Ohio Supreme Court Holds Indigent Parent Does Not Have Right to Appointed Counsel in Purge Hearings

The Ohio Supreme Court ruled yesterday that a hearing to determine whether someone has purged him- or herself of a previous court order of civil contempt is a civil rather than a criminal proceeding, and, therefore, the Due Process Clauses of the U.S. and Ohio constitutions do not guarantee an indigent parent the right to appointed counsel at a civil-contempt purge hearing in a child support case.

The case in question, the Court's news service reviewed, involved an order issued by the Athens County Juvenile Court compelling Michael Liming to pay a specified amount each month to his ex-wife, Denday Damos, for the support of the couple's two children.

Liming appealed the denial of his request for appointed counsel at the purge hearing, and, on review, the Fourth District Court of Appeals held that the original contempt proceeding against Liming had been civil in nature and did not convert a later purge hearing into a criminal proceeding at which Liming had a right to appointed counsel under either the Sixth Amendment or Due Process Clause of the U.S. Constitution. The Fourth District noted, however, that its denial of a due process right to counsel at a purge hearing was in conflict with a 2001 ruling on the same issue by the Sixth District Court of Appeals, where that court had held that the trial court, exercising criminal contempt powers, was punishing that appellant for not complying with its previous orders. [ See Samantha N. v. Lee A.R., 6th Dist. Nos. E-00-036 and E-00-037, 2001 Ohio App Lexis 540 (Feb. 16, 2001)].

In resolving the conflict between appellate districts. Justice Judith Ann Lanzinger wrote that "based on the evidence before the trial court, the agency established that Liming had not met his purge conditions. Because he had the burden of proof and failed to produce evidence of inability to pay, the trial court's failure to expressly find that he had the ability to pay did not convert the purge hearing into a criminal proceeding. Therefore, the right to counsel under the Sixth Amendment to the United States Constitution and under the Ohio Constitution, Article I, Section 10 did not apply," the Court News Summary reported.

"Justice Lanzinger also reviewed the recent U.S. Supreme Court holding in Turner v. Rogers (2011) which stated: 'the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year)'; the majority noting that Turner was instructive but did not answer the precise question before the court concerning a purge hearing. Justice Lanzinger proceeded to employ the Mathews v. Elridge (1976) balancing test and concluded that the factors weighed against requiring the state to provide Liming with counsel at the civil-contempt purge hearings.”

"Justices Terrence O’Donnell and Paul Pfeifer joined in dissenting, disagreeing with the majority holding that a hearing was not required to determine the contemnor's ability to pay. Justice O’Donnell wrote that in his view, before a trial court may enforce a suspended contempt sentence that includes incarceration based on non-payment of child support, the court must conduct a hearing at which an indigent contemnor has access to appointed counsel, and the court must determine at that hearing whether the contemnor had the ability to pay the support ordered by the court.

"Also citing the Rogers holding that courts enforcing contempt sentences based on non-payment must either appoint counsel or adopt 'alternative procedures' that safeguard the rights of indigent persons before depriving them of their personal freedom, Justice O’Donnell wrote: 'Ability to pay is at the heart of contempt for failure to pay. A contempt action includes hearings to determine contempt as well as the purge of that contempt, and the right of a parent facing incarceration due to noncompliance with the purge conditions of a contempt order is not dependent on the nature of specific hearing or whether the action is civil or criminal; rather, the right of an indigent parent to counsel is dependent on the ability to pay.'"