Right to Counsel in Abuse Proceeding/Permanent Surrender

Published Date Written by Erik L. Smith

Erik L. Smith, a citizen and resident of Franklin County, Ohio, urges the court to accept this case. As a certified paralegal and an advocate for natural parents in adoption, Smith regularly assists attorneys in and outside of Ohio in juvenile and adoption cases. His mission is to bring about systemic reform in child welfare and adoption law, and to educate the public about juvenile and adoption law generally. To help achieve those goals, Smith publishes regularly, both in hard copy and online, on juvenile and adoption law topics.1

Smith also has experience as a respondent in a contested adoption.2 That litigation resulted in an overturned adoption and an agreed custody arrangement. Smith now regularly receives requests from natural parents and other potential litigants for advice on practical and psychological issues of open adoption. Smith also refers correspondents to lawyers for answers to legal questions. Smith has the somewhat unique perspective of having both a legal education and experience as a party in an extensive adversarial proceeding where his parental rights were in jeopardy. That combined background should be of value here.


This case also involves a public defender and court-appointed ad litem. Counsels are paid relatively little for their time and have large caseloads. Thus, Smith hopes the court will see this brief as an aid both to the court and to effective public service.

This Case is One of Public or Great General Interest and Involves a Substantial Constitutional Question


This case presents a critical issue for the future of parents and children involved in permanent custody proceedings upon abuse complaints in juvenile court: whether the parent's counsel needs to be present at relevant, significant transactions between the parties while the abuse case is pending.

The court of appeals concluded that the mother's permanent surrender discussion with Children Services regarding the subject child was a separate, non-adversary proceeding not requiring the mother's counsel to have been present. The Appellate Court relied on two Supreme Court cases and one appellate case3 in concluding that, despite the pending adversarial proceeding between the same persons, the mother was to be treated the same as any other parent voluntarily surrendering under R.C. 5103.15. Specifically, neither the statute nor the juvenile rules "contemplated" the right of an indigent person to have an attorney present during a private contractual transfer of permanent custody.4 The Appellate Court reasoned that, because a parent could always revoke the agreement before the juvenile court consented to it, nothing in the law mandated a parent's counsel be present during the discussions leading to the permanent surrender of custody.5


1 For example, "Basics of the Ohio Putative Father Registry." Ohio Lawyer. March/April 2005. 

2 In the Interest of Baby Boy Collins., 93-PA-00361, consolidated in 93-PA-01108, Bexar County, Texas, 525th Judicial District. (Not appealed).

3 Kozak v. Lutheran Children's Aid Society (1955), 164 Ohio St. 335; 130 N.E.2d 796; In re Miller (1980), 61 Ohio St.2d 184, 399 N.E.2d 1262; In re D.C.H., 9th Dist. C.A. No. 22648, 2005-Ohio-4257, unreported. 

4 Judgment Opinion at ¶ 23.

5 Judgment Opinion at ¶ 25-26.

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.


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 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.


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.