All about the constitutional right to counsel in Ohio adoption cases

In 2020, the Supreme Court of Ohio ruled in a 5-2 decision (with one of the 5 concurring in the judgment only) that indigent parents have a right to counsel in involuntary adoption cases under the Equal Protection Clauses of the federal and state constitutions.  The case is In re Y.E.F., 2020 Ohio LEXIS 2819 (Ohio 2020).

Before ruling on the right to counsel, the Court held that the matter was subject to interlocutory appeal (in the case, the parent appealed the denial of counsel before the case was over).  In Ohio, it is appealable in that way if the order “affects a substantial right in a special proceeding”, and the Court held that adoptions are a special proceeding and the right to counsel involves a substantial right (especially given the parent’s total inability to litigate without counsel), plus the parental rights underlying the right to counsel are fundamental.  It also noted that prior cases involving denial of permission to use out-of-state counsel or disqualifying counsel had been held to be immediately appealable.

The Court then turned to the merits.  Noting that the Court of Appeals had held that private adoptions do not involve state action, it held that the state’s decision to provide counsel for termination cases but not adoptions was itself a state action.  It also cited to the SCOTUS decision in M.L.B. v. S.L.J., which held in a footnote that adoptions involve state action because only the state can authorize them.  The Court then addressed the Court of Appeals’ contention that termination of parental rights proceedings are somehow different from adoption proceedings such that the parents in each situation are not similarly situated, responding that parents in both situations face permanent severance of their parental rights.  The Court then concluded that the state had offered no compelling justification to treat the parents differently, rejecting the AG’s argument that rational basis analysis should apply as well as the argument about “responsible management of taxpayer funds”.  The Court added that ensuring an accurate decision furthered the state’s interest because it ensures the best interests of the child are met.

In 2024, the Ohio legislature adopted HB 5, which provides that, upon the filing of the adoption petition, the clerk of courts must provide the parent with written notice, which must inform the parent that they are entitled to appointed counsel if indigent. See Ohio Rev. Code Ann. § 3107.11(B).

Then, in 2025, the Supreme Court of Ohio ruled that a mother in an adoption case who requested appointed counsel a day before a hearing to involuntarily terminate her parental rights did not waive her right to appointed counsel (NOTE: this right to counsel exists because of a case called Adoption of Y.E.F. that the NCCRC assisted).  The mother had received a notice of her right to appointed counsel 3 weeks prior to a hearing but did not request appointed counsel until the day before the hearing (she also alleged she had not received proper notice about the hearing).  The Court first explained that “Waiver of counsel can be inferred where ‘the total circumstances of the individual case, including the background, experience and conduct of the parent’ indicate that the parent has waived the right to counsel”, and noted that actions like failing to appear for hearings or communicate / cooperate with counsel can constitute waiver.  The Court concluded that the trial court, in not appointing counsel, had not even considered the question of whether waiver had occurred, yet the mother had “unambiguously” requested counsel, and the fact that she did not request it earlier “would not, without more, constitute a knowing, intelligent, or voluntary waiver of her right to counsel.”  The Court relied in part on an Court of Appeals ruling where a parent had not waived their right to counsel despite making a request moments before the hearing began.