COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68968 IN RE: : : NANCY WILLIAMS : : JOURNAL ENTRY : : AND : : OPINION : : : : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 4, 1996 CHARACTER OF PROCEEDING: Civil appeal from Juvenile Court Case No. 9404471 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: Counsel for Appellant: Counsel for Appellee: JEAN M. GALLAGHER STEPHANIE TUBBS JONES Assistant Public Defender Cuyahoga County Prosecutor 1200 West Third Street, N.W. JOSEPH RUSSO 100 Lakeside Place Assistant Prosecuting Attorney Cleveland, Ohio 44113-1569 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Nancy Williams, a fifteen year old juvenile, appeals from a March 31, 1995 Juvenile Court determination committing her to the Department of Youth Services. On March 16, 1994, the appellant while armed with a knife assaulted her mother, Karen Frey, who filed a complaint with juvenile court seeking a delinquency determination. Because appellant failed to appear at her arraignment on this charge, the court issued a warrant for her arrest on April 29, 1994. The record next reflects that at a September 6, 1994 hearing, the court obtained a waiver of counsel from both the appellant and her parents, accepted a voluntary admission from the appellant on the allegations of the complaint, determined the appellant to be delinquent, and placed her on probation. Thereafter, on February 2, 1995, appellant's probation officer filed a complaint alleging appellant violated the conditions of probation in that she missed school on ten occasions and left home without permission. Pursuant to that complaint, the court conducted an additional hearing, again advised appellant of her rights, adjudicated her delinquent based upon her voluntary admission to these allegations, continued her probation in the custody of her aunt in Strongsville, Ohio, but continued disposition until March 13, 1995. - 3 - At the March 13, 1995 dispositional hearing, the court committed appellant to the Ohio Department of Youth Services for a term of one year, but stayed that commitment and remanded her to the detention center to obtain diagnostic testing for shelter care placement. While awaiting testing, appellant went AWOL from Helwick House and her probation officer filed a second probation violation complaint and the court issued a warrant for her arrest. Upon her arrest on the outstanding capias, the court conducted another hearing on March 31, 1995, determined her delinquent "*** by reason of having committed an act which if committed by an adult, would constitute a felony of the second degree", lifted the stay, and committed her to the Ohio Department of Youth Services. The appellant appeals from this order assigning one error for our review. I. Appellant's single assignment of error states: THE JUDGMENT ADJUDICATING APPELLANT A PROBATION VIOLATOR AND COMMITTING HER TO THE OHIO DEPARTMENT OF YOUTH SERVICES MUST BE REVERSED WHERE THE RECORD DOES NOT DISCLOSE THAT THE COURT COMPLIED WITH JUV. R. 4(A), 29(B) AND (D) AND 35 OR THAT SHE VOLUNTARILY AND WITH UNDERSTANDING ENTERED AN ADMISSION OR WAIVED HER RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION. - 4 - Appellant maintains the March 31, 1995 order of the juvenile court should be reversed because the court failed to obtain a waiver of counsel and a voluntary admission in this case. The State contends that although the transcript of the March 31, 1995 hearing confirms that the trial judge did not advise appellant of her right to counsel at that time, this court nonetheless should affirm the action of the juvenile court because the journal entries from the September 6, February 7, and March 13 hearings reflect appellant waived counsel on those occasions. The issue then, for our review is whether the appellant voluntarily waived her right to counsel and voluntarily admitted her delinquency in these matters. Initially, we observe that the right to counsel in a juvenile proceeding is mandated by the U.S. Supreme Court. The United States Supreme Court when examining a juvenile's right to counsel stated: We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. In re Gault (1967) 387 U.S. 1, 41. Furthermore, this right is delineated in R.C. 2151.352, which states in part: - 5 - A child, his parents, custodian, or other person in loco parentis of such child is entitled to representation by legal counsel at all stages of the proceedings * * *. If a party appears without counsel, the court shall ascertain whether he knows of his right * * *. From our exhaustive review of the transcript and record of entries in this case, it is obvious that the court's journal entry of March 31, 1995 reflects that the parties waived counsel on that date, but the transcript offered to us does not corroborate those actions. What is not presented to us, however, is a complete transcript of all of the hearings conducted by the court in its handling of this matter. Our appellate rules provide that the party asserting the affirmative of a position, must evidence that in the record. See App. R. 9. Further, we are mindful of Knapp v. Edwards Labs (1980), 61 Ohio St. 2d 197, where the court stated at 199: The duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162. This principal is recognized in App. R. 9(B), which provides, in part, that "* * * the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record* * *."* When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume validity of the lower court's proceedings, and affirm. In this case, it is particularly apparent that the juvenile court urged appellant's compliance with probation on more than - 6 - one occasion and only considered commitment as a final alternative. Moreover, the journal entries of the court reflect that appellant had been advised of her right to counsel and had waived that right. Neither the mandate of In re Gault, supra, nor the provisions of R.C. 2151.352 require a trial judge to continually obtain waivers at all stages of a proceeding where the litigant has once waived the right to counsel. A waiver, once given, can be revoked, but revocation requires an affirmative act on the part of the litigant, but will not be presumed from a silent record. Here, appellant provided only a transcript of a portion of the proceedings in this case, and has failed to provide a complete record of all the hearings conducted by the court for our review. Since a court speaks only through its journal, and since the journal entries of the juvenile court are replete with entries which suggest appellant has waived her right to counsel in this case, we find appellant has not met her burden of proof to demonstrate error in this case. The judgment of the juvenile court on March 31, 1995 simply lifted the stay of its earlier Department of Youth Services commitment entered on March 13, 1995, when, the journal entry shows appellant waived right to counsel. Failure to advise appellant of her right to counsel at the March 31, 1995 hearing cannot constitute error since appellant had previously waived - 7 - this right. Accordingly, appellant's assignment of error is overruled. In accordance with the foregoing analysis, the judgment the trial court is affirmed. Judgment affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) 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 Juvenile Court 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. PORTER, J., CONCURS; BLACKMON, P.J., CONCURS IN JUDGMENT ONLY JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .