State ex rel. Howard v. Ferreri - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Howard v. Ferreri et al..
[Cite as State ex rel. Howard v. Ferreri (1994), Ohio
St.3d .]
Mandamus to compel provision of file-stamped copy of complete
transcript of proceedings in Cuyahoga County Court of
Common Pleas, Juvenile Division, in case No. 9311338 and
to provide access to juvenile court case files in case
Nos. 9311338 and 9315631 granted, when.
(No. 94-108 -- Submitted August 17, 1994 -- Decided
October 19, 1994.)
In Mandamus
This is the third case before the court involving Mary
Beth, a child alleged to be dependent, who is in the emergency
temporary custody of Catholic Social Services of Cuyahoga
County, Inc. ("CSS"), a private child-placing agency. See,
also, Howard v. Catholic Soc. Serv. of Cuyahoga Cty., Inc.
(1994), 70 Ohio St.3d 141, N.E.2d , case Nos. 94-11 and
94-153 (consolidated appeal from judgment denying writ of
habeas corpus), and State ex rel. Howard v. Ferreri (1994),
Ohio St.3d , N.E.2d , decided today, case No. 94-516
(appeal from judgment denying writ of prohibition). Relator,
Timothy Howard, is the biological father of the child.
In case Nos. 9214817, 9311338, and 9315631, filed in the
Cuyahoga County Court of Common Pleas, Juvenile Division, CSS
sought permanent custody of the child. The first case, case
No. 9214817, was initiated by CSS on November 24, 1992. In
December 1992, Judge Betty Willis Ruben appointed attorney
Michael D. Slodov to represent Howard in case No. 9214817.
Case No. 9214817 was subsequently dismissed without prejudice.
CSS commenced the second case in September 1993, which was
designated as case No. 9311338. Respondent, Judge Robert
Ferreri, presided over this case and appointed Slodov to
represent Howard. Judge Ferreri granted a motion for a
stenographic court reporter at court expense as well as
Howard's motion for a transcript of hearings held in case No.
9311338, requesting that the expense of preparation and copying
of the transcripts be assessed as costs. Judge Ferreri
reassured Howard's counsel that he would be provided with a

copy of the transcript of the proceedings in case No. 9311338
at the court's expense. Case No. 9311338 was dismissed without
prejudice in December 1993, and a third permanent custody
complaint was filed by CSS (case No. 9315631).
In December 1993, the original and three copies of the
hearings held in case No. 9311338 were delivered by the court
reporter to Judge Ferreri. Judge Ferreri refused to have the
transcripts file-stamped and did not deliver copies of the
transcripts to Howard or his attorney. Judge Ferreri
additionally refused to permit Howard's attorney to have access
to the case file in case No. 9311338 after December 1, 1993.
Howard filed a notice of appeal from Judge Ferreri's
judgment dismissing case No. 9311338 without prejudice, and his
attorney filed an affidavit of prejudice against Judge Ferreri
requesting his disqualification in the third CSS permanent
custody case involving Mary Beth. Case No. 9315631 was stayed
from December 10, 1993 until February 15, 1994 because of the
affidavit of prejudice, when the Chief Justice denied the
motion to disqualify Judge Ferreri. Howard's counsel, by
letter dated January 5, 1994, requested respondent Leodis
Harris, administrative judge and ex officio clerk of the
juvenile court, to provide a file-stamped copy of the
transcripts in case No. 9311338 as well as access to the case
file in that case. Judge Harris refused Slodov's written
request because (1) the affidavit of prejudice prevented action
on the requests for the transcript and access to the file, and
(2) Slodov had also filed a motion to compel in this court.
The motion to compel was ultimately withdrawn prior to Howard's
instant mandamus action.
Judge Ferreri also possesses a transcript of the
proceedings and the case file in case No. 9315631, and he has
refused to provide Slodov with a copy of the transcript or
access to the court file.
On January 18, 1994, Howard brought the present action in
this court seeking a writ of mandamus to compel respondents,
Judge Ferreri, Judge Harris, and Diane Stueve, a deputy clerk
of the juvenile court, to (1) file-stamp the transcripts of
hearings in the possession of one or more of the respondents,
(2) provide Howard's counsel with a copy of the transcripts,
and (3) provide access to the case files during the juvenile
court's normal business hours.1 After the court denied
Howard's application for an alternative writ and respondents
filed an answer, Howard filed a motion for summary judgment,
supported by several affidavits and exhibits. Howard
subsequently filed a notice indicating that on April 8, 1994,
Judge Ferreri caused the filing of an incomplete copy of the
transcripts in case No. 9311338 which did not contain any of
the evidentiary materials admitted during the proceedings.
Respondents have not filed anything in opposition to either
Howard's summary judgment motion or his notice.
This cause is now before the court on Howard's motion for
summary judgment.

Michael D. Slodov, for relator.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting
Attorney, and Carol Shockley, Assistant Prosecuting Attorney,
for respondents.

Per Curiam. In order to be entitled to a writ of
mandamus, the relator must establish that he has a clear legal
right to the relief prayed for, that respondent has a clear
legal duty to perform the requested act and that relator has no
plain and adequate remedy at law. State ex rel. Seikbert v.
Wilkinson (1994), 69 Ohio St.3d 489, 490, 633 N.E.2d 1128,
1129. Civ.R. 56(C) provides that before summary judgment may
be granted, it must be determined that (1) no genuine issue as
to any material fact remains to be litigated; (2) the moving
party is entitled to judgment as a matter of law; and (3) it
appears from the evidence that reasonable minds can come to but
one conclusion, and viewing the evidence most strongly in favor
of the nonmoving party, that conclusion is adverse to the
nonmoving party. State ex rel. Cassels v. Dayton City School
Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631 N.E.2d
150, 152; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d
317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.
Howard initially requests a complete copy of the
transcripts in case Nos. 9311338 and 9315631. "In actions
instituted by the state to force the permanent, involuntary
termination of parental rights, the United States and Ohio
Constitutions' guarantees of due process and equal protection
of the law require that indigent parents be provided with
counsel and a transcript at public expense for appeals as of
right." State ex rel. Heller v. Miller (1980), 61 Ohio St.2d
6, 15 O.O.3d 3, 399 N.E.2d 66, paragraph two of the syllabus;
cf. 2 Carr & Young, Anderson's Ohio Family Law (2 Ed.1989) 371,
Section 22.4 ("[t]o effectuate fully the principles on which
Heller is based, the rights to a free transcript and appointed
counsel should be extended to all appeals by indigents").
Juv.R. 37(A) requires a complete record of all juvenile
court hearings upon request of a party or upon the court's own
motion. Similarly, R.C. 2151.35(A) requires a record of all
testimony and other oral proceedings in permanent custody
actions. Both case Nos. 9311338 and 9315631 were permanent
custody actions, and the record indicates that the court
ordered the transcription of the proceedings in case No.
9311338.
Respondents refused Howard's attorney's written request
for a file-stamped copy of the transcripts in case No. 9311338
on the basis of an affidavit of prejudice filed by Slodov in
case No. 9315631 and a motion to compel. However, at the time
this complaint was filed, the motion to compel had been
withdrawn. Moreover, the affidavit of prejudice did not
involve case No. 9311338 and the Chief Justice subsequently
overruled Slodov's motion to disqualify Judge Ferreri. Filing
of transcripts and providing copies to indigent parents in
appeals of right from permanent custody proceedings are
ministerial duties, which respondents could have performed
notwithstanding any pending affidavit of disqualification.
See, e.g., Evans v. Dayton Newspapers, Inc. (1989), 57 Ohio
App.3d 57, 566 N.E.2d 704. Therefore, respondents' stated
rationale for refusing Slodov's written request was without
merit.
Judge Ferreri claims in respondents' answer that there
were "unresolved issues regarding Relator's claim of indigency"

which preclude mandamus relief. The right to a free transcript
pursuant to Heller hinges on the parent's indigency status;
thus, a request for a transcript at state expense may be
properly denied where the juvenile court finds that the party
has adequate financial means to obtain the transcript. State
ex rel. Henry v. Grossmann (1983), 5 Ohio St.3d 235, 5 OBR 496,
450 N.E.2d 1156. During the proceedings in case No. 9311338,
Judge Ferreri granted Howard's motion for a transcript of the
hearings and advised Slodov that he would be provided a copy of
the transcript at the court's expense. Additionally, Howard's
uncontroverted affidavit indicates that he is unemployed and
has no assets. Where the moving party has produced sufficient
supportive evidence on a summary judgment motion, the opposing
party may not rest upon mere allegations in the pleadings but
must respond with affidavits or other appropriate materials to
show that there is a genuine issue of fact for trial. Civ.R.
56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58
Ohio St.3d 48, 567 N.E.2d 1027. Howard has established his
indigency with his summary judgment evidence. Moreover, it is
manifest that respondents recognized Slodov as Howard's
appointed counsel in case No. 9311338.
Although respondents do not raise the argument, Howard
must establish that the permanent custody proceedings
instituted by CSS were in effect "instituted by the state" for
constitutional due process purposes in order to establish a
clear legal right to the transcripts pursuant to Heller. For
example, since the right to a transcript under Heller applies
only to state-instituted permanent custody cases, an indigent,
noncustodial parent is not entitled to a transcript where
temporary custody is given to the other parent. Kurtz &
Giannelli, Ohio Juvenile Law (2 Ed.1989) 221, Section T 15.02,
citing In re Alexander (Dec. 28, 1982), Huron App. No. H-82-23,
unreported.
Most of the protections for individual rights and
liberties contained in the United States and Ohio Constitutions
apply only to actions of governmental entities; thus, in order
to apply, e.g., the due process right to a Heller transcript to
the actions of private entities like CSS, there must be a
determination of whether the agency's actions in seeking
permanent custody of Howard's daughter constituted state action
of a type regulated by constitutional provisions. See,
generally, 2 Rotunda & Nowak, Treatise on Constitutional Law (2
Ed.1992) 523-524, Section 16.1(a).
The first inquiry is whether the claimed constitutional
deprivation has resulted from the exercise of a right or
privilege having its source in state authority. Georgia v.
McCollum (1992), 505 U.S. , 112 S.Ct. 2348, 120 L.Ed.2d 33.
CSS is a "private child placing agency" as defined in R.C.
2151.011(B)(8) and 5103.02. CSS requested permanent custody of
Mary Beth pursuant to R.C. 2151.353(A)(4), which allows an
award of permanent custody of a child to a public children
services agency or private child placing agency, if the
juvenile court determines that the child cannot be placed with
one of his parents within a reasonable time or should not be
placed with either parent and additionally determines that the
permanent commitment is in the best interest of the child.
Since CSS's right to institute the permanent custody

proceedings is derived from R.C. 2151.353(A)(4), the first
portion of the state action test is satisfied.
The second inquiry is whether the private party charged
with the deprivation can be described as a state actor.
McCollum, supra. In resolving the issue, the following three
principles must be considered: "the extent to which the actor
relies on governmental assistance and benefits, *** whether the
actor is performing a traditional governmental function, ***
and whether the injury caused is aggravated in a unique way by
the incidents of governmental authority." Edmonson v.
Leesville Concrete Co. (1991), 500 U.S. 614, , 111 S.Ct.
2077, 2083, 114 L.Ed.2d 660, 674; see, also, Lugar v. Edmondson
Oil Co. (1982), 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482.
While here there is no indication of the extent to which
CSS relies on assistance from the state of Ohio, CSS is
required to be certified under R.C. 5103.03 to 5103.05 and is
governed by various administrative rules set forth in Ohio
Administrative Code Chapter 5101:2-5. The acceptance, custody,
and placement of dependent, abused, or neglected children by
CSS is a traditional governmental function that is subject to a
comprehensive regulatory scheme promulgated by the state. See,
e.g., Perez v. Sugarman (C.A.2, 1974), 499 F.2d 761 (private
entities which accept and retain neglected or abused children
act under color of state law for purposes of Section 1983
federal civil rights actions); Cecere v. City of New York (July
12, 1991), S.D.N.Y. No. 88 Civ. 1948, unreported, 1991 WL
136026. In that CSS satisfies the state action test, its
permanent custody actions were in effect "instituted by the
state" for purposes of applying Heller.
Therefore, under Heller, the summary judgment evidence
indicates that Howard has established a clear legal right to
the transcripts in case No. 9311338 and a clear legal duty on
the part of respondents, particularly Judge Ferreri, to provide
a file-stamped copy to him. However, as to the transcripts in
case No. 9315631, Heller requires an appeal. There is no
evidence in the record either that case No. 9315631 has
concluded or that an appeal as of right has been filed. See
State ex rel. Copeland v. Judges of the Court of Appeals of the
Third Appellate Dist. (1981), 67 Ohio St.2d 1, 5, 21 O.O.3d 1,
3, 424 N.E.2d 279, 282 (an actual appeal must be pending before
a transcript will be provided). Therefore, Howard is not
entitled to copies of the transcripts in case No. 9315631.
With regard to the transcripts in case No. 9311338, Howard
must also establish the absence of an adequate legal remedy
because a writ of mandamus will not be issued when there is a
plain and adequate remedy in the ordinary course of law. R.C.
2731.05. In order for there to be an adequate remedy at law,
the remedy must be complete, beneficial, and speedy. State ex
rel. Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate
Div. (1992), 65 Ohio St.3d 323, 328, 603 N.E.2d 1005, 1009. In
general, parties have an adequate remedy in the ordinary course
of law to correct trial court records, i.e., transcripts,
through App.R. 9(E). State ex rel. Hill v. Niehaus (1994), 68
Ohio St.3d 507, 628 N.E.2d 1376; State ex rel. Motley v. Capers
(1986), 23 Ohio St.3d 56, 23 OBR 130, 491 N.E.2d 311; State ex
rel. Ellison v. Dresbach (1983), 6 Ohio St.3d 19, 6 OBR 16, 450
N.E.2d 1174.

Nevertheless, there are some limited instances where
mandamus is appropriate to provide a complete transcript of
proceedings or to correct the record. See, e.g., State ex rel.
Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 551 N.E.2d
183; State ex rel. Spirko v. Judges of the Court of Appeals,
Third Appellate Dist. (1986), 27 Ohio St.3d 13, 27 OBR 432, 501
N.E.2d 625; cf. State ex rel. Cody v. Toner (1983), 8 Ohio
St.3d 22, 8 OBR 255, 456 N.E.2d 813. In the case at bar,
unlike Hill, Motley, or Ellison, Howard has established a clear
legal right to a copy of the complete transcript of the
proceedings in case No. 9311338. Further, it is uncontroverted
that Judge Ferreri ordered the transcripts and then kept the
finished original and copies, refusing to release any of them
to Howard or his counsel for reasons which have previously been
found to be without merit.
Although mandamus is generally not a proper method to
correct alleged errors in the record, mandamus may be
appropriate to compel the trial court to act if it refuses to
do so. State ex rel. Wright v. Cohen (1962), 174 Ohio St. 47,
21 O.O.2d 294, 186 N.E.2d 618 (mandamus is the proper remedy to
enforce the right of an indigent to a copy of the transcript
for the purpose of preparing appeal where the request for
transcript has been denied by the court); Associated Estates
Corp. v. Fellows (1983), 11 Ohio App.3d 112, 11 OBR 166, 463
N.E.2d 417; Whiteside, Ohio Appellate Practice (1993) 56,
Section T 4.07(D) (mandamus or procedendo appropriate to compel
trial court to correct errors in record if court refuses to do
so). We hold that the App.R. 9 remedy is inadequate where
respondents so clearly violated Howard's right to a copy of the
transcript and did not provide even an incomplete version of
the transcript until after Howard instituted this mandamus
action. Respondents failed to respond to either Howard's
summary judgment motion or his subsequent notice indicating
that only an incomplete transcript had been filed.
Howard has a pending appeal in case No. 9311338. By
compelling a complete transcript in that case, this court can
ensure a meaningful appeal, since Howard contends that Judge
Ferreri's assertion that Howard testified that he was not
presently able to care for Mary Beth was not supported by the
record. See, e.g., Howard v. Catholic Soc. Serv., 70 Ohio
St.3d at 142, 637 N.E.2d at 892. Howard has established an
unrebutted colorable need for the transcript. Copeland,
supra. Consequently, he is entitled to a writ of mandamus
compelling the provision of a file-stamped copy of the complete
transcript of proceedings in case No. 9311338 for purposes of
his pending appeal from the dismissal without prejudice entered
in that case.
Howard also seeks a writ of mandamus ordering respondents
to provide access to the case files in case Nos. 9311338 and
9315631. R.C. 2151.18(A) provides that the "juvenile court
shall maintain records of all official cases brought before it"
and that the "parents of any child affected *** may inspect
these records, either in person or by counsel during the hours
in which the court is open." Judge Ferreri has conceded
denying access to the file in case No. 9311338. Further,
respondents failed to deny the allegation in Howard's complaint
that they denied access to Slodov of the file in case No.

9315631 and that this denial was in violation of R.C.
2151.18(A). Allegations contained in a complaint other than
those as to the amount of damage are admitted when not denied
in the answer. Civ.R. 8(D). Therefore, Howard has established
a clear legal right to access to the files in both case Nos.
9311338 and 9315631, a corresponding clear legal duty on the
part of respondents to provide access, and the lack of any
adequate legal remedy given the juvenile court's refusal to
provide access.
Accordingly, for the foregoing reasons, we grant Howard's
motion for summary judgment and issue a writ of mandamus
compelling respondents to provide him with a complete copy of
the transcript of proceedings in case No. 9311338, and further
compelling respondents to provide him with access to the
juvenile court case files in case Nos. 9311338 and 9315631. We
deny Howard's motion for summary judgment and writ of mandamus
and deny relief on the merits as to his claim for a copy of the
transcript of proceedings in case No. 9315631.
Writ granted in part
and denied in part.

Moyer, C.J., A.W. Sweeney, Wright, Resnick, F.E. Sweeney
and Pfeifer, JJ., concur.
Douglas, J., concurs in judgment only.
FOOTNOTE
1 Howard also requested delivery of audiotapes of certain
hearings in case No. 9311338 for transcription and filing.
However, in Howard's motion for summary judgment, he notes that
delivery has occurred. As Howard readily concedes, this
renders his claim in that regard moot.