Right to counsel

Litigation, Termination of Parental Rights (State) - Birth Parents

In State ex rel. Heller v. Miller, 399 N.E.2d 66, 70 (Ohio 1980), the Ohio Supreme Court held that


In actions instituted by the state to force the permanent, involuntary termination of parental rights, the United States and Ohio Constitutions' guarantees of due process and equal protection of the law require that indigent parents be provided with counsel and a transcript at public expense for appeals as of right.


The court reasoned that "the right of personal choice in family matters, including the right to live as a family unit, is a fundamental due process right."  The court continued that being represented by counsel was essential to protecting this right, because the litigant "cannot effectively appeal without . . . counsel."   To deny litigants an effective right of appeal by denying them counsel "when other [i.e., non-indigent] parents are given such a right impinges on both their own and the child's fundamental interests under the equal protection and due process clauses."  The court relied equal protection rationales of the U.S. Supreme Court's decisions in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585 (1956), Douglas v. California, 372 U.S. 353, 83 S.Ct. 814 (1963), and Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410 (1971). Notably, the court did not address the constitutional right to counsel at the trial level, because the parents "were, pursuant to R.C. 2151.352, in fact represented by appointed counsel at the trial level …"  Id. At 14, 71 (Holmes, J., dissenting).


An appellate court commented (albeit in an unpublished opinion lacking precedential value) on the continued vitality of Heller after Lassiter: "It is critical to note that the Heller holding is predicated upon Art. I, § 1 of the Ohio Constitution as well as on the Fourteenth Amendment to the United States Constitution, and its impact therefore is not diminished, if it might otherwise be thought to be, by the recent decision of the United States Supreme Court in Lassiter … to the effect that the United States Constitution does not require appointed counsel in every parental termination proceeding."  In re Johnson, 1982 WL 8498 (Ohio Ct. App. 1982) (unpublished). See also In re Baby Girl Baxter, 479 N.E.2d 257, 260 (Ohio 1985) ("This court has held that the state must appoint counsel for indigent parents at parental termination proceedings"); In re Zhang, 734 N.E.2d 379, 387 (Ohio App. 1999) (commenting that "Ohio law … has established, especially in termination of parental rights cases, a more stringent standard than the federal Constitution mandates for determining the requirement for counsel", and citing to Heller). 


On the other hand, see In re Moore, 1999 WL 1215294 (Ohio Ct. App. 1999) (unpublished) (noting that since Lassiter, "the Ohio Supreme Court has described the right to counsel as a statutory right 'that goes beyond constitutional requirements,' without specifically overruling Heller.")  Additionally, the interpretation of Heller by the Johnson court may be questionable, since Heller held that "We look to federal case law to delineate the right of relators under both the state and federal provisions. The Ohio Constitution's guarantees in these matters are substantially equivalent to the United States Constitution's guarantees."  If the state and federal due process clauses are essentially identical, and if Lassiter held there is no automatic right to counsel in termination of parental rights proceedings under the federal due process clause, then it is hard to see how Heller could survive on due process grounds alone. On the other hand, Heller also relied on the equal protection clause, which was not at issue in Lassiter.


Appointment of Counsel: categorical Qualified: yes