Right to Counsel in Abuse Proceeding/Permanent Surrender

Published Date Written by Erik L. Smith


This case involves a substantial constitutional question. The U.S. Constitution requires the court to decide on a case-by-case basis whether counsel's appointment is required.10 R.C. 2151.352 goes beyond that requirement by affording the right to counsel in juvenile proceedings generally.11 How that rule applies to contemporaneous transactions outside the adverse juvenile proceeding has not been directly ruled on. But basing the need for counsel's assistance solely on the nature of an intermediate procedure, while ignoring the adversarial proceeding, circumvents the case-by-case analysis requirement and the scope of R.C. 2151.352.



In sum, this case puts in issue the meaning of the right to assistance of counsel in abuse proceedings and the ability of counsel to guide their client's decision at every step affecting that proceeding. To assure uniform application of R.C. 2151.352, and to preserve the public's confidence in the meaning of the right under it, this court must grant jurisdiction to hear this case and review the Appellate Court's misguided and dangerous decision.


Statement of the Case and Facts

Erik Smith adopts and incorporates by reference the entire statement of the case and facts in the Memorandum in Support of Jurisdiction of the Appellant-Mother.


Argument in Support of Proposition of Law

Proposition of Law: A permanent surrender agreement, between the same parties to a pending abuse proceeding, discussed or signed outside the presence of the surrendering parent's counsel is void ab initio.


Permanent surrender negotiations are not adversary proceedings.12 But permanent custody proceedings are adversary proceedings and entitle an indigent parent to the right to counsel at all stages.13 Both proceedings contemplate the termination of parental rights.


We therefore have a gray area regarding the application of R.C. 2151.352 and Juv.R. 4 where the same parties involved in an adversarial abuse proceeding are discussing a non-adversarial permanent surrender agreement, and the right to counsel has not been waived. The ultimate issue is whether the procedure for negotiating and entering a permanent surrender agreement is entirely separate from the abuse proceeding? Given that the juvenile rules must be liberally interpreted and construed to effect the just determination of every juvenile court proceeding by recognizing the parties' legal rights, the answer is "no."14



10 Lassiter v. Department of Social Services (1981), 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640.


11 State ex rel. Asberry v. Payne (1998), 82 Ohio St.3d 44, 46, 693 N.E.2d 794.


12 In re Miller (1980), 61 Ohio St.2d 184, 399 N.E.2d 1262, paragraph one of the syllabus; R.C. 5103.15; R.C. 5115.16(B).


13 R.C. 2151.352; Juv.R. 4(A).


14 Juv.R. 1(B)(1).

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.


Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent


Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

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