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Child Law Expert: Children Have Right to Maintain Relationships

April 14, 2004

 

An expert in children’s rights applauded today’s ruling of the Ohio Supreme Court that says a child may not be torn from his family without first providing the child with his own lawyer under certain circumstances. According to the Court, in In re Williams, a child who faces the prospect of being forever removed from his family and placed for adoption has a right to an attorney in a proceeding to terminate parental rights.

"As a matter of constitutional law, these children have a right to maintain their relationship with their mother," said Katherine Hunt Federle, Professor of Law and Director of the Justice for Children Project at The Ohio State University Michael E. Moritz College of Law. "The Supreme Court of Ohio has taken the necessary step to protect that right by requiring the appointment of a lawyer for these children who will make sure that they have a voice in these proceedings."

The Justice for Children Project and The Ohio Association of Criminal Defense Lawyers jointly filed an amicus curiae brief arguing that the children were entitled to independent counsel in any proceeding to terminate parental rights. Ohio law also recognizes that children are parties to these proceedings and provides that the children are entitled to be represented by an attorney.

"Children in permanent custody proceedings must have a voice in the courtroom and that their rights must be protected by attorneys who serve as their advocates. The right to counsel is morally necessary, statutorily protected, and constitutionally guaranteed," said Paul Skendelas, president-elect of the OACDL.

The children in this case have continually fought the state’s attempts to take away their mother. The two little boys, ages 3-1/2 and 7, have never been represented by their own lawyer. Despite their pleas, the trial court judge refused to appoint them an attorney, on the grounds that they were represented by a court-appointed guardian ad litem. According to court records, the guardian ad litem ignored the wishes of the children and repeatedly asked the court to give the children to a state agency for adoption, Professor Federle added.

The Supreme Court held that pursuant to Ohio Revised Code 2151.352, as clarified by Juvenile Rule 4(A) and Juvenile Rule 2(Y), "a child who is the subject of a juvenile court proceeding to terminate parental rights is a party to that proceeding and, therefore, is entitled to independent counsel in certain circumstances."

Moreover, the Court noted that the child as a party has due process rights worthy of protection. Consequently, issues, like those pertaining to the costs of additional counsel and the need for multiple attorneys when there are two or more siblings, are merely "peripheral practical considerations [which] fade in importance."

The Justice for Children Project is an educational and interdisciplinary research program housed within the Moritz College of Law. The Project’s mission is to explore ways in which the law and legal reform may be used to redress systemic problems affecting children.

The Ohio Association of Criminal Defense Lawyers is a statewide association of over six hundred public defenders and private attorneys who practice primarily in the fields of criminal and juvenile law. The Association seeks to advance the interests of society and to protect the rights of citizens and other persons subject to the laws of Ohio and the United States.

Since 1891, the Moritz College of Law has played a leading role in the legal profession through countless contributions made by alumni and faculty. Graduates of the school reside in all 50 states and 20 other countries and include justices of the Ohio Supreme Court, current and former U.S. Senators and Representatives, managing partners in law firms of all sizes, chief executive officers of Fortune 500 corporations, and attorneys with non-profit organizations and public interest law firms.

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