2151.352 versus the R.C. 2151.23(A)(2) exception
Justice Fischer focused on the statutory architecture. R.C. 2151.352 generally provides a right to appointed counsel for indigent parents “at all stages” of Chapter 2151 proceedings, but recognizes exceptions, including matters where the juvenile court is exercising jurisdiction under R.C. 2151.23(A)(2) (custody matters outside domestic-relations cases).
The Second District’s rationale (as described in the dissent) treated the mother’s effort to regain custody as falling within the R.C. 2151.23(A)(2) “civil matter” category—thus outside the right-to-counsel guarantee in R.C. 2151.352. The dissent challenged that classification by pointing to R.C. 2151.353(F)(2), which expressly authorizes parties (other than a parent whose rights have been terminated) to “at any time request the court to modify or terminate any order of disposition” issued under R.C. 2151.353(A), and requires the court to hold a hearing “as if the hearing were the original dispositional hearing.”
In the dissent’s framing, when the litigation posture is a motion to modify or terminate a dependency disposition under R.C. 2151.353(F)(2), it is not merely a stand-alone private “custody dispute”; it is a continuation of the dependency case’s dispositional framework. Because R.C. 2151.352 does not list R.C. 2151.353 proceedings among excluded categories, the dissent viewed the statutory scheme as supporting a right to appointed counsel—at least strongly enough to warrant Supreme Court review, especially given In re S.L..
2) State-funded transcripts: due process and the ability to secure appellate review
The dissent also highlighted a practical and constitutional feedback loop: the trial court denied state-funded transcripts; later, the trial court limited its review of objections because the mother did not supply a transcript; the court of appeals then rejected efforts to obtain transcripts on appeal and affirmed in part because the transcript was absent from the record.
Justice Fischer characterized this as raising “interesting and unsettled” due process issues in non-termination dependency proceedings. While termination-of-parental-rights cases more clearly trigger heightened protections, the dissent stressed that legal-custody dispositions still implicate “fundamental rights as a parent” and that the inability to obtain transcripts can make appellate review functionally illusory for indigent litigants.
C. Impact
The immediate effect of the court’s refusal to accept review is that no statewide rule was announced; the Second District’s approach remains undisturbed in this case, and the mother’s claims were not heard on the merits by the Supreme Court.
More broadly, the dissent suggests at least three forward-looking implications:
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Potential inter-district divergence:
By pointing to In re S.L., the dissent implicitly warned that Ohio appellate districts may diverge on whether R.C. 2151.23(A)(2) can be used to deny appointed counsel in dependency-related custody-modification proceedings. Such divergence can produce inconsistent access to counsel depending on geography.
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Access-to-appellate-review concerns:
Denying transcripts to indigent parents in dependency custody disputes may systematically limit meaningful review of magistrate proceedings, especially where objections and appeals require transcripts to challenge factual findings.
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Future litigation pressure:
Because the dissent frames the issues as constitutional (fundamental parental rights, due process), similar cases may recur until the Supreme Court accepts a vehicle to clarify (a) the statutory scope of R.C. 2151.352 for R.C. 2151.353(F)(2) motions and/or (b) constitutional minimums for record access in non-termination dependency litigation.
4. Complex Concepts Simplified
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Dependency action:
A juvenile-court case where the state alleges a child is “dependent” (e.g., lacking proper parental care), allowing the court to make protective orders about the child’s placement and services.
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Legal custody vs. termination of parental rights:
“Legal custody” places the child with a custodian (here, grandparents) but does not permanently sever the parent-child legal relationship the way termination does. The dissent’s point is that even without termination, the parent’s interests remain fundamental and may warrant robust procedural protections.
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Disposition and “modify or terminate” under R.C. 2151.353(F)(2):
After adjudication, the court enters a “dispositional order” deciding placement (e.g., legal custody). R.C. 2151.353(F)(2) lets parties later ask the court to modify or end that dispositional order, and requires a hearing akin to the original dispositional hearing.
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Appointed counsel for indigent parties:
A statutory (and sometimes constitutional) right for a person who cannot afford a lawyer to have one provided. The dispute here is whether the statute’s exception for some “civil custody” matters applies when custody litigation is embedded in a dependency disposition.
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Transcript at the state’s expense:
A written record of the hearing. Without it, appellate courts often cannot review factual or evidentiary claims. The dissent highlights due process concerns when an indigent litigant cannot obtain the transcript but is then penalized for not providing it.
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Jurisdictional (discretionary) appeal:
The Supreme Court of Ohio generally chooses which non-mandatory cases to hear. Denial of jurisdiction usually reflects a decision not to take the case, not an endorsement of the lower court’s reasoning.
5. Conclusion
2026-Ohio-617 did not establish new binding law because the Supreme Court declined review, but Justice Fischer’s dissent crystallizes two unresolved and recurring questions in Ohio dependency practice: whether indigent parents seeking modification of dependency legal-custody dispositions are entitled to appointed counsel under R.C. 2151.352 notwithstanding the R.C. 2151.23(A)(2) exception, and whether due process requires state-funded transcripts in non-termination dependency proceedings where transcript access can determine whether meaningful review is possible.
By juxtaposing In re S.L. with the Second District’s treatment of the mother’s requests, and by cataloging appellate uncertainty reflected in In re A.P. and In re E.J., the dissent frames a developing fault line in Ohio juvenile law—one likely to invite future Supreme Court intervention when an appropriate case vehicle arises.