Right to Counsel in Abuse Proceeding/Permanent Surrender

The purpose for the right to counsel in juvenile proceedings is to help the party cope with the problems of the law and to make skilled inquiry of the proceedings. That requires counsel's guidance at every step in the adversarial case.15 Because the surrender here involved the same adverse complainant, contemplating the same essential relief, then, liberally construing R.C. 2151.352 and Juv.R. 4, the permanent surrender signing was, in every sense for the mother, a "step" in the abuse proceeding.

Accordingly, a parent accused of abuse in juvenile court is not similarly situated with a parent uninvolved in a juvenile proceeding when those parents discuss permanent surrender agreements. A certain potential for duress motivating a parent to surrender exists in all voluntary surrender situations.16 But unlike the traditional surrendering parent, a mother accused of abuse feels a certain duress resulting from state action that goes beyond the typical or predictable life stressors for which adoption is normally sought. Most particularly are the anticipated trauma of a contested permanent custody hearing and the stigma of being judged a child abuser. The legalities of the abuse proceeding necessarily factor into the parent's decision about whether to surrender, even if the proceedings are unrelated statutorily.

We require the right to counsel in adversarial juvenile proceedings because of the importance of the parent's interest in the accuracy and justice of the decision to terminate parental rights.17 That importance becomes heightened in abuse proceedings because of the potential for criminal liability.18 Valid voluntary surrenders, in turn, require the parent be free of undue duress and coercion when making the agreement, and to understand the ramifications of making the agreement.19 Effective counseling of the parent is therefore required to avoid mistakes and misunderstandings.20 The Appellate Court here recognized the need for effective counseling in permanent surrender discussions. Appellee "counseled the mother and discussed alternatives to surrender, including birth parent counseling, foster care, and kinship placement."21 The Appellate Court concluded that this complied with the requirements of a non-adversarial surrender under R.C. 5103.15.22

15 In re Gault (1967), 387 U.S. 1, 36, 87 S.Ct. 1428, 18 L.Ed.2d 527.

16 In re Hockman, (January 14, 2005), 11th Dist. Case Nos. 2004-P-0079 2004-P-0080, 2005-Ohio-140, unreported, at ¶¶ 25-27.

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

18 Id.

19 In re Adoption of Jimenez (1999), 136 Ohio App.3d 223, 227, 736 N.E.2d. 477.

20 See, In re Brunner (Mar. 11, 1993), 10th Dist. No. 92AP1447, 1993 WL 69471, unreported.

21 Judgment opinion at ¶ 26.

22 Id.