Right to Counsel in Abuse Proceeding/Permanent Surrender
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.
Conclusion
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.