Right to Counsel in Abuse Proceeding/Permanent Surrender

The Appellate Court's decision threatens the meaning of the right to counsel assured under R.C. 2151.352 and negates the need to construe the juvenile rules liberally to achieve justice.6 The Appellate Court's decision establishes the illogical rule that adversity between parties in a pending abuse proceeding disappears with the intervening application of a "non-adversarial" procedure, although that procedure, like the abuse proceeding, contemplates termination of parental rights. The Appellate Court rightly acknowledged termination of parental rights as the "death penalty of family law."7 Yet none of the cases the Appellate Court cited involved a contemporaneous abuse complaint. In fact, in one of the cited decisions, no contractual voluntary surrender of parental rights actually transpired under R.C. 5103.15.8 And even if R.C. 5103.15 does not apply where the children have been adjudicated neglected or dependent, R.C. 2151.352 can theoretically apply to R.C. 5103.15 while an abuse complaint is pending. Thus, no direct precedent exists on this serious issue. Accordingly, the scope and constructive effect of R.C. 2151.352 and juvenile rules 1 and 4 urgently need clarification by this court.

The implication of the Appellate Court's decision affects the ability of attorneys in every permanent custody proceeding, and particularly in abuse cases, to give truly effective assistance to parents who desperately need it. This is even more important where, as often in juvenile cases, parents must rely on court-appointed counsel. Accordingly, the public interest is affected if the application of the laws and rules regarding the right to assistance of counsel can be judicially altered to subvert the legislature's and the Supreme Court's intent that the right have uniform application and effect throughout a juvenile court proceeding.

The Appellate Court's decision sets a precedent that would take all abuse proceedings out from under the umbrella of the assistance of counsel guarantee simply by one party suggesting a permanent surrender. Right to assistance of counsel means the party having the "guiding hand of counsel at every step of the proceeding against [her]."9 That guiding hand means nothing if one party can amputate it simply by taking the parent aside and showing her another statute. Sewing counsel's hand back on at the consent hearing is no cure. Permanent surrender agreements and permanent custody/abuse proceedings both contemplate termination of parental rights. Discussing permanent surrender then essentially negotiates a settlement of the abuse case. Doing that outside the presence of the parent's counsel is intolerable.

6 See, Juv.R. 1(B)(1-2).

7 Judgment Opinion at ¶ 11.

8 In re D.C.H. at ¶16.

9 In re Gault (1967), 387 U.S. 1, 36, 87 S.Ct. 1428, 18 L.Ed. 527.