Opinion
No. 82-1697
Decided July 6, 1983.
Custody — Appellate procedure — Mandamus to compel granting of transcript at public expense for appeal of termination of parental rights — Right to transcript hinges on status as indigent — Consideration of financial means of parties to appeal — Writ properly denied, when.
APPEAL from the Court of Appeals for Hamilton County.
Carolyn Henry, appellant, lost permanent custody of her minor child to the Hamilton County Welfare Department. Her parental rights were terminated as the result of a March 5, 1982 dispositional hearing in the Court of Common Pleas of Hamilton County, Juvenile Division, where appellant was represented by court-appointed counsel. She was not present. Upon termination of her parental rights, two of appellant's aunts joined her and engaged appellate counsel to prosecute an appeal.
Appellate counsel, on behalf of appellant and her aunts, filed a motion in the trial court to provide a transcript for purposes of appeal. This motion was heard on July 2 and July 20, 1982 by Judge David E. Grossmann, appellee. Testimony was offered to show that appellant's sole source of income was a monthly social security check, that her aunts were gainfully employed, and that one of her aunts owned her own home, subject to a mortgage. The motion for a transcript was subsequently denied.
Appellant filed a mandamus action in the court of appeals to compel appellee to grant the motion. Thereafter, appellee filed a motion for summary judgment, which was granted and the writ denied.
The cause is now before this court upon an appeal as of right.
Mr. James Andrew Rader, for appellant.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. James W. Harper, for appellee.
It is well-established that a writ of mandamus will lie only where there is a clear legal right to the relief prayed for, a clear legal duty to perform the requested act, and no adequate remedy at law. State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 42 [8 O.O.3d 36]. Appellant argues that the rule in State, ex rel. Heller, v. Miller (1980), 61 Ohio St.2d 6 [15 O.O.3d 3], establishes her right to a transcript at public expense and, consequently, appellee's duty to grant her the same.
In Heller this court said that indigent parents must be provided with a transcript at public expense for appeals in actions instituted by the state to terminate parental rights. We further stated that "* * * [w]e do not require the courts to aid all who claim to be indigent; a court can, in appropriate cases, find that the parents are not indigent. * * *" Heller, supra, at 13. One's right to a transcript hinges on one's status as an indigent.
Appellee contends that appellant, together with the additional parties, when moving for a transcript in the trial court, did not demonstrate their indigency and therefore did not fall under the rule set forth in Heller. Appellant argues that she would have been considered indigent but for her aunts' offer to provide financial aid, which they had no legal obligation to provide. The record reveals, however, that appellant was not merely given financial aid by her aunts toward the prosecution of her appeal, but also was joined by them such that they became parties to the appeal. The motion was denied because the moving parties were found to have adequate financial means to obtain the transcript. This comports with the rule in Heller.
Appellant has failed to show that she had a clear legal right to the relief prayed for or that appellee had a clear legal duty to perform the requested act. The judgment of the court of appeals is accordingly affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.