Right to Counsel in Abuse Proceeding/Permanent Surrender

Published Date Written by Erik L. Smith


An agency certainly does not cause a mother undue duress by discussing available alternatives to adoption. But it is sophistry to suggest that the adversity between adversaries disappears simply because one has initiated a "non-adversarial" proceeding. For the parent to be fully informed of the consequences of making or not making the surrender agreement, her "counseling" must address the alternative effects regarding the abuse complaint. That information and advice can come only from the parent's legal counsel. Counsel knows not only the law regarding abuse proceedings, and the likelihood of various outcomes and their consequences, but is also in tune with the parent's unique fears and concerns under her particular circumstances and in relation to the abuse proceeding. Those fears and concerns come, justifiably or not, as a result of state action. Here, the very agency telling the mother she should lose parental rights because she was an unfit abuser was counseling the mother on giving up those rights voluntarily. A conflict of interest existed. Therefore, where an abuse proceeding involving the same parent, child, and state agency, is pending, the parent's counsel must be present when the permanent surrender option is being discussed for the mother to make a fully informed decision.


Simply put, agreeing to terminate one's rights while involved in an adversarial abuse proceeding with the same parties negotiating the surrender agreement is a far different situation from agreeing to the same merely out of an unwillingness or perceived inability to parent under otherwise normal life pressures. To ignore that fundamental difference undermines the ultimate purpose of the right to counsel and of juvenile rules 1 and 4. Although the surrender agreement itself is not a court proceeding, it does require a decision by the parent regarding the parent-child relationship. Here, the juvenile court cancelled the permanent custody hearing on Children Services' motion after the surrender agreement was made and the mother appealed. That was a result in an adversarial proceeding caused by a transaction conducted by the parties to that proceeding without the parent having counsel present to advise her when transacting with those adverse parties. Regardless of the particular statute invoked, and the particular procedure followed, the mother did nothing more, effectively, than settle a portion of the abuse case without her lawyer present.


Viewing R.C. 5103.15 in isolation, as the Appellate Court did, overlooks the need to construe the juvenile rules liberally to achieve just determinations. Accordingly, where the complaint is for abuse, R.C. 2151.352 and Juv.R. 4(A) apply when the parent discusses a permanent surrender agreement with the same parties involved in the abuse case. Not conforming to that voids the permanent surrender agreement from the outset. 



For those reasons, this case involves matters of public and great general interest and a substantial constitutional question. Erik L. Smith urges this Court to grant jurisdiction and allow this case so the important issues will be reviewed on the merits.

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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