2019 Ohio 448
Ohio Ct. App.2019Background
- Mother (E.S.) is the biological parent of twins born Sept. 3, 2014; paternal and maternal aunt/uncle (C.F. and D.F.) obtained legal custody by agreed juvenile-court entry in Sept. 2016.
- In April 2018 the aunt and uncle filed private adoption petitions in Delaware County Probate Court, alleging parental consent was not required due to lack of contact/support for the prior year.
- Mother received notice, appeared at the August 29, 2018 hearing, filed an affidavit of indigency on Aug. 22 requesting appointed counsel, and asked for counsel during the hearing; the probate court denied the request on Aug. 27, 2018.
- The magistrate proceeded with testimony; the court continued further proceedings to allow Mother to present her case; Mother appealed the denial of appointed counsel.
- The Fifth District affirmed, holding no constitutional or statutory right to appointed counsel in a privately initiated adoption and applying the Mathews v. Eldridge balancing test and equal-protection reasoning.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Aunt/Uncle/State) | Held |
|---|---|---|---|
| Whether due process requires court‑appointed counsel in a private adoption | Mother: indigent, facing loss of parental rights; appointment necessary for fairness and to understand procedures/evidence | Probate Court: adoption is privately initiated; no state action creating a constitutional right to counsel; Mathews factors do not favor appointment | Denied — no right to appointed counsel; Mathews balancing did not require appointment |
| Whether equal protection requires appointed counsel in private adoption because indigent parents get counsel in state‑initiated abuse/neglect cases | Mother: similarly situated to parents in R.C. 2151.353 cases; disparity requires equal protection remedy | Court: adoption and state custody are distinct; equal protection protects against state action and requires a showing of disparate treatment of similarly situated persons | Denied — parents in private adoptions not similarly situated to parents in state child‑welfare proceedings |
| Whether probate courts have authority to appoint counsel notwithstanding constitutional analysis | Mother: probate courts can appoint counsel to avoid constitutional violations | Court: no constitutional violation shown; authority question irrelevant to outcome | Denied — appointment not required here |
| Whether less burdensome safeguards suffice instead of counsel | Mother: needs counsel to cross‑examine and present defense | Court: procedures (notice, ability to testify/cross‑examine, continuance, affidavits, depositions, telephonic participation) can protect rights without appointing counsel | Held — procedural safeguards adequate; Mother had meaningful opportunity to be heard |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (balancing test for procedural due process)
- Edmonson v. Leesville Concrete Co., 500 U.S. 614 (equal protection/effect of state action)
- In re Adoption of Zschach, 75 Ohio St.3d 648 (Ohio Supreme Court: procedures protect parental rights in adoption)
- In re Adoption of J.L.M.-L., 148 Ohio St.3d 1446 (distinguishing adoption from permanent custody)
- In re Adoption of M.C., 131 Ohio St.3d 1476 (private adoption not state action for due process purposes)
- Angus v. Angus, 142 Ohio St.3d 122 (no constitutional right to counsel where state not the initiating party)
- In re J.R.F., 151 Ohio St.3d 1515 (addressing right to counsel in private adoption proceedings)