Right to Counsel in Abuse Proceeding/Permanent Surrender

Introduction

Erik L. Smith, a citizen and resident of Franklin County, Ohio, urges the court to accept this case. As a certified paralegal and an advocate for natural parents in adoption, Smith regularly assists attorneys in and outside of Ohio in juvenile and adoption cases. His mission is to bring about systemic reform in child welfare and adoption law, and to educate the public about juvenile and adoption law generally. To help achieve those goals, Smith publishes regularly, both in hard copy and online, on juvenile and adoption law topics.1

Smith also has experience as a respondent in a contested adoption.2 That litigation resulted in an overturned adoption and an agreed custody arrangement. Smith now regularly receives requests from natural parents and other potential litigants for advice on practical and psychological issues of open adoption. Smith also refers correspondents to lawyers for answers to legal questions. Smith has the somewhat unique perspective of having both a legal education and experience as a party in an extensive adversarial proceeding where his parental rights were in jeopardy. That combined background should be of value here.

This case also involves a public defender and court-appointed ad litem. Counsels are paid relatively little for their time and have large caseloads. Thus, Smith hopes the court will see this brief as an aid both to the court and to effective public service.

This Case is One of Public or Great General Interest and Involves a Substantial Constitutional Question

This case presents a critical issue for the future of parents and children involved in permanent custody proceedings upon abuse complaints in juvenile court: whether the parent's counsel needs to be present at relevant, significant transactions between the parties while the abuse case is pending.

The court of appeals concluded that the mother's permanent surrender discussion with Children Services regarding the subject child was a separate, non-adversary proceeding not requiring the mother's counsel to have been present. The Appellate Court relied on two Supreme Court cases and one appellate case3 in concluding that, despite the pending adversarial proceeding between the same persons, the mother was to be treated the same as any other parent voluntarily surrendering under R.C. 5103.15. Specifically, neither the statute nor the juvenile rules "contemplated" the right of an indigent person to have an attorney present during a private contractual transfer of permanent custody.4 The Appellate Court reasoned that, because a parent could always revoke the agreement before the juvenile court consented to it, nothing in the law mandated a parent's counsel be present during the discussions leading to the permanent surrender of custody.5

1 For example, "Basics of the Ohio Putative Father Registry." Ohio Lawyer. March/April 2005. 

2 In the Interest of Baby Boy Collins., 93-PA-00361, consolidated in 93-PA-01108, Bexar County, Texas, 525th Judicial District. (Not appealed).

3 Kozak v. Lutheran Children's Aid Society (1955), 164 Ohio St. 335; 130 N.E.2d 796; In re Miller (1980), 61 Ohio St.2d 184, 399 N.E.2d 1262; In re D.C.H., 9th Dist. C.A. No. 22648, 2005-Ohio-4257, unreported. 

4 Judgment Opinion at ¶ 23.

5 Judgment Opinion at ¶ 25-26.