In re Y.D.

[Cite as In re Y.D., 2026-Ohio-3440.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA IN RE Y.D. : : No. 115687 A Minor Child : : [Appeal by M.S., Father] : JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED RELEASED AND JOURNALIZED: September 3, 2026 Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. FA23704239 Appearances: M.S., pro se. EILEEN T. GALLAGHER, P.J.: Plaintiff-appellant M.S. (“Father”), pro se, appeals a Juvenile Court order denying his request for shared parenting. He claims the following errors: 1. The trial court committed reversible error and denied appellant due process of law by compelling him to proceed to trial pro se on the morning his retained counsel filed a motion to withdraw, in violation of Cuyahoga County Local Rule 17(C), Ohio Juvenile Rule 23, and the Fourteenth Amendment to the United States Constitution. 2. The trial court abused its discretion by ordering appellant to submit to invasive hair follicle and urine toxicology testing sua sponte, without  any motion on the docket, and based solely on unsubstantiated allegations that the court’s own Guardian ad Litem admitted she could not substantiate. 3. The trial court erred by failing to rule on appellant’s motion for psychological evaluation, which was properly filed and accepted for processing on February 14, 2025, thereby denying appellant due process and equal protection under the law. 4. The magistrate erred as a matter of law by drawing adverse inferences against appellant for his inability to complete follicle testing when compliance was physically impossible due to hair length, and when appellant completed the urine screen demonstrating compliance, yet the result was never formally introduced into evidence or subjected to cross-examination. 5. The trial court abused its discretion by affording undue weight to the Guardian ad Litem’s report and recommendation, which was based on hearsay, lacked independent verification, contained material factual errors, and was internally contradictory. 6. The trial court’s decision designating Mother as sole residential parent and legal custodian, denying Father’s application for shared parenting, and restricting Father to supervised visitation is against the manifest weight of the evidence and fails to properly apply the best interest factors under R.C. 3109.04(F)(1). We find that the juvenile court violated Father’s right to due-process and statutory right to counsel by requiring him to proceed with the trial pro se after his attorney filed a last-minute motion to withdraw and failed to appear. We also find that the juvenile court did not abuse its discretion in ordering Father to submit to drug and alcohol testing and in not ordering Mother to submit to psychological testing. We, therefore, sustain the first assignment of error and overrule the second and third assignments of error. The remaining assignments of error that pertain to the trial are rendered moot by our resolution of the first assignment of error. Accordingly, we vacate the juvenile court’s judgment in part, affirm it in part, and remand the case to the juvenile court for a new trial. I. Facts and Procedural History Mother and Father are the parents of Y.D., a minor child born in May 2022. In April 2024, Father filed an application for shared parenting, requesting that Mother and Father share parenting time equally. During the pendency of the case, Y.D. lived primarily with Mother, and Father visited with the child every other Saturday for four hours. After several months had elapsed, Mother expressed concerns to the child’s guardian ad litem (“GAL”) that she believed Father was abusing alcohol. Although Mother did not believe Father was intoxicated when he visited Y.D., she was concerned about his ability to abstain from drinking if he were granted equal custody of the child. On December 18, 2024, Mother, through counsel, filed a motion for a court order compelling Father to submit to a hair follicle and urine drug and alcohol screening. Mother indicated she “believes that Father may have a severe drug and/or alcohol addiction” and that hair follicle and urine drug testing was necessary to determine whether Father was abusing drugs and/or alcohol. The GAL filed a brief in support of Mother’s motion for toxicology testing. The GAL stated that although she had not substantiated Mother’s claims of alcohol and drug abuse, she found Mother to be credible and that such a test was not unreasonable. The GAL further indicated that the issue of substance abuse was “raised as an issue by both parents during the GAL’s first meeting with them” and that the test was “necessary to put this issue to rest.” On January 27, 2025, the juvenile court ordered Father to complete a urine screen and hair follicle drug test. On February 3, 2025, Father filed a motion for extension of time to complete the tests. He represented that he received a copy of the order requiring drug testing on January 31, 2025, and that he needed more time to complete the tests. The trial court overruled Father’s request. The case proceeded to trial on Father’s application for shared parenting on April 2, 2025. Upon questioning, Father, who represented himself on the first day of trial, admitted that despite having been ordered by the court in January 2025, to submit to drug testing, he never completed any of the court-ordered drug tests. (Tr. 102-103 and 106.) The trial did not finish in one day, and the trial was continued to June 6, 2025. Meanwhile, Father retained counsel, who filed a notice of appearance on May 23, 2025. On that same date, counsel filed a motion for continuance of the June 6, 2025 trial date on grounds that she was scheduled to be out of town on that day. (R. 264.) On May 28, 2025, a magistrate issued an order denying the motion for continuance. (R. 266.) In denying the motion, the magistrate noted that “the trial is already in progress and that the hearing date was already scheduled when [Father’s attorney] filed her notice of appearance.” The court resumed the trial as scheduled. However, before proceeding with the trial, Father handed the court a copy of a motion to withdraw filed by his attorney. (Tr. 217.) Father told the court that his attorney “just gave it to me.” (Tr. 217.) The motion states that the attorney was seeking to withdraw because she was “discharged.” (R. 275.)1 The court thanked Father for providing it the motion but it did not make any inquiries as to the circumstances surrounding the motion, whether Father had in fact discharged his attorney, or whether he understood his right to counsel. The court simply resumed the trial without Father’s lawyer being present. At the conclusion of the trial, the magistrate issued a decision designating Mother as the residential parent and sole legal custodian of Y.D. (R. 278-281.) The magistrate denied Father’s request for equal parenting time and instead ordered supervised visitation until Father produces a negative hair follicle drug test. After the trial, Father retained new counsel who filed preliminary objections to the magistrate’s decision. His attorney argued, inter alia, that the magistrate erred in denying Father’s request for leave to obtain an attorney. He argued that the magistrate violated his right to due process of law by forcing him to proceed with the trial without the assistance of a lawyer. Father, through counsel, also filed supplemental objections to the magistrate’s decision wherein he represented that “Father never consented to any withdrawal.” (R. 321.) He further stated: Father relied on his retained counsel to be present. He neither requested withdrawal nor consented to proceed alone. By moving 1 Father’s attorney filed a second motion to withdraw after the trial had already concluded.  forward without inquiry into waiver or granting a continuance, the court deprived Father of the meaningful hearing that due process demands. (R. 321.) Subsequently, the juvenile court issued a decision upon review of the magistrate’s decision. The court did not expressly overrule Father’s objections, but the court’s opinion effectively adopted the magistrate’s decision in all respects and denied Father’s application for shared parenting. Father now appeals the juvenile court’s judgment. II. Law and Analysis A. Right to Counsel In the first assignment of error, Father argues the trial court committed reversible error and violated his right to due process of law by compelling him to proceed to trial pro se after his retained counsel filed a motion to withdraw on the morning of trial. R.C. 2151.352 guarantees a parent the right to counsel at all stages of proceedings brought under R.C. Ch. 2151 and 2152. See also Juv.R. 4(A); Burton v. Caudill, 2010-Ohio-4946, ¶ 31-32 (12th Dist.), quoting In re Lander, 2000 Ohio App. LEXIS 2755 (12th Dist. June 26, 2000) (“Juv.R. 4 and R.C. 2151.352 clearly provide parents who are parties to juvenile proceedings with the right to be represented by counsel at all stages of juvenile proceedings.”). R.C. 2151.23 establishes the jurisdiction of Ohio’s juvenile courts and expressly provides that Ohio juvenile courts shall have exclusive jurisdiction to decide applications involving child custody. In other words, applications for child custody are proceedings under R.C. Ch. 2151. Therefore, pursuant to R.C. 2151.352 and Juv.R. 4(A), Father had a statutory right to be represented by counsel in a private custody proceeding. R.C. 2151.352 further provides that [i]f a party appears without counsel, the court shall ascertain whether the party knows of the party’s right to counsel and of the party’s right to be provided with counsel if the party is an indigent person. The court may continue the case to enable a party to obtain counsel . . . [.] To comply with this statutory requirement, the juvenile court “‘must fully and clearly explain the right to counsel . . . .’” Burton at ¶ 32, quoting Lander at *6. “The failure to explain and/or inform a party of their right to counsel in juvenile proceedings constitutes reversible error.” Id., citing Lander at *6 and 11; In re Prunty, 1995 Ohio App. LEXIS 814 (9th Dist. Mar. 1, 1995); Christopher W. v. Roxanne G., 2004-Ohio-5510, ¶ 29-31 (6th Dist.) (trial court’s failure to explain the right to counsel to Mother in a private custody action deprived her of a fair proceeding). In Swanson v. Swanson, 2008-Ohio-4865 (8th Dist.), a mother and father litigated the allocation of parental rights and responsibilities following a contentious divorce. Twenty days before trial, mother’s counsel filed a motion to withdraw, indicating that mother had fired him. Id. at ¶ 6. Six days before trial, mother asked for a continuance because she was still endeavoring to retain new counsel. The trial court denied her request for continuance and required her to proceed pro se. In reversing the trial court’s judgment, we noted that “Ohio courts have repeatedly recognized that a trial court abuses its discretion when it allows an attorney to withdraw from the case on or near the day of trial and then denies the unrepresented party’s motion for continuance to obtain new counsel.” Id. at ¶ 26. Applying the test for continuances set forth in State v. Unger, 67 Ohio St.2d 65, 67 (1981), we held that the trial court should have granted the mother’s motion for a continuance after it allowed her counsel to withdraw without any substitute counsel. The potential prejudice to the mother outweighed the trial court’s desire to control its docket or the benefit of an earlier resolution. Id. at ¶ 26. In Seget v. Seget, 2004-Ohio-6209 (8th Dist.), the plaintiff sued the defendant for breach of contract. The defendant’s lawyer represented him throughout the proceedings but filed a motion to withdraw on the eve of trial. The next day, before trial began, the court informed the defendant that it had received his attorney’s motion to withdraw, and the defendant requested a continuance of the trial in order to retain new counsel. Id. at ¶ 3. The trial court denied the request, and the defendant proceeded to trial pro se. Id. Following an unfavorable judgment, the defendant appealed, arguing that the trial court abused its discretion in denying his request for a continuance to retain new counsel. Id. at ¶ 5-6. On appeal, we again applied the Unger test and concluded that the trial court abused its discretion in denying the defendant’s request for a continuance. Id. at ¶ 75-77. We explained that “[w]hen a party’s counsel has withdrawn on or near the day of trial, it is an abuse of discretion for a trial court to refuse to grant a continuance so that a party can obtain new counsel.” Id. at ¶ 13, citing Lowe v. Lowe, 1985 Ohio App. LEXIS 9905, *4-5 (2d Dist. Dec. 23, 1985). We, therefore, vacated the judgment and remanded the case to the trial court for a new trial. Id. at ¶ 75-77. We addressed this issue more recently in In re D.M., 2023-Ohio-3874 (8th Dist.). In that case, a father sought temporary custody of his child on grounds that the child’s mother was unable to maintain custody. Neither mother nor her attorney appeared for trial. The juvenile court acknowledged that the mother had contacted the court to report that she had been in an accident and was hospitalized, and, therefore, could not appear for trial. Id. at ¶ 9. The court nevertheless proceeded with the trial in her absence. Id. Her attorney’s absence was not explained. Following an unfavorable judgment, the mother appealed. On appeal, we held that the juvenile court committed plain error in proceeding with the trial in the absence of mother and her attorney. We held it was improper for the trial court to journalize orders deeming the absence of counsel a “knowing, intelligent and voluntary waiver of the right counsel” and that “[i]t is not incumbent upon a party to secure the appearance and readiness of his or her attorney at a hearing or trial.” Id. at ¶ 29. To the contrary, we held that under the Rules of Professional Conduct “[i]t is the attorney’s responsibility to diligently represent the client.” Id. at ¶ 28-29. We, therefore, reversed the juvenile court’s judgment and remanded the case for further proceedings. Id. at ¶ 38.  In this case, Father’s counsel filed a motion to withdraw on the day of trial, leaving Father without the assistance of counsel. Although the trial court had previously denied counsel’s request for a continuance and had not ruled on the day- of-trial motion to withdraw, the court never inquired into the circumstances of counsel’s motion to withdraw. Nor is there anything to suggest that the court considered the potential prejudice caused by counsel’s last-minute failure to appear in violation of the court’s order denying the continuance. The juvenile court never ascertained whether Father understood his right to counsel before proceeding with the trial. There is also no indication in the record that Father knowingly, intelligently, and voluntarily elected to proceed pro se. The juvenile court, therefore, violated its duties under R.C. 2151.352 and violated Father’s rights under both R.C. 2151.352 and Juv.R. 4(A). Cuyahoga C.P., Juv.Div., Loc.R. 17(C) (“Loc.R. 17(C)”) prohibits withdrawal of counsel within 30 days of trial “except for extraordinary circumstances and with permission of the court.” Juv.R. 23 provides that continuances shall be granted “when imperative to secure fair treatment.” Counsel did not plead any extraordinary circumstances. Moreover, Father indicated in his objections to the magistrate’s decision that he never consented to the withdrawal. And, the trial court did not grant the withdrawal until 47 days after the trial had concluded. Proceeding under these circumstances violated Loc.R. 17(C) and Juv.R. 23.  The fundamental requirements of due process are notice and the opportunity to be heard. In re Ruffalo, 390 U.S. 544, 550 (1968), citing Selling v. Radford, 243 U.S. 46, 51 (1911). Representation by counsel is often considered an integral part of a party’s due-process right to be heard. The United States Supreme Court has stated that “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Powell v. Alabama, 287 U.S. 45, 69 (1932). Indeed, “the right to retain counsel in civil litigation is implicit in the concept of fifth amendment due process.” Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1117 (5th Cir. 1980). The trial court’s decision to proceed with trial in absence of Father’s retained counsel violated R.C. 2151.352, Juv.R. 4(A), Loc.R. 17(C), and Juv.R. 23. These violations deprived Father of a meaningful opportunity to be heard, which due process requires. Therefore, the first assignment of error is sustained. B. Drug and Alcohol Testing In the second assignment of error, Father argues the trial court abused its discretion by ordering him to submit to drug and alcohol testing. He contends the order was improper because it was based on unsubstantiated allegations. We review a juvenile court’s decision ordering a party to submit to drug and alcohol testing for an abuse of discretion. In re L.W., 2021-Ohio-2461, ¶ 21 (12th Dist.). An abuse of discretion occurs when a court exercises its judgment in an unwarranted way regarding a matter over which it has discretionary authority. Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. However, “a trial ‘court does not have discretion to misapply the law.’” Morgan v. Greater Cleveland Regional Transit Auth., 2025-Ohio-1655, ¶ 64 (8th Dist.), quoting Johnson at ¶ 38. “Thus, an abuse of discretion also occurs when a court ‘“applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.”’” Id., quoting Thomas v. Cleveland, 2008-Ohio-1720, ¶ 15 (8th Dist.), quoting Berger v. Mayfield, 265 F.3d 399 (6th Cir. 2001). A juvenile court may order a party to undergo drug and/or alcohol testing in a child-custody case when the best interest of the child is at stake. Eitutis v. Eitutis, 2011-Ohio-2838, ¶ 107 (11th Dist.). However, the court may only require a party to “submit to the hassle and expense associated with drug testing” where the court has reasonable suspicion to believe that the party is currently using drugs and/or alcohol. In re L.W. at ¶ 23-24; Hatfield v. Cornell, 2018-Ohio-798, ¶ 17 (12th Dist.). The term “reasonable suspicion” as applied to a party’s use of drugs or alcohol in a child-custody case has not been specifically defined. However, cases applying the term have held that reasonable suspicion requires more than unsupported accusations. For example, in In re P.C., 2022-Ohio-1771, ¶ 16 (3d Dist.), the trial court lacked reasonable suspicion to believe that paternal grandparents were using drugs because there was no evidence to support the allegations, and the court did not find the uncorroborated testimony alleging drug use by the grandparents credible.  By contrast, in Hatfield v. Cornell, 2018-Ohio-798, ¶ 17 (12th Dist.), the court found the necessary reasonable suspicion to order a father to submit to hair follicle drug testing where the mother suspected he was using drugs and the father had previously admitted to using heroin and marijuana in the past. Id. The father also engaged in “alarming” behavior, including several outbursts and speaking softly under his breath during his examination in open court and while other witnesses were on the witness stand. Id. at ¶ 6 and 17. Thus, the Hatfield Court found reasonable suspicion based on the mother’s allegations combined with the father’s strange behavior and admission of prior drug abuse. In this case, Mother suspected that Father was abusing alcohol because she smelled alcohol in a mug during a visit and she observed bottles of alcohol in Father’s trash. The GAL admitted in her brief in support of toxicology testing that she had not yet substantiated Mother’s allegations, but she vouched for Mother’s credibility. The GAL further noted that “[s]ubstance abuse was raised as an issue by both parents during the GAL’s first meeting with them.” Later, in the GAL’s written report, the GAL indicated that she considered Mother’s assertion that Father abuses drugs and alcohol more credible than Father’s denial. As previously stated, an order requiring a parent to submit to drug and/or alcohol testing is discretionary. In re L.W., 2021-Ohio-2461, at ¶ 21. However, drug and alcohol testing is appropriate where substance abuse is reasonably suspected because the issue of substance abuse is relevant to a determination of the child’s best interest, the controlling principle in child-custody cases. Eitutis, 2011-Ohio-2838, at ¶ 107. In balancing the competing interests between the child’s safety and the parent’s convenience, juvenile courts should exercise their discretion in favor of child safety. Although the evidence suggesting that Father may be abusing drugs or alcohol is not overwhelming, it is not entirely without basis either. Therefore, under these circumstances, we cannot say that the juvenile court abused its discretion in ordering Father to complete hair follicle testing to ensure that his child will be safe in his custody. The second assignment of error is overruled. C. Psychological Testing In the third assignment of error, Father argues the trial court erred in failing to grant his motion to compel Mother to submit to psychological testing. He argues the trial court’s failure to rule on the motion “constitutes procedural error.” He also contends that the court’s failure to rule on the motion demonstrates an unfair asymmetry because the court ordered him to submit to drug and alcohol testing but ignored his motion to compel Mother to submit to psychological testing. R.C. 3109.04(C) allows a court to order a psychological examination to assist the court in determining parental fitness and the child’s best interests. R.C. 3109.04 expressly applies to juvenile-court custody matters pursuant to R.C. 2151.23(F)(1), which provides that “[t]he juvenile court shall exercise its jurisdiction in child custody matters in accordance with sections 3109.04, 3109.21 to 3109.36, and 5103.20 to 5103.28 of the Revised Code.” R.C. 3109.04(C) provides:  Prior to trial, the court may cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of each parent and may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations. . . . Civ.R. 35(A) also allows a court to order a psychological examination “[w]hen the mental or physical condition . . . of a party . . . is in controversy . . . .” The Ohio Rules of Civil Procedure apply in juvenile court cases except when they are clearly inapplicable. In re H.W., 2007-Ohio-2879, ¶ 11. However, whereas Civ.R. 35(A) only allows an order for psychological examination if “good cause” is shown, R.C. 3109.04(C) simply provides that the court “may” order a parent to submit to psychological examination. See Tassone v. Tassone, 2020-Ohio-3151, ¶ 15 and 20 (10th Dist.); Harness v. Harness, 143 Ohio App.3d 669, 675 (4th Dist. 2001). In other words, under R.C. 3109.04(C), a juvenile court has discretion to order a parent to submit to drug and alcohol testing. Despite minor difference between the two, both R.C. 3109.04(C) and Civ.R. 35(A) are permissive rather than mandatory, meaning that the decision whether or not to order a psychological examination is within the court’s discretion. Sites v. Sites, 2010-Ohio-2748, ¶ 25 (4th Dist.); Singer v. Singer, 2019-Ohio-5294, ¶ 27 (9th Dist.). We, therefore, will not disturb the juvenile court’s decision concerning a psychological examination absent an abuse of discretion. Id. The juvenile court never ruled on Father’s motion to compel Mother to submit to psychological testing. “[M]otions that a trial court fails to explicitly rule upon are deemed denied once a court enters final judgment.” Hopkins, 2024-Ohio- 2265, at ¶ 40, citing State v. Nikolic, 2020-Ohio-3718, ¶ 5 (8th Dist.). In his motion for psychological evaluation, Father asserted that Mother demonstrated behavioral patterns that “raise significant concerns regarding her parenting capacity and the emotional wellbeing of the minor child.” He described her behavior as “manipulative” and “vindictive.” In support of the motion, Father attached copies of unverified text messages between Mother and himself and the GAL’s written report. We find nothing in either the unverified text messages or the GAL report that would warrant an order compelling Mother to submit to psychological testing. The GAL indicated that Mother demonstrated an appropriate and loving relationship with Y.D. and that Mother “has never communicated a desire to exclude Father from [Y.D.]’s life.” The GAL’s report further states, in relevant part: Rather, [Mother] wants [Y.D.] to be able to enjoy both of her parents, but only if they are both healthy and can keep her safe. Mother has voiced concerns about Father’s controlling nature and his general unwillingness to cooperate or admit fault. She is worried about how this will impact [Y.D.]. Mother also alleges Father has a substance abuse issue. Father highlighted the above-quoted language in the GAL’s report because he apparently believes the GAL’s description of Mother’s behavior demonstrates her manipulative nature and the need for a psychological evaluation. However, other statements in the GAL’s report support Mother’s allegations. For example, in addressing Mother’s allegation that Father has a substance-abuse disorder, the GAL states, “I have spoken with Father about Mother’s concerns. I have asked him to commit to abstaining from alcohol or other drugs while with [Y.D.]; he refused.” (Emphasis added.) (R. 188; Guardian Ad Litem Written Report p.6, attached to Father’s motion for psychological evaluation.) The GAL’s report states: I was provided a copy of a motion for toxicology testing filed by Mother; I do not see this motion on the Court’s docket. I filed a brief in support on December 17, 2024 and Father filed a motion to deny on December 18, 2024. Father’s Motion leaves me concerned that substance use is an issue. I find Mother’s assertion that Father abuses alcohol and other drugs more compelling than Father’s denial. And I do not understand why Father — who has repeatedly stressed the need for objective evidence — will not submit to the screen. (Emphasis in original.) (R. 188; Guardian Ad Litem Written Report p.6, attached to Father’s motion for psychological evaluation.) There is no evidence in the record to support Father’s allegations that Mother suffers from any mental disorder that would warrant a psychological examination. The GAL finds Mother’s concerns regarding Father’s substance-abuse issues to be credible rather than manipulative. Therefore, the juvenile court did not abuse its discretion in effectively denying Father’s motion by failing to rule on it. Accordingly, the third assignment of error is overruled. Having sustained the first assignment of error, the fourth, fifth, and sixth assignments of error that relate to the trial are moot. The trial court’s judgment is affirmed in part and vacated in part, and the case is remanded to the juvenile court for a new trial.  It is ordered that appellee and appellant share 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, juvenile division, 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. EILEEN T. GALLAGHER, PRESIDING JUDGE MICHAEL JOHN RYAN, J., and TIMOTHY W. CLARY, J., CONCUR