Due process right to counsel for appeals

The Ohio Supreme Court found a due process right to counsel in termination of parental rights cases, although the decision may be in question. 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).

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”).  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 App. 1999) (unpublished) (noting that since Lassiter, “the Ohio Supreme Court has described the right to counsel as a statutory right ‘that goes beyond constitutional requirements,’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.”)